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This article was published in the Fall 2009 Baseball Research Journal
In their books The Brethren: Inside the Supreme Court, Bob Woodward and Scott Armstrong tell a small but striking story of the racial insensitivity of Justice Harry A. Blackmun. It happened during the drafting and circulation of opinions in Flood v. Kuhn, the 1972 baseball antitrust case. But the story is false. The document from which the authors quote does not exist and never did.
In their books The Brethren: Inside the Supreme Court, Bob Woodward and Scott Armstrong tell a small but striking story of the racial insensitivity of Justice Harry A. Blackmun.[fn]The Brethren: Inside the Supreme Court, 190–91 (1979) (hereafter The Brethren).[/fn] It happened during the drafting and circulation of opinions in Flood v. Kuhn, the 1972 baseball antitrust case.[fn]407 U.S. 258 (1972).[/fn] As the story goes, when Blackmun circulated the first draft of his opinion in Flood, with its famously romantic introductory salute to the good old days of baseball and list of “celebrated . . . names” from the history of the game, the list of names was as segregated as the Topeka public schools in 1954. Blackmun had excluded African Americans from his list of baseball celebrities. It was only when pressed to do so by Justice Thurgood Marshall that he added black players to the list—Satchel Paige, Jackie Robinson, and Roy Campanella.
It has been said that this story from The Brethren “makes no sense,”[fn]Brad Snyder, A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports 301 (2006) (hereafter Well-Paid Slave).[/fn] but that is not enough to make it false. The Brethren accurately reports some pretty nonsensical behavior by people who worked at the Supreme Court during the period covered by the book (1969 to 1976). Moreover, the authors of The Brethren claim there is documentary proof of their story of Blackmun-versus-Marshall in Flood. Nevertheless, the story is false. The document from which the authors quote —Blackmun’s allegedly racially exclusive circulated first draft in Flood — does not exist and never did. Paige, Robinson, and Campanella were present in the first circulated draft and thereafter. And thus Marshall’s objection to the offending draft never occurred either. There was nothing to object to.
Before getting to the business of correcting this sliver of the historical record, it is worth pausing to consider the value of contradicting a two-page anecdote about a single baseball case buried in the middle of a 444-page book written almost thirty years ago. In short, the accuracy of The Brethren’s Blackmun-versus-Marshall story matters not only because it is generally good to know the truth—especially on a subject as perennially salient as a justice’s views on the place of race in a decision by the Court—but also because The Brethren is an important book, the importance of which hinges in large part on the consistency with which the stories it tells turn out to be true.
When it was published in 1979, The Brethren gave the public an unprecedented look at the inner workings of the Supreme Court.[fn]Earlier profiles of the Court, such as Drew Pearson and Robert S. Allen’s Nine Old Men (1936) and J. Harvie Wilkinson’s Serving Justice: A Supreme Court Clerk’s View (1974), had not been anywhere near as revealing of its interior workings.[/fn] It did so in a crisp, anecdotal style that made it appealing and accessible to the lay reader. The book’s numerous behind-the-curtains vignettes also provided a wealth of otherwise unavailable factual detail about the thinking and behavior of the justices and their staffs that made it irresistible to Supreme Court journalists, scholars, and other specialists. The combination of an important subject, intriguing new information, and good writing made The Brethren a commercial success. It was also controversial, both for its content (it related many less than flattering stories about the Justices and others at the Court) and for its method of reporting (it was based largely on anonymous sources and confidential documents).[fn]See, e.g., Anthony Lewis, “Supreme Court Confidential,” New York Review of Books, 7 February 1980 (hereafter “Supreme Court Confidential”); “The Evidence of The Brethren: An Exchange,” New York Review of Books, 12 June 1980 (hereafter “The Evidence of The Brethren”); John G. Kester, “Breaking Confidences,” The Washingtonian, February 1980; see also Dennis J. Hutchinson, The Man Who Once Was Whizzer White, 384-86 (1998) (hereafter Whizzer White); Adrian Havill, Deep Truth: The Lives of Bob Woodward and Carl Bernstein, 130–35 (1995).[/fn] The book weathered the early controversies and has gradually become a standard resource for scholars and other commentators—and, in recent years, even some federal judges[fn]See, e.g., Landell v. Sorrell, 382 F.3d 91, 109 (2d Cir. 2004), rev’d 126 S. Ct. 2479 (2006); Larsen v. U.S. Navy, 346 F. Supp. 2d 122, 132 n. 5 (D.D.C. 2004).[/fn]—seeking to understand the Court. The list of respectable scholars who have relied on The Brethren is long and lengthening.[fn]See, e.g., Neal Devins, “Should the Supreme Court Fear Congress?” 90 Minn. L. Rev. 1337, 1341 (2006); Linda Greenhouse, “How Not to Be Chief Justice,” 154 U Pa. L. Rev. 1365, 1369 (2006); James 1. Brudney and Corey Ditslear, “Canons of Construction and the Elusive Quest for Neutral Reasoning,” 58 Vand. L. Rev. 1, 44 (2005); Clarke D. Forsythe and Stephen B. Presser, “The Tragic Failure of Roe v. Wade,” 10 Tex. Rev. L. & Pol. 85, 127 (2005); Sanford Levinson, “The Pedagogy of
the First Amendment,” 52 UCLA L. Rev. 1359, 1361 (2005); see also G. Edward White, The American Judicial Tradition chs. 13 and 14 and 523 n. 124 (3d ed. 2007) (describing The Brethren as “a source on the internal history of the Burger Court that needs to be used with great care”). A search for “woodward/5 armstrong/5 brethren” in Westlaw’s jlr database of law reviews and similar periodicals on March 30, 2007, turned up 492 documents.[/fn] Nowadays, whenever a new Supreme Court exposé appears, it is to The Brethren that it must first be compared.[fn]See, e.g., David J. Garrow, “Breaking Silence and Legal Ground,” Los Angeles Times, 23 January 2007 (reviewing Jan Crawford Greenburg’s Supreme Conflict); Rodger Citron, “A Peek Into the Marble Palace,” Legal Times, 29 May 2006 (reviewing Todd Peppers’s Courtiers of the Marble Palace); Kim 1. Eisler, “Truth Teller or Sore Loser?” Legal Times, 27 April 1998 (reviewing Edward Lazarus’s Closed Chambers).[/fn]
At first, however, readers—having no access of their own to Woodward and Armstrong’s anonymous sources and confidential documents—had no basis for believing the stories told in The Brethren, other than the inherent plausibility of those stories and the authors’ reputations for reliably uncovering and sorting the true from the not so true. On that front, there was at the time (and probably remains) no user of anonymous and confidential sources with a more impressive track record than Woodward. He had already written two anonymously sourced and largely vindicated books about the inner workings of the executive branch of the federal government, All the President’s Men and The Final Days, as well as many articles based on anonymous sources for the Washington Post. And Armstrong had played a major role in the research and writing of The Final Days.[fn]Carl Bernstein and Bob Woodward, All the President’s Men (1974); Bob Woodward and Carl Bernstein, The Final Days (1976).[/fn]
As time passed, The Brethren had to stand on its own. Anonymous sources spoke to other authors, previously confidential documents became public, and some stories told in The Brethren could be verified or falsified. If those stories that could be checked did not check out—if Woodward and Armstrong, or their sources, had been fabricating tales of the Supreme Court—those truths would come out, undermining not only those particular stories but also the book as a whole. After all, if the stories we can check turn out to be false, why should we believe the stories we cannot check?[fn]Victor S. Navasky, “The Selling of the Brethren,” 89 Yale L. J. 1028, 1030 (1980).[/fn] On the other hand, if those stories that could be checked did check out, then the converse inference would apply: It would be only reasonable to acknowledge that the credibility of the stories we cannot check is enhanced by the accuracy of the ones we can. So far, The Brethren’s checkable stories have turned out, scattered bit by bit, episode by episode, to be true[fn]Compare, e.g., The Brethren at 357 et seq. with Whizzer White at 434–35,463–65 (1998); Bruce Allen Murphy, Wild Bill, ch. 38 (2003).[/fn] or at least not definitely false—with the exception of a few “small errors” picked up by early reviewers.[fn]See, e.g., Walter F. Murphy, “Spilling the Secrets of the Supreme Court,” Washington Post Book World, 16 December 1979, at 11.[/fn] This has added to the credibility and influence of the book as a whole. Linda Greenhouse, the Pulitzer Prize–winning journalist who covers the Supreme Court for the New York Times, wrote in her biography of Blackmun that The Brethren’s “reliance on anonymous sources has made that best-selling book controversial, but, in many instances, Blackmun’s case files attest to its accuracy.”[fn]Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, 254 (2005) (hereafter Becoming Justice Blackmun).[/fn] And Professor Mark Tushnet, who clerked for Marshall during part of the period covered by The Brethren and has studied the Court ever since, has observed that “[t]he accounts in The Brethren are factually accurate on nearly every point.”[fn]Mark V. Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991 at viii (1997) (hereafter Making Constitutional Law).[/fn]
Until the opening of Blackmun’s papers at the Library of Congress in 2004, the Blackmun-versus-Marshall episode in Flood v. Kuhn was one of the uncheckable stories. Now it can be checked, and it does not check out.
Which raises a more complicated question: If some of the stories we can check are true and at least one is false, does that make all of the remaining unchecked stories unreliable, or only some of them, or perhaps none? The answer to that question depends on the answers to two intermediate questions. First, where did the false story come from, the authors or a source? If the former, then all unchecked stories are subject to doubt. If the latter—if a source somehow duped the authors—then the second question arises: Did that source provide information for any other part of the book, and if so what part or parts? If the source helped only with the Blackmun-versus-Marshall story, then perhaps the rest of the book should retain the standing it enjoys today, subject perhaps to a bit of extra skepticism courtesy of one small blemish on the authors’ reputation for winnowing truths from lies delivered by anonymous sources. If the source (or sources, if Woodward and Armstrong relied on more than one for Blackmun-versus-Marshall) did more, then those stories should be doubted (fool me once, shame on you; fool me twice . . .). The answers to these questions are probably available only from Woodward and Armstrong. But the true story of Blackmun-versus-Marshall in Flood can sharpen the questions, even if it cannot answer them. This is the added value of contradicting one anecdote about a single baseball case buried in the middle of The Brethren.
Which brings us to that anecdote: The Brethren’s tall tale of Blackmun-versus-Marshall in the Flood case.
THE TALL TALE
Part I of Blackmun’s published opinon in Flood, which he announced in Court on June 19, 1972, contains his salute to the game of baseball. It includes a list of eighty-eight “celebrated . . . names” from the history of the game, a list that grew from seventy-four names when he circulated his first draft of the opinion on May 5, 1972. The tale of the birth and growth of the list was first reported by Woodward and Armstrong. Here is the story as they tell it on pages 190 and 191 of The Brethren, starting with Blackmun’s reaction when Potter Stewart, the senior justice in the majority after the initial vote in conference on the case, assigned the opinion for the Court to him:
Blackmun was delighted. Apart from the abortion assignment, he felt 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 Mathewson’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 II. Blacks had been excluded from the major leagues until 1947.
That was the point exactly, Marshall replied.
Three black players were added—Jackie Robinson, Roy Campanella, and Satchel Paige.[fn]The Brethren at 190–91.[/fn]
This story has since been told and retold, in whole and in part, and has become part of the history of Flood.[fn]See, e.g., Andrew O’Toole, The Best Man Plays 97 (2003); David Greenberg, “Baseball’s Con Game,” Slate, 19 July 2002; Roger 1. Abrams, “Before the Flood,” 9 Marq. Sports L.J. 307, 3II (1999); Tony Mauro, “Would the Court Go to Bat for Baseball?” Legal Times, 29 August 1994; Chad Millman, “Bench Player,” Sports Illustrated, 18 April 1994; Max Vobiscum, “The Supreme Court’s Sports Page,” (Passaic County, N.J., Bar Association) Reporter, Aug.–Sept. 1980, at 40; “Games Justices Play,” Newsweek,
10 December 10, 1979, at 88.[/fn] Pieces of it soon checked out as true—the bit about Stewart and the addition of a Cincinnati Red, for example. Justice William O. Douglas’s papers, which he had deposited in the Library of Congress, were opened to the public in 1986, just seven years after The Brethren was published. Douglas’s file on the Flood case included three versions of Blackmun’s Flood opinion:
- A version labeled “1st draft” and “Circulated: 5/5/72.” This draft featured a list of only seventy-four “celebrated names,” and not one of them had been a Cincinnati Red.[fn]Flood v. Kuhn, 1st Draft at 4–5 (5 May 1972), in Papers of William O. Douglas, Library of Congress, Manuscript Division, box 1561 (hereafter Douglas Papers).[/fn]
- A version labeled “2nd draft” and “Recirculated 5/25/72.” In this draft, there were twelve more baseball greats on the list, one of whom was Reds pitcher Eppa Rixey.[fn]Flood v. Kuhn, 2d Draft at 4–5 (25 May 1972), in Douglas Papers.[/fn]
- A copy of the final slip opinion, dated June 19, 1972, with two more names on the list: Jimmie Foxx and Moe Berg. The story of their addition is not relevant here, and is well told (as is the entire story of the Flood case) in Brad Snyder’s A Well-Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports.[fn]Well-Paid Slave at 305–6.[/fn]
When they were opened to the public during the 1990s, the papers of Justices Marshall and William J. Brennan Jr. revealed Flood files that consistently matched the one in the Douglas papers. They included the same versions of Blackmun’s Flood opinion, and no more.[fn]Flood v. Kuhn, 1st Draft at 4–5 (5 May 1972) and Flood v. Kuhn, 2nd Draft at 4–5 (25 May 1972), in Papers of William J. Brennan Jr., Library of Congress, Manuscript Division, box 1:268, folder 2; Papers of Thurgood Marshall, Library of Congress, Manuscript Division, box 87, folder 10 (hereafter Marshall Papers). The Flood file in the papers of Justice Lewis F. Powell Jr. contained no draft opinions at all. Lewis F. Powell Jr. Papers, Washington and Lee University School of Law, Lewis F. Powell Jr. Archives, box 148. Powell determined early on in the deliberations over the Flood case that his ownership of shares of Anheuser-Busch, which owned the St. Louis Cardinals baseball team, a respondent in Flood, obligated him to disqualify himself, and he did so. Memorandum to the Conference (21 March 1972), in Powell Papers, box 148. The papers of the other members of the Court at the time—Chief Justice Warren Burger and Justices Potter Stewart, Byron R. White, and William H. Rehnquist—are not yet open to the public.[/fn]
But, while the “1st draft” and “2nd draft” of Blackmun’s Flood opinion in the files of Douglas, Brennan, and Marshall supported the anecdote about the addition of a Cincinnati Red, they undermined the Blackmun-versus-Marshall story about the addition of Paige, Robinson, and Campanella. The “1st draft” in the justices’ files already had all three of those names. All three men were still there in the “2nd draft,” and none of the twelve added celebrities was African American. And all three remained in the final slip opinion as well, accompanied by two more white additions, Foxx and Berg. That is, the three black baseball celebrities were there from the beginning, and no African Americans were added or subtracted thereafter. Moreover, the very labeling of the two drafts suggested that the version labeled “1st draft” was, indeed, the first circulated draft, because it had been “Circulated,” while the “2nd draft” had been “Recirculated.” If some other draft had been circulated prior to the “1st draft” then surely the “1st draft” would have been labeled “Recirculated” too. Furthermore, there was the word of Blackmun himself. He repeatedly acknowledged the provenance of the Rixey addition during his 1995 interviews with Professor Harold Koh for the Justice Harry A. Blackmun Oral History Project, and alluded to it in correspondence.[fn]The Justice Harry A. Blackmun Oral History Project 184, 186, 293 (1994–95) (hereafter Oral History); Harry A. Blackmun to Jim Caple, 11 February 1997, in Papers of Harry A. Blackmun, Library of Congress, Manuscript Division, box 145, folder 3 (hereafter “Blackmun Papers”).[/fn] But he consistently denied the Blackmun-versus-Marshall story in his correspondence (it did not come up during the oral-history interviews).[fn]See, e.g., Harry A. Blackmun to Daniel Crystal, 9 October 1980, in Blackmun Papers, box 145, folder 3; Harry A. Blackmun to Jim Caple, 11 February 1997, in Blackmun Papers, box 145, folder 3.[/fn]
Confirming a positive is, however, not the same as proving a negative. Who knows, perhaps Blackmun did circulate some sort of preliminary draft before the “1st draft” in the justices’ files. Finding a needle (the added Cincinnati Red) in the proverbial haystack is one thing; proving there is no needle (the racially exclusive circulated draft) is quite another. In addition, there is good reason for the careful reader to discount Blackmun’s statements that there was no dispute with Marshall over African Americans on the list of “celebrated names.” Long experience teaches that some public figures sometimes resort to self-serving lapses of memory, artfully mendacious warping of the English language, or simple falsehood when recalling their foibles and mistakes or polishing their legacies. This is not to say that Blackmun lied when he denied the conflict with Marshall. Rather, it is to say that his word standing alone cannot serve in this context, no matter how honest he was in fact. Suffering that skepticism is a legacy for which he and all other public servants can thank prominent members of all three branches of the federal government who have given inaccurate accounts of their behavior only to have their misstatements discovered and disclosed, to the shame of the institution, if not the individual. And then there is the general imperfection of human memory that occasionally afflicts Supreme Court Justices just as it does the rest of us.[fn]Compare, e.g., Justice Thurgood Marshall, Memorandum to the Conference (4 October 1984), in Blackmun Papers, box 1405, folder 14, reprinted in “NAACP Recusals,” 10 Green Bag 2D 93, 93–99 (2006), with Milliken v. Bradley, 418 U.S. 717, 722 (1974); id. at 781 (1974) (Marshall, J., dissenting); Meek v. Pittenger, 421 U.S. 349, 356 n.5 (1975).[/fn] There is also some specific cause to suspect Blackmun’s recall of matters relating to The Brethren. For example, in his oral history, he minimizes his own role as a source for The Brethren, saying “One of them did come in and talk to me a little. It was a very short interview.”[fn]Oral History at 292.[/fn] In fact, Blackmun’s own records show that he met with Armstrong at least twice, and that he looked into and was impressed by Armstrong’s background and credentials.[fn]See Memorandum from “sjb” to “Mr. Justice” (17 January 1978), in Blackmun Papers, box 1435 (“sjb” were the initials of Blackmun’s secretary, Shirley J. Bartlett).[/fn] His appointment book for 1978 shows meetings with Armstrong on Thursday, July 6, at 2:30P.M., and Friday, September 15, at 3:00 P.M., and notes added to a June 30, 1978, memorandum show the same two meetings.[fn]See 1978 Appointment book, in Blackmun Papers, box 61; memorandum from “sjb” to “Mr. Justice” (June 30, 1978), in Blackmun papers, box 1435; see also Becoming Justice Blackmun, 153.[/fn] Perhaps Blackmun misremembered the number of drafts he circulated in Flood, just as he misremembered the extent of his engagement as a source for The Brethren, including the number of times he met with Armstrong.
The Blackmun-versus-Marshall story is, however, more susceptible to proof or disproof than many of the stories in The Brethren, because the story stands or falls on the content of a document, not on the memory of a person, whether an anonymous source or a named Supreme Court justice.
Recall that in the long second paragraph of the passage from The Brethren quoted above, the authors describe in detail Blackmun’s preparation of his first draft, quoting from it twice, and concluding, “When he had finished, Blackmun circulated his draft.” It is this draft, they report, to which Stewart responded with a request that Blackmun add a Cincinnati Red, and to which Marshall objected on the ground that its list of “celebrated names” lacked African Americans. As Woodward and Armstrong explain in their introduction to The Brethren, “[w]here documents are quoted, we have had direct access to the originals or to copies,” including “unpublished drafts of opinions.”[fn]The Brethren, 4.[/fn] Thus, the quotes from the racially exclusive first draft must be from a document that the authors had in hand when they wrote the Blackmun-versus-Marshall story, not merely recitations from an anonymous source who told the authors what some document said. And thus there is no need to independently identify and corner an anonymous source—a practically impossible task, as aspiring story-checkers of The Brethren have learned.[fn]See, e.g., “Supreme Court Confidential”; “The Evidence of The Brethren”; David J. Garrow, “The Supreme Court and The Brethren,” 18 Const. Commentary 303 (2001); see also, e.g., Leonard Garment, In Search of Deep Throat, chs. 4 and 5 (2000).[/fn] All that is necessary to check the Blackmun-versus-Marshall story is to check the document—the draft Blackmun circulated without African-American players. If Blackmun circulated such a document, then Marshall’s reaction and Blackmun’s response are just about as plausible as the eminently believable story of Stewart’s request for the addition of a Cincinnati Red. But if Blackmun did not circulate such a document, then there also was never a reaction against it by Marshall, and thus no such racial dispute between the two justices in Flood.
No such document appears, or is referred to, in the other justices’ files. And four features of Blackmun’s papers show that whatever The Brethren was quoting from in the story of Blackmun versus Marshall, it was not a racially exclusive draft circulated by Blackmun. Thus, the Blackmun-versus-Marshall story in The Brethren is not true.
First, Blackmun’s Flood files contain two pieces of correspondence with Justice Potter Stewart which, taken together, reveal the logistical impossibility of a circulated draft predating the “5/5/72” “1st draft” in the papers of Douglas, Brennan, and Marshall. First, on March 20, 1972, Stewart announced his assignment of the opinion for the Court to Blackmun:[fn]Stewart had the privilege of assignment because he was the senior justice in the majority at the time.[/fn]
March 20, 1972
No. 71-32—Flood v. Kuhn
I have asked Harry Blackmun to undertake the writing of the opinion for the Court in this case, which, hopefully, can be a rather brief per curiam.
The Chief Justice
Copies to the Conference[fn]Memorandum from Justice Potter Stewart to Chief Justice Warren Burger (20 March 1972), in Douglas Papers, box 1561.[/fn]
Blackmun’s notes on Flood similarly indicate that when he made the assignment, Stewart did so with a request to keep it short.[fn]Handwritten note dated “3-20-72,” in Blackmun Papers, box 145, folder I (“PS [Potter Stewart] Asks me to PC [per curiam] this essentially along t[he] lines of Toolson & n[ot] too long”).[/fn] Six weeks later, Blackmun wrote to Stewart as follows:
May 4, 1972
Re: No. 71-32—Flood v. Kuhn
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. The 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.[fn]Memorandum from Justice Harry A. Blackmun to Mr. Justice Stewart (4 May 1972), in Blackmun Papers, box 145, folder 2.[/fn]
Thus, on May 4, 1972, Blackmun is warning Stewart that his draft opinion in Flood is an elaborate piece of work, more than the brief per curiam Stewart had suggested, and that it is at the printer—meaning not yet ready for circulation, but soon. The next day, May 5, 1972, Blackmun circulates the “1st draft” that can be found in the files of Douglas, Brennan, and Marshall. There would have been no point in sending the May 4 note to Stewart if Blackmun had already circulated a draft containing “somewhat extensive” background, including the list of “celebrated names.” If he had already circulated such a draft, then Stewart would already have known that he had “done more than merely follow Toolson with a bare peremptory paragraph.” But if there had been no earlier circulation, Blackmun might well have wanted to give Stewart a heads-up about the unexpectedly long (and surely unexpected in other ways, including the list of baseball celebrities) “1st draft” that was in the works. And he did.
Second, Blackmun’s papers reveal his perfectly consistent opinion-circulation and recordkeeping practices, which in turn reveal that the only opinions he circulated in Flood were the version labeled “1st draft” and “Circulated: 5/5/72” and the version labeled “2nd draft” and “Recirculated: 5/25/72.” Blackmun kept an “opinion log sheet” for every case in which he wrote an opinion for the Court or a substantial per curiam opinion. Each sheet begins with the name of the case and the case number at the top, and lists down the right-hand side of the sheet the dates on which the decision was announced and on which drafts were circulated (for the first draft) and recirculated (for subsequent drafts). The rest of the sheet is devoted to other data about the case, including the dates on which other justices joined Blackmun’s opinion and the circulations of concurrences and dissents by others. During the 1970–71 and 1971–72 terms—Blackmun’s first two terms on the Court, and the period preceding and including the drafting and announcement of his Flood opinion—whenever he circulated a draft opinion, he always recorded that circulation on the corresponding opinion log sheet.[fn]This is not to suggest that in later years he did not continue this practice. Rather, it did not seem necessary to go beyond the 1970–71 and 1971–72 terms for the purposes of this article.[/fn]
I have examined every piece of paper in every case file of every justice whose papers are open to the public for every case in which Blackmun wrote an opinion for the Court or a substantial per curiam opinion during the 1970–71 or 1971–72 term. In every case, Blackmun’s opinion log sheet corresponds perfectly to the circulated and recirculated drafts in those files.[fn]Compare Justice Blackmun’s opinion log sheets for the 1970–71 and 1971–72 terms, in Blackmun Papers, boxes 118, 133, with the corresponding case files in the papers of Justices Douglas (boxes 1507, 1511, 1516, 1518, 1542, 1543, 1545, 1547, 1549, 1551, 1561), Brennan (boxes I:233, I:236, I:239, I:240, I:244, I:246–I:248, I:257, I:258, I:259, I:261, I:263, I:265, I:267 ,I:268, I:273, II:3), Marshall (boxes 80, 81, 83-85, 87, 90, 91), Blackmun (boxes 120–22, 124, 125, 127, 129, 130, 134–40, 142, 145), and Powell (boxes 146-49).[/fn] And he was thorough. Consider NLRB v. Scrivener,[fn]405 U.S. 117 (1972).[/fn] like Flood a 1971–72-term case, in which his correspondence with Douglas reveals that Blackmun insisted on receipt of a formal “join” letter from Douglas so that his “records [would be] complete.”[fn]Memorandum from Justice William Douglas to Justice Harry A. Blackmun (16 February 1972) and memorandum from Justice Harry A. Blackmun to Justice William Douglas (16 February 1972) in Blackmun Papers, box 142. When asked recently about Blackmun’s papers, Justice Ruth Bader Ginsburg noted that “he was a great saver; he didn’t toss out anything.” “An Open Discussion with Justice Ruth Bader Ginsburg,” 36 Conn. L. Rev. 1033, 1042 (2004). This is not to say that he knew all, saw all, and accurately recorded all that he knew and saw—see, e.g., id. at 1042 (recalling that he mistakenly noted an advocate had worn a red dress at oral argument when in fact she had worn black)—but rather that his compilations of documents relating to particular cases can generally be counted on to be complete.[/fn]
The opinion log sheet for Flood v. Kuhn was no exception to Blackmun’s invariably comprehensive and precise record-keeping. It records the same opinions found in the files of the five justices whose papers are open to the public:
- “Circulated: 5/5/72”—the “1st draft” in the justices’ files.
- “Recirculated: 5125/72”—the “2nd draft” in the justices’ files.
- “Announced: 6/19/72”—the slip opinion in the justices’ files.
Like his NLRB v. Scrivener file, Blackmun’s opinion log sheet for Flood reflects his penchant for comprehensively accurate record-keeping: it includes a correction to the date of assignment, changing it from March 20, 1972 (the date when Stewart notified the Court that he had assigned the Flood opinion to Blackmun), to April 3, 1972 (the date on which the Court’s assignment list formally recorded Stewart’s assignment of the opinion to Blackmun).[fn]See Assignment List (3 April 1972), in Marshall Papers, box 75.[/fn]
Third, Blackmun’s Flood files contain a five-page document consisting of proofreading and cite-checking corrections to Blackmun’s Flood opinion, most of which are reflected in the ”1st draft.” The document is dated “5/4/72” and signed “JTR” (the initials of John Townsend Rich, one of Blackmun’s clerks at the time). Blackmun might have had a practice of circulating drafts of his opinions to the Court and only afterward enlisting his clerks to proofread and cite-check those opinions. Such a course would have been odd, even silly, and so it should come as no surprise that he did not operate that way. All of the evidence in his case files for the 1970–71 and 1971–72 terms indicates that Blackmun’s clerks squeegeed his opinions before the first circulation to the other justices, not after.[fn]See generally Blackmun Papers, boxes 119–31, 134–47.[/fn] And so Rich’s notes comport neatly with the timing of Blackmun’s May 4 note to Stewart warning him of the “somewhat extensive” draft of his Flood opinion that had just gone to the printer. Rich finished proofreading and cite-checking on May 4, Blackmun promptly reviewed Rich’s work and incorporated most of it, then sent the draft off to the printer and warned Stewart of what would circulate the next day—”5/5/72”—as the “1st draft” of Flood.
Fourth and finally, Blackmun’s files on the Flood case contain only the same three versions of his opinion that are available in the papers of Douglas, Brennan, and Marshall: (1) The version labeled “1st draft” and “Circulated: 5/5/72,” with a list of only seventy-four “celebrated names,” including Paige, Robinson, and Campanella; (2) the version labeled “2nd draft” and “Recirculated 5/25/72,” with twelve more baseball greats on the list, one of whom was Reds pitcher Eppa Rixey and none of whom was African American; and (3) the final slip opinion, with Berg and Foxx slipped in.[fn]See Blackmun Papers, box 145, folder 1.[/fn]
In sum, the evidence in Blackmun’s papers, combined with the evidence in the papers of Douglas, Brennan, and Marshall, leaves no room for the circulation of a segregated first draft of Blackmun’s Flood opinion. (Marshall’s papers, by the way, contain no hint of any dispute of any sort, racial or otherwise, over Blackmun’s list of “celebrated names.”) Consider the following:
- If the story in The Brethren were true, then Blackmun’s May 4, 1972, note to Stewart would not exist, because it reflects Blackmun’s knowledge that Stewart had not as of that date seen Blackmun’s “somewhat extensive” draft in Flood.
- If the story in The Brethren were true, then Blackmun’s opinion log sheet for Flood would be inaccurate, even though there is not a single instance in any case from the 1970–71 or 1971–72 terms in which a Blackmun opinion log sheet is inaccurate about any circulation of any draft of any of his opinions.
- If the story in The Brethren were true, then Rich would have proofread Blackmun’s first circulated draft in Flood after that draft had circulated, even though there is not a single instance in any case from the 1970–71 or 1971–72 terms for which a proofread has been preserved where a Blackmun clerk engaged in such nonsensical behavior. They proofed before circulation, not after.
- If the story in The Brethren were true, then not a single Justice whose files are open to the public would have saved the racially exclusive draft reported and quoted in The Brethren, even though every one of them who participated in the case saved every other draft.
- If the story in The Brethren were true, then the Blackmun opinion in the Justices’ files labeled “1st draft” and “Circulate: 5/5/72” that includes the three great African American players would have been labeled “2nd draft” and “Recirculated,” because it would have been preceded by the segregated draft from which Woodward and Armstrong quote. But there already is a version in each of those files labeled “2nd draft” and “Recirculated”—the one dated “5/25/72” that features only a few additional white players, including Eppa Rixey, the Cincinnati Red.
The bottom line is that Blackmun’s first circulation in Flood was the “1st draft” dated “5/5/72” that appears in all of the justices’ files and that contains the names of seventy-four baseball celebrities, including the great African American players Satchel Paige, Jackie Robinson, and Roy Campanella. Blackmun did not circulate a racially exclusive draft. It follows that any story about Marshall being offended by such a draft is wrong, because the basis for such a story—the circulated draft opinion—does not exist. Marshall and Blackmun certainly had disagreements on matters of race at the time,[fn]See, e.g., Palmer v. Thompson, 403 U.S. 217 (1971); Palmer v. Thompson, 1st Draft at 3 (29 April 1971) (Blackmun, J., concurring), in Blackmun Papers, box 124, folder 10; Becoming Justice Blackmun at 67–68; see also Deborah C. Malamud, “Intuition and Science in the Race Jurisprudence of Justice Blackmun,” 26 Hastings Const. L.Q. 73, 84–88 (1998); Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton, 230–33 (rev. ed. 1999).[/fn] but the integration of Blackmun’s list of baseball celebrities in Flood was not one of them.
* * *
The fact that The Brethren contains inaccuracies should come as no surprise. No lengthy study of the Supreme Court or any other subject is (or likely ever will be) entirely accurate. Authors err. So do archivists, researchers, editors, typesetters, printers, and webmasters. Paper and electronic records can be incomplete or inaccurate. Human sources can be mistaken or misleading. And new discoveries can alter or destroy what were once perfectly reasonable understandings of history.
Finding each other’s inaccuracies and misinterpretations and bringing them to light is a service that historians provide to each other, to their subjects, and to the public. This kind of work involves reassessing existing evidence or combining new discoveries with that evidence to present a different—and, the revisionist hopes, more accurate—picture of the past. The Brethren is a hard case, because much of its evidence is inaccessible. Its sources are anonymous and confidential.[fn]This approach to studying the Court has shown signs of enduring popularity in recent times. See, e.g., Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court 321–22 (2007); Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court 342 (2007).[/fn] That means there is no way for later students of the Court to return to that evidence, to reassess it, to combine it with new discoveries in order to improve our understanding of the Court. As Professor Walter Murphy observed in a review of The Brethren, “The scholar, of course, longs to see the full documents and to hear the tapes of the interviews, not only to check the accuracy of the authors’ work but also to test other ideas.”[fn]Walter F. Murphy, “Spilling the Secrets of the Supreme Court,” Washington Post Book World, 16 December 1979, at 10. Scholars should be cautious, however, about exaggerating the importance of source-transparency in their work. Plenty of important and reputable scholarship generated
in the academy shares The Brethren’s source-opacity. Consider, for example, John W. Kingdon’s highly regarded study of decision-making in the executive and legislative branches of the federal government, Agendas, Alternatives, and Public Policies (2d ed. 2003). Kingdon’s book is based largely on interviews with “many congressional staffers, administration appointees, civil servants, lobbyists, journalists, researchers, and consultants” conducted during the late 1970s—the same period in which Woodward and Armstrong were doing their research for The Brethren. “I guaranteed [the interviewees] their anonymity,” writes Kingdon, “so cannot acknowledge their help by name. But this book could not have been written without their generous cooperation.” Id. at xvii, 232–33. Just like The Brethren. See also, e.g., Bennet Boskey, “Justice Reed & His Family of Law Clerks,” in Bennett Boskey, Some Joys of Lawyering, 14 n. 4 (2007) (observing “that the claims of history, journalism, and biography strongly press against principles of privacy, confidentiality and ethics. There is not always a simple answer to questions of how much should be published how soon.”).[/fn] Woodward and Armstrong’s approach surely enabled them to uncover many true stories that would otherwise have remained hidden, at least for a time, but it also disabled others from building on their work, at least in the conventional cumulative and synthetic senses. But at the very least, we can still compare a story presented in The Brethren with a story based on existing public records and new discoveries, and weigh their merits.
Which brings us to the questions suggested earlier in this article: What document were Woodward and Armstrong quoting from? Where did it, and the story of Marshall’s objection, come from? And did the source or sources for Blackmun-versus-Marshall contribute to any other stories in The Brethren? We are unlikely to learn the answers to these questions unless Woodward and Armstrong’s research files for The Brethren are opened to the public, as Woodward and Carl Bernstein’s files for All the President’s Men and The Final Days have been at the University of Texas, with files involving each confidential source remaining sealed until the source’s death.[fn]See The Woodward and Bernstein Watergate Papers: About the Papers, available at http://www.hrc.utexas.edu/exhibitions/web/woodstein/about/ (last visited 20 April 2008); Lee Hockstader, “Watergate Papers Sold for $5 Million,” Washington Post, 8 April 2003, at C1; see also, e.g., Bob Woodward, The Agenda: Inside the Clinton White House, 12 (1993).[/fn] For The Brethren, that is unlikely to happen anytime soon. After all, nearly all of the sources for the book spoke to Woodward and Armstrong on condition of anonymity.[fn]The Brethren at 3–4.[/fn] Many of them were young at the time and are likely to be relying for their livelihoods and social standing on their lawyerly reputations for discretion and confidence-keeping for many years yet. It may well be that Woodward and Armstrong would prefer to endure whatever small doubts might be raised by this article rather than break their promises to the source or sources of the Blackmun-versus-Marshall story.[fn]See Cohen v. Cowles Media Co., 501 U.S. 663 (1991); but see “The
Evidence of The Brethren.”[/fn]
In the meantime, the careful reader of The Brethren might consider, on the one hand, that respected observers of the Court have concluded that “[t]he accounts in The Brethren are factually accurate on nearly every point”[fn]Making Constitutional Law at viii.[/fn] and “in many instances, Blackmun’s case files attest to its accuracy,”[fn]Becoming Justice Blackmun at 254.[/fn] and, on the other hand, that in at least one instance—the story of Blackmun-versus-Marshall in Flood—the book is not accurate. For students of the Court, then, perhaps the best approach to The Brethren for the time being is the one to which President Ronald Reagan treated President Mikhail Gorbachev: Trust, but verify.[fn]William Safire, “Nyet Problemy on Snow Jobs,” New York Times,
3 January 1988, § 6, at 6 (Reagan: “Though my pronunciation may give you difficulty, the maxim is doveryai no proveryai. ‘Trust but verify’”).[/fn]
Editor’s Note [by Clare Cushman, managing editor, Journal of Supreme Court History]
Ross Davies, the author of “A Tall Tale of The Brethren,” sent a draft of the article to Bob Woodward and Scott Armstrong in September 2007, along with an invitation:
The enclosed article (which is scheduled to appear in the spring issue of the Journal of Supreme Court History ) suggests that one passage in your book, The Brethren, is not accurate. If I have gone astray in any way, I would be grateful to hear about it from you before we go to press. Also, I am told by the editor of the Journal that she would be happy to consider printing a reply from either or both of you.
I sent a follow-up invitation of my own to Woodward and Armstrong early in 2008, and postponed publication of the article to our summer issue in order to give them plenty of time to draft a reply. Armstrong expressed an interest in replying, but in the end nothing was forthcoming from either him or Woodward. It would have been nice to include their perspective here and now, but it appears that we will have to wait for a later issue of this Journal, or for another forum.
This article was published originally in the Journal of Supreme Court History 33, no. 2 (July 2008): 186–99. Thanks to Adam Bonin, Bennett Boskey, Ofemi Cadmus, Susan Davies, Vincent Gaiani, Suzanne Garment, David Garrow, Paul Haas, Dennis Hutchinson, Anthony Lewis, G. Edward White, Diane Wood, participants in a Robert A. Levy Fellow Workshop, and the George Mason Law & Economics Center.
ROSS E. DAVIES is professor of law at George Mason University and editor of “The Green Bag: An Entertaining Journal of Law.”