Albany Government Law Review

During his Senate confirmation hearings, now Chief Justice John G. Roberts initiated his testimony by noting: “Judges are like umpires.” According to conservative commentator George F. Will, the author of the excellent book on baseball, Men at Work: The Craft of Baseball, the laws of baseball are shaped by umpires. Chief Justice Roberts used a comparison enabling the reference to be appreciated by many (those in black—the Justices—and those in blue—the umpires). Because baseball is the “National Pastime,” the comparison is useful to examine the implications. Will provides a classic illustration of the finality of the umpire’s ruling—describing a confrontation between a player and an umpire: Once when Babe Pinelli called Babe Ruth out on strikes, Ruth made a populist argument. Ruth reasoned fallaciously (as populists do) from raw numbers to moral weight: “There’s 40,000 people here who know that last one was a ball, tomato head.” Pinelli replied with the measured stateliness of John Marshall: “Maybe so, but mine is the only opinion that counts.”