During today’s convention, Judge Paul Matey of the Third Circuit did a SOC! Sidebar on Baseball cards. Judge Matey has some insights on how baseball cards interacts with the law, but he made a point about calling balls and strike that I had never heard before.

By now, everyone knows Chief Justice Roberts’s famous line that umpire simply call balls and strikes. But Judge Matey made a different point. Before a pitcher throws his first official pitch, he will throw several warmup pitches. Though these pitches do not count, the umpire will signal whether the pitch is a ball or a strike. These warmup pitches allow the pitcher to understand what the judge’s strike zone will be. From game to game, an umpire might change his strike zone. But the hope is that an umpire will use the same strike zone in that particular game, or at least for that particular pitcher. That way pitchers, catchers, and batters know the rules of the game.

I think Matey had illustrated yet another reason why Roberts’s analogy doesn’t work. Lawyers do not get to throw throw warmup pitches in practice cases. They have only one shot to make their case. It is possible to guess on a strike zone based on past calls, but that practice is imprecise.

What about the Chief Justice? Roberts does not apply consistent strike zones–even in the same case. Do I need to mention NFIB v. Sebelius again? (I was surprised no one brought up the regulatory power of taxes yesterday during the tariff case.)

I am grateful to Judge Matey for this insight.