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Elena Kagan: Bench the Judge-Umpire Analogy

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The unofficial start of summer means that it's time for two of America's favorite pastimes: baseball games and Supreme Court confirmations. Chief Justice Roberts combined the two when he declared during his confirmation hearing that "Judges are like umpires... Umpires don't make the rules; they apply them."

While Roberts was hardly the first to invoke the judge-umpire analogy, his use of the analogy was an instant hit, and it has reappeared in every subsequent confirmation hearing. Elena Kagan, who played softball while in Chicago, will undoubtedly be asked for her view on the relationship between judging and our national pastime when she steps up to the plate before the Senate Judiciary Committee.

Kagan's confirmation hearing presents an opportunity to set the record straight: The judge-umpire analogy should be benched immediately. Chief Justice Roberts had the right sport, but the wrong position: a Supreme Court Justice is analogous to the Commissioner of Baseball.

There are three strikes against the judge-umpire analogy. First, as an historical matter, the analogy was narrowly tailored to trial court judges. Second, the analogy was originally intended as a straw man, advanced only to be rejected. Third, the analogy does not accurately describe the job of a Supreme Court Justice. Justices are not umpires; they are Commissioners.

The judge-umpire analogy is over a century old. It was first judicially invoked in 1888, by the Louisiana Supreme Court. Judge Hicks of that court wrote that "[a] trial is not a mere [game] between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them." From its inception, the analogy made clear that a judge was not a "mere" umpire.

In 1910, the Ohio Court of common pleas declared that "[a] judge presiding at the trial of a jury case is not a mere umpire of a game of ball, to call balls and strikes." Since then, courts have regularly invoked the analogy as a model for trial judges to avoid, not for Supreme Court Justices to emulate.

More importantly, Supreme Court Justices and baseball umpires have fundamentally different tasks: Supreme Court Justices interpret the Constitution and the laws passed by Congress. Umpires (at least in Chief Justice Roberts' mind) decide only whether a pitch is in or out of the strike zone. In Roberts' analogy, there is a clear and correct call for every pitch and, by extension, every case. Would that judging in the nation's highest court were so easy.

Chief Justice Roberts' had the right sport but the wrong position: Supreme Court Justices are more like Major League Baseball Commissioners. Both Justices and Commissioners share four critical characteristics:

First, Justices and Commissioners provide interpretive guidance to their subordinates. Supreme Court Justices give guidance to the lower courts. The Commissioner instructs the umpires how to enforce the rules of the game.

Second, both Supreme Court Justices and Commissioners deliberate for extended periods of time, and both consult outside opinions before making their final decisions. The Supreme Court does so via amicus briefs. Commissioners consult with special experts from outside the MLB structure, ranging from scientists to Senators.

Third, both Justices and Commissioners have the power to fills gaps in the law via interpretation. For the Supreme Court, this is the power to "say what the law is." For the Commissioner, this is the power to instruct the league and umpires, such as deciding whether to implement instant replay.

Fourth, Justices and Commissioners both have relatively broad discretion to protect the fundamental values of the system they safeguard. For Supreme Court Justices, such powers are found in places such as the Due Process Clauses. For Commissioners, such power emanates from the Major League Constitution's delegation to them of the power to act in the "best interests of baseball."

If history is any guide, Elena Kagan will do her best to duck the Senators' questions rather than swing at them. She shouldn't. Kagan, a former ballplayer, should bench the judge-umpire analogy and call in the Justice-Commissioner.

To read or listen to the Yale Law Journal Online Essay on which this piece is based, click here. For the recent Law and Society Panel discussing the Judge-Umpire analogy, click here.