If the batter started to swing and stopped, and the pitch is ruled a ball, the catcher can appeal the call to the first-base or third-base umpire. But if he loses there, he knows that the rule of law has prevailed, and the call must stand.*
The scenes I have just described dovetail with American notions of fair play and having one’s day in court. Baseball fans and young players can see in this that it is okay, in American culture, to assert your rights. In this way, Little Leaguers learn to be litigators and plaintiffs. They also learn that, though they will not always win their case, they at least have a right to make it. These events take place in full public view. There is no room for cheating.
By contrast, in golf, for example, it is easy to move a ball, nudge it with your foot, drop it over your shoulder with extra force, or even incorrectly write down your strokes on a scorecard, because in the ultimate act of self-dealing, players or their caddies keep score. If all you care about is beating those you are with and bragging about winning, there are many ways to help your cause. Except in tournaments, there are no umpires or referees. Unlike in golf, even in sandlot and pickup baseball games there are no “mulligans” and “do-overs,” and no one can move a ball when the other players are not looking. Baseball is, in fact, an exceedingly transparent sport, the perfect pastime for a nation whose citizens believe in the rule of law and transparency.
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The second thought experiment captures the role of judicial interpretation in deciding what the law means. Consider three umpires discussing their profession and how they call balls and strikes. One says, “I call ’em as they are.” Another says, “I call ’em as I see ’em.” The third smiles, observing, “They ain’t nothin’ till I call ’em.”
Their approaches illustrate the nature of judicial interpretation and the way competing judicial philosophies can coexist within American law. And as in law, baseball’s rules‚ while carefully written down, are flexible and never wholly certain. Each judge, like each umpire, may have a slightly different approach to his or her craft. The very idea that a pitch may be a ball or a strike depending on the interpretation of the umpire, or that a statute might be constitutional or not depending on the view of the judge, may seem contrary to the concept of “the rule of law.” But in this country, the “rule of law” includes the rulings of judges who interpret and apply often cold language of statutes and codes to the realities of life. Baseball prepares Americans for this legal reality by producing players, fans, and citizens who accept the rule of law promulgated by umpires, who enforce a code of conduct and a book of rules.
In this way, the game trains Americans for a society that is rule-bound and law-oriented, but at the same time modified by the eye of the umpire. This is not dissimilar from how Americans accept the competing readings of the Constitution from judges as different as Chief Justices Earl Warren and Warren Earl Burger, or Associate Justices Ruth Bader Ginsburg and Clarence Thomas. Many of us who grew up playing and watching a game in which law matters, rules count, and legal interpretations are part of the game have learned to accept both the different views of judges and their decisions.