Umpires, Not Activists: The Recent Jurisprudence of the Nebraska Supreme Court

March 19, 2009

Richard F. Duncan

I love the “great and glorious game,” as Commissioner Bart Giamatti once described baseball. Because I am both a baseball fan and a law professor, Chief Justice John Roberts grabbed my attention when he compared the role of a judge to that of an umpire during his confirmation hearings before the Senate Judiciary Committee:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. Th e role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Umpires, Not Activists: The Recent Jurisprudence of the Nebraska Supreme Court