Law Professor Challenges Tale About Blackmun and Race

Tony Mauro

Legal Times

The late Supreme Court Justice Harry Blackmun will always be remembered first and foremost for writing Roe v. Wade, the 1973 decision declaring a woman's right to an abortion.

But especially now, when the crack of baseball bats pierces the thick summer air, Blackmun's second-most famous decision comes to the fore.

That would be Flood v. Kuhn, Blackmun's 1972 baseball antitrust decision that begins with a hopelessly sentimental ode to baseball and a long list of best players who "sparked the diamond" through the national pastime's glorious history. It was so sappy that two justices in the majority refused to join that section of the decision.

But for nearly three decades, the story of that famous passage has been clouded by suggestions of Blackmun's racial insensitivity. In 1979, "The Brethren," the best-selling book about the Court, asserted that Blackmun's list of baseball heroes in Flood v. Kuhn initially included no black players. Only when Justice Thurgood Marshall, commenting on the first draft, noted the omission and urged Blackmun to correct it, did Blackmun add Satchel Paige, Jackie Robinson and Roy Campanella to the list -- or so the book claims.

Now, nearly 30 years later, a George Mason University law professor believes he has debunked that story by showing that Blackmun's list included black players from the very outset.

"The story is false," Ross Davies says flatly in an article in the current edition of the Journal of Supreme Court History entitled "A Tall Tale of The Brethren."

By tracking all the case drafts and annotations in Blackmun's meticulously complete files archived at the Library of Congress, Davies concluded that the purported draft that omitted black players "does not exist and never did." As a result, Davies says, "There was nothing [for Marshall] to object to."

In response to the article, Scott Armstrong, co-author of "The Brethren" with Bob Woodward of The Washington Post, says that at least for now, he stands by the account in the book. "It's inconceivable that we were wrong," says Armstrong, who acknowledges he was responsible for that section of the book.

"The irony is the amount of energy this guy put into this," Armstrong said of Davies last week. "If we were wrong, we're happy to say it, but this is not in the top 10,000 things in the book" that he thinks are worth tracking down. He adds, "I assume there are hundreds [of errors] in the book." Armstrong says he is referring to minor or technical errors.

The fact that controversy still surrounds a sentence or two in a 29-year-old book is a testament to the fame of the Flood decision and the unique place of baseball in the national landscape.

After his rosy recitation of baseball history, Blackmun went on to uphold the long-standing exemption from antitrust laws that baseball has enjoyed -- even as he conceded that baseball is a business engaging in interstate commerce that would be covered by antitrust laws if it were not "an exception and an anomaly."

Unencumbered by antitrust laws, the majority went on to rule against player Curt Flood's challenge of the "reserve clause" that had enabled team owners to trade him from the St. Louis Cardinals to the Philadelphia Phillies without his consent.

"Flood v. Kuhn holds continued fascination because it's about baseball and because Blackmun's opinion is comically and erroneously bad," says Brad Snyder, whose book about the case, "A Well-Paid Slave," was published in 2006. "Even the best judges turn into pennant-waving schoolboys when they decide cases about sports."

In his book, Snyder said the story about Marshall complaining to Blackmun "makes no sense" and that Blackmun had in fact denied it. He cited letters that appear in Blackmun's case file in which Blackmun wrote to members of the public who asked him about the account in "The Brethren."

"It is not true that Justice Marshall demanded the inclusion of the three names," Blackmun wrote in a 1997 letter to a Minnesota man.

But Davies felt he needed to go beyond Blackmun's denial to make sure the justice's assertion was accurate. A Supreme Court history buff who also edits the Green Bag law review, Davies says he has no stake either in defending Blackmun or in skewering "The Brethren."

Davies says he researched and wrote the article in the course of other research on the Flood case, "and I wanted to know if I could really lean on the account in 'The Brethren.'  It needed to be done." He was also intrigued by the scholarly challenge of doing something other than finding a needle in a haystack. Here, he had to prove there was no needle -- no draft that omitted blacks.

John Townsend Rich, the Blackmun law clerk who worked on the Flood case, is now a partner at Goodwin Procter in D.C. He says he has read Davies' article but won't comment on it, holding to his clerk's pledge of confidentiality even after all these years.

Davies sent Armstrong a draft of the article last September, inviting comment or contradiction. Armstrong said last week that regrettably, he had not had the time to retrieve his book files from storage in West Virginia. "I could probably resolve it just by pulling a file."

Without viewing that file, Armstrong says he does not recall the source for the Marshall-Blackmun anecdote, or whether it is a source he can reveal. But he thinks it is possible that Marshall made a casual comment to Blackmun at conference urging him to include black players, or that a typewritten list of the names had been sent around to other justices before the printed draft that Davies relies on. "It's complicated to track all those drafts, and if you don't understand that, you don't understand the Court." But the Davies article covers those bases, and Davies asserts convincingly that no other list could have circulated before the printed draft.

Armstrong, who directs the nonprofit Information Trust, which advocates for government openness, hopes to check his files in the coming weeks. If he can back up the Marshall-Blackmun story without violating the confidentiality of a source -- or if he finds the book was in error -- he says he will make it public. Stay tuned.