by Brad Snyder
Several key members of Flood’s trial team were notably absent from the courtroom. Jay Topkis, who had planned on attending the argument before it was pushed back, was too preoccupied with his own legal practice at Paul, Weiss to watch Goldberg argue what should have been Topkis’s case. Marvin Miller was visiting spring training camps to rally his troops during a pension dispute that would lead to the first strike in the union’s history.
Miller was too busy with the impending strike to think about the strategic implications of having Flood in the courtroom. Many litigants do not attend oral argument. Muhammad Ali, for example, did not attend his. But there was something obviously personal at stake in Ali’s case—imprisonment. As a result of Flood’s decisions to return to base-ball, quit the Senators, and move to Europe, the outcome of his case appeared to have minimal impact on him personally—other than the highly unlikely recovery of damages if the case was remanded for trial. Flood’s presence at the Court that day might have reinforced how his decision to sue had ruined his life. Instead, he was out of sight, out of mind.
In Majorca, Flood reportedly worked part-time as a sports announcer for an English-language radio station. In January 1972, he began working at a bar. Miller did not say anything, but he knew from the trial that the last place Flood needed to spend his time was in a bar. Flood’s self-imposed exile had also cost him his true love. In February 1972, Flood’s former girlfriend, Judy Pace, married actor Don Mitchell from the television show Ironside. Flood was destitute, drinking too much, and in all likelihood still awaiting the $10,000 severance payment due April 28. The last place he wanted to be on the morning of March 20 was in that marble courtroom surrounded by the media, curiosity seekers, and baseball fans.
At 10 a.m., the marshal banged a gavel on a wooden block. The audiencerose. The marshal invoked the Court’s traditional greeting: “The honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court!”
The black-robed justices shook hands before walking through the red draperies behind four marble columns. They took their seats on the mahogany bench. At a cost of $8,500, Burger had ordered the bench sawed in three parts and angled. Unveiled the previous month, the new bench allowed the justices to see and hear who had asked a particular question during oral argument.
As the chief justice, Burger sat in the center seat. The associate justices sat in order of seniority with the most junior justices on the ends. The lineup, from left to right facing the audience, was as follows: Powell, Marshall, Stewart, Douglas, Burger, Brennan, White, Blackmun, and Rehnquist.
After four minutes of preliminary proceedings, Burger announced the first case in a clear, stentorian voice: “So first, this morning, in Number 71-32, Curtis C. Flood against Kuhn and others.” Burger paused for a moment, almost as if he did not know how to address a former member of the Court. The justices fretted about how to address their former colleague. They did not want to call him Mr. Justice or Arthur because they did not want to show favoritism. Many of them tried to avoid addressing him by name.
“Mr. Goldberg,” Burger finally said.
Goldberg was standing at the mahogany lectern only eight feet from the front of the justices’ elevated bench. It is impossible, from that position, to see all nine justices without turning one’s head. The podium is so close because the idea is to engage the justices in an intimate conversation. What often happens is that the justices end up having an intimate conversation among themselves, using persistent questions to the oral advocate as a conduit. “You have questions by one and you have to respond in terms of nine,” Fortas said after he had left the bench. The justices have often been described as nine separate law offices, or, as Justice Holmes reputedly put it, “nine scorpions in a bottle.”
Of the nine scorpions sitting on the bench that day, only four remained from Goldberg’s time on the Court: Brennan, Douglas, Stewart, and White. Of those four, he maintained close friendships and a steady stream of correspondence with only his fellow liberals, Brennan and Douglas. Goldberg had made two recent public appearances with the current justices—at Justice Black’s funeral on September 28, 1971, at the National Cathedral in Washington and at Justice Harlan’s funeral on January 4 in Connecticut.
Responding to Burger’s formal greeting at the lectern, Goldberg played it straight by uttering the traditional opening words at oral argument: “Mr. Chief Justice, and may it please the Court.” Goldberg briefly summarized Flood’s case as attacking the legality of the reserve clause under federal antitrust law, state antitrust law, and common law. He explained that the reserve clause bound players to their teams for life and extended throughout the major and minor leagues in the United States, Mexico, and Japan. Goldberg spoke slowly and haltingly—almost as if he had forgotten what he wanted to do or say. Blackmun, sitting in Goldberg’s old seat, thought Goldberg’s nasal midwestern monotone was an “unpleasant voice.”
Goldberg abandoned the strategy he had laid out at breakfast. Rather than open up the floor to questions (a dubious strategy) or explain to the Court why it should vote in Flood’s favor (the soundest strategy), he announced he was going to review the facts of Flood’s case. This might have been a good idea given Flood’s absence except for one problem: Goldberg knew nothing about Flood. He butchered the facts of Flood’s baseball career. He said Flood had signed a contract with the Reds at age 15 (he signed at 18). He said Flood had won “several Golden Gloves competitions,” as if Flood were a boxer. He also said Flood had been elected team captain by his teammates (general manager Bob Howsam had appointed him and McCarver).
Goldberg knew he was in trouble because he turned for help to the astonished Levitt and Westen, who were sitting at counsel’s table to the right of the podium. “Everybody in that courtroom knew that he froze,” Levitt said. “He did not realize how that was going to affect him, appearing before his brethren as a lawyer advocating.” Maybe it was his old friends, Brennan and Douglas, sitting on that mahogany bench where he should have been had it not been for Johnson’s persistence and Goldberg’s own ego. Maybe it was the knowledge that he was not as prepared as he should have been for oral argument.
Westen thought that Goldberg might have been “overconfident.” But when he turned to Levitt and Westen for help, it was clear that confidence was gone. Not having prepared anything about the facts of Flood’s case or playing career, they handed Goldberg a few notes in the hope that he would regain his train of thought.
Instead of shifting to the legal argument that he had supposedly practiced, Goldberg began listing Flood’s season-by-season batting averages. He repeated that Flood had batted “around .300” and that he had won “several Golden Gloves awards. These are awards given to someone for excellence in fielding.” He also repeated that Flood had received a form notice and a telephone call informing him of the trade from the Cardinals to the Phillies.
When Goldberg repeated the information about Flood’s Gold Glove awards, Levitt looked up from counsel’s table and saw Justice Brennan cringe. Brennan and Goldberg had shared adjoining chambers and had been allies on the Warren Court. Brennan’s pained expression indicated just how embarrassed he was for his friend and former colleague.
Goldberg droned on with a desultory discussion of the facts of Flood’s case, using up more than half of his time. He read the legal letters between Flood and Kuhn, pointing out the offensiveness of Kuhn’s “Dear Curt” opening; he read Judge Waterman’s description of the reserve clause; he repeated that it applied to the major leagues, minor leagues, Mexico, and Japan; he listed Flood’s federal antitrust, state anti-trust, and 13th Amendment claims (even though the last of the three had not been briefed before the Supreme Court); and he mentioned that after sitting out a year, Flood had failed in his comeback
attempt with the Senators. Blackmun wrote in his notes about the argument: “too much time on facts.” It was the understatement of the year.
Finally, after more than 17 minutes of Goldberg’s feeble factual recitation, the justices began to jump in with questions. Stewart asked how much the Phillies had offered Flood to play for them in 1970. Goldberg said Flood had been offered “an increase to $100,000 with salary and other benefits” (the Phillies had sent him a contract for $90,000 but originally offered him $90,000 plus $8,000 in spring training expenses). Goldberg then tried to answer the question “‘Why this high-paid ballplayer did this?’ He did it, as he simply said, out of principle. He no longer wanted to be treated as chattel property. He made that decision on his own, and although he has been supported in this litigation by the Players Association . . . this was his decision. . . . In fact he was told by the director, Mr. Miller, that he had a tough case. Nevertheless, he felt in good conscience he had to pursue it.”
Goldberg seemed to steady himself with this decent summation of Flood’s motives. The main point of Stewart’s question was to inquire about damages, but it painted Flood in an unsympathetic light because he had turned down a $100,000 contract. Goldberg—the driving force behind Flood’s 13th Amendment and involuntary-servitude claims— had explained, without using the exact words, why Flood considered himself “a well-paid slave.”
Rehnquist, sitting on the far right seat, pointed out that “[a]s a practical matter, though, he had no real chance of remaining in St. Louis and negotiating another contract with the St. Louis club; he would have had to go to one of the other teams, even if it hadn’t been for the reserve clause.”
Goldberg responded: “That’s right, Mr. Justice, provided this clause is legal. And I shall say it is not.”
A good oral advocate has to know when to agree with a justice and the implications of agreeing with the justice’s question or comment. Even if Flood had been declared a free agent, he would not have signed with the Cardinals, because they had indicated by trading him that they did not want him anymore. He likely would have signed with another team. Goldberg, however, did not get it. Rehnquist reiterated his point. Goldberg still didn’t get it. He had been tossed two softball questions and could not answer either of them.
The Supreme Court law clerks, watching from the far right side of the courtroom, were so embarrassed by Goldberg’s performance that they refrained from their usual snide comments. This was not the same man who had argued the Steel Seizure cases from federal trial court to the Supreme Court in three weeks. He was like an aging Willie Mays stumbling around in the New York Mets outfield in 1973, except that Goldberg had another 10 minutes left at the lectern to regain his footing.His performance soon moved Brennan and the other justices from pity to disgust.
Brennan asked: “Mr. Justice, may I ask you, suppose [the reserve clause] had been collectively agreed to, would your position be any different?”
Goldberg: “No, and I shall discuss that when I come to the labor exemption.”
Brennan was irritated. He had shown Goldberg a high degree of deference by calling him “Mr. Justice.” Goldberg had responded by committing one of the cardinal sins of oral argument: refusing to answer a justice’s question.
Brennan replied: “I hope you’re going to get to that. You’re talking rather . . .”
Goldberg: “I will move fast . . .”
The audience laughed.
“. . . because of the shortness of time.”
They were not laughing with him.
Goldberg had been asked a key substantive question. Even if Federal Baseball and Toolson were overruled, would Flood still lose because the reserve clause had been part of a labor agreement? Instead of answering it, Goldberg continued with his train of thought. He seemed to be lecturing his former colleagues rather than engaging them in an intimate conversation.
The image in Hoynes’s head was of Goldberg flipping pages. Neither Levitt nor Westen had prepared a written script for Goldberg, but he seemed to be reading from some type of outline and did not want to be interrupted. He had now broken a second cardinal rule of oral argument: Don’t read your argument. No oral advocate before the Supreme Court gets to march through his or her argument in order. Everyone is interrupted and asked questions. Goldberg was, in effect, asking for special treatment.
Brennan then asked if Federal Baseball and Toolson had to be overruled. “They would have to be overruled,” Goldberg said. “They should be overruled. They should be overruled for very good reasons.”
Brennan then pointed out that Federal Baseball and Toolson “both dealt with the issue of statutory construction” and “the Court doesn’t readily overrule statutory construction cases.”
Goldberg responded by alluding to Stewart’s unanimous opinion in another case reinterpreting the meaning of civil rights legislation, promising to return to that case “in a moment,” then naming the wrong case. Goldberg did return to the case later, but his opportunity to discuss stare decisis and several of the Court’s recent decisions reinterpreting the meaning of congressional statutes had been lost.
White asked why Federal Baseball, which said in effect that labor could not be commerce, was wrong. Goldberg responded that in Flood’s case, labor was a commodity. White tried to help Goldberg by reminding him that the Court had already rejected the labor-exemption argument in Radovich, its 1957 football decision.
Goldberg did not broach one of his most important arguments—if federal antitrust law did not apply, then state antitrust law did—until he was past the 29-minute mark. Goldberg needed to explain why state law was not preempted by federal law (as Judge Cooper had said) or did not apply because baseball was “so uniquely interstate commerce” (as the Second Circuit had said), but he was almost out of time.
Douglas asked: “Has this man left baseball?”
Goldberg, lost in his state antitrust argument, did not hear the question. “Pardon?”
“Has the petitioner left baseball?”
“Yes.” It was a question already addressed in the briefs. Many justices, however, do not read the briefs before oral argument. And some ask questions in order to lead into a more important question. That was the case here.
“Is the case moot?” Douglas asked.
“No, it is not,” Goldberg said. He explained that Flood had the right to recover damages from sitting out the 1970 season. Flood also could return to baseball either in the minor leagues or in Japan, places where the reserve clause still applied. These were decent factual answers. But Goldberg should have discussed the Court’s decision in Radovich v. NFL. In 1946 William Radovich, an all-pro offensive lineman with the Detroit Lions, was blacklisted for five years for breaking the reserve clause in his NFL contract and signing with the Los Angeles Dons of the rival All-America Football Conference. Two years later, the NFL threatened a minor league football team with legal action for trying to sign Radovich as a player-coach, and the team rescinded its offer. AlthoughRadovich did not file suit until after his playing days were over in 1949, the Court ruled that a group boycott could still be challenged because the antitrust laws “protect the victims of the forbidden practices as well as the public.”
The justices, by inquiring about mootness for the second time during the course of the argument, seemed to be asking themselves: What are we doing here? Why did we grant cert in the first place? The Supreme Court does not issue advisory opinions. It does not resolve hypothetical conflicts. It decides real disputes brought by real people. Curt Flood, the petitioner in this case, seemed to have nothing left at stake.
That’s why Flood’s reply brief, at Topkis’s urging, concluded with a discussion of the salary dispute between Oakland A’s owner Charlie Finley and his 22-year-old Most Valuable Player and Cy Young Award winner, pitcher Vida Blue. Blue made $14,750 for his phenomenal 1971 season, hired a lawyer, and asked for a raise to $92,500. A notorious tightwad, Finley refused to pay him more than $50,000. “I won’t trade him and I won’t sell
him,” Finley said. “Either he accepts what we have offered or he’s through in baseball.” Blue, who wrote the foreword to the paperback edition of Flood’s book, The Way It Is, announced his retirement. He claimed to have accepted a public relations job with a bathroom-fixtures company. In late April, Kuhn intervened, and Blue returned to the A’s in early May with a $63,000 salary. Blue’s contract dispute, however, signaled that there would be more Curt Floods.
Goldberg was well informed about Vida Blue. He had spoken on the phone with Blue’s attorney, Robert Gerst. Topkis had sent him a Red Smith column about the dispute, which was quoted in Flood’s reply brief. “Quite possibly,” Topkis wrote Goldberg on February 18, “some members of the Court will have lost enthusiasm for Curt Flood but may be stirred up by Blue.”
A good oral advocate would have mentioned Vida Blue’s contract dispute. A good oral advocate would have brought up the Court’s ruling in Radovich. A great oral advocate, one familiar with the trial record and Flood’s personal story, could have explained the sacrifices that Flood had made to get the case to this point—how he had left the Senators and refused to declare bankruptcy in part to maintain his lawsuit. Goldberg, however, was unfamiliar with the facts and was neither a great nor even a good oral advocate at this point in his legal career.
After 31 minutes, Goldberg said he would say a few more words and then reserve some time for rebuttal.
Burger cut him off. “Your rebuttal time is used up.”
Goldberg did not hear him and kept talking.
“Excuse me. Excuse me,” Burger said. “Your time is completely consumed, but we’ll extend it three minutes and enlarge yours three minutes, Mr. Porter.”
