Take Me Out to the Ballgame: Baseball at the Supreme Court of the United States
John Paul Stevens, Stephen Breyer with his granddaughter, and Samuel Alito
Professor Ross Davis of George Mason University once wrote: “Nothing in the law of sports matches the frequency of baseball’s interaction with the institutions of the law or the tendency of lawmakers who speak of sports to talk in baseball terms.” Other court watchers have noted that there are more references to baseball in federal and state court opinions than any other sport. A good example is Bostonian Justice Stephen Breyer’s remark in a January 2010 case involving NFL team logo copyright, “I don’t know a Red Sox fan who would take a Yankees sweatshirt if you gave it to him.”
Who doesn’t recall Chief Justice John Roberts pitching his famous umpire analogy during his confirmation hearings opening remarks?
"Judges are like umpires. Umpires don't make the rules; they apply them... Nobody ever went to a ball game to see the umpire... I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it's my job to call balls and strikes and not to pitch or bat."
When assessing the legal community’s characterization of an ‘activist’ Burger Court, distinguished Supreme Court historian Henry J. Abraham noted, “In brief…the ‘mature’ Burger Court has been categorized widely as ‘more umpire than ideological player….”
Critics of the ‘neutral umpire’ analogy have ridiculed the claim that judges ‘just call balls and strikes’ with the following pub joke: Three umpires are trotted out onto the field of play. The objective umpire says, “I call ‘em as they are.” The subjective umpire says, “I call ‘em as I see ‘em.” And the realist umpire says, “They ain’t nuthin’ until I call ‘em.”
The Roberts Court continues a long-standing tradition of a special institutional relationship with the institution of Major League Baseball. Today’s bench includes four baseball fanatics: Sonia Sotomayor, Elena Kagan, Samuel Alito, and Brett Kavanaugh.
Batting in the leadoff position—Justice Sonia Sotomayor. Born and raised in the Bronx, she once told a reporter “You can’t grow up in the South Bronx without knowing about baseball.”
President Barack Obama evidently wanted to highlight that aspect of her resume when he declared “Judge Sotomayor saved baseball” in his announcement of her nomination to the Supreme Court. His playful hyperbole was in reference to the injunction she issued as a judge on the U.S. District Court for the Southern District of New York ending the Major League Baseball strike in March 1995. Her ruling against the owners provoked a wave of wild appreciation from baseball fans across the nation.
Justice Sotomayor is a HUGE fan of the New York Yankees.
She’s particularly fond of Yankee right fielder, Aaron Judge. Are you familiar with Section 104 of Yankee Stadium? It is located in the right-field area of the ballfield. It contains a small subset of 18 seats (rows 15-17)—like a jury box—reserved for serious fans of Aaron Judge. Known as the “Judge’s Chambers,” fans are handpicked by personnel within the Yankee organization for the honor of enjoying this view of the field. It is a surprise upgrade made free of charge for those deemed sufficiently attired in Judge merch. All those seated in the “Chambers” receive a black judicial robe with the #99 inscribed on the back and a foam “all rise” gavel. Each time #99 comes up to the plate, the entire section of the “Judges Chambers” rise to the occasion. Justice Sotomayor sat in this section on Thursday, August 31, 2017, when the Yankees took on the Boston Red Sox.
Batting second—Justice Elena Kagan. When announcing Kagan’s nomination to the Court on May 10, 2010, Obama humorously noted that she’d bring much-needed diversity to the bench as a New York Mets fan: “This appreciation for diverse views may also come in handy as a die-hard Mets fan serving alongside her new colleague-to-be, Yankees fan Justice Sotomayor — who I believe has ordered a pinstripe robe for the occasion."
No known photographs exist of Justice Kagan in New York Mets garb. There is, however, one picture of the justice swinging a bat in a softball game during her days at the University of Chicago. (But that artifact spun wildly in a peculiar dreidel-like direction into her personal life.)
And then there’s Philadelphia Phillies addict Justice Samuel Alito, the only member of the Court to have participated in a baseball fantasy camp.
In January 1994, while serving as a federal judge on the US Court of Appeals for the Third Circuit (in Philadelphia), Alito attended a weeklong Phillies Phantasy Camp at the Phillies Spring Training facility in Clearwater, Florida. It was a surprise Christmas gift from his wife, Martha-Ann. The 47-year-old judge, nicknamed “Alto Man” by his coaches, did such an excellent job at second base that he received the camp’s “Silver Glove Award” for best overall fielder. Like everyone else who participated in the camp, Alito also received the standard perk of the experience—an official souvenir trading card. Here it is:
Alito would make a return visit to the land of the Philadelphia Phillies when he threw the opening pitch—this time as a justice of the Supreme Court—at a Father’s Day game on June 18, 2006.
…Where he also received a hug from the team mascot, the “Phillie Phanatic.”
This was the second time in 2006 the two had hugged in public. The first occasion was a surprise gift from Justice Stephen Breyer. It is a time-honored tradition for the most junior justice of the Supreme Court to be tasked with a number of duties aligned with its rookie status. One such responsibility is to organize a formal dinner party to officially welcome the Court’s newest arrival. Toward the end of the dinner, Breyer rose before an august assembly of dignitaries to offer a toast to Justice Alito. He reportedly repeated a joke long attributed to President Truman: 'If you want a friend in Washington, get a dog.' Breyer went on to add, 'If a dog isn't available—' when, right on cue, the Phillie Phanatic popped out from behind a closed door and headed straight to Alito to give him a warm hug.
You won’t be the least bit surprised to learn that when the New York Yankees took on the Philadelphia Phillies in the 2010 World Series, justices Sotomayor and Alito made a friendly side-bet on the outcome. It was Cheesesteaks v. Nathan’s Hot Dogs. Alito had to pay up.
I have a personal Alito story to tell. I was in attendance when the Eighth Circuit Court of Appeals held its judicial conference in August 2010 at Target Field, the Minnesota Twins new stadium. At the time, Alito supervised the Eighth Circuit so he was perfectly delighted to attend this conference. I had nearly maneuvered myself into striking position to snag a personal photo with the Justice when, alas, at the last moment, he was whisked away. I was told later that he’d been offered a guided tour of the new facility by one of the suits within the Twins organization. As they made their way down onto the ballfield and into the Twins dugout, they were surprised to find first baseman Justin Morneau standing at the opposite end. Not surprisingly, Morneau had no idea who the man in the company of upper management was. Nor did he show the least bit interest in finding out. Beckoning through furtive hand gestures and disturbed head nods, Morneau was persuaded to move toward the Justice for a handshake and how-you-do.
Batting in the cleanup position is Justice Brett Kavanaugh, a life-long fan of the Washington Nationals. Interestingly, this devotion to the game slid into his 2018 confirmation hearings when those opposed to his nomination raised the issue of a sizable credit card debt he’d racked up attending games, somewhere between $60,000 to $200,000. Kavanaugh admitted to have attended a couple hundred games between 2005-2017, and that he’d attended every single one of the first 11 postseason home games in the team’s history.
New York Yankees general manager Brian Cashman, a former classmate of Kavanaugh’s at Georgetown Preparatory School, signed a letter of full support for his confirmation.
And, yes, Justice Kavanaugh subscribes to the “judge as neutral umpire” metaphor CJ Roberts cited in his confirmation hearings. Indeed, he delivered a speech in 2016 titled “The Judge as Umpire: Ten Principles.” The full transcript of that speech was published in the Catholic University Law Review in its 2016 Spring Issue. Among other things, he emphasized striving for absolute precision, remaining entirely neutral, and strictly applying the rulebook without trying to favor either team or rewrite the rules of the game.
See for yourself: https://scholarship.law.edu/cgi/viewcontent.cgi?article=3383&context=lawreview
Justice Kavanaugh reiterated his position in a subsequent 2017 keynote address published by the Notre Dame Law Review, titled “Two Challenges for the Judge as Umpire.”
But the current romance between the Court and baseball should not surprise us in the least. The sport of baseball has enjoyed a longstanding relationship with the folks inside the Marble Temple.
May I remind you that Justice John Paul Stevens, a devoted Chicago Cubs fan, was, as a 12-year-old boy, in attendance at Wrigley Field for game three of the 1932 World Series between his beloved Cubs and the New York Yankees. Facing a 2-2 count in the third inning, Babe Ruth ‘called his shot’ and blasted a massive home run that landed in the deepest part of the centerfield bleachers. Stevens’ judicial chambers at One First Street could easily be mistaken for a merch shop given all the visible Cubs memorabilia—an autograph of the legendary Ernie Banks, an official scorecard of game three of the 1932 World Series, and a painting of Babe Ruth’s epic gesture from the plate. In an interview with the Chicago Tribune, the retired justice said that the highlight of his lengthy public career was the day he threw the ceremonial first pitch—at age 87—in the 2005 season home opener between the Cubs and the Reds.
Looking a littler further back, in a 1987 interview on National Public Radio, former Supreme Court Justice William Brennan, an Eisenhower appointee, recalled the day he was first introduced to the other members of the Court: “Chief Justice Earl Warren invited me to his chambers, and from there we went up to the third floor of the Supreme Court Building. In a small room, my seven new colleagues were sitting around a table having sandwiches. The room was dark, and he put on the light, and there they all were, watching the opening game of the 1956 World Series. I was introduced by the Chief to each of them, and someone said, ‘Put out the light.’ They put out the light, and they went on watching the game.”
Here's another good one. The Court was hearing oral arguments in United States v. Richardson on October 10, 1973, when Justice Potter Stewart, a rabid Cincinnati Reds fan, passed a note to his brethren with the breaking news that Vice President Spiro Agnew had just resigned. His note also revealed the score of an in-progress National League Championship game between the Reds and the New York Mets—2-0 in favor of the Mets.
All of this PDA goes back to the days of the Taft Court. In Federal Baseball Club v. National League (1922), the justices exempted Major League Baseball from the reach of the Sherman Antitrust Law of 1890. Justice Oliver Wendell Holmes wrote for a unanimous Court granting baseball preferential treatment over other professional sports, an aberration noted by Justice Harry Blackmun in his majority opinion in Flood v. Kuhn (1972), the blockbuster decision involving professional baseball’s ‘reserve clause.’
The question at the center of the case was whether baseball’s ‘reserve clause,’ the binding of a player for life to one team (like a team’s property), violated the Sherman Antitrust Act. St. Louis Cardinal outfielder Curt Flood had been traded to the Philadelphia Phillies but refused to go. He had written a strongly-worded letter to baseball commissioner Bowie Kuhn demanding the right to negotiate his contract himself. Kuhn disagreed. Flood’s case came up to the plate at the Supreme Court in March 1972. His lawyers were essentially asking the justices to overrule its 1922 decision. The Court, voting 5-3, declined to do so, citing the legal doctrine of stare decisis (precedent). The relief Flood sought would have to come from Congress.
Blackman wrote the majority opinion. And what an opinion it was. He opened with a three-paragraph homage to the history of baseball that included a list of 88 of the game’s greatest players. The justices were not pleased when they read the circulated first draft. Justice Potter was embarrassed. One of Justice William Rehnquist’s clerks called Blackman’s chambers and joked that Camilo Pascual, the Minnesota Twins pitcher known for a nasty curveball, should have been included in the list. Even Chief Justice Warren Burger, Blackmun’s childhood Minnesota friend, refused to sign on to the first section of the opinion. The press was surprised that the two justices they dubbed ‘the Minnesota Twins’ weren’t in full agreement. Critics lambasted Blackmun’s ode to baseball as “rambling and syrupy,” and “juvenile.” Blackmun later conceded that colleagues viewed it “beneath the dignity of the Court.” But he had no regrets, telling New York Times reporter Linda Greenhouse, “I think baseball deserved it.”
Three final comments.
One of the nation's most revered jurists is Learned Hand (1872–1961). Widely acclaimed as the greatest judge never to have served on the Supreme Court, Hand’s influential 52-year career as a New York judge, headquartered in Manhattan, demonstrates a notable exception to the theme of this paper. In spring 1959, the 87-year-old jurist and senior Judge on the U.S. Court of Appeals for the Second Circuit, revealed why he probably never made it to the Highest Court in the land. The occasion was the annual dinner meeting of the American Law Institute, held at the Mayflower Hotel in Washington, D.C. Several of the evening’s dignitaries made light remarks about Mickey Mantle of the New York Yankees. When Judge Hand’s time came to speak, he observed, “Mantle? I don’t know what Mickey Mantle is or does. Is it a man or a thing?”
How could that be even possible?
The Oyez Project (Oyez.org) is an online media archive devoted to the Supreme Court of the United States. Co-founded by legal scholar and baseball enthusiast Jerry Goldman, the site includes a quiz game that asks multiple choice questions about Supreme Court justices using a baseball-card metaphor. Goldman wanted to show a resemblance between baseball and the Court—each has a nine-player roster. Here is an example:
Which player’s contribution to baseball best matches Brett M. Kavanaugh’s contribution to the law?
a) Jonathan Papelbon (“Cinco Ocho”)
b) José Conseco (“The Chemist”)
c) Wade Boggs (“Chicken Man'“)
d) Ryan Zimmerman (“Mr. Walk-Off”)
My final pitch.
Did you know that the Greenbag Quarterly Legal Journal issues a vintage style “Supreme Court Sluggers” series of baseball trading cards? Instead of home runs, batting averages, or RBIs, the backs of the cards feature meticulously researched Supreme Court stats. Portraits of justices are painted by artists John Allston Sargent III and Alec Spangler. Here are a few samples:
