A Well-Paid Slave

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stewart did not take Flood’s opinion for himself because he knew the best way to preserve a bare five-vote majority—assign the opinion to a justice on the fence. White and Marshall seemed to be in total agreement with him. Rehnquist also firmly agreed to uphold baseball’s exemption, but his views on the state antitrust claims were out of step with those of the rest of the Court and might jeopardize the majority. That left the one justice who had voted to “tentatively affirm”—Harry Blackmun.

Harry A. Blackmun’s best childhood friend was Warren Burger. They had grown up together in the same St. Paul neighborhood. Blackmun was the best man at Burger’s wedding. They maintained a long-distance friendship for 20 years as lawyers and appeals court judges through extensive correspondence. Upon being confirmed as chief justice, Burger asked Blackmun for suggestions about how to run the Court. The media tagged them with the nickname of Blackmun’s favorite baseball team, “the Minnesota Twins.”

Blackmun was one of the Court’s biggest baseball fans. Growing up in St. Paul, he rooted for the minor league St. Paul Saints and the Chicago Cubs. At a Washington luncheon in August 1970, a Minnesota company presented him with a Senators cap and autographed team baseball. The Twins, however, had become Blackmun’s team. The SportingNews revealed in May 1970 that Blackmun possessed “ ‘a vast mental storehouse’ of baseball records and lore.” The publication predicted during Flood’s trial that “[t]he presence of Justice Blackmun in Washington should be of significance when Curt Flood’s suit against the reserve clause reaches the Supreme Court.”

Blackmun needed the Flood opinion to boost his confidence. He had only one full Supreme Court term under his belt and was still feeling his way. On paper, he possessed all the right credentials: summa cum laude as a Harvard math major, Harvard Law School, partner at a Minneapolis law firm, counsel to the Mayo Clinic, and 10 years as an Eisenhower-nominated Eighth Circuit judge. Yet he frequently referred to himself as “old number three,” Nixon’s third choice to replace Fortas after Haynsworth and G. Harrold Carswell. Maybe the Court’s cloistered, scholarly environment reminded Blackmun of the academic pressure of Harvard Law School, where he had finished 120th out of 451 students in his class.

Blackmun struggled with an essential part of a Supreme Court justice’s job—deciding cases. The stress of decision making had driven Justice Charles Whittaker to physical exhaustion and had forced his retirement from the Court in 1962 after just five years. As an Eighth Circuit judge, Blackmun had felt that the Supreme Court could correct any of his erroneous appeals court opinions. Now he was working without a safety net. Blackmun’s problem was that he sought a clear answer to each case as if he were figuring out an algorithm. He wrote opinions that seemed to balance the equities on each side and then announced his decision at the end. A more experienced justice would advocate his position and try to persuade the rest of the Court (and the public) that he was right.

Blackmun’s preargument notes on Flood v. Kuhn reveal how much he agonized over the case’s outcome. On February 28, he received a bench memo from one of his law clerks, John Rich. Blackmun then outlined his thoughts about the case in his distinctive shorthand on blue-lined notebook paper. His notes indicate that he agreed with Flood’s position. He was “willing to overrule Federal Baseball and Toolson” because baseball “cannot escape the interstate commerce aspect today.” He described the application of state antitrust laws as a “horror” that should warrant preemption. He wanted to “bring all professional sports into a consistent pattern.” As for baseball’s arguments, he found its reliance interests “unpersuasive,” while the “collective bargaining approach does not appeal to me.” He concluded that the reserve clause was a “per se violation of the federal antitrust laws.”

The Harvard math major then mapped out the decision’s different permutations:

1. Affirm Federal Baseball and Toolson, refuse to declare baseball interstate commerce or a business, and leave it up to Congress and collective bargaining; or

2. Overrule Federal Baseball and Toolson, recognize baseball as a business, Congress is never going to fix problem, apply federal antitrust law, and pre-empt state antitrust laws as “insufferable,” and avoid collective bargaining.

On March 15, five days before oral argument, Blackmun scribbled out two more pages of thoughts about Flood’s case. He asked himself what would be the result of overruling Federal Baseball and Toolson. He believed the rich teams would not acquire all the best players because that did not happen in football. But, he added, “I suspect it would be a disaster and that baseball would protect itself.” He described the application of antitrust laws of different states as “intolerable” and an “abomination.” He agreed with his law clerk’s memo that this was really a labor dispute because the monopoly affected only the players, not consumers. “Cert,” Blackmun wrote, “therefore should have been denied. But it was granted.”

He then wrote down a few possible questions for oral argument. He asked about the institution of baseball’s free-agent draft in 1965, which essentially prevented players from ever choosing which team they played for—a fact that Blackmun believed made the reserve clause even more troubling. His switch to “tentatively affirm” at the March 20 conference could be attributed to Hoynes’s persuasiveness (or Goldberg’s lack of persuasiveness) at oral argument, the comments of more senior justices Stewart, White, and Marshall at conference before Blackmun announced his vote, or Blackmun’s chronic indecisiveness.

Stewart thought Flood v. Kuhn was an easy case. He described it to Woodward and Armstrong as “a case of stare decisis double dipped.” He figured that he could assign the Flood opinion to Blackmun to build up his confidence. Blackmun, the Court’s resident medical expert as the former counsel to the Mayo Clinic, had already been saddled with writing the Court’s abortion decisions that term. Flood v. Kuhn would be a quick and painless diversion.

The press and legal community waited and weighed in with predictions. Before oral argument, Las Vegas prognosticator Jimmy “the Greek” Snyder placed three-to-one odds that the Court would rule against Flood. After the argument, a Flood sympathizer agreed—and not because of Goldberg’s performance that day. David Feller, Goldberg’s former law partner who had helped craft a response to the labor-exemption argument, told the Washington Evening Star that the baseball strike in early April made it less likely that Flood would prevail. The strike cast Flood’s lawsuit more as part of an ongoing labor dispute. The reserve clause, Feller said, would be resolved either at the bargaining table or through another strike. Goldberg jokingly chided Feller that his remarks failed to show the proper deference to his former “senior partner.” Feller replied in good humor: “I didn’t say that Flood would lose in the Supreme Court. What I did say was that I thought the strike had increased the odds in favor of a loss because it made the labor exemption issue much more credible.” Feller also believed the strike had made Miller and his union more powerful—powerful enough not to need the Court’s help in toppling the reserve clause. Feller confessed to harboring “a somewhat cynical view of the Court’s processes and a suggestion that the Court looks at the realities of the power situation in making its decisions rather than the questions of law which in theory govern it.”

One of Kuhn’s lawyers, Victor Kramer, offered an implausible theory about why the owners would win. “It’s in the bag,” Kramer told Dan Levitt, one of Flood’s lawyers. “Baseball has arranged to let the justices know on the social circuit in Washington that if they come out the right way on this, Washington will get its baseball team back.” The Senators had left Washington after the 1971 season to become the Texas Rangers. And even though Kuhn was desperately trying to lure another major league team to his old hometown, there was no evidence to support Kramer’s claim. President Nixon had warned his Supreme Court nominees to stay away from the Washington cocktail party circuit. Stewart was a fixture at such parties, but nothing suggests that he or any other justice had spoken with baseball officials. The only justice with the nerve to discuss pending cases with Nixon was Burger. Burger told Nixon on June 14, 1972, about a “capital punishment case coming down in two weeks” and “busing cases next term,” but Flood v. Kuhn never came up. Burger, moreover, had cast his initial vote in Flood’s favor. Kramer’s information seemed to be fueled more by bluster, bitterness over not having argued the Flood case before the Supreme Court, and Georgetown party gossip than by fact.

Blackmun read some predictions about the case. He clipped an article from the Washington Evening Star published the day after the oral argument under the headline: “Remand Likely in Flood Case.” That prediction seemed to read too much into some of the justices’ questions. He also saved a short item from the April issue of Sports Illustrated about Michigan State political scientist Harold J. Spaeth using a computer to predict Flood’s victory. Spaeth tallied how the justices had voted in prior antitrust cases. He forecast that baseball’s antitrust exemption would be overruled and that the legality of the reserve clause would be decided by a lower court. He predicted that “[t]he vote should be unanimous, with a possible Rehnquist dissent.” Spaeth, however, failed to account for the difference between antitrust cases and baseball cases. The justices were not machines; they were men. And baseball turns men—even ones with life tenure—into boys.

An opinion that, in Stewart’s view, should have taken Blackmun hours ended up taking him days and weeks. The Court used to be the only branch of government in Washington that did its own work. Many of the justices, however, increasingly turned to their law clerks to write first drafts of their opinions. To his credit, Blackmun tackled his Flood v. Kuhn opinion on his own. He holed up in the justices’ private library on the second floor of the Supreme Court building and wrote the opinion in longhand on an antique wooden desk. He worked on the opinion from April 14 to early May. No one knew what was taking him so long. The books Blackmun took with him to the library might have provided clues: The Baseball Encyclopedia, Lawrence S. Ritter’s The Glory of Their Times, and Harold Seymour’s and David Quentin Voigt’s histories of baseball.

Dear Potter:

I have a proposed Per Curiam for this case at the Printer. I must confess to you that I have done more than merely follow Toolson with a bare peremptory paragraph. That case, for me, proved to be an interesting one, and I have indulged myself by outlining the background somewhat extensively. As a matter of fact, this has prompted me to conclude that Federal Baseball and Toolson have a lot to be said for them. When I finally get to the heart of the matter, however, I give it rather summary treatment. The briefs on both sides are good and I rationalize by saying that they deserve at least this much.

Please give the opinion a reading and let me have your general reactions. The case, supposedly, is critical for the baseball world. I am not so sure about that, for I think that however it is decided, the sport will adjust and continue.

Part I of Blackmun’s opinion, titled “The Game,” expounded on baseball’s history in three extended paragraphs, mentioning the first recognized official game in 1846 at Hoboken’s Elysian Fields, the founding of the Cincinnati Red Stockings in 1869, the creation of the National League, the rise and fall of various rival leagues, the 1919 World Series fix, the shifting and expansion of franchises, the institution of the new player draft in 1965, and the formation of the Major League Baseball Players Association in 1966 (Miller became its first full-time executive director that year, but it had been in nominal existence since 1954).

Blackmun’s next paragraph created the most controversy and subjected him to the most ridicule. “Then there are the many names,” it began, “celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season.” He then proceeded to list 79 players in baseball history, beginning with Ty Cobb, Babe Ruth, Tris Speaker, and Walter Johnson and ending his original list with Bill Dickey, Zack Wheat, George Sisler, and Charlie Gehringer. “The list seems endless,” Blackmun wrote.

Blackmun’s list did not consist only of Hall of Famers or players strictly of a certain skill level. It was more eclectic than that. It included all 26 players interviewed by Lawrence S. Ritter for his classic oral history, The Glory of Their Times: The Story of the Early Days of Baseball Told by the Men Who Played It. Those players, scattered throughout Blackmun’s list, included Hall of Famers Rube Marquard, Wahoo Sam Craw-ford, Edd Roush (who sat out the entire 1930 season because of a contract dispute), Goose Goslin, and Paul Waner, but also obscure players including Fred Snodgrass (best known for a dropped fly ball in the 1912 World Series) and Bill Wambsganss (who once turned an unassisted triple play). Blackmun’s list even included some of the game’s great characters merely mentioned in Ritter’s book, such as Germany Schaefer. “These are names only from earlier years,” Blackmun explained in a footnote. “By mentioning some, one risks unintended omission of others equally celebrated.” His criteria for inclusion on the list seemed as idiosyncratic as his vote on Flood’s case.

Blackmun followed up his list of players with more useless baseball arcana. He referred to Ring Lardner and the “World Serious,” Ernest Lawrence Thayer’s poem “Casey at the Bat,” and “the ring of ‘Tinker to Evers to Chance.’ ” He included the entire poem about the Chicago Cubs’ aforementioned double-play combination—“Baseball’s Sad Lexicon” by Franklin Pierce Adams—in a footnote. He also quoted George Bernard Shaw describing baseball as “the great American tragedy.” The list of retired baseball greats, however, became Blackmun’s obsession and the defining aspect of his opinion.

The rest of Blackmun’s opinion was fairly straightforward. Part II discussed the facts of Flood’s career and listed his annual salary figures. Flood received less than three printed pages. Part III quoted extensively from the lower court opinions of Judge Cooper and the Second Circuit. Part IV reviewed in detail all the Court’s opinions touching on baseball’s antitrust exemption, including Federal Baseball and its interstate commerce underpinnings; Toolson and the cases that followed about theatrical performances, boxing, football, and basketball; and the proposed congressional legislation over the years. Finally, Part V—only 4 of the opinion’s 27 pages—provided the reasoning behind his decision.

After conceding that baseball was a “business and it is engaged in interstate commerce,” Blackmun characterized baseball’s antitrust exemption as an “exception,” “anomaly,” and “aberration.” “Even though others might regard this as ‘unrealistic, inconsistent or illogical,’ the aberration is an established one. . . . It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court’s expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball’s unique characteristics and needs.”

Recognizing that the Court had refused to grant other professional sports similar immunity, Blackmun placed blame for baseball’s exemption on Congress: “We continue to be loath, 50 years after Federal Base-ball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long.” Never has a Supreme Court opinion turned on a more oxymoronic phrase than “positive inaction.” Blackmun passed the buck to a political body that he knew would not remove baseball’s exempt status: “If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court.” After upholding Federal Baseball and Toolson on stare decisis grounds, Blackmun ruled that Flood’s state anti-trust claims were preempted by federal law. He found no reason to address baseball’s labor-exemption argument.

Blackmun still needed four additional votes for a majority opinion. Stewart read Blackmun’s first draft with chagrin. He had instructed Blackmun to write a one-paragraph per curiam, and Blackmun had come back with a 27-page ode to baseball. Blackmun’s paean to the national pastime was not even original—Judge Moore had already written an even more fawning concurring opinion in the Second Circuit. Instead of addressing Flood’s claims in a legally rigorous way, Blackmun’s opinion called attention to the Court’s past blunders and portrayed the justices as a bunch of sycophantic baseball fans.

Dear Harry:

Although I am “out” of the case, I have read with fascinated interest your splendid opinion.

It is a classic summary of the history of organized baseball which will delight all old fans—as it did me. I had no idea you were such an expert on the game.

If I had participated, I was inclined to overrule Federal Base-ball Club as an anachronism of antitrust law. Your persuasive opinion might have won me over.

Sincerely,
Lewis

The opposition came soon enough. On May 11, Douglas circulated his draft dissent. He had been working on it ever since he received Blackmun’s draft. Douglas, like Blackmun, did his own work. He wrote out the dissent in longhand on a yellow legal pad. His secretary typed it and immediately sent it to the printer, though it went through several drafts before Douglas circulated it among his colleagues. Although he borrowed a few bits and pieces from the dissent from the denial of cert he and his law clerk, Kenneth Reed, had drafted in October, the language was fresh and new and unmistakably Douglas’s.

Federal Baseball, Douglas began, “is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view of a rather dismal business account over the last 50 years would keep that derelict in midstream.” Douglas’s first footnote acknowledged that he had voted to affirm in Toolson but had “lived to regret it.” He described baseball as “big business” guilty of “predatory practices.” “The beneficiaries of the Federal Baseball Club decision,” he wrote in a snide comment about Blackmun’s list of ballplayers, “are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.” He portrayed these players as the “victims of the reserve clause.”

Douglas destroyed the linchpin of Blackmun’s argument. “If congressional inaction is our guide,” he wrote, “we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.” Douglas appealed to the Court to act: “The unbroken silence of Congress should not prevent us from correcting our own mistakes.” Douglas’s dissent was six paragraphs of poetry and persuasion. It was everything that Blackmun’s opinion was not— straightforward and well reasoned. It reflected the difference between 33 years and 2 years of experience on the Court.

The day Douglas circulated his dissent, Marshall phoned his law clerk to say he was not joining Blackmun’s opinion. Marshall’s law clerk prepared a dissent overruling Federal Baseball and Toolson and remanding the case to the trial court to decide the labor-exemption issue. Multiple dissents often arise out of a closely divided case, such as Flood’s, in which the justices express different concerns with the majority opinion. Marshall’s primary concern, judging from his questions at oral argument, was about the labor exemption. On May 11, he circulated his dissent to the other justices’ chambers.

Marshall’s dissent was not as well written as Douglas’s. Unlike the other opinions, however, it began with Curt Flood’s story. “To non-athletes, it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services,” Marshall’s dissent said. “But, athletes know that it was not servitude that bound the petitioner to the club owners; it was the reserve system.”

Marshall’s dissent characterized the Court as “torn between the principle of stare decisis and the knowledge that” Federal Baseball and Toolson “are totally at odds with more recent and better reasoned cases.” It rejected the idea that Congress had endorsed the exemption by failing to act. “The importance of the antitrust laws to every citizen must not be minimized,” the dissent said. “They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers.”

Marshall’s dissent asserted that overruling Federal Baseball and Toolson “does not mean that petitioner would necessarily prevail.” With a nod to Jacobs’s and Winter’s Yale Law Journal article (cited in a footnote), the dissent launched into a four-page discussion of the labor exemption. Marshall concluded that “none of the prior cases is precisely in point” and “the issue was not squarely faced” at Flood’s trial or before the Second Circuit. Marshall, therefore, sought to send Flood’s case back for a trial on the labor-exemption issue—just the sort of compromise position that might win over a majority of the justices. Marshall wanted his dissent to become the opinion of the Court.

It was unclear why Marshall switched his vote. Maybe he saw the slavery aspect of Flood’s fight for economic freedom in professional baseball. Maybe his liberal law clerk showed him a draft dissent and encouraged him to adopt it. Maybe it was the result of a conversation with his close friend and liberal ally, Justice Brennan. Marshall often voted the way Brennan did.

A small, impish-looking man, William J. Brennan Jr. was one of the Court’s judicial giants. The second of eight children born to Irish-Catholic immigrants, he grew up in Newark, New Jersey. His father shoveled coal at a brewery and emerged as a local labor leader. After attending the University of Pennsylvania and Harvard Law School on scholarships, Brennan returned to New Jersey to practice law. From 1949 to 1952, he rose through the state court system as a trial judge, appeals court judge, and state supreme court justice. In 1956, President Eisenhower nominated Brennan, a Democrat, to the Supreme Court of the United States. Eisenhower needed the support of Catholic Democrats during his 1956 reelection campaign, just as he had needed Earl Warren to deliver California in 1952. Much to Eisenhower’s dismay, Brennan and Warren ignited an individual-rights revolution.

If anyone could turn a dissent into a majority opinion, it was Brennan. Brennan was the Warren Court’s architect and field general. He was not a politician who traded votes like some legislator. He understood the persuasiveness of the written word and the power of different legal arguments to win over colleagues to his point of view. He explained to his law clerks the most important rule of law. He held up his hand and wiggled his fingers. “Five votes,” Brennan said. “Five votes can do anything around here.”

Brennan’s position on Flood’s case was clear. He had voted to grant cert in both Salerno and Flood v. Kuhn, and he had voted for Flood at conference. His voice, however, had not yet been heard. Brennan was focusing his efforts elsewhere. The Court was wrestling with huge issues that term, including the constitutionality of abortion and the death penalty.

On May 12, Brennan circulated a one-sentence letter agreeing to join Douglas’s dissent in Flood’s case. Joining a dissent was a common practice and clearly showed where Brennan stood. But Flood was going to need more help from Brennan than that. Neither Douglas nor Marshall could muster a five-justice majority in Flood’s case on his own. Douglas was not a consensus builder, and his dissent was too short to serve as a majority opinion. Marshall’s dissent floated a possible compromise on the labor-exemption issue, but it lacked the power or persuasiveness of a majority opinion. They needed Brennan to rework their dissents and to rally another justice to Flood’s side. At the end of the term, however, Brennan was trying to persuade Blackmun to issue two opinions striking down restrictive state abortion laws and to cobble together a majority to strike down state death penalty laws.

With Powell out and Marshall’s defection in Flood v. Kuhn, the eight justices were locked in a 4-4 tie. In a tie, the Court issues an unsigned per curiam opinion upholding the lower court’s decision. A 4-4 tie would have been a tough way for Flood to lose, but three justices had not yet cast their official votes: Rehnquist, White, and Burger.

Three days after Brennan had joined Douglas’s dissent, Rehnquist announced his decision. Douglas learned from his law clerk that Rehnquist planned to vote to affirm the exemption but not to join Blackmun’s opinion. On May 15, however, Rehnquist cast aside any problems with Flood’s state antitrust claims or Blackmun’s opinion. Rehnquist circulated a one-sentence letter joining Blackmun. Around the same time, Douglas and Marshall circulated revised drafts of their dissents to prepare them for final publication and to fish for additional votes.

Instead of shoring up the reasoning in his opinion, Blackmun spent his time tinkering with his list of famous former ballplayers. Law clerks delighted in calling Blackmun’s chambers and proposing additional names. A Rehnquist clerk jokingly suggested former Washington Senators pitcher Camilo Pascual. Blackmun’s law clerk took the suggestion seriously. A few minutes later, the Rehnquist clerk received a return phone call from Blackmun’s chambers: The justice had looked up Pascual in The Baseball Encyclopedia; despite the pitcher’s great curveball, his 174 career wins did not meet Blackmun’s ambiguous criteria.

Some of the name games may have been overblown. Woodward and Armstrong claimed that Blackmun had added three black players— Satchel Paige, Jackie Robinson, and Roy Campanella—at the behest of Justice Marshall. This story makes no sense for several reasons. Blackmun recalled watching Campanella, who had played for the St. Paul Saints in 1948, “knocking fungoes on the roof of the Coliseum in left field. He had to be on my original list.” Indeed he was, as were Robinson and Paige. Marshall circulated his dissenting opinion on May 11 and therefore would have been in no position to make such a trivial request. Over the years, Blackmun often refused to answer letters from reporters about Flood v. Kuhn except to deny the Marshall story. Blackmun recalled only one justice’s request about baseball names—Stewart’s about Eppa Rixey.

That did not stop Blackmun from adding more names to his list. On May 25, he circulated a revised draft of his opinion. He made no improvements or changes to his reasoning in Part V for upholding Federal Baseball and Toolson. Yet he added an extended footnote in Part I reciting a 1926 poem, “He Never Heard of Casey,” by legendary sportswriter Grantland Rice. He also added 12 more players to the list: “Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne [sic], Rabbit Maranville, Lefty Grove.” He was not done. The name games distracted Blackmun from his primary objective—persuading the last two justices to sign on to his opinion.

The justice most likely to switch sides was Byron White. Douglas’s law clerk, Kenneth Reed, believed that the former college and professional football star might change his mind. On March 11, Reed wrote Douglas that “Justice White’s clerks indicate that he may be inclined to overrule National [sic] Baseball and Toolson and thus reverse the case. Apparently, however, he is in no hurry to vote.” Ten days later, Reed wrote Douglas:

According to rumor, Justice White continues to be the most likely source of a fifth vote to overrule National Baseball Club [sic] and Toolson. According to his clerks, however, he is still in not much of a hurry to cast his vote. Justice Powell’s clerks apparently sought to get him back into the case since he is opposed to Toolson, but they were unsuccessful because of his stock ownership in Anheuser Busch.

With Powell definitely out (and encouraging Blackmun), it was up to White. As a professional football player, he had been sold by Pittsburgh to Detroit for $5,000 and taken a more than 50 percent salary cut to $7,500, so he knew how it felt to be treated like a piece of property. On the other hand, he may not have understood why a ballplayer making $90,000 had quit over a trade.

There was a flicker of hope. One of Marshall’s law clerks, according to Woodward and Armstrong, approached Marshall about making a few minor changes suggested by one of White’s law clerks. White apparently believed that Flood might have viable state antitrust claims. Marshall refused to make the changes. Informed that the White clerk believed the changes might be necessary to get White’s vote, Marshall replied: “He’ll never join.”

With White’s vote, there was no way Flood could win. The best he could do was a 4-4 tie, which was a legal defeat for Flood but not a meaningful victory for Major League Baseball. The owners would not have been content with a tie because it has no precedential value. They needed a majority opinion to support their antitrust exemption and maintain their reserve system. Their only hope was that another justice would join Blackmun’s opinion.

The 12 players Blackmun had added to the list obviously did not persuade White. His “gentle suggestion” about deleting Part I was more than a gentle suggestion. White, according to one of his law clerks, liked to “cut the corners square.” He was a no-nonsense guy who refused to demean an opinion about professional athletes with sports trivia. Blackmun refused to remove Part I. White responded by joining all of Blackmun’s opinion except Part I—a fact noted in the final decision.

The fate of Blackmun’s opinion came down to Burger. If he voted the way he had at conference, the case would end in a 4-4 tie. Blackmun’s opinion would never see the light of day. Instead, baseball would receive a one-paragraph unsigned opinion, an exemption upheld by default, and a hollow victory over Flood.

Burger’s views of the Flood case can be gleaned only from his lone comment at conference: Toolson should be overruled. There had been no noise out of the Burger chambers since the circulation of the Blackmun, Douglas, and Marshall opinions. Burger forbade his law clerks from talking to the other justices’ clerks about pending cases. The main source of Court gossip was cut off.

It has often been said that Warren E. Burger, with his white hair and classic good looks, looked like the perfect chief justice but rarely acted like one. To the other justices, particularly those fond of Earl Warren, Burger lacked both the intellectual curiosity and the common touch to lead the Court. Burger reveled in the Court’s rituals and traditions rather than its substantive work. He made his biggest impact in his administration of the federal courts and the Supreme Court building rather than with his written opinions.

Burger’s path to power was not as smooth as Blackmun’s. Burger sold insurance by day and attended the University of Minnesota for two years and St. Paul College of Law for four years at night. He worked for a St. Paul law firm while Blackmun, after seven years at Harvard, joined a more prestigious Minneapolis firm.

Burger’s big breaks came through politics. In 1948 and 1952, he served as Minnesota governor Harold Stassen’s floor manager at the Republican National Convention. In 1952, he helped deliver Minnesota’s delegates to Dwight Eisenhower, who made Burger the assistant attorney general in charge of the Justice Department’s Claims (Civil) Division. Burger earned his stripes by arguing a loyalty case before the Supreme Court (accusing a Yale professor-government consultant of disloyalty to the United States government), a case the solicitor general had refused to argue. Burger lost, but in 1956 Eisenhower nominated him as a federal appellate judge on the D.C. Circuit. Burger caught Nixon’s eye with a 1967 speech about criminal law and as a frequent Warren Court critic. Two years later, Nixon nominated him as chief justice. The president consulted with his chief justice about subsequent Supreme Court vacancies and other judicial nominations, allowing Burger to lobby for a place on the Court for his former best man, Harry Blackmun.

Burger had been trying to cultivate Blackmun for months. He had assigned Blackmun the abortion cases and was spending an unusual amount of time in Blackmun’s chambers at the end of the term. He frequently sent Blackmun notes of encouragement. Despite Burger’s support, Blackmun resented the “Minnesota Twin” moniker. He eventually emerged from Burger’s shadow with a different judicial philosophy and as his own man, but in June 1972 he needed Burger to sign on to his Flood opinion.

[L]ike Mr. Justice Douglas, I have grave reservations as to the correctness of Toolson . . . ; as he notes in his dissent, he joined that holding but has “lived to regret it.” The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with Mr. Justice Douglas that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem.

The first sentence of Burger’s concurrence refused to join Part I of Blackmun’s opinion. Blackmun later speculated that Burger and White “thought perhaps it was beneath the dignity of the Court to indulge in a sentimental journey about baseball.” He never discussed the issue with either of them. Burger nonetheless represented a fifth vote for Blackmun’s opinion and for baseball—but on the narrowest possible grounds. The final score was Baseball 5, Flood 3.

Speculation has been rampant over the years about why Burger changed his vote. Rumors spread among law clerks, according to Woodward and Armstrong, that Burger had agreed to join Blackmun’s opinion in exchange for putting off a final decision in the abortion cases until the following term. There is no evidence to support this theory. Blackmun had asked as early as January 18 that the abortion cases be reargued before a full nine-member Court. After circulating a rough draft of his abortion opinions later that term, on May 31 Blackmun renewed his request to have the cases reargued. Ten days later, Blackmun informed his fellow justices at their private conference that “the real reason he wanted [the abortion cases] reargued was that he didn’t think the country could stand having the death penalty and abortion laws declared unconstitutional on the same day.” The abortion cases were reargued the following term, but not because of Flood v. Kuhn.

Blackmun was not done with his name games. He never circulated another draft to his fellow justices, but before the decision was announced and published, he added two players to the list. He inserted Jimmie Foxx between Rabbit Maranville and Lefty Grove. Foxx, who hit 534 home runs, would have been a glaring omission from any list of baseball greats. On June 1, Blackmun clipped a New York Times obituary of Morris “Moe” Berg. A multilingual catcher, Berg attended Princeton, the Sorbonne, and Columbia Law School. He used his gift for languages to sneak behind enemy lines and spy on atomic scientists for the Office of Strategic Services during World War II. He also played 15 undistinguished major league seasons and batted .243. “He can speak ten languages,” the joke about Berg went, “but he can’t hit in any of them.” Blackmun slipped Berg’s name into the list between Old Hoss Radbourn and Maranville. The justice’s fascination with Berg continued. Twenty-five years later, he read Nicholas Dawidoff’s biography of Berg, The Catcher Was a Spy. Blackmun gave the book a B—a tough grade considering his own attempt at baseball writing.

On the morning of Monday, June 19, Blackmun placed an arrow in his appointment book next to the date and accompanying note that the first official game of baseball was played on June 19, 1846. The Court convened at 10 a.m. and announced seven decisions. The Court does not provide advance warning about which decisions will be announced, but it was almost the end of the term—decision time for Flood’s and other cases. The most junior justices announce their majority opinions first. Powell announced two opinions. The first rejected the Nixon administration’s wiretapping of suspected radicals without search warrants—a story that received above-the-fold treatment on the front pages of the New York Times and Washington Post. The other allowed municipal court clerks to issue search warrants and garnered almost no notice.

Blackmun rose to speak. Justices, particularly in important cases, often summarize and maybe even read a few paragraphs from their decisions. Blackmun read from three typewritten pages. “This case presents an issue that was before the Court first in 1922, then a second time in 1953, namely, whether professional baseball’s reserve system is within the reach of the federal antitrust laws,” he began.

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

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

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

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

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

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

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

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

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

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

[W]hen I talked to him about it, he was so emphatic in his denial of having made that statement, and I wondered at the time, because it would not have been out of character for him to make that statement. I think Potter was always critical of me from the very beginning, to a degree. I don’t know whether he thought I was incapable of being on the Court or shouldn’t be there or what, but we were in opposition on a number of occasions, but other times not. We were always very friendly together. I always had to watch the writing, as far as Potter was concerned.

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

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

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

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

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

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

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