January 22nd, 2021

Freedom’s Just Another Word to …?

Down in D.C. at the inaguration, poet Amanda Gorman rocketed to fame with her poem at the close. And deservedly so.

There is poetry, someplace, within all of us. Some just let it out better than others. Much, much better.

Even lawyers. At least those who don’t get stuck in the dreadful legalese that so many are taught.

Back today is our Master of Prose, appellate lawyer Jay Breakstone, with some words on a really important concept after an election, insurrection and inauguration: Freedom.


There is a primal truth to human nature.  We do not see danger until we walk to the edge of the cliff.  Then, we build a fence, erect a sign, or cordon off that which can harm us.  America is that kind of place and, perhaps by design, Americans are those kind of people. We do not have hundreds of years of governments, potentates or tribal chiefs to do our thinking for us.  We’re the ones who have to walk to the edge of the cliff and see the danger for ourselves.  It’s only then that the lightbulb goes off in the American mind:  “Hey, someone can get hurt here.” 

The relief we felt on Inauguration Day was that we stepped back from the cliff, identified the danger, and now we’re going to do something about it.  Why?  Because we got scared.  Boy, did we get scared.  Constitution burning, Nuremburg Rally, crap-in-your-pants scared; It was dark, going down the cellar stairs with rats scurrying about scared; it was can this be the end of the dream scared.

So we, the wretched refuse, said that we wouldn’t.  We wouldn’t fall off the cliff or let anyone else fall off either.  We had done that before in our collective, immigrant histories and it wasn’t going to happen again.  We wouldn’t let it.  Not now.  Not here.  Not on streets still paved with gold.  We didn’t have much choice; we couldn’t go back where we came from.  So, as thick-headed, stubborn, clever Americans, we stood our ground at the edge of the cliff.  It ends, we said, here.  Not one more step.

And the skies cleared; and the sun shined.  The miasma which had cloaked our very souls for four years lifted.  Like a miracle, we saw the path away from edge of the cliff appear; and we Americans began the long journey together; a journey where we’ll bitch, and moan, and yell at each other, and laugh both at and with our neighbors, and in that wandering that is America, find our way once again.  It seems inevitable that this experiment never end, for the result, in heaven’s great plan, is always the same:  freedom.


March 28th, 2018

In Defense of the Unicorn: Baseball, Peace and a Better Day

An old baseball of mine that I had stitched back together as a kid to keep the leather on. You didn’t buy them by the dozen back then. Every baseball was precious.

It’s in the air. I can smell it. And so can Jay Breakstone, appellate lawyer and wordsmith extraordinaire who, in 2014, penned Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!) for this space.

No stranger to conflict (of which he writes today), Breakstone grew up in East Flatbush, the product of a tumultuous mixed marriage: His mom was a Brooklyn-born die hard Dodger fan and his Dad a Bronx-born Yankee fan.

He survived that experience to emerge as a die hard Mets fan.

Perhaps, if the union of Dodger and Yankee fans can mint something like Jay, there is hope yet for the country:

—————————–By Jay Breakstone———-

America has become such an uncomfortable place to live nowadays. When I say “uncomfortable,” I thoroughly understand that such terms are relative. But being an American has meant that we worry about a lot less than those in other countries and I understand that.

Yet, to wake up every morning to the headache of political soap opera is taking its toll on me. I am more irascible than usual; quicker to yell at the morning news and yell at my family from dawn until dusk. This is not good, for there is a thin line between being a lovable curmudgeon and a raging lunatic. What to do?

And there it is. Shining through the gloom like a landing beacon on a dark runway; like Lady Liberty in the harbor; like Mom’s chicken soup, a Nathan’s hot dog or pastrami on rye from Katz’s Delicatessen. Goodness knows, its done it before; brought hope where there was none and salvation to the depths of hell. Opening Day.

Yes, Virginia, there is a new tomorrow, and sacrilegious as it may be, God lives only 60 feet, 6 inches from home plate. In fact, whether you believe in God or not, you can still believe in baseball.

You can be a Democrat and believe in baseball. You can be a Republican and believe in baseball. You can be a Democrat or a Republican, sit side by side in the same temple, and believe in baseball together. You can speak English, Spanish, Greek, Serbo-Croat, even Pig Latin, and believe in baseball.

You can belong to the N.R.A., the A.C.L.U., the National White People’s Party, the N.A.A.C.P. or the Mickey Mouse Club and believe in baseball. Because, as it says in an oft-forgotten footnote in Genesis: “And G-d saw baseball, and it was good.”

Have you ever noticed those old pictures of men in suits and hats, sitting in ball parks during the business day? Why weren’t they at work? One of them, a young attorney in New York City, nearly lost his job because he kept sneaking out to Giants games at the Polo Grounds.

Nonetheless, the kid made good, but never forgot the magic of baseball. So, when he worked his way up to being President of the United States and the country he led was in the depths of soul-shattering gloom following Pearl Harbor, Franklin Roosevelt knew one thing that would cut through the fog: baseball. He declared that the Axis could do many bad things, but it could never stop baseball, which continued throughout the war.

Time and time again, baseball has been that never changing point in an ever-changing American universe. To those of us who were at Shea Stadium on September 22, 2001, it was much the same thing. Roosevelt’s words to Judge Kenesaw Mountain Landis, baseball’s Commissioner in 1942, still rang true: “I honestly feel that it would be best for the country to keep baseball going[.]”

I suggest that we need baseball now more than ever (as if there was ever a time we didn’t.) I think everyone should stay home from work on Opening Day and head to the ballpark instead.

If need be, dig up that old note from your mother, the one that says “Arthur could not be in school today. He has Dengue Fever.” If you can’t find it, I’m sure you can still forge her signature the way you did on the original. Eat a hot dog. Have a beer. Most important, let it go.

Nothing is so bad if it’s Opening Day, where all the past is prologue. Sure, it could turn out lousy, like the 1942 Brooklyn Dodgers, who had a phenomenal season, were in first place until September, only to lose the pennant to St. Louis. But on Opening Day, the Boys from Brooklyn took the opener, 7-5.

Opening Day is all about tomorrow. It always has been.


June 27th, 2015

Yo Scalia! Play Nice!

Justice Antonin Scalia

It seems that my Brooklyn-born guest blogger today, Jay Breakstone, was none too pleased with the temperament of Queens-raised Antonin Scalia yesterday while dissenting in the landmark case of Obergefell v. Hodges that legalized same sex marriage in all states.

And Breakstone, an appellate wordsmith, has a few words to Justice Scalia, on minding his manners. From one city kid to another. And so, without further ado, a few comments on Nasty Nino…

———By Jay Breakstone———–

Comments about Justice Scalia’s dissent in Obergefell v. Hodges, the gay marriage decision from the Supreme Court, have been grossly unfair. As one wag once said, even Hitler was a hell of a dancer. If we look hard enough, we can overlook the worst in anybody, even Justice Scalia.

Sure, Justice Scalia may have been unhappy with the rigors of real-live legal practice at Jones, Day before moving on to academia and “public service,” but that’s okay, isn’t it?  You don’t really expect Harvard magnas and editors of its law review to work for a living like the rest of us, do you?

Sure, he may be acerbic in his writing, but he’s really funny. Just before describing the majority opinion in Obergefell as the product of “hubris” amounting to a “judicial putsch,” Justice Scalia identified the actors in that putsch—his fellow justices— as follows:

“[T]his Court . . . Consists of only nine men and women, all of them successful lawyers who studied at Harvard of Yale Law School.  Four the nine are natives of New York City.  Eight of them grew up in east– and west-coast States. No one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

See how funny that is?  Well, how about that this is being written by the first Italian-American justice?

What confuses me is that Italian-Americans only comprise only 5.6% of the American population. So under Justice Scalia’s theory, how are they entitled to two justices (Scalia and Alito) of their own?

How about if we join them with the Jews? After all, there are Italian Jews, such as Fiorello LaGuardia (descended from a great rabbi on his mother’s side.) That would give Justice Scalia another 1.4%, or 7% in total.

Still, in ScaliaMath, not a significant enough cultural/ethnic/religious group to warrant the appointment of two whole justices (fractional justices being ignored.)

Maybe Justice Scalia could he be the “short people’s justice?” After all, he is only 5’ 7” tall and is probably the shortest male on the Court. However, RBG is fully notorious at barely 5 feet tall.

If the anti-Scalia group is still less than comfortable with the absence of any Protestants on the present bench (Scalia is a Roman Catholic), then they can always be reminded that for its first 180 years, almost all the justices were Protestants – – and male at that.

No, Nino, we can’t choose our justices based on who they are, where they come from, or who they pray to. But we can surely choose them based on their courtesy to their colleagues and the ability to see beyond themselves.

We don’t think it’s particularly clever to refer to colleagues who don’t think the way you do as members of a “putsch,” knowing (and you know everything) that the term refers to the attempt by Hitler and his Nazi Party to seize control of Bavaria in 1923, especially when two of your colleagues are part of that over-represented group on the Court, the Jews.  At best, its self-centered and narrow beyond excuse.

In the final analysis, perhaps you’re just not a nice person.  Or maybe you’re this way only when you lose, twice (Obamacare on Thursday), in the same week. But even Evangelicals would only call that being a “sore-loser.”

Nasty, even in what one believes is a last-ditch defense of all that is good about American democracy, ill-becomes a Justice of the Supreme Court.



February 3rd, 2014

Baseball, Poetry and Crocuses (Pitchers and Catchers Report Next Week!)


An old baseball of mine, that I had stitched back together to keep the leather on.

I found an old baseball of mine a few years ago. The white stitches that replaced the red originals were still in it from my childhood repair work. Throwing grounders in the street tended to chew things up.

We didn’t have megastores 40 years ago where you could buy them cheaply by the dozen. A baseball was precious. This one now sits on my desk in one of those plexiglass cases usually reserved for famously autographed balls.

While the calendar claims it’s winter, and Super Bowl conversation buzzing about, appellate lawyer Jay Breakstone sees spring. Pitchers and catchers are reporting to spring training next week, and the SCOTUS fantasy baseball league is getting ready to draft. He guest-blogged baseball a few years ago, and now returns.

Who says lawyers can’t write like poets?


Everyone in my neighborhood knows that I am the lunatic who walks down his driveway every morning in his bathrobe to get the newspaper.  It matters not whether there’s snow on the ground or it’s raining cats and dogs.  Going out like that in the morning is my way of thumbing my nose at the seasons.

It says that I am alive and have not succumbed to winter’s cold.  It shows that I believe that the sun will come up tomorrow, that there’s a bright golden haze on the meadow somewhere and that baseball will soon be here.

It’s not so much that baseball starts in the spring that makes it so life-affirming, but that baseball starts before spring that is.  Baseball assumes, when pitchers and catchers report in mid-February, that the snow on the ground or the chill in the air is just a temporary affliction that time will heal.

The fact that I walk down the driveway every winter morning in my bathrobe to pick up my newspaper, encased in a plastic bag to protect it from the snow and the ice, means nothing to baseball.  Baseball knows that somewhere, spring awaits.  It knows it before the crocuses stick their necks out of my flower beds and it knows it before that first morning that I can go down my driveway barefoot without freezing my toes off.

Baseball is eternal; a child’s game played by men as if they were boys.  There is no time clock in baseball; it is only played in one season – Baseball Season – and games end whenever they end, or when someone’s mother calls them home for dinner.

There is no death in baseball; fathers are fathers and sons are sons and they remain that way forever.  There is nothing outside of baseball; it has it’s own rules and traditions, none of which makes sense in the real world, because baseball doesn’t live there.

Finally, there are no green vegetables in baseball, only Cracker Jacks and peanuts in the shell that you get to throw on the floor and no one yells at you.


Jay Breakstone, lawyer and wordsmith.

No matter what happens – – no matter what Congress does or doesn’t do, no matter if global warming has us frying or the polar vortex has us freezing, no matter which Kardashian suffers a urinary tract infection or if Jimmy Fallon succeeds or fails – – no matter what, on March 31st the Mets will open their season against the Washington Nationals.  A day game.  A place for men to play hookie, once more, and for the world to be re-born, once again.

The magic words?  Batter up!

(Jay Breakstone  is the author of MondayMonday, his weekly ruminations on NY appellate practice and life.)


July 11th, 2009

The Summer of 1969 – A 40th Anniversary Look Back

On July 16, 1969, Armstrong, Aldrin and Collins sat atop a Saturn V and blasted off to history. And our imaginations lit up regarding what was, and what could be. Woodstock and the improbable worst-to-first Amazin’ Mets followed shortly.

New York Appellate Lawyer Jay Breakstone takes a look back to the summer of ’69 today, as we take a break from posts on Judge Sotomayor…..

The strong flow of events is like a river. It can carry even the most wayward leaf along for the ride. In the summer of 1969, I was surely that wayward leaf. A disastrous freshman year at an upstate New York college had uncovered two primal truths. The first, was that I was not to be a doctor like my father; the second, that you don’t take a city boy from East Flatbush and put him in a town where Andy Hardy takes Polly to the prom. I was depressed and lost, with no center to my universe and no direction known.

Enter Neil Armstrong. I had spent most of my then 18 years living with the American space program. I had dawdled in front of the TV when I should have been running to school, hoping that there wouldn’t be any holds so I could see a Mercury or Gemini launch live. Inevitably, the primitive digital clock on the screen counted down and the worst thing imaginable would occur – – the voice of Col. John “Shorty” Powers in Mission Control announcing a delay and sending me off to school unsatisfied. But as the summer of 1969 approached, I realized that all those unrequited mornings would soon be vindicated. The Russians had failed and we had succeeded. We were going to the Moon. Maybe I was mired in failure, but Neil and Buzz were not.

Somewhere along the way, though, I had decided that I didn’t want to look like Neil and Buzz. The John Glenn crew cut didn’t work for anyone other than astronauts (and those kids in that upstate town). I had attended New York City’s Stuyvesant High School, hotbed of intelligence and activism. I had marched for equality and to end the war. In a culture that still required its high school students to dress appropriately, we at Stuyvesant did not. We wore sandals (if we wore shoes at all) and carried knapsacks. Most important, we had long hair and more respect for Mark Rudd and Johnny in the basement mixing up the medicine than for Richard Nixon.

Necessarily, this caused just a bit of friction at home. My doctor father had flown B-24’s in World War II. He had that John Glenn crew cut. He believed in Vietnam because he believed in America. He was a hero. I, however, was none of these things. Moreover, I had just demonstrated that I was not much of a student either. We talked a lot that summer of ’69 and, like a huge ocean liner, my father began a slow turn. Vietnam ceased to make sense to him and Woodstock suggested that perhaps his son might have a different way of looking at the world that was not quite as foolish as he had once believed. If there is a time for every purpose under heaven, that summer allowed me to ride the good vibrations of Woodstock into my father’s heart, a place where I had never really left in the first place.

The pulse of the times can substitute for the vitality of the individual. All you have to do is be clever enough to hop on board. The summer of 1969 was a veritable freight train of optimism. We could stand on the Sea of Tranquility and we could stand in the mud of Max Yasgur’s farm. It was all good. A small town college could give way to a large city university. Science and math could surrender to writing and literature. The dream of medical school could disappear and be replaced by “maybe I’ll go to law school.” In the summer of 1969, anything was possible. How did I know? Because the New York Mets were on their way to the World Series.

My life then had been short, but not so short that I hadn’t sat in the stands of the Polo Grounds in 1962, where the woeful Mets played before Shea was built, wondering whether anyone on my team could play this game. Off in the distance, beyond the hills of Coogan’s Bluff, sat the Palace of the Hated, Yankee Stadium. There, a real baseball team played. To them, it wasn’t a game. Baseball was serious business there. Tell that to Marv Throneberry, my first baseman, who made every pop fly a cosmic experience. Would the gods let Marv catch it or wouldn’t they? It seemed to have nothing to do with Marv. I was born and bred in Brooklyn. My mother had been a crazed Dodger fan, so much so that my Bronx-born father was never permitted to say the “Y” word in our house. By the time I was old enough to go to a ballgame, my team had left for California. I was rudderless on the sea of sports fandom. My early years were taken up by watching roller derby instead.

In that summer of 1969, however, anything was possible. I sat in the old Dodger Bar and Grill on the corner of Flatbush and Fulton, watching the games on the color television propped high in the corner. It was hot that year and the coolness of the dark bar calmed me. So did the cheap beer on tap. I sat and tried to figure out what to do with my life and watched the Mets do the impossible with theirs. Me, the Mets and three old guys who had not left that bar since the Dodgers won the World Series in 1955. They had waited in that very bar since then for the lightning to strike again. They had grown old waiting. Their families had lost track of them; written them off as dead. Detectives had closed Missing Persons files and shelved the boxes in closets marked “Unsolved.” Yet, here they were, like Macbeth’s three witches. For all those years they had been conjuring, stirring their Four Roses with a Rheingold back, invoking the baseball gods. In the summer of ’69, when anything was possible, it happened.

I know that these things happened, because I was there. In the summer of 1969, I was born again. I floated along on that river of the impossible and let it take me where I didn’t have the strength to go by myself. We kept going back to the Moon, the Mets won the World Series and even the Jets won the Super Bowl. Woodstock became synonymous with a better place where better people lived a better idea. I guess I was lucky. The time warp had opened, but only for a moment. God had smiled for an instant. Within a year, it would all be over. There would be four dead in Ohio, my mother would tell me that I shouldn’t worry about the draft because she wasn’t letting me go anyway, and my father would be dead. Oh, and I would be well on my way to law school, but I didn’t know that at the time either.

Jay Breakstone did, indeed, make it to law school, and was sworn in eight years after this legendary summer. His current email is NYAppeals [at] gmail [dot] com.