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Of Umpires and Judges:

As the posts in this thread suggest, Chief Justice Roberts' analogy between judges and umpires has many antecedents. Lawprof Eric Muller takes the prize for finding the earliest judge-umpire analogy so far, a 1912 district court decision.

Many people criticize the umpire-judge analogy because the rules of baseball are much clearer than those of constitutional law and give umpires less discretion than judges have. This criticism is, I think, overstated. Umpires exercise a great deal of discretion over the size of the strike zone, when to throw players and managers out of the game, and other important issues. As in legal theory, there are even broad philosophical disagreements as to the best method of umpiring. For example, some believe that the umpires should strictly enforce the rules as written (a position roughly analogous to textualism in legal interpretation). Others adhere to longstanding traditions that in some cases diverge from the letter of the rules (e.g. - the rule against catchers blocking the plate is often left unenforced); this is similar to precedent-based reasoning in law. There are also some umpire practices that seem analogous to "purpose-based" legal interpretation.

Where the judge-umpire analogy really breaks down is not in the realm of interpretative theory but in that of incentives. Unlike federal judges, baseball umpires don't have life tenure. Major League Baseball can fire them or discipline them if it determines they aren't doing a good job. MLB also has a lot of discretion in deciding which umpires will call which games (e.g. - picking only the best umpires to do the World Series). On the other hand, federal judges are extremely difficult to remove, and the political branches of government don't have much control over which judges will hear which cases - especially at the Supreme Court. Thus, unlike with umpires, it's much more important to pick the right people for the job from the start. If you pick the wrong ones, they're likely to plague you for decades to come.

Philosopher:
Umpires exercise a great deal of discretion over the size of the strike zone, when to throw players and managers out of the game, and other important issues. As in legal theory, there are even broad philosophical disagreements as to the best method of umpiring.


It's hard for me to take that claim seriously. Unlike an umpire, the Supreme Court can rewrite "the rules" at will. While there may be some wiggle room in close calls, umpires are far more highly constrained than judges.

If an umpire had the same power that the Supreme Court has, in the middle of Game 7 of the World Series he could decide that there are only eight innings in a game.
8.2.2008 7:59pm
mjujab (mail):
Philosopher,

Sorry to press the point, and I don't mean to make this personal, but I am curious if you have a lot of umpiring or refereeing experience.

Your posts, cogent as they are, make me wonder if there isn't an "internal" aspect of umpiring such that doing it in an adversarial setting would give one a different understanding -- different than the understanding that spectators and even players would have. I've been an ump and a ref, and a trial lawyer and a binding arbitrator sitting as final judge of disputed matters. As I've said, I see some merit in the analogy.
8.2.2008 8:22pm
MarkField (mail):

Umpires exercise a great deal of discretion over the size of the strike zone


I don't mean to nitpick, because I think I know what you mean, but umpires have no discretion at all about the size of the strike zone. They do, though, differ in what they call a strike.

I'd suggest that this fact should make us very suspicious of those who claim to "just decide the law". Even umpires, who have no stake in the outcome; who are given a much more precise definition of terms than can be found in the Constitution; and who make their calls under far more closely controlled circumstances, still don't all reach the same decisions. "Just deciding" turns out to be a little more complicated than that.
8.2.2008 8:44pm
John (mail):
I like the "textualism" analogy. Think of the second baseman turning a double play on a throw from short by just standing in the vicinity of second, instead of stepping on the base before throwing on to first. Why, he was standing in a base-penumbra! It works!
8.2.2008 9:20pm
ANDKEN (mail) (www):
In Portuguese we use the same word(Juíz) to both. ;-)
8.2.2008 9:50pm
Sasha Volokh (mail) (www):
Didn't Just Dropping By, a commenter to Orin's post below, give a quotation from an 1886 case?
8.2.2008 9:58pm
Informant (mail):
Sasha Volokh wrote: "Didn't Just Dropping By, a commenter to Orin's post below, give a quotation from an 1886 case?"

Ilya may not have counted that one because although it was referring to an umpire of a sporting event, it wasn't referring to a baseball umpire.
8.3.2008 1:25am
Dan Goodman (mail) (www):
I misread "umpires" as "vampires". Which would, of course, be another discussion.
8.3.2008 1:28am
Larry Fafarman (mail) (www):
Sheeesh -- with three or four articles on the same subject, the judge-umpire analogy, it is hard to decide where to post my comment (maybe I should post on all of them?), but I decided to post on this one first because it is the newest.

To me, the most important part of the judge-umpire analogy is that judges should be content to be obscure like umpires and not seek fame like star players (of course, at the Supreme Court level, having at least a little fame is hard to avoid). I think that Chief Justice Roberts said at his confirmation hearing that no one ever came to a baseball game to watch the umpire. One judge who is particularly notorious for seeking fame is megalomaniacal Judge John E. Jones III, who decided the Kitzmiller v. Dover intelligent-design evolution-disclaimer case. He was in the 2006 Time magazine list of the world's 100 most influential people, he received at least two honorary degrees, and he criss-crossed the country giving lectures, mostly about "judicial independence."
8.3.2008 3:06am
Sasha Volokh (mail) (www):
Dan Goodman: Similarly, in Jim Lindgren's post below, I read "Sitemeter" as "Schumpeter."
8.3.2008 4:06am
MS (mail):

I've got a good Judge Smith judging metaphor. Judges are like food critics: incredibly kind in person, obnoxious in front of a typewriter.
8.3.2008 4:54am
FlimFlamSam:
An excellent example of "discretion" is the failure of many umpires to enforce the requirement that the second basement/shortstop physically touch second base with his foot when turning a double play. Most umpires do not require strict compliance with that rule due to the potential for injury associated with a sliding, advancing runner.
8.3.2008 8:58am
MarkField (mail):

I misread "umpires" as "vampires". Which would, of course, be another discussion.


"Xander (to Buffy): You're in love with a vampire?! What, are you outta your mind?!

Cordelia: What?!

He looks at Cordelia. She's looking somewhere else, but turns to him.

Xander: (to Cordelia) Not vampire... (to Buffy) How could you love an umpire? Everyone hates 'em!"
8.3.2008 11:21am
FantasiaWHT:
Don't forget the decisions about how much deference to give to the "lower" umpires (for check-swing calls, e.g.)

Philospher, I think you're overstating it. There's certain things that an umpire can't do, and there's certain things SCOTUS can't do. Or, to put it another way, there's things an umpire could TRY to do (stop the game after 8 innings), and that SCOTUS could TRY to do (say, remove all military authority from a president), but everyone else would probably just ignore.
8.3.2008 11:48am
Michael Edward McNeil (mail) (www):
I've referred to this piece from Winston Churchill’s History of the English-Speaking Peoples here before (Churchill was a Nobel Prize winner in Literature for works such as this), but it’s worth recalling that Churchill also spoke of the Anglospheric judge as an “umpire” — vis-a-vis the judges of Roman-law derived regimes, who participate in an adversarial role much more than in Anglo-American legal traditions. (As a half-American, it’s not clear if he was referring to a baseball umpire.) Quoting Churchill’s book:

“It is a maxim of English law that legal memory begins with the accession of Richard I in 1189. The date was set for a technical reason by a statute of Edward I. It could scarcely have been more appropriately chosen however, for with the close of the reign of Henry II we are on the threshold of a new epoch in the history of English law. With the establishment of a system of royal courts, giving the same justice all over the country, the old diversity of local law was rapidly broken down, and a law common to the whole land and to all men soon took its place. A modern lawyer, transported to the England of Henry's predecessor, would find himself in strange surroundings; with the system that Henry bequeathed to his son he would feel almost at home. That is the measure of the great King's achievement. He had laid the foundations of the English Common Law, upon which succeeding generations would build. Changes in the design would arise, but its main outlines were not to be altered.

“It was in these fateful and formative years that the English-speaking peoples began to devise methods of determining legal disputes which survive in substance to this day. A man can only be accused of a civil or criminal offence which is clearly defined and known to the law. The judge is an umpire. He adjudicates on such evidence as the parties choose to produce. Witnesses must testify in public and on oath. They are examined and cross-examined, not by the judge, but by the litigants themselves or their legally qualified and privately hired representatives. The truth of their testimony is weighed not by the judge b[ut] by twelve good men and true, and it is only when this jury has determined the facts that the judge is empowered to impose sentence, punishment, or penalty according to law.

“All might seem very obvious, even a platitude, until one contemplates the alternative system which still dominates a large portion of the world. Under Roman law, and systems derived from it, a trial in those turbulent centuries, and in some countries even to-day, is often an inquisition. The judge makes his own investigation into the civil wrong or the public crime, and such investigation is largely uncontrolled. The suspect can be interrogated in private. He must answer all questions put to him. His right to be represented by a legal adviser is restricted. The witnesses against him can testify in secret and in his absence. And only when these processes have been accomplished is the accusation or charge against him formulated and published. Thus often arises secret intimidation, enforced confessions, torture, and blackmailed pleas of guilty.

“These sinister dangers were extinguished from the Common Law of England more than six centuries ago. By the time Henry II's great-grandson, Edward I had died English criminal and civil procedure had settled into a mould and tradition which in the mass govern the English-speaking peoples to-day. In all claims and disputes, whether they concerned the grazing lands of the Middle West, the oilfields of California, the sheep-runs and gold-mines of Australia, or the territorial rights of the Maoris, these rules have obtained, at any rate in theory, according to the procedure and mode of trial evolved by the English Common Law.”


Reference: Winston S. Churchill, A History of the English-Speaking Peoples, Volume 1, “The Birth of Britain,” Dodd, Mead &Company, New York, 1956 (8th Printing, 1962); pp. 221-223.
8.3.2008 12:35pm
Dave Hardy (mail) (www):
It might be a closer analogy if a strike was defined as a pitch which, under all the circumstances, gave the batter a reasonable opportunity to hit it with reasonable impact. And the runner's duty is to touch each base unless, in the judgment of the nearest official, he could have touched it, but compelling reasons justified him in not doing so.

Better yet: the game shall be governed by 5-10 meta-rules. Before each game, the officials shall lay down specific rules implementing these. The rules for a game shall be the same as those for the officials' last game, unless they explain the reasons for change. They may change the rules during the game and determine whether the change is or is not retroactive to the beginning of it.
8.3.2008 12:35pm
Larry Fafarman (mail) (www):
Here is a transcript of John Roberts' actual testimony at his confirmation hearing:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench . . .

. . . . .I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

So as I said, part of what Roberts was saying was that judges should try to be humble like umpires and not try to be star players. And I hope that Roberts was not trying to imply that judges don't have a lot of discretion.

Also, IMO Roberts' analogy "Nobody ever went to a ball game to see the umpire" is wrong because often a lot of attention is focused on Supreme Court justices and sometimes lower-court judges. Examples of lower-court judges who became very prominent are Judge John E. Jones III (Kitzmiller v. Dover) and Lance Ito (OJ Simpson murder trial).
8.3.2008 2:43pm
Rodger Lodger (mail):
I couldn't find an earlier reference than the winner here, but I did come across this opening paragraph from the opinion in Andrews v. State, 134 Ga. 71 (1910):

BECK, J. The defendant in this case was charged with the offense of murder. The homicide out of which this charge grew was the result of an altercation between the deceased, who was pitching in a game of baseball at the time the altercation arose, and the accused, who was the umpire in the game. A dispute arose between the two, when the deceased, Curtis Cason, charged Henry Andrews, the umpire, with unfairness in passing upon the question as to whether the balls [***2] delivered by the pitcher were "strikes" or "balls." The accused seemed to have been highly incensed at certain language applied to him by the deceased, and replied with offensive epithets. It is unnecessary to follow the course of the altercation which finally resulted in the killing of Curtis Cason. [*72] Evidence was introduced by the State which tended to show that the homicide was entirely unprovoked except by the language of Curtis Cason in which the fairness of the umpire was challenged and his fitness for the position was questioned. According to the testimony of some of the defendant's witnesses, on the other hand, at the time of the homicide the deceased and the accused were engaged in mutual combat; and under the facts testified to by those witnesses, if credited by the jury, a verdict of voluntary manslaughter in the case would have been a proper finding. The court failed to charge the law upon the subject of mutual combat, and gave the jury no instructions upon the subject of voluntary manslaughter, and in the motion for a new trial error is assigned upon the court's failure to charge upon the subject of mutual combat and voluntary manslaughter.
8.3.2008 4:49pm
merevaudevillian:
Judge Posner spends a significant amount of time criticizing Roberts's umpire analogy in his book How Judges Think, scattering criticism throughout. His criticisms are most concretely described (whether you agree or disagree) as follows:

Roberts was updating for a sports-crazed era Alexander Hamilton's descrption of a judge as the government official who, unlike an official of the executive or legislative branch of government, exercises judgment but not will, and Blackstone's description of judges as oracles of the law, implying (if taken literally) an even greater passivity than Hamilton's and Roberts's definitions.

In offering the umpireal analogy, Roberts was trying to navigate the treacherous shoals of a Senate confirmation hearing. And having had a very successful career as an advocate--the batter, not the umpire--it was natural for him to exalt the former's role. (When he became Chief Justice, his perspective quickly changed.) Neither he nor any other knowledgeable person actually believed or believed that the rules that judges in our system apply, particularly appellate judges and most particularly Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires. We must imagine that umpires, in addition to calling balls and strikes, made the rules of baseball and changed them at will. Suppose some umpires thought that pitchers were too powerful and so they decided that instead of three strikes and the batter is out it is six strikes and he's out, but other umpires were very protective of pitchers and thought there were too many hits and therefore decreed that a batter would be allowed only one strike.

There is a less obvious mistake in Roberts's baseball analogy. Until recently, different umpires defined the strike zone differently, so that pitchers had to adjust their tactics to the particular umpire. The analogy is to the way in which different judges interpret the Constitution differently. The interpretive freedom of umpires was deemed intolerable, and beginning with the 2002 season Major League Baseball installed cameras (the Umpire Information System) to photograph all pitches so that it could be determined objectively whether umpires were calling balls and strikes according to a uniform standard. When the system detects a significant error rate on the part of an umpire, he is disciplined.

If the judiciary had a similar system for evaluating judicial decisions, Roberts's analogy would be spot-on. But of course it does not. As is usually true of "reasoning by analogy," what is interesting about the comparison between umpires and judges is not the similarities but the differences.


I think Posner's first criticism is far too much a criticism from a priori a realist mindset, and his second criticism a giddy nit-picking of a generic metaphor used, as Posner admits, to get past the Senate. But, it's certainly worthy of some contemplation.
8.3.2008 10:23pm
David Warner:
I would go so far as to say that for a libertarian Roberts analogy holds beyond just the judicial branch, and that the umpire becomes progressively more impaired in his primary duties to more positions he is called on to play.
8.3.2008 11:08pm
Larry Fafarman (mail) (www):
Ilya Somin said in the original post,
Many people criticize the umpire-judge analogy because the rules of baseball are much clearer than those of constitutional law and give umpires less discretion than judges have. This criticism is, I think, overstated. Umpires exercise a great deal of discretion over the size of the strike zone, when to throw players and managers out of the game, and other important issues.

I disagree -- I think that the criticism is a fair one. A judge can call a wild pitch a "strike" and can change the rules. One judge who changed the rules is John E. Jones III, who decided the Kitzmiller v. Dover intelligent design case. He hypocritically claims to be a stickler for judicial precedent but he ignored establishment clause precedent and substituted his own cockamamie interpretation of the establishment clause:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.
-- from 2006 Dickinson College commencement speech

The preceding statement, besides showing extreme prejudice against ID and the Dover defendants (regardless of whether ID is a religious concept), also consisted of plagiarized quote mines of a book.

Judge Jones went so far as to say in a TV interview that judges "operate in a very workmanlike way":
We operate in a very workmanlike way, believe it or not. We find the facts, as we did in this case, by listening to the testimony, and then we apply well-established law to those facts. It's a sequential process that is time-tested. Every judge does it in the United States.

In response, I wrote in an article on my blog,

Judge "I am not an activist judge" Jones has been criss-crossing the country giving lectures supposedly "educating" the public about how judges work but has actually been misinforming the public. Jones emphasizes the role of precedents and claims that the work of judges is "workmanlike," giving the false impression that there is only one decision that can be consistent with precedents whereas many different decisions can be consistent with precedents. Judge Jones is trying to duck criticism of his Dover decision by pretending that he was just following a set of instructions in a manual. If judges are just unskilled "workmen," then they should be paid like unskilled workmen.

One of the biggest reasons why Judge Jones gets away with his buffoonery is that the legal profession has been ignoring it.
8.3.2008 11:32pm
Larry Fafarman (mail) (www):
IMO it is noteworthy that Roberts made the judge-umpire analogy one of the central ideas of the fairly short opening statement of his confirmation hearing. So I nicknamed him John "Ump" Roberts.

Here is a picture of Roberts' confirmation hearing with dozens of reporters with cameras seated on the floor in front of him. I wonder if he didn't feel a little silly when he said, "nobody ever went to a ball game to see the umpire."
8.4.2008 6:03am
David Warner:
"Here is a picture of Roberts' confirmation hearing with dozens of reporters with cameras seated on the floor in front of him. I wonder if he didn't feel a little silly when he said, 'nobody ever went to a ball game to see the umpire.'"

The statement is to the real, the analogy to the ideal.
8.4.2008 11:51am