Topics of Discussion:
- The Equal Rights Amendment
- Baseball Law
- T3BE – Answer
Thomas: Hey listeners, I’ve got a really exciting announcement! Opening Arguments is now on YouTube. We’ve made our first video on the Opening Arguments YouTube channel and it was a lot of fun. The idea just really quickly is to try to use some humor and maybe potentially some viral aspects to try to gain some attention, to draw people to the show, maybe reach a new audience because I for one firmly believe that Andrew is just teaching us so much here and I wanna spread the word, I wanna get more people engaged so the way we’re trying to do that is to branch out, reach some people on YouTube.
We would love your help to share the video if you enjoy it and get more people. Subscribe to the channel, anything that kind of boosts the YouTube channel. The link will be in the show notes, I hope you like the video. If you’d like to just go to the channel it’s youtube.com/c/openingarguments. Either way, thank you so much, I hope you check it out and I hope you like it, and now on with the show!
Thomas: Hello and welcome to Opening Arguments, this is episode 359 and I’m Thomas Smith, that’s Andrew Torrez. How’re you doing, Andrew?
Andrew: I am doing fantastic Thomas, how are you?
Thomas: I’m doing great because we are talking about ERA and hopefully baseball law!
Thomas: And the two are not related! I was a little thrown off. I thought the first segment was gonna be all about the ERAs of the pitcher, the split of Clayton Kershaw’s ERA at home and away against the Astros.
Andrew: Regular season and post-season, or … [Laughs]
Thomas: Oh no, hold on though! At home and away against the Astros is something to behold if you haven’t seen that, because mysteriously when he was at Astros cheater absolute disgrace cheater stadium he had an ERA of 7 billion and then when he was at home his ERA was like 1.3 or something crazy. So isn’t that weird?
Thomas: Isn’t that weird. Anyway, but we’re not. ERA in this case stands for the Equal Rights Amendment, which was ratified by Virginia, the 38th State, and now we all wanna know, does that an amendment make?
Andrew: Case closed!
Thomas: Case closed? So we’re gonna talk about that and we are allegedly going to get to baseball law so that is a wildcard segment so we will see, but we should be able to get to it because Dodger fans like me have been dying to know, and probably other baseball fans. It’s not just the Dodgers that have gotten screwed by this, there’s other teams too, so I’m sorry, I’m just so excited to talk about it that I just probably introduced the whole show! Do you have anything to say or should we get into it?
Andrew: Nope, let’s get into it!
Thomas: Alright, let’s do it!
The Equal Rights Amendment
Thomas: Okay, yeah, Equal Rights Amendment. Give us the breakdown.
Andrew: Yeah. I love the way you set it out in the intro, which is we had a resolution, it passed 2/3 of the House and the Senate, and then 38 States have also ratified it, so under the Constitution why is this not an Amendment to the Constitution?
Andrew: And the answer is because telling that story elides over some really important legal questions. But I will say this, this is an open question to me at this point to kind of cut ahead to the punchline. It is not clear to me that the arguments for rejecting the Equal Rights Amendment are good and it is also not clear to me that we don’t also stand to gain something in the long run if the Court decides to bow out on the Equal Rights Amendment.
Thomas: Quick clarifying question.
Thomas: Are you talking about the arguments just procedurally as to what’s happening or the arguments about the contents of the Equal Rights Amendment itself?
Andrew: I mean the argument that it is not valid.
Thomas: Okay, gotcha.
Andrew: That the ratification by Virginia is not valid. So that’s a great segue let’s kind of talk about the history, the relevant facts and the law and I do wanna give a shout out as we do, we always get help from our patrons, from listeners who send stuff in but sometimes people go above and beyond the call of duty. On this one both Deborah Smith sent a whole bunch of factual information and my associate, Morgan Stringer, sent in some really great case law and law review articles that really help make this segment possible, so thank you to both Deborah and Morgan.
Thomas: Yeah. I want an associate.
Andrew: [Laughs] Well let’s talk off the air, because-
Procedural History of the ERA
Andrew: So what happened? In 1972 2/3 of the United States House and Senate, seems unthinkable now-
Thomas: Agreed on something? [Laughs]
Andrew: Agreed on something, yeah. And what they agreed on, by the way, is the kind of thing that should pass 2/3 of the House and Senate.
Andrew: I’m gonna read you the entirety of the proposed Equal Rights Amendment.
“Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2: Congress shall have the power to enforce, by appropriate legislation, the provisions of this Article.
Section 3: This Amendment shall take effect two years after the date of ratification.”
Let me first explain why that’s important. We’ve talked about this before, but under existing equal protection analysis, which is driven by the 14th Amendment which says no State shall deprive any person of equal protection under the laws, gender, on account of sex, is – again, I’m using that as the courts have used that – triggers intermediate scrutiny rather than strict scrutiny. Discrimination on the basis of race triggers strict scrutiny.
By explicitly adding sex as a protected category in the Constitution, that means laws discriminating on the basis of gender would now be subject to strict scrutiny. In other words, discriminating against women would be as bad as discriminating against African Americans. That shouldn’t be a controversial proposition, and in fact in 1972 it was not a controversial proposition.
This was supported by Opening Arguments good friend Richard Nixon, it was supported by Richard Nixon’s Republican successor Gerald Ford, it was supported by the most conservative Democratic President we’ve had in the latter half of the 20th Century, Jimmy Carter. It was supported by the most conservative States, the most rural States you could imagine. So there’s broad consensus about this, and let’s talk about – this resolution followed the trend for 30 or 40 years by that point of Congress, I read you the entirety of the Amendment to be added to the Constitution, but then the enacting clause of that Resolution specified a time limit.
In this case it specified a 7 year time limit, and the first question you might ask is, is that a thing? Do Constitutional Amendments typically come with time limits attached to them for purposes of consideration? The answer to that is sometimes they do and sometimes they don’t. In fact, there are right now four pending proposed Constitutional Amendments that were approved by 2/3 of the House and Senate but have failed to get ratification from 3/4 of State legislatures, so they’re just still floatin’ around out there and they have no time limit on them. Put a pin in that, but we could ratify each and every one of these. There’s one we certainly wouldn’t want to ratify.
Thomas: [Laughs] Haven’t they tried to get the balanced budget one or something? There’s some bad ones in there that wouldn’t be good for us, right?
Andrew: Yeah, so here’s what those four are. The first has been pending since [Laughing] 1789. Since the passage of the Constitution.
Andrew: Pre-dating the Bill of Rights, and it is a rule about Congressional apportionment. It basically says no Congressional district could encompass more than 50,000 people.
Andrew: If we were to ratify this Amendment it would instantly increase the size of Congress to over 8,000 representative.
Andrew: Which, as we, you and I, have talked about on the show, I think would be a great idea!
Thomas: Might be good, yeah.
Andrew: I think this would be a fantastic idea in the age of Trump. That’s still out there.
Thomas: It’s gonna look like the Intergalactic Senate!
Thomas: We’ll need those floaty spaceships to take people to the podium.
Andrew: Look, you know, we already have Emperor Palpatine up front, so you know. It works.
Andrew: So let’s pass that one. The next one [Laughs] never been more appropriate in terms of shedding light on the original intent of the Constitution.
Andrew: This was an Article that’s been pending since 1810.
Andrew: A proposed Amendment that would strip the citizenship of anybody who accepted a foreign title of nobility.
Andrew: So we know the President is prohibited from accepting a foreign title of nobility but this says yeah, Thomas Smith, you can’t be knighted-
Thomas: Yeah, I was gonna say, what if the queen wants to honor my contributions to Opening Arguments? [Laughs]
Andrew: You can accept that but then you have to give up your US citizenship.
Thomas: Jeez! Harsh!
Andrew: Again, this ties back into our characterization, which I stand by in terms of the anti-corruption principle underlying the impeachment clause in the Constitution. Our founding fathers really, really were worried about people selling out backwater America for the ritzy cosmopolitan hip continental Europe, so they put explicit provisions and they went so far as to propose and have it pass [Laughing] 2/3 of each house of Congress that if you accept a foreign title of nobility, that’s it! You’re not a real American, get out.
Thomas: Wow. But the States were like, ah, not so fast.
Andrew: Yeah, the States were like “eeeeesh, come on! I think I should be able to be a viscount.
Thomas: Knights and ladies, whatever.
Andrew: Exactly right! So okay, alright, we’re lukewarm on the titles of nobility amendment. There’s also a pro-slavery amendment that’s been pending since 1861, that would really be not great to pass now. I want you to put a pin in this one. The last one that has been pending since 1924 is a proposed Amendment to the Constitution that would prohibit child labor.
Thomas: How did that not pass in 19-?! Ah. This country.
Andrew: Again, point out that this is how we used to respond to an activist Supreme Court. There’s no need for this Constitutional Amendment … now.
Andrew: Although who knows what the Roberts court will do? But this reflected the tension at the time, in 1924, of the Supreme Court in the Lochner era actively striking down measures to curb the very worst aspects of laissez-faire capitalism and when the Court just kind of went too far, people got together and said look, this is – the overwhelming consensus of American history here of a majority of the populous is we shouldn’t have children working in the granola mines! Come on, knock it off.
Thomas: Do they mine granola?
Andrew: Yeah. The do, next to the quinoa.
Thomas: I didn’t know that.
Andrew: There are vast mines of granola in upstate New York.
Thomas: Granola is really kind of like a geode.
Thomas: You crack it open, ooh, I got some raisin, got some different minerals here.
Andrew: Yeah. I love granola, but-
Thomas: I do love granola.
Andrew: You really might as well just eat three candy bars for breakfast.
Thomas: Oh, absolutely. It’s like 900 calories per cubic inch.
Andrew: It’s ridiculous! Yeah. But so good. Anyway, put a pin in that because that’s gonna be relevant in a minute.
Thomas: Granola is? Okay. [Laughs]
Thomas: I’ll put a pin in my granola!
Andrew: The 1924 Child Labor Amendment is going to be relevant in a minute.
Thomas: Oh, okay, sorry. Gotta get my priorities straight!
Andrew: Then you and I are going out for some tasty granola after we record this episode!
Thomas: [Laughs] Yeah! A little yogurt on it? Ah, so good!
Andrew: Okay. So by 1972 it had mostly been the practice that proposed Constitutional Amendments would have this sort of sunset clause in them, would say “within X period of time we propose that we count and see if 38 States decide to pass this particular proposed Constitutional Amendment.” The Equal Rights Amendment was hugely popular right out of the box, 24 States signed on in the first year, and by 1978 it was up to 35 States.
Thomas: Almost there!
Andrew: It certainly looked like, yeah, in the next elections that you would get across the finish line. So in 1978 with the deadline being next year, Congress extended the deadline to June of 1982. Saying, “look, we’ve got three more States to go, we’re gonna extend the deadline out three years.”
Thomas: So I’m sure you’re gonna talk about this but sorry, I didn’t remember that they could set a deadline. Is that in the Constitution?
Andrew: [Laughs] Good question.
Andrew: Put a pin in that.
Thomas: We can put a pin in that, in my granola pin, my child labor pin. Got three pins. Okay.
Andrew: Right. But something happened in the late 1970s, that is when the religious right began to exert public influence over the Republican Party. Now it is not fair to say that that was when it started, it started decades earlier, their influence was always there, but really the kinds of evil organizations that are corrupting our politics today started to get off the ground in the late 1970s, rallied behind Ronald Reagan who was elected in a landslide in 1980 and then in the largest landslide in American history in 1984.
In particular, the person who torpedoed the Equal Rights Amendment, everybody agrees, was Phyllis Schlafly who went out and convinced women that this would be a terrible thing for them to do.
Andrew: I will point out, I grew up in the aftermath of this so, you know, we debated this in high school, in the late 80s. So I wasn’t there present at the time, but the arguments that were memorialized against the Equal Rights Amendment, the primary argument that I remember – again, not contemporaneous but nearly contemporaneous-
Andrew: Was “this will cause same sex bathrooms!”
Thomas: Like same-sex bathroom or-
Andrew: Uh, different sex. Sorry. I’m mixing up my bigotry here!
Andrew: This will mean women and men will be in the same bathroom together!
Andrew: Which, flash forward to 2020. That’s not even an “OK Boomer” moment.
Andrew: That’s OK Boomer’s great-great-grandfather. Seriously, I cannot recall-
Thomas: Conservatives are so terrified of the bathroom.
Thomas: What’re they doin’ in there?
Andrew: Well I think we know from Larry Craig what they are doing in there…
Andrew: So anyway, all of this religious right firestorm meant that despite extending the deadline no new States signed on from ’79 to ’82.
Andrew: Reagan was elected, the country swung to the right, and that was it! So okay, time period comes and goes.
Thomas: However in 1992 we-
Andrew: Oh we’re gonna get there!
Andrew: So we’ve got three pins already, I’m gonna give you a fourth and then some red wire to connect them all up à la A Beautiful Mind, but from 19-
Thomas: I ate one of the pins.
Thomas: It was the granola one! [Laughs]
Andrew: From 1972 to 1979 four States changed their minds.
Thomas: Oh jeez.
Andrew: And revoked their ratification.
Andrew: So Nebraska, they only took a year. All these States ratified in ’72, they were like super excited in 1972 and then had that hangover the next morning and were like “oh man, I did what?”
Thomas: Ah, I did some equality?! Ugh!
Andrew: Well wait until you hear the States. So Nebraska changed its mind a year later, Tennessee changed its mind in 1974, Idaho changed its mind in 1977, and Kentucky changed its mind in 1978. I wanna add to that a fifth State, this was yet another one. South Dakota ratified in 1973 but conditionally ratified the Equal Rights Amendment subject to a sunset clause that said “we revoke our ratification if it doesn’t pass by 1979.” So put all of that together and there are some super interesting legal questions.
Andrew: Imagine if three more States had signed on from 1979 to 1982. Would any of these revocations be valid? Would three States be enough to do that? That’s an interesting question, it’s one I’m gonna sort of answer. Add this on, suppose against all odds, instead of Reagan being elected in 1980, suppose Jimmy Carter was reelected in a landslide and the country lurched leftward and 8 more States signed on.
Andrew: So in other words, we made the whole revocation issue moot and instead there are now 46 States that are potentially on board and it’s still above 38 even if you give everybody credit for having revoked. Was the extension from ’79 to ’82, was that extension a valid act of Congress?
So that we don’t have to put a pin in it, I wanna explain the wrinkle to that one right away. While the original Articles passed the House and the Senate by a greater than 2/3 vote, that’s what the Constitution requires, the Amendment to extend the deadline only passed by a simple majority.
Thomas: Oooh, interesting.
Andrew: Right! So look, we can kind of consider that to be the law because-
Andrew: What it amended was the internal House procedures, not the part that’s going in the Constitution.
Thomas: Yeah, that sounds equivalent to when we’re doing impeachment talk and we’re like yes, the conviction needs to be 67 but you can change the rules with 51 or whatever.
Andrew: Exactly right! So you have all these unsettled questions and, as you might imagine, there was a lawsuit about it! A district court in Idaho said no, that entire extension period was completely invalid. As you might imagine, we were not about to let a district court in Idaho decide what the Constitution meant, so it went all the way up to the Supreme Court. Got to the Supreme Court by 1982 [Laughs]
Andrew: Which looked around and said well look! What we’re gonna do is we’re gonna vacate that opinion, and we’re gonna vacate that, by the way, on the Munsingwear doctrine.
Thomas: Wait vacate – sorry, they’re vacating the lower court opinion?
Andrew: Yeah, the Supreme Court said we’re getting rid of, we’re deleting, vacating, taking the District of Idaho district court opinion off the books, it doesn’t count.
Andrew: It’s not law. But not because we’re overturning it but because of the Munsingwear doctrine, which is a call back to episode 181, where we discussed at great length when a lower court opinion becomes moot due to a change in circumstances. That was World War II underwear and we had a lot of fun on that episode. So go back, listen to episode 181 if you haven’t been with us since episode 181.
That decision was called NOW, National Organization for Women v. Idaho, 340 U.S. 36, it’s a one-line opinion and it just says “because the decision is moot we vacate the lower court’s decision.” That’s it. So the Supreme Court essentially took the view of the deadline’s come and gone so we don’t have to figure out if the extension was valid or not, there’s nothing left to adjudicate here, so not an actual case or controversy, nothing for us to do, no reason to have this thing on the books so let’s get rid of the lower court opinion. That was the end of it … for about a decade.
Andrew: Then what happened was the 27th Amendment passed.
Andrew: We discussed that – boy I just did a callback to episode 181, we talked about the 27th Amendment in episode 11.
Thomas: I’ve got pins in places, I’ve got callbacks in every different which way. This is fun!
Andrew: [Laughs] So episode 11 we told the story of the 27th Amendment, go back and listen to that one, it’s a fun episode, I enjoyed it a lot. The 27th Amendment passed both houses of Congress in 1789 and was ratified-
Andrew: -by the 38th State in 1992.
Thomas: That’s a while.
Andrew: Yeah, a little bit. I can do the math. So soon after that people started saying hey, if we could resurrect this dumb amendment on constitutional Congressional pay 140 years later, the ERA was literally right at the finish line, let’s do that! Legal scholars started looking at whether it was possible to revive the Equal Rights Amendment.
At first you might say well, it’s got that time limit clause in it, but a bunch of people started writing law review articles, starting with Allison Held who wrote an article for the William & Mary Journal of Women and the Law in 1997 entitled “Why the ERA Remains Legally Viable and Properly Before the States.” Held’s argument was that the procedural clause is not the part that the States ratify and there’s absolutely nothing in the Constitution that entitles Congress via separation of powers to place limits-
Thomas: Set a limit! Okay.
Thomas: I was wondering if you were gonna answer. Yeah, I don’t remember any language, it seems weird that they would be able to do that.
Andrew: Yeah. Think about this from a rule of law perspective. None of us got to vote – let’s consider, for example, the enabling legislation that we talked about way back in the teens that gave Donald Trump the power to enact the Muslim ban.
Andrew: That thing was passed in the 1950s at the height of the red scare and Congress aid well we want the President to be able to exclude whole classes of aliens. 100% the motivation for that was we don’t want communist infiltrators washing up on our shores and taking over the government and forcing us all to eat kale or something, I dunno. I didn’t get a chance to vote on that 1950 law, [Laughing] nobody in our audience got a chance to vote on that-
But nevertheless, laws are valid even if they’re really, really old, even if they pass from generation to generation. If we believe that about the rule of law then we can also believe that prior ratifications are valid going forward into the future. There’s nothing inherent that says oh, no, I didn’t get a chance to vote on this before so it’s not good now, and the 27th Amendment seemed to put that to rest.
If what we’re doing is aggregating together a whole bunch of States from 1789 and a whole bunch of States from 1992, that seems nail in the coffin that Congressional actions endure over generations.
So after that Article was passed, essentially Held said look, all we need is three more States to ratify this and if three more States ratify it then this become an Amendment to the Constitution. Ultimately that took a while, we’ve talked about this. I love this story because we’ve talked about how this occurred in negative ways, for example, with the literature, the law reviews floating crazy theories about the 2nd Amendment that then percolate up through the ranks and become actual opinions 20 years later.
Andrew: Here’s an example of it happening on our side. Obscure, 1997 law review article, in 2017 Nevada passed the Equal Rights Amendment. It took about 20 years for it to sort of percolate up, and all of a sudden the State legislature in Nevada was like “yeah, that sounds great.” That was followed by Illinois and it was followed [Laughs] less than a month ago, January 15, 2020, by Virginia. That becomes the 38th State.
Having done all that run up we’re gonna get to the legal question.
Thomas: Alright, after this quick break!
[Commercial – lightstream.com/oa]
Is the ERA an Amendment?
Thomas: What’s the legal question, Andrew? So is it an Amendment?
Andrew: Yeah! Is it an Amendment? Right. The answer is, we dunno. [Laughs]
Thomas: [Laughs] I say yes, so… and I’m like 54% right on the bar exam.
Andrew: Well following Thomas’ Second Chance Law Firm there are two cases. It will not surprise you, one case says no, Congress can’t impose a time limit.
Andrew: Which would make Virginia’s ratification valid, and one case says yes, Congress can impose a time limit which would make it invalid. I’m gonna lay them both out for you and look, let’s try and set it aside because we all think that the Equal Rights Amendment would be a fine, worthy, meritorious addition to the Constitution of the United States, let’s try and make sure that we don’t use motivated reasoning to get there.
Dillon v. Gloss (says no)
The first case is from 1921, it’s a case called Dillon v. Gloss. It’s a fun case, it’s about a bootlegger! So it’s about the 18th Amendment which prohibited alcohol in the United States.
Andrew: So the petitioner in that case was arrested for bootlegging under a statute that says it’s illegal to have and distribute alcohol that passed and the statute says “this statute will go into effect should the 18th Amendment get passed, one year after that.” Okay?
Andrew: That’s also gonna be important. Then the 18th Amendment passes and so the law goes into effect and he’s arrested on the first day that the law goes into effect. So he then petitions the Supreme Court and he makes two arguments. He says look, the 18th Amendment was invalid as a means of amending the Constitution because the 18th Amendment had a time limit on it. The resolution that was passed out of Congress said it must pass within 7 years, Congress didn’t have the power to stick that 7 year time window on it, so the whole thing should be considered null and void and it’s a bad court thingy and the 18th Amendment never happened.
Andrew: The Supreme Court, as you might imagine since the 18th Amendment-
Thomas: Since the 18th Amendment happened.
Andrew: -was not repealed by the Supreme Court, rejected that argument. So in rejecting that argument the Supreme Court said yeah, look, time limits are fine. The important thing, though – and I love this as a little bit of a legal education and sidebar. That holding is then technically dicta. Approving an Amendment that passed with a time limit is not the same as striking one down because it’s outside the time limit.
Andrew: In other words you could say that the 18th Amendment shouldn’t have had that 7 year time limit on it, but since 38 States ratified the 18th Amendment within a year and a half it really doesn’t matter. The 7 years could have been 7 thousand years. It passed in a year and a half so whether it had a time limit or not it wouldn’t have mattered.
When a court’s opinion speaks to the subject matter, or speaks to something collateral to the subject matter but is not essential for the outcome, that’s how we call it dicta. Some dicta is better than other dicta! [Laughs]
Thomas: [Laughs] Yeah, Mike dicta, for example?
Andrew: [Laughing] Yeah, Mike Dicta, exactly! So that is the argument for the ERA, Virginia’s ratification is no good. I also wanna point out a crucial aspect of the Dillon holding has to do with this, I just love this crazy procedural aspect. So the 38th State ratified the 18th Amendment on January 16th, 1919, but the National Archivist and the U.S. Secretary of State did not proclaim that the 18th Amendment had been ratified until January 29th, 1919. Again, remember this is 1919 so it’s traveling via whatever, I guess-
Thomas: Plus they had to get a bunch of calligraphers to draw it in.
Andrew: [Laughs] 1919, it’s not 1419, but still!
Andrew: As you might imagine, remember I told you that the law under which Dillon was charged took place a year after ratification? He was, of course, arrested on January 17th, 1920.
Andrew: So Dillon’s fallback argument was okay-
Thomas: A little early.
Andrew: Yeah, if the 18th Amendment is good, and his lawyer had to be telling him look, the odds that the Supreme Court is gonna strike down the 18th Amendment are pretty low, buddy.
Andrew: But he still had an argument that said this wasn’t officially enrolled in the Constitution until January 29th, 1919, which means that law doesn’t get to take effect until January 29th, 1920.
Thomas: Seems right to me.
Andrew: Well, not to the Supreme Court.
Andrew: The Supreme Court said that the Secretary of State did not proclaim its ratification until January 29th is not material, for it is the date of consummation and not the date on which it is proclaimed, which controls.
Thomas: Like somebody slept with it?
Andrew: [Laughs] Consummation there meaning the ratification by the 38th State. Here’s what that means and why it is significant. In the pending litigation, and we’ll talk about the litigation in a minute. If ultimately the Supreme Court rules that Virginia’s ratification was valid then the Equal Rights Amendment will have taken effect as of January 15th, 2020.
Andrew: It will not matter because look, the National Archivist has not said that the criteria’s been met, it has not been enrolled and recognized as the 28th Amendment to the Constitution and the States of Virginia, Illinois, and Nevada have sued in federal court for a declaratory judgment and an affirmative injunction requiring the archivist to do that. So that’s the pending lawsuit and the question is, are they gonna win? I just gave you the argument for why they should lose, Dillon v. Gloss.
Coleman v. Miller (says yes)
Here’s the argument for why they should win. It is a 1939 case called Coleman v. Miller. In that case the Supreme Court was asked directly. [Laughs] This involved, if you wanna go back and pull out that pin, the Child Labor Amendment.
Andrew: So what happened was, it’s 1938, that Child Labor Amendment had no date on it and had been sitting around for 14 years, and Kansas decided to go to the Supreme Court and say “okay, look, we really, really want our kids to work in the corn mines here.”
Andrew: So we want you, Supreme Court, to declare that whole Child Labor Amendment thing, that’s not good law. Too much time has passed.
Thomas: Wait, it wasn’t ratified anyway, right?
Andrew: Yeah it wasn’t. What they wanted to do is they wanted to foreclose-
Andrew: They wanted to say we can’t have this just sitting out here open forever.
Thomas: Ah. Like the Sword of Damocles hanging over our child-
Andrew: [Laughs] Over our child labor heads, exactly!
Thomas: -employing heads! Yeah.
Andrew: Exactly right. Tell us that that’s invalid because, you know, a reasonable period of time has passed. The Supreme Court, 7-2 said Oooh! Nooo. We are not getting into this, it is a nonjusticiable political question-
Andrew: -as to whether an Amendment passes or not. We’re not gonna say anything about it. We can’t say whether there’s a time limit, we can’t say what the criteria – that’s not up to us. That’s up to the Congress, that’s up to the State legislatures. We’re not a part of this.
Thomas: That doesn’t … seem right to me. What?
Andrew: The two votes in dissent cited to Dillon. They said uh, look, we’ve already said it’s okay for them to set time limits, but 7 votes at the Supreme Court level said “nope!” Time limits on Constitutional Amendments, not a question we can answer as a Supreme Court. So there’s kind of a double-bind.
Thomas: I disagree…
Thomas: What are we paying you for? That’s what you’re supposed to do!
Andrew: That’s why I love this case, because with the asterisk of the question of revocation, ultimately this is going to put the current conservative Supreme Court and any conservative jurors on route to the Supreme Court in a double bind. Because if you assume that outcome-determinative judges do not want the Equal Rights Amendment to be valid, the only way for that to be the case is to say okay, we were wrong in Coleman v. Miller, because that post-dates Dillon v. Gloss by 17 years, and indeed, determining whether a Constitutional Amendment has a time limit on it or not is not a nonjusticiable political question, it’s the kind of thing we should do! We have to step in in order to adjudicate this problem because no one else will.
Notice that that will be a tremendously countervailing argument to this court’s otherwise insane extension of the political question doctrine. The same case – that’s going to then set the boundary. This court has said determining gerrymandering is a nonjusticiable political question, that’s us overstepping our bounds. It is not tenable to say, on the one hand – there is zero sensible constitutional analysis that would enable you to say “we lack the power to determine whether a congressional district is gerrymandered or not, but we have the power to determine whether a State legislature and whether the Congress can put a time limit on a Constitutional Amendment.” Those positions are 100% in tension.
So the way I look at it, the Supreme Court has a heads we win, tails you lose situation going if you’re on the progressive side. They can either hold that the Equal Rights Amendment was validly added to the Constitution by declining to get into the political question and thus maintain its political question doctrine, or they can strike down the ERA but hand us a victory in terms of curtailing what is otherwise a runaway train on declaring valid, crucial separation of powers issues to be beyond the power of the Supreme Court.
I’m feeling good about this.
Thomas: How is it a separation of powers issue?
Thomas: It’s the power of the Constitution versus whether or not Congress can do something that the Constitution didn’t say. Isn’t that literally exactly what the Supreme Court is supposed to do?
Thomas: It’s not like the President said one thing and Congress said the other.
Andrew: Yeah but what this is, this is Congress saying that we were given the power to pass Constitutional Amendments, the courts have no power to pass Constitutional Amendments.
Andrew: And we think that power means we can do X. The question is can the courts come in and tell Congress that their interpretation of that power is wrong?
Thomas: Okay but isn’t that exactly what they do with laws? The Supreme Court doesn’t have the power to pass laws.
Thomas: But Congress does.
Thomas: And if they think they have the power to pass X law, which is totally unconstitutional, I feel like we’re all comfortable with the Supreme Court saying that’s totally unconstitutional. It happens all the time.
Andrew: Right, right. But the Supreme Court has carved out an exception to that for things that it considers (quote) “political questions.” So to use an obvious example, the Supreme Court would not, and John Roberts has said as much (not that he needed to), intervene if – suppose we lived in an alternate universe in which the Republicans were not quislings and traitors and removed Donald Trump from office.
Andrew: Then Donald Trump, by and threw Alan Dershowitz and Jay Sekulow, moved, went to court, to get an injunction prohibiting the Senate from removing him from office and the grounds were Dershowitz’s argument that this did not constitute an impeachable offense, that neither Article I nor II stated an offense for which it counted as a high crime or misdemeanor under the Constitution.
The Supreme Court’s response to that would not have been “oh yes it does.” The Supreme Court’s response was “sorry, that’s a political question, we’re not getting involved here. This is a separation of powers issue, the Senate has the sole power to try cases of impeachment, the House has the sole power of impeachment, and we’re not gonna tell them that their judgment here is wrong. Ordinarily we do, we get to overturn bad laws, but here this is a fundamentally political question, we’re not gonna touch it. It’s not the kind of thing that we can resolve.” That’s the issue that’s at stake here.
Again, as in that case – by the way, I think that’s a valid application of the political question doctrine.
Thomas: Sure, but this doesn’t seem like it is to me.
Andrew: [Laughs] I think that has a lot of intuitive plausibility, but again I will point out that in my view, and I think it’s amply supported by the case law, the political question doctrine is much stronger in this case than it is in the case of political gerrymandering.
Andrew: Here at least you have a Constitutional provision that appears to be self-executing. So you can say okay, this seems to be us overstepping our bounds, whereas maintaining the integrity of election law is the kind of thing the Supreme Court does all the time! That’s where I come down in terms of looking at the dilemma in which the Supreme Court is likely to find itself.
To bracket parenthetically, the revocation issue does not change the dynamics of that. In other words, either the court can say the revocations are valid or they’re not and to say that the revocations are valid means that it is a justiciable question, it’s not a nonjusticiable political questions. To say that the revocations were invalid would mean that the ERA passes, so it’s the same fundamental underlying dynamics as to what’s gonna happen. So this lawsuit is gonna be super-duper interesting.
I have one last thing which is of course the White House Office of Legal Counsel – White House appointed DOJ Office of Legal Counsel has issued an opinion that makes the case for why the ratifications are invalid, the post-2017 ratifications are invalid, much worse than we just did. [Laughs]
Andrew: It literally just sort of cites to Dillon and then makes some really bad arguments trying to distinguish Coleman v. Miller and then there’s like 11 pages of framers intent nonsense. But remember, OLC opinions are just pieces of paper, they are not binding in any way whatsoever. I will link that in the show notes as well, but this is a question nobody knows the answer to and I’m very, very excited because of the reasons we’ve described, so there you go!
Would the ERA change anything?
Thomas: Wow, we do need to get to baseball law but I did wanna ask if you wanted to opine about the Amendment itself because I don’t know a ton about this but isn’t there some question as to whether this really does anything? Because it should already be kinda how the law is anyway. Would this change anything or is this just a really good moral statement – that should be part of our Constitution, don’t get me wrong, but would this be mainly a moral statement or would it actually have a tangible effect on things?
Andrew: Yeah, so two things. Number one, as I emphasized at the beginning of the segment, while there are, for example the Equal Rights Act of 1964, while there are individual statutes that operate in some ways that include women as a protected class, this would change the baseline analysis in the absence of a statute.
For example, Title VII applies in housing and public accommodations, but it doesn’t apply in other situations, and the baseline legal analysis under the 14th Amendment applies the standard of intermediate scrutiny rather than a standard of strict scrutiny. So strict scrutiny you have to use the least restrictive means possible that are narrowly tailored to achieve a fundamental governmental interest in order to discriminate on the basis of race, for example.
The practical upshot of that is if a law is subject to strict scrutiny it will almost always fail. In fact, I can’t think of off the top of my head a single case applying strict scrutiny that nevertheless held that discrimination to be valid.
Intermediate scrutiny is what it says. Laws that are administered, that are reviewed for their constitutionality on the intermediate scrutiny standard have a lower threshold. They do not have to be the least restrictive means, you just have to have a rational relationship between the means used and the interest at stake. So plenty of laws that differentiate between the sexes – again, I’m using that as that phrase has been used in the case law, I think everyone knows our position on the show. But those cases, to give an obvious example, challenges to the compulsory draft and to selective service as being a violation of the 14th Amendment, as discriminating on the basis of sex, have been rejected whereas if the draft said “only African Americans will be drafted and white people won’t be,” that would fail strict scrutiny. Make sense?
Andrew: So, yes. Point number one is absolutely this will make a real difference in terms of the baseline analysis that’s used to evaluate the constitutionality of laws.
Number two is remember that we have – and again we’re almost certainly gonna get terrible Supreme Court law out of the Zarda / Hively decisions that are pending before the Supreme Court. But again, this Supreme Court isn’t gonna be there forever and ultimately the argument that on the basis of sex – sorry, on account of sex, which is how the ERA is structured and also how Title VII of the Civil Rights Act of 1964 is structured, that discrimination on the basis of sexual orientation and gender identity is discrimination on account of sex. The arguments for that are so good that I think it would also have that effect.
We’re talking in a much lengthier time frame. I have no illusions that this Supreme Court is gonna affirm in Zarda and Hively, but again the moral arch of the universe is long and bends towards justice.
Thomas: No it doesn’t.
Andrew: I still believe that.
Thomas: It bends toward where we bend it, and we’ll see.
Andrew: Well, we’ll see, but um-
Thomas: Bend it like Beckham, or …
Thomas: So more States ratifying wouldn’t really help this because the main question is whether or not after the deadline matters?
Andrew: Yup, that’s exactly right.
Thomas: Oh, okay. I was gonna say, I was looking at the map and there’s some States that have ratified it in one house but not the other. Those’d be the easiest targets.
Andrew: Yeah, low hanging fruit.
Thomas: I guess it’s not gonna really matter.
Thomas: Because it all depends on if the deadline matters. Okay, well, we need to take a quick break and then hopefully have time for baseball law.
[Commercial – ziprecruiter.com/oa]
Thomas: Alright Andrew, can we do baseball law? Do we have time?
Andrew: Absolutely. Oh man!
Thomas: We may have to go a little long-
Andrew: For baseball? It’s worth it.
Thomas: Is it? No, for this one yes, let’s do it! Okay, cheating, Houston-cheater Astros. I don’t know what your angle is gonna be on this, I’m very curious.
Andrew: [Laughs] So a couple of different things here. Number one, I love – there’s so much that I love about this story, just as a very, very brave – for those who maybe didn’t follow a lot of baseball and are blissfully unaware of this, the Houston Astros on the advice of several higher up decision makers including, as Major League Baseball found, their general manager, decided to use a camera installed in center field that was trained on home plate to zoom all the way in from 400 feet away to home plate because super great cameras are super cheap now-
Thomas: Well what – sorry, I thought it was due to the new replay system because you can do challenges and stuff. I thought they were using those cameras, right? Or not.
Andrew: So it’s the same camera.
Thomas: But I just mean it wasn’t set up, it was set up because of the new – my understanding was, and you can tell me if I’m wrong, it was because of the new review system that they’re doing.
Thomas: Because they do that in-
Andrew: I do not mean to suggest that the camera was installed solely for this purpose.
Thomas: It sounded like you said that, so I’m just clarifying.
Andrew: Sorry. So they commandeered the camera in center field, which has valid purposes, and ran the feed back into the clubhouse. If you’ve never played or seen a baseball game, the way in which it works is each side, the visitors and the home team, have their own clubhouse which is under the field, and then there’s a ramp or a set of steps up and then there is the dugout where the players will sit, mill about, that has bats and helmets and stuff in it where you look over and you see all the players, then 90 feet away from that is home plate.
What Houston did was set up a giant TV right at the base of the stairs in the home dugout and employed a person, because there’s also a limit to how many- There are two important rules here. Number one, there’s a limit to how many people you can have as coaches on the field at any one time, so you couldn’t just have 30 people wandering in and out of the dugout. You are limited to the folks who are dressed in uniform that is mandated with a certain number of coaches that can be on the field at any one time, so you couldn’t just take an intern and give ‘em number 138 and have them run back and forth to the dugout. This has to be done outside the dugout, but was literally done four feet away by sticking this huge camera up there.
The second thing is that electronic devices are prohibited on the playing field in baseball. Unlike when you watch football, you see the assistant coaches over there-
Andrew: They have their Surface Pros and everybody’s wearing a headset and all that. Baseball’s different, in Baseball you can’t have any kind of technological item on the field. In fact I’m gonna read the specific provision to you because it’s gonna be important.
So [Laughing] what they did was stuck a big TV, stuck an intern watching the TV, and then that intern did a single thing. Usually it was binary, occasionally it was a trinary approach, but basically there was a signal for whether the pitch was going to be a fast ball or whether the pitch was going to be a breaking ball of some sort. As somebody who’s played and coached a lot of baseball, that is a tremendous piece of information.
Andrew: Because even if – so then [Laughs] I should add the initial communications. The primary method of signaling was-
Thomas: Uch. [Sighs]
Andrew: That dude would then take a baseball bat and smack it into a metal trashcan.
Thomas: This drives me nuts. You can look at the pictures of this, and there are so many people – I know, we’ll get to it, but people were like “what’s the big deal” or “this is just part of the game” or whatever. I’m looking at the picture right now of the little cheating cheater station they have set up where a person’s job is to sit there, steal the signs, and bang a trashcan so that they can hear it, and then they were very careful to break down the area right after the game so that there’s – but there still was here and there little pictures where the TV cameras caught the players walking down the hall or whatever, and you can see the station where it was. There is a shot of the guy breaking it down.
Obviously, look. If you’re not someone who knows anything about this, and I’m not a baseball expert or anything, it should tell you all you need to know that the Astros had a station set up and broke it down very quickly and carefully. They know they’re cheating, and we should take their word for it. They know they’re cheating.
Andrew: Yeah. [Laughs] Absolutely! This follows the Donald Trump rule of there is obvious cognizance of guilt.
Thomas: Mens rea, would you say?
Andrew: I think that’s exactly right. So I wanna emphasize a couple of things, and various former professional ball players have gotten on to say this. For example, every ball player that was asked, a pitcher, would you rather face a ball player who’s on steroids or would you rather face somebody who knows whether you’re about to throw a fast ball or a breaking ball, uniformly it’s the former.
Andrew: I can testify as somebody who threw an awful lot of curveballs, and my son who threw an awful lot of off speed pitches, you can get somebody out with deception who’s twice as big as you.
Andrew: But once you miss on deception, you know, you’re toast.
Thomas: Then [Player Name] is gonna hit a home run on you, you know?
Andrew: Yeah! [Laughs] And in fact, there are a great many examples that we could use from the Dodgers, but because I don’t care about the Dodgers, I’m a Tampa Bay Rays fan, I’m going to use the Tampa Bay Rays as an example.
Andrew: Who went to a five game playoff, this was the first round of the wildcard, and the Tampa Bay Rays – so it’s a best of five. They were tied two games apiece and in game number five they sent out their starting pitcher, Tyler Glasnow. Tyler Glasnow was limited to 12 starts due to an injury, but compiled a 1.78 ERA in those 12 starts over 60 innings, which, by the way would have led the American League if he’d qualified. Number of innings, he was way short of the innings qualification because he’d been hurt. But I wanna point out, would have been arguably the best pitcher in the league if he were not hurt. Now the post-season is a slightly different beast.
But the Astros tattooed him for 7 runs in 3 and two-thirds innings in game five such that Tyler Glasnow was convinced, I’m gonna include this link, it’s a CBS Sports link, went out afterwards and apologized to Tampa Bay Fans and said, yeah, it’s clear that I must have had a mechanical flaw where I was tipping my pitches.
Thomas: Yeah. Same thing happened to some Dodgers pitchers where they thought that.
Andrew: Yeah, exactly right. So in other words, this is something that when it happens it’s so bad that it causes the pitcher to go back and look at footage of his own performance and say “oh, well there must be something.”
Again, this happens because you throw a fastball, you hold the baseball with a different grip than when you throw a breaking ball, so you put your fingers in a different position and, you know, you get used to as a baseball player, your default positioning of the ball in your glove is a foreseen fastball grip. That’s what you throw with when you’re throwing around the infield because that has the least amount of movement.
Andrew: So if you’re just trying to throw to your own side you don’t wanna accidentally-
Thomas: You don’t want the ball to move.
Thomas: Breaking ball.
Andrew: You don’t want your shortstop to pick up the ball and then throw a curveball to first base. That would be really, really bad.
Andrew: So it takes a little extra to switch the ball into your curveball, your change up, your slider grip, when you’re holding the ball. Pitchers do sometimes have tells, and those tells are called tipping their pitches.
By the way, historically [Laughs] when you look at it, the same article, in talking about how Houston was just masterfully picking up on Tyler Glasnow having tipped its pitches, CBS writes (before this scandal broke) “it was Houston that also discovered a tell in Yu Darvish’s delivery during the 2017 World Series.”
Thomas: Oh, weird!
Andrew: “At the time, the assumption was that Carlos Beltran – who just this season advised James Paxton that he was tipping – was behind the revelation.” Carlos Beltran, by the way, named in the MLB report as one of the architects of this scheme and was hired by the New York Mets to be their manager and then fired.
“It is worth noting for posterity’s sake, however, that last postseason Cleveland was said to have warned the Boston Red Sox about the Astros potentially recording their dugout, according to a report from Jeff Passan, who is now with ESPN.”
Thomas: Drives me nuts. While we’re on that topic, quickly, let me give those splits that I referenced. I actually undersold it. Now I know it’s a small sample size-
Thomas: It’s not as if this is impossible to happen without cheating, I wouldn’t say that. But with all the evidence it becomes very, very weird. Here is Clayton Kershaw on the 2017 World Series, at the Dodgers stadium, 11 innings, 1 earned run, 3 walks, 15 strikeouts, .82 ERA.
Andrew: That’s good.
Thomas: At Minute Maid Park – that’s very good. At Minute Maid Park, 4.2 innings pitched, 6 earned runs, 3 walks, 2 strikeouts, 6.5 earned-run-average. So you went from a .82 to a 6.5.
Thomas: Obviously he didn’t pitch many innings because he got chased out from, you know, giving up a bunch of home runs and stuff.
Andrew: For our non-sports fans who are still listening, we’re gonna get into the law and some of the fun stuff, hopefully your patience will be rewarded. 087 is twice as good as the best pitcher in the league at any given time and 650 is about on a par with-
Thomas: You’re out of the League.
Andrew: Yeah, the worst pitcher in baseball at any given time. So, yeah, it is literally turning – and again Clayton Kershaw particularly in 2017, widely regarded as the best pitcher in baseball.
Thomas: Oh, his regular season was insane in 2017.
Andrew: So, uh-
Thomas: And I won’t go into it, but this is particularly depressing for me because there has always been a question of him performing in the post-season and kind of choking and it just sucks that his legacy could be totally different if it weren’t ruined by this cheating. The way you look at Clayton Kershaw could be 1 million percent different. By the way, like maybe the best pitcher ever for his regular season stats, never had a championship, yet, but you know it’s still possible. But this could drastically affect his entire legacy. It’s just such a bummer as a Dodgers fan.
Andrew: It absolutely does. I will tell you that among non-Dodgers baseball fans that there’s sort of a perception of oh, yeah, Kershaw really, really good pitcher. Can’t win the big game.
Andrew: And 100%, that perception is tainted – now look, there are other bad games.
Thomas: Yeah, no, it’s not 100%, but it’s enough that it would be very different.
Andrew: The 100% is that 100% he’s affected by that.
Andrew: It contributes to that overall narrative.
Thomas: It’s just so hard because this is such a feast of bad arguments because maybe baseball players aren’t – you know, as evidence of why they’re not great at logic they have the most superstition of any sport.
Thomas: Mainly they have a lot of time to sit there and do nothing, but they’re not often the greatest reasoners and so there’s so many bad arguments. They find some people are like “I wouldn’t want to know the pitch ahead of time because that would, then I’d be too eager.” It’s like okay, well clearly the Astros wanted to know because they set up a cheating station and a system to alert their players!
So sure, maybe you can find some player quoted from 1962 who said they wouldn’t wanna know the sign sealing which is one of the things I saw in an article. Great. Well the Astros wanted to know, and they set up a cheating station to want to know! That’s all you need to know, you don’t need to know whether or not it exactly made everybody better. First off, the evidence says it did, but also they clearly thought it gave them an advantage.
Andrew: I’m going to, because I am just so proud of my son and I love this story. When Alex was 12 we moved from – this is [Laughing] this is right when my life changed quite a bit and I gave up the big firm job and moved from my big house in Montgomery County, Maryland, to my little duplex that I currently inhabit in Baltimore County, Maryland. One of the things that was super sad for Alex was that he had just been accepted on a travel team based in Montgomery County that played in a greater Washington D.C. area league, so their regular season games were in Southern Maryland, D.C. suburbs, D.C., and Northern Virginia.
Those who are familiar with the East Coast will know that for me to get Alex from Baltimore to a 5:30 game in Northern Virginia would require me to leave a week and a half beforehand.
Andrew: So I had to tell him, and he was super excited about this team and he was gonna be their starting 2nd baseman, and we came up here so we’re trying to scramble to find a baseball team. He was taken on, despite being small for a 12 year old, about to turn 13, he was taken on a 16-U team and became their 2nd baseman. As you might imagine, and by the way 12-13, he was moving up to the Major League sized diamonds, that’s when you move up. So as you imagine, did not hit real well against a lot of 16 year-old pitchers, drew a bunch of walks which was good.
But there was one game that we were at and the other team was just really mowing down our guys for the first four innings until – it wasn’t me, I deserve no credit for this, but one of our coaches noticed when this pitcher was about to throw his curveball. This pitcher was tall and left-handed and threw about 75 miles an hour, which-
Thomas: Jeez, that’s a lot for a kid.
Andrew: Which is a ton for a kid, and it’s a super ton when you’re a tiny little 12 year old. So Alex fell behind 02 and then the coach gave the sign, which was just coughing, right? [Laughs] He was like “I’m gonna cough loudly when he’s about to throw his curveball,” so this kid threw his curveball and Alex smacked it into left field and it rolled out one for double.
Andrew: It was the biggest hit he had all year and put us up in that game. That’s the diff- this kid had zero, if he’d just thrown another, the third 75 mile an hour fastball Alex would’ve swung through it because he couldn’t hit it at that time. Knowing the curveball was coming is just such an unbelievable advantage.
Andrew: Anyway, had to tell that. Love my son.
Thomas: It’s hard to [Sighs] It’s hard if people aren’t familiar. That’s not cheating, because – it’s like the difference between, maybe if – I dunno, football? I’m trying to think what would be the best analogy for people who aren’t baseball fans, but the difference between being on the field as middle linebacker and seeing, like okay, when they do a play action the quarterback tends to do such-and-such.
Thomas: I’m pretty sure – the difference between that and then breaking into the Watergate hotel and stealing the game plan before the game or something like that.
Thomas: It’s that kind of difference. Stealing the play calling, that’s cheating.
Andrew: And that is the perfect transition to the legal aspect here.
Andrew: Which is-
Thomas: At long last, sorry! [Laughs]
Andrew: Because a lot of folks have said, and the people defending the Astros have been like “well you know, the runner at 2nd base since time immemorial has tried to look in and steal signs.”
Andrew: And all that is fine.
Thomas: When there’s a runner on 2nd–
Thomas: The pitcher and the catcher act differently, they do different stuff, they know- Sorry, it drives me crazy.
Andrew: But again, look, all of those things, if you notice it as a coach, you notice it as a player, if you say hey, this kid always throws his curveball 0 and 2, there’s nothing wrong about that, that is perfectly fine.
Andrew: So then the question becomes what exactly is wrong with what the Astros did here? And is it actionable? Let me explain, because this is I think the thing that people don’t really realize. What the Astros did wrong here is they violated an explicit regulation promulgated by Major League Baseball. In order to understand that, you have to understand that MLB operates through multiple overlapping layers of rules.
Andrew: So there are really four things that happen here. The first is, there are rules. Those you can just Google, you get on right now, I’ll link it in the show notes, and you can Google “MLB Rules” and you will quickly see that that is just stuff like rules from the dawn of time, right?
Thomas: Yeah, first base will be-
Andrew: Will be 90 feet away, the bat shall be a smooth round stick not more than 2.61 inches in diameter.
Andrew: And not more than 42 inches in length. It is the basic rules for the game. Okay, so that doesn’t help. So then in addition to the rules you have a constitution that was not – the first MLB constitution was written in 1921, it was not made public until the 2000s. They kept that private for a while. The constitution governs the relationship by and among the Major League Baseball, the individual baseball clubs, and the players.
There is very little in the constitution that also applies to this. The closest is article 2, section 4 which gives the commissioner the authority to act on any matter that involves the integrity of or public confidence in the national game of baseball. Okay, but what does that mean? That seems to not answer the question, right? How is this different from just your guy on 2nd noticing that the pitcher scoots over on the rubber?
The answer to that is interpreting the constitution are two more layers of documents. [Laughs]
Andrew: It’s kinda like lawyers got involved in this, huh? Right?
Andrew: Those are regulations, which are nonpublic, and internal memoranda which are super-duper nonpublic.
Andrew: The regulations interpret the constitution, the rules, the aspects of the players contracts, all of that. As it turns out, I have accesss to the regulations.
Andrew: Let me give you an example of how the regulations interpret the constitution, and I cannot quote directly from any regulation that has not been quoted in public by Major League Baseball, because of the reasons for which I have access to these regulations. But article 8, section 4 of the constitution, which is public, you can go look up, I’ll link in the show notes, says that the rights privileges and other property rights of a major league club may be terminated if the club shall do any of the following.
One of the things is fail to suspend immediately any player, employee, or officer who shall be proved guilty of offering, agreeing, conspiring or attempting to lose any such game, or of being interested in any pool or wager on any game in which a club participates. I’ve railed about Pete Rose on this show before, but we know that that means you can’t be Pete Rose. We know that means you cannot have an interest in the game in which you are playing, you can’t be interested in any pool or wager on any game in which a club participates.
That means, for you Pete Rose defenders, and bring on the hate mail because you guys are wrong on this.
Andrew: You can’t bet on your team to win. It’s super-duper obvious why you don’t want the manager of a team betting on his team to win because you don’t want him to have an interest in particularly winning some games but not others. You want a uniformity of effort across all the games and anybody who’s ever watched more than a single game of baseball knows that the difference between the way you manage game 7 of the world series-
Andrew: And the way you manage a game in July.
Thomas: Game 143, yeah.
Andrew: Is super different! You don’t blow through all of your relievers and starters, you don’t risk injury, you do if all of a sudden now you have $10,000 on-
Thomas: This game matters a lot more, yeah.
Andrew: So Pete Rose, terrible horrible cheater, way worse than anybody else ever in the sport of baseball.
Thomas: I dunno, the Astros are really-
Thomas: I’ll let that go.
Andrew: So now let me ask the question. The constitution, last amended March of 2008, so 12 years ago. Does that article 8, section 4, prohibit baseball players from, let’s say, having a FanDuel account. FanDuel has only come about in the last couple of years, there are lots of reasons to think maybe it shouldn’t. It’s a FanDuel, you stick it on your phone-
Thomas: It’s individual players. I guess you could still be betting on yourself.
Andrew: Who know?
Thomas: I guess you’d – I mean, yeah, it’s hard. You don’t really have the decision, you’re not managing the game so you’re always gonna be try- you would assume you’re always trying to do your best. Yeah, I dunno.
Andrew: Yeah. So the answer is from just reading the constitution, you don’t know, that’s what the regs do.
Thomas: Oh, I see.
Andrew: The regulations which are updated frequently interpret the kind of broad provisions in the MLB constitution and say exactly what counts as gambling. So as it turns out, again I can’t quote this to you, but as it turns out the regulations prohibit FanDuel.
Thomas: Makes sense.
Andrew: Clear ruling on the general principle.
Thomas: Wait, can they do FanDuel for football? Or just for baseball?
Andrew: [Laughs] Yeah, I can’t answer that.
Thomas: Jut curious.
Andrew: Now we get to Major League Baseball regulation 1-1.
Thomas: On being a clownhorning cheater!
Andrew: On being a clownhorning-
Thomas: No, you’re not allowed to is what it says.
Andrew: It says, and this I can read because this was quoted at length in MLB’s internal investigation to the Houston Astros. It says (quote) “electronic equipment, including game feeds in the club replay room and/or video room may never be used during a game for the purpose of stealing the opposing team’s signs.”
Thomas: What do you know? Never. It doesn’t say often not used, it said never!
Andrew: Oh it keeps going! “In this respect, MLB 1-1 expressly provides that (quote) ‘under no circumstance may electronic equipment or devices be used for the purpose of stealing signs or conveying other information designed to give a club a competitive advantage.’”
Thomas: It’s almost like that’s explicitly cheating?
Andrew: Uh, and then if those two sentence repeating themselves were not enough, in bold language, “to be clear, the use of any equipment in the clubhouse or in a club’s replay or video rooms to decode an opposing club’s signs during the game violates this regulation. Clubs and club employees who are found to have utilized equipment in the replay or video rooms for such purposes will be subject to discipline by the commissioner’s office.”
Thomas: I just wanna make absolutely sure, this isn’t after the fact, is it? Was this, these were already in place?
Andrew: Oh no! Yeah. This was in place.
Thomas: Just making totally sure.
Andrew: Yup. This was in place prior to 2017.
Andrew: This was cited in a memorandum by Major League Baseball in March of 2018 out to all clubs after there was an insinuation that the Red Sox had been stealing signs. Remember I told you that the memoranda are super-duper confidential?
Andrew: Yeah, this went around to all 30 teams and was like, hey look, just so we’re clear on this, because I like being clear, MLB regulation 1-1 [Laughs] says you can’t use electronic devices on the field. It was modified because the Red Sox had guys wearing Apple watches.
Andrew: So the predicate part of 1-1 says “may not use walkie talkies, mobile phones, smart watches, EG, Apple watches, laptop computers, tablets, or other communications in or near the dugout, in the bull pens, or on the playing field once batting practice has begun and not within 30 minutes of the start of the game.” That’s what the Houston Astros violated in connection with the sign stealing scandal.
Thomas: I cannot imagine being one of those players and being willing to take part in this. Your whole championship is bullshit now. It’s mind blowing to me.
Andrew: The hardest part is that MLB is trying to draw a line that is really, really difficult of a line to draw. That is that the discipline that was handed down that is in the description, then I’m gonna link the narrative investigation in the show notes. The discipline that was handed down was handed down to Jeff Luhnow, the general manager who’s been fired. To A.J. Hinch, the manager of the Astros, who has been fired. To Alex Cora who, at the time, was the bench coach for the Houston Astros. Was then hired by the Boston Red Sox and has been fired.
Andrew: Brandon Taubman, the assistant general manager who was fired by the Astros for unrelated reasons which are, oh boy, terrible and we don’t have time to get into those. And although there was no punishment handed out to Carlos Beltran, it described the role that then-player Carlos Beltran had in connection with the scandal. Beltran, who had just been hired by the Mets in this past offseason as their manager was then fired.
Interestingly enough, because of the looseness – and then the Astros were forced to pay the maximum fine that can be imposed by the commissioner’s office, which is $5 million, they will forfeit their first and second round selections in the MLB player’s draft for the next two years.
Thomas: So that’s the first thing that sounds like an actual consequence to me.
Andrew: Yup. I should add, the firing of all of those employees actually wound up hurting lots of other clubs because while the Astros GM got fired, for example, what the Astros did is went and hired the Rays vice president of player development.
Thomas: Poached other-
Andrew: And poached from other organizations. It really is-
Thomas: Plus the team that hired Beltran, they didn’t do anything wrong and now they have to find a new guy, right?
Andrew: Yeah, and the Mets still haven’t hired.
Andrew: Oh no, the Mets have, it is the Red Sox who we’re like a week from spring training and they don’t have a manager, which ordinarily if you don’t have a manager other teams will laugh at you. But yeah, to sort of go back to bringing this all together, number one the line that MLB is trying to draw is one that blames the Astros management but largely exonerates the players.
Again there is a one sentence reference that says, this is page two, “approximately two months into the 2017 season, a group of players, including Carlos Beltran, discussed that the team could improve on decoding opposing team’s signs and communicating those signs to the batter.” That’s the only sentence in the entire report that blames a player. That’s not a thorough investigation. We know the players that benefited from this because [Laughs] we can see Alex Bregman-
Thomas: Yeah, people have made super cuts on YouTube of you can hear the banging and then somebody hits a home run or whatever.
Andrew: Yeah, the crowdsourcing on this is truly one of the more amazing things.
Thomas: Some of it has been BS, by the way, not all of it is perfect, but enough of it is really good.
Andrew: So the very last thing I wanna say is, in terms of will there be extra external legal consequences for anybody involved? The answer to that very sadly is no.
Thomas: But for the steroid era wasn’t there Congressional hearings and stuff?
Thomas: I know that’s probably not going to happen but could it? Hypothetically?
Andrew: So the answer to that hypothetically is it could in the same way, but it won’t.
Andrew: Here’s why. The way in which Major League Baseball-
Thomas: McConnell! No. [Laughs]
Andrew: [Laughs] Right. The way in which Major League Baseball agreed to submit to a Congressional investigation has to do with the fact that Major League Baseball enjoys a non-statutory antitrust exemption that has been grandfathered into the law by a series of crazy court cases. It makes absolutely no sense whatsoever, I’m going to give a lecture on this that we’re gonna turn into an episode of the show, I’m speaking at the-
Thomas: More baseball law?
Andrew: I’m speaking at the University of Maryland at the end of the month.
Thomas: Well that’s fun!
Andrew: I’m doin’ a sportsball lecture. So it’s a super interesting provision, it’s really, really valuable to Major League Baseball so every time congress wants to investigate baseball what they say is “hey, we would like you voluntarily to comply with this Congressional investigation” and the threat is not like the threat of subpoena or holding them in contempt if they don’t show up. It’s the threat of “come on, if you don’t show up we’re gonna seriously talk about revoking your antitrust exemption,” and MLB says okay, well then we’ll show up and we’ll participate in the investigation.
So they could under the same theory, but at the end of the day what happened here is not, it’s not fraud, I’ve just seen so many really terrible takes on this. What happened is a violation of an explicit MLB regulation. It’s super-duper important within the context of the game, it is absolutely not actionable outside of the context of the game for the reasons we described. Because no court is going to parse – I don’t wanna say “no court,” I know an awful lot of judges who are baseball fans.
Andrew: But no court is going to come in and make the hard ruling when the easy ruling is right there as low hanging fruit, that what this is is a violation of the internal regulations of baseball but it’s not perpetrating a fraud on the fans, it’s not this that or the other thing.
Thomas: Perpetrated a fraud on me!
Andrew: Absolutely, it’s a fraud on Thomas!
Thomas: Dangit. I have standing.
Andrew: [Laughs] It is, I think you’re right to point out that it’s especially rough on Kershaw.
Andrew: But there you go!
Thomas: Drove all the way to game 7. [Sighs] There’s some evidence that they might have cheated not at home, but I guess I can’t say for sure whether or not they cheated at the game I was at, but uh, it sucked!
Thomas: They lost. Alright! We’re so over time, but you know, I enjoyed that.
Andrew: I enjoyed it too.
Thomas: I’m still mad, and the Astros forever get to be champions.
Andrew: Yeah, flags fly forever.
Thomas: But honestly – you know what? I’ve got a quick question for you because I genuinely wonder about this. Would you rather be, for example maybe like me who got to go see the Dodgers lose game 7, or would you rather have won and then have this come out and be like oh, we didn’t really win it was bullshit cheating. As a fan where would you rather be?
Andrew: So I think this is like the baseball equivalent of the “shame John Roberts” question.
Andrew: I think I go with I would rather the team cheat and find out about it afterwards because-
Thomas: Because you go to go through the enjoyment of a championship.
Andrew: Yeah! Exactly. There’s nothing – I will defend, you know, it was super exciting to watch the Rays knock off the Boston Red Sox in the ALCS in 2008 right before their only World Series championship and you could kinda tell. It went all 7 games, and the Rays were underdogs and this and that, and they got to the World Series and they were clearly tired and they lost to like a fairly crappy Phillies team. Oh man am I gonna get hate mail from Phillie listeners. Not a cra- a good Phillies team, I’m sorry, I’m a Rays fan, I take that back.
But to me, that 2008 ALCS felt like the World Series.
Andrew: I thought the Red Sox were definitely better than the Phillies and I loved watching the Rays take that down, but like, I gotta explain that here.
Thomas: But for me-
Andrew: Phillies fans still have the World Series championship, right? Rays don’t have that.
Thomas: Yeah. But on the other hand if you’re a big fan of a team and you find out that basically everybody on the team is a POS who was willing to go along with a cheating scheme? A, your World Series championship is not worth the paper that the trophy’s made out of, and B, you know that all your favorite players are assholes. You know they’re all just the worst. I guess that’s a slippery slope-
Thomas: Because often many of the athletes are terrible.
Andrew: How do you feel right when- like I love it when players on teams for which I root will come out and speak up for progressive social causes or whatever.
Thomas: Yeah, yeah.
Andrew: I’m like – god, who was that Nationals reliever that went and hugged Donald Trump?
Thomas: Oh gosh.
Andrew: Uck. Like, uck, I’m glad I’m not a Nationals fan-
Andrew: Because that would have just given me the ick factor all over.
Thomas: Alright, we are so over time.
Thomas: We’ve gotta thank our top patrons over on patron.com/law, we love you folks here we go. We’re gonna try to go fast.
[Patron Shout Outs]
Thomas: Ah! Alright, now it’s time to find out the thrilling conclusion of T3BE. Will the streak continue? By the way, if you ever find out that I’m cheating at T3BE that should completely undermine every feeling you have about me doing well.
Andrew: Yeah! It should.
Thomas: Because that’s how cheating works, but we don’t cheat, sanctity of the game. It’s probably why I’m at 54% not 75 or something.
Thomas: So let’s see how I did.
T3BE – Answer
Andrew: Alright Thomas, so this was a question about preserving objections. So before the close of evidence in a federal negligence trial defendant submitted a proposed jury instruction on contributory negligence. First important hint here is that it says federal negligence trial, so you know that this is going to be a question about the Federal Rules of Evidence.
Thomas: Oh. Sure. [Laughs]
Andrew: Before instructing the jury, the judge informed the parties of the instructions that she would give, which did not include the defendant’s proposed instruction but did include the court’s own instruction on contributory negligence. Neither party objected either then or after the judge had given the instructions. The jury returned a verdict for the plaintiff and the judge entered judgment on that verdict, then the defendant obviously wants to appeal on the ground that the jury should have been read the defendant’s proposed instruction on contributory negligence.
The question is, has the defendant preserved that issue for appeal? And your instinct was no, that the issue has not been preserved for appeal. You went back and forth, the best “yes” answer was C, that the defendant submitted a proposed instruction on contributory negligence. That is not enough to preserve an issue for appeal.
Andrew: So you are correct that it is a “no” answer. C is incorrect because the federal rules require you – and I said Federal Rules of Evidence, this is the Federal Rules of Civil Procedure, sorry, I should be clear on that as well.
Andrew: Federal negligence trial means it’s gonna be a question of the various federal rules, so Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, Federal Rules of Criminal Procedure. The Federal Rules of Civil Procedure require that your objection be timely raised and on the record (quote) “stating the grounds directly.”
Andrew: That is 51(c)(1), so just having made an instruction is not interpreted as having stated the grounds distinctly of your particular objection so it’s not preserved for the record.
Thomas: Now I’m worried about A and B! [Laughs]
Andrew: The difference between A and B is really a question of timing.
Andrew: That is, do you have to object when the judge says “no, I’m not giving you that objection,” or can you wait until the judge actually reads their proposed instruction. I’m here to tell you Thomas, the streak continues!
Thomas: Oh-ho-hoooooh! Yes!
Andrew: You must object at the time in order for it to be a timely objection.
Andrew: At the time that the court first informs the party that it will not give the proposed instruction.
Thomas: Okay, so I kinda accidentally got that right. I didn’t quite have the right logic, but I at least got the right-
Andrew: I think you were at least adjacent to the logic.
Thomas: I was most of the way there.
Andrew: You properly narrowed it down, as you do.
Andrew: And like I said, I always love it when you exclude – again you kind of hedged your bets by saying the C.
Thomas: I hedge my bets, but you know.
Andrew: But your first instinct was this is gonna be a “no” answer and you were right on that.
Andrew: Then you said well, it seems kinda weird to have the court give the instruction and then shout an “I object.” I’m not sure that that necessarily would be procedurally how it would come about, but I think that’s adjacent to know, when the court tells you, “Mr. Torrez we’re not gonna instruct the jury with your proposed instruction, we’re gonna give this one instead,” you then have to make a choice.
Andrew: I have literally had to make this choice. The court says “I’m not gonna give them this instruction, I’m gonna give them this one instead,” and you know, you’ve gotta decide is this materially different than the one that I want to give.
Thomas: Mm-hmm. And is it worth pissing off the judge maybe?
Andrew: Right, that is the other thing.
Andrew: Because your default is, well, so noted Your Honor but I object to the court giving out this instruction. That’s your default but you don’t wanna do that frivolously, you don’t wanna lose credibility with the judge, you don’t wanna come off like an A-hole, but you gotta make that choice. You’ve gotta make that decision now before you figure out that you lost.
Thomas: Mm-hmm. You can’t go, just in general you can’t be like “objection!” What? “To something you said four hours ago.”
Thomas: So it has to be pretty timely.
Andrew: Yup, exactly right.
Thomas: Okay, yeah.
Andrew: And that’s what timely means, that you can’t wait and see and go oh, we lost, it must’ve been that stupid instruction.
Thomas: Mm-hmm. Right.
Andrew: No, you’ve gotta say at the time “I think this is wrong as a matter of law.”
Thomas: Alright! [Sighs] Well as usual when I get something right it’s usually a little bit of skill and a little bit of luck! [Laughs]
Thomas: I fudged it a little bit on that. You know, I feel like that was somewhere in my mind and in my reasoning but I definitely didn’t say it, so I might’ve lucked on that last step. But the important thing is the streak continues, and now mathematically I’m probably at 60%, right?
Andrew: You are six in a row which ties your longest win streak since we started playing.
Thomas: Really? I thought I had like nine.
Andrew: Well maybe I’m wrong. Teresa will know. Teresa, let us know.
Thomas: Teresa, tell us.
Andrew: And you are up over 55%.
Andrew: But 55.2.
Thomas: Yeah, I was joking.
Andrew: So great work!
Thomas: 55.2, alright! There you have it! Do you believe in miracles? Alright, well, Andrew hop in your time machine and if anyone’s still listening [Laughing] after this long episode let ‘em know who this week’s big winner is.
Andrew: Yeah! This winner will go right here in our hundred-plus minute episode!
Andrew: Well Thomas, a lot of folks played along this week with T3BE. This week’s winner is LadyOtheFarm, that is @OtheFarm on Twitter who writes “The answer is B. When the judge informed the parties of her response and plan, that was the time to make any objections known.”
Short, succinct, to the point, correct. Great job! Everyone follow LadyOtheFarm, that is @OtheFarm on Twitter and congratulations on being this week’s winner!
Thomas: Alright! [Laughs] Thanks for listening everybody, we will see you for Rapid Response Friday!