Since 1917, the first Monday in October has marked the return of the Supreme Court to Capitol Hill, their black robes, and the weighty business of dispensing justice, but the historical importance accorded the month has hardly been on their account. October’s superiority was established more than a decade before, in 1903—the year the denizens of the earth (presumably) waited with baited breath for the outcome of a best-of-nine series of sporting contests, engaged in by a newly formed American League and the survivalist National League, and dubbed the World Series.
As much as October has not earned status by Supreme Court doings, Major League Baseball as it exists today, both the organization and the game, shows numerous influences of the Court’s activity. And vice-versa: When seven-times Gold Glove winner Curt Flood brought his free agency suit against Baseball Commissioner Bowie Kuhn to the Supreme Court in 1972, challenging the decades-old reserve clause as a violation of and unlawful exemption to the Sherman Antitrust Act, Supreme Court Justice Harry Blackmun, reportedly fearful of fundamentally altering the game, penned a decision that read more like a love letter to America’s pastime.
Baseball: Purely a State Affair
Flood lost the 5-3 ruling, but the case paved the way for the National Labor Relations Board to claim jurisdiction over baseball, and hence for the 1975 Seitz decision that began the era of free agency (with all its pros and cons…to some, many more cons). The outcome prompted “Lords of the Realm: The Real History of Baseball” author John Helyar to speculate a “time-honored tradition of judges losing their judicial bearing under the influence of baseball.”
New York District Court Judge Irving Ben Cooper, who initially presided over Curt Flood’s $3 million suit, bears physical witness to Helyar’s observation: in place of recesses, Cooper reportedly amused the courtroom by calling seventh stretches. But on a more serious note, Halyar’s observation extends to earlier cases, such as the 1922 Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, in which Justice Oliver Wendell Holmes Jr. delivered the unanimous majority opinion. It concluded Major League Baseball was exempt from the provisions of the Sherman Antitrust Act because baseball was not interstate trade. Instead, its business “is giving exhibitions of base ball, which are purely state affairs.” There was also the 1952 Toolson v. New York Yankees case, in which SCOTUS upheld baseball’s exemption. Working on the case was Bowie Kuhn…who became baseball commissioner in 1969, and was the Kuhn named in Flood’s suit 20 years later.
Flood returned to baseball for a short 1971 season—with the Washington Senators. Justice Blackmun’s pages-long introduction to the Flood v. Kunn decision, dubbed the “ode to baseball,” earned him reams of criticism, but until his death his only regret authoring it was that his list of 83-plus baseball greats somehow missed mentioning Mel Ott.
Justice Blackmun’s Ode to Baseball
The 2015 World Series is squarely in view, and with the Washington Nationals making their first race for the October pennant, it seems an entirely appropriate time to kindle the flame of baseball fandom, and to take a look at one of the most unusual judicial writs in American history (the footnotes, quoting as they do Bernard Shaw, Ernest Thayer on “Casey at the Bat,” and other snippets of baseball poetry, also invite perusal):
It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken’s Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire. The teams were amateur, but the contest marked a significant date in baseball’s beginnings. That early game led ultimately to the development of professional baseball and its tightly organized structure.
The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick’s Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born.
The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago’s supremacy in the first year’s competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880′s; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve ‘clause’; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or ‘junior circuit,’ in 1901, rising from the minor Western Association; the first World Series in 1903, disruption in 1904, and the Series’ resumption in 1905; the short-lived Federal League on the majors’ scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966.
Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick . . . . The list seems endless.
And one recalls the appropriate reference to the ‘World Serious,’ attributed to Ring Lardner, Sr.; Ernest L. Thayer’s ‘Casey at the Bat’; the ring of ‘Tinker to Evers to Chance’; and all the other happenings, habits, and superstitions about and around baseball that made it the ‘national pastime’ or, depending upon the point of view, ‘the great American tragedy.’
It’s said that Justice Byron White, who agreed with the decision but expressly did not concur in Part I (“The Game”)—is one of the only members of a Supreme Court majority decision to disagree with the facts. It just so happens that “Whizzer” White was an All-America football halfback for the Colorado Buffaloes, who went on to play with the National Football League’s Pittsburgh Pirates (now Steelers) and the Detroit Lions before, several years later, he was appointed by President Kennedy to the Supreme Court.