A Well-Paid Slave

by Brad Snyder

  A former American Bar Association president and rainmaker at the Richmond, Virginia, law firm of Hunton & Williams, Lewis F. Powell Jr. had rejected Nixon’s prior overtures to join the Court. The 64-year-old Powell’s eyesight was failing, and he did not think he could read for more than 50 hours a week. Nixon persuaded Powell that, even if he served only 10 years, he could make a valuable contribution to the Court. A classic southern gentleman, Powell portrayed himself at his confirmation hearings as a racial moderate. He never endorsed Senator Harry Byrd’s advocacy of massive resistance and interposition. Nor did he do anything to further racial progress. He personally opposed Brown at the time it was decided. During his time as chairman of the Richmond School Board, from 1952 to 1961, only two of the city’s 23,000 black children attended school with whites. Powell voted in favor of giving white parents tuition grants so their children could attend private schools. Powell ignored pressure from white segregationists to close Richmond’s public schools and fought to keep them open. His law firm, however, had represented Prince Edward County, Virginia, in its attempt to close its schools rather than integrate. On December 6, the Senate confirmed Powell, 89-1.

  First in his class at Stanford Law School, William H. Rehnquist clerked on the Supreme Court from February 1952 to June 1953 for Justice Robert Jackson. As an aide to Barry Goldwater’s 1964 presidential campaign, he impressed future Nixon deputy attorney general Richard Kleindienst. Based on Kleindienst’s recommendation, Nixon named Rehnquist assistant attorney general in charge of the Office of Legal Counsel (OLC), the executive branch’s legal adviser. Rehnquist had vetted Nixon’s other Supreme Court nominees and had written memos, including one claiming that it was constitutional to wiretap members of the antiwar movement.

  Now that the 47-year-old Rehnquist was a nominee himself, his conservative views created problems for him. The controversy began in early December, after he had testified before the Senate Judiciary Committee and just as the debates began on the Senate floor. Newsweek magazine published a memo that Rehnquist had written as a law clerk to Justice Jackson titled “A Random Thought on the Segregation Cases.” Rehnquist wrote: “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.” Rehnquist told the Senate that the memo expressed Justice Jackson’s views, not his own. Rehnquist’s actions belied his feeble explanation. As a lawyer in Phoenix, Arizona, he had written editorials and made public statements opposing local antidiscrimination, public-accommodations, and school-desegregation ordinances. He had been accused of intimidating minority voters during the early 1960s at local polling places. In an attempt to save his nomination, Rehnquist sent a letter to Senator James Eastland, the chairman of the Senate Judiciary Committee, disavowing the views in the memo and embracing Brown v. Board of Education. On December 10, the Senate voted to confirm Rehnquist, 68-26.

  On January 7, Powell and Rehnquist officially joined the Court, tilting it in a decidedly conservative direction. Based on their credentials, neither of Nixon’s latest nominees seemed like a potential vote in Flood’s favor.

  Nixon’s Justice Department, one of the chief enforcers of federal antitrust law, remained conspicuously silent about Flood’s lawsuit. The Justice Department frequently weighs in on issues of importance that come before the Court through friend of the court, or amicus, briefs, and even during oral argument before the justices. For example, when the Court agreed to hear William Radovich’s antitrust lawsuit against the NFL in 1957, Assistant Solicitor General Philip Elman argued the government’s position in favor of Radovich. Nixon’s Justice Department, however, never came out pro or con on Flood.

  Philip Roth imagined Flood’s place in the eyes of the Nixon-led establishment in his 1971 novel, Our Gang, his follow-up to the bestselling novel Portnoy’s Complaint. In Our Gang, a forgettable but somewhat prescient satirical novel about the Nixon administration, Roth portrayed President Trick E. Dixon and his advisers discussing their enemies list:

  HIGHBROW COACH: To the list then, gentlemen. 1: Hanoi. 2: The Berrigans. 3: The Black Panthers. 4: Jane Fonda. 5: Curt Flood.

  ALL: Curt Flood?

  HIGHBROW COACH: Curt . . . Flood.

  SPIRITUAL COACH: But—isn’t he a baseball player?

  TRICKY: Was a baseball player. Any questions about baseball players, just ask me, Reverend. Was the center fielder for the Washington Senators. But then he up and ran away. Skipped the country.

  During the Watergate hearings two years later, Nixon’s former counsel, John Dean, revealed that the administration had indeed kept an enemies list. Flood was not on it, but Fonda and Joe Namath were.

  In Our Gang, Trick E. Dixon blames Flood for a Boy Scouts protest about a presidential speech advocating voting rights for the unborn. In a speech to the nation, Roth’s Dixon explains:

  In 1970, with no more warning than the Japanese gave at Pearl Harbor, “Curt Flood,” as he then called himself, turned upon the very sport that had made him one of the highest-paid Negroes in the history of our country. In 1970, he announced—and this is an exact quotation from his own writings—“Somebody needs to go up against the system,” and proceeded to bring a legal action against Organized Baseball. According to the Commissioner of Baseball himself, this action would destroy the game of baseball as we know it, if Flood were to emerge victorious.

  Dixon declares war on Denmark and demands that the Danish government “surrender to the proper American authorities the fugitive from the Washington Senators of the American League of Professional Baseball Clubs, the man who fled this country on April 27, 1971, exactly one week to the day before the uprising of the Boy Scouts in Washington— the man named Curtis Charles Flood.”

  After the real Curt Flood took off for Barcelona on Pan Am flight 154, the media, Bob Short, and the U.S. government hunted him down like a fugitive. The New York Post called the Pan Am desk in Barcelona as soon as Flood’s flight had landed. Airline officials found no record of his leaving the plane or passing through customs in Barcelona. Only 4 of the 17 first-class passengers remained on the plane during the last leg of the trip. Flood was not one of them. He had gotten off the flight in Lisbon. The New York Post repeatedly paged him in the Lisbon airport, but he did not answer.

  In Lisbon, Flood purchased a plane ticket to Madrid. On April 28, he registered under Curtis C. Flood in a small Madrid hotel. An enterprising UPI reporter got him on the phone. “I’m sorry, but I cannot make any comment to newsmen,” Flood said. Early the next morning, he checked out of the hotel, once again refused to answer the reporter’s questions, and jumped into a cab to Madrid’s Barajas Airport.

  The Senators gave Flood a week to find himself before they tried to find him. Short sought the government’s help. On May 6, the State Department sent out a telegram regarding the “Welfare/Whereabouts Curt Flood” to its embassies in Lisbon, Barcelona, Copenhagen, and Madrid. The telegram said:1. ROBERT SHORT, PRESIDENT WASHINGTON SENATORS BASEBALL TEAM, HAS REQUESTED DEPARTMENT’S HELP IN LOCATING CURT FLOOD, SENATORS’ PLAYER WHO IS BELIEVED TO BE RESIDING IN ONE OF ADDRESSEE CITIES. FLOOD DEPARTED U.S. APRIL 27, PAA 501, TICKETED FOR BARCELONA BUT REPORTEDLY LEFT FLIGHT AT LISBON. FLOOD HAS PREVIOUSLY RESIDED IN COPENHAGEN.

  2. ACTION POSTS REQUESTED TO TRY TO LOCATE FLOOD. FLOOD, AN ARTIST, MAY BE RESIDING IN AN ARTIST COMMUNITY. SHORT WISHES FLOOD TELEPHONE HIM COLLECT AT FOLLOWING NUMBERS: (202) 546-2880; (612) 929-1005; (612) 333-6161.

  The last line of the memo listed Flood’s passport number and date and place of birth.

  Actor Yul Brynner, according to gossip columnist Leonard Lyons, called Flood in Madrid to offer him a role in the Spanish Western Cat-low . “No thanks,” Flood reportedly told Brynner. “That cowboy movie stuff is for Jim Brown.”

  Flood pulled a neat disappearing act. A month after he had left the Senators, he was no longer in Madrid. No one knew exactly where he was. Short claimed to know the general
area where he was hiding but was unwilling to send a man over there to find him. The promanagement Sporting News floated a false rumor that Flood was in Mexico. The Mexico rumor persisted for at least another month.

  Flood eventually surfaced on Majorca, an island off the eastern coast of Spain. On May 1, he checked into the $25-a-night Hotel Melia. He did not return two messages that the U.S. embassy had left for him. A few months later, he returned to Denmark. From July 25 to August 1, he stayed at the Sheraton Hotel in Copenhagen. Journalists vacationing in Europe kept searching for him. Jimmie Angelopolous of the Indianapolis News contacted the State Department, which had tracked Flood to Majorca in May and Copenhagen in July. Neither Angelopolous nor the State Department could find Flood in Spain in August.

  Flood made his permanent home on Majorca. Located between Ibiza and Minorca in the Spanish-owned Balearic Islands in the Mediterranean Sea, Majorca had been the home to writers (author and diarist Anaïs Nin, British poet Robert Graves), artists (Spanish surrealist painter Joan Miró), and musicians (Frédéric Chopin and his lover, novelist George Sand, spent their famous “winter of discontent” there). Beginning in the 1950s, the island became a popular tourist attraction and refuge for Hollywood celebrities. Flood ended up in Majorca somewhat by accident. His friends in Denmark told him about Las Palmas in the Spanish-owned Canary Islands off the coast of Morocco. His travel agent booked him to Palma, the largest city on Majorca, instead. Flood lived in San Augustin, a small coastal town about 10 minutes southwest of Palma.

  During the 20th century, racism drove many of black America’s brightest stars abroad. They fled unjust criminal convictions (heavyweight champion Jack Johnson) and political persecution (Communist actor-singer Paul Robeson). Many of them sought artistic freedom (writers Richard Wright and James Baldwin, singers Josephine Baker and Nina Simone, and tenor saxophonist Dexter Gordon).

  Flood continued the tradition of black expatriates living in Europe, but he left America to escape his profession, not to pursue it. Europeans did not care about baseball. Flood once told a Spanish woman that he had been a baseball player. “Yes,” she said, “but what do you do for a living?” Majorca was the perfect place for him. He did not want to deal with his personal and financial problems, to be recognized as a ballplayer, or to answer questions about his lawsuit. He was hiding from all the demons that had haunted him in Washington. “It was kind of fitting he was living on some island because he was on one anyway,” his former teammate and sometimes roommate, Elliott Maddox, said. “It was virtually impossible to get through.”

  Rumors abounded in May that Flood might be returning to the Senators. They lacked any basis in fact. After a few weeks in Spain, Flood knew he had made the right decision. He had felt so much pressure during his two months with the Senators. He realized that physically he could not compete anymore. And, since his paychecks would have gone to his creditors, there was no use trying.

  Flood, however, did not sever all his ties to baseball. From Majorca, he called Marvin Miller. He did not explain why he had left the Senators other than to say “the situation had deteriorated.” Miller promised to keep him updated about the case. Indeed, the day the Supreme Court granted cert, Miller called Flood with the news. Flood asked Miller what it meant. Ever the pessimist, Miller tried not to give Flood false hope. “I know that it takes just four votes to accept the case, but you shouldn’t get too high on this because that doesn’t necessarily mean you’ve got four votes in your pocket,” Miller told him. “It just means that it’s a case that ought to be heard.”

  Flood’s other legal problems played out at home. On July 29, a federal judge in St. Louis ordered Flood and his business partner, Bill Jones, to pay $27,497 owed to a suburban St. Louis couple for buying their photography shop. Flood escaped liability in another federal lawsuit. On September 1, another federal judge in St. Louis ordered Flood’s business partners to repay a North Carolina-based printing company $69,528. Flood was ruled to have invested $20,000 in the photography business and pledged to invest more, but he did not commit fraud against the printing company. He still remained on the hook for half of the first judgment and for the rest of the photography business’s unpaid withholding taxes to the IRS.

  Flood desperately needed money. Repaying his creditors was the least of his concerns; in Majorca he struggled to live, having apparently spent the last of his Senators paychecks. A few weeks before the Court granted cert in his case, Flood wrote Miller asking for an early severance payment of $10,000. Under the rules of the major league pension plan then negotiated by Miller and the union, a player was allowed to withdraw $1,000 for every year of major league service up to $10,000. Players could withdraw the money early without reducing the rate of their pension benefits as long as the money was repaid with interest before they began collecting their pensions. The purpose of the lump-sum severance payment was to prevent players from ending up destitute before their pensions kicked in—particularly for players whose careers ended suddenly from injuries.

  At the time of Flood’s request, Miller was out of town. On October 18, Dick Moss wrote Flood and explained that he was not eligible to receive the money until a year after his April 27, 1971, retirement. “I’m sorry that we cannot respond more favorably to you [sic] inquiry,” Moss wrote. “I do understand the urgency of your request, but unfortunately there is nothing we can do to advance the time of your entitlement.” The only way around the rules of the pension plan would have been to ask the players’ pension board to vote to change the eligibility requirements. That never happened.

  Despite everything he had done for his fellow players, Flood looked elsewhere for money. He could not wait six months for his pension. He wrote a letter to Arthur Goldberg asking for a $10,000 loan that he promised to repay with interest when his severance check arrived April 28. Flood mailed his letter to Goldberg’s old suite at the Pierre Hotel. Goldberg did not receive it in Washington until December 21.

  Flood’s typewritten letter said, in part:

  I hope my letter finds you and your family in the best of health and all going well with our law suit. Marvin has kept me advised of its progress periodically and whatever the outcome, I can’t help from feeling quite proud.

  You told me once if I ever had any problems to feel free to call upon you. I am, however, quite sure that you meant that professionally and this is very personal.

  The enclosed letter will explain half of my problem. The ten thousand dollars mentioned, as the letter from Marvin states, will not be available to me until April. Needless to say I had counted on this money to carry me for a couple of years or at least until I am able to return home. I was unaware of the necessity to wait one year for the allowance and, frankly, I wasn’t very careful with the money that I had saved. Now I find myself in a [sic] extremely tight situation. And if I don’t have some cash coming in soon it borders on disaster. . . .

  I sincerely hope you do not feel that I am taking advantage of our friendship. But since the ten thousand is there and secure, and I am able to pay current interest rates, our friendship is not in question. It will be handle[d] as a business deal rather then [sic] a favor.

  Flood asked Goldberg’s secretary to telex him yes or no. There is no record of how Goldberg responded.

  Goldberg rejoiced when the Court granted cert because he believed that it meant he had won Flood’s case. He did not know how the justices had voted, but he figured that they would not have granted cert to review two of the Court’s prior decisions unless a majority of the justices favored overruling them. If the Court believed that Federal Baseball and Toolson were right, it would have denied cert without comment. Little did Goldberg know that he had only three strong votes to hear the case.

  Goldberg brimmed with false confidence as his trusted former associate, Levitt, began to prepare Flood’s brief. Supreme Court briefs provided both sides with the best opportunity to persuade the justices to vote their way. “[I]t is the brief that does the final job, if for no other reaso
n than that the opinions are often written several weeks or sometimes months after the argument,” Justice Marshall, a former Second Circuit judge and solicitor general, said. “The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman.”

  By the time the Supreme Court briefing began, each side knew what the other was going to say. These issues had already been briefed and argued at trial, briefed and argued before the court of appeals, and briefed in a cert petition. Weaker arguments, such as Flood’s slavery and peonage claims, had been eliminated, and stronger arguments had been refined along the way.

  Flood’s brief argued that, Justice Holmes and stare decisis notwithstanding, the Court’s two baseball decisions no longer made any sense. As Judge Waterman’s Second Circuit opinion noted, Holmes himself had once written of stare decisis:

  It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

  The first part of Flood’s 45-page brief attacked Holmes’s Federal Baseball opinion as “moribund.” In ruling on President Roosevelt’s New Deal legislation, the Court had broadened the definition of interstate commerce beyond Holmes’s cases and legal reasoning. Holmes’s opinion in Federal Baseball, the brief argued, relied on “precedential underpinnings [that] have long since disappeared.”