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.

I. Introduction: The Need for “Political” Analysis

My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticated political scientist. That being said, I have studied and written about the Supreme Court, and I believe that I do have something to contribute to the discussion—I believe that the discussions tended to ignore a particular eight-hundred-pound elephant, which can basically be described as “politics.” There is, I believe, no “neutral” vantage point from which to assess the Court’s decisions as to how many cases it takes and, of course, which particular cases it chooses to hear. Instead, perspectives will inevitably reflect a series of political viewpoints. I should note that “political” in this context is not necessarily synonymous with Democrat or Republican (though on occasion it might be); rather, it refers to the answers one gives to some rather basic questions about how our political institutions should be organized.