Much has been said already about John Roberts’ decision to invoke the role of the baseball umpire in his opening statement, saying that "umpires don?t make the rules, they apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules." Much too has been said about Senator Cornyn’s elaboration of the umpire analogy (based on this Volokh Conspiracy blog post, undoubtedly the first time a blog post was discussed in a Supreme Court confirmation hearing) in subsequent questioning. At that point, Roberts said: "they are balls and strikes regardless, and if I call them one and they’re the other, that doesn’t change what they are, it just means that I got it wrong."
But the truth about baseball – as any baseball fan knows, and as we shall assume John Roberts knows as well – is revealing. The umps make the calls. On occasion, they "blow the calls," meaning that it is obvious from watching a slow-motion replay that the runner was actually out (according to the baseball rulebook) although called safe, or that a pitch was actually a strike (according to the rulebook) although called a ball, or whatever. But of course, the fact that an ump blew a call makes no difference – the ump’s call, "wrong" or not, is final (rule 9.02) and determines the course of the game. Of course, umps try to make the "right" calls, according to the rules. But on those occasions when the ump’s call and the rulebook demonstrably conflict (as shown by instant replay), the ump’s call wins.
So I would respectfully disagree with Roberts when he says that "they are balls and strikes regardless, and if I call them one and they’re the other, that doesn’t change what they are, it just means that I got it wrong." A pitch that, according to the rule book, should have been called a strike, but was in fact called a ball, was undoubtedly a pitch that crossed home plate between the letters on the batter’s uniform and his knees. But it was not a "strike." If it had been a "strike," it would have counted toward the three strikes needed for an out. But it didn’t, because the ump called it a ball, and the ump’s call was final. Indeed, the rulebook’s definition of "strike" recognizes this reality: strikes are only strikes "when so called by the umpire."
The same reasoning applies to law. If a law is "obviously" constitutional, but the Supreme Court says it isn’t, the law may be a law that complies with the Constitution’s procedural and substantive requirements. But it is not constitutional, because the Supreme Court said it wasn’t.
So what, exactly, was Roberts telling us when he likened the role of a judge to that of an umpire? Presumably, what he thought he was saying was something like this: there are rules, such as statutes and constitutional provisions, that determine how cases should be resolved, and the judge’s job is to apply those rules to the cases, just like an umpire applies baseball’s rules to a particular situation.
