A Well-Paid Slave

by Brad Snyder

  Brennan’s position on Flood’s case was clear. He had voted to grant cert in both Salerno and Flood v. Kuhn, and he had voted for Flood at conference. His voice, however, had not yet been heard. Brennan was focusing his efforts elsewhere. The Court was wrestling with huge issues that term, including the constitutionality of abortion and the death penalty.

  On May 12, Brennan circulated a one-sentence letter agreeing to join Douglas’s dissent in Flood’s case. Joining a dissent was a common practice and clearly showed where Brennan stood. But Flood was going to need more help from Brennan than that. Neither Douglas nor Marshall could muster a five-justice majority in Flood’s case on his own. Douglas was not a consensus builder, and his dissent was too short to serve as a majority opinion. Marshall’s dissent floated a possible compromise on the labor-exemption issue, but it lacked the power or persuasiveness of a majority opinion. They needed Brennan to rework their dissents and to rally another justice to Flood’s side. At the end of the term, however, Brennan was trying to persuade Blackmun to issue two opinions striking down restrictive state abortion laws and to cobble together a majority to strike down state death penalty laws.

  With Powell out and Marshall’s defection in Flood v. Kuhn, the eight justices were locked in a 4-4 tie. In a tie, the Court issues an unsigned per curiam opinion upholding the lower court’s decision. A 4-4 tie would have been a tough way for Flood to lose, but three justices had not yet cast their official votes: Rehnquist, White, and Burger.

  Three days after Brennan had joined Douglas’s dissent, Rehnquist announced his decision. Douglas learned from his law clerk that Rehnquist planned to vote to affirm the exemption but not to join Blackmun’s opinion. On May 15, however, Rehnquist cast aside any problems with Flood’s state antitrust claims or Blackmun’s opinion. Rehnquist circulated a one-sentence letter joining Blackmun. Around the same time, Douglas and Marshall circulated revised drafts of their dissents to prepare them for final publication and to fish for additional votes.

  Instead of shoring up the reasoning in his opinion, Blackmun spent his time tinkering with his list of famous former ballplayers. Law clerks delighted in calling Blackmun’s chambers and proposing additional names. A Rehnquist clerk jokingly suggested former Washington Senators pitcher Camilo Pascual. Blackmun’s law clerk took the suggestion seriously. A few minutes later, the Rehnquist clerk received a return phone call from Blackmun’s chambers: The justice had looked up Pascual in The Baseball Encyclopedia; despite the pitcher’s great curveball, his 174 career wins did not meet Blackmun’s ambiguous criteria.

  Some of the name games may have been overblown. Woodward and Armstrong claimed that Blackmun had added three black players— Satchel Paige, Jackie Robinson, and Roy Campanella—at the behest of Justice Marshall. This story makes no sense for several reasons. Blackmun recalled watching Campanella, who had played for the St. Paul Saints in 1948, “knocking fungoes on the roof of the Coliseum in left field. He had to be on my original list.” Indeed he was, as were Robinson and Paige. Marshall circulated his dissenting opinion on May 11 and therefore would have been in no position to make such a trivial request. Over the years, Blackmun often refused to answer letters from reporters about Flood v. Kuhn except to deny the Marshall story. Blackmun recalled only one justice’s request about baseball names—Stewart’s about Eppa Rixey.

  That did not stop Blackmun from adding more names to his list. On May 25, he circulated a revised draft of his opinion. He made no improvements or changes to his reasoning in Part V for upholding Federal Baseball and Toolson. Yet he added an extended footnote in Part I reciting a 1926 poem, “He Never Heard of Casey,” by legendary sportswriter Grantland Rice. He also added 12 more players to the list: “Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne [sic], Rabbit Maranville, Lefty Grove.” He was not done. The name games distracted Blackmun from his primary objective—persuading the last two justices to sign on to his opinion.

  The justice most likely to switch sides was Byron White. Douglas’s law clerk, Kenneth Reed, believed that the former college and professional football star might change his mind. On March 11, Reed wrote Douglas that “Justice White’s clerks indicate that he may be inclined to overrule National [sic] Baseball and Toolson and thus reverse the case. Apparently, however, he is in no hurry to vote.” Ten days later, Reed wrote Douglas:

  According to rumor, Justice White continues to be the most likely source of a fifth vote to overrule National Baseball Club [sic] and Toolson. According to his clerks, however, he is still in not much of a hurry to cast his vote. Justice Powell’s clerks apparently sought to get him back into the case since he is opposed to Toolson, but they were unsuccessful because of his stock ownership in Anheuser Busch.

  With Powell definitely out (and encouraging Blackmun), it was up to White. As a professional football player, he had been sold by Pittsburgh to Detroit for $5,000 and taken a more than 50 percent salary cut to $7,500, so he knew how it felt to be treated like a piece of property. On the other hand, he may not have understood why a ballplayer making $90,000 had quit over a trade.

  There was a flicker of hope. One of Marshall’s law clerks, according to Woodward and Armstrong, approached Marshall about making a few minor changes suggested by one of White’s law clerks. White apparently believed that Flood might have viable state antitrust claims. Marshall refused to make the changes. Informed that the White clerk believed the changes might be necessary to get White’s vote, Marshall replied: “He’ll never join.”

  This was where Marshall needed Brennan’s help. Brennan had joined Marshall’s second draft dissent on May 15, but he never intervened with White. Marshall’s prophecy about White turned out to be self-fulfilling—with a catch.

  On March 26, the day after Blackmun had circulated his revised draft, White sent him the following note:

  Dear Harry:

  Agreeing with the result you reach and preferring the long form to a short per curiam, I join your memorandum in this case but with the gentle suggestion that you omit Part I.

  Sincerely,

  Byron

  With White’s vote, there was no way Flood could win. The best he could do was a 4-4 tie, which was a legal defeat for Flood but not a meaningful victory for Major League Baseball. The owners would not have been content with a tie because it has no precedential value. They needed a majority opinion to support their antitrust exemption and maintain their reserve system. Their only hope was that another justice would join Blackmun’s opinion.

  The 12 players Blackmun had added to the list obviously did not persuade White. His “gentle suggestion” about deleting Part I was more than a gentle suggestion. White, according to one of his law clerks, liked to “cut the corners square.” He was a no-nonsense guy who refused to demean an opinion about professional athletes with sports trivia. Blackmun refused to remove Part I. White responded by joining all of Blackmun’s opinion except Part I—a fact noted in the final decision.

  The fate of Blackmun’s opinion came down to Burger. If he voted the way he had at conference, the case would end in a 4-4 tie. Blackmun’s opinion would never see the light of day. Instead, baseball would receive a one-paragraph unsigned opinion, an exemption upheld by default, and a hollow victory over Flood.

  Burger’s views of the Flood case can be gleaned only from his lone comment at conference: Toolson should be overruled. There had been no noise out of the Burger chambers since the circulation of the Blackmun, Douglas, and Marshall opinions. Burger forbade his law clerks from talking to the other justices’ clerks about pending cases. The main source of Court gossip was cut off.

  It has often been said that Warren E. Burger, with his white hair and classic good looks, looked like the perfect chief justice but rarely acted like one. To the other justices, particularly those fond of Earl Warren, Burger lacked both the intellectual curiosity and the common touch to lead the Court. Burger reveled in the Court’s rit
uals and traditions rather than its substantive work. He made his biggest impact in his administration of the federal courts and the Supreme Court building rather than with his written opinions.

  Burger’s path to power was not as smooth as Blackmun’s. Burger sold insurance by day and attended the University of Minnesota for two years and St. Paul College of Law for four years at night. He worked for a St. Paul law firm while Blackmun, after seven years at Harvard, joined a more prestigious Minneapolis firm.

  Burger’s big breaks came through politics. In 1948 and 1952, he served as Minnesota governor Harold Stassen’s floor manager at the Republican National Convention. In 1952, he helped deliver Minnesota’s delegates to Dwight Eisenhower, who made Burger the assistant attorney general in charge of the Justice Department’s Claims (Civil) Division. Burger earned his stripes by arguing a loyalty case before the Supreme Court (accusing a Yale professor-government consultant of disloyalty to the United States government), a case the solicitor general had refused to argue. Burger lost, but in 1956 Eisenhower nominated him as a federal appellate judge on the D.C. Circuit. Burger caught Nixon’s eye with a 1967 speech about criminal law and as a frequent Warren Court critic. Two years later, Nixon nominated him as chief justice. The president consulted with his chief justice about subsequent Supreme Court vacancies and other judicial nominations, allowing Burger to lobby for a place on the Court for his former best man, Harry Blackmun.

  Burger had been trying to cultivate Blackmun for months. He had assigned Blackmun the abortion cases and was spending an unusual amount of time in Blackmun’s chambers at the end of the term. He frequently sent Blackmun notes of encouragement. Despite Burger’s support, Blackmun resented the “Minnesota Twin” moniker. He eventually emerged from Burger’s shadow with a different judicial philosophy and as his own man, but in June 1972 he needed Burger to sign on to his Flood opinion.

  On June 13, Burger finally showed his hand:

  Dear Harry:

  After much travail I come out on this case as a “reluctant affirm.”

  Regards,

  WEB

  That same day, Burger circulated a concurring opinion revealing the narrowness of baseball’s victory:

  [L]ike Mr. Justice Douglas, I have grave reservations as to the correctness of Toolson . . . ; as he notes in his dissent, he joined that holding but has “lived to regret it.” The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with Mr. Justice Douglas that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem.

  The first sentence of Burger’s concurrence refused to join Part I of Blackmun’s opinion. Blackmun later speculated that Burger and White “thought perhaps it was beneath the dignity of the Court to indulge in a sentimental journey about baseball.” He never discussed the issue with either of them. Burger nonetheless represented a fifth vote for Blackmun’s opinion and for baseball—but on the narrowest possible grounds. The final score was Baseball 5, Flood 3.

  Speculation has been rampant over the years about why Burger changed his vote. Rumors spread among law clerks, according to Woodward and Armstrong, that Burger had agreed to join Blackmun’s opinion in exchange for putting off a final decision in the abortion cases until the following term. There is no evidence to support this theory. Blackmun had asked as early as January 18 that the abortion cases be reargued before a full nine-member Court. After circulating a rough draft of his abortion opinions later that term, on May 31 Blackmun renewed his request to have the cases reargued. Ten days later, Blackmun informed his fellow justices at their private conference that “the real reason he wanted [the abortion cases] reargued was that he didn’t think the country could stand having the death penalty and abortion laws declared unconstitutional on the same day.” The abortion cases were reargued the following term, but not because of Flood v. Kuhn.

  A simple vote trade between Blackmun and Burger seems far-fetched. It seems more likely that Burger did not want the Flood case to end in a 4-4 tie and was simply trying to curry favor with his “Minnesota Twin”—but not enough to join Blackmun’s Part I.

  Blackmun was not done with his name games. He never circulated another draft to his fellow justices, but before the decision was announced and published, he added two players to the list. He inserted Jimmie Foxx between Rabbit Maranville and Lefty Grove. Foxx, who hit 534 home runs, would have been a glaring omission from any list of baseball greats. On June 1, Blackmun clipped a New York Times obituary of Morris “Moe” Berg. A multilingual catcher, Berg attended Princeton, the Sorbonne, and Columbia Law School. He used his gift for languages to sneak behind enemy lines and spy on atomic scientists for the Office of Strategic Services during World War II. He also played 15 undistinguished major league seasons and batted .243. “He can speak ten languages,” the joke about Berg went, “but he can’t hit in any of them.” Blackmun slipped Berg’s name into the list between Old Hoss Radbourn and Maranville. The justice’s fascination with Berg continued. Twenty-five years later, he read Nicholas Dawidoff’s biography of Berg, The Catcher Was a Spy. Blackmun gave the book a B—a tough grade considering his own attempt at baseball writing.

  On the morning of Monday, June 19, Blackmun placed an arrow in his appointment book next to the date and accompanying note that the first official game of baseball was played on June 19, 1846. The Court convened at 10 a.m. and announced seven decisions. The Court does not provide advance warning about which decisions will be announced, but it was almost the end of the term—decision time for Flood’s and other cases. The most junior justices announce their majority opinions first. Powell announced two opinions. The first rejected the Nixon administration’s wiretapping of suspected radicals without search warrants—a story that received above-the-fold treatment on the front pages of the New York Times and Washington Post. The other allowed municipal court clerks to issue search warrants and garnered almost no notice.

  Blackmun rose to speak. Justices, particularly in important cases, often summarize and maybe even read a few paragraphs from their decisions. Blackmun read from three typewritten pages. “This case presents an issue that was before the Court first in 1922, then a second time in 1953, namely, whether professional baseball’s reserve system is within the reach of the federal antitrust laws,” he began.

  “This case is one instituted by Curtis Charles Flood, known on the diamond as Curt Flood. . . .”

  At that moment, Nina Totenberg, then a reporter for the National Observer, broke the Court’s usually somber mood by laughing. As Blackmun continued reading, Powell winked at the reporters sitting on the left side of the courtroom. Blackmun concluded by mentioning that Powell “took no part in the consideration or decision of the case.” Those same words appeared in the official text of the decision but were not literally true. Powell had participated in oral argument and one private conference and had written Blackmun an encouraging note. Powell represented a possible fifth vote for Flood. More than anything else, his decision to withdraw affected the outcome of Flood’s case because otherwise Burger may not have felt the need to break a nonexistent tie.

  Blackmun also announced Burger’s concurrence, Burger’s and White’s refusal to join Part I, Douglas’s and Marshall’s dissents, and Brennan’s joining both dissents. The dissenting justices sometimes, but not often, read from their opinions if they feel strongly about a case. Douglas was not in the courtroom that day. He had already made his way back to his Goose Prairie cabin, having asked Burger to announce his dissent. Neither Marshall nor Brennan said a word. The Court announced four more decisions and then adjourned.

  The clerk of the Court, Michael Rodak Jr., sent identical six-word telegrams on the afternoon of June 19 to Arthur Goldberg and Lou Hoynes: “JUDGMENT FLOOD AGAINST KUHN AFFIRMED TODAY.” It had been exactly nine months since the Co
urt had agreed to take the case.

  Goldberg was a bit confused after reading the Court’s decision. White and Burger joined only Parts II-IV of Blackmun’s opinion. They had forgotten to join Part V, the legal holding of the case. So, technically, without a five-justice majority for Part V, there was no opinion of the Court. Goldberg called Henry Putzel Jr., the Court’s reporter of decisions, and pointed out the error. Putzel conferred with the two justices, who agreed to revise the Court’s opinion to read that they had joined all but Part I of Blackmun’s opinion. Putzel notified Blackmun, who had approved the opinion’s syllabus. On July 3, the Court sent a letter to counsel alerting them of the change and revised the paper copy of the U.S. Reports. The Court could not even announce its decision properly.

  Goldberg indicated that he “was not surprised at the result in Flood’s case although I did expect better opinion writing.” He agreed with Topkis, who wrote Goldberg that the “Supreme Court screwed us. . . . I am afraid that the sad fact is that nothing today’s Court does is terribly likely to surprise me.” Some of the blame lay with Goldberg and his awful oral argument. Dan Levitt did not think that Goldberg’s argument, as bad as it was, affected the outcome. But Peter Westen, the other associate at counsel’s table that day, believed that Flood would have won if the case had been decided on the briefs alone. Goldberg refused to seek an opportunity to redeem himself. He vowed never to argue another case before the Supreme Court.