A Well-Paid Slave (48 page)

Blackmun's list did not consist only of Hall of Famers or players strictly of a certain skill level. It was more eclectic than that. It included all 26 players interviewed by Lawrence S. Ritter for his classic oral history,
The Glory of Their Times: The Story of the Early Days of Baseball Told by the Men Who Played It
. Those players, scattered throughout Blackmun's list, included Hall of Famers Rube Marquard, Wahoo Sam Craw-ford, Edd Roush (who sat out the entire 1930 season because of a contract dispute), Goose Goslin, and Paul Waner, but also obscure players including Fred Snodgrass (best known for a dropped fly ball in the 1912 World Series) and Bill Wambsganss (who once turned an unassisted triple play). Blackmun's list even included some of the game's great characters merely mentioned in Ritter's book, such as Germany Schaefer. “These are names only from earlier years,” Blackmun explained in a footnote. “By mentioning some, one risks unintended omission of others equally celebrated.” His criteria for inclusion on the list seemed as idiosyncratic as his vote on Flood's case.

Blackmun followed up his list of players with more useless baseball arcana. He referred to Ring Lardner and the “World Serious,” Ernest Lawrence Thayer's poem “Casey at the Bat,” and “the ring of ‘Tinker to Evers to Chance.' ” He included the entire poem about the Chicago Cubs' aforementioned double-play combination—“Baseball's Sad Lexicon” by Franklin Pierce Adams—in a footnote. He also quoted George Bernard Shaw describing baseball as “the great American tragedy.” The list of retired baseball greats, however, became Blackmun's obsession and the defining aspect of his opinion.

The rest of Blackmun's opinion was fairly straightforward. Part II discussed the facts of Flood's career and listed his annual salary figures. Flood received less than three printed pages. Part III quoted extensively from the lower court opinions of Judge Cooper and the Second Circuit. Part IV reviewed in detail all the Court's opinions touching on baseball's antitrust exemption, including
Federal Baseball
and its interstate commerce underpinnings;
Toolson
and the cases that followed about theatrical performances, boxing, football, and basketball; and the proposed congressional legislation over the years. Finally, Part V—only 4 of the opinion's 27 pages—provided the reasoning behind his decision.

After conceding that baseball was a “business and it is engaged in interstate commerce,” Blackmun characterized baseball's antitrust exemption as an “exception,” “anomaly,” and “aberration.” “Even though others might regard this as ‘unrealistic, inconsistent or illogical,' the aberration is an established one. . . . It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of
stare decisis
, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.”

Recognizing that the Court had refused to grant other professional sports similar immunity, Blackmun placed blame for baseball's exemption on Congress: “We continue to be loath, 50 years after
Federal Base-ball
and almost two decades after
Toolson
, to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long.” Never has a Supreme Court opinion turned on a more oxymoronic phrase than “positive inaction.” Blackmun passed the buck to a political body that he knew would not remove baseball's exempt status: “If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court.” After upholding
Federal Baseball
and
Toolson
on
stare decisis
grounds, Blackmun ruled that Flood's state anti-trust claims were preempted by federal law. He found no reason to address baseball's labor-exemption argument.

Blackmun still needed four additional votes for a majority opinion. Stewart read Blackmun's first draft with chagrin. He had instructed Blackmun to write a one-paragraph
per curiam
, and Blackmun had come back with a 27-page ode to baseball. Blackmun's paean to the national pastime was not even original—Judge Moore had already written an even more fawning concurring opinion in the Second Circuit. Instead of addressing Flood's claims in a legally rigorous way, Blackmun's opinion called attention to the Court's past blunders and portrayed the justices as a bunch of sycophantic baseball fans.

Stewart, however, did not want to jeopardize Blackmun's already fragile psyche. He instead called Blackmun and asked him about his list of famous ballplayers.

“I like that history of baseball,” Stewart said, “but why didn't you name Eppa Rixey?”

“Didn't I name Eppa Rixey?” Blackmun asked.

“No,” Stewart replied. “And you know what a famous player he was for the Cincinnati Reds. If you will add him, I'll join your opinion.”

Blackmun agreed to add Eppa Rixey, a big left-handed pitcher who had somehow managed to get into the Baseball Hall of Fame despite marginal credentials (266-251 career record in 21 seasons).

On May 9, Stewart circulated a typewritten letter to his colleagues:

The story of how and why Stewart signed on to Blackmun's opinion soon made its way through the law clerk grapevine. The name games—and the battle for the majority opinion in
Flood v. Kuhn
—had only just begun.

Blackmun also received encouragement from an unexpected source: Powell. On May 8, Powell wrote Blackmun:

There was nothing persuasive about Blackmun's baseball blather. Powell may just have been patting Blackmun on the back. But if Blackmun was having any second thoughts about Part I of his opinion, Powell's kind words ended them.

The opposition came soon enough. On May 11, Douglas circulated his draft dissent. He had been working on it ever since he received Blackmun's draft. Douglas, like Blackmun, did his own work. He wrote out the dissent in longhand on a yellow legal pad. His secretary typed it and immediately sent it to the printer, though it went through several drafts before Douglas circulated it among his colleagues. Although he borrowed a few bits and pieces from the dissent from the denial of cert he and his law clerk, Kenneth Reed, had drafted in October, the language was fresh and new and unmistakably Douglas's.

Federal Baseball
, Douglas began, “is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view of a rather dismal business account over the last 50 years would keep that derelict in midstream.” Douglas's first footnote acknowledged that he had voted to affirm in
Toolson
but had “lived to regret it.” He described baseball as “big business” guilty of “predatory practices.” “The beneficiaries of the
Federal Baseball Club
decision,” he wrote in a snide comment about Blackmun's list of ballplayers, “are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.” He portrayed these players as the “victims of the reserve clause.”

Douglas destroyed the linchpin of Blackmun's argument. “If congressional inaction is our guide,” he wrote, “we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.” Douglas appealed to the Court to act: “The unbroken silence of Congress should not prevent us from correcting our own mistakes.” Douglas's dissent was six paragraphs of poetry and persuasion. It was everything that Blackmun's opinion was not— straightforward and well reasoned. It reflected the difference between 33 years and 2 years of experience on the Court.

The day Douglas circulated his dissent, Marshall phoned his law clerk to say he was not joining Blackmun's opinion. Marshall's law clerk prepared a dissent overruling
Federal Baseball
and
Toolson
and remanding the case to the trial court to decide the labor-exemption issue. Multiple dissents often arise out of a closely divided case, such as Flood's, in which the justices express different concerns with the majority opinion. Marshall's primary concern, judging from his questions at oral argument, was about the labor exemption. On May 11, he circulated his dissent to the other justices' chambers.

Marshall's dissent was not as well written as Douglas's. Unlike the other opinions, however, it began with Curt Flood's story. “To non-athletes, it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services,” Marshall's dissent said. “But, athletes know that it was not servitude that bound the petitioner to the club owners; it was the reserve system.”

Marshall's dissent characterized the Court as “torn between the principle of
stare decisis
and the knowledge that”
Federal Baseball
and
Toolson
“are totally at odds with more recent and better reasoned cases.” It rejected the idea that Congress had endorsed the exemption by failing to act. “The importance of the antitrust laws to every citizen must not be minimized,” the dissent said. “They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers.”

Marshall's dissent asserted that overruling
Federal Baseball
and
Toolson
“does not mean that petitioner would necessarily prevail.” With a nod to Jacobs's and Winter's
Yale Law Journal
article (cited in a footnote), the dissent launched into a four-page discussion of the labor exemption. Marshall concluded that “none of the prior cases is precisely in point” and “the issue was not squarely faced” at Flood's trial or before the Second Circuit. Marshall, therefore, sought to send Flood's case back for a trial on the labor-exemption issue—just the sort of compromise position that might win over a majority of the justices. Marshall wanted his dissent to become the opinion of the Court.

It was unclear why Marshall switched his vote. Maybe he saw the slavery aspect of Flood's fight for economic freedom in professional baseball. Maybe his liberal law clerk showed him a draft dissent and encouraged him to adopt it. Maybe it was the result of a conversation with his close friend and liberal ally, Justice Brennan. Marshall often voted the way Brennan did.

A small, impish-looking man, William J. Brennan Jr. was one of the Court's judicial giants. The second of eight children born to Irish-Catholic immigrants, he grew up in Newark, New Jersey. His father shoveled coal at a brewery and emerged as a local labor leader. After attending the University of Pennsylvania and Harvard Law School on scholarships, Brennan returned to New Jersey to practice law. From 1949 to 1952, he rose through the state court system as a trial judge, appeals court judge, and state supreme court justice. In 1956, President Eisenhower nominated Brennan, a Democrat, to the Supreme Court of the United States. Eisenhower needed the support of Catholic Democrats during his 1956 reelection campaign, just as he had needed Earl Warren to deliver California in 1952. Much to Eisenhower's dismay, Brennan and Warren ignited an individual-rights revolution.

If anyone could turn a dissent into a majority opinion, it was Brennan. Brennan was the Warren Court's architect and field general. He was not a politician who traded votes like some legislator. He understood the persuasiveness of the written word and the power of different legal arguments to win over colleagues to his point of view. He explained to his law clerks the most important rule of law. He held up his hand and wiggled his fingers. “Five votes,” Brennan said. “Five votes can do anything around here.”

Brennan's position on Flood's case was clear. He had voted to grant cert in both
Salerno
and
Flood v. Kuhn
, and he had voted for Flood at conference. His voice, however, had not yet been heard. Brennan was focusing his efforts elsewhere. The Court was wrestling with huge issues that term, including the constitutionality of abortion and the death penalty.

On May 12, Brennan circulated a one-sentence letter agreeing to join Douglas's dissent in Flood's case. Joining a dissent was a common practice and clearly showed where Brennan stood. But Flood was going to need more help from Brennan than that. Neither Douglas nor Marshall could muster a five-justice majority in Flood's case on his own. Douglas was not a consensus builder, and his dissent was too short to serve as a majority opinion. Marshall's dissent floated a possible compromise on the labor-exemption issue, but it lacked the power or persuasiveness of a majority opinion. They needed Brennan to rework their dissents and to rally another justice to Flood's side. At the end of the term, however, Brennan was trying to persuade Blackmun to issue two opinions striking down restrictive state abortion laws and to cobble together a majority to strike down state death penalty laws.

With Powell out and Marshall's defection in
Flood v. Kuhn
, the eight justices were locked in a 4-4 tie. In a tie, the Court issues an unsigned
per curiam
opinion upholding the lower court's decision. A 4-4 tie would have been a tough way for Flood to lose, but three justices had not yet cast their official votes: Rehnquist, White, and Burger.