The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.

This Essay is divided into three parts. The first Part traces the judicial history of the judge-umpire analogy from the late 1880s, finding that the analogy was originally intended for trial judges, and was expressly advanced as a model to be rejected. The second Part proposes a new paradigm for describing the role of Supreme Court Justices: the Justice as Commissioner. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rulemaking power. This Essay concludes that Justices are not Umpires: they are Commissioners.

I. The Judicial History of the Judge-Umpire Analogy

The judge-umpire analogy has a long historical pedigree. From its first judicial invocation over a century ago, the analogy was intended as a judicial model for the lower courts to avoid. Thus, the modern application of the judge-umpire analogy is doubly anachronistic. First, it was meant to apply to trial court judges, not Supreme Court Justices. Second, the judge-umpire analogy was advanced as a model to be rejected.

Courts first invoked the judge-umpire analogy in 1886. In State v. Crittenden, the Louisiana Supreme Court considered whether a trial judge could prevent a witness from answering a leading question, even though the prosecution had not objected. Justice Hicks held that the trial judge had the power to do so since “[a] trial is not a mere lutte between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them.” In 1886 baseball was young; professional umpires had been introduced only seven years earlier. Thus, Judge Hicks used the more familiar wrestling umpire, referring to the sport by its French name, lutte. Nevertheless, Judge Hicks’s intent is clear: the trial judge was not meant to serve “merely as an umpire.”

In 1910, the baseball judge-umpire analogy first appeared in a judicial opinion.In Morrison & Snodgrass Co. v. Hazen, the Ohio Court of Common Pleas considered whether a trial judge could question a witness directly, and held 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.” Just as in Crittenden, the Hazen Court explicitly stated that an active judicial role was necessary for the pursuit of justice, and that the judge had “active duties to perform” to ensure that the “truth is developed.”

The judge-umpire analogy jumped to the federal bench in 1912. Judge Killits, in Young v. Corrigan,declared, “The criticism of the court here made must proceed on . . . the ‘sporting theory’ of a trial, with the judge as a mere umpire to see that the rules of the game are observed.” No sooner did Judge Killits introduce the judge-umpire analogy than he promptly knocked it down, quoting Professor Wigmore’s popular treatise on evidence: “[t]he judge must cease to be merely an umpire at the game of litigation.” Indeed, Wigmore, like the Crittenden and Hazen courts, explicitly intended the judge-umpire analogy to be a straw man rather than a valid judicial paradigm. Moreover, Judge Killits himself declared, “A long line of federal decisions assert the function of the judge to be something more than a mere arbitrator to rule upon objections to evidence and to instruct the jury upon the law . . . .”

Nearly seven decades after its introduction in Hazen, the application of the judge-umpire analogy changed. In 1951, Justice Jackson spoke to the American Bar Association, lauding Judges Learned and Augustus Hand, and declared:

[T]he test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

Justice Jackson’s invocation of the judge-umpire analogy differed in four ways from its historical predecessors. First, Justice Jackson described the work of appellate judges, rather than trial courts. Second, Justice Jackson sought to emphasize the impartiality of judges, rather than the degree of involvement they should have in proceedings. Third, Justice Jackson’s comparison took place in a speech rather than a judicial opinion, where it would have received more scrutiny. Fourth, Justice Jackson invoked the analogy in a positive light, rather than in the derogatory terms in which the analogy had been cast for the proceeding sixty-five years.

Chief Justice Roberts’s invocation of the judge-umpire analogy falls into neither the trial judge framework of Crittenden and its progeny, nor Justice Jackson’s model of judicial independence and equanimity. Chief Justice Roberts stated: “Umpires don’t make the rules; they apply them. . . . They make sure everybody plays by the rules. . . . And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” Chief Justice Roberts intended the judge-umpire analogy as a model of judicial restraint. This application is, at best, unmoored from its historical roots and firmly opposed to its original meaning.

Chief Justice Roberts’s analogy is diametrically opposed to the Crittenden line of cases, which explicitly applied the analogyto trial judges. Trial judges are better characterized as umpires: they make a large number of rapid calls repeatedly throughout their careers on relatively settled issues of law. In contrast, appellate court judges decide a small number of questions after much deliberation. Moreover, the Crittenden line of cases repeatedly declared that even a trial court judge was not a “mere umpire,” who simply called “balls and strikes.” Similarly, Justice Jackson’s analogy addressed the independence and fairness of appellate court judges, not the restraint for Supreme Court Justices which Chief Justice Roberts envisions. As many have noted, Chief Justice Roberts’s job is more complicated than Chief Justice Roberts’s conception of umpiring (and, so too, for that matter is umpiring). In the next Section, I propose a new analog to the role of Supreme Court Justices: the Commissioner of Baseball.

II. The Justice as Commissioner

The judge-umpire analogy frames the job of a Supreme Court Justice in the familiar terms of our national pastime and draws on a longstanding tradition of baseball comparisons in legal literature. However, analogizing Supreme Court Justices to umpires is historically anachronistic and contemporarily inapplicable. Chief Justice Roberts had the right sport, but the wrong position: a Supreme Court Justice is analogous to the Commissioner of Baseball.

Quite aptly, William Howard Taft was passed over for the newly created office of Commissioner in 1920 only to become Chief Justice of the Supreme Court the following year. George Mitchell was less successful: in 1994, he reportedly turned down an appointment to the Supreme Court, but unsuccessfully tried out for Commissioner of Baseball, for which he was at one time considered the front-runner. In the race to become a Justice or Commissioner, the front-runner does not always win. In this Part, I explore further similarities between a Supreme Court Justice and the Commissioner of Baseball using four criteria. Unlike umpires and trial court judges, Justices and Commissioners provide guidance to lower courts, deliberate, take countermajoritarian action, and, most crucially, make and tweak the rules of the game within a broad framework of overall goals.

A. Interpretive Guidance

The Supreme Court hears only a small number of cases. Most of its work consists of providing guidance to lower courts, rather than correcting all judicial errors on a case-by-case basis. Similarly, the Commissioner of Baseball relays instructions to the umpires regarding how to interpret the rules of Major League Baseball, rather than reviewing their every call.

For example, in 1988, Commissioner A. Bartlett Giamatti instructed umpires to interpret the balk rule more stringently. These instructions were promptly implemented and created considerable controversy as an increasing number of balks were called. Giamatti provided guidance to subordinate judicial bodies (umpires) on interpretation, just as the Supreme Court provides guidance to lower courts on a host of issues, ranging from free speech to nondiscrimination. Unlike umpires, Justices and Commissioners are concerned largely with providing interpretive guidance to their subordinates.

Moreover, Giamatti’s justification for his balk ruling was identical to the Court’s reason for granting certiorari in many cases: the need to harmonize conflicting interpretations of the same rule. For Giamatti, the compelling factor for his decision was “[a] demonstrable difference between the [National and American] leagues and their interpretation of the balk rule.” For a Supreme Court Justice, this would have been a circuit split. The American and National League were stand-ins for the Ninth and Fourth Circuits.

B. Deliberation

Both umpires and trial court judges make many split-second decisions in the course of a trial or game. Umpires typically call over two hundred and fifty pitches per game. A trial judge must consider a bevy of objections to evidence and questioning, as well as manage discovery and pretrial requests. One can no more imagine a judge stopping a trial for weeks to consider objections to lines of questioning than one can imagine an umpire waiting weeks to make a strike call. In contrast, both the Commissioner and Supreme Court Justices have the luxury of examining issues over a protracted period of time before rendering a decision, allowing them to consider competing values and issues in a more careful and thorough manner. This thoroughness allows each to give detailed explanations for their decisions, which allows others to use them for interpretive guidance. In contrast, umpires must make quick decisions with little time.

C. Countermajoritarianism

Both the Supreme Court and the Commissioner of Baseball take countermajoritarian action. For the Supreme Court, this means striking down the will of the legislature. For the Commissioner, this involves taking action contrary to the will of the owners. In contrast, umpires and trial judges rarely take countermajoritarian actions; rather, they apply previously articulated rules to factual circumstances.

The countermajoritarian capacity of Justices and Commissioners was exemplified by the process of racial integration. Both the Supreme Court and the Commissioner of Baseball were initially strong supporters of institutionalized racial segregation. Both ultimately reversed their decisions and encouraged integration in the face of significant opposition from majority constituencies. For both, the long journey toward racial integration started inauspiciously, by supporting separate-but-equal provisions. For the Court, this tragic misstep came in 1896, in Plessy v. Ferguson. For baseball, segregation was adamantly supported by Commissioner Landis, who “consistently blocked any attempts to put blacks and whites together on a big league field” during the early twentieth century, and instead relegated black players to their own league.

As the Court began its march toward overturning Plessy in Brown v. Board of Education, baseball began to tear down the walls separating ballplayers by race, and the Commissioner played a critical role in desegregating the league. In 1945, Commissioner A.B. “Happy” Chandler publicly declared his staunch support for integrating baseball: “If they can fight and die on Okinawa, Guadalcanal, in the South Pacific, they can play baseball in America.” Chandler’s declaration provided critical support to the integration of baseball, flying in the face of the owners’ actions and ensuing public declarations. Similarly, the Supreme Court’s cases regarding desegregation were influenced by the successful integration of many American combat forces in the late 1940s and early 1950s. Countermajoritarian action is a feature of both Justices and Commissioners, as both pushed racial integration on often resisting institutions.

D. Rulemaking

Both Supreme Court Justices and Baseball Commissioners exercise rulemaking authority that trial judges and umpires lack. Both have the “province and duty . . . to say what the law is.” For Supreme Court Justices, this power is evident in their interpretations of the Due Process and Equal Protection Clauses. The Commissioner of Baseball’s analogous power flows from Article II, Section 3 of the Major League Constitution, which allows the Commissioner to take action to protect “the best interests of Baseball.” The Best Interests Clause is the primary source of the Commissioner’s power to regulate baseball. For both Justices and Commissioners, this power to “chang[e] the rules” sets them apart from umpires and trial court judges.

This rulemaking power is evident in the long history of baseball and gambling. In 1921, Commissioner (and former Judge) Kenesaw Mountain Landis banned the eight “Black Sox” players for life for gambling on baseball. Landis continued banning players for even the appearance of gambling-related impropriety throughout this term. Over sixty years later, Commissioner Bart Giamatti again invoked the Best Interests Clause to ban Pete Rose for life for gambling. These bans were controversial steps taken to preserve the integrity of the game, with no blackletter rules to provide guidance. Landis and Giamatti were not simply “calling balls and strikes.” Rather, they exercised independent discretion under a broad mandate to preserve fundamental aspects of fairness in the system they were charged with protecting. Such broad discretion to protect the integrity of the game was further exemplified by the simple sign which hung on Commissioner Landis’s door for many years: “BASEBALL.”

The Commissioner’s rulemaking power is also evident in the more technical aspects of the game, such as the strike zone. In 1988, Giamatti “lowered [the strike zone] so that more high strikes would be called.” In so doing, Giamatti belied the seemingly inviolate representation of judicial objectivism exemplified by Chief Justice Roberts: he modified the definition of balls and strikes.

The Commissioner’s rulemaking powers are analogous to the discretion the Supreme Court enjoys, particularly under the Due Process and Equal Protection clauses, which, like “best interests,” are inherently vague. For instance, in Miranda v. Arizona,the Court prescribed the rules for police interrogations of criminal suspects under the Fifth Amendment. In so doing, the Court restricted the strike zone available to the prosecution, by disqualifying evidence that had previously been admissible under the “totality of circumstances” test. Similarly, in Loving v. Virginia, the Court used analysis grounded in the Fifth and Fourteenth Amendments to strike down antimiscegenation laws, exercising broad discretion under Due Process and Equal Protection. The Court’s modern privacy jurisprudence provides another example of the potential for broad discretion that the Court—like the Commissioner—exercises.

Conclusion

The judge-umpire analogy has become an increasingly dominant paradigm to describe the role of the modern Supreme Court Justice. However, this analogy is flawed from both a historical and a contemporary perspective. The appropriate analogy for Supreme Court Justices is the Commissioner of Major League Baseball. Neither Justices nor Commissioners are in the business of “merely calling balls and strikes”; each is charged with the fundamental duty of preserving the integrity of their game. Chief Justice Roberts referenced the appropriate sport, but the wrong position: Justices are not Umpires, they are Commissioners.

Aaron Zelinsky is a member of the YaleLawSchool Class of 2010. Many thanks to the eight other members of my team: Aharon Barak, Alex Blenkinsopp, Aaron Brotman, Jonathan Justl, Michael McCann, Monica Mix, Howard Wasserman, and Edward Zelinsky. All hits are theirs; all errors are my own.

Preferred citation: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 Yale L.J. Online 113 (2010), http://yalelawjournal.org/forum/the-justice-as-commissioner-benching-the-judge-umpire-analogy.