A CRANK ON THE COURT: THE PASSION OF JUSTICE WILLIAM R. DAY Ross E. Davies, Professor, George Mason University School of Law The Baseball Research Journal, Vol. 38, No. 2, Fall 2009, pp. 94-107 (BRJ is a publication of SABR, the Society for American Baseball Research) George Mason University Law and Economics Research Paper Series 10-10 This paper can be downloaded without charge from the Social Science Research Network at http://ssrn.com/abstract_id=1555017 **SABR_BRJ-38.2_final-v2:Layout 1 12/15/09 2:00 PM Page 94 BASEBALL AND LAW A Crank on the Court The Passion of Justice William R. Day Ross E. Davies here is an understandable tendency to date the Not surprisingly, there were plenty of other baseball Supreme Court’s involvement with baseball fans on the Court during, and even before, the period Tfrom 1922, when the Court decided Federal covered by McKenna’s (1898–1925), Day’s (1903–22), Baseball Club of Baltimore v. National League of Pro- and Taft’s (1921–30) service. 13 Chief Justice Edward D. fessional Base Ball Clubs —the original baseball White (1894–1921) 14 and Justices John Marshall Har - antitrust-exemption case. 1 And there is a correspon - lan (1877–1911), 15 Horace H. Lurton (1910–14), 16 and ding tendency to dwell on William Howard Taft—he Mahlon Pitney (1912–22), 17 for example. And no doubt was chief justice when Federal Baseball was decided 2— a thorough search would turn up many more. 18 There is, when discussing early baseball fandom on the Court. 3 however, nothing to suggest that up to 1922 any mem - The first tendency is not only understandable but ber of the Supreme Court was either as deeply also pretty much correct. The Court heard only a few interested in the game as Day was or portrayed as being baseball-related cases before 1922, and none was as deeply interested in the game as Taft was. And so we especially weighty from either a legal or a baseball turn to Taft and Day in their very different capacities as perspective (although each was surely important to the fans of the national pastime. people involved). 4 The second tendency, while also understandable, WILLIAM HOWARD TAFT, THE OFFICIAL-CAPACITY FAN is not so correct. Taft was a baseball fan, but he was Attention to Taft over Day in the context of baseball is neither the first nor the most fanatical on the Court understandable both because Taft was, and remains, that decided Federal Baseball , not by a long shot. so much more noticeable than Day and because Taft Justice Joseph McKenna was first, C L I which is easy to prove: He was a N E 5 D I fan, and he was the longest-serving N S T member of the Court at the time S T 6 U Federal Baseball was decided. D I O , Justice William R. Day was the C O L most fanatical, which is not so easy L E C T to prove: The sketches of Taft-the- I O N fan and Day-the-fan that make up O F T the bulk of this article are intended H E S to give readers enough information U P R to decide for themselves. After con - E M E sidering those sketches and the C O U sources on which they are based, R T O reasonable minds might differ about F T H whether Day was the most intense E U N of the many intense followers of I T E baseball who have served on the D S T A Court—good cases might be made T E S for several others, including Chief . Justice Fred Vinson 7 and Justices Potter Stewart, 8 Harry Blackmun, 9 John Paul Stevens, 10 Samuel Alito, 11 The U.S. Supreme Court, 1921–22. Back row, left to right : Justices Louis D. Brandeis, Mahlon and Sonia Sotomayor 12 —but none Pitney, James McReynolds, and John H. Clarke. Front row, left to right : Justices William R. Day would dispute that he at least de - and Joseph McKenna, Chief Justice William Howard Taft, and Justices Oliver Wendell Holmes serves a place among them. and Willis Van Devanter. 94 **SABR_BRJ-38.2_final-v2:Layout 1 12/15/09 2:00 PM Page 95 DAVIES : A Crank on the Court was, in fact, a baseball fan of a sort, if not a particu - surprise that Taft, who loomed so much larger than larly intense one. Day in person and in office in their own time (and in Taft’s superior noticeability began at a personal history books ever since), should also be more easily level, with the physical differences between the two noticed for his baseball associations. men. (Compare the photos below of Taft on the left Nevertheless, there is little evidence, other than and Day on the right.) Taft was a very substantial occasional and unsubstantiated journalistic froth, 26 human being, an attribute noted and caricatured in the that Taft’s interest in baseball was anything more than news media (see, for example, the cover of Judge mag - friendly, polite, and dutiful. By all appearances, he was azine on page 96) 19 and even privately among his sometimes involved with the game, but never in love friends. 20 Day, in contrast, was sufficiently slender and with it. His four famous involvements with baseball frail—“of delicate physique,” as his diplomatic col - reflect this fairly detached relationship. league Justice Charles Evans Hughes put it 21 —to be the First and most famously, on April 14, 1910, he be - target of the occasional cartoon (see, for example, came the first president of the United States to toss “midget” Day on page 97) or friendly barb as well. 22 At the ceremonial first pitch on opening day at a major- a professional level, there were substantial differences league game. 27 The moment came as a surprise to Taft too. Both men were important public figures from the (an odd reaction, in light of the fact that plans report - 1890s onward, but Taft was by far the more prominent. edly had been made for the same stunt at the opening In fact, Taft remains to this day a uniquely successful of the 1909 season): 28 accumulator of high offices in the federal government. He is the only person ever to hold the highest execu - President Taft, provided with pass No. 1, today tive office in the United States (he was president from enjoyed the novel experience of seeing the 1909 to 1913) and the highest judicial office (he was Washington American league team win a ball chief justice from 1921 to 1930). 23 Day’s highest exec - game. utive and judicial positions were secretary of state Last year, the executive saw Washington play (1898) and associate justice (1903–22) 24 —all of which Boston, late in the season, but the local players would be impressive when compared to anyone’s ca - got stage fright when the president arrived and reer other than Taft’s. 25 And so it should come as no threw away the game. Mr. Taft remarked then that 8 C L 0 he must be a “hoodoo” and remained away 7 D 3 7 0 5 - from the ball park the rest of the season. 7 C 7 E - H 2 - 6 G I Z The president took an active part in the game. S D - U C - - L Just before play was started, Umpire “Billy” C , L S , S Evans made his way to the Taft box in the S E S R E G R right wing of the grand stand, and presented N G O N C O the chief magistrate with a new ball. F C O F Y O R Y President Is Surprised. A R R A B I R L The president took the ball in his gloved hand B I L as if he were at a loss what to do with it [seemingly unaware of a Washington baseball tradition in which an official of the District of Columbia government threw out the first pitch of the Senators’ major league season 29 ] until Evans told him he was expected to throw it over the plate when he gave the signal. The president watched the players warm up, and a few minutes later shook hands with the managers, McAleer and Mack. When the bell rang for the beginning of the game, the pres - ident shifted uneasily in his seat, the umpire William Howard Taft, substantial. William R. Day, lean. gave the signal, and Mr. Taft raised his arm. 95 **SABR_BRJ-38.2_final-v2:Layout 1 12/15/09 2:00 PM Page 96 The Baseball Research Journal, Fall 2009 J U Catcher Street stood at the home plate D G E ready to receive the ball, but the presi - 7 4 , dent knew the pitcher was the man N O . who usually began business operations 1 4 6 with it, so he threw it straight to Pitcher 3 ( 3 30 0 Walter Johnson. O C T O B 31 E Taft would later reprise his performance, R 1 9 and his successor Woodrow Wilson 0 9 ) 32 . would continue the practice. Now it is a L I B R national tradition, and a yearly opportu - A R Y nity to remind baseball fans that Taft was O F 33 Taft’s girth was the object of con - C one of their kind. O N siderable comment and caricature G Taft does not seem to have attended R E and, as here, could be used to S S many non-opening-day games during his illustrate aspects of his political , L C presidency.