P__ and I went yesterday evening to a Supreme Court Historical Society reenactment of the argument in Flood v. Kuhn. Pam Karlan (Stanford) represented Curt Flood, arguing for the elimination of the non-statutory baseball exception and against application of the labor exemption. Roy Englert (Robbins Russell), for whom I used to work, represented Major League Baseball and its commissioner, Bowie Kuhn. Justice Sotomayor presided.
Before going I wondered whether the reenactment was supposed to be historically accurate? Would the participants have memorized the transcript and be acting out the argument? If so, it would be a waste of great litigating and judging talent. One would think trained actors would be better suited to the task.
In fact, they had much fun with it. Pam Karlan was legitimately funny. A paraphrase of one line: "If the Court upholds the rule in Toolson, which refused to overrule Federal Baseball, the Court will be following in the footsteps of Tommy John and committing three errors on one play." Justice Sotomayor is a famous lover of baseball. Referring to Part I of Justice Blackmun's opinion in Flood v. Kuhn, in which he listed the 88 greatest baseball players: "Ms. Karlan, if you were to make a list of the top 88 baseball players, would Joe DiMaggio be on it?" "Yes, as would Mel Ott."
Roy Englert cited in favor of Major League Baseball the 1955 Report of the Attorney General's National Committee to Study the Antitrust Laws and John Paul Stevens' involvement in that report. "This staffer has just recently been appointed to the court of appeals, and I just have a feeling we'll be hearing more from him."
The ruling: Justice Sotomayor would have joined Part I of the Blackmun opinion, with the caveat that Joe DiMaggio must be on the list of the 88 all time great ballplayers. She would have dissented from the holding, however, believing that stare decisis was not a sufficient ground for upholding a rule -- the nonstatutory baseball exemption -- that was based on a long-since overturned view of the meaning of "interstate commerce."