William Blake in the Wall Street Journal

Judges as Umpires, Umpires as Judges

By Christopher Shea

Anyone following the debate over the constitutionality of the Affordable Care Act will have been freshly reminded of the inadequacy of Chief Justice John Roberts’s comparison of Justices to baseball umpires enforcing clear rules, an analogy he famously made during his confirmation hearings. (Whatever you might say about Commerce Clause jurisprudence, it isn’t characterized by black-letter law, free from the need of human interpretation.) But in a new article in PS: Political Science & Politics, William Blake, a Ph.D. candidate in government at the University of Texas at Austin,* suggests that Chief Justice Roberts  oversimplified not just the law, in his famous analogy, but also baseball. Baseball umpires, too, Blake argues, must sometimes “make law” in the absence of clear guidance.

Like the Constitution, baseball’s rule’s contain contradictions. The problems begin right away: Rule 1.01 states that “Baseball is a game between two teams of nine players each.” So what to make of the designated hitter, a tenth player? Purists who have always claimed the designated hitter is a monstrosity are not unlike devotees of the Constitution in Exile, waiting for clear-minded justices to nullify the New Deal. And they have even clearer textual evidence!

The check-swing rule is a well-known part of the game: If a batter offers at the ball, even if he tries to hold back at the last second, it’s a strike. The usual interpretation involves “breaking the plane of home plate,” but Blake points out that this is a tradition that developed over time, not a literal rule. The definition of a check swing, he observes, “is entirely extratextual.”

Set aside the moving target that is the strike zone. (“I know it when I see it,” the Mets pitcher Ron Darling once said, tellingly echoing Justice Potter Stewart on pornography.) Unusual stadiums, like domes, requires special ground rules (is it a home run if you hit a roof beam?) The managers of the two teams are supposed to agree on these rules, but if they can’t agree the umpire can set them himself.

Quick pitches are illegal if they are made with the “obvious intent to catch a batter off balance.” Guess who has to divine such intent? The infield-fly rule should only be invoked when an infielder can catch the ball with “ordinary effort.” In deciding whether this standard is met, umpires are to consider “the effort that a fielder of average skill at a position in that league or classification of leagues should exhibit on a play, with due consideration given to the condition of the field and weather conditions.” Which is not much more clear-cut than a judge trying to decide whether police conduct “shocks the conscience,” something legal umpires are called upon to do. (Ditto calling a game on account of “unsuitable” weather conditions.)

Finally, there’s a baseball rule that at least some Justices would dearly love to have in their arsenal: “Each umpire has authority to rule on any point not specifically covered in these rules.” When the 1989 World Series resumed, after a delay caused by the Bay Area Earthquake, Blake notes,  the umpires decreed that if a tremor struck while a ball was in play, altering its course, that would be considered the moral equivalent of a bad hop.

That’s a clear case of umpires making up the rules — something the Chief Justice said they never do. However, Blake writes,

This does not mean that umpires are or should be partisan. When umpires have to fill in gaps in the rules, they should do so with an eye on the good of the game, not as a way of supporting one team over another.

*As well as, his author bio notes, “a member of the Central Texas Umpire Association.”

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