On the Limits of Analogies Between Baseball and the Law

I love baseball. And I love law. And I like judges and lawyers who share those twin passions. But the repetitive analogies between umpiring and judging are getting old and inaccurate very quickly.

The latest comes from Justice Samuel Alito (UNRELATED ASIDE: When Alito was a judge on the United States Court of Appeals for the Third Circuit and I was a law clerk for a judge on that court, Alito swore my co-clerks and me onto the bar). Anyway, Justice Alito was in St. Petersburg, recently to throw out the first pitch at a Devil Rays-Phillies game (Alito is a life-long Phillies fan, but donned a D-Rays jersey). Rick Garnett has the photo and story here. And I agree, Rick: Alito has pretty good form.

But the story describes Alito giving a talk at a dinner while he was there and saying the following:

One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"

These analogies do not work and they must stop.

First, whether a legal rule should or will "live" depends to some extent on the nature of that rule. There is not much interpretative life in:

"The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap."


There is inevitably and necessarily more life (with the attendant evolution and change) to interpreting and applying broad, amorphous principles or ideas such as "the freedom of speech" or "cruel and unusual punishment."

Second, we do have a living strike zone. If you don't believe me, watch a baseball game from the 1970s or 1980s on ESPN Classic. Pitches at the letters were routinely called strikes, as were pitches slightly below the knees (what was then called a "National League Strike"). Neither one is ever called a strike now. True, the strike zone was lowered slightly in 1988. But rarely is any pitch above the belt called a strike nowadays.

Third, the fact that there were differences between National and American League strike zones tells us that some "life" was present. Back in the 70s and 80s, AL umpires used large exterior balloon chest protectors, which required them to stand more upright--allowing them to see the high pitch more easily than the low pitch. NL umpires wore chest protectors under their shirts, allowing them to crouch lower and thus better see the low strike.

Fourth, even with uniform equipment, no two strike zones are exactly the same simply because no two umpires are exactly the same. There will be slight variations in each umpire's crouch or the angle of her head or her position behind the plate. Such differences produce variations in how each umpire sees a given pitch and thus how each umpire calls a given pitch--what each strike zone looks like.

The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination. Of course, neither is judging the meaning of the First Amendment.

So, on second thought, perhaps the analogy between judging and umpiring works. Just in the precise opposite direction from what Justice Alito was trying to suggest.

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