Radovich v. National Football League/Dissent Frankfurter

Mr. Justice FRANKFURTER, dissenting.

The difficult problem in this case derives for me not out of the Sherman Law but in relation to the appropriate compulsion of stare decisis. It does not derive from the Sherman Law because the most conscientious probing of the text and the interstices of the Sherman Law fails to disclose that Congress, whose will we are enforcing excluded baseball-the conditions under which that sport is carried on-from the scope of the Sherman Law but included football. I say this, fully aware that the Sherman Law's applicability turns on the particular circumstances of activities pursued in trade and commerce among the several States. But whether the conduct of an enterprise is within or without the limits of the Sherman Law is, after all, a question for judicial determination, and conscious as I am of my limited competence in matters athletic, I have yet to hear of any consideration that led this Court to hold that 'the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws,' Toolson v. New York Yankees, 346 U.S. 356, 357, 74 S.Ct. 78, 98 L.Ed. 64, that is not equally applicable to football.

But considerations pertaining to stare decisis do raise a serious question for me. That principle is a vital ingredient of law, for it 'embodies an important social policy.' Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604. It would disregard the principle for a judge stubbornly to persist in his views on a particular issue after the contrary had become part of the tissue of the law. Until then, full respect for stare decisis does not require a judge to forego his own convictions promptly after his brethren have rejected them.

The considerations that governed me two years ago in United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290, have not lost their force by reason of the authority that time gives to a single decision. And so I am confronted with the Toolson case, supra, which guides me to find the present situation within its scope, and the Boxing case, supra, which, while it looks the other way, left Toolson as a living authority. Respect for the doctrine of stare decisis does not yet require me to disrespect the views I expressed in the Boxing case.

I would affirm.