To celebrate the opening of a new baseball season, let’s look back to 1972 when baseball had its day (its third day, actually) in the Supreme Court.
Several factors made Flood v. Kuhn such a memorable moment in Supreme Court history. This was a legal challenge to the national pastime, after all, being pursued by one of the game’s star players. It resulted in one of the strangest opinions ever written by a Supreme Court justice, with Justice Blackmun beginning his opinion for the Court with a gushy, overwrought history of the game (including his bizarre listing of “the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills”). The case also featured a famously bad oral argument.
The ignominy of this episode of high court advocacy was not just because of the poor oral argument. It was also because of the person who was standing before the Court and making it: Ex-Supreme Court Justice Arthur Goldberg. Goldberg had served on the Court from 1962 until 1965, when President Johnson convinced him to step down in order to take an appointment as ambassador to the United Nations. Goldberg’s client, Curt Flood, was a star centerfielder for the St. Louis Cardinals in the 1960s who had refused to accept a late-career trade to the Philadelphia Phillies. Instead of taking his talents to Philadelphia, Flood decided to challenge Major League Baseball’s labor system in court. The head of the Players’ Union, Marvin Miller, thought he struck lawyer gold when he convinced his old friend Arthur Goldberg to represent Flood against the club owners.
Miller was a master tactician when it came to advancing the interests of the ballplayers, but in this instance, his choice was a poor one. Flood got a famous lawyer, but he also got an absentee lawyer. Goldberg’s attentions were diverted by his failed effort to become governor of New York. And his return to the Supreme Court proved a moment of supreme embarrassment for him and for the justices who uncomfortably watched their old colleague bumble through his argument.
The justices largely gave Goldberg free reign with his argument, interrupting him with questions only occasionally. This respectful treatment did not serve Goldberg well, however. He wandered through his argument and at times he seemed to be searching for ways to fill up his time. The first half of his presentation was consumed with barely relevant minutia involving the negotiations between Flood and his team. For some reason, Goldberg was particularly interested in emphasizing how good a player Flood had been. He went through the details of his client’s on-the-field credentials twice. The second time through he included a year-by-year recital of Flood’s batting averages, at the end of which he concluded: “I am not a great mathematician, Mr. Chief Justice and associate justices, but this seems to me to be a batting average around 300.” He also mentioned Flood’s Gold Glove award on two separate occasions, each time carefully explaining that this was the award for excellence in fielding. Goldberg comes across as tired, distracted, and occasionally at a loss for words. (Listen to oral argument here.)
Flood v. Kuhn was the third time a legal challenge to baseball’s unique system of labor relations made it to the Supreme Court. In 1922, Justice Holmes wrote an opinion for the Court concluding that baseball did not fall under federal antitrust law. The Court reaffirmed this holding in 1953. In 1972, the outcome was the same. The Court concluded that if Major League Baseball was to fall under federal antitrust regulation, it should be Congress, not the Court, that made the change.
But this was one of those cases in which a defeat in the Supreme Court probably gave more to the losing side than the winning side. Within a matter of years, the Players Union forced the team owners to concede to their demands for reform, and the era of player free agency was born. (I offer an account of how all this happened in my recently published article “Explaining the Baseball Revolution.”)
There was a notably poignant moment during Goldberg’s oral arguments. Goldberg was recounting Flood’s career following the filing of his lawsuit. After sitting out the 1970 season, Flood agreed to a generous contract to play for the Washington Senators in 1971. But his game had left him. He was out of practice, his heart was not in it, and he performed poorly. As Goldberg described his client’s failed return to the field:
“He agreed to play for Washington, he was there for a few months and we can all take judicial notice, I think of what occurred layman, lawyers and I believe this Court, he tried. He had been laid off for a year. After trying for a few months in Spring training and in the actual season he was benched. He could not easily regain his skills, which is not difficult to understand, and he left.”
Goldberg’s poor performance before the Court likely had little effect on the outcome of the case. It certainly did not slow the momentum for reform that would eventually overwhelm baseball’s club owners.