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Kavanaugh’s Latest Baseball Analogy Was Too Clumsy for a Supreme Court Concurrence


Supreme Court Nominee

Brett Kavanaugh really needs to drop the sports analogies. It seems like every time he tries to get all folksy with his references, he ends up blatantly misstating how the legal system works.

SCOTUS ruled Wednesday in a case with major implications for the world of administrative law. The legal issue at hand in the case (Kisor v. Wilkie) was whether it’s time to overrule a line of cases implementing what’s known as “Auer deference.” The concept of Auer deference is that when we’re talking about federal administrative regulations (rules adopted by EPA, the FDA, the IRS, or any other alphabet-soup government agency), the agencies themselves should be the ones to dictate what the language of the regulation actually means. The logic goes that when we’re talking highly-technical terminology, it makes a lot more sense for the folks inside those agencies to clarify things than it does for judges to attempt the task. Many conservatives are highly suspicious of this deference to administrative agencies in that it allows an executive agency to perform a kind of legislative function.

In Wednesday’s decision, the Court declined to overrule past precedent, which meant that Vietnam veteran James Kisor will now continue his battle for benefits with the Department of Veterans Affairs back in the lower court. The outcome in the case wasn’t a huge surprise for even the small percentage of Americans who pay attention to administrative law. Justice Elena Kagan penned the majority opinion. Justice Neil Gorsuch – a vocal and passionate opponent of excessive deference to administrative agencies with an interesting history on the topic – concurred, as did Justices Kavanaugh and Samuel Alito.

Kavanaugh’s take on the issue – that the court should have formally rejected Auer deference instead of simply limiting it as the majority opted to do – wasn’t all that remarkable. But the analogy used in his short concurrence made me really uncomfortable. Kavanaugh wrote:

Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here.

I get what Kavanaugh meant. Like judges, umpires face the task of making game-time calls based on what they see unfold before them. Should some kind of ambiguity on the rules arise, an umpire would never ask the home-team manager how he thinks the question should be resolved. Likewise, thinks Kavanaugh, courts should be the sole interpreters of regulations, and they should not defer to an administrative agency (which would likely interpret said regulations to give them a home-field advantage in the relevant dispute). That makes sense, and is the classic judicial-versus-executive argument that underlies controversies over Auer deference.

The problem, though, is that Kavanaugh’s analogy is clumsy. Too clumsy, in fact, for a Supreme Court concurrence.

First, judges are not umpires. Kavanaugh was called out for making that mangled analogy in September 2018, by Erwin Chemerinsky, one of the foremost American scholars on Constitutional law. Chemerinsky wrote an op-ed titled, “Brett Kavanaugh likened Supreme Court justices to ‘umpires.’ That’s nonsense and he knows it,” in which he explained the problem with the umpire comparison:

But justices are not umpires at all. Umpires apply rules and have little leeway in determining how those rules should be interpreted. The Supreme Court creates the rules and justices have enormous discretion how to interpret the law. By likening himself to an umpire, Kavanaugh was contending that his views don’t matter at all. That is false.

Second, ground rules don’t contain ambiguous industry-specific words that an umpire might not understand on his own. For example, decades ago, the folks at Wrigley decided that if a fair ball lodges in the ivy-covered walls, it’s a “ground-rule double.” That rule is specific to Wrigley, and is independent from (but consistent with) other general ground rules reported and maintained by Major League Baseball. In a particular game, a dispute might arise over whether a ball was actually stuck in the ivy or not, but it would be unfathomable that an umpire would need guidance on what the rule means. An argument over whether a situation is subject to the ground-rule double would be a factual determination, not an interpretive one, and therefore, differs from the central dispute over Auer deference.

Third, Kavanaugh’s analogy equates the Cubs manager with various administrative agencies: the umpire wouldn’t defer to the manager as a judge shouldn’t defer to an agency. The problem with this part of Kavanaugh’s analogy is that a team manager is not to a ground rule what an administrative agency is to an administrative regulation. Administrative regulations are the result of a lengthy legislative process involving research, open discussion, and hearings. The EPA writes the EPA regs. The FDA writes the FDA regs. The Cubs manager didn’t write Wrigley’s ground rules.

Finally, Kavanaugh’s analogy fails even if we overlook its lack of parallelism with the Auer debate. On the off chance that a need could somehow arise for an umpire to clarify an ambiguity in a ground rule, baseball fans would absolutely expect that umpire to look to some inside authority with specific knowledge to settle it. A lone umpire would never be given discretion to interpret a field-specific rule for all time to come. Kavanaugh’s analogy works better to explain why courts should employ Auer deference than why they should not.

I think most of us would agree that baseball is far more entertaining than administrative law, but until Kavanaugh can draw an appropriate analogy, I really wish he’d stop with the sports talk.

[Image via SAUL LOEB/AFP/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos