by Brad Snyder
John M. Harlan had the Court in his blood. His grandfather and namesake, the first Justice John Marshall Harlan, had written a famous dissent objecting to the Court’s 1896 Plessy v. Ferguson decision upholding a Louisiana law requiring racially separate railroad cars. A former Wall Street lawyer and Eisenhower nominee to the Second Circuit and then to the Supreme Court, the second Justice Harlan was an open-minded judicial conservative. He disagreed with many of the Warren Court’s decisions expanding individual rights but based his disagreements on legal principles.
The previous term, Harlan had saved Muhammad Ali from going to prison. Harlan was supposed to write the Court’s opinion upholding Ali’s draft-evasion conviction, but his law clerks asked him to reconsider and sent him home with Alex Haley’s The Autobiography of Malcolm X and Elijah Muhammad’s Message to the Blackman in America. Harlan returned the next day persuaded that Ali objected to all wars, based on bona fide religious beliefs. The other justices agreed to go along with him. In an unsigned opinion, the Court unanimously reversed Ali’s conviction on a technicality—the state draft appeal board had failed to specify its reason for rejecting Ali’s conscientious objector status. “It’s what Justice Harlan called a ‘pee-wee,’ ” Harlan clerk Thomas Kratten- maker told authors Howard L. Bingham and Max Wallace. “It was a way of correcting an injustice without setting a precedent and changing the law.”
Harlan staunchly believed in stare decisis. He dissented in Radovich v. NFL because he saw no distinction between baseball and football. “If the situation resulting from the baseball decisions is to be changed,” he wrote, “I think it far better to leave it to be dealt with by Congress than for this Court to becloud the situation further, either by making untenable distinctions between baseball and other professional sports, or by discriminatory fiat in favor of baseball.” But Harlan understood that stare decisis had its limits. He wrote in 1970 that stare decisis promoted “ ‘public faith in the judiciary as a source of impersonal and reasoned judgments.’ Woodenly applied, however, it builds a stockade of precedent that confines the law by rules, ill-conceived when promulgated, or if sound in origin, unadaptable to present circumstances. No precedent is sacrosanct.”
In Black and Harlan, Flood lost two of the Court’s great thinkers. Black would not have voted for Flood, but Harlan—based on his opinion in Ali’s case, his dissent in Radovich, and his recognition of the limits of stare decisis—might have.
Because of Black’s and Harlan’s sudden retirements, Flood’s cert petition reached the Court with only seven justices: three liberals (William Brennan, William Douglas, and Thurgood Marshall), two moderates (Potter Stewart and Byron White), and two recent Nixon appointees (Chief Justice Warren Burger and Harry Blackmun). Levitt and Goldberg knew Flood’s petition could not be tailored to the political instincts of the justices as in a criminal or civil rights case. Baseball and antitrust law cut across labels like liberal, moderate, and conservative. That’s why, in Flood’s petition, Levitt tried to appeal to the Court as an institution to correct its past mistakes and to the justices’ common sense. “We tried to shame them into taking the case,” Levitt said.
Flood’s cert petition received its warmest reception from Douglas’s chambers. The only member of the Court remaining from Toolson, Douglas regretted his decision to affirm Federal Baseball. In January 1971, the Court’s standard denial of cert in Salerno contained an additional sentence: “Mr. Justice Douglas is of the opinion that certiorari should be granted.”
Two months later, Douglas sided with forward Spencer Haywood against the National Basketball Association (NBA). In the middle of the 1970-71 season, Haywood jumped from the American Basketball Association’s Denver Rockets to the NBA’s Seattle SuperSonics. The NBA, however, threatened to prevent Haywood from playing because of its “four-year rule,” which prohibited anyone from playing in the NBA until his college class graduated. The 21-year-old Haywood, whose class had not graduated, sued the NBA and obtained an injunction that kept him on the SuperSonics. In entering the injunction, Judge Warren Ferguson said that “professional athletes cannot be used and treated as merchandise.” The Ninth Circuit Court of Appeals, however, lifted Ferguson’s injunction. Haywood appealed to Douglas, the supervisory justice of the Ninth Circuit. Douglas reinstated the injunction, which allowed Haywood to compete in the NBA playoffs while his lawsuit continued. In a two-page order, Douglas found the NBA’s rules suspect and revealed his feelings about baseball’s special status:
The [NBA’s] college player draft binds the player to the team selected. Basketball, however, does not enjoy exemption from the antitrust laws. Thus the decision in this suit would be similar to the one on baseball’s reserve clause which our decisions exempting baseball have foreclosed. This group boycott issue in professional sports is a significant one.
Douglas deemed the reserve clause and the NBA draft “group boycotts,” which were considered automatic violations of the antitrust laws, because other employers were refusing to negotiate for the athletes’ services.
For William O. Douglas, the work of a Supreme Court justice was a four-day-a-week job. He often drafted dissenting opinions while sitting on the bench during oral argument. In his spare time, he wrote dozens of books to augment his salary after three divorces had destroyed him financially. He was 67 when he married his fourth wife, a 22-year-old college student. A Columbia law graduate and a corporate law professor at Columbia and Yale, Douglas made a name for himself during the New Deal, cleaning up Wall Street as Roosevelt’s Securities and Exchange Commission chairman. Roosevelt rewarded Douglas in 1939 by nominating him to the Court. Douglas expected Roosevelt to tap him as his next vice president in 1944 instead of Truman. That call never came. He accepted life as a Supreme Court justice as a consolation prize for failing to become president of the United States. Douglas served longer, 36 years, and wrote more opinions than any other justice in the Court’s history.
Douglas stood out as the Court’s liberal loose cannon and resident demonic genius. He lived his libertarian ideals. An avid hiker and outdoorsman, he holed himself up in his mountain cabin in Goose Prairie, Washington, until just before the term began and usually returned there before the term ended. There were no phones at his hideaway. The only way to contact him was by mail or at the nearest phone in town. When the Court was not in session, he relied on his law clerks to send him their cert memos and to relay his thoughts to the Court.
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 b
usiness 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 41⁄2-by-8-inch piece of white paper:
No. 71-32
I’ll write on denial of cert.
(1) Toolson was wrong.
(2) If it’s right, how about state anti-trust laws?
WOD
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:
Today, the Court denies certiorari to a man who wanted simply to work for the employer of his choice but who was prevented from doing so by a concerted refusal to deal among his prospective employers.This anomaly in our antitrust laws occurs solely because Curtis C. Flood sought to earn his livelihood as a baseball player. Had this same group boycott occurred in another industry, or even another sport, we would have no difficulty in sustaining his claim. The result obtains, however, because of professional baseball’s exemption from the antitrust laws—an exemption predicated upon an overly narrow interpretation of Congress’ power under the Commerce Clause, which retains its force solely because of judicial paralysis.
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.
The questions raised by petitioner are important ones. They involve the scope of Congress’ power under the Commerce Clause and the interrelationship of state and federal antitrust law. I would grant certiorari in this case and set it for oral argument.
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:
Certiorari Granted
No. 71-32. Curtis C. Flood, petitioner, v. Bowie K. Kuhn et al. Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit granted.
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.