In Defense of Clarence Thomas

(This piece was cross-posted at the HLPR blog, where I’ve been writing this semester, but I had long-ago intended it as part deux of the “In Defense of” series, which started with farm subsidies.)

I recently asked my Facebook network which Supreme Court justice, modern or historical, would they elect to partner with on a Constitutional Law final exam, assuming the justice had taken the class with them that semester. John Marshall, Oliver Wendell Holmes Jr., Robert Jackson, and William Brennan were predictable choices as powerful writers and influential molders of constitutional thought. Scalia, well-known for his bombastic style yet clear exposition of facts and law, was popular. Clarence Thomas received no votes. Perhaps it is to be expected that among the constellation of judicial stars, Thomas would pale in popularity–his legacy, after all, has yet to be defined. No doubt for others his judicial philosophy, hewing tightly to original intent and historical understanding, leaves progressive-minded comrades ill at ease. Yet if a motivating factor for unpopularity is Thomas’ silence at oral argument, I would ask my friends to reconsider.

Clarence Thomas joined the Supreme Court in October 1991. On February 22, 2006, Thomas posed a question during oral argument, and has stayed silent ever since. His silence has been the subject of much commentary and speculation, and perhaps inevitably, ridicule and accusations of un-intellectualism. This disparaging category of charges is unfair, and deserves some scrutiny.

In a piece on the fifth anniversary of Thomas’ silence, Adam Liptak of the New York Times quoted a law review article which opined: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” One Huffington Post author, writing on important questions Thomas had asked, noted, “. . . Thomas’ silence has also left many casual observers — that is, ordinary American citizens — with the impression that the man either does not care about the cases or cannot intellectually compete with his colleagues.”

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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.