“Just” Calling Balls and Strikes: Umpires and Judges

"Just" Calling Balls and StrikesUmpires and Judges Mark L. Pelesh (bio) Chief Justice John Roberts famously compared umpires and judges at his Supreme Court confirmation hearing in 2005: Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire . . . It's my job to call balls and strikes and not to pitch or bat.1 Roberts's comparison has drawn both praise and criticism from legal scholars, commentators, and other judges.2 The defenders and critics of the analogy all base their views on an understanding of the function of umpires in baseball. Accepting Roberts's description of umpires' limited role, strict constructionists and originalists celebrate the vitality of the analogy while proponents of judicial activism and a living Constitution deny the analogy altogether. Regardless of where one falls in this debate, there is no denying that baseball–in this case, umpiring–has influenced things so fundamental to American culture as understandings about and positions on the nature of its judicial system. But is Roberts's description of umpires accurate? What do umpires actually do? What is their role and function in baseball? This article will try to answer these questions and thereby shed more light on the umpire-judge relationship. To do so, we will explore the evolution of umpiring over baseball's history and compare it to trends in the judiciary, especially at the federal level and most particularly at the Supreme Court. We will see some intriguing parallels that suggest that the Chief Justice made solid contact resulting in a fair ball. We will also consider the positions of his critics who contend that the analogy was a swing and a miss. Delving more deeply into what umpires do, we will conclude [End Page 97] that Roberts was right, but for the wrong reasons–that he was both safe and out. This will suggest some implications for baseball and the law. evolution of the umpire The role and duties of the umpire in the early amateur years of the game were specified and explained by the great Henry Chadwick. Often called the "father of baseball," he was a sportswriter, statistician, and historian who greatly promoted the development of the game and its rules. In 1867, he wrote The Base Ball Player's Book of Reference, which explained the rules and offered instructions for umpires and scorers and for pitching, batting, and fielding–"the whole forming a standard Authority on all points of the National Game."3 According to Chadwick and the rules he had a strong hand in promulgating, there was to be one umpire for each game, and the captains of the two teams were to select the umpire.4 In addition, the umpire had to be a member of a baseball club governed by the rules.5 Both of these requirements pointed to a fundamental aspect of the game in its early amateur years. Baseball was a gentlemen's game–he and others often referred to those involved in it as "the Fraternity."6 Umpires were gentlemen in that Fraternity, too. Chadwick's explanation of the position of umpire followed from this premise. Umpires had to possess certain qualities: "the strictest impartiality," "familiarity with every point of the game," "considerable moral courage," and "character, coolness of judgment, and quickness of decision." His advice to the captains choosing the umpire was to select "a 'true man,' that is, one who, howsoever he may err in judgment, decides a point according to his honest and unprejudiced opinion." He noted that the position of umpire "must always be an office unpaid for and honorary in its character." The umpire who agreed to serve was the "obliging party, and the players his debtors."7 His view of the gentlemanly nature of the umpire led to his strictures and advice to the players on their behavior toward the umpire. Only the captain was entitled to question the decision of the umpire and then "only in the form of soliciting information in regard to...

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