by Brad Snyder
Reichler arrived at Kennedy Airport at 7:15 p.m. and found Flood sitting at an airport bar. Flood said he was in a hurry to catch an 8 p.m. flight back to Washington.
“By way of Barcelona?” Reichler asked.
Flood laughed. “It’s not baseball I’m worried about but other things,” he said. “I just can’t cut it anymore. The problems are mounting and I’m going crazy thinking about them.” Flood told Reichler he had been thinking for a month and a half about leaving.
For 20 minutes, Reichler tried to persuade Curt to stay. He told him that he was not a quitter. Then Reichler shifted tactics and said Flood owed it to Short to come back.
“I know I owe Bob Short a great deal,” Flood said. “He stuck his neck out for me. All right, I’ll give it some thought.”
Reichler thought he had persuaded Flood to stay. He suggested that Flood take a few days off in New York City to think things over. Suddenly, Flood regained his resolve.
“No, no,” Flood said. “I’m not going to do it. I’ve reached the end. I’ll go crazy if I don’t get out. I’ll go crazy, if I don’t get out.”
Flood boarded Pan Am flight 154 for Barcelona and settled into seat 3-F, refusing a request to step off the plane to speak to the press before takeoff. When his flight touched down at 5:15 a.m. in Barcelona, however, Flood did not disembark. He might have slipped away three hours earlier when the plane stopped in Lisbon, but no one knew for sure where he was.
Short told the press that he hoped Flood would return. Williams publicly praised Flood as “big league all the way,” but privately, Whitfield said, “it was good riddance.”
Most of the press hammered Flood for jumping ship after just 18 games, especially after collecting close to half a season’s salary from Short. Flood’s lawsuit, according to New York Post columnist Larry Merchant, “was an act of desperation by a deeply troubled and disturbed man.” New York Daily News columnist Dick Young wrote that the players’ continued support for Flood’s lawsuit would break down along racial lines. “[I]f you have to feel sorry for someone,” Young wrote, “try the people who put their faith in him, and are left holding the bills.” “The Flood sympathizers said he had problems,” Washington Evening Star columnist Merrell Whittlesey wrote, “but we all have problems.”
Red Smith was one of the few writers who understood the reality of Flood’s situation: “If he wins his suit, everybody else will benefit. The fetters will be eased for all other players present and future. Baseball will gain respectability as an American institution. The only one who has nothing to gain is Curtis Charles Flood.”
Lieutenant Fred Grimes, a black St. Louis police officer and friend of Flood’s, implored St. Louis Post-Dispatch columnist Bob Broeg not to write another negative column. “He’s running away from himself,” Grimes said, “so don’t be hard on him. This man’s personal life is as unpleasantly involved as a soap opera.”
Flood left the country for parts unknown not because he had lost a step or two, or even three, or because he no longer had any desire to play baseball, though both were true, but because leaving was the only way to preserve his sanity and his lawsuit.
Flood’s “personal problems mounting every day” were mostly financial. Two days before he left, Beverly filed a lawsuit seeking back alimony and child support even though she had married a St. Louis attorney, Richard L. Johnson. The debts and legal fallout from his photography business had not gone away. Creditors had been hounding Flood from the moment the season began. They called him day and night and drove him to distraction. He avoided them by refusing to cash his last few paychecks until he left for Barcelona.
Flood had been receiving paychecks since November and had collected between $50,000 and $60,000. He could have collected the rest of his $110,000 salary, according to his oral agreement with Short, by playing until June 15. Flood, however, had too much pride merely to hang on for a paycheck. His hitting was anemic (7-for-35 with no extra-base hits), his fielding was not much better, and his manager had relegated him to the bench. He refused to embarrass himself any longer.
A week before he left, Flood’s personal attorney, Allan Zerman, had advised him that filing for bankruptcy protection was his best option. Short agreed that bankruptcy was the only way to shield Flood’s salary from his creditors and his ex-wife. Otherwise, Flood could not have become solvent even if his paychecks had continued for another five to ten years.
Bankruptcy, however, came with an unbearable cost: the end of his lawsuit. Had Flood declared bankruptcy, a court-appointed receiver could have settled his lawsuit for money damages and distributed them among Flood’s creditors. Paul Porter had met three times with Goldberg about a possible settlement. Goldberg wanted the reserve clause modified and Flood’s lost salary in 1970 and his legal fees reimbursed. There was no deal. If Flood declared bankruptcy, the decision to settle would no longer have been up to Flood, Goldberg, or the Players Association.
Flood remembered his promise to the player representatives in Puerto Rico to see his lawsuit through to the end. In the minutes from the union’s July 12, 1971, executive board meeting, Miller and Moss explained to the players: “It seems clear that rather than letting down the players, as many members of the press have reported, Curt’s problems were compounded because of his awareness of his responsibilities to the rest of the players.”
Flood refused to declare bankruptcy because he wanted his shot before the Supreme Court of the United States. He sacrificed everything to get it.
CHAPTER FOURTEEN
Arthur Goldberg returned to Washington just a few months after Flood’s sudden departure. Goldberg had lost his bid to unseat Nelson Rockefeller as governor of New York the previous November. Rockefeller’s political machine had targeted white ethnic voters en route to an easy victory. It was later revealed that Rockefeller had paid a right-wing publishing house $60,000 to publish 100,000 paperback copies of an anti-Goldberg biography that was distributed as campaign literature. Goldberg also believed that the key to his campaign’s success lay in a book. He forced his campaign staff to prepare a volume about his stances on the various issues. If New Yorkers would read the book, Goldberg believed, he would win the election. At first, no one would publish it. Then, after Goldberg self-published the book, no one read it. He lost by nearly 700,000 votes. Stephen Breyer, a former Goldberg law clerk and future Supreme Court justice, worked on the campaign while teaching at Harvard Law School. “I cannot be terribly sad that you did not [win],” Breyer wrote Goldberg, “for I suspect that you will be happier not being Governor.”
Goldberg was not happy at Paul, Weiss, either. On June 16, 1971, he announced that he was leaving the New York law firm after four years to open his own legal practice in Washington. Paul, Weiss support staffers disliked Goldberg so much that they removed his name from the firm’s elevator directory at 345 Park Avenue the next day.
Goldberg could not wait to return to Washington, where he had enjoyed his finest hours as Kennedy’s secretary of labor and second Supreme Court nominee. He had lived there for 17 years, from 1948 to 1965. His children had grown up there. His country house, a farm once owned by Chief Justice John Marshall, was 30 minutes outside the city in Marshall, Virginia. Goldberg rented office space from Caplin & Drysdale, a law firm started by former IRS commissioner Mortimer M. Caplin. He told Marvin Miller and Dick Moss that he only wanted to represent nations, but he still shared a few clients with his former Paul, Weiss partners, including the erstwhile Washington Senators outfielder living in self-imposed exile somewhere in Europe. Curt Flood’s lawsuit provided Goldberg with the perfect vehicle for making a triumphant return to the nation’s capital. If only he could persuade the Supreme Court to hear the case.
The Supreme Court spends a lot of time determining what cases it wants to decide. The Court operates under the Rule of Four: Four of the nine justices must agree to hear a given case. Requests typically arrive at the Court in the form of petitions for a writ of certiorari, which are known as cert pe
titions. The Court responds by either granting or denying cert. Most cert petitions are denied. Of the more than 3,100 cert petitions the Court received during the 1971-72 term, the Court heard oral arguments on 177 and issued 129 opinions. In most cases, the Court denies cert without any comment or indication of how the justices voted. The lower court’s opinion is neither affirmed nor reversed; it is simply allowed to stand.
From the moment he agreed to take the case, Goldberg knew that the success or failure of Flood’s lawsuit hinged on the Court’s decision to grant or deny cert. It all came down to Flood’s cert petition and the man Goldberg called on to draft it, a Paul, Weiss associate named Dan Levitt. Levitt knew what a winning cert petition looked like because he had read hundreds of them as a Supreme Court law clerk. A Pittsburgh native who had attended 30 to 40 Pirates games a year at Forbes Field, Levitt tied for sixth in the class of 1964 at Harvard Law School with Stephen Breyer. He then succeeded Breyer in 1965 as one of Goldberg’s clerks. That summer, when Goldberg left for the United Nations, Levitt stayed at the Court for an additional two years as a clerk for Goldberg’s replacement, Abe Fortas.
Levitt also knew how to write. Goldberg so liked the way Levitt wrote that he had Levitt draft his UN speeches and cautionary letters to President Johnson about Vietnam. As an associate at Fortas’s old law firm, Arnold & Porter, Levitt wrote speeches read on the Senate floor defending Fortas’s unsuccessful nomination for chief justice. After a few years at Arnold & Porter, Levitt left to join former U.S. attorney general Ramsey Clark at Paul, Weiss’s Washington office.
Goldberg often asked Levitt to come to New York to answer mundane legal questions that any associate in the firm’s New York office could have researched and answered. Goldberg implicitly trusted his former clerks. They were his boys. After he lost out as governor of New York, he gave a series of lectures at Northwestern law school on the Warren Court, each of which was written by a former clerk. He published the lectures as a 1971 book titled Equal Justice: The Warren Era of the Supreme Court. Levitt drafted Flood’s cert petition, and Goldberg reviewed it. It was as if they were back at the Court again.
Levitt’s Supreme Court expertise and writing talent notwithstanding, a successful cert petition requires a certain amount of luck. The Court generally takes cases for one or more of the following reasons: to resolve conflicting decisions about a federal question among the lower courts; to reverse a lower court opinion in conflict with a Supreme Court decision; or to address an area of federal law of great national interest. “A review on writ of certiorari,” the Court’s rules stated, “is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor.” It is an inexact science. “Frequently,” the second Justice John M. Harlan remarked, “the question whether a case is ‘certworthy’ is more a matter of ‘feel’ than of precisely ascertainable rules.”
Salerno, the federal lawsuit brought by the two American League umpires allegedly fired for their unionizing activities, did not make the cut. The Court denied the Salerno petition and gave no reason for doing so, though red flags abounded. The umpires’ petition contained too many disputed facts about why they were fired, none of which had been explored in the courts below because the case had been dismissed before trial. The umpires also had not been subjected to the most pernicious aspect of baseball’s legal monopoly—the reserve clause. Nor did they raise state antitrust claims. As a factual and legal matter, Salerno represented a poor challenge to Federal Baseball and Toolson.
Levitt’s job was to persuade the Court of the “special and important reasons” why Flood’s case was more certworthy. It presented almost no disputed issues of fact and a clear question of law. It affected more than a washed-up ex-ballplayer living out his days in Europe, the 600 ballplayers currently in the major leagues, or even the future of professional sports. Based on the Supreme Court’s puzzling interpretation of a congressional statute (the Sherman Antitrust Act), it affected the legitimacy of the Court itself. One of the Court’s main functions is to provide guidance to the lower courts, yet the lower courts struggled to reconcile Federal Baseball and Toolson with antitrust claims brought under state law.
Levitt made his case in the first two and a half pages of Flood’s cert petition in a section known as “Questions Presented.” Levitt knew that the justices and their law clerks paid a disproportionate amount of attention to these questions. He wrote them in a way that made it difficult for the Court to refuse to hear the case.
The opening paragraph portrayed Judge Waterman’s Second Circuit opinion as an invitation to the Court to overrule itself; Levitt quoted Waterman asserting that Federal Baseball and Toolson created “a most frustrating predicament” and blaming “the vagaries of fate” for the anomalous result in Flood’s case. Baseball was immune from federal antitrust law because the game was not interstate commerce, but it was immune from state antitrust law because the Second Circuit found the game to be “so uniquely interstate commerce.”
The first of five questions presented challenged the Court to “rectify this bizarre result and thus preserve ‘public faith in the judiciary as a source of impersonal and reasoned judgments.’ ” The second question suggested that the Court’s subsequent decisions refusing to extend anti-trust exemptions to the theater, boxing, football, and basketball “undermined” Federal Baseball and Toolson. The third question raised the problem of insulating baseball from state antitrust regulation and “creating a unique ‘no man’s land.’ ” The fourth question asked whether the federal courts could usurp all of state antitrust law without examining how the application of state law affected the business of baseball. The fifth and final question was the most damning: It portrayed baseball officials as running from forum to forum contradicting themselves to prevent any governmental regulation of the game and any challenge to the reserve clause.
On July 6, 1971, Flood’s legal team filed 40 printed copies of its cert petition with the clerk’s office at the Supreme Court. The brief’s blue cover listed Goldberg and Topkis, the only two members of the Supreme Court bar, above the addresses of their respective law firms; Levitt, Max Gitter, and Dick Moss were listed as additional counsel.
Major League Baseball officials responded just the way they should have—with a measured, 21-page brief in opposition explaining that the sky was not really falling. Flood, they argued, wanted to overturn two well-established Supreme Court precedents that enabled Major League Baseball to develop and prosper. According to baseball’s brief, Toolson had made it clear that removing baseball’s antitrust exemption was up to Congress, but, after numerous hearings, Congress had failed to act. In light of baseball’s antitrust immunity, baseball argued, any changes to the reserve clause should be left to the bargaining table. “The issues raised here are long-settled questions which Petitioner seeks to overturn,” base-ball’s brief concluded. “They are not issues of general importance and there is no conflict among the courts with respect to them.” In other words, the Court should not waste its time with baseball.
On September 9, Flood’s legal team submitted a four-page reply brief that tried to rebut baseball’s arguments. Congress’s failure to act— especially on legislation that tried to extend baseball’s exemption to all professional sports—could not be read to mean anything. Baseball had failed to respond to Flood’s argument that there had been no examination whether state antitrust law interfered with the business of professional baseball. And baseball’s “sudden enthusiasm” to negotiate belied its past refusals to agree to even the slightest reserve clause modifications.
The fate of Flood’s case now rested with the nine justices and their law clerks. Each justice selected anywhere from two to four recent law school graduates to serve for a year or two as his law clerk. One of the clerks’ most important jobs, which began during the summer, was to read each cert petition, summarize the arguments, and recommend whether to grant or deny cert. These recommendations usually came in t
he form of cert memos.
Shortly after Flood filed his reply brief, the Court lost two of its most respected justices. On September 17, Justice Hugo Black submitted his resignation. Six days later, Justice John Harlan followed suit. Black, 85, suffered a stroke and died two days after Harlan’s resignation; Harlan, 72, had been stricken with spinal cancer and would not survive the end of the year.
During his 34 years on the Court, Hugo L. Black recast his legacy from that of a U.S. senator from Alabama who had briefly belonged to the Ku Klux Klan to that of a great constitutional thinker. A staunch New Dealer, Senator Black was nominated to the Court in 1937 by Franklin Roosevelt. As a Supreme Court justice, he emerged as the strongest voice on the Court for freedom of speech and other constitutional rights. He took tremendous heat from his fellow southerners for his support of Brown v. Board of Education and other desegregation cases. Despite his status as one of the Court’s great civil libertarians, he had grown increasingly conservative in his later years. He had no qualms about abandoning the Court’s prior decisions in pushing his Bill of Rights-oriented constitutional agenda, but when it came to reinterpreting the meaning of an old congressional statute, he almost always sided with stare decisis. He wrote most of the Court’s unsigned opinion in Toolson , reaffirming Federal Baseball by completely changing its meaning. He also dissented from a 1970 decision reversing the Court’s prior interpretation of a piece of congressional legislation. In his final years on the Court, Black had become increasingly infirm.
