May 31, 2010
From The New York Times
By Adam Liptak
We have photographic proof that Elena Kagan has played softball, and there is some evidence that she is a Mets fan.
But by the sometimes fanatical devotion to baseball of the nine-member squad Ms. Kagan hopes to join, that is minor-league stuff.
Consider Justice Samuel A. Alito Jr., a Phillies fan, who last year contributed an essay to The Baseball Research Journal. Or Justice John Paul Stevens, a Cubs fan, who was at Wrigley Field for Game 3 of the 1932 World Series and witnessed Babe Ruth’s legendary called-shot home run.
Or Justice Sonia Sotomayor, a Yankees fan, whose most famous ruling as a trial judge helped end a baseball strike in 1995. “You can’t grow up in the South Bronx without knowing about baseball,” she said at the time.
Justice Alito took his team’s loss in the last World Series particularly hard. And he had to pay off a wager.
“Unfortunately, I had a bet with Justice Sotomayor about the outcome,” he told The Philadelphia Daily News in April. “We had a bet, cheese steaks v. Nathan’s hot dogs, and I had to provide Nathan’s hot dogs.”
When a new justice joins the Supreme Court, tradition requires the junior justice to arrange a little party. In 2006, when Justice Alito came on board, that task fell to Justice Stephen G. Breyer, a Red Sox fan. Before dessert was served, Justice Breyer introduced a special guest mascot.
“He opened the door,” Justice Alito recalled, “and the Phillie Phanatic came in and gave me a big hug. And it was great.”
The two had met before, when Justice Alito threw the ceremonial first pitch on Father’s Day in 2006. “It was kind of demoralizing that the Phanatic caught it without a glove,” Justice Alito said at the time.
But Justice Alito’s main memory of the encounter was olfactory. “That on-the-field uniform is fragrant, as you would expect,” he told The Daily News. At the dinner, though, he said, the Phanatic “smelled like a flower, so either he got it dry-cleaned or he has his traveling suit.”
If the Senate approves Ms. Kagan’s nomination and recent tradition holds, Justice Sotomayor, now the junior justice, may have to swallow hard and invite Mr. Met to Washington.
Intense devotion to the national pastime at the Supreme Court is not a new phenomenon. In 1973, while the court heard arguments during the National League Championship Series, Justice Potter Stewart passed a note to Justice Harry A. Blackmun that exhibited a nice sense of proportion.
“V.P. Agnew just resigned!!” the note said, adding, “Mets 2 Reds 0.”
The justices resort to baseball analogies even in cases involving other sports. In January, when the court heard arguments in an antitrust case concerning the National Football League’s apparel licensing practices, Justice Breyer illustrated a point about how the marketplace for items with team logos on them really works — by referring to two baseball teams.
“I don’t know a Red Sox fan who would take a Yankees sweatshirt if you gave it away,” Justice Breyer observed. (The N.F.L. lost the case last week in a unanimous decision.)
Justice Breyer’s resort to a baseball analogy was unsurprising. “Nothing in the law of sport matches the frequency of baseball’s interaction with the institutions of the law or the tendency of lawmakers who speak of sports to talk in baseball terms,” Ross E. Davies, a law professor at George Mason University, wrote in an essay in The Baseball Research Journal last year.
He provided data. There have been more references to baseball in federal and state judicial opinions over the last century or so than to any other sport, though golf is a surprisingly close second.
It remains to be seen whether baseball will figure in Ms. Kagan’s confirmation hearings. In announcing her nomination last month, though, President Obama certainly thought the topic worth mentioning.
Ms. Kagan’s “appreciation for diverse views may also come in handy,” the president said, “as a die-hard Mets fan serving alongside her new colleague-to-be, Yankees fan Justice Sotomayor, who I believe has ordered a pinstriped robe for the occasion.”
As in other areas, Ms. Kagan’s paper trail concerning baseball is thin, and there was some skepticism about Mr. Obama’s characterization of his nominee’s loyalties. But an examination of the considerable pile of materials Ms. Kagan provided to the Senate Judiciary Committee confirmed the president’s assertion.
In 2004, an interviewer for The Harvard Law Bulletin asked Ms. Kagan an unavoidably direct question: “You’re a New Yorker. So, Yankees or Mets?”
“Mets!” Ms. Kagan replied, unequivocally. “They didn’t give me much to cheer about last season, but Mets it is.”
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