Network News

X My Profile
View More Activity

Retiring Chief Justice Roberts's umpire analogy

Between some astonishingly awful refereeing at the World Cup and MLB umpire Jim Joyce’s infamous, perfect game-robbing miscall last month, it’s been a rough summer for the world’s arbiters of sport. So as Supreme Court nomineeElena Kagan prepares for her confirmation hearings this week, it’s an appropriate time to revisit -- and retire -- the famous “justice-as-umpire” analogy that Chief Justice John Roberts trotted out at his own confirmation hearings in 2005.

“Judges are like umpires,” Roberts said. “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.”

It has become gospel that an American Supreme Court justice is supposed to check her life experience and her values at the door when she hears a case -- just as an umpire is supposed to apply an objective strike zone to adjudicate pitches, a simple “who came first?” test when making calls on the basepath. But this is patently impossible.

Speaking at Harvard’s commencement in May, Justice David Souter dismantled the fallacy that a justice could perform his duty and still maintain absolute sterility and an unflagging devotion to the “facts” of a case. Souter contrasted Plessy v. Ferguson, the 1896 case that upheld segregation, with Brown v. Board of Education, the 1954 case that found it unconstitutional. “[T]he members of the Court in Plessy remembered the day when human slavery was the law in much of the land,” Souter said. “To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the more revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.”

Souter then asked rhetorically, “Did the judges of 1954 cross some line of legitimacy into law making, stating a conclusion that you will not find written in the Constitution? Was it activism to act based on the current meaning of facts that at a purely objective level were about the same as Plessy’s facts 60 years before?” In other words, how is it that one slate of justices could see nothing wrong with the concept of segregation, while another saw it as antithetical to equality?

In his 1921 “Nature of the Judicial Process” lecture series, Benjamin Cardozo provided a simple answer: “I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.” Essentially, Cardozo says, the march of history and the evolution of human values necessitate that a judge be a product of her time and place. The corollary is that this necessarily entails making periodic adjustments to the strike zone (just as baseball has repeatedly done over the years).

A crucial aspect of the court’s mission is to uphold fairness; that is, its jurisprudence is supposed to work for us, not in spite of us. Yet as Souter demonstrates with his Plessy/Brown example, fairness -- and perceptions of fairness -- is a notion as fluid and ever-changing as society itself. If the Supreme Court is to maintain it, then it is ridiculous to force its members to play with a 1787 -- or even a 2009 -- rulebook.

For her part, Kagan acknowledges this type of reasoning, having written in 1995, “It should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.” Preserving the Supreme Court as a “judicial monastery” practically invites warped decisions that, while juridically sound, are divorced from the reality on the ground. It’s difficult to look past the practical, popular experience Earl Warren garnered as governor of California when looking at his court’s landmark Civil Rights decisions of the 1960s.

No one is suggesting that Kagan play by her own rules if and when she sits on the court. But we must expect her -- and her eight colleagues -- to consider the 300 million Americans who live and work beyond the walls of the court. These Americans, after all, still rely on the court to preserve their notions of what “America” is, and what it could and should be.

By Katrina vanden Heuvel  | June 28, 2010; 5:16 PM ET
Categories:  vanden Heuvel  | Tags:  Katrina vanden Heuvel  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Kagan speaks: open thread
Next: Kagan hearings: what you need to know about the first day


Katrina states at the end that Kagan and each justice should: "...consider the 300 million Americans who live and work beyond the walls of the court. These Americans, after all, still rely on the court to preserve their notions of what “America” is, and what it could and should be."

Katrina, I credit you for transparency. Justices must decide based on the facts of a case, not by a specific vision for "what America could and should be."
Under the Constitution there are times when corporations, churches, and even gun owners have the compelling interest. It is not any justice's responsibility to engineer the America that a minority of folks (uber-liberals) prefer.
It's appropriate for her hearings to attempt uncovering the animating motivations of her approach to the law, precisely because many senators seek to engineer the America they prefer.

Posted by: slatt321 | June 28, 2010 6:32 PM | Report abuse

That title fooled me for a second. I thought Justice Roberts was retiring. Which brings me to the most important point. What is it with these liftime appointments? They should have term limits just like every other crooked and corporate shilling person in DC.

Posted by: Single_Payer | June 28, 2010 6:51 PM | Report abuse

The judge-as-umpire analogy is, and always was, idiotic. Umpires don't make the rules, they don't lay out the field, they don't check the rosters. They did not, for example, have any say in whether Jackie Robinson could play for the Dodgers or whether the Chicago White Sox threw the World Series. It is a necessary predicate to the baseball umpire's job that the playing field has already been made level and that higher authorities, including the owners and the commissioner, set the table.

The Supreme Court is precisely the opposite type of institution. The Constitution is the supreme law of the land and the Supreme Court is its final arbiter. It has about as much resemblance to a baseball umpire as Steve Jobs does to somebody who owns 100 shares of Apple stock.

Posted by: simpleton1 | June 28, 2010 6:54 PM | Report abuse

The umpire analogy is appropriate, but like all analogies, it's not perfect. When George Brett had a homerun taken away from him because pine tar had been rubbed too high up on the bat, the Commissioner of baseball over-ruled the umpire's decision and gave him the homerun. That's more analogous to the job of a Supreme Court Justice. Lower level judges are more like umpires. The Supreme Court is more like a review committee for umpires.

That said, the rules (laws) are written and re-written by the rules committee (legislators) and judges must show deference to them. Supreme Court judges should not be inventing laws because they feel legislators are not doing their job, which is what they did in Roe v Wade. Today's ruling on the 2nd amendment, on the other hand, was not legislating. It was defending the Bill of Rights from encroachments on the people's rights, which is another responsibility the court has that is dissimilar to umpiring.

Posted by: theduke89 | June 28, 2010 7:57 PM | Report abuse

To simpleton1 [how appropriate] -- Just as umpires don't make the rules, judges don't make the laws. A judge is supposed to apply the law. A Supreme Court Justice is suppposed to evaluate whether a law is constitutional --- that is, does the law violate any part of the Constitution as written or interpreted? There are innumerable times when something can be objectionable to many, if not most, but still be constitutional. Objectionable laws can be repealed or re-written. Unfortunately, most Leftist don't like the idea of using democratic process to change things they don't like, which is why you are so much in love with judges who make it up. Today's Supreme Court ruling is a perfect example, where 4 Justices decided that the plain language of the 2nd amendment don't apply --- because they don't like the results of a Consitution that allows all individuals in this country to own a firearm. So because they believe that preventing ownership of a firearm would result in a "good", they just "make it up" and declare that the 2nd amendment right is not a right at all. Classic left wing logic. The old "living Consititution". Despots love "living" consitituions, because that means they can make it up as they go along. That is NOT the way is was supposed to work when our Founders established our consitutional form of government.

Posted by: CREEBOLD | June 28, 2010 11:14 PM | Report abuse


please quote to me the language in the Second Amendment which permits governments to prohibit citizens from bringing loaded guns into courtrooms, hospitals, schools or government buildings. Then explain why the Supreme Court, in an opinion authored by Justice Scalia, asserted that such restrictions are constitutionally permissible.

I'm sure you have no idea why I'm asking that question, but do yourself a favor and think it over for a couple minutes and see if you can figure it out. It shows why your whole screed is nonsensical.

Bonus question: explain how judges in a common law system don't make the laws. Extra credit if you can include the terms "stare decisis," "judicial review" and "res judicata" in your answer.

Posted by: simpleton1 | June 28, 2010 11:46 PM | Report abuse

Wow, I can't believe "leftest" is still a term used in intelligent conversation. Did the prior posters miss the point of the opinion writer? She was merely pointing out that a justice cannot make a decision in some sterile environment;fairness is a result of recognizing the current environment is which we all exist together. "A crucial aspect of the court’s mission is to uphold fairness; that is, its jurisprudence is supposed to work for us, not in spite of us. Yet as Souter demonstrates with his Plessy/Brown example, fairness -- and perceptions of fairness -- is a notion as fluid and ever-changing as society itself. If the Supreme Court is to maintain it, then it is ridiculous to force its members to play with a 1787 -- or even a 2009 -- rulebook." I guess there were many in 1954 that did not agree with the "leftest" decision to outlaw segregation...maybe there are some that still see that decision as "leftest" and "uber-liberal". Thank goodness the justices in 1954 had the courage to "call 'em as they saw 'em".

Posted by: RichardGrochan | June 28, 2010 11:58 PM | Report abuse

Oh, and btw CREEBOLD, appealing to the Supreme Court is a part of the democratic process, as is the whole U.S. court system. Please let me know if I have erred in some way.

Posted by: RichardGrochan | June 29, 2010 12:06 AM | Report abuse

Pure, "progressive" poppycock!

A judge decides who has broken a law and what reward is to be made. That's it! That's why a judge must be impartial. He should not weep because one person is not as well off as the other. A judge that wrings his hands and frets about what the politically correct thing to do is is unfit for duty.

If a judges crafted their own laws, there would be no need of Congress.

The judges would be a committee of kings and dictators.

That is exactly what the far leftists want because they hate and distrust all those common citizens out there. They want to be like Canada where most laws are made by judicuial fiat and nobody seems to care.

Turn this around and think what would happen if a group of hard-core, right-wing activists got a stranglehold on the courts.

"Progressives would be screeching like a herd of scalded cats. They would be demanding that the courts be stymied in every way possible.

Hypocrisy is the hallmark of American "progressivism". Liberals wear it like crowns.

Posted by: battleground51 | June 29, 2010 7:05 AM | Report abuse

Vanden Heuvel says it's "ridiculous" for courts to follow a "rulebook".

Oh, I dunno. I rather fancy the rule of law. I don't find it at all ridiculous.

What I do find ridiculous is vanden Heuvel's assertion that rules somehow are contrary to "fairness". That is preposterously backwards: rules, impartiality, even-handedness — umpiring — make fairness more likely. Substituting individual subjective feelings for the rule of law is inherently unfair.

Posted by: thebump | June 29, 2010 7:31 AM | Report abuse

FDR went through the same kind of thing. The majority conservative SCJ that he dealt with, shot down much of the New Deal agenda, including minimum wage, labor conditions,and tried to stop Social Security. They felt that the federal government had no place in the general welfare of the people. They thought that labor problems like strikes, and protests were local and the state's problem, that strikes didn't affect interstate commerce. In other words, it wasn't the gov's problem that millions were starving, destitute, famrs failing. But the court also held up laws that benifitted corporations. sound familiar? It wasn't until 1937 when FDR proposed to "stack the court" that a couple of justices got consciences and overturned denying minimum wage standards, and got behind social justice programs. At this time FDR had alot of trouble with the Dixiecrats, who like the bluedogs of today, gave their president nothing but grief. But ya gotta love that about Democrats, they will fight with each other, at least they aren't lockstepped in to the Party creed, they vote for their constituents, not their party. FDR called these justices " the horse and buggy ' brigade. They were so locked into the strict interpetation of the Constitution, with no allowance for times and circumstances changing. Sound familiar?

Posted by: katem1 | June 29, 2010 7:42 AM | Report abuse

In the same generation as the signing of the Declaration and the construction of the Constitution, the founding fathers debated on the power of the federal government vs power of the states. Some founders divided into camps and we've stayed that way since that time. If they debated over what the Constitution meant when they are the ones who wrote it, then we are not going to do any better. They avoided answering the question of who had more power and left it vague. The recent gun decision preserves the overall right of people to own guns but allows the states to issue some controls to preserve safety as they see it (no guns in schools, etc). This does not prevent people from exercising their second amendment rights. The second amendment, just like free speech, is not an absolute. You cannot scream fire in a theater or threaten the president verbally. You cannot carry a gun in a school.

Posted by: dcgal2010 | June 29, 2010 9:21 AM | Report abuse

It's a beautiful attempt to make sure social justice is served, but the inconvenient truth is that the consititution intended seperation of powers for a reason. All of your points, and Souter's as well, are completely valid...OUTSIDE the context of the court. You don't just spark a little fire against "by the people and for the people" when you legistlate from the bench (and the heart), your pour gasoline on it. When an injustice appears before the court, it's still their job to rule on the law, not write it. In a perfect world, which does not exist, lawmakers go back and correct the injustice, not judges. In the absense of perfection, we cannot decide that a given issue rises to the level that a judge should go ahead and step in just this one time and correct the injustice that is now apparent, based on change in times or whatever reason. This gives enormous power to an unelected, permanently appointed, extremely small group of people to make far reaching decisions that can change the course of America. The unpleasant consequences of "getting it socially wrong" on occassion and waiting for lawmakers to fix it completely outweighs the alternative. By not allowing judges to be the branch to make it right, the integrity of the constituion and the process of law in our great country is preserved. No one would argue the Plessy/Brown conclusion. Many would argue who's role it was to fix it.

Posted by: stevegwinn | June 29, 2010 10:21 AM | Report abuse

The comments to this entry are closed.

RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company