A Well-Paid Slave (43 page)

There was a special chief justice presiding over Hoynes's moot court session that day: Abe Fortas. Baseball did not retain a former justice to argue on its behalf, but it had one aiding its preparation for oral argument. After resigning from the Court because of a financial conflict of interest, Fortas had found his return to private life difficult. Arnold & Porter—the firm formerly known as Arnold, Fortas & Porter that he had helped build into Washington's second-largest law firm and where his wife worked as a tax partner—did not want him back. An abrasive, take-no-prisoners personality, Fortas had alienated many of the firm's young partners. It took a lot for Fortas, who had opened his own small law office in Georgetown, to return to his old firm's offices.

Fortas attended the moot court session for only one reason—out of loyalty to his former partner and lifelong friend, Paul Porter. In November 1970, Fortas had written Porter a three-page memo evaluating the
Flood
case as only a former justice could. In the memo, Fortas correctly predicted that the Supreme Court would grant cert. He did not think Flood's state antitrust claims or his 13th Amendment and indentured- servitude arguments would carry much weight. Nor did he think much of baseball's labor-exemption argument.
Toolson
, Fortas believed, was on shaky ground. To preserve baseball's antitrust exemption, Fortas suggested that the owners get a member of Congress to introduce legislation protecting baseball's exemption and to negotiate modifications to the reserve clause with the union. Fortas wrote that ultimately “this is one of the relatively unusual cases in which approach and substance of presentation of issues to the Court may be of great significance.” The owners' ability to preserve their exemption came down to oral argument. The justices, Fortas wrote, would not be eager to uphold
Toolson
on
stare decisis
grounds. “Reliance upon
stare decisis
will leave the Court (with the possible exception of one Justice) uncomfortable; and this is a dangerous state of mind for Organized Baseball,” Fortas concluded in his memo. “Only an appealing presentation of the special equities in this situation can counteract the unease which the
Toolson
result will generate.”

At Hoynes's and Porter's moot court session, Fortas brought more than just the ideas in his November 1970 memo and his experiences as a former justice; he also knew how to make a persuasive presentation at oral argument, having argued one of the Supreme Court's landmark constitutional cases.
Gideon v. Wainwright
—prompted by a handwritten cert petition from an indigent inmate named Clarence Earl Gideon—won indigent criminal defendants the right to appointed counsel at felony trials. Fortas had briefed and argued the case
pro bono
at the request of the Court. He undoubtedly used his expertise as a former justice and esteemed oral advocate to grill Hoynes and Porter at their moot court session. Curt Flood may have been the Clarence Earl Gideon of the 1971 term, the lone individual taking on the establishment, but the baseball establishment had Gideon's lawyer on its side.

D
uring breakfast with Dan Levitt at the Hay-Adams Hotel on the morning of the Supreme Court argument, Arthur Goldberg revealed his new strategy. Goldberg figured that the Court knew the legal issues and had granted cert in order to reverse
Federal Baseball
and
Toolson
. He decided to step behind the lectern, talk for two or three minutes, and open the floor to questions. If the justices had no questions, he promised, he would sit down.

Levitt thought it was a bold strategy that only a former justice could pull off. The goal of oral argument is to present your best reasons why the Court should vote in your favor. Goldberg's strategy meant that either he was supremely confident about winning, incredibly nervous about his return to the Court, or both.

A lot was riding on Goldberg's argument. This was supposed to be his triumphant return to the Court after resigning in 1965. It also represented his chance to reclaim his position at the pinnacle of the Washington legal establishment. Goldberg's reputation and career were not the only things hanging in the balance. Curt Flood had sacrificed everything—his playing career, his financial well-being, and his life in America—to get his lawsuit to this point. Goldberg needed to make the best possible showing so that Flood's personal sacrifices would not be in vain.

The conventional wisdom is that cases can be lost but not won at oral argument. The Court's earliest advocates, such as Daniel Webster, spoke for as long as they wanted; argument lasted for days. Over the years, the Court gradually reduced the time allotted for each side, from eight hours in 1848 to two hours in 1871, an hour and a half in 1911, one hour in 1925, and finally to a half hour in 1970, when Chief Justice Burger cut the time of oral argument in half so the Court could keep up with its expanding caseload. The justices on the Burger Court disagreed about the importance of oral argument. Brennan wrote that “truly skillful advocacy [makes] a difference only in a handful of cases.” Rehnquist opined that during oral argument “you do have an opportunity to engage or get into the judge's mental process.” Oral argument does make a difference, particularly in a closely divided case such as Flood's.

After revealing his plan to Levitt, Goldberg drove to National Airport to pick up Max Gitter and headed for the Court. On the way, Goldberg must have gotten himself turned around crossing one of several bridges over the Potomac River into Washington, or ended up on the wrong side of the U.S. Capitol. He started to drive in circles searching for the Court. He was lost. Goldberg eventually found his old workplace, but it was not a good omen.

The Supreme Court building is difficult to miss. The white marble palace stands four stories high behind the Capitol and next to the Library of Congress's Jefferson Building. Television cameras, not allowed in the courtroom, are set up on the 252-foot plaza. Two rows of eight marble columns help form the building's portico. A sculpture,
Liberty Enthroned
, graces the top of the building, with the scales of justice across her lap; she is guarded by
Order
and
Authority
, with three figures on each side representing
Council
and
Research
. Engraved just below the sculpture is the famous phrase “Equal Justice Under Law.”

The public lined up on the Court's marble steps for the chance to see Goldberg's argument. The lucky ones walked through two bronze doors, which depict great scenes in legal history and weigh six and a half tons apiece, and down the main corridor, known as the Great Hall. The Great Hall is lined with double rows of marble columns and busts of the chief justices. Two oak doors lead into the courtroom, an expanse of mahogany and marble featuring 44-foot ceilings, 24 giant columns made from the finest Italian marble, and walls and friezes depicting great figures in legal history.

The courtroom filled up quickly on the morning of March 20. With seats for only 355 people, including the press and Supreme Court bar, the Court offered about 200 to 250 seats to the public. The press overflowed its small reserved section on the room's left side. The justices' law clerks scrambled for seats on the far right side. Bowie Kuhn sat among the spectators. Flood's St. Louis attorney, Allan Zerman, also was on hand. They all wanted to see the Court address Flood's case against baseball.

Several key members of Flood's trial team were notably absent from the courtroom. Jay Topkis, who had planned on attending the argument before it was pushed back, was too preoccupied with his own legal practice at Paul, Weiss to watch Goldberg argue what should have been Topkis's case. Marvin Miller was visiting spring training camps to rally his troops during a pension dispute that would lead to the first strike in the union's history.

Miller was too busy with the impending strike to think about the strategic implications of having Flood in the courtroom. Many litigants do not attend oral argument. Muhammad Ali, for example, did not attend his. But there was something obviously personal at stake in Ali's case—imprisonment. As a result of Flood's decisions to return to base-ball, quit the Senators, and move to Europe, the outcome of his case appeared to have minimal impact on him personally—other than the highly unlikely recovery of damages if the case was remanded for trial. Flood's presence at the Court that day might have reinforced how his decision to sue had ruined his life. Instead, he was out of sight, out of mind.

In Majorca, Flood reportedly worked part-time as a sports announcer for an English-language radio station. In January 1972, he began working at a bar. Miller did not say anything, but he knew from the trial that the last place Flood needed to spend his time was in a bar. Flood's self-imposed exile had also cost him his true love. In February 1972, Flood's former girlfriend, Judy Pace, married actor Don Mitchell from the television show
Ironside
. Flood was destitute, drinking too much, and in all likelihood still awaiting the $10,000 severance payment due April 28. The last place he wanted to be on the morning of March 20 was in that marble courtroom surrounded by the media, curiosity seekers, and baseball fans.

At 10 a.m., the marshal banged a gavel on a wooden block. The audiencerose. The marshal invoked the Court's traditional greeting: “The honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court!”

The black-robed justices shook hands before walking through the red draperies behind four marble columns. They took their seats on the mahogany bench. At a cost of $8,500, Burger had ordered the bench sawed in three parts and angled. Unveiled the previous month, the new bench allowed the justices to see and hear who had asked a particular question during oral argument.

As the chief justice, Burger sat in the center seat. The associate justices sat in order of seniority with the most junior justices on the ends. The lineup, from left to right facing the audience, was as follows: Powell, Marshall, Stewart, Douglas, Burger, Brennan, White, Blackmun, and Rehnquist.

After four minutes of preliminary proceedings, Burger announced the first case in a clear, stentorian voice: “So first, this morning, in Number 71-32, Curtis C. Flood against Kuhn and others.” Burger paused for a moment, almost as if he did not know how to address a former member of the Court. The justices fretted about how to address their former colleague. They did not want to call him Mr. Justice or Arthur because they did not want to show favoritism. Many of them tried to avoid addressing him by name.

“Mr. Goldberg,” Burger finally said.

Goldberg was standing at the mahogany lectern only eight feet from the front of the justices' elevated bench. It is impossible, from that position, to see all nine justices without turning one's head. The podium is so close because the idea is to engage the justices in an intimate conversation. What often happens is that the justices end up having an intimate conversation among themselves, using persistent questions to the oral advocate as a conduit. “You have questions by
one
and you have to respond in terms of
nine
,” Fortas said after he had left the bench. The justices have often been described as nine separate law offices, or, as Justice Holmes reputedly put it, “nine scorpions in a bottle.”

Of the nine scorpions sitting on the bench that day, only four remained from Goldberg's time on the Court: Brennan, Douglas, Stewart, and White. Of those four, he maintained close friendships and a steady stream of correspondence with only his fellow liberals, Brennan and Douglas. Goldberg had made two recent public appearances with the current justices—at Justice Black's funeral on September 28, 1971, at the National Cathedral in Washington and at Justice Harlan's funeral on January 4 in Connecticut.

Responding to Burger's formal greeting at the lectern, Goldberg played it straight by uttering the traditional opening words at oral argument: “Mr. Chief Justice, and may it please the Court.” Goldberg briefly summarized Flood's case as attacking the legality of the reserve clause under federal antitrust law, state antitrust law, and common law. He explained that the reserve clause bound players to their teams for life and extended throughout the major and minor leagues in the United States, Mexico, and Japan. Goldberg spoke slowly and haltingly—almost as if he had forgotten what he wanted to do or say. Blackmun, sitting in Goldberg's old seat, thought Goldberg's nasal midwestern monotone was an “unpleasant voice.”

Goldberg abandoned the strategy he had laid out at breakfast. Rather than open up the floor to questions (a dubious strategy) or explain to the Court why it should vote in Flood's favor (the soundest strategy), he announced he was going to review the facts of Flood's case. This might have been a good idea given Flood's absence except for one problem: Goldberg knew nothing about Flood. He butchered the facts of Flood's baseball career. He said Flood had signed a contract with the Reds at age 15 (he signed at 18). He said Flood had won “several Golden Gloves competitions,” as if Flood were a boxer. He also said Flood had been elected team captain by his teammates (general manager Bob Howsam had appointed him and McCarver).

Goldberg knew he was in trouble because he turned for help to the astonished Levitt and Westen, who were sitting at counsel's table to the right of the podium. “Everybody in that courtroom knew that he froze,” Levitt said. “He did not realize how that was going to affect him, appearing before his brethren as a lawyer advocating.” Maybe it was his old friends, Brennan and Douglas, sitting on that mahogany bench where he should have been had it not been for Johnson's persistence and Goldberg's own ego. Maybe it was the knowledge that he was not as prepared as he should have been for oral argument.