Evaluating Judge John Roberts' Analogy of Justices to Umpires

Sports Law Blog readers John M. Powers, Jr., an attorney at the Henderson Law Firm in Phoenix (and also a former minor league baseball player), and recent Dartmouth grad Will Li brought to my attention Judge John Roberts' opening remarks to the Senate Judiciary committee, and specifically his analogy comparing justices to umpires.

Judge Roberts stated:

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.

It is an interesting analogy by the man who will likely become the next Chief Justice of the United States Supreme Court, and who will remain so for perhaps the next 30 or 35 years. And it is from a man who understands sports. Back in July, we discussed how Judge Roberts--the captain of his high school football team--is a sports fan and a sports lawyer (he was the NCAA's lead counsel in NCAA v. Smith, 525 U.S. 459 (1999), from which he secured an impressive 9-0 victory, with the majority opinion authored by Justice Ruth Bader Ginsburg). So we know that his reference to umpiring is based on some appreciation for sports, and not an artificial attempt to sound "normal" during his Senate confirmation hearing (something that, of course, Judge Robert Bork failed to do in his Senate confirmation hearings back in 1987).

But is Judge Roberts' analogy accurate? Let's look more closely at his exact remarks, of which there are three key statements.

Roberts' Statement 1: "Judges are like umpires. Umpires don't make the rules; they apply them."

A rhetorically-appealing comment, no doubt, but not entirely accurate in practice. Granted, a literalist would agree with Judge Roberts: umpires and judges don't "make the rules," they just apply them.

But what happens when, say, one MLB umpire intentionally employs a different strike zone than is enunciated by umpiring rules? Angel Hernandez is one such umpire. He often draws the ire of fans and players for his uniquely-wide strike zone. In using a modified strike zone, is Hernandez merely applying the standard MLB strike-zone according to his own interpretation, or is his interpretation so far off that he is essentially replacing the standard rule with his own rule? If Hernandez' strike zone is indeed "different" from the rules, then isn't he "making the rules" rather than applying them?

Now, one might argue that umpires don't "make rules" such as strike zones because there are two deterrences that should disuade them: 1) the Questec Umpire Information System tracks the quality and accuracy of umpiring, and that data is used by the MLB in ranking umpires; and 2) umpires are evaluated at the end of each season by MLB, and the lousy ones can lose their jobs, or suffer less severe sanctions, such as not being invited to umpire playoff games. For that latter reason, Hernandez presumably can't be as bad as some of his critics allege, or otherwise he wouldn't have been an MLB umpire over the last 12 years. In that respect, his unique strike zone appears more like interpretation than invention.

But that just begs a question for Judge Roberts: if umpires are indeed like Supreme Court Justices, then where is the "Questec system for Justices," and how are bad Justices held accountable? Unfortunately for Judge Roberts and his analogy, there is obviously no "Questec for Justices," and since Justices receive life-time appointments, bad Justices aren't held accountable. Now sure, trial and appellate judges risk their decisions being overturned on appeal, but U.S. Supreme Court Justices don't share that fear: their word is the last one on any given subject. And that, of course, illuminates how Justices and umpires are engaged in disassociated activities: Justices write opinions that are subjectively-evaluated without repercussion, while umpires apply rules that are objectively-evaluated with repercussion.

Evaluation of Statement 1: Thumbs Down
Inaccurate in both concept and practice, and it ignores how deterrence and supervision distinguish Justices from umpires: Justices enjoy almost dictatorial power over the law--and that enjoyment lasts for the remainder of their lives--while umpires must watch out for their jobs if they stray too far from the rule book.

So let's turn to Statement 2.

Roberts' Statement 2: "The role of an umpire and a judge is critical. They make sure everybody plays by the rules."

Judge Roberts, the rules according to who? His generic statement fails in its application: judges and umpires can apply rules in ways that create uncertainty and unfairness. For instance, if umpires exist to ensure that everybody plays by the rules, then how come NFL line judges often refrain from calling offensive holding, even when they see it? And why do NBA officials not call fouls on superstar players with the same frequency that they call them on regular players (i.e.,"the Michael Jordan rule")? And why do NBA officials tend to call more fouls on visiting teams than on home teams? Are umpires really then, as Judge Roberts contends, "making sure everybody plays by the rules" or only some persons, some of the time, and in some places?

Evaluation of Statement 2: Thumbs Down
A wonderful ideal that doesn't exist in reality. Maybe Judge Roberts' comment would play over well in the Field of Dreams or that home court in Hoosiers, but not in Fenway Park or Madison Square Garden. In other words, another bland, even misleading precept shared by Judge Roberts. It may sound reasonable and appealing in sound-byte, but it appears incompatible with how things really work in sports. And as former lead counsel for the NCAA, Judge Roberts is presumably aware of that--which makes one wonder about his motivations for using the Justice-umpire analogy.

Lastly, let's look at Statement 3.

Roberts' Statement 3: "The role of an umpire and a judge is critical . . . But it is a limited role. Nobody ever went to a ball game to see the umpire."

I agree with Judge Roberts that nobody ever went to a ball game to see an umpire. But is that really true with judges, and particularly Supreme Court Justices? I appreciate Judge Roberts' humility and his sense that he and his colleagues on the Supreme Court shouldn't be the center of attention, but there's a reason why people wait in long lines to see the Supreme Court in action, regardless of the case. I remember taking a high school trip to Washington D.C. and waiting in a long line--early in the morning--to watch a mere two minutes of oral arguments at the Supreme Court. We didn't know or care what the arguments were going to be about, and we didn't understand them when they occurred, but we wanted to watch the Justices in action. That's why we were there.

Perhaps more telling, people don't write biography after biography about umpires, who are generally unknown and remain so throughout their careers. In fact, it is often said that the best umpires are those who are never noticed. But that's not true of judges, who are frequently the subject of biographies, law review articles, and media. And that is particularly true of Supreme Court Justices--another indicator that judges--unlike umpires--can often be the main attraction, rather than the mere referee. Along those lines, the potential apex of any attorney's career is to become a United States Supreme Court Justice. That's the high-water mark, and less than .0000000000000000001% of attorneys ever obtain it. Thus, for Judge Roberts to suggest that Justices, like umpires, are just there to "regulate the game" ignores the fact that Justices are the game.

Evaluation of Statement 3: Thumbs Down
Inaccurate, much like Statements 1 and 2. Perhaps it reflects Judge Roberts' humility, but it doesn't reflect reality. I recognize that Judge Roberts wants to convey to his critics that he is not going to radically change existing laws, particularly those impacting controversial social issues. But perhaps he might want to try better sports analogies next time. And one would think that the former lead counsel for the NCAA could do a lot better.

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