A Well-Paid Slave (39 page)

Salerno
, the federal lawsuit brought by the two American League umpires allegedly fired for their unionizing activities, did not make the cut. The Court denied the
Salerno
petition and gave no reason for doing so, though red flags abounded. The umpires' petition contained too many disputed facts about why they were fired, none of which had been explored in the courts below because the case had been dismissed before trial. The umpires also had not been subjected to the most pernicious aspect of baseball's legal monopoly—the reserve clause. Nor did they raise state antitrust claims. As a factual and legal matter,
Salerno
represented a poor challenge to
Federal Baseball
and
Toolson
.

Levitt's job was to persuade the Court of the “special and important reasons” why Flood's case was more certworthy. It presented almost no disputed issues of fact and a clear question of law. It affected more than a washed-up ex-ballplayer living out his days in Europe, the 600 ballplayers currently in the major leagues, or even the future of professional sports. Based on the Supreme Court's puzzling interpretation of a congressional statute (the Sherman Antitrust Act), it affected the legitimacy of the Court itself. One of the Court's main functions is to provide guidance to the lower courts, yet the lower courts struggled to reconcile
Federal Baseball
and
Toolson
with antitrust claims brought under state law.

Levitt made his case in the first two and a half pages of Flood's cert petition in a section known as “Questions Presented.” Levitt knew that the justices and their law clerks paid a disproportionate amount of attention to these questions. He wrote them in a way that made it difficult for the Court to refuse to hear the case.

The opening paragraph portrayed Judge Waterman's Second Circuit opinion as an invitation to the Court to overrule itself; Levitt quoted Waterman asserting that
Federal Baseball
and
Toolson
created “a most frustrating predicament” and blaming “the vagaries of fate” for the anomalous result in Flood's case. Baseball was immune from federal antitrust law because the game was not interstate commerce, but it was immune from state antitrust law because the Second Circuit found the game to be “so uniquely interstate commerce.”

The first of five questions presented challenged the Court to “rectify this bizarre result and thus preserve ‘public faith in the judiciary as a source of impersonal and reasoned judgments.' ” The second question suggested that the Court's subsequent decisions refusing to extend anti-trust exemptions to the theater, boxing, football, and basketball “undermined”
Federal Baseball
and
Toolson
. The third question raised the problem of insulating baseball from state antitrust regulation and “creating a unique ‘no man's land.' ” The fourth question asked whether the federal courts could usurp all of state antitrust law without examining how the application of state law affected the business of baseball. The fifth and final question was the most damning: It portrayed baseball officials as running from forum to forum contradicting themselves to prevent any governmental regulation of the game and any challenge to the reserve clause.

On July 6, 1971, Flood's legal team filed 40 printed copies of its cert petition with the clerk's office at the Supreme Court. The brief's blue cover listed Goldberg and Topkis, the only two members of the Supreme Court bar, above the addresses of their respective law firms; Levitt, Max Gitter, and Dick Moss were listed as additional counsel.

Major League Baseball officials responded just the way they should have—with a measured, 21-page brief in opposition explaining that the sky was not really falling. Flood, they argued, wanted to overturn two well-established Supreme Court precedents that enabled Major League Baseball to develop and prosper. According to baseball's brief,
Toolson
had made it clear that removing baseball's antitrust exemption was up to Congress, but, after numerous hearings, Congress had failed to act. In light of baseball's antitrust immunity, baseball argued, any changes to the reserve clause should be left to the bargaining table. “The issues raised here are long-settled questions which Petitioner seeks to overturn,” base-ball's brief concluded. “They are not issues of general importance and there is no conflict among the courts with respect to them.” In other words, the Court should not waste its time with baseball.

On September 9, Flood's legal team submitted a four-page reply brief that tried to rebut baseball's arguments. Congress's failure to act— especially on legislation that tried to extend baseball's exemption to all professional sports—could not be read to mean anything. Baseball had failed to respond to Flood's argument that there had been no examination whether state antitrust law interfered with the business of professional baseball. And baseball's “sudden enthusiasm” to negotiate belied its past refusals to agree to even the slightest reserve clause modifications.

The fate of Flood's case now rested with the nine justices and their law clerks. Each justice selected anywhere from two to four recent law school graduates to serve for a year or two as his law clerk. One of the clerks' most important jobs, which began during the summer, was to read each cert petition, summarize the arguments, and recommend whether to grant or deny cert. These recommendations usually came in the form of cert memos.

Shortly after Flood filed his reply brief, the Court lost two of its most respected justices. On September 17, Justice Hugo Black submitted his resignation. Six days later, Justice John Harlan followed suit. Black, 85, suffered a stroke and died two days after Harlan's resignation; Harlan, 72, had been stricken with spinal cancer and would not survive the end of the year.

During his 34 years on the Court, Hugo L. Black recast his legacy from that of a U.S. senator from Alabama who had briefly belonged to the Ku Klux Klan to that of a great constitutional thinker. A staunch New Dealer, Senator Black was nominated to the Court in 1937 by Franklin Roosevelt. As a Supreme Court justice, he emerged as the strongest voice on the Court for freedom of speech and other constitutional rights. He took tremendous heat from his fellow southerners for his support of
Brown v. Board of Education
and other desegregation cases. Despite his status as one of the Court's great civil libertarians, he had grown increasingly conservative in his later years. He had no qualms about abandoning the Court's prior decisions in pushing his Bill of Rights-oriented constitutional agenda, but when it came to reinterpreting the meaning of an old congressional statute, he almost always sided with
stare decisis.
He wrote most of the Court's unsigned opinion in
Toolson
, reaffirming
Federal Baseball
by completely changing its meaning. He also dissented from a 1970 decision reversing the Court's prior interpretation of a piece of congressional legislation. In his final years on the Court, Black had become increasingly infirm.

John M. Harlan had the Court in his blood. His grandfather and namesake, the first Justice John Marshall Harlan, had written a famous dissent objecting to the Court's 1896
Plessy v. Ferguson
decision upholding a Louisiana law requiring racially separate railroad cars. A former Wall Street lawyer and Eisenhower nominee to the Second Circuit and then to the Supreme Court, the second Justice Harlan was an open-minded judicial conservative. He disagreed with many of the Warren Court's decisions expanding individual rights but based his disagreements on legal principles.

The previous term, Harlan had saved Muhammad Ali from going to prison. Harlan was supposed to write the Court's opinion upholding Ali's draft-evasion conviction, but his law clerks asked him to reconsider and sent him home with Alex Haley's
The Autobiography of Malcolm X
and Elijah Muhammad's
Message to the Blackman in America
. Harlan returned the next day persuaded that Ali objected to all wars, based on bona fide religious beliefs. The other justices agreed to go along with him. In an unsigned opinion, the Court unanimously reversed Ali's conviction on a technicality—the state draft appeal board had failed to specify its reason for rejecting Ali's conscientious objector status. “It's what Justice Harlan called a ‘pee-wee,' ” Harlan clerk Thomas Kratten- maker told authors Howard L. Bingham and Max Wallace. “It was a way of correcting an injustice without setting a precedent and changing the law.”

Harlan staunchly believed in
stare decisis
. He dissented in
Radovich v. NFL
because he saw no distinction between baseball and football. “If the situation resulting from the baseball decisions is to be changed,” he wrote, “I think it far better to leave it to be dealt with by Congress than for this Court to becloud the situation further, either by making untenable distinctions between baseball and other professional sports, or by discriminatory fiat in favor of baseball.” But Harlan understood that
stare decisis
had its limits. He wrote in 1970 that
stare decisis
promoted “ ‘public faith in the judiciary as a source of impersonal and reasoned judgments.' Woodenly applied, however, it builds a stockade of precedent that confines the law by rules, ill-conceived when promulgated, or if sound in origin, unadaptable to present circumstances. No precedent is sacrosanct.”

In Black and Harlan, Flood lost two of the Court's great thinkers. Black would not have voted for Flood, but Harlan—based on his opinion in Ali's case, his dissent in
Radovich
, and his recognition of the limits of
stare decisis
—might have.

Because of Black's and Harlan's sudden retirements, Flood's cert petition reached the Court with only seven justices: three liberals (William Brennan, William Douglas, and Thurgood Marshall), two moderates (Potter Stewart and Byron White), and two recent Nixon appointees (Chief Justice Warren Burger and Harry Blackmun). Levitt and Goldberg knew Flood's petition could not be tailored to the political instincts of the justices as in a criminal or civil rights case. Baseball and antitrust law cut across labels like liberal, moderate, and conservative. That's why, in Flood's petition, Levitt tried to appeal to the Court as an institution to correct its past mistakes and to the justices' common sense. “We tried to shame them into taking the case,” Levitt said.

Flood's cert petition received its warmest reception from Douglas's chambers. The only member of the Court remaining from
Toolson
, Douglas regretted his decision to affirm
Federal Baseball
. In January 1971, the Court's standard denial of cert in
Salerno
contained an additional sentence: “Mr. Justice Douglas is of the opinion that certiorari should be granted.”

Two months later, Douglas sided with forward Spencer Haywood against the National Basketball Association (NBA). In the middle of the 1970-71 season, Haywood jumped from the American Basketball Association's Denver Rockets to the NBA's Seattle SuperSonics. The NBA, however, threatened to prevent Haywood from playing because of its “four-year rule,” which prohibited anyone from playing in the NBA until his college class graduated. The 21-year-old Haywood, whose class had not graduated, sued the NBA and obtained an injunction that kept him on the SuperSonics. In entering the injunction, Judge Warren Ferguson said that “professional athletes cannot be used and treated as merchandise.” The Ninth Circuit Court of Appeals, however, lifted Ferguson's injunction. Haywood appealed to Douglas, the supervisory justice of the Ninth Circuit. Douglas reinstated the injunction, which allowed Haywood to compete in the NBA playoffs while his lawsuit continued. In a two-page order, Douglas found the NBA's rules suspect and revealed his feelings about baseball's special status:

Douglas deemed the reserve clause and the NBA draft “group boycotts,” which were considered automatic violations of the antitrust laws, because other employers were refusing to negotiate for the athletes' services.

For William O. Douglas, the work of a Supreme Court justice was a four-day-a-week job. He often drafted dissenting opinions while sitting on the bench during oral argument. In his spare time, he wrote dozens of books to augment his salary after three divorces had destroyed him financially. He was 67 when he married his fourth wife, a 22-year-old college student. A Columbia law graduate and a corporate law professor at Columbia and Yale, Douglas made a name for himself during the New Deal, cleaning up Wall Street as Roosevelt's Securities and Exchange Commission chairman. Roosevelt rewarded Douglas in 1939 by nominating him to the Court. Douglas expected Roosevelt to tap him as his next vice president in 1944 instead of Truman. That call never came. He accepted life as a Supreme Court justice as a consolation prize for failing to become president of the United States. Douglas served longer, 36 years, and wrote more opinions than any other justice in the Court's history.

Douglas stood out as the Court's liberal loose cannon and resident demonic genius. He lived his libertarian ideals. An avid hiker and outdoorsman, he holed himself up in his mountain cabin in Goose Prairie, Washington, until just before the term began and usually returned there before the term ended. There were no phones at his hideaway. The only way to contact him was by mail or at the nearest phone in town. When the Court was not in session, he relied on his law clerks to send him their cert memos and to relay his thoughts to the Court.