Legal scholars have long loved to reference the baseball team’s penchant for losing. That trend can finally come to a close.
By Tom Jacobs
The Chicago Cubs celebrate defeating the Los Angeles Dodgers in game six of the National League Championship Series. (Photo: Jamie Squire/Getty Images)
In 1993, while profiling Hillary Clinton in Esquire magazine, Walter Shapiro wrote that the then-first lady “looks at being a Cubs fan as a metaphor for hopelessness.”
“I look at it as a metaphor for futility,” he added.
Shapiro is hardly alone. For decades, American writers searching for a colorful way to describe long-time haplessness have turned to Chicago’s National League baseball team. The fact that the Cubs are — for the first time since 1945 — the NL Champions (and playing the Cleveland Indians in the World Series) marks the end not only of an era, but also of a cliché.
The use of the Cubs as a metaphor in legal rulings was amusingly traced by Parker Potter Jr. in a 2006 article in the Pierce Law Review. He also examined references in such documents to the Boston Red Sox (another symbol of failure, until their 2004 World Series win) and the New York Yankees (which are usually used to denote long-running success).
For decades, American writers searching for a colorful way to describe long-time haplessness have turned to Chicago’s National League baseball team.
“Opinions referring to the Cubs tend to cluster in the Midwest,” he reports. “Cubs references appear in a U.S. Supreme Court opinion, two opinions from the federal courts of appeals, four federal district court opinions, and one intermediate state appellate court opinion.”
“The earliest and perhaps most colorful reference to the ineptitude of the Chicago Cubs came from the pen of Judge Shadur of the Northern District of Illinois,” Potter writes. He then quotes from the jurist’s opinion:
If lawsuits were decided as law school exam papers were graded, the result here would be the same as that predicted by the late sportswriter Warren Brown after watching the wartime Chicago Cubs and Detroit Tigers warm up for the 1945 World Series: Both sides would lose.
The clear implication is that, even in their last championship season prior to this year, the Cubs were pretty bad. In fairness, so was every other team, given that virtually every able-bodied American man was in the military. But other teams became better as their players got discharged. The Cubs, not so much.
Potter notes that, in a 1996 dissent in an employment discrimination case, a judge referred to the “perennially unsuccessful Cubs.” But the most biting reference to the team during that decade is found in a 1994 opinion in a contract cast, in which the jurist refused to award an unhappy plaintiff a refund.
“Consider … the purchaser of season tickets for a baseball team,” he wrote. “That the Chicago Cubs would turn out to be the doormat of the National League would not entitle the ticket holder to a refund for the remaining games, any more than the star tenor’s laryngitis entitles the operagoer to a refund when an understudy took over the role.”
That doormat even appeared on Capitol Hill. The late Justice Antonin Scalia provided the only Cubs reference Potter could find among Supreme Court decisions. In a 1994 case “which involved an employee’s claim that her termination violated the First Amendment, Justice Scalia noted, in a concurring opinion, that under Justice [Sandra Day] O’Connor’s analysis for the majority, ‘If (the plaintiff) had not been demeaning her superiors, but had been complaining about the perennial end-of-season slump of the Chicago Cubs, her dismissal, erroneous as it was, would have been perfectly OK.’”
The point he’s making isn’t entirely clear from that excerpt, but the gratuitous reference to the Cubs is vintage stinging Scalia. Given the team’s breakthrough this season, our finest legal minds will have to find some other symbol of long-running futility. Applications are now being accepted.
