Journal Article

THE UMPIRE STRIKES BACK

Cass, Ronald A.

2021

Overview

Judges’ work often is analogized to that of umpires, enforcing the rules of the game neutrally and impartially—most famously by John Roberts in his confirmation hearing to become Chief Justice of the United States. Just as often, commentators disparage the analogy as inapt, because it fails to capture the influence of factors apart from law-as-written on judicial decisions. Justice Oliver Wendell Holmes’s much earlier aphorism about great cases and hard cases draws attention to what might be termed the backside of the judge as umpire metaphor, singling out considerations often associated with divergence from predictable decisionmaking based on principles inherent in previously adopted rules. Three notable recent decisions of the U.S. Supreme Court respecting judicial review of administrative actions—Kisor v. Wilkie, Department of Commerce v. New York, and Department of Homeland Security v. Regents of University of California—provide examples of the gap between aspiration and actuality for the judge as umpire metaphor. And in all three, the deciding vote was cast by Chief Justice Roberts. This Article explores the decisions of the Court in Kisor, Department of Commerce, and Homeland Security, and ways in which those decisions depart from prior law on judicial review and create additional discretion for the courts at the expense of other branches of government. The Article also explores reasons for the attraction of the judge as umpire metaphor and flaws in arguments against it—even though the legal system still leaves room for the umpire to strike back.

• Publisher: American Bar Association
• Subject: Administrative law / Analysis / Baseball umpires / Evaluation / Judges & magistrates / Judicial discretion / Judicial process / Judicial review of administrative acts / Judicial reviews / Laws, regulations and rules / Litigation / Management / Separation of powers / Supreme Court decisions