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Hugo Black, the former U.S. senator among the justices. Warren asked Black to add the “so far as” clause “to make it clear that Congress has the right to regulate baseball if and when it desires to do so.” Neither Black nor the other six justices in the majority objected to Warren’s addition, which helped transform Holmes’s opinion into an express “exemption” for baseball.
    But, as Justice Harold Burton wrote in his eight-page dissent, Congress passed the Sherman Act without saying a word about baseball. The Court was the institution that claimed baseball did not have a sufficient impact on interstate commerce. Justice Holmes’s decision also was based on an antiquated conception of interstate commerce, which the Court expanded dramatically in upholding the constitutionality of President Roosevelt’s New Deal programs. Baseball in 1953 was obviously interstate commerce, given its radio and television revenue and extensive network of minor league teams. If the Court’s prior decision was not wrong in 1922, it was definitely wrong now. Only Stanley Reed joined Burton’s dissent.
    Toolson also made it possible for baseball to enforce the reserve clause. Before and even after Federal Baseball , lower courts had been reluctant to enforce the reserve clause because the contracts were so one-sided against the players. Toolson , by redefining Federal Baseball , further insulated the reserve clause from legal challenge.
    As Miller explained, Flood’s chances of defeating Federal Baseball , Toolson , Oliver Wendell Holmes, and stare decisis —just to get to the issue of whether the reserve clause was illegal—were basically slim to none.
    Miller was not a lawyer, but as an economist he was well versed in antitrust law. He also relied on the opinion of his general counsel, Dick Moss, who had examined all the relevant cases since Toolson . A former assistant state attorney general for Pennsylvania, arbitration lawyer from the Steelworkers’ legal department, and diehard Pirates fan, Moss had applied for Judge Cannon’s position as part-time legal counsel in 1959. A brash 35-year-old Harvard Law School graduate, Moss was fire to Miller’s ice. He played the role of attack dog, while Miller often stayed above the fray.
    With Moss sitting beside him, Miller explained that since Toolson several Supreme Court decisions had cast doubt on the logic of Federal Baseball . The Court had abandoned Federal Baseball ’s limited definition of interstate commerce in refusing to extend antitrust exemptions to theatrical performances, professional boxing, and professional football. The Court’s 1957 decision in Radovich v. NFL acknowledged that Federal Baseball “was at best of dubious validity.” Nor was there any reason why baseball deserved an exemption but football did not. “If this ruling is unrealistic, inconsistent, or illogical,” a six-justice majority said in Radovich , “it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts.”
    But even if the Supreme Court agreed to hear the case and miraculously decided to reverse Justice Holmes, abandon stare decisis , and wipe out its two hallowed baseball precedents, Miller predicted, Flood would still lose. “It’s a million-to-one shot, but even if that million-to-one shot comes home, you’re not going to get any damages,” Miller said. No trial court in America was going to award damages retroactively to a ballplayer making $90,000 a year under player contracts and trades that had been deemed legal by the Supreme Court for nearly 50 years. A win at the Supreme Court still meant a loss for Flood.
    â€œBut it would benefit all of the other players and all the players to come, wouldn’t it?” Flood asked.
    Miller said it