A Well-Paid Slave

by Brad Snyder

  On April 3, Stewart informed the other justices of his assignment of the Flood case to Blackmun.

  The press and legal community waited and weighed in with predictions. Before oral argument, Las Vegas prognosticator Jimmy “the Greek” Snyder placed three-to-one odds that the Court would rule against Flood. After the argument, a Flood sympathizer agreed—and not because of Goldberg’s performance that day. David Feller, Goldberg’s former law partner who had helped craft a response to the labor-exemption argument, told the Washington Evening Star that the baseball strike in early April made it less likely that Flood would prevail. The strike cast Flood’s lawsuit more as part of an ongoing labor dispute. The reserve clause, Feller said, would be resolved either at the bargaining table or through another strike. Goldberg jokingly chided Feller that his remarks failed to show the proper deference to his former “senior partner.” Feller replied in good humor: “I didn’t say that Flood would lose in the Supreme Court. What I did say was that I thought the strike had increased the odds in favor of a loss because it made the labor exemption issue much more credible.” Feller also believed the strike had made Miller and his union more powerful—powerful enough not to need the Court’s help in toppling the reserve clause. Feller confessed to harboring “a somewhat cynical view of the Court’s processes and a suggestion that the Court looks at the realities of the power situation in making its decisions rather than the questions of law which in theory govern it.”

  One of Kuhn’s lawyers, Victor Kramer, offered an implausible theory about why the owners would win. “It’s in the bag,” Kramer told Dan Levitt, one of Flood’s lawyers. “Baseball has arranged to let the justices know on the social circuit in Washington that if they come out the right way on this, Washington will get its baseball team back.” The Senators had left Washington after the 1971 season to become the Texas Rangers. And even though Kuhn was desperately trying to lure another major league team to his old hometown, there was no evidence to support Kramer’s claim. President Nixon had warned his Supreme Court nominees to stay away from the Washington cocktail party circuit. Stewart was a fixture at such parties, but nothing suggests that he or any other justice had spoken with baseball officials. The only justice with the nerve to discuss pending cases with Nixon was Burger. Burger told Nixon on June 14, 1972, about a “capital punishment case coming down in two weeks” and “busing cases next term,” but Flood v. Kuhn never came up. Burger, moreover, had cast his initial vote in Flood’s favor. Kramer’s information seemed to be fueled more by bluster, bitterness over not having argued the Flood case before the Supreme Court, and Georgetown party gossip than by fact.

  Blackmun read some predictions about the case. He clipped an article from the Washington Evening Star published the day after the oral argument under the headline: “Remand Likely in Flood Case.” That prediction seemed to read too much into some of the justices’ questions. He also saved a short item from the April issue of Sports Illustrated about Michigan State political scientist Harold J. Spaeth using a computer to predict Flood’s victory. Spaeth tallied how the justices had voted in prior antitrust cases. He forecast that baseball’s antitrust exemption would be overruled and that the legality of the reserve clause would be decided by a lower court. He predicted that “[t]he vote should be unanimous, with a possible Rehnquist dissent.” Spaeth, however, failed to account for the difference between antitrust cases and baseball cases. The justices were not machines; they were men. And baseball turns men—even ones with life tenure—into boys.

  An opinion that, in Stewart’s view, should have taken Blackmun hours ended up taking him days and weeks. The Court used to be the only branch of government in Washington that did its own work. Many of the justices, however, increasingly turned to their law clerks to write first drafts of their opinions. To his credit, Blackmun tackled his Flood v. Kuhn opinion on his own. He holed up in the justices’ private library on the second floor of the Supreme Court building and wrote the opinion in longhand on an antique wooden desk. He worked on the opinion from April 14 to early May. No one knew what was taking him so long. The books Blackmun took with him to the library might have provided clues: The Baseball Encyclopedia, Lawrence S. Ritter’s The Glory of Their Times, and Harold Seymour’s and David Quentin Voigt’s histories of baseball.

  On May 4, Blackmun sent Stewart a two-paragraph note:

  Dear Potter:

  I have a proposed Per Curiam for this case at the Printer. I must confess to you that I have done more than merely follow Toolson with a bare peremptory paragraph. That case, for me, proved to be an interesting one, and I have indulged myself by outlining the background somewhat extensively. As a matter of fact, this has prompted me to conclude that Federal Baseball and Toolson have a lot to be said for them. When I finally get to the heart of the matter, however, I give it rather summary treatment. The briefs on both sides are good and I rationalize by saying that they deserve at least this much.

  Please give the opinion a reading and let me have your general reactions. The case, supposedly, is critical for the baseball world. I am not so sure about that, for I think that however it is decided, the sport will adjust and continue.

  The next day, Blackmun circulated the first printed draft of his entire opinion to the rest of Stewart’s colleagues.

  Part I of Blackmun’s opinion, titled “The Game,” expounded on baseball’s history in three extended paragraphs, mentioning the first recognized official game in 1846 at Hoboken’s Elysian Fields, the founding of the Cincinnati Red Stockings in 1869, the creation of the National League, the rise and fall of various rival leagues, the 1919 World Series fix, the shifting and expansion of franchises, the institution of the new player draft in 1965, and the formation of the Major League Baseball Players Association in 1966 (Miller became its first full-time executive director that year, but it had been in nominal existence since 1954).

  Blackmun’s next paragraph created the most controversy and subjected him to the most ridicule. “Then there are the many names,” it began, “celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season.” He then proceeded to list 79 players in baseball history, beginning with Ty Cobb, Babe Ruth, Tris Speaker, and Walter Johnson and ending his original list with Bill Dickey, Zack Wheat, George Sisler, and Charlie Gehringer. “The list seems endless,” Blackmun wrote.

  Blackmun’s list did not consist only of Hall of Famers or players strictly of a certain skill level. It was more eclectic than that. It included all 26 players interviewed by Lawrence S. Ritter for his classic oral history, The Glory of Their Times: The Story of the Early Days of Baseball Told by the Men Who Played It. Those players, scattered throughout Blackmun’s list, included Hall of Famers Rube Marquard, Wahoo Sam Craw-ford, Edd Roush (who sat out the entire 1930 season because of a contract dispute), Goose Goslin, and Paul Waner, but also obscure players including Fred Snodgrass (best known for a dropped fly ball in the 1912 World Series) and Bill Wambsganss (who once turned an unassisted triple play). Blackmun’s list even included some of the game’s great characters merely mentioned in Ritter’s book, such as Germany Schaefer. “These are names only from earlier years,” Blackmun explained in a footnote. “By mentioning some, one risks unintended omission of others equally celebrated.” His criteria for inclusion on the list seemed as idiosyncratic as his vote on Flood’s case.

  Blackmun followed up his list of players with more useless baseball arcana. He referred to Ring Lardner and the “World Serious,” Ernest Lawrence Thayer’s poem “Casey at the Bat,” and “the ring of ‘Tinker to Evers to Chance.’ ” He included the entire poem about the Chicago Cubs’ aforementioned double-play combination—“Baseball’s Sad Lexicon” by Franklin Pierce Adams—in a footnote. He also quoted George Bernard Shaw describing baseball as “the great American tragedy.” The list of retired baseball greats, however,
became Blackmun’s obsession and the defining aspect of his opinion.

  The rest of Blackmun’s opinion was fairly straightforward. Part II discussed the facts of Flood’s career and listed his annual salary figures. Flood received less than three printed pages. Part III quoted extensively from the lower court opinions of Judge Cooper and the Second Circuit. Part IV reviewed in detail all the Court’s opinions touching on baseball’s antitrust exemption, including Federal Baseball and its interstate commerce underpinnings; Toolson and the cases that followed about theatrical performances, boxing, football, and basketball; and the proposed congressional legislation over the years. Finally, Part V—only 4 of the opinion’s 27 pages—provided the reasoning behind his decision.

  After conceding that baseball was a “business and it is engaged in interstate commerce,” Blackmun characterized baseball’s antitrust exemption as an “exception,” “anomaly,” and “aberration.” “Even though others might regard this as ‘unrealistic, inconsistent or illogical,’ the aberration is an established one. . . . It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court’s expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball’s unique characteristics and needs.”

  Recognizing that the Court had refused to grant other professional sports similar immunity, Blackmun placed blame for baseball’s exemption on Congress: “We continue to be loath, 50 years after Federal Base-ball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long.” Never has a Supreme Court opinion turned on a more oxymoronic phrase than “positive inaction.” Blackmun passed the buck to a political body that he knew would not remove baseball’s exempt status: “If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court.” After upholding Federal Baseball and Toolson on stare decisis grounds, Blackmun ruled that Flood’s state anti-trust claims were preempted by federal law. He found no reason to address baseball’s labor-exemption argument.

  Blackmun still needed four additional votes for a majority opinion. Stewart read Blackmun’s first draft with chagrin. He had instructed Blackmun to write a one-paragraph per curiam, and Blackmun had come back with a 27-page ode to baseball. Blackmun’s paean to the national pastime was not even original—Judge Moore had already written an even more fawning concurring opinion in the Second Circuit. Instead of addressing Flood’s claims in a legally rigorous way, Blackmun’s opinion called attention to the Court’s past blunders and portrayed the justices as a bunch of sycophantic baseball fans.

  Stewart, however, did not want to jeopardize Blackmun’s already fragile psyche. He instead called Blackmun and asked him about his list of famous ballplayers.

  “I like that history of baseball,” Stewart said, “but why didn’t you name Eppa Rixey?”

  “Didn’t I name Eppa Rixey?” Blackmun asked.

  “No,” Stewart replied. “And you know what a famous player he was for the Cincinnati Reds. If you will add him, I’ll join your opinion.”

  Blackmun agreed to add Eppa Rixey, a big left-handed pitcher who had somehow managed to get into the Baseball Hall of Fame despite marginal credentials (266-251 career record in 21 seasons).

  On May 9, Stewart circulated a typewritten letter to his colleagues:

  Dear Harry:

  I agree with your memorandum in this case and hope it will become a signed opinion for the Court.

  Sincerely Yours,

  P.S.

  The story of how and why Stewart signed on to Blackmun’s opinion soon made its way through the law clerk grapevine. The name games—and the battle for the majority opinion in Flood v. Kuhn—had only just begun.

  Blackmun also received encouragement from an unexpected source: Powell. On May 8, Powell wrote Blackmun:

  Dear Harry:

  Although I am “out” of the case, I have read with fascinated interest your splendid opinion.

  It is a classic summary of the history of organized baseball which will delight all old fans—as it did me. I had no idea you were such an expert on the game.

  If I had participated, I was inclined to overrule Federal Base-ball Club as an anachronism of antitrust law. Your persuasive opinion might have won me over.

  Sincerely,

  Lewis

  There was nothing persuasive about Blackmun’s baseball blather. Powell may just have been patting Blackmun on the back. But if Blackmun was having any second thoughts about Part I of his opinion, Powell’s kind words ended them.

  The opposition came soon enough. On May 11, Douglas circulated his draft dissent. He had been working on it ever since he received Blackmun’s draft. Douglas, like Blackmun, did his own work. He wrote out the dissent in longhand on a yellow legal pad. His secretary typed it and immediately sent it to the printer, though it went through several drafts before Douglas circulated it among his colleagues. Although he borrowed a few bits and pieces from the dissent from the denial of cert he and his law clerk, Kenneth Reed, had drafted in October, the language was fresh and new and unmistakably Douglas’s.

  Federal Baseball, Douglas began, “is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view of a rather dismal business account over the last 50 years would keep that derelict in midstream.” Douglas’s first footnote acknowledged that he had voted to affirm in Toolson but had “lived to regret it.” He described baseball as “big business” guilty of “predatory practices.” “The beneficiaries of the Federal Baseball Club decision,” he wrote in a snide comment about Blackmun’s list of ballplayers, “are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.” He portrayed these players as the “victims of the reserve clause.”

  Douglas destroyed the linchpin of Blackmun’s argument. “If congressional inaction is our guide,” he wrote, “we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.” Douglas appealed to the Court to act: “The unbroken silence of Congress should not prevent us from correcting our own mistakes.” Douglas’s dissent was six paragraphs of poetry and persuasion. It was everything that Blackmun’s opinion was not— straightforward and well reasoned. It reflected the difference between 33 years and 2 years of experience on the Court.

  The day Douglas circulated his dissent, Marshall phoned his law clerk to say he was not joining Blackmun’s opinion. Marshall’s law clerk prepared a dissent overruling Federal Baseball and Toolson and remanding the case to the trial court to decide the labor-exemption issue. Multiple dissents often arise out of a closely divided case, such as Flood’s, in which the justices express different concerns with the majority opinion. Marshall’s primary concern, judging from his questions at oral argument, was about the labor exemption. On May 11, he circulated his dissent to the other justices’ chambers.

  Marshall’s dissent was not as well written as Douglas’s. Unlike the other opinions, however, it began with Curt Flood’s story. “To non-athletes, it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services,” Marshall’s dissent said. “But, athletes know that it was not servitude that bound the petitioner to the club owners; it was the reserve system.”

  Marshall’s dissent characterized the Court as “torn between the principle of stare decisis and the knowledge that” Federal Baseball and Toolson “are totally at odds with more recent and better reasoned cases.” It rejected the idea that Congress had endorsed the exemption by failing to act. “The importance of the antitrust laws to every citizen must not be minimized,” the dissent said. “They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers.”

  Marshall’s dis
sent asserted that overruling Federal Baseball and Toolson “does not mean that petitioner would necessarily prevail.” With a nod to Jacobs’s and Winter’s Yale Law Journal article (cited in a footnote), the dissent launched into a four-page discussion of the labor exemption. Marshall concluded that “none of the prior cases is precisely in point” and “the issue was not squarely faced” at Flood’s trial or before the Second Circuit. Marshall, therefore, sought to send Flood’s case back for a trial on the labor-exemption issue—just the sort of compromise position that might win over a majority of the justices. Marshall wanted his dissent to become the opinion of the Court.

  It was unclear why Marshall switched his vote. Maybe he saw the slavery aspect of Flood’s fight for economic freedom in professional baseball. Maybe his liberal law clerk showed him a draft dissent and encouraged him to adopt it. Maybe it was the result of a conversation with his close friend and liberal ally, Justice Brennan. Marshall often voted the way Brennan did.

  A small, impish-looking man, William J. Brennan Jr. was one of the Court’s judicial giants. The second of eight children born to Irish-Catholic immigrants, he grew up in Newark, New Jersey. His father shoveled coal at a brewery and emerged as a local labor leader. After attending the University of Pennsylvania and Harvard Law School on scholarships, Brennan returned to New Jersey to practice law. From 1949 to 1952, he rose through the state court system as a trial judge, appeals court judge, and state supreme court justice. In 1956, President Eisenhower nominated Brennan, a Democrat, to the Supreme Court of the United States. Eisenhower needed the support of Catholic Democrats during his 1956 reelection campaign, just as he had needed Earl Warren to deliver California in 1952. Much to Eisenhower’s dismay, Brennan and Warren ignited an individual-rights revolution.

  If anyone could turn a dissent into a majority opinion, it was Brennan. Brennan was the Warren Court’s architect and field general. He was not a politician who traded votes like some legislator. He understood the persuasiveness of the written word and the power of different legal arguments to win over colleagues to his point of view. He explained to his law clerks the most important rule of law. He held up his hand and wiggled his fingers. “Five votes,” Brennan said. “Five votes can do anything around here.”