It’s an interesting way to look at judging, expressed in a curious triad.

Three umpires walk into a bar. The World Series is on TV — Red Sox vs. Dodgers. The three umps have a few beers as they watch the game and discuss their philosophies of umpiring.

The first one says, “I know that some are balls and some are strikes, so when I’m behind the plate I call them as I see them.” You might describe him as an empiricist.

The second one then says, “You’re right that some are balls and some are strikes, but I call them as they are.” He’s a realist.

After a pause, they turn to the third one, who takes a deep drink and says: “It’s true that some are balls and some are strikes. But they ain’t nothing until I call ’em!”

So what is the third umpire? Jennifer Finney Boylan gets first stab, since she’s the one telling the joke.

He’s the pragmatist. (Or if you like, a social constructivist.)

Of course, this is just a judge joke, birthed by judicial nomination hearings. Chief Judge John Roberts seized upon the umpire analogy, that he just calls balls and strikes, in order to smooth his path to confirmation by allaying fears of what he might bring to the Court. It was just a good line thrown out for the sake of the unduly fearful.

The justices on the Supreme Court aren’t as simplistic as Boylan, and so they don’t waste their time giving such metaphors any thought at all. But to the extent non-lawyers take such silliness seriously, not realizing that none of these metaphorical umpires are so unaware of the law that their judicial approach has the depth of a low and outside pitch, the punchline offers something worthy of concern.

The third umpire, the one whose answer was “But they ain’t nothing until I call ’em!” is the scary one. That could mean that they appreciate that the law is what the Court says it is, and it’s nothing until they do. It could also mean that if he wants to strike a batter out, the ball in the dirt is a strike if he calls it a strike, because he can.

Now if you’re inexplicably a Red Sox fan, and the batter is a Dodger, then maybe you’re good with the ump calling a strike when the ball is closer to first base than home plate because you really hate the Dodgers, or really love the Red Sox, and you want your team to win. If it means a ball gets called a strike, so what? As long as the good team wins, what difference does it make to you?

Does that make this ump a “pragmatist,” because your only concern is outcome? Or will it concern you, because as much as you love the Red Sox, you want them to win because they, well, deserve to win. Or to put it slightly differently, you want them to win without having to cheat to get there.

It’s not that judges don’t make mistakes. That’s why they build appellate courthouses. And it’s not that judges don’t approach an issue with a philosophical bias, as there are choices to be made when all things are otherwise equal. But these are the bases for good faith disagreements, whether that ball was really in the strike zone, and whether the ump sees the strike zone as larger, or smaller, than you do. You can disagree, but you can at least recognize that he’s applying the rules in good faith, even if you would apply them differently.

But if you’re okay with cheating to get your desired outcome, a purely pragmatic approach that makes a ball a strike because until he calls it, it ain’t nothing, then there isn’t much point to playing the game at all.