WASHINGTON – U.S. Supreme Court Justice Sonia Sotomayor, who in 1995 earned the title of "savior of baseball" as the judge who ended a lengthy players’ strike, will revisit the legal issues surrounding the sport next month.
Sotomayor is set to preside over a reenactment on May 22 of Flood v. Kuhn, 407 U.S. 258, the 1972 decision that upheld Major League Baseball’s antitrust exemption as an "established aberration" that needed to be upheld out of respect for precedent. The case was brought by St. Louis Cardinals player Curt Flood, who challenged rules that kept him from being a "free agent" in making decisions about his career.
U.S. Supreme Court Justice and avid Yankees fan Sonia Sotomayor takes the field on the arm of Yankee catcher Jorge Posada on her way to deliver the first ceremonial pitch at the game between the Yankees and the Boston Red Sox on Sept. 26 2009, shortly after her confirmation.
Representing Flood in the reenactment will be Stanford Law School professor Pamela Karlan, who in 1984 and 1985 clerked for Justice Harry Blackmun, the author of the majority opinion in Flood v. Kuhn. Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, a veteran advocate before the court, will argue on behalf of the team owners in the reenactment. The event is sponsored by the Supreme Court Historical Society and will take place in the court chamber.
"It will be a great deal of fun," said Englert, a member of the society’s board who volunteered to take on the argument. Englert said Sotomayor was a natural choice to be the presiding judge, not because of her 1995 ruling, but because "she is known to like baseball." The Bronx-born Sotomayor is a die-hard New York Yankees fan and has thrown out the first ball at games since joining the high court.
Even though it upheld baseball’s long-standing exemption from antitrust scrutiny, Flood v. Kuhn ended up "raising the consciousness of everyone involved with baseball," in the words of the late Marvin Miller, who backed Flood’s lawsuit as head of the Major League Baseball Players Association. Free agency is the norm now, and players’ salaries have soared. But the antitrust exemption remains undisturbed.
Flood v. Kuhn is also remembered for Blackmun’s lengthy paean to baseball in the beginning of the majority opinion. Blackmun included a lengthy list of players, "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." Chief Justice Warren Burger and Justice Byron White pointedly declined to join that part of the decision.
The original oral argument in 1972 featured two noted lawyers: Arthur Goldberg, the former justice, represented player Flood, while Paul Porter, a founder of Arnold & Porter, argued for team owners.
Goldberg was making his first appearance before the court since leaving the bench in 1965, and it did not go well. According to the 1979 book "The Brethren," Goldberg "offered such a poor presentation of Flood’s case that his former colleagues were embarrassed."
University of Wisconsin Law School professor Brad Snyder, author of a 2007 book about Flood v. Kuhn entitled "A Well-Paid Slave," said the case "was not the Supreme Court’s finest hour, in terms of advocacy or decision-making." The decision is rarely cited by the court, Snyder said, "except as an example of excessive devotion to stare decisis."
It will be interesting, Snyder said, to see Flood’s case argued anew by a "top-notch" advocate like Karlan, instead of Goldberg. Snyder will provide historical context about the case to the audience before the reenactment begins May 22. Karlan could not be reached for comment.
In 1995, Sotomayor, then a Southern District of New York judge, issued an injunction ending the longest baseball strike in history. In Silverman v. Major League Baseball Player Relations Committee, 880 F. Supp. 246, she ruled that the team owners violated the National Labor Relations Act by seeking unilaterally to end free agency. When he nominated Sotomayor to the Supreme Court in 2009, President Barack Obama cited her ruling and added, "Some say that Judge Sotomayor saved baseball."
@|Tony Mauro covers the U.S. Supreme Court for ALM, the Law Journal’s parent. He can be contacted at firstname.lastname@example.org.