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Davies: Debunking Supreme Court Myth

Professor Ross Davies believes his research has debunked a long-held belief that the late Supreme Court Justice Harry Blackmun exhibited racial insensitivity in constructing the famous 1972 decision in Flood v. Kuhn, better known as the baseball antitrust decision.

Blackmun's decision contains a preamble listing those he believed to be the best players in baseball's history.  The Brethren,  a best-selling book published in 1979, maintained that Blackmun's original draft omitted mention of any black players and was amended only at the suggestion of Justice Thurgood Marshall to include several celebrated black ball players.

"The story is false," says Davies in an article currently appearing in the Journal of Supreme Court History entitled "A Tall Tale of The Brethren." Carefully researching Blackmun's files archived at the Library of Congress, Davies' considered opinion is that the supposed draft omitting the names of the black players "does not exist and never did." He concludes, "There was nothing [for Marshall] to object to."

Law Professor Challenges Tale About Blackmun and Race, Law.com, July 21, 2008. By Tony Mauro.

Excerpt:
"'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."

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