A Well-Paid Slave (47 page)

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:

Blackmun chose option two and reached the following tentative conclusions:

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:

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.”

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:

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.