Supreme Court Justice Sonia Sotomayor's wicked, waggish sense of humor — and knowledge of baseball — were on full display Wednesday, when she presided over a re-enactment of Flood v. Kuhn, the 1972 case that unsuccessfully challenged baseball's antitrust exemption.
The event, put on by the Supreme Court Historical Society, took place in the court chamber, and as Sotomayor took her place at the center of the bench, normally the chief justice's chair, she remarked puckishly, "This is the first time I've sat here. It feels pretty good."
For those who don't remember, the case was brought by St. Louis Cardinals great Curt Flood, who challenged baseball's reserve clause — the provision that allowed teams to virtually own players, set salaries and conduct trades, with the players for all practical purposes never able to negotiate freely with other teams. That meant that at the time Flood brought his challenge in 1970, he was earning what was then considered a top salary of $90,000. This, for a player who had signed with the Cards at age 18, with no agent or lawyer, and who in six of the next 12 seasons batted .300 and won seven Gold Glove awards. So, when he was traded to the Philadelphia Phillies, a definitely lesser team at the time, he refused to go, and could not play for any team.
He wrote to the then-baseball commissioner, Bowie Kuhn, protesting that he was "not a piece of property to be bought and sold." Kuhn denied his request for free agency — a concept unrecognized by baseball back then — and Flood sued, seeking to block the perpetual use of the reserve clause.
All of these facts, and more, were detailed on Wednesday night by University of Wisconsin law professor Brad Snyder, author of A Well Paid Slave.
In 1972, the U.S. Supreme Court ruled against Flood by a vote of 5 to 3. The decision, written by Justice Harry Blackmun, is widely disrespected today (more on that later). But because Blackmun frankly acknowledged that the court's previous rulings upholding baseball's antitrust exemption were wrong, his opinion led to the subsequent creation of a free agency system in baseball.
In 1994, however, nearly two decades after the Flood decision and the ensuing changes in baseball, the owners sought to effectively nullify the free agency system, and the baseball players struck, wiping out the playoffs and the World Series. The National Labor Relations Board went to court, contending that the owners were negotiating in bad faith, and the case came before a young federal district court judge named Sonia Sotomayor.
She agreed that the owners were colluding illegally to fix salaries and granted a temporary injunction barring them from doing that. Sotomayor, a wildly dedicated Yankees fan, issued her opinion in time to allow the new baseball season to begin as scheduled on opening day, with the old baseball contract in effect. She thus earned the title, "the judge who saved baseball."
So it was no accident that the Supreme Court Historical Society got Sotomayor to preside over the re-enactment of the Flood case this week.
Representing Flood at the re-enactment was Stanford Law professor Pamela Karlan, a frequent Supreme Court advocate, and ironically, a former Blackmun law clerk. And representing Major League Baseball was another frequent Supreme Court advocate, Roy Englert.
Karlan opened, noting that the Supreme Court's 1922 and 1953 decisions upholding baseball's antitrust exemption were outliers and that the court had not permitted such an exemption for any other professional sport.
Sotomayor asked why the court should "break with tradition," thus depriving the owners of their "reliance" on previous decisions.
Karlan shot back that if the court were to side with the owners for a third time, it would amount to something done in baseball only once before — three errors on a single play.
Sotomayor, with a straight face, opined that the court could apply another baseball rule: three strikes and you're out.
Karlan, undaunted, replied, "I'm swinging for the fences here, your honor."
Sotomayor asked what would happen if the court were to take away the antitrust exemption. Wouldn't the players move around so much that fans would have no team loyalty?
No, rejoined Karlan, the owners would just have to pay the players what they are worth in order to hold on to them, and instead of year-to-year contracts that leave players with no leverage, the owners would have to negotiate longer-term contracts.
Sotomayor, in mock horror, said that if the antitrust exemption were abolished and owners could no longer collude to set player salaries at will, the Yankees might have to pay Reggie Jackson $1 million a year!
Worse, replied Karlan, would be if the Yanks paid Alex Rodriguez a quarter of a billion dollars not to play.
"I can't imagine such a thing!" answered a shocked Sotomayor.
Returning to the legal question, Karlan noted that in the late 1800s and early 1900s baseball was competitive, with independent leagues, and that to interpret the antitrust law, as the Supreme Court did in 1922 when it said baseball was exempt, was ridiculous. Just as ridiculous was the court's assertion that the sport was not involved in interstate commerce.
Next up to the lectern was Roy Englert, representing the baseball commissioner and owners. He noted that some 50 bills had been introduced in Congress over the years to eliminate the antitrust exemption, and none had passed. The court, he said, should leave the question to Congress.
But Sotomayor asked, "Where are the rights of the players?" Quoting Curt Flood, she said that the baseball system was a form of "involuntary servitude" that does not exist in any other industry.
Englert replied that "these young men are making on average $28,000 ... as much as Supreme Court justices." Moreover, unlike other sports, he observed, baseball puts enormous investment into training players in the minor leagues.
Sotomayor, however, had a deeper question. What do we do "to the integrity of the court" when we let a "clearly erroneous decision stand?" And how long should we let it stand?
Do we let it stand, asked the judicial Yankee fan, "as long as it takes the Red Sox to win a World Series?"
At the close of the argument, Sotomayor summarized the late Justice Blackmun's opinion, noting that it was "notorious" for its seven-page sentimental opening, reciting the history of baseball, and listing some 88 best players of all time. It was so un-judgelike, she observed, that Chief Justice Warren Burger (and Justice Byron White) refused to sign on to that section of the opinion.
They did, however, join those sections upholding the antitrust exemption and the reserve clause, a judgment based only on the doctrine of stare decisis, respect for precedent. Indeed, Blackmun conceded that the court had been wrong when it said the game was not involved in interstate commerce, and he concluded only that the exemption should continue because the court had previously said so and Congress had done nothing to overrule the court.
What would I have done, asked Sotomayor? Well, first of all she would have insisted that Joe DiMaggio be added to the list of baseball greats, and on that condition she would have joined the opening section of Blackmun's opinion.
But she would have dissented on the legal conclusions. There is "not much legal justification" for the ruling, she said, noting that the prior decisions were based on doctrine that was by 1972 "hopelessly outdated."
And in comments that might be read as applying to affirmative action or voting rights or abortion decisions of the past that the current conservative Supreme Court majority disagrees with, she had further observations.
"There are Supreme Court decisions that are wrong," she said. The court's 1896 decision upholding segregation was wrong, and the Supreme Court was right to reverse it in 1954. But sometimes, she said, the question is not whether the decision was wrong, but whether this is the right time to overrule it.
Today, she observed, we see as "horrible" the reserve clause that deprived players of any real negotiating power. But at the time, what both sides thought they were arguing about was "the very survival of baseball."