Every game needs an umpire

Maybe it’s because I write this during the All-Star break. Maybe it’s because Major League Baseball and minor league players have entered into a settlement, but I have been thinking about umpires. Every game needs a referee, or else it can’t be played. People complain about referees and yell at the umpires, but players know there’s a limit to how far they can push before they are thrown out of the game.

Referees and umpires often get it wrong, and slow-mo instant replays make those errors clear and emphatic—sometimes, those mistakes are the definitive difference between victory and defeat. But mistaken or not, the umpires’ rulings stand. Even if the victor was chosen erroneously, the rules of the game generally provide that after the final buzzer sounds, there is no recourse. You are kicked out of the game if you argue balls and strikes

I don’t want to trivialize the U.S. Supreme Court by comparing it to a group of baseball umpires, but many of the same considerations apply. I suggest the Supreme Court justices are entitled to at least as much deference as a home-plate umpire.

Just as an umpire is essential to playing a baseball game, the Supreme Court is essential to our form of government. Democracy is a great thing, and Congress and the White House are creatures of democracy. But if the democratic will is to deprive others of their legal or statutory rights, it requires a nondemocratic institution to protect against that. We have nothing that can do that other than the U.S. Supreme Court.

Taking the long view