Calling Balls and Strikes—or Swinging for the Fences? Rethinking the Supreme Court’s Umpire Metaphor

During his 2005 confirmation hearing, Chief Justice John Roberts famously likened judges to umpires, stating, “It’s my job to call balls and strikes, and not to pitch or bat.”[1] But does this analogy accurately reflect how the U.S. Supreme Court operates? In controversial and closely divided cases like National Federation of Independent Business v. Sebelius, where the Court upheld the Affordable Care Act by a 5-4 vote, it’s hard to escape the conclusion that judicial philosophy—and perhaps institutional concern—played a significant role.[2] In that case, Chief Justice Roberts classified the ACA’s individual mandate as a tax, enabling its survival. Was this merely an impartial call of the legal pitch—or something more strategic?

To be sure, Chief Justice Roberts is a brilliant and principled jurist, and his decision in NFIB v. Sebelius, while arguably well-intentioned, did little to dispel the perception that the Court’s decisions are often influenced by the justices’ political preferences. This perception becomes especially salient in 5-4 decisions, where the justices frequently split along ideological lines. The Court’s voting patterns between 2015 and 2019 suggest that ideology played a prominent role:

Indeed, from 2005 to 2019, an estimated 76% of 5-4 cases were decided along ideological lines.[4] These numbers align with the public’s growing concern that the Court is behaving less like a legal institution and more like a political one. The Court’s recent decisions only reinforce this narrative.

In Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade, holding that the Constitution does not protect the right to terminate a pregnancy.[5] Justice Alito wrote the majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts concurred in the judgment but advocated for a narrower ruling. Liberal justices Breyer, Sotomayor, and Kagan dissented. Similarly, in Obergefell v. Hodges, the Court held by a 5-4 vote that the Constitution protects the right to same-sex marriage. Justice Kennedy authored the opinion, joined by liberal justices, while the conservative justices dissented.[6]

The ideological divide has also been evident in cases concerning presidential authority. In Trump v. United States, the Court held that presidents are immune from criminal prosecution for official acts taken while in office.[7] Chief Justice Roberts wrote the opinion, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Justices Kagan, Sotomayor, and Jackson dissented. Likewise, in Trump v. Hawaii, the Court upheld the Trump Administration’s travel ban, finding it did not violate the Establishment Clause.[8] The 5-4 majority included Roberts, Kennedy, Thomas, Alito, and Gorsuch; the liberal justices dissented.

Scholars have found that the influence of ideology becomes especially pronounced when a justice’s vote is pivotal.[9] Both liberal and conservative justices are susceptible to criticism that they let ideology, rather than principle, guide their decisions. In Janus v. AFSCME, for instance, the conservative majority overruled Abood v. Detroit Board of Education, holding that compelling public-sector employees to pay union fees violated the First Amendment. In her dissent, Justice Kagan accused the majority of overriding precedent simply because it disliked the earlier ruling, calling them “black-robed rulers overriding citizens’ choices.”[10]

This kind of rhetoric underscores a deeper problem: Justices are increasingly seen not as neutral arbiters, but as policymakers. Of course, there are many cases where the Court rules unanimously or with cross-ideological alignment, but in high-profile social and political cases, ideological alignment often predicts the outcome.

How can this be addressed?

One potential solution is to require a six-vote supermajority for the Court to overturn precedent or resolve cases of exceptional national importance. Such a requirement would promote moderation, encourage compromise, and reduce the influence of ideology. It would also likely lead to narrower, more incremental rulings that garner broader support and legitimacy.

A supermajority rule could also enhance democratic legitimacy by preventing a single justice from determining the law of the land on contentious issues. Why should one vote decide whether the Eighth Amendment bars executing child rapists, or whether the Fourteenth Amendment protects abortion rights?

A six-vote supermajority requirement won’t solve all the Court’s challenges, but it could mitigate the most corrosive effects of ideological division and help restore public confidence in the judiciary. In an era when the Court’s legitimacy is increasingly questioned, such a reform might be not only prudent—but essential.

[1] CNN,   Roberts: ‘My job is to call balls and strikes and not to pitch or bat’ (September 12, 2005), available at: CNN.com – Roberts: ‘My job is to call balls and strikes and not to pitch or bat’ – Sep 12, 2005.

[2] 567 U.S. 519 (2012).

[3] See SCOTUSblog, 5-4 Cases, available at: 5-4-cases-7.20.20.pdf.

[4] See id.

[5] 597 U.S. 215 (2022).

[6] 576 U.S. 644 (2015).

[7] 603 U.S. 593 (2024).

[8] 585 U.S. 667 (2018).

[9] See Kellogg Insight, Supreme Court Justices Become Less Impartial and More Ideological When Casting the Swing Vote (Sept. 13, 2018), available at: Supreme Court Justices Become Less Impartial and More Ideological When Casting the Swing Vote.

[10]  See Vox, Elena Kagan’s dissent trashes Supreme Court as “black-robed rulers overriding citizens’ choices” (June 27, 2108), available at: Elena Kagan’s dissent trashes Supreme Court as “black-robed rulers overriding citizens’ choices” | Vox.