"I don't know what Mickey Mantle is or does. Is it a man?"--Longtime federal Judge Learned Hand, quoted in “Nation: A Matter of Spirit,” Time, August 25, 1961
Harry Blackmun, a baseball fanatic, would never have come out with this kind of howler about the New York Yankee Hall of Famer. But that might have been the only measure by which the Associate Justice of the Supreme Court surpassed Learned Hand.
I’ve thought a good deal lately about Hand, who died on this date in 1961 at age 89, while still serving, after 52 years, on the federal bench. He’s often considered the best judge never to be appointed to the Supreme Court. More’s the pity for our country that he never ascended to the highest court in the land, for he had already demonstrated sagacity and literary grace in his opinions.
The latter quality is not to be taken for granted among the Supremes, as Jeffrey Rosen shows in his recent New Republic piece favorably comparing the quality of Elena Kagan's prose to her colleagues. I do have my beef with how Rosen could praise Antonin Scalia for his readable opinions without putting on the short list of quotable justices Robert Jackson, but at least he offers some choice other historical examples of winners and sinners on the Supreme Court.
Rosen cites among the latter Harry Blackmun’s Roe v. Wade opinion, but there’s another case that’s even more relevant to today’s “Quote of the Day”: Blackmun’s decision in the Curt Flood case.
The justice decided to prove the veracity of the nickname “Minnesota Twin” (Chief Justice Warren Burger also hailed from the Land of a Thousand Lakes) by larding one of his footnotes in the case with a list of just about every baseball legend going back to Cap Anson. Potter Stewart, scanning the eye-glazing list, told Blackmun that he’d join the majority in the case if one of his favorite players was added. Blackmun complied.
And guess what? After that silly display of his baseball knowledge, Blackmun still decided the case incorrectly.
On the other hand, the likelihood is high that, despite not knowing the difference between, say, Lou Gehrig and Lou Boudreau, Hand still would have been able to cut to the core of the case: i.e., whether major-league owners were using the reserve clause to restrict players’ ability to sign with their employer of choice and, thus, whether baseball deserved to be only sport not subject to federal antitrust law. At very least, one expects that he would have taken one look at Blackmun’s treasured footnote and come up with one of his lines that belong in Bartlett’s Familiar Quotations: “Judges can be damned fools just like everybody else.”
I’ve always felt that literary style is a happy union of sense and sensibility. For an example of this, see this part of Hand’s address to a crowd of newly naturalized Americans in Central Park in 1944:
“The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near 2,000 years ago, taught mankind that lesson it has never learned, but has never quite forgotten: that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”
Would that this quote—a magnificent summary of the stakes in World War II—could only be carved into the Supreme Court building in D.C., where today’s justices would have to see and read it before rendering their decisions.
I’m Still Not Over You Yet.
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