How Justice Stevens Changed Baseball

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Justice John Paul Stevens officially retires from the Supreme Court today, after a near record tenure of almost 35 years that began in December 1975 under President Gerald Ford. We will leave it to other departments to calculate Justice Stevens's judicial batting average over his long career. But we can't resist noting that his appointment came about in so distant a political universe that the New York Times was then saluting President Ford's new chief of staff Dick Cheney for his "unusually high reputation for competence and skill."

Getting back to the business at hand, The New York Times recently reported that, when not engaged with such trivial matters as civil rights, or capital punishment, or executive power in time of war, the Justices of the Supreme Court, display a "sometimes fanatical devotion to baseball." It is especially appropriate that notice is being taken, to quote the Times again, of the "intense devotion to the national pastime at the Supreme Court" as Justice Stevens prepares to leave the Court. Not because Justice Stevens is an ardent Cubs fan who was at Wrigley Field the day Babe Ruth either called--or did not call--a home run shot in the 1932 World Series, but because Justice Stevens may claim to hold his own place in the history of the national pastime.

In 1951, the future Justice Stevens was a young antitrust lawyer in Chicago when he was tapped to serve as associate counsel to the Monopoly Power Subcommittee of the House of Representatives' Judiciary Committee by Edward H. Levi, who was the dean of the University of Chicago Law School and serving as Chief Counsel to the subcommittee. (It was not the last time that Levi would steer Stevens's career path. A quarter-century later, as President Ford's Attorney General, Levi would be instrumental in securing Stevens's nomination to the Supreme Court.) Among the industries targeted for congressional investigation--along with such glamorous headline-grabbers as newsprint, paper pulp, and aluminum--was organized baseball.

The inquiry had been triggered by baseball's own request for legislation to codify and immunize from any future judicial attack the antitrust exemption that the Supreme Court had extended in 1922. That year, the Supreme Court, in an opinion written by the usually, but not invariably, great Oliver Wendell Holmes Jr., ruled that professional baseball was not subject to federal antitrust law because the sport was not engaged in interstate commerce. Although Holmes recognized that professional baseball teams obviously traveled across state lines to play out their schedules, he reasoned that such travel was incidental to the playing of the games themselves, which were local affairs, conducted within the borders of a state.

Holmes thereby provided the legal--or perhaps more accurately the extra-legal--framework for the entire development of organized professional baseball thereafter. Although the case decided by Holmes involved a clash between two rival baseball leagues, the most notable effect of that decision was to bar players from mounting challenges under antitrust law to the "reserve system" under which major league teams agreed to respect each other's right to a perpetual claim on the services of its players and not engage in competitive bidding for playing talent.

Thirty years later it could hardly be doubted that, as baseball's own executives privately acknowledged, "professional baseball... is BIG BUSINESS." And the sport's ruling councils plainly feared that courts might revisit that ruling in light of present day economic realities. So beginning on July 30, 1951 and continuing into the fall, the top officials of the national pastime found themselves on a congressional hot seat that was more usually occupied with accused Communists, mafiosi, and labor racketeers. The 1950s would be without parallel as the decade of congressional investigations, which with the advent of television provided something of a new national pastime, and the other national pastime's own "grand inquest" was now at hand.

As curious crowds thronged the Capitol amidst a crush of reporters and newsreel cameras, a diverse lineup of baseball notables took the witness table, including major and minor league officials, team owners, ball players, even sports writers, and associate committee counsel Stevens was asking many of the questions. Not always with success in getting clear answers, as press accounts of his persistent pursuit of a characteristically elusive Branch Rickey show. And Stevens also had to confront a rather forthright rebuke from one witness: sports columnist Red Smith insisted "that in these times I think there are graver matters. I think there are more pressing matters to deal with." Perhaps relieving any frustration and sting from such encounters, Stevens did have the chance to engage in a more amicable interchange with Phil Wrigley, owner of his own beloved Cubs.

Associate counsel Stevens also played a role in the one piece of intrigue that surfaced during the hearings. Someone had leaked to the Committee an apparent copy of an internal baseball "Steering Committee Report" from 1946 that expressed concerns about the legality and enforceability of the reserve clause. Stevens participated in the effort to secure confirmation of the existence of the report and production of a copy. After some back and forth, organized baseball produced the report which indeed contain those observations. What passed unremarked, however, in the congressional committee's deliberations, was a portion of the report that has attracted the most attention in recent decades. That was a section entitled the "Race Question," which revealed considerable discomfort, to say the least, among the sport's top executives with the impending integration of major league baseball the year before Jackie Robinson's rookie season with the Brooklyn Dodgers.

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Henry D. Fetter is the author of Taking on the Yankees: Winning and Losing in the Business of Baseball and has written widely about the business and politics of sports. More

Henry D. Fetter is the author of Taking on the Yankees: Winning and Losing in the Business of Baseball (WW Norton). He has written about the business and politics of sports, the American left, Jewish and Israeli history, and legal affairs for publications including the New York Times, Wall Street Journal, the Times Literary Supplement, the Journal of Sport History, Israel Affairs, The Public Interest, American Communist History, The National Pastime, and the Encyclopedia of American Jewish History, and his work has appeared in several baseball history anthologies.

His article "Revising the Revisionists: Walter O' Malley, Robert Moses and the End of the Brooklyn Dodgers" was awarded the Kerr History Prize for the best article published in 2008 in the journal New York History; an earlier version of that article was presented at the Columbia University symposium "Robert Moses: New Perspectives on the Master Builder" (March 2007) and received a McFarland-SABR Baseball Research Award. He is the recipient of research grants from the Society for American Baseball Research and the Harry S. Truman Library Institute.

Fetter is a graduate of Harvard Law School and also holds degrees in history from Harvard College and the University of California, Berkeley. A native New Yorker, he attended his first major league baseball game at Brooklyn's Ebbets Field on Memorial Day 1955 and some years later followed the Dodgers to Los Angeles where he has practiced business and entertainment litigation for the past 30 years.

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