The Justice as Commissioner: Benching the Judge-Umpire Analogy

Abstract

Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. 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 rule-making power.

Keywords: Judge, Umpire, Countermajoritianism, Major League Baseball, Due Process