Everyone seems to be debating the meaning of the Wall Street Journal’s front page picture of Supreme Court nominee Elena Kagan playing softball 17 years ago. Was it part a sinister plot to poison her nomination by stirring up questions about her sexual orientation?
I think this misinterpretation is utterly baseless. If anything this photo is proof that the Journal thinks Kagan belongs on the Court. Everyone who’s studied the matter can plainly see that it’s impossible to be on the Supreme Court, or really to make it anywhere in the law, without loving baseball (and yes, sports fans, she’s playing softball in this pic, but as President Obama noted in his announcement of her nomination, she’s a diehard Mets fan.)
Justice Samuel Alito is a hardcore Phillies fan; Justices Antonin Scalia and Sonia Sotomayor are both Yankees fans (Sotomayor famously ended the 1994 MLB strike); and Justice John Paul Stevens is such a long-time Cubs fan that he saw Babe Ruth call his shot at Game 3 of the 1932 World Series.
Sometimes the justices’ passion for the game has caused controversy in the legal arena. When Justice Blackmun upheld baseball’s antitrust exemption in 1972, he began with a much-criticized seven page “Ode” to Baseball, including two pages which simply listed famous players. He later said his greatest regret about the decision was that he forgot to name Mel Ott. During his confirmation hearings, Chief Justice Roberts’ comparison of the role of the judge with that of an umpire calling balls and strikes became a highly contested metaphor and is still debated in law review articles.
The ties between America’s Game and the law date back to when professional baseball was in its infancy. In the 1860s and 1870s, the leagues faced legal challenges from schedules conflicting with Sunday blue laws. The rapid expansion of Major League Baseball led to the creation of baseball’s exemption from the Sherman Antitrust Act, in the 1922 case Federal Baseball League v. National League (which Justice Alito wrote about last year for the Society of American Baseball Research.) It probably didn’t hurt the league’s case that the previous year they had appointed as their first commissioner Kenesaw Mountain Landis, a sitting federal judge.
Despite the deep connections between baseball and the law, that Kagan photo did reveal one problem she will face. Powerful Washington, D.C. insider, Ryan Zimmerman, the Nationals’ All-Star third baseman, said that “she’s not looking ready to hit. She definitely looks like a Punch-and-Judy hitter, not really a power hitter.”
I’m hoping that kind of criticism will motivate our next Supreme Court justice to find a little time between prepping for her confirmation hearing, submitting every financial record she’s ever had, and subjecting herself through the brutal process, to get down to the batting cages, and work on the skills which really lead to success on the Supreme Court.