Justice Sotomayor presides over re-enactment of historic baseball case
By Mark Walsh
Sep 1, 2013, 04:29 am CDT
No one was selling peanuts or Cracker Jack in the U.S. Supreme Court on May 22, but they might as well have been. The spectators, as well as the players and the umpire, seemed to be having as much fun as a day at the ballpark.
Justice Sonia Sotomayor presided in the courtroom over the Supreme Court Historical Society’s re-enactment of Flood v. Kuhn, the 1972 case about Major League Baseball’s long-standing antitrust exemption and its reserve clause binding players to a single team. The case originally was brought by St. Louis Cardinals outfielder Curt Flood, who objected to his 1969 trade to the Philadelphia Phillies. Flood, who cited involuntary servitude as one of his legal claims, once told an interviewer that “a well-paid slave is still a slave.”
Flood was represented in his actual Supreme Court arguments by former Justice Arthur J. Goldberg, who delivered what historians have concluded was a notoriously poor performance. At the re-enactment, Stanford law professor Pamela S. Karlan argued Flood’s side. “No one today thinks that baseball is not an interstate sport,” Karlan said in calling for baseball’s antitrust exemption to be overruled.
Roy T. Englert Jr. of Washington, D.C., who like Karlan is an experienced Supreme Court specialist, represented MLB and told Sotomayor that among the reasons for the exemption is that baseball owners “make an investment in talent through the minor leagues” that other, nonexempt pro sports leagues do not.
The advocates had clearly prepared diligently over the key precedents in the case—Federal Baseball Club v. National League, the 1922 decision that first recognized baseball’s antitrust exemption, and Toolson v. New York Yankees Inc., a 1953 ruling that reaffirmed the exemption.
But both had much fun with their trip back in time and some of the twists and turns Major League Baseball has taken since 1972.
Karlan said she couldn’t imagine baseball’s rigid system of owner control yielding to annual player salaries of $1 million or more. (The top player salary in 2013 is $28 million.) And if things really got out of whack between owners and players, fans would “look to someone to save them,” Karlan said in reference to Sotomayor, who as a federal district judge granted an injunction siding with the players against the owners after a strike that wiped out the 1994 World Series and threatened the next season.
Sotomayor, a Yankees fan, asked Englert whether baseball’s antitrust exemption should last as long as it would take for the cursed Boston Red Sox to win the World Series.
“I’m sure that won’t happen in my lifetime,” Englert said to chuckles among the crowd. The 1972 Supreme Court ruled 5-3 for baseball in Flood’s case, with Justice Harry A. Blackmun writing a famous ode to baseball’s history and lore, including a listing of 88 of the game’s greatest players.
At the end of the re-enactment, Sotomayor told the courtroom she would have ruled for Flood on the merits, but would have joined Justice Blackmun’s section on the history of baseball. Although, she said, “I would have conditioned my join on his adding [Yankees legend] Joe DiMaggio to his list of greats.”