A Well-Paid Slave

Arthur Goldberg returned to Washington just a few months after Flood’s sudden departure. Goldberg had lost his bid to unseat Nelson Rockefeller as governor of New York the previous November. Rockefeller’s political machine had targeted white ethnic voters en route to an easy victory. It was later revealed that Rockefeller had paid a right-wing publishing house $60,000 to publish 100,000 paperback copies of an anti-Goldberg biography that was distributed as campaign literature. Goldberg also believed that the key to his campaign’s success lay in a book. He forced his campaign staff to prepare a volume about his stances on the various issues. If New Yorkers would read the book, Goldberg believed, he would win the election. At first, no one would publish it. Then, after Goldberg self-published the book, no one read it. He lost by nearly 700,000 votes. Stephen Breyer, a former Goldberg law clerk and future Supreme Court justice, worked on the campaign while teaching at Harvard Law School. “I cannot be terribly sad that you did not [win],” Breyer wrote Goldberg, “for I suspect that you will be happier not being Governor.”

Goldberg was not happy at Paul, Weiss, either. On June 16, 1971, he announced that he was leaving the New York law firm after four years to open his own legal practice in Washington. Paul, Weiss support staffers disliked Goldberg so much that they removed his name from the firm’s elevator directory at 345 Park Avenue the next day.

Goldberg could not wait to return to Washington, where he had enjoyed his finest hours as Kennedy’s secretary of labor and second Supreme Court nominee. He had lived there for 17 years, from 1948 to 1965. His children had grown up there. His country house, a farm once owned by Chief Justice John Marshall, was 30 minutes outside the city in Marshall, Virginia. Goldberg rented office space from Caplin & Drysdale, a law firm started by former IRS commissioner Mortimer M. Caplin. He told Marvin Miller and Dick Moss that he only wanted to represent nations, but he still shared a few clients with his former Paul, Weiss partners, including the erstwhile Washington Senators outfielder living in self-imposed exile somewhere in Europe. Curt Flood’s lawsuit provided Goldberg with the perfect vehicle for making a triumphant return to the nation’s capital. If only he could persuade the Supreme Court to hear the case.

The Supreme Court spends a lot of time determining what cases it wants to decide. The Court operates under the Rule of Four: Four of the nine justices must agree to hear a given case. Requests typically arrive at the Court in the form of petitions for a writ of certiorari, which are known as cert petitions. The Court responds by either granting or denying cert. Most cert petitions are denied. Of the more than 3,100 cert petitions the Court received during the 1971-72 term, the Court heard oral arguments on 177 and issued 129 opinions. In most cases, the Court denies cert without any comment or indication of how the justices voted. The lower court’s opinion is neither affirmed nor reversed; it is simply allowed to stand.

From the moment he agreed to take the case, Goldberg knew that the success or failure of Flood’s lawsuit hinged on the Court’s decision to grant or deny cert. It all came down to Flood’s cert petition and the man Goldberg called on to draft it, a Paul, Weiss associate named Dan Levitt. Levitt knew what a winning cert petition looked like because he had read hundreds of them as a Supreme Court law clerk. A Pittsburgh native who had attended 30 to 40 Pirates games a year at Forbes Field, Levitt tied for sixth in the class of 1964 at Harvard Law School with Stephen Breyer. He then succeeded Breyer in 1965 as one of Goldberg’s clerks. That summer, when Goldberg left for the United Nations, Levitt stayed at the Court for an additional two years as a clerk for Goldberg’s replacement, Abe Fortas.

Levitt also knew how to write. Goldberg so liked the way Levitt wrote that he had Levitt draft his UN speeches and cautionary letters to President Johnson about Vietnam. As an associate at Fortas’s old law firm, Arnold & Porter, Levitt wrote speeches read on the Senate floor defending Fortas’s unsuccessful nomination for chief justice. After a few years at Arnold & Porter, Levitt left to join former U.S. attorney general Ramsey Clark at Paul, Weiss’s Washington office.

Goldberg often asked Levitt to come to New York to answer mundane legal questions that any associate in the firm’s New York office could have researched and answered. Goldberg implicitly trusted his former clerks. They were his boys. After he lost out as governor of New York, he gave a series of lectures at Northwestern law school on the Warren Court, each of which was written by a former clerk. He published the lectures as a 1971 book titled Equal Justice: The Warren Era of the Supreme Court. Levitt drafted Flood’s cert petition, and Goldberg reviewed it. It was as if they were back at the Court again.

Levitt’s Supreme Court expertise and writing talent notwithstanding, a successful cert petition requires a certain amount of luck. The Court generally takes cases for one or more of the following reasons: to resolve conflicting decisions about a federal question among the lower courts; to reverse a lower court opinion in conflict with a Supreme Court decision; or to address an area of federal law of great national interest. “A review on writ of certiorari,” the Court’s rules stated, “is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor.” It is an inexact science. “Frequently,” the second Justice John M. Harlan remarked, “the question whether a case is ‘certworthy’ is more a matter of ‘feel’ than of precisely ascertainable rules.”

Salerno, the federal lawsuit brought by the two American League umpires allegedly fired for their unionizing activities, did not make the cut. The Court denied the Salerno petition and gave no reason for doing so, though red flags abounded. The umpires’ petition contained too many disputed facts about why they were fired, none of which had been explored in the courts below because the case had been dismissed before trial. The umpires also had not been subjected to the most pernicious aspect of baseball’s legal monopoly—the reserve clause. Nor did they raise state antitrust claims. As a factual and legal matter, Salerno represented a poor challenge to Federal Baseball and Toolson.

Levitt’s job was to persuade the Court of the “special and important reasons” why Flood’s case was more certworthy. It presented almost no disputed issues of fact and a clear question of law. It affected more than a washed-up ex-ballplayer living out his days in Europe, the 600 ballplayers currently in the major leagues, or even the future of professional sports. Based on the Supreme Court’s puzzling interpretation of a congressional statute (the Sherman Antitrust Act), it affected the legitimacy of the Court itself. One of the Court’s main functions is to provide guidance to the lower courts, yet the lower courts struggled to reconcile Federal Baseball and Toolson with antitrust claims brought under state law.

Levitt made his case in the first two and a half pages of Flood’s cert petition in a section known as “Questions Presented.” Levitt knew that the justices and their law clerks paid a disproportionate amount of attention to these questions. He wrote them in a way that made it difficult for the Court to refuse to hear the case.

The opening paragraph portrayed Judge Waterman’s Second Circuit opinion as an invitation to the Court to overrule itself; Levitt quoted Waterman asserting that Federal Baseball and Toolson created “a most frustrating predicament” and blaming “the vagaries of fate” for the anomalous result in Flood’s case. Baseball was immune from federal antitrust law because the game was not interstate commerce, but it was immune from state antitrust law because the Second Circuit found the game to be “so uniquely interstate commerce.”

The first of five questions presented challenged the Court to “rectify this bizarre result and thus preserve ‘public faith in the judiciary as a source of impersonal and reasoned judgments.’ ” The second question suggested that the Court’s subsequent decisions refusing to extend anti-trust exemptions to the theater, boxing, football, and basketball “undermined” Federal Baseball and Toolson. The third question raised the problem of insulating baseball from state antitrust regulation and “creating a unique ‘no man’s land.’ ” The fourth question asked whether the federal courts could usurp all of state antitrust law without examining how the application of state law affected the business of baseball. The fifth and final question was the most damning: It portrayed baseball officials as running from forum to forum contradicting themselves to prevent any governmental regulation of the game and any challenge to the reserve clause.

On July 6, 1971, Flood’s legal team filed 40 printed copies of its cert petition with the clerk’s office at the Supreme Court. The brief’s blue cover listed Goldberg and Topkis, the only two members of the Supreme Court bar, above the addresses of their respective law firms; Levitt, Max Gitter, and Dick Moss were listed as additional counsel.

Major League Baseball officials responded just the way they should have—with a measured, 21-page brief in opposition explaining that the sky was not really falling. Flood, they argued, wanted to overturn two well-established Supreme Court precedents that enabled Major League Baseball to develop and prosper. According to baseball’s brief, Toolson had made it clear that removing baseball’s antitrust exemption was up to Congress, but, after numerous hearings, Congress had failed to act. In light of baseball’s antitrust immunity, baseball argued, any changes to the reserve clause should be left to the bargaining table. “The issues raised here are long-settled questions which Petitioner seeks to overturn,” base-ball’s brief concluded. “They are not issues of general importance and there is no conflict among the courts with respect to them.” In other words, the Court should not waste its time with baseball.

On September 9, Flood’s legal team submitted a four-page reply brief that tried to rebut baseball’s arguments. Congress’s failure to act— especially on legislation that tried to extend baseball’s exemption to all professional sports—could not be read to mean anything. Baseball had failed to respond to Flood’s argument that there had been no examination whether state antitrust law interfered with the business of professional baseball. And baseball’s “sudden enthusiasm” to negotiate belied its past refusals to agree to even the slightest reserve clause modifications.

The fate of Flood’s case now rested with the nine justices and their law clerks. Each justice selected anywhere from two to four recent law school graduates to serve for a year or two as his law clerk. One of the clerks’ most important jobs, which began during the summer, was to read each cert petition, summarize the arguments, and recommend whether to grant or deny cert. These recommendations usually came in the form of cert memos.

Shortly after Flood filed his reply brief, the Court lost two of its most respected justices. On September 17, Justice Hugo Black submitted his resignation. Six days later, Justice John Harlan followed suit. Black, 85, suffered a stroke and died two days after Harlan’s resignation; Harlan, 72, had been stricken with spinal cancer and would not survive the end of the year.

During his 34 years on the Court, Hugo L. Black recast his legacy from that of a U.S. senator from Alabama who had briefly belonged to the Ku Klux Klan to that of a great constitutional thinker. A staunch New Dealer, Senator Black was nominated to the Court in 1937 by Franklin Roosevelt. As a Supreme Court justice, he emerged as the strongest voice on the Court for freedom of speech and other constitutional rights. He took tremendous heat from his fellow southerners for his support of Brown v. Board of Education and other desegregation cases. Despite his status as one of the Court’s great civil libertarians, he had grown increasingly conservative in his later years. He had no qualms about abandoning the Court’s prior decisions in pushing his Bill of Rights-oriented constitutional agenda, but when it came to reinterpreting the meaning of an old congressional statute, he almost always sided with stare decisis. He wrote most of the Court’s unsigned opinion in Toolson , reaffirming Federal Baseball by completely changing its meaning. He also dissented from a 1970 decision reversing the Court’s prior interpretation of a piece of congressional legislation. In his final years on the Court, Black had become increasingly infirm.

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.”

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.

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 business 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.

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.

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:

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.

A former American Bar Association president and rainmaker at the Richmond, Virginia, law firm of Hunton & Williams, Lewis F. Powell Jr. had rejected Nixon’s prior overtures to join the Court. The 64-year-old Powell’s eyesight was failing, and he did not think he could read for more than 50 hours a week. Nixon persuaded Powell that, even if he served only 10 years, he could make a valuable contribution to the Court. A classic southern gentleman, Powell portrayed himself at his confirmation hearings as a racial moderate. He never endorsed Senator Harry Byrd’s advocacy of massive resistance and interposition. Nor did he do anything to further racial progress. He personally opposed Brown at the time it was decided. During his time as chairman of the Richmond School Board, from 1952 to 1961, only two of the city’s 23,000 black children attended school with whites. Powell voted in favor of giving white parents tuition grants so their children could attend private schools. Powell ignored pressure from white segregationists to close Richmond’s public schools and fought to keep them open. His law firm, however, had represented Prince Edward County, Virginia, in its attempt to close its schools rather than integrate. On December 6, the Senate confirmed Powell, 89-1.

First in his class at Stanford Law School, William H. Rehnquist clerked on the Supreme Court from February 1952 to June 1953 for Justice Robert Jackson. As an aide to Barry Goldwater’s 1964 presidential campaign, he impressed future Nixon deputy attorney general Richard Kleindienst. Based on Kleindienst’s recommendation, Nixon named Rehnquist assistant attorney general in charge of the Office of Legal Counsel (OLC), the executive branch’s legal adviser. Rehnquist had vetted Nixon’s other Supreme Court nominees and had written memos, including one claiming that it was constitutional to wiretap members of the antiwar movement.

Now that the 47-year-old Rehnquist was a nominee himself, his conservative views created problems for him. The controversy began in early December, after he had testified before the Senate Judiciary Committee and just as the debates began on the Senate floor. Newsweek magazine published a memo that Rehnquist had written as a law clerk to Justice Jackson titled “A Random Thought on the Segregation Cases.” Rehnquist wrote: “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.” Rehnquist told the Senate that the memo expressed Justice Jackson’s views, not his own. Rehnquist’s actions belied his feeble explanation. As a lawyer in Phoenix, Arizona, he had written editorials and made public statements opposing local antidiscrimination, public-accommodations, and school-desegregation ordinances. He had been accused of intimidating minority voters during the early 1960s at local polling places. In an attempt to save his nomination, Rehnquist sent a letter to Senator James Eastland, the chairman of the Senate Judiciary Committee, disavowing the views in the memo and embracing Brown v. Board of Education. On December 10, the Senate voted to confirm Rehnquist, 68-26.

Nixon’s Justice Department, one of the chief enforcers of federal antitrust law, remained conspicuously silent about Flood’s lawsuit. The Justice Department frequently weighs in on issues of importance that come before the Court through friend of the court, or amicus, briefs, and even during oral argument before the justices. For example, when the Court agreed to hear William Radovich’s antitrust lawsuit against the NFL in 1957, Assistant Solicitor General Philip Elman argued the government’s position in favor of Radovich. Nixon’s Justice Department, however, never came out pro or con on Flood.

Philip Roth imagined Flood’s place in the eyes of the Nixon-led establishment in his 1971 novel, Our Gang, his follow-up to the bestselling novel Portnoy’s Complaint. In Our Gang, a forgettable but somewhat prescient satirical novel about the Nixon administration, Roth portrayed President Trick E. Dixon and his advisers discussing their enemies list:

HIGHBROW COACH: To the list then, gentlemen. 1: Hanoi. 2: The Berrigans. 3: The Black Panthers. 4: Jane Fonda. 5: Curt Flood.

ALL: Curt Flood?

HIGHBROW COACH: Curt . . . Flood.

SPIRITUAL COACH: But—isn’t he a baseball player?

TRICKY: Was a baseball player. Any questions about baseball players, just ask me, Reverend. Was the center fielder for the Washington Senators. But then he up and ran away. Skipped the country.

In 1970, with no more warning than the Japanese gave at Pearl Harbor, “Curt Flood,” as he then called himself, turned upon the very sport that had made him one of the highest-paid Negroes in the history of our country. In 1970, he announced—and this is an exact quotation from his own writings—“Somebody needs to go up against the system,” and proceeded to bring a legal action against Organized Baseball. According to the Commissioner of Baseball himself, this action would destroy the game of baseball as we know it, if Flood were to emerge victorious.

Dixon declares war on Denmark and demands that the Danish government “surrender to the proper American authorities the fugitive from the Washington Senators of the American League of Professional Baseball Clubs, the man who fled this country on April 27, 1971, exactly one week to the day before the uprising of the Boy Scouts in Washington— the man named Curtis Charles Flood.”

After the real Curt Flood took off for Barcelona on Pan Am flight 154, the media, Bob Short, and the U.S. government hunted him down like a fugitive. The New York Post called the Pan Am desk in Barcelona as soon as Flood’s flight had landed. Airline officials found no record of his leaving the plane or passing through customs in Barcelona. Only 4 of the 17 first-class passengers remained on the plane during the last leg of the trip. Flood was not one of them. He had gotten off the flight in Lisbon. The New York Post repeatedly paged him in the Lisbon airport, but he did not answer.

In Lisbon, Flood purchased a plane ticket to Madrid. On April 28, he registered under Curtis C. Flood in a small Madrid hotel. An enterprising UPI reporter got him on the phone. “I’m sorry, but I cannot make any comment to newsmen,” Flood said. Early the next morning, he checked out of the hotel, once again refused to answer the reporter’s questions, and jumped into a cab to Madrid’s Barajas Airport.

The Senators gave Flood a week to find himself before they tried to find him. Short sought the government’s help. On May 6, the State Department sent out a telegram regarding the “Welfare/Whereabouts Curt Flood” to its embassies in Lisbon, Barcelona, Copenhagen, and Madrid. The telegram said:

1. ROBERT SHORT, PRESIDENT WASHINGTON SENATORS BASEBALL TEAM, HAS REQUESTED DEPARTMENT’S HELP IN LOCATING CURT FLOOD, SENATORS’ PLAYER WHO IS BELIEVED TO BE RESIDING IN ONE OF ADDRESSEE CITIES. FLOOD DEPARTED U.S. APRIL 27, PAA 501, TICKETED FOR BARCELONA BUT REPORTEDLY LEFT FLIGHT AT LISBON. FLOOD HAS PREVIOUSLY RESIDED IN COPENHAGEN.

2. ACTION POSTS REQUESTED TO TRY TO LOCATE FLOOD. FLOOD, AN ARTIST, MAY BE RESIDING IN AN ARTIST COMMUNITY. SHORT WISHES FLOOD TELEPHONE HIM COLLECT AT FOLLOWING NUMBERS: (202) 546-2880; (612) 929-1005; (612) 333-6161.

Flood pulled a neat disappearing act. A month after he had left the Senators, he was no longer in Madrid. No one knew exactly where he was. Short claimed to know the general area where he was hiding but was unwilling to send a man over there to find him. The promanagement Sporting News floated a false rumor that Flood was in Mexico. The Mexico rumor persisted for at least another month.

Flood eventually surfaced on Majorca, an island off the eastern coast of Spain. On May 1, he checked into the $25-a-night Hotel Melia. He did not return two messages that the U.S. embassy had left for him. A few months later, he returned to Denmark. From July 25 to August 1, he stayed at the Sheraton Hotel in Copenhagen. Journalists vacationing in Europe kept searching for him. Jimmie Angelopolous of the Indianapolis News contacted the State Department, which had tracked Flood to Majorca in May and Copenhagen in July. Neither Angelopolous nor the State Department could find Flood in Spain in August.

Flood made his permanent home on Majorca. Located between Ibiza and Minorca in the Spanish-owned Balearic Islands in the Mediterranean Sea, Majorca had been the home to writers (author and diarist Anaïs Nin, British poet Robert Graves), artists (Spanish surrealist painter Joan Miró), and musicians (Frédéric Chopin and his lover, novelist George Sand, spent their famous “winter of discontent” there). Beginning in the 1950s, the island became a popular tourist attraction and refuge for Hollywood celebrities. Flood ended up in Majorca somewhat by accident. His friends in Denmark told him about Las Palmas in the Spanish-owned Canary Islands off the coast of Morocco. His travel agent booked him to Palma, the largest city on Majorca, instead. Flood lived in San Augustin, a small coastal town about 10 minutes southwest of Palma.

During the 20th century, racism drove many of black America’s brightest stars abroad. They fled unjust criminal convictions (heavyweight champion Jack Johnson) and political persecution (Communist actor-singer Paul Robeson). Many of them sought artistic freedom (writers Richard Wright and James Baldwin, singers Josephine Baker and Nina Simone, and tenor saxophonist Dexter Gordon).

Flood continued the tradition of black expatriates living in Europe, but he left America to escape his profession, not to pursue it. Europeans did not care about baseball. Flood once told a Spanish woman that he had been a baseball player. “Yes,” she said, “but what do you do for a living?” Majorca was the perfect place for him. He did not want to deal with his personal and financial problems, to be recognized as a ballplayer, or to answer questions about his lawsuit. He was hiding from all the demons that had haunted him in Washington. “It was kind of fitting he was living on some island because he was on one anyway,” his former teammate and sometimes roommate, Elliott Maddox, said. “It was virtually impossible to get through.”

Rumors abounded in May that Flood might be returning to the Senators. They lacked any basis in fact. After a few weeks in Spain, Flood knew he had made the right decision. He had felt so much pressure during his two months with the Senators. He realized that physically he could not compete anymore. And, since his paychecks would have gone to his creditors, there was no use trying.

Flood, however, did not sever all his ties to baseball. From Majorca, he called Marvin Miller. He did not explain why he had left the Senators other than to say “the situation had deteriorated.” Miller promised to keep him updated about the case. Indeed, the day the Supreme Court granted cert, Miller called Flood with the news. Flood asked Miller what it meant. Ever the pessimist, Miller tried not to give Flood false hope. “I know that it takes just four votes to accept the case, but you shouldn’t get too high on this because that doesn’t necessarily mean you’ve got four votes in your pocket,” Miller told him. “It just means that it’s a case that ought to be heard.”

Flood’s other legal problems played out at home. On July 29, a federal judge in St. Louis ordered Flood and his business partner, Bill Jones, to pay $27,497 owed to a suburban St. Louis couple for buying their photography shop. Flood escaped liability in another federal lawsuit. On September 1, another federal judge in St. Louis ordered Flood’s business partners to repay a North Carolina-based printing company $69,528. Flood was ruled to have invested $20,000 in the photography business and pledged to invest more, but he did not commit fraud against the printing company. He still remained on the hook for half of the first judgment and for the rest of the photography business’s unpaid withholding taxes to the IRS.

Flood desperately needed money. Repaying his creditors was the least of his concerns; in Majorca he struggled to live, having apparently spent the last of his Senators paychecks. A few weeks before the Court granted cert in his case, Flood wrote Miller asking for an early severance payment of $10,000. Under the rules of the major league pension plan then negotiated by Miller and the union, a player was allowed to withdraw $1,000 for every year of major league service up to $10,000. Players could withdraw the money early without reducing the rate of their pension benefits as long as the money was repaid with interest before they began collecting their pensions. The purpose of the lump-sum severance payment was to prevent players from ending up destitute before their pensions kicked in—particularly for players whose careers ended suddenly from injuries.

At the time of Flood’s request, Miller was out of town. On October 18, Dick Moss wrote Flood and explained that he was not eligible to receive the money until a year after his April 27, 1971, retirement. “I’m sorry that we cannot respond more favorably to you [sic] inquiry,” Moss wrote. “I do understand the urgency of your request, but unfortunately there is nothing we can do to advance the time of your entitlement.” The only way around the rules of the pension plan would have been to ask the players’ pension board to vote to change the eligibility requirements. That never happened.

Despite everything he had done for his fellow players, Flood looked elsewhere for money. He could not wait six months for his pension. He wrote a letter to Arthur Goldberg asking for a $10,000 loan that he promised to repay with interest when his severance check arrived April 28. Flood mailed his letter to Goldberg’s old suite at the Pierre Hotel. Goldberg did not receive it in Washington until December 21.

I hope my letter finds you and your family in the best of health and all going well with our law suit. Marvin has kept me advised of its progress periodically and whatever the outcome, I can’t help from feeling quite proud.

You told me once if I ever had any problems to feel free to call upon you. I am, however, quite sure that you meant that professionally and this is very personal.

The enclosed letter will explain half of my problem. The ten thousand dollars mentioned, as the letter from Marvin states, will not be available to me until April. Needless to say I had counted on this money to carry me for a couple of years or at least until I am able to return home. I was unaware of the necessity to wait one year for the allowance and, frankly, I wasn’t very careful with the money that I had saved. Now I find myself in a [sic] extremely tight situation. And if I don’t have some cash coming in soon it borders on disaster. . . .

I sincerely hope you do not feel that I am taking advantage of our friendship. But since the ten thousand is there and secure, and I am able to pay current interest rates, our friendship is not in question. It will be handle[d] as a business deal rather then [sic] a favor.

Goldberg rejoiced when the Court granted cert because he believed that it meant he had won Flood’s case. He did not know how the justices had voted, but he figured that they would not have granted cert to review two of the Court’s prior decisions unless a majority of the justices favored overruling them. If the Court believed that Federal Baseball and Toolson were right, it would have denied cert without comment. Little did Goldberg know that he had only three strong votes to hear the case.

Goldberg brimmed with false confidence as his trusted former associate, Levitt, began to prepare Flood’s brief. Supreme Court briefs provided both sides with the best opportunity to persuade the justices to vote their way. “[I]t is the brief that does the final job, if for no other reason than that the opinions are often written several weeks or sometimes months after the argument,” Justice Marshall, a former Second Circuit judge and solicitor general, said. “The arguments, great as they may have been, are forgotten. In the seclusion of his chambers, the judge has only his briefs and his law books. At that time your brief is your only spokesman.”

By the time the Supreme Court briefing began, each side knew what the other was going to say. These issues had already been briefed and argued at trial, briefed and argued before the court of appeals, and briefed in a cert petition. Weaker arguments, such as Flood’s slavery and peonage claims, had been eliminated, and stronger arguments had been refined along the way.

The first part of Flood’s 45-page brief attacked Holmes’s Federal Baseball opinion as “moribund.” In ruling on President Roosevelt’s New Deal legislation, the Court had broadened the definition of interstate commerce beyond Holmes’s cases and legal reasoning. Holmes’s opinion in Federal Baseball, the brief argued, relied on “precedential underpinnings [that] have long since disappeared.”

Flood’s brief also portrayed Federal Baseball, even after Toolson, as an outlier. The Court had refused to extend the logic of baseball’s exemption to theatrical performances, boxing matches, or professional football. Douglas had widened the breach by adding professional basketball to the mix in the Haywood case.

If his lawyers could not persuade the Court to overrule Federal Base-ball and Toolson, Flood had a fallback position in his state antitrust claims. It relied on a literal reading of Federal Baseball: If baseball was not interstate commerce subject to federal regulation, then it was intrastate commerce subject to state regulation. Indeed, in their brief nearly 50 years earlier in Federal Baseball, baseball officials had conceded that state anti-trust laws applied. The state law argument gave the Court a way to avoid overruling Federal Baseball and Toolson, but it allowed Flood’s legal challenge to the reserve clause to continue. It also was designed to appeal to the Court’s conservative members, who believed that the Warren Court had expanded federal power to protect civil rights and civil liberties at the expense of the legal authority of the states.

After the Court granted cert, baseball officials tried to present a brave public face. Kuhn said that the decision to grant cert “does not affect the merits of the case. We have complete confidence in the fairness of the court’s ultimate decision.” Minnesota Twins owner Calvin Griffith, however, hit the panic button. “The reserve clause is the salvation of our sport,” he said. “Without it, we can’t protect our own players. There will be no competition.” The media speculated that the owners might try to settle Flood’s case—one of the subjects at their annual winter meeting November 26 in Phoenix. Behind the scenes, the lawyers for each of the clubs were clamoring to baseball’s lawyers to settle. Too much was at stake to leave the fate of their legal monopoly in the hands of nine life-tenured jurists. Victor Kramer, who had represented the commissioner at Flood’s trial, privately warned his client: “Be prepared to lose.”

Lou Hoynes, the lawyer now in charge of the owners’ defense, did not share Kramer’s pessimism. A high school basketball player from Indianapolis, Hoynes graduated from Columbia and then Harvard Law School. The young Willkie Farr partner who had been sent to Harvard to recruit Hoynes was Bowie Kuhn. Hoynes worked on baseball matters with Kuhn and “The Wise Man” of baseball, Lou Carroll. Carroll and Hoynes were extremely close. Carroll helped Hoynes make partner at Willkie Farr after just six years, a rapid rise at the firm that in turn made Kuhn expendable enough to become the commissioner. On October 25, 1971, Carroll succumbed to cancer after 35 years as the National League’s counsel. Hoynes replaced his late mentor, but not before flying out to Los Angeles and spending the day with the real power broker of Major League Baseball, Dodgers owner Walter O’Malley. O’Malley blessed Hoynes’s promotion to National League counsel and de facto head of the Flood litigation, but warned him: “Don’t embarrass me.”

O’Malley, however, wanted Kuhn to make the main argument in the Flood case before the Supreme Court. But Kuhn knew he was not up to the task. “I felt we needed a practicing lawyer, which I wasn’t at the time,” he recalled. Kuhn chose the 36-year-old Hoynes to plead base-ball’s case. Having worked with Hoynes for years, Kuhn never considered anyone else. “I had very high regard for him,” Kuhn said. “I just felt he was the right man for the job.”

Hoynes’s selection ruffled the feathers of Kuhn’s lawyers in the Flood case. Paul Porter and Victor Kramer, both senior partners at Arnold & Porter, wanted the assignment. A charmer, raconteur, and Washington insider who knew every politico and journalist in every two-bit town in America, Porter had been representing the commissioner’s office on Capitol Hill since Happy Chandler ruled baseball in the late 1940s. In 1950, Porter had argued an antitrust case before the Supreme Court, but he was no longer viewed as an active litigator. Kramer was an anti-trust expert but too brash and outspoken for baseball. Earlier in the case, he had clashed with Hoynes over the post-trial brief.

No one was better positioned to argue Flood’s case for baseball than Hoynes. He knew the history of the antitrust exemption. He had crafted the legal argument in the Milwaukee case stating that baseball was exempt from the federal antitrust laws because of stare decisis, but that federal law preempted state law because baseball was interstate commerce. He had played an active role at Flood’s trial—conducting the direct examination of baseball’s expert economist, John Clark, and cross-examining Flood’s expert economist, Robert Nathan; NFL commissioner Pete Rozelle; NBA commissioner J. Walter Kennedy; and NHL president Clarence Campbell. Hoynes assumed control of the Flood case for baseball during the post-trial briefing and considered the owners’ 133-page post-trial brief one of the finest documents of his legal career. He directed the writing of the Second Circuit brief and then, after arriving a few minutes late, argued the owners’ case there.

Under Hoynes’s direction, the owners’ 60-page Supreme Court brief refocused the Court’s attention on the meaning of Toolson. As Hoynes had argued in the Milwaukee case, Toolson changed the rationale for baseball’s exemption from interstate commerce to stare decisis. “Without reexamination of the underlying issues,” the Toolson Court wrote, it upheld Federal Baseball “so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the antitrust laws.” Toolson also recognized that baseball had relied on this exemption for the last 30 years. In effect, the Court had thrown the ball to Congress to subject baseball to the antitrust laws. The owners’ brief contained a history of the subsequent congressional hearings and bills that had failed to become law. It also quoted from the Court’s opinions about theatrical performances, boxing matches, and professional football—all of which recognized that baseball’s exemption now rested on stare decisis and was up to Congress to change.

The owners’ key argument grounded baseball’s immunity on federal labor law. The Players Association, the owners argued, had agreed to the reserve clause in labor negotiations and therefore could not turn around and sue on antitrust grounds. The owners’ brief quoted a dissenting opinion of Justice Goldberg’s that a “mandatory subject” of labor negotiations “is not subject to the antitrust laws.” Even if the Court overruled its decisions in Toolson and Federal Baseball, the owners believed, they could win based on this theory, which is referred to as the labor exemption.

The labor-exemption argument troubled Goldberg. As a factual matter, he argued that the owners never negotiated in good faith about the reserve clause. But navigating around some of the Court’s decisions and his own opinions on this issue was trickier. Goldberg called David Feller—his former law partner, general counsel to the Steelworkers, and a law professor at Berkeley—for help. Feller critiqued Flood’s brief and tried to help Goldberg craft a better response to the labor-exemption argument in Flood’s 18-page reply brief. After all the briefs had been filed, Michael Jacobs and Ralph Winter weighed in with a Yale Law Journal article arguing that Flood’s case was a labor dispute masquerading as an antitrust dispute and that it should be dismissed because the reserve clause was a mandatory subject of labor-management negotiations. The labor-exemption argument was not a clear winner for the owners, but the law seemed to be turning in their favor.

With Powell and Rehnquist not joining the Court until January 7, oral argument on Flood’s case was pushed back to March 20. The Court asked both sides to submit the names of the lawyers arguing the case. Attached to the form letter was a list of 11 rules about oral argument. Goldberg did not need to be reminded about the Court’s rules. Each side received 30 minutes. As a nod to Paul Porter, baseball gave him five minutes to introduce the commissioner and the remaining 25 minutes to Hoynes. Flood would be represented by Goldberg.

Hoynes exulted over the news that Goldberg, not Jay Topkis, would be arguing Flood’s case. Goldberg had been absent from most of the trial while campaigning for governor of New York, and he had not distinguished himself in his brief trial appearances—especially in his direct examinations of Curt Flood and Jackie Robinson—or during his argument before the Second Circuit. No one on Flood’s legal team knew the trial record better, had been quicker on his feet in Judge Cooper’s courtroom, or was more prepared to argue the case before the Court than Topkis. Hoynes thought Topkis was “one of the smartest lawyers of his time.”

Topkis played only a nominal role after the trial. His name was on the Second Circuit and Supreme Court briefs, but he did not help draft them. Miller later admitted that one of his biggest tactical mistakes— apart from not encouraging players to attend Flood’s trial—was not tapping Topkis to argue Flood’s case “all the way through.”

Topkis’s involvement in the merits of the case ended soon after a February 16 letter to Goldberg. “Offering you help on a Supreme Court argument is as clear a case of lèse-majesté as I can imagine—but if there is anything that Max [Gitter] or I can do, please let us know,” Topkis wrote. The two men were no longer law partners and not close friends. Topkis merely extended Goldberg a professional courtesy. Four days later, Goldberg replied: “I believe that you and I have canvassed the ground so extensively that there is little need for a meeting between us on the subject.”

Instead, Goldberg’s help came from two associates in Paul, Weiss’s Washington office, Levitt and Peter Westen. They knew what they were doing. Levitt not only had clerked for Goldberg and Fortas on the Court, but also had written almost every word of the Flood briefs. Westen, who had clerked for Douglas during the 1969 term, also contributed to the legal research and Supreme Court briefing. In late February and March, Levitt and Westen wrote Goldberg memos to help him prepare for argument. They offered him hypothetical questions the justices might ask as well as possible answers. Westen discussed the state antitrust claims. Levitt critiqued Jacobs’s and Winter’s labor-exemption article.

In mid-March, Levitt and Westen met with Goldberg. Goldberg’s new office at Caplin & Drysdale at L and 17th was only a block away from Paul, Weiss’s Washington office on K and 17th. The two young associates did not formally act as justices and ask Goldberg questions at the podium (a process known among the Supreme Court bar as “mooting” or “moot court”). Having argued before the Court several times, Goldberg did not need or want such practice. Instead, he laid out the argument that he planned to make before the Court. Westen thought he “sounded terrific.” That night, Westen came home from work and told his wife that “it would be one of the great arguments of the year.”

Hoynes, who unlike Goldberg had never argued before the Court, was not leaving anything to chance. He took the train to Arnold & Porter’s office in Washington for a full moot court session. Hoynes stood at the podium in front of an Arnold & Porter conference table fielding questions from lawyers who had either clerked for or argued before the Court. It was Hoynes’s own mock Supreme Court.

There was a special chief justice presiding over Hoynes’s moot court session that day: Abe Fortas. Baseball did not retain a former justice to argue on its behalf, but it had one aiding its preparation for oral argument. After resigning from the Court because of a financial conflict of interest, Fortas had found his return to private life difficult. Arnold & Porter—the firm formerly known as Arnold, Fortas & Porter that he had helped build into Washington’s second-largest law firm and where his wife worked as a tax partner—did not want him back. An abrasive, take-no-prisoners personality, Fortas had alienated many of the firm’s young partners. It took a lot for Fortas, who had opened his own small law office in Georgetown, to return to his old firm’s offices.

Fortas attended the moot court session for only one reason—out of loyalty to his former partner and lifelong friend, Paul Porter. In November 1970, Fortas had written Porter a three-page memo evaluating the Flood case as only a former justice could. In the memo, Fortas correctly predicted that the Supreme Court would grant cert. He did not think Flood’s state antitrust claims or his 13th Amendment and indentured- servitude arguments would carry much weight. Nor did he think much of baseball’s labor-exemption argument. Toolson, Fortas believed, was on shaky ground. To preserve baseball’s antitrust exemption, Fortas suggested that the owners get a member of Congress to introduce legislation protecting baseball’s exemption and to negotiate modifications to the reserve clause with the union. Fortas wrote that ultimately “this is one of the relatively unusual cases in which approach and substance of presentation of issues to the Court may be of great significance.” The owners’ ability to preserve their exemption came down to oral argument. The justices, Fortas wrote, would not be eager to uphold Toolson on stare decisis grounds. “Reliance upon stare decisis will leave the Court (with the possible exception of one Justice) uncomfortable; and this is a dangerous state of mind for Organized Baseball,” Fortas concluded in his memo. “Only an appealing presentation of the special equities in this situation can counteract the unease which the Toolson result will generate.”

At Hoynes’s and Porter’s moot court session, Fortas brought more than just the ideas in his November 1970 memo and his experiences as a former justice; he also knew how to make a persuasive presentation at oral argument, having argued one of the Supreme Court’s landmark constitutional cases. Gideon v. Wainwright—prompted by a handwritten cert petition from an indigent inmate named Clarence Earl Gideon—won indigent criminal defendants the right to appointed counsel at felony trials. Fortas had briefed and argued the case pro bono at the request of the Court. He undoubtedly used his expertise as a former justice and esteemed oral advocate to grill Hoynes and Porter at their moot court session. Curt Flood may have been the Clarence Earl Gideon of the 1971 term, the lone individual taking on the establishment, but the baseball establishment had Gideon’s lawyer on its side.