A Well-Paid Slave (42 page)

Flood asked Goldberg's secretary to telex him yes or no. There is no record of how Goldberg responded.

Goldberg rejoiced when the Court granted cert because he believed that it meant he had won Flood's case. He did not know how the justices had voted, but he figured that they would not have granted cert to review two of the Court's prior decisions unless a majority of the justices favored overruling them. If the Court believed that
Federal Baseball
and
Toolson
were right, it would have denied cert without comment. Little did Goldberg know that he had only three strong votes to hear the case.

Goldberg brimmed with false confidence as his trusted former associate, Levitt, began to prepare Flood's brief. Supreme Court briefs provided both sides with the best opportunity to persuade the justices to vote their way. “[I]t is the brief that does the final job, if for no other reason than that the opinions are often written several weeks or sometimes months after the argument,” Justice Marshall, a former Second Circuit judge and solicitor general, said. “The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman.”

By the time the Supreme Court briefing began, each side knew what the other was going to say. These issues had already been briefed and argued at trial, briefed and argued before the court of appeals, and briefed in a cert petition. Weaker arguments, such as Flood's slavery and peonage claims, had been eliminated, and stronger arguments had been refined along the way.

Flood's brief argued that, Justice Holmes and
stare decisis
notwithstanding, the Court's two baseball decisions no longer made any sense. As Judge Waterman's Second Circuit opinion noted, Holmes himself had once written of
stare decisis
:

The first part of Flood's 45-page brief attacked Holmes's
Federal Baseball
opinion as “moribund.” In ruling on President Roosevelt's New Deal legislation, the Court had broadened the definition of interstate commerce beyond Holmes's cases and legal reasoning. Holmes's opinion in
Federal Baseball
, the brief argued, relied on “precedential underpinnings [that] have long since disappeared.”

Flood's brief also portrayed
Federal Baseball
, even after
Toolson
, as an outlier. The Court had refused to extend the logic of baseball's exemption to theatrical performances, boxing matches, or professional football. Douglas had widened the breach by adding professional basketball to the mix in the
Haywood
case.

If his lawyers could not persuade the Court to overrule
Federal Base-ball
and
Toolson
, Flood had a fallback position in his state antitrust claims. It relied on a literal reading of
Federal Baseball
: If baseball was not interstate commerce subject to federal regulation, then it was intrastate commerce subject to state regulation. Indeed, in their brief nearly 50 years earlier in
Federal Baseball
, baseball officials had conceded that state anti-trust laws applied. The state law argument gave the Court a way to avoid overruling
Federal Baseball
and
Toolson
, but it allowed Flood's legal challenge to the reserve clause to continue. It also was designed to appeal to the Court's conservative members, who believed that the Warren Court had expanded federal power to protect civil rights and civil liberties at the expense of the legal authority of the states.

After the Court granted cert, baseball officials tried to present a brave public face. Kuhn said that the decision to grant cert “does not affect the merits of the case. We have complete confidence in the fairness of the court's ultimate decision.” Minnesota Twins owner Calvin Griffith, however, hit the panic button. “The reserve clause is the salvation of our sport,” he said. “Without it, we can't protect our own players. There will be no competition.” The media speculated that the owners might try to settle Flood's case—one of the subjects at their annual winter meeting November 26 in Phoenix. Behind the scenes, the lawyers for each of the clubs were clamoring to baseball's lawyers to settle. Too much was at stake to leave the fate of their legal monopoly in the hands of nine life-tenured jurists. Victor Kramer, who had represented the commissioner at Flood's trial, privately warned his client: “Be prepared to lose.”

Lou Hoynes, the lawyer now in charge of the owners' defense, did not share Kramer's pessimism. A high school basketball player from Indianapolis, Hoynes graduated from Columbia and then Harvard Law School. The young Willkie Farr partner who had been sent to Harvard to recruit Hoynes was Bowie Kuhn. Hoynes worked on baseball matters with Kuhn and “The Wise Man” of baseball, Lou Carroll. Carroll and Hoynes were extremely close. Carroll helped Hoynes make partner at Willkie Farr after just six years, a rapid rise at the firm that in turn made Kuhn expendable enough to become the commissioner. On October 25, 1971, Carroll succumbed to cancer after 35 years as the National League's counsel. Hoynes replaced his late mentor, but not before flying out to Los Angeles and spending the day with the real power broker of Major League Baseball, Dodgers owner Walter O'Malley. O'Malley blessed Hoynes's promotion to National League counsel and de facto head of the Flood litigation, but warned him: “Don't embarrass me.”

O'Malley, however, wanted Kuhn to make the main argument in the
Flood
case before the Supreme Court. But Kuhn knew he was not up to the task. “I felt we needed a practicing lawyer, which I wasn't at the time,” he recalled. Kuhn chose the 36-year-old Hoynes to plead base-ball's case. Having worked with Hoynes for years, Kuhn never considered anyone else. “I had very high regard for him,” Kuhn said. “I just felt he was the right man for the job.”

Hoynes's selection ruffled the feathers of Kuhn's lawyers in the
Flood
case. Paul Porter and Victor Kramer, both senior partners at Arnold & Porter, wanted the assignment. A charmer, raconteur, and Washington insider who knew every politico and journalist in every two-bit town in America, Porter had been representing the commissioner's office on Capitol Hill since Happy Chandler ruled baseball in the late 1940s. In 1950, Porter had argued an antitrust case before the Supreme Court, but he was no longer viewed as an active litigator. Kramer was an anti-trust expert but too brash and outspoken for baseball. Earlier in the case, he had clashed with Hoynes over the post-trial brief.

No one was better positioned to argue Flood's case for baseball than Hoynes. He knew the history of the antitrust exemption. He had crafted the legal argument in the Milwaukee case stating that baseball was exempt from the federal antitrust laws because of
stare decisis
, but that federal law preempted state law because baseball was interstate commerce. He had played an active role at Flood's trial—conducting the direct examination of baseball's expert economist, John Clark, and cross-examining Flood's expert economist, Robert Nathan; NFL commissioner Pete Rozelle; NBA commissioner J. Walter Kennedy; and NHL president Clarence Campbell. Hoynes assumed control of the
Flood
case for baseball during the post-trial briefing and considered the owners' 133-page post-trial brief one of the finest documents of his legal career. He directed the writing of the Second Circuit brief and then, after arriving a few minutes late, argued the owners' case there.

Under Hoynes's direction, the owners' 60-page Supreme Court brief refocused the Court's attention on the meaning of
Toolson
. As Hoynes had argued in the Milwaukee case,
Toolson
changed the rationale for baseball's exemption from interstate commerce to
stare decisis.
“Without reexamination of the underlying issues,” the
Toolson
Court wrote, it upheld
Federal Baseball
“so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the antitrust laws.”
Toolson
also recognized that baseball had relied on this exemption for the last 30 years. In effect, the Court had thrown the ball to Congress to subject baseball to the antitrust laws. The owners' brief contained a history of the subsequent congressional hearings and bills that had failed to become law. It also quoted from the Court's opinions about theatrical performances, boxing matches, and professional football—all of which recognized that baseball's exemption now rested on
stare decisis
and was up to Congress to change.

The owners' key argument grounded baseball's immunity on federal labor law. The Players Association, the owners argued, had agreed to the reserve clause in labor negotiations and therefore could not turn around and sue on antitrust grounds. The owners' brief quoted a dissenting opinion of Justice Goldberg's that a “mandatory subject” of labor negotiations “is not subject to the antitrust laws.” Even if the Court overruled its decisions in
Toolson
and
Federal Baseball
, the owners believed, they could win based on this theory, which is referred to as the labor exemption.

The labor-exemption argument troubled Goldberg. As a factual matter, he argued that the owners never negotiated in good faith about the reserve clause. But navigating around some of the Court's decisions and his own opinions on this issue was trickier. Goldberg called David Feller—his former law partner, general counsel to the Steelworkers, and a law professor at Berkeley—for help. Feller critiqued Flood's brief and tried to help Goldberg craft a better response to the labor-exemption argument in Flood's 18-page reply brief. After all the briefs had been filed, Michael Jacobs and Ralph Winter weighed in with a
Yale Law Journal
article arguing that Flood's case was a labor dispute masquerading as an antitrust dispute and that it should be dismissed because the reserve clause was a mandatory subject of labor-management negotiations. The labor-exemption argument was not a clear winner for the owners, but the law seemed to be turning in their favor.

With Powell and Rehnquist not joining the Court until January 7, oral argument on Flood's case was pushed back to March 20. The Court asked both sides to submit the names of the lawyers arguing the case. Attached to the form letter was a list of 11 rules about oral argument. Goldberg did not need to be reminded about the Court's rules. Each side received 30 minutes. As a nod to Paul Porter, baseball gave him five minutes to introduce the commissioner and the remaining 25 minutes to Hoynes. Flood would be represented by Goldberg.

Hoynes exulted over the news that Goldberg, not Jay Topkis, would be arguing Flood's case. Goldberg had been absent from most of the trial while campaigning for governor of New York, and he had not distinguished himself in his brief trial appearances—especially in his direct examinations of Curt Flood and Jackie Robinson—or during his argument before the Second Circuit. No one on Flood's legal team knew the trial record better, had been quicker on his feet in Judge Cooper's courtroom, or was more prepared to argue the case before the Court than Topkis. Hoynes thought Topkis was “one of the smartest lawyers of his time.”

Topkis played only a nominal role after the trial. His name was on the Second Circuit and Supreme Court briefs, but he did not help draft them. Miller later admitted that one of his biggest tactical mistakes— apart from not encouraging players to attend Flood's trial—was not tapping Topkis to argue Flood's case “all the way through.”

Topkis's involvement in the merits of the case ended soon after a February 16 letter to Goldberg. “Offering you help on a Supreme Court argument is as clear a case of
lèse-majesté
as I can imagine—but if there is anything that Max [Gitter] or I can do, please let us know,” Topkis wrote. The two men were no longer law partners and not close friends. Topkis merely extended Goldberg a professional courtesy. Four days later, Goldberg replied: “I believe that you and I have canvassed the ground so extensively that there is little need for a meeting between us on the subject.”

Instead, Goldberg's help came from two associates in Paul, Weiss's Washington office, Levitt and Peter Westen. They knew what they were doing. Levitt not only had clerked for Goldberg and Fortas on the Court, but also had written almost every word of the
Flood
briefs. Westen, who had clerked for Douglas during the 1969 term, also contributed to the legal research and Supreme Court briefing. In late February and March, Levitt and Westen wrote Goldberg memos to help him prepare for argument. They offered him hypothetical questions the justices might ask as well as possible answers. Westen discussed the state antitrust claims. Levitt critiqued Jacobs's and Winter's labor-exemption article.

In mid-March, Levitt and Westen met with Goldberg. Goldberg's new office at Caplin & Drysdale at L and 17th was only a block away from Paul, Weiss's Washington office on K and 17th. The two young associates did not formally act as justices and ask Goldberg questions at the podium (a process known among the Supreme Court bar as “mooting” or “moot court”). Having argued before the Court several times, Goldberg did not need or want such practice. Instead, he laid out the argument that he planned to make before the Court. Westen thought he “sounded terrific.” That night, Westen came home from work and told his wife that “it would be one of the great arguments of the year.”

Hoynes, who unlike Goldberg had never argued before the Court, was not leaving anything to chance. He took the train to Arnold & Porter's office in Washington for a full moot court session. Hoynes stood at the podium in front of an Arnold & Porter conference table fielding questions from lawyers who had either clerked for or argued before the Court. It was Hoynes's own mock Supreme Court.