A Well-Paid Slave (49 page)

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:

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:

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 rituals 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:

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

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. . . .”