Just how far will the Justice as baseball umpire take you?

When current Chief Justice Roberts was being questioned by Senators in his confirmation hearings a few years back, he famously likened himself to a baseball umpire, “call[ing] balls and strikes” not “pitch[ing] or bat[ting].”

At some point this week, Elena Kagan is going to be asked if she is an umpire, just there to ensure a fair game; or, will she become a player, inserting herself into the game.

The automaton umpire doesn’t exist in reality and its analogue as a Supreme Court justice doesn’t exist in real life, something Roberts, Kagan and their inquisitors in the Senate know full well.

Don’t believe me? Here’s the rule:

Rule 2.00 - The Strike Zone
The Strike Zone is defined as that area over homeplate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.

Now go watch a game. Umpires have their individual “interpretations” of the rule even though it is quite precise. Throw a ball at the “letters” and you have only a small chance of getting a called strike. Most umpires use the player’s belt as the upper limit of a strike. The rule of course says otherwise, but there you are.

So Dave, just what does this have to do with Judges? I’ll tell you. Law is made at the margins. To go back to baseball, judges, especially at the appellate level, are called on to decide just where the upper, lower, left and right limits under the rule/statute/Constitution are. Judges spend little time considering pitches that are right down the middle. Think about it, if a legal issue is obvious, it usually isn’t the subject of an appeal.

Though Roberts said he would just apply the rules – regulations, statutes and the Constitution – he brings his personal baggage, good and bad, to the process. So does every other justice. So will Kagan, if she is confirmed. Both Roberts and Kagan can explain, quite elegantly, why the letter high pitch isn’t a strike. Law at the Constitutional level is mostly normative. The best we can hope for, just like batters in the box, is that they are consistent in their calls.