A Well-Paid Slave

by Brad Snyder

  Supreme Court clerks watching the argument thought it was one of the few statesmanlike and magnanimous gestures that Burger had made during the entire term. The extra three minutes allowed Goldberg to preserve a shred of dignity.

  Instead of immediately sitting down and saving his newfound rebuttal time, Goldberg continued to discuss the labor exemption. Flood’s best arguments—that Federal Baseball and Toolson were wrongly decided and Flood’s state antitrust claims were not preempted by federal anti-trust law—fell by the wayside. “He never got to make his argument,” Levitt said.

  The justices, who had asked Goldberg very few questions compared with other litigants, just let him exhaust himself. Embarrassed and irritated, they knew that he was not up to the task. Goldberg talked about the labor exemption for another three minutes and then sat down.

  “Thank you,” Burger said. “Mr. Porter.”

  Paul Porter’s job was to introduce himself as the commissioner’s lawyer, to explain the commissioner’s role in the governance of Major League Baseball, and to hand the case over to Hoynes. Porter was not supposed to answer questions and consume Hoynes’s time and argument. In preparing for the argument, one of the lawyers reminded Porter what Bill Veeck had told his midget batsman, Eddie Gaedel—that if he lifted the bat off his shoulder, Veeck would be on the roof with a high-powered rifle and shoot him dead. “If you answer one question,” the lawyer joked, “there’s a guy with a high-powered rifle in the back of the Supreme Court.”

  The justices, however, wanted answers. And they had not received any from Goldberg. After Porter intoned in his gravelly voice, “Mr. Chief Justice, may it please the Court,” he tried to stay true to his task. He explained his role as the commissioner’s lawyer and that Hoynes would discuss why “this litigation involves basically a labor dispute.” He tried to explain the commissioner’s supposedly neutral position in baseball, but the justices stopped him cold.

  Brennan asked if the structure of baseball was different from those of other sports.

  Porter explained that the minor leagues, which accounted for 25 percent of baseball’s revenues, made baseball unique. He referred to the commissioner’s prior testimony that the reserve clause was essential to equalize competition and to ensure the integrity of the game.

  White jumped in and asked: “But doesn’t this go to whether it would be a violation of the antitrust laws rather than to coverage [whether baseball was subject to federal or state antitrust law]?”

  Porter answered that this union-driven lawsuit was really a labor dispute that should be resolved at the bargaining table, as Hoynes intended to explain in his argument. Porter was trying to extricate himself from the lectern. The justices would not let him go.

  “But Mr. Porter,” Brennan asked, “you just said this litigation was brought by the players union?”

  Porter explained that it was financed by the Players Association.

  “Are you saying this is their lawsuit, not Flood’s?” Brennan asked.

  “Absolutely, yes, sir . . . with the exception of the petitioner, Mr. Flood, all the witnesses in support of Mr. Flood’s case testified that some form of reserve system was essential.”

  Porter’s response touched on a key theme of baseball’s argument— marginalizing Flood’s role in the litigation. It also led perfectly into Hoynes’s argument that this really was a labor dispute governed by labor law. Even though he had strayed from his task of talking about the commissioner, no one shot Porter down. He had helped baseball’s cause. With that, he excused himself and yielded the lectern to Hoynes.

  Hoynes wanted to give the justices a better reason to uphold Federal Baseball and Toolson than just stare decisis. He did not want to argue that they had to uphold those decisions even though they made no sense. That’s where the labor exemption came in. Hoynes wanted to argue that the reserve clause was part of a labor agreement, would be subject to future negotiations, and therefore was immune from antitrust lawsuits. The labor exemption, Hoynes believed, gave stare decisis meaning. It gave the justices a reason for voting his way. If only the justices would give him the opportunity to state his case.

  Hoynes’s journey to the Supreme Court had not been without incident. He and two young Willkie Farr associates had arrived in Washington the day before by train. They rented a car and piled all their clothes, briefs, case law, argument books, and notes into the trunk. One of the young associates, after being asked whether he had the car keys in his pocket, proceeded to lock the keys in the trunk. It was the night before the biggest argument of his life and Hoynes could not study his notes. Two hours later, the ashen-faced associate had unlocked the trunk and arrived at the hotel with Hoynes’s notes.

  By the time Hoynes reached the lectern, the justices were salivating for some answers to their questions.

  “Mr. Chief Justice, and may it please the Court,” Hoynes said. “I am counsel for the National League, and I here represent the 24 major league clubs and the two major leagues. The two issues presented here are—”

  The justices, as they typically did with the second person at the podium, cut Hoynes off in midsentence. They wanted answers now.

  “It is your position that baseball is not commerce?” Douglas asked.

  Hoynes conceded that it was. Baseball had admitted as much in its answer to Flood’s initial complaint.

  Hoynes stayed on point that this dispute was “much broader than Curt Flood’s particular situation” and that the “real protagonists are the players union, the Major League Baseball Players Association, and the major league clubs.”

  The justices continued to pepper Hoynes with questions.

  White asked whether all players belonged to the union. Yes. White asked whether Hoynes’s position would be the same if the petitioner were a minor league player. Hoynes conceded that the union did not represent the interests of minor leaguers. But, during an extended colloquy with White, Hoynes maintained his position that any modification to the reserve clause must be resolved in labor-management negotiations.

  Of the nine justices on the bench that day, Hoynes tried to make extra eye contact with White. A former All-America halfback at the University of Colorado and runner-up for the Heisman Trophy, Byron “Whizzer” White postponed his Rhodes scholarship in 1938 to play one season with the National Football League’s Pittsburgh Pirates (later renamed the Steelers). His $15,800 salary doubled the highest ever paid in the nascent NFL. He passed, punted, kicked, and led the league in rushing. After White returned from Oxford and began his first year at Yale Law School, Pittsburgh sold White’s contract to the Detroit Lions for $5,000. White deferred his second year at Yale to play for the Lions. He accepted a more than 50 percent cut in salary to $7,500 and played two seasons for Detroit in 1940 and 1941. One of his teammates on the Lions was William Radovich.

  World War II ended White’s football career and further interrupted his legal education, but launched his career in politics. As an intelligence officer in the Pacific, he wrote the official report about the mysterious sinking of PT boat 109 manned by Lieutenant John F. Kennedy. The two men had met and become friends while White was at Oxford. White finished at the top of his class at Yale Law School and clerked on the Court during the 1946 term for Chief Justice Fred Vinson. After 14 years at a Denver law firm, he served as the national chairman of Citizens for Kennedy during the 1960 presidential campaign and as deputy to Attorney General Robert Kennedy. In that role, he flew to Alabama to protect the Freedom Riders and negotiate with Governor John Patterson. In April 1962, President Kennedy nominated White to the Court.

  White turned out to be far more conservative than the Court’s other Democratic nominees. Burger indicated to Nixon that White would be a suitable replacement for him as chief justice. “This guy is our reliable swing man right now,” Burger told Nixon in June 1972. “He’s the one when we run 5-4, he’s the guy who usually saves it.”

  White was a tough guy. He despised the nickname the sportswriters had foisted on him at t
he University of Colorado. No one except a few old football teammates called him Whizzer to his face. He never seemed to smile, asked extremely tough questions from the bench, and terrified some of the law clerks with his ferocious play on the Supreme Court’s top-floor basketball court (the “highest court in the land”). He had been mentioned in both 1965 and 1969 as a possible replacement for Ford Frick and William Eckert as commissioner of baseball. A few people even tried to draft White as the Democratic presidential candidate in 1972 against Nixon.

  Hoynes knew that he needed White. No one else on the Court had experienced life as a professional athlete or been sold like a piece of property. The Court, Hoynes believed, would follow White’s lead in a case about sports. He was the ultimate swing vote in Flood’s case.

  Thurgood Marshall picked up on White’s question that a minor leaguer was not protected by the union and therefore baseball could not be immune from all lawsuits under federal labor law. Marshall spoke in a slow southern drawl that he had picked up in the segregated black middle-class Baltimore neighborhood of his youth and from defending blacks in courtrooms throughout the South as the top litigator for the NAACP Legal Defense and Educational Fund. Marshall dismantled the legal justification for racial segregation through a series of cases brought on behalf of black students culminating with his argument in the seminal case of the 20th century, Brown v. Board of Education. As an NAACP lawyer, he won 29 of the 32 cases he had argued before the Supreme Court. In 1961, President Kennedy appointed Marshall to the Second Circuit. Four years later, President Johnson made him the first black solicitor general, then nominated him for the Court in 1967.

  Marshall’s first law clerk on the Second Circuit was Ralph Winter, a Yale law professor (and future Second Circuit judge) and coauthor of the Yale Law Journal article about Flood’s case and the labor exemption. Winter’s article mirrored baseball’s argument that since the union had included the reserve clause in the collective bargaining agreement, then one of its members, namely Flood, was not allowed to turn around and sue baseball under the antitrust laws. If Winter wrote it, then Marshall took notice of it. Marshall used Hoynes to denigrate the union.

  “Mr. Hoynes,” Marshall said, “how far does this representation of Flood go? For example, did the owner consult with the Players Association about this movement?”

  Of Flood’s trade, Hoynes said it did not. The trade was conducted under the rules of the bargaining agreement.

  Marshall was only beginning. “My question was,” he said, “how much representation did Flood get from this outfit . . . [a]s to this trade which is the basis of this suit? Now, what position did the union take on that? Or do you call it a union?”

  “I call it a union, your Honor,” Hoynes said. “The union met with Flood and agreed to finance the litigation. It is quite transparent . . . that the union has controlled this litigation from beginning to end.”

  Marshall kept on Hoynes: “So you’re saying that a union, which says to management, ‘You can pick up a man and throw him out the door,’ without any recovery, that that’s a union?” Hoynes denied that the union had agreed to that or that it had happened that way in this case.

  Marshall repeatedly asked Hoynes where the record showed that the union had agreed to the reserve clause. Hoynes kept insisting that the union had agreed to it in collective bargaining. Marshall touched on the most disputed factual issue in the entire case. If Marvin Miller had been arguing for Flood, he would have said that the union had declared the reserve clause illegal during negotiations over the 1968 Basic Agreement and that both sides had agreed to set the reserve clause issue aside for the purposes of the latest agreement. But Miller was not there. And, technically, even though the union had reserved its right to challenge it, the reserve clause was part of the 1968 Basic Agreement governing Flood’s lawsuit.

  These were questions that Marshall should have asked Goldberg. Goldberg, however, did not answer many of the justices’ questions and had not been up to the task of answering the ones he did. So Marshall posed them to Hoynes.

  “Well, what good is the union?” Marshall asked. “What has it done concerning individual players’ relationships? . . . Wouldn’t you say nothing? . . . Wouldn’t you say under the reserve clause there was no room for bargaining?”

  There was the rub. A clever former criminal defense attorney who had cross-examined many witnesses, Marshall fired off this series of questions, not allowing Hoynes time to answer, to make his point. The labor-exemption argument was predicated on the assumption that both sides had started at an equal place in the negotiations.

  Hoynes tried to respond. He argued that Flood’s lawsuit prevented negotiations over the reserve clause from taking place.

  “How is this union protecting this individual, the named petitioner, Curtis C. Flood?” Marshall asked.

  Hoynes said the union bargained for future benefits. He then explained how Flood had returned to baseball with the Washington Senators, but that his poor play on the field and financial and business problems off the field had forced him to leave the team and the United States. He emphasized that baseball officials wished that Flood had kept playing.

  “None of this is in the record?” Marshall asked. “His playing with Washington or any of this other business.” Hoynes said it was not, even though both of Flood’s briefs acknowledged that he had tried and failed to make a comeback with the Senators.

  “That’s what I thought,” Marshall said. As soon as he said that, Marshall swiveled in his chair and turned his back on Hoynes. Thanks to the Court’s new angled mahogany bench, all the justices saw Marshall’s rude little display. At that moment, Hoynes knew that he had gained the sympathy of the other justices.

  Marshall’s antics gave Hoynes time to regroup. Hoynes kept the focus away from Federal Baseball, Toolson, or, God forbid, Flood’s state antitrust claims. He stuck to his strategy of portraying this as a union-driven lawsuit, a glorified labor dispute in which Flood played only a nominal role. “[T]he players union is entirely in control of this litigation, and . . . it is concerned less with remedying any alleged wrong that may have been performed on Mr. Flood than it is trying to reorganize the employment relationships in professional baseball,” Hoynes said. “In other words, the union is after larger game here.” As proof, Hoynes explained that at trial Flood favored complete elimination of the reserve clause and all the union’s other witnesses favored modification. “This testimony represented a repudiation, really, of Mr. Flood’s position, and left him the forgotten man for the remainder of the case.”

  White, perhaps embarrassed by Marshall’s behavior, threw what Hoynes described as “hanging curveballs” about the labor exemption. White asked why the union did not negotiate individual salaries (neither the players nor the owners wanted it that way because of the players’ vastly different skill levels and salaries). He asked why the reserve clause couldn’t apply to some players and not others (it would not be workable). He asked what if the owners suddenly decided to set a maximum salary of $100,000 (such a maximum would have to be negotiated with the union, and unilaterally instituting such a system would be “improper”). He asked if Hoynes opposed a remand to a lower court to consider the labor-exemption issue (Hoynes did not oppose it but thought the record was clear on the issue).

  White’s line of questioning allowed Hoynes to bring up Jacobs’s and Winter’s Yale Law Journal article. Hoynes’s associate, Robert Kheel, held up a copy of it. Hoynes discussed Congress’s failure to pass any legislation to take away the exemption. He ended with a nod to stare decisis and the Court’s decisions in Federal Baseball and Toolson. With that, Hoynes finished his argument with a minute to spare. He never answered any questions about why the Court should continue to follow the logic of Federal Baseball or why Flood did not have valid claims under state anti-trust law.

  By all accounts, Hoynes had done a masterful job of putting baseball’s best foot forward. He engaged the justices, answered their questions, and steered the disc
ussion to the issue he wanted to discuss. “They got my best that day,” Hoynes recalled recently. “Thirty years later, I could not have done a better job.”

  What Flood needed was a strong rebuttal. Goldberg, however, had exhausted all his rebuttal time. That did not stop him from trying.

  As Hoynes finished his argument, Goldberg picked up his notes and made his way to the lectern. Solicitor General Erwin Griswold, the dean of Harvard Law School when Hoynes had been a student there, approached from the left to argue the next case. The justices’ eyes widened in horror at the thought of Goldberg speaking again. Hoynes kept both hands on the lectern. He then turned around and stepped between the lectern and Goldberg, allowing Griswold to slide by. Griswold winked at Hoynes and grabbed the lectern. It was a perfect pick play. Hoynes’s Indiana high school basketball coach would have been proud.

  “Thank you, gentlemen,” Burger intoned at 11:12 a.m. “The case is submitted.”

  With that, Griswold said, “May it please the Court,” with Goldberg still standing behind him.

  After Goldberg gathered his briefcase and made his way out of the courtroom, he told Levitt: “That was the worst argument I’ve ever made in my life.”

  Levitt later agreed: “It was one of the worst arguments I’d ever heard—by one of the smartest men I’ve ever known, in the setting where he should have been a super advocate. It was like he choked.”

  Goldberg walked through the double oak doors, across the Great Hall, and down the Court’s marble steps. He held an impromptu press conference for the waiting television cameras. After the glare of television lights was gone, an Associated Press photographer caught Goldberg on the Court’s plaza near one of the fountains with a downcast look on his face.

  If ever a case had been lost at oral argument, Flood’s was it.

  CHAPTER SIXTEEN

  Nearly five hours after Goldberg’s argument, the justices met in conference to discuss the four cases argued that day. The conference on the merits of argued cases is more like a straw poll than an extended dialogue. The justices do not usually engage in a back-and-forth discussion. They merely state their views on the case and reveal their tentative votes. This process is important for two reasons: First, it is the last face-to-face meeting of all the justices about the case; and second, it allows the chief justice (or the most senior justice in the majority) to assign a justice to write the majority opinion about the case. Once again, no law clerks, secretaries, or court personnel attend the conference. The justices meet and talk in private. The only record of what is said comes from the justices’ handwritten notes.