A Well-Paid Slave (46 page)

By all accounts, Hoynes had done a masterful job of putting baseball's best foot forward. He engaged the justices, answered their questions, and steered the discussion to the issue he wanted to discuss. “They got my best that day,” Hoynes recalled recently. “Thirty years later, I could not have done a better job.”

What Flood needed was a strong rebuttal. Goldberg, however, had exhausted all his rebuttal time. That did not stop him from trying.

As Hoynes finished his argument, Goldberg picked up his notes and made his way to the lectern. Solicitor General Erwin Griswold, the dean of Harvard Law School when Hoynes had been a student there, approached from the left to argue the next case. The justices' eyes widened in horror at the thought of Goldberg speaking again. Hoynes kept both hands on the lectern. He then turned around and stepped between the lectern and Goldberg, allowing Griswold to slide by. Griswold winked at Hoynes and grabbed the lectern. It was a perfect pick play. Hoynes's Indiana high school basketball coach would have been proud.

“Thank you, gentlemen,” Burger intoned at 11:12 a.m. “The case is submitted.”

With that, Griswold said, “May it please the Court,” with Goldberg still standing behind him.

After Goldberg gathered his briefcase and made his way out of the courtroom, he told Levitt: “That was the worst argument I've ever made in my life.”

Levitt later agreed: “It was one of the worst arguments I'd ever heard—by one of the smartest men I've ever known, in the setting where he should have been a super advocate. It was like he choked.”

Goldberg walked through the double oak doors, across the Great Hall, and down the Court's marble steps. He held an impromptu press conference for the waiting television cameras. After the glare of television lights was gone, an Associated Press photographer caught Goldberg on the Court's plaza near one of the fountains with a downcast look on his face.

If ever a case had been lost at oral argument, Flood's was it.

N
early five hours after Goldberg's argument, the justices met in conference to discuss the four cases argued that day. The conference on the merits of argued cases is more like a straw poll than an extended dialogue. The justices do not usually engage in a back-and-forth discussion. They merely state their views on the case and reveal their tentative votes. This process is important for two reasons: First, it is the last face-to-face meeting of all the justices about the case; and second, it allows the chief justice (or the most senior justice in the majority) to assign a justice to write the majority opinion about the case. Once again, no law clerks, secretaries, or court personnel attend the conference. The justices meet and talk in private. The only record of what is said comes from the justices' handwritten notes.

As the first case argued that day,
Flood v. Kuhn
was the first to be discussed. It was Burger's job, as chief justice, to summarize the issues of the case. The other justices sometimes complained that Burger was ill-prepared for conference and relied too much on his law clerks' memos. They admired the way Burger's predecessor, Earl Warren, whom they referred to as the “Super Chief,” had conducted conference. Warren, who would often meet with Brennan the day before conference, would boil a case down to its essence and explain in plain English the moral or practical issues at stake. In contrast, Burger's summaries tended to go off on tangents and often failed to capture the crux of the matter.

Burger's view on Flood's case was simple and straightforward:
Toolson
was wrong. President Nixon's supposedly conservative chief justice had just voted to reverse two Supreme Court precedents. The other justices once again spoke in order of seniority.

Douglas found himself agreeing with Burger. He believed that
Toolson
was out of step with the Court's other commercial decisions and that baseball's antitrust exemption “muddies the waters.” Professional base-ball, football, and basketball should be treated alike. He voted to reverse and send it back for a new trial.

Brennan explained that he had joined Harlan's dissent in
Radovich
precisely for the reasons articulated by Douglas—baseball, football, and basketball should be treated the same under the antitrust laws. He wanted to overrule
Toolson
and remand the case for a new trial about the labor exemption. Flood's state antitrust claims, Brennan argued, were preempted by federal law. He thought there might be certain advantages to the reserve clause, but the Court did not have to reach that issue. It only had to overrule
Toolson
and send the case back for trial.

Brennan's was the third vote to reverse. Flood 3, Baseball 0. Flood needed only two of the next six votes to win. But, again, these votes were tentative and designed to allow the assignment of the majority opinion. Once the justices read the majority and dissenting opinions, they could switch sides, turning the majority opinion into a dissent and vice versa.

Stewart voted to affirm. He argued that the Court had invited Congress to eliminate baseball's exemption, and Congress, by doing nothing, had implicitly approved the exemption. The exemption, Stewart believed, affected the actual operation of baseball and was best left up to Congress to change. The state antitrust claims were preempted, he said, based on the Milwaukee case.

White voted to affirm. He agreed with Stewart.

Marshall also voted to affirm. This seems shocking in light of Marshall's questions (and behavior) at oral argument. It reflects the adage that it is often a mistake to read too much into a justice's questions and reactions at oral argument. Marshall, straying from fellow liberals Brennan and Douglas, believed that Stewart had made a more compelling argument.

Flood 3, Baseball 3.

Blackmun said that
Federal Baseball
had decided that baseball was a sport, not a business. He had misread
Federal Baseball
, which said base-ball was a business but in 1922 was not interstate commerce. Blackmun also said it was “untenable” to apply the state antitrust laws. He viewed this more as a labor dispute than an antitrust problem. He voted to “tentatively affirm.”

Powell, who later emerged as one of the Court's moderates, agreed with Burger, Douglas, and Brennan to reverse. It made no sense to have an exemption for baseball but not for football. Congress's failure to act was not equivalent to action. If the Court reversed
Toolson
, then Congress could act.

Before Powell spoke, however, he issued an important disclaimer. He owned stock in Anheuser-Busch and was not sure whether it owned the St. Louis Cardinals, one of the named defendants. If Anheuser-Busch owned the Cardinals, he promised, he would disqualify himself from the case. His views, therefore, were even more tentative than the other justices'.

Flood 4*, Baseball 4.

Rehnquist, the Court's other conservative besides Burger, voted to affirm the exemption—with another important caveat. He agreed with Stewart that the Court had missed its chance to overrule
Federal Baseball
in
Toolson
and that Congress had failed to act. Rehnquist, however, disagreed with the lower courts about the state antitrust claims. He believed that even if Congress had exempted baseball by not acting, the state antitrust laws still applied. He wanted to send the case back for trial on that ground. During his ensuing 33 years on the Court, Rehnquist made it his mission to resurrect the power of the states. The federal courts, he believed, had trampled on state sovereignty. In 1972, however, Rehnquist was in the minority on states' rights issues.

Flood 4*, Baseball 5.

The tentative votes were as follows:

Burger, Douglas, Brennan, and Powell for Flood.

Stewart, White, Marshall, Blackmun, and Rehnquist for Baseball.

Burger reiterated his decision to reverse. That placed him in the minority. The chief justice assigns the majority opinion only when he is in the majority. When he is in the minority, the most senior justice in the majority assigns the opinion. Burger restated his vote to reverse because earlier that term, such as in the abortion cases, he had been accused of assigning opinions when he had voted with the minority.

For the first time in his career, Stewart controlled the assignment of a majority opinion. Even as of the last term, Black, Douglas, Brennan, and Harlan had had more seniority. With Black and Harlan gone and Burger, Douglas, and Brennan in the minority, the opinion assignment in Flood's case fell to Stewart.

Potter Stewart was one of the youngest justices ever named to the Court. Four years after naming him to the Sixth Circuit Court of Appeals, President Eisenhower nominated the 43-year-old Stewart to the Supreme Court in October 1958. A member of a prominent Cincinnati family, Stewart had attended Hotchkiss, Yale, and Yale Law School. He was regarded as one of the most handsome justices and also one of the most open with the press. Richard Nixon believed that Washington's “social and intellectual climate” influenced Stewart; the president told Burger later that term that Stewart attended too many Georgetown dinner parties. At one of those parties in the spring of 1977, Stewart met journalist Bob Woodward and became the impetus and an anonymous source for Woodward's and Scott Armstrong's 1979 Supreme Court exposé,
The Brethren
.

Stewart did not announce his assignment of Flood's case for a few weeks. The assigning justice generally waits a week or two before revealing his opinion assignments. After conference, the justices usually do not discuss cases in face-to-face meetings. They communicate through interoffice memos. During this phase of a Supreme Court case, they really do act like nine separate law offices.

On March 21, the day after conference, Powell circulated a two-paragraph note to his fellow justices:

Powell was out. The press and public would not learn of his decision until after the case had been decided. And even then, they would not know why Powell withdrew. Powell's decision to disqualify himself was the subject of much speculation. Why would a justice withdraw from a case just because he owned stock in a company whose subsidiary owned one of the defendants—particularly if he had decided to vote against that defendant?

The decision to withdraw from a case is entirely up to the individual justice. The justice does not usually disclose why he or she chooses to withdraw, but there are exceptions. For example, Rehnquist participated in a 1972 case about an army surveillance program of suspected radicals despite having testified before the Senate on the issue while working for the Justice Department. He released a memo denying that his past involvement had amounted to a conflict of interest. More than 30 years later, Justice Antonin Scalia refused to withdraw from a case involving the Energy Task Force run by Vice President Dick Cheney even though Scalia had recently flown with the vice president on Air Force Two for a private duck-hunting trip. Scalia released an exhaustive memo explaining his decision not to withdraw.

Powell's decision to withdraw over stock ownership was not surprising in light of his Supreme Court nomination hearings. The biggest issue at Powell's hearings was race. The second biggest issue was his stock ownership. Stock ownership had torpedoed one of Nixon's prior southern Supreme Court nominees, Fourth Circuit judge Clement F. Haynsworth Jr. A well-respected jurist despite his conservative racial views, Haynsworth had voted on several cases involving companies in which he either owned or would later own stock. Haynsworth had been nominated to replace Abe Fortas, whose resignation, triggered by a financial scandal, had made the justices' finances a point of emphasis. The Senate rejected Haynsworth's nomination, 55-45.

Before his own hearings, Powell disclosed that he and his wife owned nearly $1.5 million in stocks, bonds, and other publicly traded securities. That included 880 shares of Anheuser-Busch stock, then worth $44,110. Powell planned to put all the stocks into a blind trust. The ABA, however, issued new ethical guidelines requiring judges to have knowledge of their financial holdings to allow them to avoid conflicts of interest. Powell testified before the Senate Judiciary Committee that he planned to sell most of his stock holdings except those that had increased enormously in value. He apparently held on to his Anheuser-Busch stock. Of his remaining stock holdings and former clients, Powell promised the Senate: “If they should be involved in litigation in court— certainly for the foreseeable future—I would not take part in it.”

Even with Powell out, Stewart still had to assign the opinion to someone who could maintain a bare five-vote majority. The eight remaining justices had not yet cast their official votes. Powell's withdrawal gave baseball slightly more breathing room, but the tentative 5-3 majority could easily turn into a 4-4 tie if one justice switched his vote.

Stewart could have assigned the opinion to himself. He was a big Cincinnati Reds fan. During oral argument on October 10, 1973, Stewart received inning-by-inning updates of the fifth and deciding game of the National League Championship Series between the Mets and the Reds. One of Stewart's law clerks passed him updates on small Supreme Court note slips. He learned that the Reds had stranded the bases loaded in the first. Then came another update: “Mets 2, Reds 0. V.P. Agnew Just Resigned!!” Two years later, Stewart won $4 in a pool among the justices about the 1975 Reds-Red Sox World Series. He also exchanged notes on the bench with Blackmun about the Reds' fast start during the 1980 season.