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A Justice With A Passion For The Game And The Country That Invented It


Thursday, Nov. 15, 2001

As all baseball fans know, the Major Leagues announced last week that they intend to eliminate two teams before next season. Although Commissioner Bud Selig was coy about which teams the baseball owners would disband, the Montreal Expos and Minnesota Twins are understood to be the targets.

This development has little to do with law, except for the likelihood that the Players Union will fight it, perhaps even in court. But, at the risk of self-indulgence, it does provide an appropriate occasion for a brief remembrance of an important figure in baseball history and an unsurpassed Twins fan, Justice Harry Blackmun.

An Antitrust Ruling Made Famous By A Paean to Baseball

Among the prolific memorabilia in Justice Blackmun's stately corner office at the Supreme Court, the most colorful objects were the orange Wheaties boxes prominently displayed on several bookshelves commemorating the Twins' two World Series victories. The office brimmed with baseball stuff, signed balls, caps, even a life size Louisville Slugger "Mel Ott" model bat that was mounted on one wall.

There was a story behind every item. The Mel Ott bat had earned its place in chambers as a result of Justice Blackmun's authoring the Court's opinion in Flood v. Kuhn. In that decision, the Justices upheld baseball's "reserve clause" against antitrust challenge. (The reserve clause was a uniform contract term enforced by every team that restricted the freedom of players to control what team they would play for).

At the end of the day, Justice Blackmun, following various precedents, ruled on behalf of the Court that Congress had exempted baseball from the scope of the federal antitrust laws. But the opinion is famous not for its holding, but for its introductory section — Justice Blackmun's encomium to the national pastime.

Blackmun's Favorite Players — With One Glaring Omission

Justice Blackmun chronicled the history of the sport all the way back to its humble beginnings on the Elysian Fields of Hoboken, New Jersey on June 19, 1846. In the course of setting out that history, Justice Blackmun included a list of roughly 100 of his own favorite players, including many, such as Hans Lobert, of whom even an avid fan might never have heard

When the opinion was published, one of Justice Blackmun's friends called to ask why Mel Ott, the New York Giants' celebrated right-fielder who hit 511 homeruns, did not make the list of favorites. "Of course he did," the Justice replied. But when he checked, Ott was nowhere to be found.

In Justice Blackmun's personal copy of Volume 407 of U.S. Reports, the Justice, in the spidery crystal-clear script that was his trademark, pencilled in Ott's name next to the flawed list. "I shall never forgive myself," he is reputed to have said. And the Mel Ott bat that hung on his wall had that self-chastisement inscribed on a plaque below.

Baseball and Blackmun's Patriotism

Great as Blackmun's Mel Ott anecdote was, the baseball mementos also had meaning far beyond the anecdotes. As the Kuhn opinion reflected, Justice Blackmun was an incorrigible romantic about the great institutions in American life.

It was always my sense that Justice Blackmun's devotion to baseball was part and parcel of his deep sense of patriotism. Baseball, in Blackmun's view, was a truly American invention that, despite scandals such as the fixed 1919 World Series, came as close to perfection in the design of a game as human wisdom would allow.

His view of America was much the same. Despite the stain of slavery and the destruction of the continent's native peoples, he never wavered in his view that the American experiment with constitutional government was indeed the last, best hope for mankind.

Even when the politics of the Court on which he sat turned against the principles he cherished, Justice Blackmun held to an unshakable belief that the pendulum of judicial history would swing, and swing back again, along a gradual arc of enlightenment.

Blackmun's Pride of Place

That Justice Blackmun stuck with the Twins as his team was also typical. His pride of place ran deep. It was everywhere in his office, from his grandfather's civil war sword that hung behind his desk, to the furniture that was handed down to him by the Sandborn family, one of Minnesota's most renowned.

Justice Blackmun believed in the goodness of the Scandinavians who settled that part of the world and in the causes, especially the cause of Union, for which they fought. And he lived by their values of humility, decency, reserve, and thrift.

On that basis, I doubt Justice Blackmun would find much beauty in the modern business of baseball (notwithstanding the amazing World Series just completed). A man who recorded daily expenditures by hand in a two-sided ledger at his desk, would find current salaries and ticket prices close to obscene — and he would miss the continuity, under which the same players played over time for the same teams, that the reserve clause imposed and free agency has rendered obsolete.

Most of all, I know he would have mourned the death of a beloved team that yielded two champions in the last 15 years as well as unforgettable players, such as Kirby Puckett, who knew no other home. I expect Blackman would have seen it as a sign of the times: the sacrifice of good people's pleasures for other men's greed. But if he were here to say so, after a moment of silence, he would have paused, smiled sadly, and reminded those listening not to worry — "the pendulum, as it always has, will swing."

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books — most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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