The Justice as Commissioner: Benching the Judge-Umpire Analogy

Yale Law School third-year student Aaron Zelinsky's terrific article, The Justice as Commissioner: Benching the Judge-Umpire Analogy, has been published by The Yale Law Journal Online. It addresses a topic that has generated great discussion on this blog, including some excellent commentary by Howard.

Here's Aaron's intro:

The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.

This Essay is divided into three parts. The first Part traces the judicial history of the judge-umpire analogy from the late 1880s, finding that the analogy was originally intended for trial judges, and was expressly advanced as a model to be rejected. The second Part proposes a new paradigm for describing the role of Supreme Court Justices: the Justice as Commissioner. 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 rulemaking power. This Essay concludes that Justices are not Umpires: they are Commissioners.

To read the rest of Aaron's article, click here.

Aaron's article seems particularly timely given comments this week by Chief Justice John Roberts, who used the judge-umpire analogy in his 2005 confirmation hearings. Speaking at the University of Alabama School of Law a couple of days ago, Roberts criticized President Obama for his denouncement of the Supreme Court's decision in Citizens United v. Federal Elections Commission during the President's state of the union address in January. As you recall, the President's comments prompted Justice Samuel Alito to shake his head and mouth "not true". It was a very unusual, somewhat awkward exchange between a President and Supreme Court Justice -- both in terms of a President publicly criticizing the Supreme Court before the three branches of the federal government and of a Justice departing from the expected non-political disposition during state of union addresses.

Roberts said:

The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.

So who might the President be in the judge-umpire analogy? The Commissioner of Baseball? There probably isn't an analog in a federal judge-umpire analogy, given federal judges' lifetime appointment, but an elected state judge would seem to be in a different situation. Food for thought.