In Defense of Umpires
We’ve been treated of late to a fair amount of commentary on umpires and supreme court justices, most of it dismissive. Chief Justice Roberts’s remarks during his confirmation hearings about judges as umpires has been attacked in the pages of the New York Times by Geoffrey Stone, for example, as either naive or — more likely — dishonest. I’m not, however, convinced that the umpire analogy is the jurisprudential gaff that those among the con law chattering class have been making it out to be.
At the heart of the criticism, it seems to me, is an assumption that the umpire analogy is meant to offer either a theory of law or a theory of adjudication. On this reading, Chief Justice Roberts was claiming that law is like base ball, a simple, closed system of formally realizable rules. The role of a judge is simply to call the balls as he sees them. Such a view, his critics point out, is hopelessly naive. Law, perhaps especially constitutional law, is not like baseball. Its terms are frequently vague. It often consists of rules that are not formally realizable. Judges don’t passively call balls or strikes but are necessarily engaged in the creation of the law. John Roberts not being a stupid man, we must assume that he is either surprisingly mistaken or else being willfully deceptive. Or so runs the critique. I’m skeptical, however, that this is the best reading of the analogy.
My understanding of the umpire analogy is not that it is an account of law or judicial decision making. Rather, I think that the analogy is offered as a statement about judicial virtue. A virtuous judge is one who fairly applies the law. We can and will have strong and, I assume, good faith disagreements about what the law means and how it should be applied. The umpire analogy is not meant to resolve such disputes. It is not a gesture toward one approach rather than another. Rather, it is a gesture toward what a virtuous judge is like. An umpire may prefer the Red Soxs to the Yankees (most decent human beings do), but it would be bad form for him to act as a fan cheering when he called the third strike on a New York batter, even if the strike was properly called. The idea of the umpire doesn’t imply no preference about the outcome. It does, however, suggest that judicial virtue comes from establishing a distance from the disputes one resolves and an allegiance to following the law.
One might object to this characterization by saying that it is too banal to be meaningful. In a sense, I suspect that this is true. On the other hand, I do think that this notion suggests that one might be able classify some judges as bad judges not because they adhere to a mistaken theory of law, but because they lack certain habits and dispositions. Indeed, I suspect that many of the smartest and most interesting judges on the bench may actually perform fairly badly by the umpire measure of judicial virtue. One might also object that the umpire does not actually provide a good model of judicial virtue. The virtuous judges, one might argue, are not detached but passionately committed to justice. Fair enough. This is not an implausible theory of judicial virtue. Notice, however, that this is not ultimately an argument about the nature of law.
I realize that in the world of op-eds before a Supreme Court confirmation fight, it is probably too much to hope — even from academics — that writers will interpret the words of political opponents with charity and generosity. That said, noting that law is not really like baseball doesn’t strike me as particularly relevant in assessing the validity of the umpire analogy. It isn’t a theory of law.