Legal Commentary

Nate Oman has a great post at CoOp defending Chief Justice Roberts' judges-as-umpires analogy, which is back on the blogs and op-ed pages with the coming Supreme Court appointment and a recent Times op-ed by Geoff Stone. Nate defends the analogy by arguing that Roberts was not proposing an account of law or judicial decisionmaking, but rather a theory of judicial virtue. A virtuous judge, like a virtuous umpire, fairly applies the law (even if we disagree about what the law is or how it applies), with distance from the outcome in favor of allegiance to the law. This precipitated a great exchange in the comments among Nate, Norman Williams, and TJ; the whole thing is worth a read.

I disagree with Nate on several points. First, I do believe Roberts was attempting to propose a normative account of law, not just of judicial virtue. Second, Roberts' intent is somewhat irrelevant because the bigger problem is that the umpire analogy has been seized on by everyone else (notably Senate Republicans and some conservative advocates) as a vision of law and judicial decisionmaking to which every judicial nominee now must pay fealty. This may not be Roberts' fault (assuming Nate is right that Roberts is being misconstrued), but it does require that we debunk the umpire analogy as it proposes a theory of law. Third, agreeing with a point Norman makes in the comments, the analogy does not work even as a theory of judicial virtue because it is so thin as to do no work. No one believes that a judge should care who wins a case and that a judge's role is to decide whether something is unlawful (a ball) or lawful (a strike); we do not need the umpire analogy to tell us that. Which brings us back to my first point--if the analogy does nothing to illustrate virtue, the context suggests Roberts was making a different, more substantive point.

Finally, this gives me an excuse to publicize a roundtable discussion at Law & Society next month, titled Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. The panel consists of Mark Graber (Maryland), Neil Siegel (Duke), Mitch Berman (Texas), Aaron Zelinksky (about to graduate Yale), journalist Bruce Weber, and myself. For those of you up first thing in the morning on the first day of the program (Thursday), it should be an interesting discussion.