Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals,

The first day of spring is March 20. And spring training is underway. What better time could there be to explore the use of baseball references in opinions from the Supreme Court of the United States?

A search for the term “baseball” reveals three distinct circumstances in which the national pastime merits mention in Supreme Court opinions.

The first circumstance involves the diverse ways in which baseball bats can be used as weapons. I won’t dwell on this unpleasantness just now.

The second circumstance involves litigation over baseball as a business, of which there is a lot. Baseball’s antitrust exemption, enshrined in Federal Baseball Club v. National League, 259 U.S. 200 (1922), comes up for discussion from time to time. So do baseball-flavored labor fights and commercial disputes.

The third circumstance is the one I want to explore a bit further: the baseball analogy. The late Justice Antonin Scalia was a particular fan of this writing technique.

Let’s warm up with Justice Scalia’s majority opinion in Florida v. Jardines, 133 S. Ct. 1409 (2013), which held that police violated the Fourth Amendment by obtaining a search warrant based on the reaction of a drug-sniffing dog who alerted at Mr. Jardines’ front door while being walked on a leash in front of the house. “The officers were gathering information in an area belonging to Jardines and immediately surrounding his house – in the curtilage of the house, which we have held enjoys protection as part of the home itself.” Id. at 1414. “And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.” Id.

The baseball analogy took the mound in response to Justice Alito’s dissenting opinion, which prompted Justice Scalia to throw this fastball: “The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base-path, to use a baseball analogy – so long as they ‘stick to the path that is typically used to approach a front door, such as a paved walkway.’” Id. at 1416 n.3.

Baseball analogies pop up with some frequency in other opinions. See, e.g., Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2221 (2014) (Alito, J., dissenting) (“The plurality responds with a series of examples in which the word ‘and’ is used to join two commands, one of which is – as the plurality asserts here – dependent on another. . . . But . . . that is hardly the only way the word case be used. For example: ‘If today’s baseball game is rained out, your ticket shall automatically be converted to a ticket for next Saturday’s game and you shall retain your free souvenir from today’s game.’”) (citations omitted).

The analogy strikes again in Burrage v. United States, 134 S. Ct. 881, 888 (2014), in which Justice Scalia discussed but-for causation. “Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run.” Id. “It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game.” Id. (original emphasis).

Additional examples are easy to run down. See Chisom v. Roemer, 501 U.S. 380, 410 (Scalia, J., dissenting) (“The Court’s feeble argument to the contrary is that ‘representatives’ means those who ‘are chosen by popular election.’ . . . On that hypothesis, the fan-elected members of the baseball all-star teams are ‘representatives’ – hardly a common, even if a permissible, usage.”) (citation omitted); see also John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989) (Scalia, J., dissenting) (“When we say that a statesman has ‘compiled an enviable record of achievement,’ or that a baseball pitcher has ‘compiled a 1.87 earned run average,’ we do not mean that these individuals have pulled together papers that show those results, but rather that they have generated or produced those results.”) (original emphasis).

Other than demonstrating a love of the game, what makes the baseball analogy such an effective pitch in opinion writing?

I haven’t used this device myself, but it hits me as an especially effective way to make opinions more interesting and persuasive. The baseball analogy reinforces a technical legal point by tapping into a widely shared experience and vocabulary. Even the casual observer likely knows enough about baseball to get the point.

I’m not about to step up to the plate with an observation regarding the “best” sport or the most worthy leisure activity from which opinion-writing nuggets can be obtained. Suffice it to say that I struck out while trying to think of another analogy that is so instantly accessible to so many readers.