26 Pages Posted: 19 Feb 2015
Date Written: February 18, 2015
In his confirmation hearings, Chief Justice Roberts famously described his vision of the judicial role as analogous to that of an umpire. “Judges are like umpires,” he said. “Umpires don’t make the rules; they apply them.” The Chief Justice was, of course, hardly the first to draw this analogy, and he will certainly not be the last. The comparison is natural, for both roles require their occupant to “make the call,” or, more formally, to serve as the presumptively final adjudicator of the rights of competing parties.
Yet while the “judge as umpire” seems to have naturally captured the imagination of judges, commentators, and laypersons alike, it has also come in for its share of critique, with critics pointing out the various ways in which the comparison is inapt. Perhaps the most frequently mentioned distinction is that judges, unlike umpires, and contrary to the Chief Justice’s suggestion, actually do have to role to play in the creation and refinement of the rules they must apply. Thus, commentators have proposed substitute analogies, including the “justice as commissioner” and “justice as color commentator.”
This essay’s goal is not to add to these critiques, but rather to suggest that there is a better analogy — the somewhat less euphonious notion of the “judge as judge.” The best sporting analogy to judges in law may be to their namesakes in sport — the judges who provide the authoritative scoring in what philosophers of sport call “aesthetic sports,” such as gymnastics and figure skating.
Judges in aesthetic sports, like their counterparts in law, derive a substantial portion of their authority and legitimacy from the expertise they bring to the position. Both play a significant role in shaping the content of the governing standards and draw, to a considerable degree, on their “tacit knowledge” in shaping and applying the rules. At the same time, however, their reliance on this sort of expertise — which necessarily entails the application of criteria unavailable or at least opaque to the lay observer or even the less expert participant — creates an opening for skepticism. Observers will often be unable to determine for themselves whether judges of either sort have accurately assessed the merits, and their efforts to do so will often lead them to assessments that differ from the judges, likely because the lay observer will not have accounted for all the factors that an expert judge considers. Because these observers cannot access all the factors driving the experts’ decisions and, thus, cannot fully understand them, they can easily conclude that those decisions are being driven by improper factors. Of course, judges in aesthetic sports have been accused, and occasionally found to be guilty, of corruption, as well as less pernicious forms of bias. The same is true of judges in law. Indeed, given the enormous cognitive demands associated with judging aesthetic sports, it is unsurprising that some extraneous factors influence officials’ determinations. That, too, can be said about judging in law.
Keywords: judge, umpire, sport, aesthetic sport, tacit knowledge
JEL Classification: K00, K10, K40, K41
Suggested Citation: Suggested Citation
Oldfather, Chad M., Of Umpires, Judges, and Metaphors: Adjudication in Aesthetic Sports and Its Implications for Law (February 18, 2015). Marquette Law School Legal Studies Paper No. 15-08. Available at SSRN: https://ssrn.com/abstract=2566895 or http://dx.doi.org/10.2139/ssrn.2566895