The Umpire Strikes Back: A Conversation with Ronald Cass on Judicial Discretion and the Roberts Court

In his confirmation hearing, Chief Justice John Roberts famously analogized his role to that of an umpire, “to call balls and strikes, and not to pitch or bat.” Dean Ronald Cass argues in a new paper that in three notable decisions of the U.S. Supreme Court—Kisor v. Wilkie, Department of Commerce v. New York, and Department of Homeland Security v. Regents of University of California—Roberts also seems to be concerned by the way the crowd will perceive the call. Cass explains that these decisions depart from prior law on judicial review and create additional discretion for the courts at the expense of the other branches.

The paper was part of a Gray Center roundtable entitled “Judicial Review after Kisor.” In today’s podcast, Dean Cass joins Gray Center Co-Executive Director Adam White to discuss all three decisions and more.

Cass’s paper, “The Umpire Strikes Back: Expanding Judicial Discretion for Review of Administration Actions,” is available at: https://administrativestate.gmu.edu/wp-content/uploads/sites/29/2021/02/Cass-the-Umpire-Strikes-Back.pdf

This episode features Ronald Cass and Adam White.