The enduring connection between Curt Flood and Roe vs Wade (and anguish over the death of RBG)
What does the former great Cardinal centerfielder from the 1960’s have to do with the famous abortion decision? Actually, and surprisingly, quite a lot.
In 1969 Curt Flood brought an antitrust claim against Major League Baseball contending that the antiquated “reserve system” that tied every major league baseball player to the team that signed him forever in perpetuity was an illegal restraint of trade – in essence an antitrust violation. The case reached the United States Supreme Court in 1972. Fifty years earlier, the prestigious Jurist Oliver Wendell Holmes wrote the opinion in Federal Baseball Club of Baltimore vs the National League that rather incredibly held that baseball was not a business or the subject of interstate commerce, and thus was exempt from antitrust law.
Not a single Justice in the 1970’s could legally or logically justify how baseball did not involve business or interstate commerce or why baseball alone should have an antitrust exemption when no other business or other sport was afforded that luxury. But the majority of the Justices in the Flood case nevertheless felt hamstrung by the Court’s seminal ruling a half a century before and decided that it was up to Congress to change the law, not the Court, even though it was the Court that created the exemption in the first place. It was not just an adherence to precedent but a recognition of the fact that many folks and business had relied upon this legal proposition and it had been engrained into our legal system for five decades.
There was apparently another little-known reason why this decision came down the way it did according to Bob Woodward – yes, the same world renown journalist of Watergate fame and who recently published a book about his 18 recorded conversations with President Trump. In his fascinating book The Brethren, which provided the first inside glimpse at the highly secret workings of the Supreme Court, Woodward describes a very private meeting on a Saturday between Chief Justice Berger and Justice Harry Blackmun. Blackmun had been assigned to write the majority opinion in both Flood and Roe vs Wade with both set to be issued shortly. But Blackmun’s slim majority in the Flood case was crumbling. Justice Marshall had recently decided to switch his vote converting what was a 5-3 majority into a tie at 4-4. And Justice Powell, who had chosen not to vote on the case based on a conflict of interest (simply because he owned some stock in Anheuser Busch, the owner of the St. Louis Cardinals even though he was from all accounts on Flood’s side) was now purportedly reconsidering his recusal. That would have made the vote 5-4 FOR FLOOD.
In the midst of this uncertainty, the Chief Justice allegedly agreed that Saturday afternoon to switch his vote to Blackmun/MLB’s side if Blackmun would withdraw and delay his opinion on Roe vs Wade, a decision that Berger vehemently opposed. Berger was apparently hoping that a different result might be achieved on the abortion decision in the next term. The deal was apparently struck. Flood lost his case and career and the antitrust exemption for baseball was retained – a status it still illogically occupies. Roe v Wade came out unchanged the following term.
Fast forward another 50 years. In highly distressing news Justice Ruth Bader Ginsburg died last night. The diminutive RBG was a legal giant and a ferocious fighter for human rights. The death of the first Jewish woman Justice, ironically at the very end of the Jewish year, marks a cause of monumental concern for the new year and the future for all folks who believe in civil liberties, worry about the rights of minorities, women, gays and immigrants, and support a health care system that doesn’t deny coverage for folks with pre-existing medical conditions.
Despite insisting that a lame duck president in the final year of his Presidency should not have the right to select a new Supreme Court Justice when the President was named O’Bama, the despicable Senate Majority Leader has already announced that he will ram through yet another of President Trump’s unapologetically far right selections to the Supreme Court just as soon as RBG is laid to rest – and even though the election is now only six weeks away. Indeed, I had been predicting for some time now that he would do so even if RBG were to have died after an election that Trump lost and had only a couple of weeks before the January inauguration.
Unless Democrats are able to round up at least four Republican Senators who refuse to vote for a new Supreme Court Justice at the 11th hour of a Presidential election – and I suspect the chances of that are remote – there will be a 6-3 conservative majority in the highest Court for the rest of many of our lifetimes – and regardless of the outcome of the Presidential election! (Indeed the only Justice likely approaching retirement or death is Justice Breyer, one of the three remaining liberals.) And this is not your grandpa’s conservative majority but one where five of the six are from the extreme right of jurisprudence.
So, what will happen when the next Roe v Wade challenge comes up before the Court with this new conservative super majority? Will these Justices adhere to the principles laid down in the Flood case and uphold the law even if they strongly disagree with it based on 50 years of precedent and the fact that it has become an integral part of the legal landscape of our country? Will these Justices defer to Congress to decide whether to reverse Roe v Wade consistent not only with the Flood case but also with their own often spouted views that it’s up to Congress to make the law? After all, the judiciary was intended to be an independent third branch of government that could not be controlled by a political party or politics.
Don’t bet on it. The issue demonstrates just how far folks in power these days are are willing to go to subvert democracy and fairness in order to get what they want. It is a sad commentary on just how far we have fallen as a nation. God help these United States.
