The Supreme Court and Baseball.

Justice Alito, Phillies phanatic.

As a baseball fan, I was pleased to read the NY Times’ article yesterday highlighting some of the current Supreme Court justices’ connections with the venerable American pastime–baseball. Nominee Elena Kagan is a New York Mets fan, while Bronx-bred Sotomayor is a New York Yankees fan. The article relates a fun story about Breyer (Red Sox fan) organizing a welcoming party for Samuel Alito (Phillies fan). As Alito remembers it, “He opened the door and the Phillie Phanatic came in and gave me a big hug. And it was great.” Aww.

A story about Justice Stevens’ early history with the game testified to the senior jurist’s advancing years. Jeffrey Toobin penned the tale in a tribute piece in The New Yorker earlier this year:

On a wall in Stevens’s chambers that is mostly covered with autographed photographs of Chicago sports heroes, from Ernie Banks to Michael Jordan, there is a box score from Game Three of the 1932 World Series, between the Yankees and the Cubs. When Babe Ruth came to bat in the fifth inning, at Wrigley Field, according to a much disputed baseball legend, he pointed to the center-field stands and then proceeded to hit a home run right to that spot. The event is known as “the called shot.”

“My dad took me to see the World Series, and we were sitting behind third base, not too far back,” Stevens, who was twelve years old at the time, told me. He recalled that the Cubs players had been hassling Ruth from the dugout earlier in the game. “Ruth did point to the center-field scoreboard,” Stevens said. “And he did hit the ball out of the park after he pointed with his bat. So it really happened.”

Stevens has a reverence for facts. He mentioned that he vividly recalled Ruth’s shot flying over the center-field scoreboard. But, at a recent conference, a man in the audience said that Ruth’s homer had landed right next to his grandfather, who was sitting far away from the scoreboard. “That makes me warn you that you should be careful about trusting the memory of elderly witnesses,” Stevens said. The box score was a gift from a friend; Stevens noticed that it listed the wrong pitchers for the game, so he crossed them out with a red pen, and wrote in the right names.

This meticulousness is evident in Stevens’s judicial writing.

There were a few stories that I was surprised the author did not touch on, however. In discussing the high frequency of baseball analogies in legal writing (by law-makers and law-appliers alike), the author failed to mention the pithy remark from John Roberts at his Senate confirmation hearings: “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” It was a metaphor that not only sparked much commentary in the immediate aftermath, but extended into Sonia Sotomayor’s hearing, as this Gawker video compilation and this YouTube clip illustrate:

The other major relationship between the Supreme Court and Major League Baseball has been the latter’s preferential treatment at the gentle and accommodating hands of the former. Just this past week, the Supreme Court held in American Needle v. NFL, in a unanimous decision, that the NFL was not exempt from the Sherman Antitrust Act prohibiting anti-competitive cartel collusion. The NFL cannot decide as a group which single company would hold the license to manufacture merchandise for all NFL teams, and the decision may broadly impact a wide range of NFL policies–from TV rights, to marketing, and perhaps even free agency.

Baseball fans need not worry, however, because the Court has affirmed the MLB’s unique exemption from the Sherman Antitrust Act on three separate occasions. No other sports league is similarly exempted.

In one of a brilliant justice’s most flawed pieces of legal reasoning (second only, in my opinion, to this), Oliver Wendell Holmes wrote for a unanimous court in Federal Baseball Club v. National League (1922):

The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U.S. 648, 655 , 15 S. Sup. Ct. 207, the transport is a mere incident, not the essential thing.

If future commerce clause decisions depended on Holmes’ reasoning, our nation would look far different today. Really? An organization dedicated to transporting groups of players from one city, to another city, and charging for tickets for their show is not involved in interstate commerce? According to Holmes, it wasn’t, and was thus shielded from federal antitrust meddling. Holmes’ tenuous legal ground was upheld in 1953 in Toolson v. New York Yankees, largely on the basis of deference to Congressional inaction to correct the problem. Yet when antitrust cases came up soon after in boxing and football, on nearly identical facts and transportation requirements, they received far different treatment.

In U.S. v. International Boxing Club, the Court could not bring itself to overrule Federal Baseball or Toolson, or to grant a similar exemption to boxing. Justice Milton wrote in a disbelieving dissent: “When boxers travel from State to State, carrying their shorts and fancy dressing robes in a ditty bag in order to participate in a boxing bout, which is wholly intrastate, it is now held by this Court that the boxing bout becomes interstate commerce.” In Radovich v. National Football League, a similar fate befell football. Justice Harlan wrote bitterly in dissent: “I am unable to distinguish football from baseball under the rationale of Federal Base Ball and Toolson, and can find no basis for attributing to Congress a purpose to put baseball in a class by itself…”

After generations of eminent scholars wrote in dissent against baseball’s monopoly on monopolistic behavior, the Supreme Court had a third swing at rectifying its error. But by 1972, it was too late. The aging slugger had signed too large of a contract to simply bench. The struggling pitcher had been given a no-demotion clause and just refused to leave. In Flood v. Kuhn, the Court revisited the question of baseball’s privileged position in sports. Harry Blackmun’s majority opinion read like a paean to a sport he clearly loved. Proceeding with a history of baseball’s formation (“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…”), Blackmun decided to name… every single one of his favorite players and personalities:

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 comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O’Farrell, Lefty O’Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

In discussing the petitioner, he reads like a fantasy baseball player, scouting for his next draft pick. “In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages.”

In reaching his decision, he finally vacated Holmes’ logic on interstate commerce–“Professional baseball is a business and it is engaged in interstate commerce.”–and was forced to rely on that old judicial crutch, stare decisis:

Even though others might regard this as “unrealistic, inconsistent, or illogical,” see Radovich, 352 U.S., at 452 , the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court’s expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball’s unique characteristics and needs.

The Supreme Court’s relationship with the sport of baseball is not merely a trivial matter for the sports fans to laugh over. It is an ongoing love affair that has lasted nearly a century, and shows no signs of abating. Our national pastime has also captured the hearts of our dear legislators in Congress, who have never managed to clarify the law once and for all, and even take advantage of the special protection to regulate, purify and perfect their beloved sport.

It seems, on the matter of baseball, our legal titans are incapable of fairly calling balls and strikes. And yet, as a Supreme Court junkie, and baseball devotee, I completely understand.


Fantasy Baseball Sleepers for 2010

Speaking of topics that might be too “inside-baseball” for a blog post…

I really, really enjoy playing fantasy baseball. Baseball’s rich history of statistics, large selection of teams and players, and long season make it perfect for fantasy sports. I enjoy fantasy baseball so much that the other day I left a Planned Parenthood cocktails party/fundraiser event my roommate had organized in order to draft a fantasy baseball team, abandoning a swanky bar full of single, attractive, liberal women and a group of close friends, including one who was visiting from Brazil, so that I could steal internet from the Apple Store, create a pretend baseball team composed of Miguel Cabrera, Matt Kemp, and C.C. Sabathia, and subject myself to manically refreshing box scores all summer, praying for Carl Crawford to get just one more stolen base on a Sunday night.

Fantasy baseball isn’t won with players like Cabrera, Sabathia, or Crawford, however. The good teams are composed in part with All-Stars selected early on Draft Day, and in part with “sleeper picks” selected late in drafts and pick-ups throughout the season. The winning manager is the one who picked up Adrian Beltre during his torrid 2004 contract year, snagged Ryan Braun off waivers his rookie season en route to 34 home runs, or drafted Tommy Hanson last year to enjoy 14 wins and a terrific 2.51 ERA.

Now that I’ve drafted in both of my leagues (one for APDA, one for Tenafly), it’s safe to reveal some of my sleeper picks for this year:


1) Wade Davis, a young right-handed pitcher for the Tampa Bay [Devil] Rays.

According to, Wade Davis throws a solid 92 mph fastball, though he can dial it up to 94-96 mph when he needs to. His complete repertoire of pitches includes a changeup, a slider, a cutter, and a curveball. When called up last September, Davis recorded 2 wins and a 3.72 ERA in 6 starts. Nothing dazzling, but once you remove his horrible start against the Boston Red Sox, it shrinks to a 1.90 ERA. Not a terrific spring training, but I think a solid 3.50 ERA is within reach, and you’ll do well if you don’t start him against top offenses. Joe Niemann is another very interesting Rays pitcher to look at, with less dominance but better command.

2) Brett Anderson, left-handed ground-ball pitcher for the Oakland Athletics.

Brett’s average draft position (ADP) is 135.83 in CBS Sports fantasy leagues, but his numbers last year suggest he’ll do well. In the second half he posted a 3.02 ERA with an impressive 8.7 strikeout rate (K/9) and impeccable command (4.3 K/BB). I’m higher on Brett than Wade, and 15 wins with a 3.50 ERA is likely.

3) Neftali Feliz, a fireballing righty from the Texas Rangers.

Feliz is not lacking in skill, with a fastball that routinely tops 100 mph and a knee-buckling 78 mph curve. His ratios hold their own against Tim Lincecum’s. The only thing missing is a producing role–right now he doesn’t have a starting pitcher job. Frank Francisco is the Rangers’ closer (and a good draft pick as well), but if his health fails him as it has in the past, or if his fly-ball rate causes him to lose his job, Feliz is right there to replace him and managers should be ready to pick him up, or have him stashed away and helping with ERA, Ks, and WHIP in the meantime.


1) Howie Kendrick. 2B, LA/Anaheim Angels.

I am high on Howie Kendrick, who was a top prospect in the Angels organization for many years, and batted .350 in the second half of last year. I’m a sucker for average, and he can easily hit over .300 with a dozen or more home runs and some decent speed. If he continues to meet his potential, a season .330 is possible, which isn’t bad for an oft-undrafted second-basemen. He’ll allow you to invest in other positions.

2) Jason Heyward. OF, Atlanta Braves.

At least one player in every fantasy league knows about Jason Heyward, the next coming of Albert Pujols, Ken Griffey Jr., and/or Hank Aaron. Might as well make it you. He’s had a torrid spring training, with a 1.037 OPS (on-base plus slugging), and his homeruns have been leaving the park and destroying cars in the parking lot. Excellent plate discipline. You want him on your team when his bat starts destroying opposing pitchers’ ERAs. Moderate your high expectations for a 35 HR 100 RBI season–.280/22/80 is more reasonable, with huge upside–but prepare to enjoy watching him play as the Braves’ starting right fielder. Buy his rookie card and hope his first season in the bigs turns out better than that of uber-prospects Alex Gordon and Matt Wieters last year.

3) Chris Davis. 1B/3B, Texas.

A year ago I drafted Davis and Mark Reynolds, hoping for one of them to turn into a slightly better batting average version of Adam Dunn–high strikeouts, low batting average, but monster power numbers. Reynolds did that, belting 44 HRs last year while stealing 24 bases. This year Reynolds is too expensive for my taste, but Davis is still available thanks to a first half last year that hovered just above the Mendoza line. He was sent down, and when he came back up, he magically hit .298. This spring he’s got a batting average over .350. In 2008 he hit .294 with 36 homeruns, so owners should float a buck (or a late draft pick) on a sleeping giant who can potentially produce a 40 HR season and be this year’s Mark Reynolds–one year late. The tell-tale sign will be his successes (or lack thereof) against lefty pitchers.

Players who are ripe for a rebound

Don’t forget former aces, first-rounders, and/or top sleepers who experienced an injury or down year, who will slip down in the drafts,  if not the minds of some owners entirely! The ones who start the season injured can still help your team come playoff-time (like Alex Rodriguez last September). Check out Tim Hudson, Johan Santana, Brandon Webb, Francisco Liriano, Gavin Floyd, and Kevin Slowey for pitchers; and Carlos Beltran, Manny Ramirez, and Grady Sizemore for hitters.

Taking away the right to vote.

As Winston Churchill once famously repeated, “it has been said that democracy is the worst form of government, except all the others that have been tried.” Democrats are frustrated when poor Southerners vote against their interests, and when Naderites swing an election. Republicans are frustrated with Ron Paul siphoning votes from the establishment. As a article concisely summarized:

For starters, they know nothing about government or current events. They can’t follow arguments of any complexity. They stuff themselves with slogans and advertisements. They eschew fact for myth. They operate from biases and stereotypes, and they privilege feeling over thinking. The result is a political system of daunting irrationality, and rational people like Rick Shenkman are paying the cost.

In an ideal world, we can imagine a system where only the qualified are given the right to vote. The experts, the followers of current events, the readers of newspapers, the practitioners of the scientific method (though sadly this would be controversial), the level-headed and rational college of cardinal citizens. This group would be large enough to achieve the critical mass of “wisdom of the crowds” and stay small enough to exclude the unworthy. It’s not hard to conclude that this system would lead to better outcomes and smarter decisions, and in fact it’s why we have a limited form of it already: a facet of our having a representative democracy reflects a fear of pure democracy.

Of course, the problem with this is obvious. Coming up with a system to selectively exclude people is difficult, if not impossible, particularly with the legacy of Jim Crow in this country. How smart do you have to be? How do you verify your qualifications and attention to news and history? Who is designing this test, and how is it administered? Any system for discriminating between the worthy and the unworthy would be rife with corruption and a bias toward the values of the designers. For practical purposes, it can’t and won’t be done.

Yet the right to suffrage is not universal, and it’s not unalienable. Some groups already lack the right to vote. Children, of course, don’t have the right to vote because they are deemed emotionally and intellectually immature. We don’t grant the right to vote to foreign nationals, non-citizens, and convicted felons (in some places even when they are released from prison). Society judges, I think correctly, that these latter individuals may not vote with the interest of society in mind. There are probably anti-government wackos in the general population as well, but these individuals have more clearly conflicting incentives, or have demonstrated through their actions that they don’t respect societal welfare. They are clearly unqualified to vote.

This post isn’t actually advocating taking the right to vote away from normal citizens. I actually want to talk a bit about baseball, and a situation where we can demonstrate people clearly lack the capacity to vote correctly, or lack the honesty to do so. Read on.

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