The following Saturday, June
3,
Blackmun drafted a memorandum withdrawing his abortion opinion. It was already late in the term, he wrote. Such a sensitive case required more research, more consideration. It would take him some time both to accommodate the suggestions of those in the majority, and to respond to the dissenters. Perhaps it would be best if the cases were reargued in the fall. He asked that all copies of his draft memo be returned.
Douglas was once again enraged. The end of the year always involved a crunch. Of course, there was tremendous pressure to put out major opinions without the time to fully refine them. That was the nature of their work. The pressure affected them all. It was typical that Blackmun could not make up his mind and let his opinion go. Douglas had heard that the Chief had been lobbying Blackmun. This time, Burger had gone too far. The opinion had five firm votes. It ought to come down. It was not like cases with only four votes that might change when Powell's and Rehnquist's votes were added. Douglas also did not want to give the Chief the summer to sway Blackmun.
Burger was taking the position that there were now five votes to put the case over to the next term—Blackmun,
White, Powell, Rehnquist, and himself. Douglas couldn't believe it. Burger and White were in the minority; they should have no say in what the majority did. And Powell and Rehnquist had not taken part; obviously they could not vote on whether the case should be put over.
The looming confrontation worried Blackmun. There were no written rules on such questions, and Douglas's apparent willingness to push to a showdown would further inflame the issue. Finally, Blackmun turned to Brennan, who was sympathetic. Obviously the opinion could not come down if its author did not want it to come down. But Brennan also wanted it out as soon as possible.
Blackmun said he understood that Douglas did not trust him, but insisted that he was firm for striking down the abortion law. The vote would go the same way the next year. They might even pick up Powell. That would make the result more acceptable to the public. He would be able to draft a better opinion over the summer.
Brennan was not so certain of Blackmun's firmness. At the same time, he did not want to alienate him. He agreed to tell Douglas that he too was going to vote to put the case over for re
-
argument. He was fairly certain Marshall and Stewart would join. That would leave Douglas protesting alone.
Douglas was not pleased by the news of Brennan's defection. But the battle was not yet over. He dashed off a memo, rushed it to the secretaries for typing and to the printers for a first draft. This time, Douglas threatened to play his ace. If the conference insisted on putting the cases over for re
-
argument, he would dissent from such an order, and he would publish the full text of his dissent. Douglas reiterated the protest he had made in December about the Chief's assigning the case to Blackmun, Burger's response and his subsequent intransigence. The senior member of the majority should have assigned the case, Douglas said, and continued:
When, however, the minority seeks to control the assignment, there is a destructive force at work in the Court. When a Chief Justice tries to bend the Court to his will by manipulating assignments, the integrity of the institution is imperilled.
Historically, this institution has been composed of fiercely independent men with fiercely opposed views. There have been—and will always be— clashes of views. But up to now the Conference, though deeply disagreeing on legal and constitutional issues, has been
a
group marked by good-will. Up until now
a
majority view, no matter how unacceptable to the minority, has been honored as such. And up until now the incumbents have honored and revered the institution more than their own view of the public good.
Perhaps the purpose of THE CHIEF JUSTICE, a member of the minority in the
Abortion Cases,
in assigning the opinions was to try to keep control of the merits. If that was the aim, he was unsuccessful. Opinions in these two cases have been circulated and each commands the votes of five members of the Court. Those votes are firm, the Justices having spent many, many hours since last October mulling over every detail of the cases. The cases should therefore be announced.
The plea that the cases be reargued is merely strategy by
a
minority somehow to suppress the majority view with the hope that exigencies of time will change the result. That might be achieved of course by death or conceivably retirement.
Douglas knew a fifth Nixon appointment was a real possibility on a Court with a seventy-four-year-old man with a pacemaker; with Marshall, who was chronically ill; and with Brennan, who occasionally threatened to quit.
But that kind of strategy dilutes the integrity of the Court and makes the decisions here depend on the manipulative skills of
a
Chief Justice.
The
Abortion Cases
are symptomatic. This is an election year. Both political parties have made abortion an issue. What the parties say or do is none of our business. We sit here not to make the path of any candidate easier or more difficult. We decide questions only on their constitutional merits. To prolong these
Abortion Cases
into the next election would in the eyes of many be a political gesture unworthy of the Court.
Each of us is sovereign in his own right. Each arrived on his own. Each is beholden to no one.
Borrowing a line from a speech he had given in September in Portland, Douglas then made it clear that, despite what he had said earlier, he did in fact view the Chief and Blackmun as Nixon's Minnesota Twins. "Russia once gave its Chief Justice two votes; but that was too strong even for the Russians....
"I dissent with the deepest regret that we are allowing the consensus of the Court to be frustrated."
Douglas refined his draft three times, circulated it, and left for Goose Prairie.
The Court erupted in debate over whether Douglas was bluffing or was really willing to publish the document. Though sympathetic to his views, Brennan, Marshall and Stewart could not believe that Douglas would go through with it. No one in the history of the Court had published such a dissent. The Chief might be a scoundrel, but making public the Court's inner
machinations was a form of trea
son. And the reference to the Russian Chief Justice with two votes was particularly rough. They pleaded with Douglas to reconsider. His dissent would undermine the Court's credibility, the principal source of its power. Its strength derived from the public belief that the Court was trustworthy, a non
-
political deliberative body. Did he intend to undermine all that?
Douglas insisted. He would publish what he felt like publishing. And he would publish this if the request to put over the abortion decision was not withdrawn.
But, the others argued, what good would it do to drag their internal problems into public view?
It would have a sobering influence on Blackmun, Douglas retorted. It would make it harder for him to change his mind over the summer.
Brennan's impatience with Douglas turned to anger. Douglas had become an intellectually lazy, petulant, prodigal child. He was not providing leadership. Douglas was never around when he was needed. His departure for Goose Prairie was typical. H
e was not even, for that matter
pulling his share of the load, though he certainly contributed more than his share to the tension. The ultimate source of conflict was the Chief. But Douglas too was at fault.
Finally, Brennan gave up arguing.
Blackmun then took it up, pleading with Douglas to reconsider. He insisted that he was committed to his opinion. He would bring it down the same way the next term; more research would perhaps pick up another vote.
Douglas was unconvinced. He needed time to think it over. His clerks would remain instructed to publish the opinion if the cases were put over for re
-
argument.
But Blackmun had made his point. Douglas finally decided that he couldn't publish. It would endanger next term's vote on the abortion cases.
No longer speaking to his own clerks, whom he blamed for slow mail delivery to Goose Prairie, Douglas called Brennan and told him to have his dissent held. A memo came around to the Justices from Douglas's chamber asking for all the copies back.
The conference agreed to put over the abortion cases, but they would not announce their decision until the final day of the term.
Earlier at the March
24
conference, Stewart had found himself the senior member of a majority for the first time in his career. The case
(Flood v. Kuhn)
concerned Curt Flood, a former star outfielder for the St. Louis Cardinals, who had refused to be traded to the Philadelphia Phillies. He had filed an antitrust suit against professional baseball. Flood wanted to break the reserve clause that allowed teams to trade baseball players without their consent.
Oral argument had failed to clarify the issues. Former Justice Arthur Goldberg, in his first appearance before the Court since resigning in
1965
to become Ambassador to the United Nations, had offered such a poor presentation of Flood's case that his former colleagues were embarrassed.
Powell withdrew from the case, because he held stock in Anheuser-Busch, Inc., whose principal owner, August Busch, Jr., also owned the St. Louis Cardinals. The Chief, Douglas and Brennan voted for Flood, leaving Stewart to assign the opinion for a five-member majority.
Stewart thought that the opinion would be easy to write.
The Court had twice before decided that baseball was exempt from the antitrust laws. It was, Stewart said, "a case of
'stare decisis'
double dipped." There seemed little chance of losing the majority as long as the two earlier precedents were followed. He assigned the opinion to Blackmun.
Blackmun was delighted. Apart from the abortion assignment, he felt that he had suffered under the Chief, receiving poor opinions to write, including more than his share of tax and Indian cases. He thought that if the antitrust laws were applied to baseball, its unique position as the national pastime would be undermined. A devoted fan first of the Chicago Cubs and later the Minnesota Twins, he welcomed this chance to be one of the boys.
With his usual devotion to detail, Blackmun turned to the
Baseball Encyclopedia,
which he kept on the shelf behind his desk. He set down minimum lifetime performance standards—numbers of games played, lifetime batting averages or earned-run averages. He picked out representative stars from each of the teams, positions, and decades of organized baseball. Then, closeted away in the Justices' library, Blackmun wrote an opening section that was an ode to baseball. In three extended paragraphs, he traced the history of professional baseball. He continued with a list of "the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided timber for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in season and off season: Ty Cobb, Babe Ruth
..
There were more than seventy names. "The list seems endless," Blackmun wrote. He paid homage to the verse "Casey at the Bat," and other baseball literature. When he had finished, Blackmun circulated his draft
Brennan was surprised. He thought Blackmun had been in the library researching the abortion cases, not playing with baseball cards.
One of Rehnquist's clerks called Blackmun's chambers and joked that Camillo Pascual, a former Washington Senators pitcher, should have been included in the list of greats.
Blackmun's clerk phoned back the next day. "The Justice recalls seeing Pascual pitch and remembers his fantastic curve ball. But he pulled out his Encyclopedia and looked up his record. He decided Pascual's
174
wins were not enough. It is difficult to make these judgments of who to include but Justice Blackmun felt that Pascual is just not in the same category with Christy Matthewson's
373
wins. I hope you will understand."
Calling Blackmun's chambers to request that some favorite player be included became a new game for the clerks.
Stewart was embarrassed that he had assigned the opinion to Blackmun. He tried to nudge him into recognizing the inappropriateness of the opening section, jokingly telling him that he would go along with the opinion if Blackmun would add a member of Stewart's home-town team, the Cincinnati Reds.
Blackmun added a Red.
Marshall registered his protest. The list included no black baseball players. Blackmun explained that most of the players on his list antedated World War H. Blacks had been excluded from the major leagues until
1947.
That was the point exactly, Marshall replied.