by Brad Snyder
Flood’s brief also portrayed Federal Baseball, even after Toolson, as an outlier. The Court had refused to extend the logic of baseball’s exemption to theatrical performances, boxing matches, or professional football. Douglas had widened the breach by adding professional basketball to the mix in the Haywood case.
If his lawyers could not persuade the Court to overrule Federal Base-ball and Toolson, Flood had a fallback position in his state antitrust claims. It relied on a literal reading of Federal Baseball: If baseball was not interstate commerce subject to federal regulation, then it was intrastate commerce subject to state regulation. Indeed, in their brief nearly 50 years earlier in Federal Baseball, baseball officials had conceded that state anti-trust laws applied. The state law argument gave the Court a way to avoid overruling Federal Baseball and Toolson, but it allowed Flood’s legal challenge to the reserve clause to continue. It also was designed to appeal to the Court’s conservative members, who believed that the Warren Court had expanded federal power to protect civil rights and civil liberties at the expense of the legal authority of the states.
After the Court granted cert, baseball officials tried to present a brave public face. Kuhn said that the decision to grant cert “does not affect the merits of the case. We have complete confidence in the fairness of the court’s ultimate decision.” Minnesota Twins owner Calvin Griffith, however, hit the panic button. “The reserve clause is the salvation of our sport,” he said. “Without it, we can’t protect our own players. There will be no competition.” The media speculated that the owners might try to settle Flood’s case—one of the subjects at their annual winter meeting November 26 in Phoenix. Behind the scenes, the lawyers for each of the clubs were clamoring to baseball’s lawyers to settle. Too much was at stake to leave the fate of their legal monopoly in the hands of nine life-tenured jurists. Victor Kramer, who had represented the commissioner at Flood’s trial, privately warned his client: “Be prepared to lose.”
Lou Hoynes, the lawyer now in charge of the owners’ defense, did not share Kramer’s pessimism. A high school basketball player from Indianapolis, Hoynes graduated from Columbia and then Harvard Law School. The young Willkie Farr partner who had been sent to Harvard to recruit Hoynes was Bowie Kuhn. Hoynes worked on baseball matters with Kuhn and “The Wise Man” of baseball, Lou Carroll. Carroll and Hoynes were extremely close. Carroll helped Hoynes make partner at Willkie Farr after just six years, a rapid rise at the firm that in turn made Kuhn expendable enough to become the commissioner. On October 25, 1971, Carroll succumbed to cancer after 35 years as the National League’s counsel. Hoynes replaced his late mentor, but not before flying out to Los Angeles and spending the day with the real power broker of Major League Baseball, Dodgers owner Walter O’Malley. O’Malley blessed Hoynes’s promotion to National League counsel and de facto head of the Flood litigation, but warned him: “Don’t embarrass me.”
O’Malley, however, wanted Kuhn to make the main argument in the Flood case before the Supreme Court. But Kuhn knew he was not up to the task. “I felt we needed a practicing lawyer, which I wasn’t at the time,” he recalled. Kuhn chose the 36-year-old Hoynes to plead base-ball’s case. Having worked with Hoynes for years, Kuhn never considered anyone else. “I had very high regard for him,” Kuhn said. “I just felt he was the right man for the job.”
Hoynes’s selection ruffled the feathers of Kuhn’s lawyers in the Flood case. Paul Porter and Victor Kramer, both senior partners at Arnold & Porter, wanted the assignment. A charmer, raconteur, and Washington insider who knew every politico and journalist in every two-bit town in America, Porter had been representing the commissioner’s office on Capitol Hill since Happy Chandler ruled baseball in the late 1940s. In 1950, Porter had argued an antitrust case before the Supreme Court, but he was no longer viewed as an active litigator. Kramer was an anti-trust expert but too brash and outspoken for baseball. Earlier in the case, he had clashed with Hoynes over the post-trial brief.
No one was better positioned to argue Flood’s case for baseball than Hoynes. He knew the history of the antitrust exemption. He had crafted the legal argument in the Milwaukee case stating that baseball was exempt from the federal antitrust laws because of stare decisis, but that federal law preempted state law because baseball was interstate commerce. He had played an active role at Flood’s trial—conducting the direct examination of baseball’s expert economist, John Clark, and cross-examining Flood’s expert economist, Robert Nathan; NFL commissioner Pete Rozelle; NBA commissioner J. Walter Kennedy; and NHL president Clarence Campbell. Hoynes assumed control of the Flood case for baseball during the post-trial briefing and considered the owners’ 133-page post-trial brief one of the finest documents of his legal career. He directed the writing of the Second Circuit brief and then, after arriving a few minutes late, argued the owners’ case there.
Under Hoynes’s direction, the owners’ 60-page Supreme Court brief refocused the Court’s attention on the meaning of Toolson. As Hoynes had argued in the Milwaukee case, Toolson changed the rationale for baseball’s exemption from interstate commerce to stare decisis. “Without reexamination of the underlying issues,” the Toolson Court wrote, it upheld Federal Baseball “so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the antitrust laws.” Toolson also recognized that baseball had relied on this exemption for the last 30 years. In effect, the Court had thrown the ball to Congress to subject baseball to the antitrust laws. The owners’ brief contained a history of the subsequent congressional hearings and bills that had failed to become law. It also quoted from the Court’s opinions about theatrical performances, boxing matches, and professional football—all of which recognized that baseball’s exemption now rested on stare decisis and was up to Congress to change.
The owners’ key argument grounded baseball’s immunity on federal labor law. The Players Association, the owners argued, had agreed to the reserve clause in labor negotiations and therefore could not turn around and sue on antitrust grounds. The owners’ brief quoted a dissenting opinion of Justice Goldberg’s that a “mandatory subject” of labor negotiations “is not subject to the antitrust laws.” Even if the Court overruled its decisions in Toolson and Federal Baseball, the owners believed, they could win based on this theory, which is referred to as the labor exemption.
The labor-exemption argument troubled Goldberg. As a factual matter, he argued that the owners never negotiated in good faith about the reserve clause. But navigating around some of the Court’s decisions and his own opinions on this issue was trickier. Goldberg called David Feller—his former law partner, general counsel to the Steelworkers, and a law professor at Berkeley—for help. Feller critiqued Flood’s brief and tried to help Goldberg craft a better response to the labor-exemption argument in Flood’s 18-page reply brief. After all the briefs had been filed, Michael Jacobs and Ralph Winter weighed in with a Yale Law Journal article arguing that Flood’s case was a labor dispute masquerading as an antitrust dispute and that it should be dismissed because the reserve clause was a mandatory subject of labor-management negotiations. The labor-exemption argument was not a clear winner for the owners, but the law seemed to be turning in their favor.
With Powell and Rehnquist not joining the Court until January 7, oral argument on Flood’s case was pushed back to March 20. The Court asked both sides to submit the names of the lawyers arguing the case. Attached to the form letter was a list of 11 rules about oral argument. Goldberg did not need to be reminded about the Court’s rules. Each side received 30 minutes. As a nod to Paul Porter, baseball gave him five minutes to introduce the commissioner and the remaining 25 minutes to Hoynes. Flood would be represented by Goldberg.
Hoynes exulted over the news that Goldberg, not Jay Topkis, would be arguing Flood’s case. Goldberg had been absent from most of the trial while campaigning for governor of New York, and he had not distinguished himself in his brief trial appearances—especially in his dir
ect examinations of Curt Flood and Jackie Robinson—or during his argument before the Second Circuit. No one on Flood’s legal team knew the trial record better, had been quicker on his feet in Judge Cooper’s courtroom, or was more prepared to argue the case before the Court than Topkis. Hoynes thought Topkis was “one of the smartest lawyers of his time.”
Topkis played only a nominal role after the trial. His name was on the Second Circuit and Supreme Court briefs, but he did not help draft them. Miller later admitted that one of his biggest tactical mistakes— apart from not encouraging players to attend Flood’s trial—was not tapping Topkis to argue Flood’s case “all the way through.”
Topkis’s involvement in the merits of the case ended soon after a February 16 letter to Goldberg. “Offering you help on a Supreme Court argument is as clear a case of lèse-majesté as I can imagine—but if there is anything that Max [Gitter] or I can do, please let us know,” Topkis wrote. The two men were no longer law partners and not close friends. Topkis merely extended Goldberg a professional courtesy. Four days later, Goldberg replied: “I believe that you and I have canvassed the ground so extensively that there is little need for a meeting between us on the subject.”
Instead, Goldberg’s help came from two associates in Paul, Weiss’s Washington office, Levitt and Peter Westen. They knew what they were doing. Levitt not only had clerked for Goldberg and Fortas on the Court, but also had written almost every word of the Flood briefs. Westen, who had clerked for Douglas during the 1969 term, also contributed to the legal research and Supreme Court briefing. In late February and March, Levitt and Westen wrote Goldberg memos to help him prepare for argument. They offered him hypothetical questions the justices might ask as well as possible answers. Westen discussed the state antitrust claims. Levitt critiqued Jacobs’s and Winter’s labor-exemption article.
In mid-March, Levitt and Westen met with Goldberg. Goldberg’s new office at Caplin & Drysdale at L and 17th was only a block away from Paul, Weiss’s Washington office on K and 17th. The two young associates did not formally act as justices and ask Goldberg questions at the podium (a process known among the Supreme Court bar as “mooting” or “moot court”). Having argued before the Court several times, Goldberg did not need or want such practice. Instead, he laid out the argument that he planned to make before the Court. Westen thought he “sounded terrific.” That night, Westen came home from work and told his wife that “it would be one of the great arguments of the year.”
Hoynes, who unlike Goldberg had never argued before the Court, was not leaving anything to chance. He took the train to Arnold & Porter’s office in Washington for a full moot court session. Hoynes stood at the podium in front of an Arnold & Porter conference table fielding questions from lawyers who had either clerked for or argued before the Court. It was Hoynes’s own mock Supreme Court.
There was a special chief justice presiding over Hoynes’s moot court session that day: Abe Fortas. Baseball did not retain a former justice to argue on its behalf, but it had one aiding its preparation for oral argument. After resigning from the Court because of a financial conflict of interest, Fortas had found his return to private life difficult. Arnold & Porter—the firm formerly known as Arnold, Fortas & Porter that he had helped build into Washington’s second-largest law firm and where his wife worked as a tax partner—did not want him back. An abrasive, take-no-prisoners personality, Fortas had alienated many of the firm’s young partners. It took a lot for Fortas, who had opened his own small law office in Georgetown, to return to his old firm’s offices.
Fortas attended the moot court session for only one reason—out of loyalty to his former partner and lifelong friend, Paul Porter. In November 1970, Fortas had written Porter a three-page memo evaluating the Flood case as only a former justice could. In the memo, Fortas correctly predicted that the Supreme Court would grant cert. He did not think Flood’s state antitrust claims or his 13th Amendment and indentured- servitude arguments would carry much weight. Nor did he think much of baseball’s labor-exemption argument. Toolson, Fortas believed, was on shaky ground. To preserve baseball’s antitrust exemption, Fortas suggested that the owners get a member of Congress to introduce legislation protecting baseball’s exemption and to negotiate modifications to the reserve clause with the union. Fortas wrote that ultimately “this is one of the relatively unusual cases in which approach and substance of presentation of issues to the Court may be of great significance.” The owners’ ability to preserve their exemption came down to oral argument. The justices, Fortas wrote, would not be eager to uphold Toolson on stare decisis grounds. “Reliance upon stare decisis will leave the Court (with the possible exception of one Justice) uncomfortable; and this is a dangerous state of mind for Organized Baseball,” Fortas concluded in his memo. “Only an appealing presentation of the special equities in this situation can counteract the unease which the Toolson result will generate.”
At Hoynes’s and Porter’s moot court session, Fortas brought more than just the ideas in his November 1970 memo and his experiences as a former justice; he also knew how to make a persuasive presentation at oral argument, having argued one of the Supreme Court’s landmark constitutional cases. Gideon v. Wainwright—prompted by a handwritten cert petition from an indigent inmate named Clarence Earl Gideon—won indigent criminal defendants the right to appointed counsel at felony trials. Fortas had briefed and argued the case pro bono at the request of the Court. He undoubtedly used his expertise as a former justice and esteemed oral advocate to grill Hoynes and Porter at their moot court session. Curt Flood may have been the Clarence Earl Gideon of the 1971 term, the lone individual taking on the establishment, but the baseball establishment had Gideon’s lawyer on its side.
CHAPTER FIFTEEN
During breakfast with Dan Levitt at the Hay-Adams Hotel on the morning of the Supreme Court argument, Arthur Goldberg revealed his new strategy. Goldberg figured that the Court knew the legal issues and had granted cert in order to reverse Federal Baseball and Toolson. He decided to step behind the lectern, talk for two or three minutes, and open the floor to questions. If the justices had no questions, he promised, he would sit down.
Levitt thought it was a bold strategy that only a former justice could pull off. The goal of oral argument is to present your best reasons why the Court should vote in your favor. Goldberg’s strategy meant that either he was supremely confident about winning, incredibly nervous about his return to the Court, or both.
A lot was riding on Goldberg’s argument. This was supposed to be his triumphant return to the Court after resigning in 1965. It also represented his chance to reclaim his position at the pinnacle of the Washington legal establishment. Goldberg’s reputation and career were not the only things hanging in the balance. Curt Flood had sacrificed everything—his playing career, his financial well-being, and his life in America—to get his lawsuit to this point. Goldberg needed to make the best possible showing so that Flood’s personal sacrifices would not be in vain.
The conventional wisdom is that cases can be lost but not won at oral argument. The Court’s earliest advocates, such as Daniel Webster, spoke for as long as they wanted; argument lasted for days. Over the years, the Court gradually reduced the time allotted for each side, from eight hours in 1848 to two hours in 1871, an hour and a half in 1911, one hour in 1925, and finally to a half hour in 1970, when Chief Justice Burger cut the time of oral argument in half so the Court could keep up with its expanding caseload. The justices on the Burger Court disagreed about the importance of oral argument. Brennan wrote that “truly skillful advocacy [makes] a difference only in a handful of cases.” Rehnquist opined that during oral argument “you do have an opportunity to engage or get into the judge’s mental process.” Oral argument does make a difference, particularly in a closely divided case such as Flood’s.
After revealing his plan to Levitt, Goldberg drove to National Airport to pick up Max Gitter and headed for the Court. On the way, Goldberg must have gotten himself
turned around crossing one of several bridges over the Potomac River into Washington, or ended up on the wrong side of the U.S. Capitol. He started to drive in circles searching for the Court. He was lost. Goldberg eventually found his old workplace, but it was not a good omen.
The Supreme Court building is difficult to miss. The white marble palace stands four stories high behind the Capitol and next to the Library of Congress’s Jefferson Building. Television cameras, not allowed in the courtroom, are set up on the 252-foot plaza. Two rows of eight marble columns help form the building’s portico. A sculpture, Liberty Enthroned, graces the top of the building, with the scales of justice across her lap; she is guarded by Order and Authority, with three figures on each side representing Council and Research. Engraved just below the sculpture is the famous phrase “Equal Justice Under Law.”
The public lined up on the Court’s marble steps for the chance to see Goldberg’s argument. The lucky ones walked through two bronze doors, which depict great scenes in legal history and weigh six and a half tons apiece, and down the main corridor, known as the Great Hall. The Great Hall is lined with double rows of marble columns and busts of the chief justices. Two oak doors lead into the courtroom, an expanse of mahogany and marble featuring 44-foot ceilings, 24 giant columns made from the finest Italian marble, and walls and friezes depicting great figures in legal history.
The courtroom filled up quickly on the morning of March 20. With seats for only 355 people, including the press and Supreme Court bar, the Court offered about 200 to 250 seats to the public. The press overflowed its small reserved section on the room’s left side. The justices’ law clerks scrambled for seats on the far right side. Bowie Kuhn sat among the spectators. Flood’s St. Louis attorney, Allan Zerman, also was on hand. They all wanted to see the Court address Flood’s case against baseball.
