by Brad Snyder
As the first case argued that day, Flood v. Kuhn was the first to be discussed. It was Burger’s job, as chief justice, to summarize the issues of the case. The other justices sometimes complained that Burger was ill-prepared for conference and relied too much on his law clerks’ memos. They admired the way Burger’s predecessor, Earl Warren, whom they referred to as the “Super Chief,” had conducted conference. Warren, who would often meet with Brennan the day before conference, would boil a case down to its essence and explain in plain English the moral or practical issues at stake. In contrast, Burger’s summaries tended to go off on tangents and often failed to capture the crux of the matter.
Burger’s view on Flood’s case was simple and straightforward: Toolson was wrong. President Nixon’s supposedly conservative chief justice had just voted to reverse two Supreme Court precedents. The other justices once again spoke in order of seniority.
Douglas found himself agreeing with Burger. He believed that Toolson was out of step with the Court’s other commercial decisions and that baseball’s antitrust exemption “muddies the waters.” Professional base-ball, football, and basketball should be treated alike. He voted to reverse and send it back for a new trial.
Brennan explained that he had joined Harlan’s dissent in Radovich precisely for the reasons articulated by Douglas—baseball, football, and basketball should be treated the same under the antitrust laws. He wanted to overrule Toolson and remand the case for a new trial about the labor exemption. Flood’s state antitrust claims, Brennan argued, were preempted by federal law. He thought there might be certain advantages to the reserve clause, but the Court did not have to reach that issue. It only had to overrule Toolson and send the case back for trial.
Brennan’s was the third vote to reverse. Flood 3, Baseball 0. Flood needed only two of the next six votes to win. But, again, these votes were tentative and designed to allow the assignment of the majority opinion. Once the justices read the majority and dissenting opinions, they could switch sides, turning the majority opinion into a dissent and vice versa.
Stewart voted to affirm. He argued that the Court had invited Congress to eliminate baseball’s exemption, and Congress, by doing nothing, had implicitly approved the exemption. The exemption, Stewart believed, affected the actual operation of baseball and was best left up to Congress to change. The state antitrust claims were preempted, he said, based on the Milwaukee case.
White voted to affirm. He agreed with Stewart.
Marshall also voted to affirm. This seems shocking in light of Marshall’s questions (and behavior) at oral argument. It reflects the adage that it is often a mistake to read too much into a justice’s questions and reactions at oral argument. Marshall, straying from fellow liberals Brennan and Douglas, believed that Stewart had made a more compelling argument.
Flood 3, Baseball 3.
Blackmun said that Federal Baseball had decided that baseball was a sport, not a business. He had misread Federal Baseball, which said base-ball was a business but in 1922 was not interstate commerce. Blackmun also said it was “untenable” to apply the state antitrust laws. He viewed this more as a labor dispute than an antitrust problem. He voted to “tentatively affirm.”
Powell, who later emerged as one of the Court’s moderates, agreed with Burger, Douglas, and Brennan to reverse. It made no sense to have an exemption for baseball but not for football. Congress’s failure to act was not equivalent to action. If the Court reversed Toolson, then Congress could act.
Before Powell spoke, however, he issued an important disclaimer. He owned stock in Anheuser-Busch and was not sure whether it owned the St. Louis Cardinals, one of the named defendants. If Anheuser-Busch owned the Cardinals, he promised, he would disqualify himself from the case. His views, therefore, were even more tentative than the other justices’.
Flood 4*, Baseball 4.
Rehnquist, the Court’s other conservative besides Burger, voted to affirm the exemption—with another important caveat. He agreed with Stewart that the Court had missed its chance to overrule Federal Baseball in Toolson and that Congress had failed to act. Rehnquist, however, disagreed with the lower courts about the state antitrust claims. He believed that even if Congress had exempted baseball by not acting, the state antitrust laws still applied. He wanted to send the case back for trial on that ground. During his ensuing 33 years on the Court, Rehnquist made it his mission to resurrect the power of the states. The federal courts, he believed, had trampled on state sovereignty. In 1972, however, Rehnquist was in the minority on states’ rights issues.
Flood 4*, Baseball 5.
The tentative votes were as follows:
Burger, Douglas, Brennan, and Powell for Flood.
Stewart, White, Marshall, Blackmun, and Rehnquist for Baseball.
Burger reiterated his decision to reverse. That placed him in the minority. The chief justice assigns the majority opinion only when he is in the majority. When he is in the minority, the most senior justice in the majority assigns the opinion. Burger restated his vote to reverse because earlier that term, such as in the abortion cases, he had been accused of assigning opinions when he had voted with the minority.
For the first time in his career, Stewart controlled the assignment of a majority opinion. Even as of the last term, Black, Douglas, Brennan, and Harlan had had more seniority. With Black and Harlan gone and Burger, Douglas, and Brennan in the minority, the opinion assignment in Flood’s case fell to Stewart.
Potter Stewart was one of the youngest justices ever named to the Court. Four years after naming him to the Sixth Circuit Court of Appeals, President Eisenhower nominated the 43-year-old Stewart to the Supreme Court in October 1958. A member of a prominent Cincinnati family, Stewart had attended Hotchkiss, Yale, and Yale Law School. He was regarded as one of the most handsome justices and also one of the most open with the press. Richard Nixon believed that Washington’s “social and intellectual climate” influenced Stewart; the president told Burger later that term that Stewart attended too many Georgetown dinner parties. At one of those parties in the spring of 1977, Stewart met journalist Bob Woodward and became the impetus and an anonymous source for Woodward’s and Scott Armstrong’s 1979 Supreme Court exposé, The Brethren.
Stewart did not announce his assignment of Flood’s case for a few weeks. The assigning justice generally waits a week or two before revealing his opinion assignments. After conference, the justices usually do not discuss cases in face-to-face meetings. They communicate through interoffice memos. During this phase of a Supreme Court case, they really do act like nine separate law offices.
On March 21, the day after conference, Powell circulated a two-paragraph note to his fellow justices:
I have now verified the fact that the St. Louis Cardinals are owned by a subsidiary of Anheuser Busch.
Accordingly, and regretfully, I am out of the case. Fortunately, this will not affect the result.
L.F.P., Jr.
Powell was out. The press and public would not learn of his decision until after the case had been decided. And even then, they would not know why Powell withdrew. Powell’s decision to disqualify himself was the subject of much speculation. Why would a justice withdraw from a case just because he owned stock in a company whose subsidiary owned one of the defendants—particularly if he had decided to vote against that defendant?
The decision to withdraw from a case is entirely up to the individual justice. The justice does not usually disclose why he or she chooses to withdraw, but there are exceptions. For example, Rehnquist participated in a 1972 case about an army surveillance program of suspected radicals despite having testified before the Senate on the issue while working for the Justice Department. He released a memo denying that his past involvement had amounted to a conflict of interest. More than 30 years later, Justice Antonin Scalia refused to withdraw from a case involving the Energy Task Force run by Vice President Dick Cheney even though Scalia had recently flown with the vice president on Air Force Two for a
private duck-hunting trip. Scalia released an exhaustive memo explaining his decision not to withdraw.
Powell’s decision to withdraw over stock ownership was not surprising in light of his Supreme Court nomination hearings. The biggest issue at Powell’s hearings was race. The second biggest issue was his stock ownership. Stock ownership had torpedoed one of Nixon’s prior southern Supreme Court nominees, Fourth Circuit judge Clement F. Haynsworth Jr. A well-respected jurist despite his conservative racial views, Haynsworth had voted on several cases involving companies in which he either owned or would later own stock. Haynsworth had been nominated to replace Abe Fortas, whose resignation, triggered by a financial scandal, had made the justices’ finances a point of emphasis. The Senate rejected Haynsworth’s nomination, 55-45.
Before his own hearings, Powell disclosed that he and his wife owned nearly $1.5 million in stocks, bonds, and other publicly traded securities. That included 880 shares of Anheuser-Busch stock, then worth $44,110. Powell planned to put all the stocks into a blind trust. The ABA, however, issued new ethical guidelines requiring judges to have knowledge of their financial holdings to allow them to avoid conflicts of interest. Powell testified before the Senate Judiciary Committee that he planned to sell most of his stock holdings except those that had increased enormously in value. He apparently held on to his Anheuser-Busch stock. Of his remaining stock holdings and former clients, Powell promised the Senate: “If they should be involved in litigation in court— certainly for the foreseeable future—I would not take part in it.”
Even with Powell out, Stewart still had to assign the opinion to someone who could maintain a bare five-vote majority. The eight remaining justices had not yet cast their official votes. Powell’s withdrawal gave baseball slightly more breathing room, but the tentative 5-3 majority could easily turn into a 4-4 tie if one justice switched his vote.
Stewart could have assigned the opinion to himself. He was a big Cincinnati Reds fan. During oral argument on October 10, 1973, Stewart received inning-by-inning updates of the fifth and deciding game of the National League Championship Series between the Mets and the Reds. One of Stewart’s law clerks passed him updates on small Supreme Court note slips. He learned that the Reds had stranded the bases loaded in the first. Then came another update: “Mets 2, Reds 0. V.P. Agnew Just Resigned!!” Two years later, Stewart won $4 in a pool among the justices about the 1975 Reds-Red Sox World Series. He also exchanged notes on the bench with Blackmun about the Reds’ fast start during the 1980 season.
Stewart did not take Flood’s opinion for himself because he knew the best way to preserve a bare five-vote majority—assign the opinion to a justice on the fence. White and Marshall seemed to be in total agreement with him. Rehnquist also firmly agreed to uphold baseball’s exemption, but his views on the state antitrust claims were out of step with those of the rest of the Court and might jeopardize the majority. That left the one justice who had voted to “tentatively affirm”—Harry Blackmun.
Harry A. Blackmun’s best childhood friend was Warren Burger. They had grown up together in the same St. Paul neighborhood. Blackmun was the best man at Burger’s wedding. They maintained a long-distance friendship for 20 years as lawyers and appeals court judges through extensive correspondence. Upon being confirmed as chief justice, Burger asked Blackmun for suggestions about how to run the Court. The media tagged them with the nickname of Blackmun’s favorite baseball team, “the Minnesota Twins.”
Blackmun was one of the Court’s biggest baseball fans. Growing up in St. Paul, he rooted for the minor league St. Paul Saints and the Chicago Cubs. At a Washington luncheon in August 1970, a Minnesota company presented him with a Senators cap and autographed team baseball. The Twins, however, had become Blackmun’s team. The SportingNews revealed in May 1970 that Blackmun possessed “ ‘a vast mental storehouse’ of baseball records and lore.” The publication predicted during Flood’s trial that “[t]he presence of Justice Blackmun in Washington should be of significance when Curt Flood’s suit against the reserve clause reaches the Supreme Court.”
Blackmun needed the Flood opinion to boost his confidence. He had only one full Supreme Court term under his belt and was still feeling his way. On paper, he possessed all the right credentials: summa cum laude as a Harvard math major, Harvard Law School, partner at a Minneapolis law firm, counsel to the Mayo Clinic, and 10 years as an Eisenhower-nominated Eighth Circuit judge. Yet he frequently referred to himself as “old number three,” Nixon’s third choice to replace Fortas after Haynsworth and G. Harrold Carswell. Maybe the Court’s cloistered, scholarly environment reminded Blackmun of the academic pressure of Harvard Law School, where he had finished 120th out of 451 students in his class.
Blackmun struggled with an essential part of a Supreme Court justice’s job—deciding cases. The stress of decision making had driven Justice Charles Whittaker to physical exhaustion and had forced his retirement from the Court in 1962 after just five years. As an Eighth Circuit judge, Blackmun had felt that the Supreme Court could correct any of his erroneous appeals court opinions. Now he was working without a safety net. Blackmun’s problem was that he sought a clear answer to each case as if he were figuring out an algorithm. He wrote opinions that seemed to balance the equities on each side and then announced his decision at the end. A more experienced justice would advocate his position and try to persuade the rest of the Court (and the public) that he was right.
Blackmun’s preargument notes on Flood v. Kuhn reveal how much he agonized over the case’s outcome. On February 28, he received a bench memo from one of his law clerks, John Rich. Blackmun then outlined his thoughts about the case in his distinctive shorthand on blue-lined notebook paper. His notes indicate that he agreed with Flood’s position. He was “willing to overrule Federal Baseball and Toolson” because baseball “cannot escape the interstate commerce aspect today.” He described the application of state antitrust laws as a “horror” that should warrant preemption. He wanted to “bring all professional sports into a consistent pattern.” As for baseball’s arguments, he found its reliance interests “unpersuasive,” while the “collective bargaining approach does not appeal to me.” He concluded that the reserve clause was a “per se violation of the federal antitrust laws.”
The Harvard math major then mapped out the decision’s different permutations:1. Affirm Federal Baseball and Toolson, refuse to declare baseball interstate commerce or a business, and leave it up to Congress and collective bargaining; or
2. Overrule Federal Baseball and Toolson, recognize baseball as a business, Congress is never going to fix problem, apply federal antitrust law, and pre-empt state antitrust laws as “insufferable,” and avoid collective bargaining.
Blackmun chose option two and reached the following tentative conclusions:1. Overrule Federal Baseball and Toolson—“this is desirable.”
2. Apply federal antitrust laws per Radovich.
3. No labor exemption.
On March 15, five days before oral argument, Blackmun scribbled out two more pages of thoughts about Flood’s case. He asked himself what would be the result of overruling Federal Baseball and Toolson. He believed the rich teams would not acquire all the best players because that did not happen in football. But, he added, “I suspect it would be a disaster and that baseball would protect itself.” He described the application of antitrust laws of different states as “intolerable” and an “abomination.” He agreed with his law clerk’s memo that this was really a labor dispute because the monopoly affected only the players, not consumers. “Cert,” Blackmun wrote, “therefore should have been denied. But it was granted.”
Blackmun concluded five things about the case:1. Abandon Federal Baseball and Toolson in any event.
2. Place it on a labor basis . . .
3. If not, follow Radovich.
4. State antitrust law is pre-empted.
5. Hope for the best.
He then wrote down a few possible questions for oral argument. He asked
about the institution of baseball’s free-agent draft in 1965, which essentially prevented players from ever choosing which team they played for—a fact that Blackmun believed made the reserve clause even more troubling. His switch to “tentatively affirm” at the March 20 conference could be attributed to Hoynes’s persuasiveness (or Goldberg’s lack of persuasiveness) at oral argument, the comments of more senior justices Stewart, White, and Marshall at conference before Blackmun announced his vote, or Blackmun’s chronic indecisiveness.
Stewart thought Flood v. Kuhn was an easy case. He described it to Woodward and Armstrong as “a case of stare decisis double dipped.” He figured that he could assign the Flood opinion to Blackmun to build up his confidence. Blackmun, the Court’s resident medical expert as the former counsel to the Mayo Clinic, had already been saddled with writing the Court’s abortion decisions that term. Flood v. Kuhn would be a quick and painless diversion.
On the day of the conference, Stewart asked Blackmun to write the majority opinion in Flood v. Kuhn as a one-paragraph unsigned opinion, known as a per curiam, along the lines of the Court’s opinion in Toolson.
“Harry, do it very briefly,” Stewart told Blackmun. “Write a per curiam and we’ll get rid of it.”
