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Nem mikh mit tsu der ball game:

In Flood v. Kuhn (1972), where the Supreme Court reaffirmed that baseball wasn't subject to antitrust law, Blackmun wrote:

Then there are the many names, 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: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

Wowsers. Roger Ian Abrams of Northeastern Law School reveals the origin of the list in his article Blackmun's List.

ReVonna LaSchatze:


You should read The Brethren, if you haven't already Sasha.

Lots of background anecdotes like this one. You'd like it.
11.6.2006 6:11pm
NYU 2L:
On an semi-related note, when I was doing jury duty last May, one of my fellow jurors was named Willie Mays. The judge proceeded to go into a 30 minute story of baseball games past, while the rest of the courtroom just sort of listened in confusion. It is a testament to the quality of the court reporter that he managed to keep taking down the whole thing with a straight face.
11.6.2006 6:11pm
ys:
I think the heading would read better this way (with a couple of changes):

Nehm mich mit zu dem ballgame

Normally it would be "zum" but I tried to keep the meter.
11.6.2006 6:26pm
Dan Simon (www):
11.6.2006 6:41pm
Sasha Volokh (mail) (www):
ys: I know the difference between my German and my Yiddish! I'm talking about the Yiddish translation of "Take Me Out to the Ball Game" that Mandy Patinkin sings on his album Mamaloshen. (You can find the words here.) I don't use German spelling for Yiddish words because, well, it's not German. However, I was wrong to write "Nehm" and "zu" -- that's what I get for writing in a hurry -- so I've fixed the title.
11.6.2006 6:44pm
Sasha Volokh (mail) (www):
Oh, and I didn't change it to "ball geym" because that just seems excessive to me. :)
11.6.2006 6:45pm
Justin (mail):
There were some great stories about this, including Justice Marshall's failed attempt to use that list to make a poignant point about baseball, race, and the antitrust exemption, and a story about how everyone thought he was working on Roe v. Wade when he wasn't. It's the only case I'm aware of where the facts failed to obtain a majority of the Court's support.
11.6.2006 6:53pm
Greedy Clerk (mail):
Blackmu's response to Marshall when he pointed out that the original list had no black players was that that was because blacks were not allowed to play in the Majors until the 50's. Marshall's response was "exactly."

Flood v. Kuhn is a bad opinion, a bad result and bad law. Unfortunately, this was typical of Blackmun.
11.6.2006 6:58pm
Guest3000:
Mel Ott?
11.6.2006 6:59pm
anonVCfan:
Well, who were Blackmun's clerks that term?



I much prefer Justice Douglas's quote:


"The Court's decision in Federal Baseball Club v. National League, 259 U.S. 200, made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view of a rather dismall business account over the last 50 years would keep that derelict in midstream."
11.6.2006 7:18pm
StevenK:
I believe Burger and White did not join in this part of the opinion, preventing it from becoming the law of the land.
11.6.2006 8:44pm
Kovarsky (mail):
i want a supreme court decision censuring the baseball hall of fame for not inducting buck oneil.
11.6.2006 9:19pm
ReVonna LaSchatze:


That's so cute. Take me out to the ballgame in Yiddish.

That would be funny if you got a group together and sang it that way in a group at a public ballgame.

It would be like Borat -- seeing the crowd reaction.
11.6.2006 9:27pm
Dilan Esper (mail) (www):
I don't like the result in Flood v. Kuhn either. Nonetheless, it isn't "a bad opinion". The Court wrongly created an antitrust exemption for baseball on the premise that baseball wasn't a business, it stood for 50 years and Congress, which had many chances to amend the Sherman Act and correct the decision, didn't do so. Thus, Blackmun holds that Congress acquiesced in that interpretation of the Act.

That's not dumb at all; it's perfectly plausible. The dissent's position is perfectly plausible as well. It's just a standard contest between the value of precedent and the importance of a "correct" interpretation of the law. In Flood, the Court stood with precedent. There's nothing horribly unjustified about the Court making that call in that direction.
11.6.2006 9:38pm
Anderson (mail) (www):
This takes the cake, but Rehnquist's catalog of Old Glory memorabilia in his Texas v. Johnson dissent is certainly on the top 10. I have often wondered about the clerks who had to compile that. And I was the only person in my Supreme Court Practice class to have heard of "Barbara Frietchie" before:

"Shoot, if you must, this old gray head,
But spare your country's flag," she said.
11.6.2006 9:58pm
Classmate-Wearing-Yarmulka (www):

That's so cute. Take me out to the ballgame in Yiddish.

That would be funny if you got a group together and sang it that way in a group at a public ballgame.

It would be like Borat -- seeing the crowd reaction.


I'm pretty sure it has been done- there has been "Jewish Night" at Shea Stadium the last couple of years and IIRC it was sung in Yiddish.
11.6.2006 11:15pm
Realist Liberal:
Guest 3000~
Blackmun was teased for the rest of his career for forgetting to include Mel Ott. His clerks from that term bought him a bat signed by Ott which was hung in his office until he retired. Apparently it was a running joke among his clerks for a long time.
(I got this information from Edward Lazarus' book Closed Chambers. Lazarus was a Blackmun clerk and as opposed to lots of stuff in his book, this is something where we're sure he actually knew what he was talking about.)
11.7.2006 12:11am
MLYaeger:
"Blackmu[n]'s response to Marshall when he pointed out that the original list had no black players was that that was because blacks were not allowed to play in the Majors until the 50's. Marshall's response was 'exactly.'"

Right on! And there is NO excuse for omitting Jackie Robinson in a list written in 1972. I would guess that a man of Blackmun's generation would know less about negro league players -- though the omission of Satchel Page is still notable, given his play in the majors -- but there is no reason for omitting Robinson.
11.7.2006 10:44am
WJ (mail):
To MLYaeger,

I concur with you. Why would he not mention Jackie Robinson if you are writing an opinion on what legal status baseball should have? If baseball was still segregated in 1972 I would bet the decision would come out the other way with the Court saying why should we give anti-trust exemption to MLB which practices segregation. Jackie Robinson is significant from a legal, historical athletic standpoint.
11.7.2006 1:20pm
Sasha Volokh (mail) (www):
Well, the author of this paper says Blackmun got the list out of a book. Has anyone checked (or does the author say) whether the book mentioned Robinson?
11.7.2006 1:56pm
WJ (mail):
Sasha,

The book did not mention all of the players in Blackmun's list. Blackmun added to the list of players mentioned.

I read the book about 25 years ago as a teenager and I remember it as a great book. The author did oral histories of baseball players from the 1930's. The players selected ran the gamut from the great to the ordinary. An excellent book if that is your interest.
11.7.2006 2:33pm
Mark Field (mail):
Blackmun's list does mention Robinson (3d row on the right). Robinson is one of three post-WWII players mentioned, the others being Satchel Paige and Roy Campanella. Among those omitted are Mays, Aaron, Mantle, Williams, DiMaggio, and Musial.

Blackmun concluded the list with a footnote which said, "These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated." Putting aside Blackmun's 9th Amendment reservation, it looks like he first created a pre-WWII list and then he (or someone) realized that an all white list might seem, let us say, underinclusive. I don't see any obvious reason for the 3 black players he added, though two played for the Dodgers.

It's an interesting list in other respects -- one would have to be a very serious baseball fan to identify players like Al Bridwell, Hans Lobert, or Willie Kamm.
11.7.2006 4:54pm