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.

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20 Responses

  1. John Steele says:

    I agree completely. I’ve found that few, if any, of the critics of the analogy have served much time being an ump or ref and even fewer have sat as a judge or binding arbitrator as well. It’s all about the virtues of being an ump. Fwiw, I had made a similar defense of the analogy here:

  2. Actually you could have had a field day just mocking Prof. Stone’s article:

    “It defines our most fundamental rights and protections in open-ended terms…These terms are not self-defining; they did not have clear meanings even to the people who drafted them.”

    But, throw a dash of “empathy” in and voila:

    “First, empathy helps judges understand the aspirations of the framers, who were themselves determined to protect the rights of political, religious, racial and other minorities.”

    Got it? If only the framers had had “empathy” – they too would have known what the words they were writing meant.

  3. Norman Williams says:

    Nate, if the analogy is meant to point out that the task of a judge is to adjudicate whether a particular action is lawful (strike) or unlawful (ball), the analogy is worthless because everyone agrees on that point. Presumably, the point of the analogy is to advance another, more contested claim: that a good (as distinct from bad, judicial activist) judge has no role in defining the content of the rule but must instead reflexively enforce the rule whose contours are accepted and understood by all. (Even if that is not what Chief Justice Roberts intended, that seems to be what Senate Republicans understand the analogy to mean).

    In my view, the umpire analogy actually undermines that claim and supports Geoff’s point. As any fan of (or umpire or pitcher in) baseball knows, each umpire has a different understanding of the strike zone, even though the terms of the rule are constant. Construing the strike zone, like construing many of the more vague provisions in the U.S. Constitution and federal statutes, involves something more than mechanical application of fact to agreed law — rather, the meaning and content of the rule/law is itself unclear and in need of interpretation. As to what considerations are valid or invalid in giving content to the rule/law, the umpire analogy is useless. Surely no umpire is thinking what the framers of the baseball rules intended or how past umpires called the strike zone.

    There is another, less noticed respect in which the umpire analogy is useful, however. Within baseball, variability among umpires in construing the strike zone is acceptable (and accepted); an umpire is not a bad umpire merely because he (or she) calls the strike zone more liberally or conservatively than others. That is a lesson that Senate Republicans, who seem to embrace the analogy most wholeheartedly, would be wise to remember — at least, that is, if their embrace of the analogy is anything more than a convenient makeweight.

  4. TJ says:

    Nate, I am not sure you have offered any meaningful defense of the umpire analogy. An “allegiance to following the law” requires an assumption that we know what “the law” is, apart from the judge’s subjective views and personal preferences. That is just restating the appeal of mechanical jurisprudence.

  5. Nate Oman says:

    I find it odd that Norman thinks that the view of judicial virtue implicit in the umpire analogy is so vacuous as to encompass anyone while TJ believes that the assumptions implicit are so strong as to betray an allegiance to mechanical jurisprudence. My own sense is closer to Norman, which is precisely why I don’t think that the umpire analogy can be thought of as a starting place for a theory of law. TJ’s remarks, however, are puzzling to me. Do you really think that a judge who believes she should follow the law is necessarily committed to “mechanical jurisprudence”? Really?

    (BTW, does anyone actually believe in mechanical jurisprudence. In Taking Rights Seriously Dworkin exonerated even Beale from the charge. If Beale isn’t a mechanical jurisprude, I’m at a loss as to how John Roberts can be one.)

  6. TJ says:

    Nate, I am not sure what contrast you are drawing between my views and Norman’s, since to me they seem rather similar, and very different from yours. Like Norman, I think that the umpire analogy implies at a minimum that, if we knew what “the law” was and the result that “the law” dictated, then a judge is duty bound to reach that result. And virtually every judge has an “allegiance to following the law” when defined in this manner. As Posner pointed out in his How Judges Think book, no judge goes “the law clearly says X, but I prefer Y, so Y is how I will rule.”

    The appeal of mechanical jurisprudence is the further assumption that “the law” is as determinate and formally realizable as the rules on balls and strikes, so we know what X is. But the entire debate is about whether the law is determinate because, as Norman points out, nobody contests the first version.

    A judge who professes “allegiance to the law” is either saying something very minimal (i.e. “if the law is clear, I will follow it”) or saying something more than that: disclaiming personal ideology even when “the law” is unclear or denying that the law could be unclear. The first is meaningless, and couldn’t possibly be all that Roberts meant to imply since it is so taken for granted. The second displays a fondness for mechanical jurisprudence, even if not a commitment to it.

  7. Nate Oman says:

    I am puzzled as to why we believe that in difficult cases judges can’t still understand themselves to be following the law. Dworkin, for example, labors mightily to offer precisely such a theory. Even if one believes a la Hart that in the face of ambiguity judges are implicitly given authority to legislate, the judge’s decision would still be understood as lawful. My point is that thinking about what makes a virtuous judge needn’t necessarily commit us to a particular theory of law. Both Dworkin and Hart, I’m assuming, believe that judges should follow the law, even if they disagree about what it means to follow the law or how judges go about deliberating about the law. I think that the umpire analogy is meant to express a statement about the kind of disposition that a judge ought to have toward the law, not a particular theory about how one discovers that law.

    Finally, the reference to mechanical jurisprudence strikes me as a rather strange throw back rhetorically. First, it is a term of derision coined by Pound I believe for those with whom he disagreed. Nobody actually claims to be a mechanical jurist. This ought to make one suspicious. It is not a term like “originalism” that corresponds to a clearly defended position. Second, I really don’t see anyone seriously arguing that law consists entirely of formally realizable rules, which reinforces my sense that we are in the presence of a straw man here.

  8. TJ says:

    In retrospect, my use of the word “clear” can be a little misleading, so here is another way of analyzing the problem. In your conception of judicial virtue, a judge can have a preference for the outcome and rule, but doesn’t let those preferences affect him — i.e. he would reach the same outcome and rule even if he didn’t have those preferences.

    For some cases, this is clearly true, because judges having the opposite ideological preferences reach the same outcome and rule. These are the cases where the law is clear.

    But in other cases, the problem with this conception of judicial virtue are twofold. First, it is practically impossible to observe, since we have no idea whether a hypothetical judge with no ideological preferences would rule the same way. Second, to the extent we can study the question, it appears to describes no actual judges (see, e.g., Bush v. Gore). Roberts thus either offered a meaningless and unreachable aspiration that he knew was meaningless and unreachable and had no intention of conforming to; or he implied that the standard was achievable. To the extent that the latter claim is made–that we know what “the law” is because we can discern how an ideology-free judge would rule and thus how real judges should rule–it evidences a fondness of mechanical jurisprudence in my book.

  9. Nate Oman says:

    Let me see if I can make my point more succinctly:

    There are any number of reasons one might disagree with Chief Justice Robert’s legal philosophy. On the other hand, the fact that law is not like baseball doesn’t strike me as one of these reasons, given that the analogy does not seem to have been meant as a reference to a philosophy of law. Harping on the difficulties of baseball as a legal philosophy, as does Stone in his op-ed, thus strikes me as a debater’s trick rather than a serious argument. I conceded, however, that the op-ed page of the NYT is probably not a place where one is entitled to expect serious argument on a regular basis.

  10. Nate Oman says:

    TJ: I am confused by how it is that the claim that in hard cases judges follow the law is both unobservable and empirically falsified.

    Leaving that aside, I do agree that if my theory of umpire as reference to judicial virtue rather than legal theory is correct one could not observe whether a judge was virtuous by comparing the substantive results of his decisions with “correct” legal reasoning. Correct legal reasoning is controversial and one could make good faith mistakes that do not implicate judicial virtue. Indeed, my original point is that one can make claims about judicial virtue without necessarily making claims about substantive legal theories. Hence, I believe that two judges could disagree about what the law requires and both could be behaving in a virtuous manner.

    To the extent that we want to observe virtue, it seems to me that it will be found not in substantive legal outcomes but rather by judgments about personal temperament and attitude, judgments that will necessarily be holistic and difficult to justify. On the other hand, many of the most important judgments that we make in life are holistic and difficult to justify. So what? I’m reminded of Aristotle’s remark in the Ethics that we ought not to expect more precision in a subject than the subject matter allows.

  11. TJ says:

    Nate, I recognize there is some tension between the two ideas that it is impossible to be completely sure whether a judge is acting ideologically, and the firm belief that pretty much all judges decide cases ideologically some of the time. At the same time, I hope you will grant that both propositions are generally accepted. It is possible to argue that the majority and in Bush v. Gore really believed what they were saying as “the law,” since it is impossible to falsify (how do you prove that they don’t subjectively believe it?); but not many people really think that.

    And I agree it is possible for two judges to not be acting on their ideological preferences and yet disagree. I don’t agree, however, that it is always possible in every case to have such non-ideological disagreement. The problem with positing that a virtuous judge can act without consideration of ideology in every case is threefold: (1) it describes no actual judges; (2) it does not describe Roberts in particular; and (3) it implies there is a non-policy-preference-based “correct” answer to every legal question, with disagreement occurring only because one judge is too stupid to figure out the correct answer. The last implication is what makes the balls-and-strikes analogy so appealing, but it is also a return to formalism and a belief in mechanical jurisprudence. The belief must be that, if judges just work really hard, they will all reach the same answer. This belief is necessary because if there are two or more correct answers to a legal question, then picking among them is necessarily a matter of policy.

  12. Norman Williams says:

    What a great exchange. If only the upcoming Senate Judiciary confirmation hearings revealed such a deep and subtle understanding of law and the judicial role.

    I agree that a theory of law differs from a theory of adjudication or judicial virtue, but I do not see how the umpire analogy provides a convincing account of the latter. Judicial virtue must include something more than a detachment regarding the result of a case — few, if any judges, would agree that it is appropriate to sit on a case in which they care who wins (Massey Oil or the Red Soxs). Our rules regarding judicial recusal reflect that view of judicial virtue.

    Matters become more complicated, however, if you build a more robust or thick account of judicial virtue that includes interpretive commitments. What about a judge who really believes, for example, that sexual orientation is not and never can be (or is and must be) a suspect class? Or that the Equal Protection Clause’s meaning can be readily discerned by looking at what the Framers’ of the 14th Amendment thought? Can that judge sit on Lawrence v. Texas? Nate, if I understand your point, your view is no; a judge must be like an umpire who, before the pitch is thrown, has no preconceived notion as to whether to call it a ball or strike. But that is where TJ’s point comes into play: Most people would agree that it’s unavoidable that judges, unlike umpires, will have such attachments and even desirable that they have such (would we really want a judge that is entirely a blank slate?).

    Hence, the umpire analogy as an account of judicial virtue is either worthless (because it is so thin that every judge satisfies it) or inapposite (because it is so thick that no real judge can meet it). That’s not to say that we shouldn’t try to describe judicial virtue and its relationship to interpretive commitments, only that such relationship cannot be captured by sports analogies. A good judge’s task is far more complex than that facing an umpire.

  13. Nate Oman says:

    Norman: I disagree with you about recusal standards and practice. Judges regularly sit on cases where they care about the outcome. Judges recuse themselves where they have some pecuniary interest in the outcome or some circumstances that calls into question their ability to be fair. Being fair is not the same thing as being unconcerned with the outcome.

    I am fine with criticisms of the umpire analogy as a great analogy for judicial virtue. I certainly wouldn’t want to claim that thinking about umpires exhausts the possibilities for thinking about judicial virtue. Indeed, I am not even convinced that the umpire analogy is the best analogy for thinking about judicial virtue. My point is not that the umpire analogy is the end all and be all of judicial virtue analogies. Rather, my point is that it IS an analogy about judicial virtue NOT a theory of law. Talking about umpires and baseball simply isn’t, in my opinion, a fair way of criticizing some substantive legal theory like originalism.

    TJ: Good faith disagreements between judges on outcomes needn’t imply that there are multiple correct results. There may in fact be a single correct result and one of the judges may in fact be mistaken. My only point is that the disagreement could be a good faith disagreement about what the law requires. One might subscribe to Dworkin’s claim that there are uniquely right answers (no mechanical jurist he) while also believing that good faith mistakes are possible for example.

    One might also believe that there are good faith disagreements about correct outcomes because one subscribes to a genuinely pluralistic view of the law under which there are multiple correct legal outcomes, or at least multiple plausible outcomes. Does subscribing to such a position suggest that law-following is meaningless as an account of judicial virtue? I don’t think so. First, unless one believes that the law is radically indeterminate, certain outcomes that might otherwise be appealing will be off limits to a virtuous judge. Second, it doesn’t follow that that there is a kind of judicial probablism at work whereby so long as an outcome is within the realm of plausible results judges are free to simply vote their policy preference. Judges might still be attempting to make comparative judgments on the legal merits of competing legal theories. Now of course, one might believe that these judgments will inevitably be influenced by their ideological priors. I would assume that this is true. This doesn’t preclude judges from making a good faith effort control for and distance themselves from ideological their ideological priors. One assumes that such an internal struggle is what is required by a certain account of judicial virtue.

  14. TJ says:

    Nate, I agree with you that good faith disagreements can arise in the context of mistake. And if one subscribes to the view that there is a uniquely right answer in every case, the umpire analogy may work, at least as an aspirational matter, even if it describes no real judges.

    If one doesn’t believe that there is a uniquely right legal answer in every case, however, I think the case breaks down. You say that “[j]udges might still be attempting to make comparative judgments on the legal merits of competing legal theories.” But that contradicts the express assumption that both answers have equal legal merit, since neither is uniquely right. Judges in such cases necessarily make the choice on something other than legal merit alone. We might have different names for that something, e.g. “politics,” “policy,” “ideology,” etc., but it does not fit within the balls-and-strikes conception of judicial virtue if it means that the judge never brings his political (understood broadly and not simply as partisan) views to bear.

  15. Interested Reader says:

    I agree with Norman Williams at 12; this is a great exchange. I have no insights to add, but thought it might be useful to post a portion of the Roberts confirmation hearing about the analogy.

    CORNYN: One of these blogs said that your comparison of a judge to a baseball umpire reminded him of an old story about three different modes of judicial reasoning built on the same analogy.

    First, was the umpire that says some are balls and some are strikes, and I call them the way they are.

    The second umpire says some are balls and some are strikes, and I call them the way I see them.

    The third said: Some are balls and some are strikes, but they ain’t nothing till I call them.

    Well, I don’t know whether it’s a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning. But I wonder if you have any comment about that.

    ROBERTS: Well, I think I agree with your point about the danger of analogies in some situations. It’s not the last, because they are balls and strikes regardless, and if I call them one and they’re the other, that doesn’t change what they are, it just means that I got it wrong.

    I guess I liked the one in the middle, because I do think there are right answers. I know that it’s fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues.

    That’s not the view of the law that I subscribe to. I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute.

    I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they’re just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation.

    And the job of a good judge is to do as good a job as possible to get the right answer.

    Again, I know there are those theorists who think that’s futile, or because it’s hard in particular cases, we should just throw up our hands and not try.

    In any case — and I don’t subscribe to that — I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.

    CORNYN: Well, as a good lawyer, you also know the danger of an analogy is that people will take it and run away with it, perhaps use it against you.

  16. A.J. Sutter says:

    Not addressed in this thread (other than in passing by TJ) is whether Roberts CJ has lived up to the “umpire” role. What’s really motivating so many to drive a stake through umpirism may be the feeling that it was such a disingenuous comparison in his case, fairly reeking of false humility.

  17. \”As Posner pointed out in his How Judges Think book, no judge goes “the law clearly says X, but I prefer Y, so Y is how I will rule.”\”

    No, they simply find X unclear, if and only if they prefer Y, and so find themselves in a position to rule Y. That\’s always been, from the start, the big problem with the idea that judges are entitled to impose their own preferences where the law is \”unclear\”: It pretty much guarantees that judges will find things \”unclear\” that no moderately literate person without a dog in the fight would have trouble interpreting.

  18. Howard Wasserman says:

    I offer my two cents in a post at Prawfs. For now, I’ll say that it really does not matter what Roberts intended because the analogy has been seized on by everyone (notably Republican Senators) as a normative vision of the law and judicial decisionmaking. That is why we got (and will get this time around) endless questions about umpiring and the analogy. So it remains important to take the metaphor on as a normative vision.

  19. Norman Williams says:

    Apropos of Howard’s point, with whom I agree, the Cornyn-Roberts exchange makes clear that the umpire analogy is being offered (and understood) as a theory of interpretation, not of judicial virtue. Note Robert’s emphasis on giving effect to Congress’s and the Framers’ views, a fairly apparent endorsement of originalism.

    Nate, where I agree with you and disagree with TJ is the determinacy of law. One can fully believe (a la Dworkin) that there is one “right” or “best” answer regarding the content of the law but disagree about what the answer is and the best interpretive methodology to identify the answer. As I understand our exchanges, we all agree that the umpire analogy, contra Roberts and Cornyn, does not illuminate how to go about discerning the best interpretive methodology.

    One final point regarding your noble and interesting attempt to rehabilitate the analogy as a theory of judicial virtue. Perhaps judges sit on cases that they shouldn’t under our recusal rules, but I disagree that our recusal rules (or due process), rightly understood, would permit a judge to sit on a case in which he or she wants the party to win (and will shape the law to justify that result). Caperton stands at a minimum stands for that. Perhaps a judge wants a particular view of the law to prevail (which view will necessarily lead one of the parties to win), but that type of interpretive commitment is accepted and acceptable under the recusal rules and due process.

  20. Michael Yelnosky says:

    I know I am late to the game here, but I actually was discussing this issue well before Justice Roberts made his now famous remarks. In a piece in the Connecticut Law Review in 1996 I wrote about the use of baseball metaphors in judicial opinions and explained why, as Norman Williams points out above, Justice Roberts may have been right about describing judges’ behavior, but not for the reasons he and his supporters believe. I wrote: “Although the rules defining the strike zone seem determinate, ‘there are sixty-four umpires in the big leagues and you have sixty-four different strike zones.'”

    Any baseball fan knows that and any honest observer of judicial behavior knows that judges — even those who purport to be applying the law as written and not making law – necessarily bring their own “interpretive gloss” to the enterprise. I think that Professor Stone’s op-ed was just trying to get that point out on the table so we can stop pretending that there are liberal judges who interpret or ignore the law to further their social agendas and conservative judges who do the right thing and simply apply the law to the facts in a neutral manner. Perhaps not a revolutionary concept, but one that if acknowledged would, I think, improve the discourse about judicial nominations.