A Well-Paid Slave (50 page)

At that moment, Nina Totenberg, then a reporter for the
National Observer
, broke the Court's usually somber mood by laughing. As Blackmun continued reading, Powell winked at the reporters sitting on the left side of the courtroom. Blackmun concluded by mentioning that Powell “took no part in the consideration or decision of the case.” Those same words appeared in the official text of the decision but were not literally true. Powell had participated in oral argument and one private conference and had written Blackmun an encouraging note. Powell represented a possible fifth vote for Flood. More than anything else, his decision to withdraw affected the outcome of Flood's case because otherwise Burger may not have felt the need to break a nonexistent tie.

Blackmun also announced Burger's concurrence, Burger's and White's refusal to join Part I, Douglas's and Marshall's dissents, and Brennan's joining both dissents. The dissenting justices sometimes, but not often, read from their opinions if they feel strongly about a case. Douglas was not in the courtroom that day. He had already made his way back to his Goose Prairie cabin, having asked Burger to announce his dissent. Neither Marshall nor Brennan said a word. The Court announced four more decisions and then adjourned.

The clerk of the Court, Michael Rodak Jr., sent identical six-word telegrams on the afternoon of June 19 to Arthur Goldberg and Lou Hoynes: “JUDGMENT FLOOD AGAINST KUHN AFFIRMED TODAY.” It had been exactly nine months since the Court had agreed to take the case.

Goldberg was a bit confused after reading the Court's decision. White and Burger joined only Parts II-IV of Blackmun's opinion. They had forgotten to join Part V, the legal holding of the case. So, technically, without a five-justice majority for Part V, there was no opinion of the Court. Goldberg called Henry Putzel Jr., the Court's reporter of decisions, and pointed out the error. Putzel conferred with the two justices, who agreed to revise the Court's opinion to read that they had joined all but Part I of Blackmun's opinion. Putzel notified Blackmun, who had approved the opinion's syllabus. On July 3, the Court sent a letter to counsel alerting them of the change and revised the paper copy of the
U.S. Reports
. The Court could not even announce its decision properly.

Goldberg indicated that he “was not surprised at the result in Flood's case although I did expect better opinion writing.” He agreed with Topkis, who wrote Goldberg that the “Supreme Court screwed us. . . . I am afraid that the sad fact is that nothing today's Court does is terribly likely to surprise me.” Some of the blame lay with Goldberg and his awful oral argument. Dan Levitt did not think that Goldberg's argument, as bad as it was, affected the outcome. But Peter Westen, the other associate at counsel's table that day, believed that Flood would have won if the case had been decided on the briefs alone. Goldberg refused to seek an opportunity to redeem himself. He vowed never to argue another case before the Supreme Court.

Even though they were no longer law partners, Goldberg left it up to Topkis to settle the bill with Marvin Miller. Topkis came away from Flood's trial with a deep respect and admiration for Miller. They shared the sting of the Supreme Court defeat and remained friends long after the bill had been settled. The Players Association, Topkis wrote Miller, owed Paul, Weiss $100,000 ($25,000 had already been paid, and Goldberg did not charge the union an additional $34,000 for his billable time). In the last line of his letter to Miller about the bill, Topkis wrote: “The only bad thing about the case from my point of view was losing it—everything else aside, Mrs. Lincoln, how was the show?”

Bowie Kuhn reacted to the decision with a lawyer's caution, describing it as “constructive.” “The decision opens the way for renewed collective bargaining on the reserve system after the 1972 season,” he said in his prepared statement to the press.

Miller lacked Kuhn's faith that “renewed collective bargaining” would free the players from the reserve clause. “Renewed?” Miller said to Red Smith. “It has never begun.” Miller was determined to press the owners for modifications to the reserve clause during the next round of labor negotiations, but he knew from his experiences not to be overly optimistic.

Ever the strategist, Miller hoped “that the Congress will accept the Court's clear invitation to act in this matter and we will be cooperating fully with the Congress to achieve that result.” Howard Cosell, testifying before the Senate Commerce Committee the day Flood's decision came down, remarked: “The original reserve clause is so old I think it must have been written by William of Orange.” Senator Sam Ervin (D-NC), the future star of the Watergate hearings, expressed similar sentiments before a House subcommittee two months later. “I hope you will all join with me in trying to pass this legislation to help vindicate the courageous sacrifice of Curt Flood so that those athletes that come after can say truthfully and proudly that ‘I am not a piece of property,' ” Ervin said. It “is easy to become emotional about the plight of American professional athletes . . . even though their numbers are small, they are slaves. Even though many are well-paid slaves.” Miller's hope and Cosell's and Ervin's testimony notwithstanding, Congress did nothing. The union was no match for baseball's lobby in Washington. “By the time the gentlemen on Capitol Hill get around to rendering a decision,”
Chicago Sun-Times
columnist Bill Gleason wrote, “Curtis Flood will be an old gentleman living in retirement.”

The Court's decision landed Flood on the front pages of the
New York Times
and
Washington Post
and on the network news. It was the last time he was foremost on the mind of America. After that day, most of the country forgot about him.

The press ripped into the decision. Red Smith, now writing for the
New York Times
, labeled it a “cop-out” and “a disappointment for several reasons that have nothing to do with Curt Flood's bid for $3-million in damages. . . . It is a disappointment because the highest Court in the land is still averting its gaze from a system in American business that gives the employer outright ownership of his employees. . . . It is a disappointment because this Court appears to set greater store by property rights than by human rights.” It was not just Red Smith taking on the establishment. The
New York Times
,
Washington Post
,
Washington Evening Star
,
Baltimore Sun
,
Minneapolis Star Tribune
, and
St. Louis Post-Dispatch
all wrote editorials condemning the decision. Most sports columnists blasted the Court. Only backers of the baseball establishment— the
Sporting News
, Dick Young, Bob Broeg, Joe DiMaggio, and Ted Williams—applauded the ruling.

Over the years, Blackmun's “sentimental journey,” as he described Part I, took heat from all corners. It started with the sportswriters. “Presumably,”
Los Angeles Times
columnist Jim Murray wrote, “the decision was handed down in the form of bubble-gum cards.” Blackmun later said he was “amused” by “the complete antagonism of the sportswriters in Washington and New York. I think they felt I had impinged on their turf.” Blackmun's opinion, however, helped turn the conservative sporting press in Flood's favor.

Then came the investigative reporters. Woodward's and Armstrong's book,
The Brethren
, revealed that Stewart had been “embarrassed” about assigning the
Flood
opinion to Blackmun. In December 1979, one of Blackmun's law clerks, Bill Murphy, read excerpts of the book in
Newsweek
. The next morning at breakfast, he alerted Blackmun to Stewart's comments. Murphy also brought in some old baseball cards from his personal collection. During oral argument, Blackmun passed Stewart the cards of several former Reds players, including Gus Bell, Vada Pinson, and Frank Robinson, along with a handwritten note mentioning the book's report that Stewart had been “embarrassed.” Stewart replied that it was “nonsense.” Blackmun was not so sure. Nearly 10 years later, Woodward revealed Stewart as one of the book's confidential sources. In a September 1995 oral history, Blackmun was asked about Stewart's remark:

Blackmun and Stewart carried on a friendship through their mutual love of baseball, passing notes about the game while on the bench and lending each other books on baseball history.

Legal scholars picked up where the press and Stewart left off in criticizing Blackmun's
Flood
opinion. Professor William Eskridge called it “an almost comical adherence to the strict rule against overruling statutory precedents.” Eskridge was not alone; most scholars blasted Blackmun's opinion. The reason for the Court's decision, according to Eskridge, had nothing to do with its respect for
stare decisis
; it had everything to do with Blackmun's ode to baseball and the list of names in Part I.

The Washington legal community derided Blackmun's list. A former Supreme Court clerk wrote a parody of the opinion, privately circulated among Washington lawyers, titled “Baskin v. Robbins.” “There are many great ice cream flavors,” the mock opinion began as it listed off flavors from chocolate, vanilla, and strawberry to rocky road. “The list seems endless.”

After the Court's decision came out, a law clerk alerted Blackmun to a glaring omission from his list of names—Mel Ott. Blackmun insisted that Ott, the New York Giants right fielder who hit 511 home runs, was on the list. “I shall never forgive myself,” Blackmun said. He was so upset that he scribbled “Mel Ott?” in the margin of his copy of the
U.S. Reports
containing the
Flood
decision. Blackmun kept a gift in his chambers from his law clerks—a Mel Ott model Louisville Slugger bat mounted on an engraved plaque bearing the justice's reaction upon learning of Ott's omission. The bat was one of Blackmun's prized possessions.

Blackmun staunchly defended his “sentimental journey” and proclaimed
Flood v. Kuhn
his favorite opinion. “[I]t's been a great conversation piece,” he said. “I can go to Chicago, and somebody will come up and say, ‘I read your list of the great heroes of baseball, but why didn't you include Joe Zilch?' And then we'd have a conversation going as to why I didn't include Joe Zilch. He didn't bat well enough over ten years or something. Sure.” Talking baseball was a welcome respite from the threats and hate mail Blackmun began to receive for writing the majority opinion in the landmark abortion case,
Roe v. Wade
, the following term.

Blackmun enjoyed being viewed as the Court's number one baseball fan. A week after his
Flood
opinion came out, a California man sent Blackmun his article about the connections between the supposed founder of baseball, Alexander Cartwright, and the Freemasons. In 1973, a friend from Minnesota sent him poems he had written about “Casey at the Bat,” Blackmun's favorite poem. Two years later, Judge Roger Robb of the D.C. Circuit sent him a
University of Pennsylvania Law Review
article, “The Common Law Origins of the Infield Fly Rule.” The 47th member (out of 700) of the Emil Verban Memorial Society, a who's who of Washington, D.C.-based Chicago Cubs fans, Blackmun had grown up rooting for the Cubs before becoming a Twins fan and regularly entertained former Cubs players in his chambers. The criticisms from the press, the legal community, and his fellow justices about his
Flood
opinion left him unperturbed. “I would do it over again because I felt that baseball deserved it,” he said.

Blackmun failed to see the consequences of his conversation piece on the Court. More so than with the legislative or executive branches, the Court's legitimacy depends on the people's confidence in the institution's decisions. As Alexander Hamilton, one of the framers of the Constitution, wrote in
The Federalist Papers
, the judiciary “will always be the least dangerous [branch] to the political rights of the Constitution” because it “has no influence over either the sword or the purse. . . . It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Flood v. Kuhn
represented a lapse in the Court's judgment. Some of the justices seemed to have bowed to the aura and mystique of baseball as the national pastime rather than striving to correct two of the Court's erroneous decisions. They compounded the errors in those decisions and compromised the Court's integrity. A footnote in Marshall's
Flood v. Kuhn
dissent encapsulates the problem with Blackmun's “sentimental journey”: “‘[A] decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself.' ”

In the years after
Flood v. Kuhn
, Blackmun developed into a confident and extremely liberal justice. He was proud of his reputation as someone who stood up for “outsiders, or the little people”—whether they were women, abused children, homosexuals, Native Americans, or death row inmates. “I think there's a tendency in judicial writings to overlook the human-being factor in almost—well, in most cases,” he later said. In writing the majority opinion in
Flood v. Kuhn
, however, Blackmun lost himself in the romance of baseball and forgot about the struggles and sacrifices of Curt Flood.