A Well-Paid Slave (40 page)

On September 23, 1971, one of Douglas's law clerks, Kenneth R. Reed, wrote a one-page, single-spaced typewritten memo to the justice. A recent University of Arizona law graduate, Reed typified the law clerks whom Douglas selected from western law schools to counteract what he perceived to be an East Coast, Ivy League bias among the clerks. Reed's cert memo summarized the history and arguments in Flood's case in six paragraphs of judicial shorthand. The memo's conclusion was telling: “Your dissent of the denial of cert last Term in
Salerno v. Kuhn
would indicate GRANT & DISSENT FROM DENIAL.” Based on
Salerno
, Reed understood that Douglas was going to vote to grant Flood's cert petition but that three other votes were not likely to be forthcoming.

Douglas received Reed's memo in Goose Prairie. On September 27, Reed wrote a short letter to Chief Justice Burger on Douglas's behalf. Reed included
Flood v. Kuhn
among a handful of cases that Douglas wanted to discuss with the entire Court, thus placing Flood's petition on the “discuss list.” Petitions not placed on the discuss list by any of the justices were automatically denied. Douglas guaranteed that Flood's petition would be discussed and voted on by all the justices at their next private conference. The same day as Reed's letter, Burger circulated a memo to the other justices indicating that, at Douglas's request, Flood's petition would be among the dozens of cases discussed “at Conference the week of October 4.”

The conference is the most secretive aspect of the Court's behind-the-scenes decision-making processes. At conference, the justices are supposed to be able to conduct the Court's business without distraction, to discuss cases in private, and to speak their minds without posturing before the press and public. The justices vote on cert petitions and tentatively vote on and discuss recently argued cases.

October 4, 1971, was the first Monday in October—the traditional first day of the Court's term. After a brief Court session in which Burger paid tribute to Black and Harlan, the session was adjourned so the justices could hold the term's first conference. The justices retreated to the oak-paneled conference room behind the courtroom and next to the chief justice's chambers. A portrait of Chief Justice John Marshall adorned the wall above the fireplace. Hardbound copies of the
U.S. Reports
lined the walls. An antique desk, which Burger had added to the room much to some of the justices' consternation, stood off to one side.

The justices shook hands before sitting in green high-backed chairs around a long rectangular table. Burger sat at one end of the table and controlled the agenda. Douglas, as the most senior associate justice, sat at the other end of the table. The others—Brennan, Stewart, White, Marshall, and Blackmun—sat in order of seniority. As the most junior justice, Blackmun sat closest to the double doors. If there was a knock at the door, he was instructed to open it. No secretaries, no law clerks, and no court personnel were allowed in the room. Some justices took notes about what the other justices said about each case. Some returned to chambers and immediately told their law clerks what had happened there, often in entertaining fashion. But what had happened at conference was supposed to stay at conference. Many years later, a television reporter was caught trying to read a document that had been thrown into the conference room's fireplace. The incident reinforced the justices' obsession with secrecy.

Black's and Harlan's retirements had left the justices shorthanded. A seven-member Court cannot perform the work of nine. They tried to delay oral arguments on any controversial cases until the two new justices had been nominated and confirmed. But decisions on 655 cert petitions— about one-fifth of the petitions for the year—could not be delayed. The Court's calendar for the rest of the year depended on the outcome of those petitions.

As promised, Flood's petition came up for a vote. The justices, led by the chief justice, voted on Flood's petition in order of seniority. The three most senior justices, Burger, Douglas, and Brennan, voted to grant cert. Burger's vote was a surprise. Nixon had appointed him to be the antidote to Earl Warren, to be the law-and-order chief justice, not to vote against the baseball establishment. Brennan's vote was unsurprising. One of the Court's liberal voices along with Douglas and Marshall, he had voted to grant cert in
Salerno
. A master of the cert process who skimmed all the petitions that came through his chambers, Brennan could tell by the questions presented whether to grant or deny a petition. He wanted to hear Flood's case.

Stewart, White, Marshall, and Blackmun voted to deny Flood's cert petition. A vote to deny from Marshall—the great oral advocate who had argued the famous
Brown v. Board of Education
case and the first black Supreme Court justice—was even more surprising than Burger's vote to grant. It would be a mistake, however, to read too much into Marshall's vote. He may have believed that there was no chance of
Toolson
and
Federal Baseball
being overturned. Whatever the reason behind it, Marshall's decision was a critical blow. Three justices voted to grant Flood's petition; four justices voted to deny it.

Under the Rule of Four, Flood's petition was dead. He faced the denial of his case without an opinion, a chance to be heard, or even an indication whether the lower courts had been right or wrong. The purpose of the Rule of Four, however, is to allow a minority of the justices to hear a given case. This is particularly important if four justices are voting to grant cert in order to overrule one of the Court's prior decisions. As Brennan said, “five give the four an opportunity to change at least one mind.”

Some commentators have suggested that the Rule of Four did not apply with a seven-member Court. According to a private memo from Burger to his fellow justices, however, the Court adhered to the Rule of Four at the beginning of the 1971 term. If there were three votes for cert, then the Court would “relist” the case to discuss it at another conference in a week or two. The idea was to see if another vote for cert emerged.

Douglas assumed that Flood's petition would be denied. In the middle of the October 4 conference, he scrawled the following note on a 4
¹
⁄2-by-8-inch piece of white paper:

The note was classic Douglas—terse but right on point. Douglas folded over the note and wrote “Reed” on the front. He then passed the note to the junior justice, Blackmun, who opened the door of the conference room and handed it to one of the Court's pages guarding the door. The page then gave the note to Reed.

Douglas informed the justices that he intended to write a dissent from the denial of cert. This was not to be a single sentence indicating that he disagreed with the decision to deny cert, which Douglas had turned into a common personal practice by the early 1970s, but a short dissenting opinion about why Flood's petition should have been granted. Dissents from denial are sometimes written, but not published, to try to persuade a fourth justice to vote for cert. Douglas asked the justices to “relist” Flood's petition for two weeks. This gave Douglas time to draft his dissenting opinion before the decision to deny cert was made public. It also gave another justice time to change his mind.

Reed immediately began to draft Douglas's dissent from the denial of cert. Douglas usually wrote all his own opinions, but this was more like a mini-opinion. On October 7, Reed turned in a first draft, which Douglas reworked during the next six days before circulating it to the other justices. On the first page, Douglas had inserted October 18 as the date that he believed Flood's petition would be denied. The five-page draft dissent, with citations omitted, began:

Douglas argued that
Federal Baseball
was based on overruled Supreme Court decisions about interstate commerce, and that
Toolson
's reliance on Congress's failure to act was meaningless because Congress had failed to pass proposed legislation granting all professional sports antitrust exemptions. A footnote offered a personal admission from Douglas: “While I joined the Court's opinion in
Toolson
, I have come to regret that vote and would now correct what I believe to be its fundamental error.” Finally, the draft argued that even if federal antitrust law did not apply, state law did. The purpose of the Sherman Antitrust Act was to supplement state law, not to displace it. The draft concluded with a warning to his colleagues not to view this as an inconsequential baseball case:
Douglas's draft dissent from the denial of cert was never published.

On the morning of October 15, Flood's petition came up for another discussion and vote at conference. There is no indication whether any of the justices corresponded with Douglas about his draft dissent. Nor is there any record of the substantive discussion about Flood's petition that day. It may have been the persuasiveness of Douglas's draft or the mere fact that three of the seven justices had already voted to grant, but one justice changed his mind. Byron White—the former football star, Rhodes scholar, and Kennedy Justice Department official—switched his vote, giving Flood's petition the four votes it needed for a full Supreme Court hearing.

The Court waited four days to announce its decision, as it had initiated a new practice during the 1971 term of issuing its grants and denials of cert on Tuesdays. On the morning of Tuesday, October 19, the Court granted certiorari in two cases and denied cert in 82 others. Of Flood's petition, the Court issued the following four-line order:

The public did not know how many votes Flood's petition had received, who had voted for it, why the Court had decided to hear the case, or even when it would be heard.

This simple four-line order thrust Curt Flood's name back into the nation's headlines. The
New York Times
and
Washington Post
ran front-page stories about the Court's announcement. All three television networks reported it on the nightly news. Sports columnists from across the country began to predict Flood's Supreme Court victory. “Unless President Nixon appoints Bowie Kuhn and Joe Cronin to the two vacancies on the Supreme Court,”
Chicago Tribune
columnist Robert Markus wrote, “the Grand Old Game may be in trouble.”

The day after the Court granted Flood's cert petition, Nixon announced on national television his choices to replace Black and Harlan. “Presidents come and go,” Nixon told the nation, “but the Supreme Court through its decisions goes on forever.” During his presidency, Nixon remade the Court by replacing four of its nine members. He had already installed Burger as chief justice and replaced Abe Fortas, after the Senate had rejected Nixon's first two nominees, with Eighth Circuit judge Harry Blackmun. This time, Nixon surprised the nation with his choices to replace Black and Harlan: Lewis Powell and William Rehnquist.

A former American Bar Association president and rainmaker at the Richmond, Virginia, law firm of Hunton & Williams, Lewis F. Powell Jr. had rejected Nixon's prior overtures to join the Court. The 64-year-old Powell's eyesight was failing, and he did not think he could read for more than 50 hours a week. Nixon persuaded Powell that, even if he served only 10 years, he could make a valuable contribution to the Court. A classic southern gentleman, Powell portrayed himself at his confirmation hearings as a racial moderate. He never endorsed Senator Harry Byrd's advocacy of massive resistance and interposition. Nor did he do anything to further racial progress. He personally opposed
Brown
at the time it was decided. During his time as chairman of the Richmond School Board, from 1952 to 1961, only two of the city's 23,000 black children attended school with whites. Powell voted in favor of giving white parents tuition grants so their children could attend private schools. Powell ignored pressure from white segregationists to close Richmond's public schools and fought to keep them open. His law firm, however, had represented Prince Edward County, Virginia, in its attempt to close its schools rather than integrate. On December 6, the Senate confirmed Powell, 89-1.

First in his class at Stanford Law School, William H. Rehnquist clerked on the Supreme Court from February 1952 to June 1953 for Justice Robert Jackson. As an aide to Barry Goldwater's 1964 presidential campaign, he impressed future Nixon deputy attorney general Richard Kleindienst. Based on Kleindienst's recommendation, Nixon named Rehnquist assistant attorney general in charge of the Office of Legal Counsel (OLC), the executive branch's legal adviser. Rehnquist had vetted Nixon's other Supreme Court nominees and had written memos, including one claiming that it was constitutional to wiretap members of the antiwar movement.