A Well-Paid Slave

The nameplate on the door of his office read “Mr. Justice Gold berg.” It had been more than four years since he had resigned from the Supreme Court. His partners at the New York law firm Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison included former U.S. attorney general Ramsey Clark; President Kennedy’s chief speech-writer, Theodore Sorensen; and a former federal judge, lead partner Simon Rifkind. Yet Arthur Goldberg preferred that they refer to him as “Mr. Justice.”

Marvin Miller called him Arthur. Before Goldberg was the U.S. ambassador to the United Nations, a Supreme Court justice, or the secretary of labor, Miller knew him as the brains behind the Steelworkers Union. From 1948 to 1961, Goldberg served as general counsel for the Steelworkers and the Congress of Industrial Organizations (CIO). Many people believed that he was more powerful than the Steelworkers Union’s president. He argued Supreme Court cases, brokered the merger between the American Federation of Labor (AFL) and the CIO, negotiated with steel industry executives, and drafted legislation for members of Congress. He also worked closely with Miller.

As Miller rose from an obscure staff economist to chief economist and assistant to the Steelworkers’ president, Goldberg raised Miller’s public profile. He selected Miller (over Miller’s immediate boss) as a member of the Human Relations Committee, which was designed to prevent another massive steel strike by addressing issues with management before labor contracts expired. When Goldberg left to become Kennedy’s labor secretary, Miller replaced him on the nine-member Kaiser Steel Long-Range Sharing Plan Committee. The Kaiser committee revolutionized labor negotiations by employing three public representatives, three management representatives, and three labor representatives to resolve issues between the Steelworkers and California-based Kaiser Steel. One of the public representatives and the chairman of the Kaiser committee was University of Pennsylvania professor George Taylor, who later recommended to pitcher Robin Roberts that the Players Association hire Miller.

On the way to breakfast two days later, Miller noticed a story on the front page of the New York Times. There was Goldberg, pictured standing next to smiling former New York governor W. Averell Harriman, below the headline “21 Leaders Urge Race by Goldberg.” For several months, state Democratic leaders had been goading Goldberg to run either for the late Robert Kennedy’s U.S. Senate seat or for governor of New York. Polls indicated that Goldberg—a liberal Democrat in a heavily Democratic state, a Jew in a very Jewish city, a former Supreme Court justice, and holder of two cabinet positions (labor secretary and UN ambassador)—would win either office. In the 1966 gubernatorial race, Republican governor Nelson Rockefeller had captured only 44.6 percent of the vote. An October 1 poll showed Goldberg leading Rockefeller by 25 percentage points.

Goldberg was only joking. He often said that after serving on the Court, “I took myself out of the political arena.” Declining to go into politics was his way of still acting as if he were a Supreme Court justice. “I personally do not think it is a good thing for a man who has served on the nation’s highest Court and who has dealt with political issues, even though he has resigned, to re-enter the political arena,” he said when he resigned as UN ambassador in 1968. “I do not intend to do so.”

With this in mind, Goldberg assured Miller that he had no intention of running for governor, the U.S. Senate, or any other elected office. He did not want to be governor, he had never run for office in his life, and he was not about to embark on a career in electoral politics at age 61. Five days later, Goldberg confirmed what he had told Miller by announcing that he had no intention of running for any office in 1970. “This decision is final and not subject to change,” Goldberg said.

With Dick Moss at his side, Miller went through the background of the case. He discussed the players’ unsuccessful negotiations with the owners to modify the reserve clause; the two Supreme Court precedents, Federal Baseball and Toolson, which exempted baseball from the antitrust laws; and the 31-year-old ballplayer willing to sacrifice his career to challenge it all in court. He explained that Flood had retained local counsel in St. Louis, but that Miller wanted a lawyer with a national reputation to take the case all the way to the Supreme Court.

Miller could think of no one better suited for that task than Goldberg. He had seen Goldberg argue for two hours straight before a federal appeals court with only a scrap of notes in his hands. Although Goldberg was unsuccessful in overturning a lower court’s order forbidding the Steelworkers Union from going on strike, one of the three appellate judges congratulated him from the bench on his outstanding argument. In the span of three weeks in late 1959, he challenged the constitutionality of that injunction all the way to the Supreme Court. His first Supreme Court argument, representing the Steelworkers Union as a third party when President Truman seized the steel mills in 1952, had been so good that, according to Judge Abner Mikva, a Supreme Court law clerk that term, “[i]t was the overwhelming consensus of the law clerks that he was the best oral advocate not only of the day but of the entire year.” In 1957 he argued and won a Supreme Court case in the Textile Workers Union’s favor, and three years later he litigated a steelworkers’ case to the Court before allowing one of his colleagues to argue it.

No one knew more about labor-management relations than Goldberg. He educated a callow Massachusetts senator named John Kennedy on the subject and drafted labor-reform legislation for him. Goldberg could see that Kennedy was going places. Goldberg endorsed Kennedy for president in 1960 and rallied support for him among the labor unions. Kennedy rewarded Goldberg by naming him secretary of labor. After accepting the cabinet position, Goldberg severed his ties to the labor movement and even gave up the $25,000-a-year Steelworkers Union pension that would have kicked in after he turned 60. One of the most visible members of the Kennedy cabinet, Goldberg traveled the world making speeches, mediated massive labor disputes, and earned the president’s trust. When Kennedy nominated Goldberg to be a Supreme Court justice in 1962, the president wrote Mrs. Goldberg: “I gave away my right arm.”

Arthur Joseph Goldberg had dreamed of becoming a Supreme Court justice since he finished with the highest grade point average in the history of Northwestern’s law school. The youngest of eleven children (including two who died before his parents emigrated from Russia), Goldberg grew up in a working-class neighborhood on the west side of Chicago. He was the only one in his family to attend school beyond the eighth grade. His father had left a Russian town near Kiev and traveled through Siberia, Manchuria, California, and Texas before settling in Chicago, where he peddled produce on a cart drawn by a one-eyed horse. He died at age 51, when Arthur was eight. Goldberg later worked his way through Crane Junior College (while taking night classes at DePaul University), Northwestern University, and Northwestern’s law school. He then sued the Illinois Bar Association over its age minimum and won admittance before the age of 21.

Goldberg assumed the Court’s “Jewish seat,” which had belonged to Benjamin Cardozo and Felix Frankfurter. Frankfurter had stepped down on August 28, 1962, shortly after suffering a stroke. His replacement could not have been more philosophically different. Frankfurter believed in judicial restraint—strictly adhering to the Court’s past decisions and deciding cases on the narrowest possible grounds. Goldberg was a judicial activist—he saw the Court as the protector of the rights of individuals and minorities.

Goldberg’s appointment reinvigorated the Warren Court’s rights revolution, which had begun eight years earlier with the school-desegregation cases. Goldberg and fellow liberals Earl Warren, William Brennan, and William Douglas could often wangle a fifth vote from an increasingly conservative Hugo Black or moderate Tom Clark. They protected the powerless: instructing state legislatures to draw fairer voting districts, enforcing the separation between church and state, establishing new constitutional protections for the freedom of the press, safeguarding the rights of the accused, and overturning convictions of civil rights demonstrators.

Goldberg was in many ways perfectly suited to be a Supreme Court justice. Although not a gifted writer, he loved to generate ideas and relied on his law clerks to refine them into cogent judicial opinions. He circulated a confidential memorandum in 1963 urging his colleagues to declare the death penalty unconstitutional. Even though none of the six capital cases that term raised the issue, Goldberg made his views public in a three-page dissent. It was an idea that was a decade ahead of its time (the Court outlawed capital punishment in 1972 but changed its mind four years later). The law clerk who helped Goldberg plant those seeds of change was future Harvard law professor Alan Dershowitz. In Griswold v. Connecticut in 1965, Goldberg helped overturn a Connecticut ban on contraceptives. In a separate opinion, he wrote that the seldom-cited Ninth Amendment, which says the people retain any rights not enumerated in the Constitution, created a right to privacy.

Goldberg’s ability to mediate disputes was a valuable skill for someone who must persuade four other justices to join his opinions. He wrote several important decisions, including Escobedo v. Illinois, which overturned a murder conviction because the confession was obtained after the defendant’s request for a lawyer had been denied. Escobedo established a right to counsel at the interrogation phase of a criminal case, which led to the famous Miranda warnings.

Goldberg reveled in the law’s doctrinal intricacies. For Goldberg, the law was a religion consisting of a search for Talmudic truths; the justices were the rabbinical scholars. The rituals and formality of the Court appealed to a man who wore a three-piece suit to work every day. “He was happy on the Court; indeed, he was in his element,” wrote Stephen Breyer, a former Goldberg law clerk who later became a Supreme Court justice. Dorothy Goldberg wrote that her husband’s “three years on the Court were like three days.”

In July 1965, Goldberg made the biggest mistake of his life. He listened to the pleas of President Lyndon Johnson. Johnson yearned to put his friend and closest adviser, Washington lawyer Abe Fortas, on the Court. The president also needed a new ambassador to the United Nations after Adlai Stevenson’s death. John Kenneth Galbraith, a Harvard economist and former ambassador to India who wanted no part of the UN job, fed Johnson rumors that Goldberg was “bored” on the Court. A week earlier, Goldberg had given a speech at Harvard Law School and confided to Galbraith about his difficult adjustment to the slower pace of life as a justice (Goldberg later denied to journalists, historians, and even Johnson himself that he was ever bored on the Court or had any desire to leave).

Johnson seized on Galbraith’s information to cajole Goldberg into one of the quickest exits in the Court’s history. Three days after Steven-son’s death, Johnson called Goldberg to the White House. While Goldberg waited outside the Oval Office, Johnson aide Jack Valenti offered him the post of secretary of health, education, and welfare. Earlier that year, Johnson had offered Goldberg the job of attorney general. “I’m not an applicant for any post—including the U.N. one,” Goldberg told Valenti. In the Oval Office, Johnson reviewed a list of more than 20 potential candidates for the UN post with Goldberg, but both men knew why Goldberg was really there. Johnson wanted Goldberg. Two days later, Goldberg flew with Johnson to Stevenson’s funeral in Blooming-ton, Illinois, aboard Air Force One. During the plane ride home, Johnson pushed all the right buttons. He appealed to Goldberg’s patriotism. The nation was at war in Vietnam; his country needed him. A former member of the Office of Strategic Services (OSS) during World War II, Goldberg was proud of his wartime service and even prouder of being an American. As the son of Russian-Jewish immigrants and the embodiment of the American dream, he felt that he owed his country. Johnson appealed to Goldberg’s ego. Only someone with Goldberg’s negotiating skills could end the Vietnam War. Johnson said he was serious about peace; Goldberg could get the credit for making it happen. Finally, Johnson appealed to Goldberg’s ambition. If Goldberg could end the Vietnam War, he might be named secretary of state or even replace Hubert Humphrey as Johnson’s next vice president. And if Goldberg were vice president, he might even become the first Jewish president of the United States. That night, after they had returned to Washington, the president called George Washington University Hospital, where Goldberg was visiting his ailing mother-in-law, and officially offered him the job. For the rest of his life, Goldberg would answer questions about why he had left the Supreme Court after just three years. He gave up his dream job for God, country, and a political pipe dream.

Goldberg’s three years at the UN aged him 30 years. Referring to the UN’s 117 member countries, Goldberg said he felt like “a lawyer with 116 clients.” The real problem was the 117th client at home. On the Vietnam War, he was a dove in a presidential administration dominated by hawks. Syndicated columnist Joseph Alsop speculated that Goldberg would temper his views in order to preserve his vice-presidential chances. Alsop could not have been more wrong. In cabinet meetings and confidential memos, Goldberg made a persistent and persuasive case to halt the bombing in Vietnam and negotiate a settlement. Johnson, however, had no intention of pulling out of Vietnam without a victory and continued to escalate the war. Goldberg believed that Johnson froze him out of strategy sessions and kept key memos from him. The more correct Goldberg’s assessment about Vietnam proved to be, the more Johnson hated him for it. As early as December 1967, Goldberg considered resigning. The last straw was Johnson’s decision to leave Goldberg out of the Vietnam peace talks.

On March 31, 1968, Johnson publicly announced that he would not seek reelection and privately told members of his cabinet that he would understand if they decided to resign. On April 23, Goldberg submitted his letter of resignation before the entire cabinet. Two days later, Johnson accepted it. It was not a warm good-bye on the part of either man. “I don’t want the impression to be created that I am hanging around for a Supreme Court appointment,” Goldberg told the president and his cabinet. “This is not good for the country, the President, nor is it personally dignified for me.”

Although Goldberg denied that he had made a deal with Johnson to return to the Court, some Goldberg intimates believe that Johnson promised to reappoint him as chief justice. Ten days before Johnson announced that he would not seek reelection, Chief Justice Earl Warren had summoned his close friend Goldberg to his chambers. Warren had not even told his wife yet, but he was planning to step down from the Court. He wanted Goldberg to replace him. Goldberg was moved nearly to tears and urged Warren not to resign. Warren, however, had detested Richard Nixon since their days in California Republican politics and did not want Nixon appointing the next chief. Goldberg’s wife told him that even if “nothing later may measure up to the Supreme Court experience you have had, you still have a treasure in this to remember—that the Chief should have come to you and said I know no other man who should be the Chief Justice of the United States.”

Goldberg knew that there was no way—particularly after his latest get-out-of-Vietnam memo to the president, Secretary of Defense Clark Clifford, and Secretary of State Dean Rusk—that Johnson was going to name him chief justice. Syndicated columnist Drew Pearson lobbied Johnson to nominate Goldberg. Johnson told Pearson that the country was not ready for two Jewish justices (Abe Fortas had filled Goldberg’s “Jewish seat”). Goldberg, who reminded his wife that two Jewish justices, Louis Brandeis and Benjamin Cardozo, had served on the Court together during the 1930s, was so incensed that he wanted to confront the president: “I’ll ask him where the Constitution says the country has a god-given right to have seven Protestants on the bench but only one Catholic [William Brennan] and one Jew?”

After Warren announced his retirement in June 1968, Johnson tried to replace him with Fortas. Fortas’s nomination as chief justice failed because of Johnson’s lame-duck status, anti-Warren Court sentiment, and a financial scandal that eventually forced Fortas to resign from the Court. Fortas had lied about agreeing to a $20,000-a-year lifetime salary to serve on a foundation started by financier Louis Wolfson, who was convicted of securities fraud (Goldberg had turned down a similar offer from Wolfson after leaving the Court for the UN). After Fortas resigned, Johnson asked Goldberg about nominating him as a recess appointment (when Congress was out of session). But Johnson changed his mind after his staff discovered the president had spoken out against recess appointments. He later recommended that his successor, Richard Nixon, nominate Goldberg instead. There was no chance of that happening; thus Goldberg was forced to return to private practice, making him available to Flood.

Goldberg grasped the moral implications of Flood’s lawsuit. As a Chicago lawyer in December 1946 and January 1947, Goldberg had litigated a similar dispute involving professional basketball’s first giant, George Mikan. A bespectacled 6-foot-9 All-American at DePaul, Mikan signed a professional contract with the National Basketball League’s Chicago American Gears. On December 11, 1946, Mikan quit the team after its first home game because of a contract dispute. Mikan, who was pursuing his law degree at DePaul, claimed that the American Gears had reneged on an oral agreement to pay him an additional $25,000. His five-year contract paid him $7,000 a year. The team also agreed to pay him a $50 weekly salary to work in its legal department, $5 for each basket, $2 for each free throw, and an insurance policy equal to his salary. Publicly, the American Gears boasted that Mikan’s contract was worth $60,000. Privately, the owner of the team asked him to take a pay cut. Mikan was also upset about the way the team was being run: Mikan’s brother, Joe, was one of four players cut at the train station just before the team left for an eastern road trip, and the head coach did not show up for the team’s first home game.

The day after Mikan quit the team, Goldberg filed a declaratory judgment action seeking to void Mikan’s contract and declare the star center a free agent. He argued that the contract was invalid because it was unilateral or one-sided—the American Gears could release Mikan at any time, but the player was not allowed to quit and join another team. The American Gears also were under no obligation to pay Mikan if they went out of business, and could assign his contract to another team. As proof of the contract’s invalidity, Goldberg’s brief cited two pre-Federal Baseball cases in which the owners were unable to enforce the reserve clause and prevent stars Napoleon Lajoie and Hal Chase from jumping to rival leagues. The Cook County judge never ruled on the issues. After six weeks of legal wrangling, Mikan and the American Gears settled their differences on January 28; three nights later, he returned to the team.

Thanks to the Mikan case, Goldberg arrived at breakfast with Miller and Moss armed with a firm understanding of the reserve clause. A former Wrigley Field stadium vendor, he had sold coffee at Prohibition-era Chicago Cubs games. His allegiance to the Cubs notwithstanding, Goldberg saw the need to challenge the lifetime ownership of players. As a labor lawyer and a leader of the Warren Court’s rights revolution, he was outraged.

Goldberg’s giveaways infuriated his Paul, Weiss partners. He frequently brought in high-profile clients and, without consulting his partners, grandly announced that he would not collect his hourly fee. Goldberg did not work for the American Civil Liberties Union or the government; he worked for a large New York law firm. He insisted on riding in a chauffeured limousine to and from work. He retreated to a 28th-floor Park Avenue corner office and collected a mid-six-figure salary. His salary derived from the billable hours of his fellow partners and associates whether or not he charged for his own time.

Flood was in awe of Goldberg even though there was nothing physically imposing about him. The former justice was 5 feet 9 and 150 pounds, with a double chin, wavy white hair, and thick black plastic glasses. Nor was his gray and white corner office very intimidating. The blond wood and modern furniture—a couch, a glass table, and a few armchairs—were more befitting a Hollywood studio executive than a former justice. Goldberg nonetheless made a good first impression on Flood. “When he talks about legal ideas and his business,” Flood said, “he becomes 6 feet 8. His office on Park Avenue looks like Busch Stadium.”

The next decision was how to fire the first shot. It was the third week of December and Flood’s intentions to sue baseball had not been made public. One reason was the location of the players’ 1969 winter meetings. Incensed at the owners’ refusal to meet with them at the 1967 winter meetings in Mexico City or the 1968 winter meetings in San Francisco, the players decided in 1969 to hold their meetings in Puerto Rico a week after the owners’ meetings in Florida. Another reason was that most of the sporting press was in the owners’ pocket. Sportswriters attended the owners’ meeting in Florida, but they neglected to go to Puerto Rico. Nor did they follow up with the players upon their return. In an era before cellular phones, cable television, and the Internet, the news cycle was slower; it was easier to keep something like Flood’s lawsuit under wraps. The Phillies and the Cardinals, along with the rest of the baseball establishment, remained in the dark.

Miller clued in one of his social friends, New York Times baseball writer Leonard Koppett. One night in mid-December when they went out to dinner with their wives, Miller revealed Flood’s proposed lawsuit and the Players Association’s decision to hire Goldberg. Miller asked Koppett’s thoughts. Koppett predicted that Flood would lose at trial and on appeal, but he would get a fair shot with the Supreme Court. Koppett agreed at dinner to hold off on writing the story, but there was no doubt he was going to break it.

For Flood, the letter declared his freedom. He had told the player representatives in Puerto Rico that he planned to write the commissioner a letter announcing that he was a “free man in a free society” and he “should have the right to decide” where to make his living. Miller and Moss wanted to begin the letter with the words: “I’m free, black, and 31”—inspired by To Be Young, Gifted, and Black, a popular off-Broadway play in 1969 about the life of the late playwright Lorraine Hansberry (A Raisin in the Sun). Flood was certainly young, gifted, and black. Goldberg, however, nixed the opening as too flippant for such a serious document.

After Miller, Moss, Goldberg, and Flood agreed on the document’s tone and the language, the two-paragraph letter was typed onto stationery from Flood’s photography studio business, Curt Flood & Associates, Inc., and signed by Flood in New York. Fear swept through Flood before they mailed the letter. He feared bucking the establishment. He feared he was destroying his life, because he had no idea how this was going to turn out. But relief soon replaced fear as Flood realized that someone was finally doing something about the unfairness of the reserve clause.

Dear Mr. Kuhn:

After twelve years in the Major Leagues, I do not feel that I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.

It is my desire to play in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia Club, but I believe I have the right to consider offers from other clubs before making any decisions. I, therefore, request that you make known to all the Major League Clubs my feelings in this matter, and advise them of my availability for the 1970 season.

Sincerely yours,
Curt Flood

Flood’s letter miffed Kuhn. The commissioner had met with the player representatives in Puerto Rico on December 14, the day after they had voted to support Flood’s lawsuit. He addressed a number of the players’ concerns: fan voting for the All-Star Game, earflaps on helmets, the length of the season, artificial turf, and signing autographs before games. Neither Flood’s proposed lawsuit nor the reserve system ever came up.

Phillies general manager John Quinn felt more embarrassment than amusement. After spending time with Flood in St. Louis and New York, he had been convinced that Flood was going to sign. He had even confided to a black Philadelphia weekly newspaper that he planned to announce Flood’s signing at the team’s January 7 Newsy Notes Club meeting. On December 4, Flood had sent Quinn a dictated letter apologizing for not returning Quinn’s phone call. “I feel that I must resolve a number of personal problems before I make a final decision,” Flood said. He was out of town and promised to call Quinn the week of December 22. Instead, Quinn simply received Flood’s December 24 letter along with the commissioner. Quinn’s secretary read it to him over the phone while he vacationed in Arizona. Like the commissioner, Quinn blamed Miller for Flood’s supposed change of heart.

The letter’s biggest stroke of genius was its first three words: “Dear Mr. Kuhn.” Miller knew that by addressing the letter to Kuhn, rather than to Quinn of the Phillies or Devine of the Cardinals, Miller was placing Kuhn squarely on the owners’ side of the ball. Miller wanted to smash the myth that the commissioner was impartial. If the owners’ principal theme was that Flood’s lawsuit was conceived and driven by Miller and the Players Association, then Miller’s theme was that Kuhn was employed by and a water carrier for the owners. A former lawyer for the National League, Kuhn had worked for much of his adult life protecting the owners’ cartel.

Bowie Kent Kuhn grew up a die-hard Washington Senators fan. His first memories of baseball coincided with the Senators’ last World Series appearance in 1933. Six years later, he worked inside the Griffith Stadium scoreboard for $1 a day. He started as an assistant to the scoreboard operator and rose to head of the scoreboard. His first Social Security card, which he kept in his wallet as commissioner, listed Senators owner Clark Griffith as his employer. His immediate boss was Griffith’s nephew, Calvin. Kuhn picked up his love for the Senators through his mother. His father, the head of the Washington, D.C., office of the Petroleum Heat and Power Company, did not have time for baseball.

Kuhn’s athletic shortcomings did not diminish his love for baseball. After two years of stateside military service beginning in June 1944, he graduated from Princeton and the University of Virginia law school. In September 1950, he joined the New York law firm of Willkie Owen Farr Gallagher & Walton (later known as Willkie Farr) because one of its name partners was one of his political heroes, former Republican presidential candidate Wendell Willkie, and because the firm represented the National League.

The midcentury challenges to baseball’s antitrust exemption provided Kuhn with the opportunity. The Second Circuit’s decision in Gardella v. Chandler in 1949 suggested that the exemption was on shaky ground. Yankees farmhand George Toolson filed suit in the summer of 1950, as did two other plaintiffs. Carroll pulled his eager young associate into the litigation. For the next three years baseball fought those cases, until the Supreme Court reaffirmed Federal Baseball in Toolson. Along the way, Kuhn met baseball commissioner Ford Frick, American League president Will Harridge, and National League president Warren Giles, and became Carroll’s right-hand man on baseball matters.

Kuhn earned his stripes with the baseball establishment 14 years later in an important but often overlooked antitrust victory in Milwaukee. After the 1964 season, the owners of the Milwaukee Braves decided to move the team to Atlanta. In an effort to keep their team, the people of Wisconsin sued Major League Baseball in state court. They hired Louis Oberdorfer—a future federal judge, former head of the Kennedy Justice Department’s tax division, and one of Washington’s best lawyers—as a special consultant. They did not try to attack Federal Baseball and Toolson or to apply federal antitrust law. Instead, they argued that moving the Braves to Atlanta violated Wisconsin’s antitrust laws. A state trial judge agreed, issuing an injunction that prevented the Braves from playing anywhere but Milwaukee until baseball granted the city an expansion team.

Kuhn took the lead in arguing baseball’s case before the Wisconsin Supreme Court. Baseball was caught in a clever trap: It was either interstate commerce subject to federal antitrust law or intrastate commerce subject to Wisconsin’s antitrust law. Put another way, either Federal Base-ball was wrong (and baseball lost its exemption) or the Wisconsin trial judge was right (and the Braves stayed in Milwaukee). The future of the game’s legal monopoly was at stake.

Kuhn and his colleagues conceded that baseball was interstate commerce. They said that Toolson rested on stare decisis—the exemption should stand because it had been around a long time and baseball had relied on it. Then they argued that the enforcement of each state’s antitrust law would throw baseball into organizational chaos. They compared Major League Baseball to a railroad. If each state enforced different regulations on the length of rail cars, then cross-country train travel would be impossible. If each state enforced different regulations on baseball, then major league teams would have to go back to barnstorming. Federal law, therefore, preempted state law in this instance. Agreeing on the result but not on the rationale, the Wisconsin Supreme Court voted 4-3 to reverse the trial court’s order. The Braves moved to Atlanta. Baseball narrowly escaped with its antitrust exemption intact. Kuhn was the hero. “Bowie Kuhn is a very good lawyer,” his Willkie Farr colleague Lou Hoynes said, “and this was no hanging curveball.”

Miller did not hold Kuhn’s legal acumen in the same high regard. Miller’s first impression of Kuhn came after a July 1966 meeting in Chicago where baseball officials had signed a new television contract. A lawyer for the National League, Kuhn informed Miller that then-commissioner William Eckert was about to hold a press conference announcing the deal as well as the amount the owners planned on contributing to the players’ pension fund. Miller pulled Eckert aside and informed him that any announcement about the pension fund would be a gross violation of federal labor law. The amount of the owners’ pension contribution must be negotiated with the union. Eckert heeded some of Miller’s advice, announcing only the new television contract, but not the part about finding a lawyer who knew something about labor law.

Five months later, with Lou Carroll beginning a battle with cancer and relinquishing his National League counsel duties, Kuhn joined the owners’ three-man Players Relations Committee (PRC), which negotiated labor and pension agreements with the players. Kuhn found himself on the opposite side of the negotiating table from Miller. He came to view Miller as “pedantic, fussy over details and unwilling to deal straightforwardly with issues. . . .The result was a never-ending game of cat and mouse in which Miller conducted union affairs with such endless slyness that he soured the relations between clubs and players.” It was the beginning of a hate-hate relationship. For the next three years, the two men butted heads at the negotiating table. Then, in early February 1969, Kuhn became commissioner and declared himself impartial.

Kuhn’s Willkie Farr partners saw the commissionership as his perfect exit strategy from the firm. He had no clients of his own. And Lou Carroll’s heir apparent as National League counsel was not Kuhn, but Lou Hoynes. Many people considered Hoynes the genius behind the strategy in Milwaukee. After Hoynes became National League counsel, he worked so closely with Kuhn that people referred to Hoynes as “the shadow commissioner” or “Bowie Kuhn’s brains.”

Kuhn was a compromise choice for commissioner. The only thing the owners could agree on at the 1968 winter meetings in San Francisco was firing retired air force lieutenant general William Eckert. A few weeks later at a meeting at the O’Hare Inn outside Chicago, they stayed up all night and voted 19 times without coming up with Eckert’s successor. None of the four candidates—Yankees president Mike Burke, Yankees general manager Lee MacPhail, Montreal Expos president John McHale, and San Francisco Giants vice president (and future National League president) Chub Feeney—garnered the necessary approval of three-quarters of the owners in each league. One of the game’s most powerful figures, Dodgers owner Walter O’Malley, decided to bless Kuhn’s candidacy. Less than two months later in Miami, the owners unanimously elected Kuhn to a one-year trial run as commissioner pro tem.

Kuhn believed that he was the second coming of Judge Landis. A white-haired, steely-eyed federal judge, Kenesaw Mountain Landis earned national acclaim in 1907 for fining John D. Rockefeller’s Standard Oil Company $29 million for antitrust violations. Like many of Landis’s judicial decisions, the fine was reversed on appeal. In 1915, Landis curried favor with the major league owners by refusing to rule on an antitrust lawsuit filed by the Federal League in his courtroom. Landis’s delay tactics helped the major league owners run the Federal League out of business. After the 1919 Black Sox scandal destroyed baseball’s credibility, the owners tapped Landis as their first commissioner and gave him unlimited authority to clean up the game.

As insensitive as Landis was about race, he was sensitive to the injustice of the reserve clause. He declared outfielder Fred Bennett a free agent in 1930 after the St. Louis Browns kept shuttling him back and forth between their minor league teams. Browns owner Phil Ball was so incensed that he challenged Landis’s authority in federal court; Landis won. Landis also freed Tommy Henrich, who wrote the commissioner after the 1936 season about being stuck in the Indians farm system. Henrich signed for a $20,000 bonus and $5,000 contract with the Yankees. The commissioner crusaded against the farm system, freeing 91 of the St. Louis Cardinals’ minor leaguers in 1938, and 87 of the Detroit Tigers’ minor leaguers and 5 of the Tigers’ major leaguers two years later. One of those Tiger minor leaguers was Danny Gardella. When it came to reserve clause abuses, the players had a friend in Judge Landis.

Kuhn deluded himself into believing that he possessed Landis’s power and impartiality rather than a lifetime record as a management lawyer. He was the youngest commissioner in the history of the game at age 42, but with his baritone voice, 6-foot-5-inch and 230-pound frame, receding brown hair, blue eyes, graying sideburns, light plastic eyeglasses, and conservative three-piece suits, he looked and acted the part. His defining characteristic was his pomposity. He delivered his decisions as if he had brought them down from a mountaintop. Syndicated columnist Red Smith, a Wisconsin native who blamed Kuhn for the Braves’ move to Atlanta and blanched at Kuhn’s self-important manner, referred to the commissioner as “the game’s upright scoutmaster.” Smith, more than any other sportswriter, helped portray Kuhn as “the ultimate stuffed shirt.”

Like Landis, Kuhn saw himself as the protector of the game’s integrity. The Major League Agreement gave the commissioner the power to investigate and punish “any act, transaction or practice charged, alleged or suspected to be not in the best interests of the national game of baseball.” Although Kuhn rarely invoked the “best interests” clause, he took action when anything offended his sensibilities. Flood’s lawsuit plainly fell under that category.

Kuhn acted firmly and decisively in his first few months as commissioner.He won praise in late February 1969 from the press and even from Miller for persuading the owners to settle the pension dispute that threatened to keep the players out of spring training. He talked Donn Clendenon out of retirement by returning him to Montreal and ordering the Expos to compensate the Astros with additional players and cash. He also ended post-trade retirement talk from Ken Harrelson, persuading him to report to Cleveland after the Indians guaranteed him a new contract worth $100,000. “Baseball,” Kuhn said, “needs Ken Harrelson.” In late May, the owners gave Kuhn a vote of confidence by removing his temporary tag.

Kuhn assumed that, as he had done with Clendenon and Harrelson, he could make Flood’s threatened lawsuit go away. Kuhn figured that after a few meetings with Flood or his counsel, Kuhn could persuade Flood to report to spring training with the Phillies. Kuhn, however, refused to make Flood a free agent. He was no more willing as commissioner to reduce the owners’ power to enforce the reserve clause than he had been as a member of the PRC from 1966 to 1968. Baseball’s anti-trust exemption, which he had worked most of his legal life to preserve, was not going down without a massive fight.

Dear Curt:

This will acknowledge your letter of December 24, 1969, which I found on returning to my office yesterday.

I certainly agree with you that you, as a human being, are not a piece of property to be bought and sold. This is fundamental in our society and I think obvious. However, I cannot see its applicability to the situation at hand.

You have entered into a current playing contract with the St. Louis club which has the same assignment provision as those in your annual Major League contracts since 1956. Your present contract has been assigned in accordance with its provisions by the St. Louis club to the Philadelphia club. The provisions of the playing contract have been negotiated over the years between the clubs and the players, most recently when the present Basic Agreement was negotiated two years ago between the clubs and the Players Association.

If you have any specific objection to the propriety of the assignment, I would appreciate your specifying the objection. Under the circumstances, and pending any further information from you, I do not see what action I can take and cannot comply with the request contained in the second paragraph of your letter.

I am pleased to see your statement that you desire to play baseball in 1970. I take it this puts to rest any thought, as reported earlier in the press, that you were considering retirement.

Sincerely yours,
Bowie K. Kuhn

Miller, however, had already beaten his adversary to the punch. On December 29, he sent a short memo to all the players informing them of Flood’s meeting with the player representatives and the union’s decision to pay for his legal counsel. The next day, the New York Times and New York Post ran stories revealing Flood’s plan to test the reserve clause in court with Goldberg as his lawyer and the Players Association’s financial backing. The national wires picked up the stories. Kuhn’s letter hit the paper the following day. Red Smith translated the commissioner’s response to mean: “Run along, sonny, you bother me.”