Models of Judicial Interpretation: From Marshall to Kavanaugh and how the Umpire Model Changed the Game

Authors

Beau Sullivan

Abstract

The three predominant modes of judicial interpretation are living constitutionalism, originalism, and the umpire model. The living constitutionalist believes the Constitution is a living document that must change and adapt over time. The living constitutionalist considers the history, text, precedent, and policy when deciding a case. This is in contrast to the originalist, who considers the history and text of the document when deciding a case. The originalist favors judicial restraint and seeks to limit the role of the judge. The devotee of the umpire model champions the independent judge whose function is to the law and does not consider policy. The umpire has a strike zone in which the judge uses to “call balls and strikes.” Umpire judges do not create their own strike zones but may find it necessary to expand or contract the strike zone when faced with a difficult case. The umpire model blends the best and most advantageous aspects of the other models, making it the most attractive judicial model.

Recommended Citation

Sullivan, Beau (2025) "Models of Judicial Interpretation: From Marshall to Kavanaugh and how the Umpire Model Changed the Game," Ohio Northern University Law Review: Vol. 51: Iss. 1, Article 3.
Available at: https://digitalcommons.onu.edu/onu_law_review/vol51/iss1/3