Professor Walter F. Murphy: The trouble between negotiation in the usual sense of the term and the way in which the word may be applied to describe the process of securing an agreement within the Court, I wonder if you might elaborate a bit on that point.
Justice William 0. Douglas: Well, there's no one way of going about the problem of getting a majority behind a particular opinion. Sometimes when the diversities of points of view are obvious from the conference discussion, the man who is assigned the opinion by the senior judge in the majority knows that he has a difficult task. So in that case what he often does is to write out his views and send the copy to the printer and circulate it to those who voted his way, a memorandum on the matter, a memorandum which is perhaps in the form of a full-fledged opinion or a memo that may cover in summary matter some of the more salient points, there, where the differences have expressed themselves. That is very often done. That's done, oh, maybe six, eight, ten, twelve times a year. And then when the writer of the opinion or the memorandum hears from those who voted his way, he may have found a solution. He may be able to make revisions, deletions, additions that will keep the group together or he may end up hopelessly. It may end up with him having just one or two or three for his memorandum. In which event he may bring the case back to the conference and state that he has not been able to obtain a majority. At that time the opinion may be reassigned by the judge who originally assigned it. There may have been some changes in other members of the Court, changes in their views on further reflection. He may bring it back to the conference or he may just circulate an opinion, a draft opinion, or a memorandum to the conference. In that, the result may be to get a splintered Court. We've had opinions in which only one other member has joined, or two or three other members. We've had splits of that kind because of the different paths that different judges employ to reach a goal. And the conflict between them as respects the reason, the reasons of one being wholly unacceptable to the reasons of another, those are matters that sometimes take many, many weeks exploring, discussing, submitting new rewrites of a paragraph or a page, getting, asking a judge who has a disagreement to put in his own words the way he would express it. And sometimes after those have been rewritten two or three times, perhaps there can be a consensus. The search is for at least five who can make a majority, or in case seven are sitting, four. And usually we are successful but sometimes it's impossible. That's about all I think I can say on that.
Murphy: Well, I was, I just have two minor questions, or one minor question and one other, if I may follow this up. First of all, is it normal practice to circulate this majority memorandum or draft opinion to the members of the minority as well?
Douglas: Not in the kind of case that I am talking about. If, sometimes a judge writes an opinion on which he thinks he has a clear majority and he writes it as he remembers the conference discussion but it ends up that he may have only two or three for that particular set of reasons. So those differences sometimes develop. Sometimes those differences develop as a result of a dissent that has circulated. Those who voted for the majority are somewhat shaken or they think that the reasons they had in mind are not sound ones. So they have to start fresh on it. So many times the, usually I would say the circulation is through the entire Court. When the circulation is to the, just a select group of the Court, it is when the judge knows that he is on very tentative ground. He is dealing with a very tentative majority. The reasons are very diverse for them being together or some of them are only reluctantly in the majority or tentatively in the majority. When he knows that, then he circulates to that restricted group. And that, as I say, happened maybe six, eight, ten, twelve times a term, but usually the circulations are across the board to all members of the Court.
Murphy: The other question rose out of some of the reactions to Alpheus Mason's biography of Stone which several people that I know of thought of as unethical, for judges to do precisely this. It seems surprising to me because I would think that as long as you had more than one judge on a court, that it was inevitable you would have to have some give and take. I assume this is your view as well, is it not?
Douglas: Oh, yes. One of the reasons that judicial opinions are sometimes so opaque or irrational perhaps, in the sense of not being logical development structurally, is because of the patchwork that goes into their creation, satisfying this judge, getting a majority by putting in a footnote, striking out a sentence that would have made a paragraph lucid, and it becomes opaque. This is also one of the reasons why judicial opinions, except dissents, are usually very poor literature.
Murphy: All right. Thank you very much. Let's move on to the next one. You sat with Justice Reed during all but a few months of his entire judicial career. And I notice now that you are. Oh no, you're in Justice Frankfurter's office. I was thinking you had moved to Justice Reed's office.
Douglas: Justice Reed occupied that office I am in now before Frankfurter.
Murphy: Oh, did he?
Murphy: Maybe that's where I got the idea from. I wonder if you would give your estimate of Reed as a man and a judge.
Douglas: Stanley Reed was probably the nicest person who ever sat on our Court, nicest in the sense of being the most polite, the most considerate, the best mannered, the most even-tempered judge I think in the twenty years that I was with him on the Court. I only saw him upset with an excited voice, or a flushed face only once. He was just about the politest person, the best humored, the most gracious man that has ever sat on the Court, at least among those that I knew. He was a very able man. He was a very, very good lawyer. He was a man like everybody else, with a very definite bend, inclination, a very definite set of prejudices and like everybody else, he catered to those prejudices in all of his work. He was more frank and honest about it, I think, than men like Frankfurter who always was protesting that he would like to go the other way but the law prohibited him from doing it. Reed, I think, was more honest in his discussions about it. He just frankly was for the kind of society in which the rough and tumble speakers didn't have much of a chance, where a society was more on the, run by the people, the properly-dressed, properly-behaved people. I suppose it was a reflection perhaps of his southern upbringing but a person, of course, doesn't need to come from the South to have that philosophy. It was, he was very close in that respect in many essential ways to McReynolds, although he was a much abler man than McReynolds. But he was, in the terms of personal liberties, he was strangely conservative, strangely conservative because all of his decisions on the First Amendment, the Fourth Amendment, and the Fifth Amendment were decisions that continued to surprise me because they didn't seem to be in keeping with the character of the man. But they were in keeping with his character. And I think he believed in that kind of a life and society and he lived, he lived the ethic that he believed in. Reed was a very good craftsman. He was a very, very hard, conscientious worker. He was, as I said, very, very, very friendly. He was a perfect host in his home and anywhere else where he was entertaining. When Stone died, some of us thought that Reed might be Chief Justice. I think he was rather ambitious for it. I think that he would have been a very good Chief Justice, very fair-minded in his relations among the members of the Court, very efficient in his management of the building and the grounds of the Supreme Court, which, of course, is one of the responsibilities of the Chief Justice. I believe that the story that he was ambitious to become Chief Justice was known to Frankfurter. And Frankfurter saw to it that Reed was not Chief Justice because Reed and Frankfurter were very, very, very close together intellectually speaking, but they, Reed was a much more honest man. And I think that perhaps subconsciously Frankfurter, conference after conference, day after day, week after week, term after term, sitting there and seeing the, in Reed, the embodiment of the thing that he, Frankfurter, really was, became more and more incensed and aroused and opposed and antagonistic towards Reed. Because he was very vitriolic to Reed in conferences, scathing remarks that nobody would stand for. They never even ruffled Reed. He would just, he would smile and bow and be very gracious and take all the vitriol that Frankfurter would pour on him, Frankfurt making all sorts of denunciations of Reed as a stupid man, as a dishonest man, and so on. I think that Reed and Frankfurter actually were so close together philosophically and, but that Reed became somewhat of a living symbol of Frankfurter's subconscious, at least of the thing that he, Frankfurter, was, and therefore, I think in some curious way blocked the worst side of Frankfurter out, which was sort of a gossipy, evil person out of control of his conversation, making all sorts of accusations. Reed was his main target of denunciation in the twenty years I sat with him on the Court together.
Murphy: I was wondering, one point I think I had begun to mention earlier, that in Ullmann v. United States, the immunity case in 1956 where you wrote a dissent, you remember Ullmann was offered the congressional immunity, eh, the immunity under the new congressional statute. And Frankfurter wrote the majority opinion in which he had a small statement that, almost an intuitive statement, denying the preferred freedoms doctrine, which you and Black and Stone and Murphy and Rutledge had espoused, and at times Jackson espoused, in the 1940's. And I notice that Reed, although he had dissented in almost every one of the Jehovah Witness cases in which this doctrine had come up, that even though he joined the majority he appended a one sentence statement, that he joined the majority decision and opinion except insofar as it denied the existence of preferred freedoms, and cited Murdock v. Pennsylvania in the other cases. I always thought that was a rather curious quirk on his part. That having voted against it --
Douglas: Yes, that was a typical Stanley Reed reaction. Because he was, above everything else, honest. Whether he believed that the freedoms were preferred or whether he thought that they weren't preferred, in view of the fact that the Court in a series of decisions had treated them as preferred rights, honesty in Stanley Reed demanded that he say so, and not or at least not say the opposite.
Murphy: If we could skip to a very different problem or question. Rex Tugwell has said in several of his books that his arch opponent in the early days of the New Deal was Justice Brandeis and Tugwell claims that Brandeis was constantly pushing his own economic views. Now these views were directly counter to Tugwell's. I wonder, in your experience in the Executive Department, if you saw any evidence of this.
Douglas: Well, of course, the Brandeis philosophy, basic philosophy in the field of economics and business, was opposed to the type of philosophy that Tugwell and others were promoting and fashioning into the NIRA. Brandeis was a, as revealed in his writings, was a man, an anti-monopolist, a man who believed in the free-enterprise system. He, at times, in his opinions as in the new state ice (?) case from Oklahoma, in Volume 285, I think it is, set forth in a dissent what evils of competition sometimes can become, how devastating they can be. In that case he was in favor of a constitutionality of an Oklahoma act which required manufacturers of ice to get a certificate of public convenience and necessity from the state. He was not a, Brandeis wasn't a dogmatic person, he was one of the ablest men I have ever known. He was, he would be making his decision if he was going by reason of his experience, background, and training, prejudice, if you like, on the side of competitive industry rather than on the side of monopoly. And the things like NIRA would upset him greatly. It would just be going the wrong way, it would be towards, towards centralization, towards monopoly, towards the creation of all sorts of restraints of trade, the curbing of competition. And he would, I know that from personal conversations with Brandeis at the time, he was very, very, very much against NIRA as a matter of political philosophy. I never talked to him about the constitutionality of the Act. It was unanimously struck down by the Court in the Chepter cases as an unlawful, unconstitutional delegation of legislative power and I think that any court that has ever sat would hold unanimously that the NIRA was an unconstitutional delegation of legislative power, that is the grant of legislation to a private group. But whether they were monopolists or whether they were people who believed in free enterprise like Brandeis, I think it was something that was formed to the system of government that we have under our Constitution. But I don't know too much about the Tugwell-Brandeis argument and difference except that I do know that Brandeis was very much opposed to that kind of experimentation.
Murphy: Fine. I wonder if you know anything of the background of the appointments of Justices Clark and Minton.
Douglas: Well, Shay Minton knew Truman. Shay Minton had been in the Senate. He was a member of the Truman Committee in the Senate and he was a member of the Truman Subcommittee. And that Subcommittee was composed of Truman, Minton and Harold Burton. There may have been others also. But those three were the chief members and they went around the country investigating war efforts, manufacturers, and so on. Their activities were very well known. The activities of their Committees have all been published so it was on the basis of that background that Truman and Minton became very, very close friends. Sherman Minton in those days had his full health. He was very vigorous, active. He liked to take a drink. He enjoyed smoking-room stories. It was conventional for, sort of a standing joke, for Minton once they got their bags at the airport on coming to a new town, to turn to Truman and say, "Harry, shall we go to the hotel and check our bags or go straight to the whorehouse?" This was rough and tumble warmhearted, wonderful Shay Minton, who had a very keen bawdy sense of humor, greatly loved by everybody who knew him, one of my very, very close friends for many, many years. And when there was a vacancy on the Court, Shay Minton, who was then on the Court of Appeals in the Second Circuit, got on a train or a plane, came to Washington, walked into the White House and said, "Harry, I want that job an the Supreme Court." And Harry said, "Okay, I'll give it to you." It's just as simple as that. As to Tom Clark, the story is a little more complicated. The man who was Solicitor General at the time was Howard McGrath, Howard McGrath from Rhode Island, a very wealthy man, a man who was very deep in Democratic politics. He was a man who didn't enjoy much being Solicitor General. He didn't have the hallmark of the scholar, of the lawyer on him that the Solicitor General really should have. He was a good, conscientious man. He made some good arguments but he was not by any means the most brilliant Solicitor General that we had. I'd say he was more or less on the pedestrian side. Howard McGrath was very anxious for the vacancy on the Court. He worked very hard to get it. And he thought that when he was summoned to the White House that he was summoned to be offered the job. And his impressions were confirmed when he walked into the waiting room and there was Tom Clark, the Attorney General. Because he was sure that Truman was offering him the job and that he had the Attorney General there merely to give the Attorney General instructions to send up Howard McGrath's name. So when they walked in, Howard McGrath was the most surprised person in the world when Truman said, "Tom, I'm sending your name up to the Supreme Court, and Howard, you're going to be Attorney General." McGrath was so upset that he refused to accept the offer of Attorney General. He said he couldn't do it. And they had a long argument and discussion about it and by the time McGrath left the White House he had promised not to become Attorney General but to think it over. This was a very great disappointment in his life. The greatest one I think. He later accepted and served for a little while. Tom Clark was promoted by Sam Rayburn. How close Tom Clark and Truman had been up to that time, I don't know. They knew each other, of course, very well and very intimately. But I think it was Sam Rayburn who, through whom Tom Clark's friends worked to get Harry Truman to name him to the Court.
Murphy: I wonder if you might describe the conference discussion and votes on Dennis v. United States, 341.
Douglas: The Dennis case came up for a conference discussion on the ninth of December 1950. The conference discussion was rather short and brief. The Chief Justice, who was Vinson, spoke, oh, I would say less than a minute and said merely that he would affirm. And Black who was next said that the ''clear and present danger test" was not satisfied and he reversed. And Reed without hardly any comments said that he would affirm. Frankfurter went into some length into the consideration of the history of the "clear and present danger test," whether it was a question for the court or for the jury and stated that the test was not very well understood, even by members of the court, with the exception of Frankfurter, and so on. I indicated that I agreed with Black on the reverse. Jackson felt that the United States could protect itself against that kind of activity because of its inherent dangers without representing the "clear and present danger test." But at the time he spoke he said he wasn't quite ready to vote. Harold Burton stated that it wasn't the "clear and present danger test" that was applicable. It was a "clear and probable danger test" that was applicable. And that he personally could take judicial laws that there was a clear and probable danger that the communists would take over and that therefore he would affirm. Sherman Minton summarily said that he would affirm. So there really was very little discussion of the whole problem. It was exposed in the opinions that were later announced. But before the conference discussion ended there was a vote on the part of Jackson to affirm and Frankfurter to affirm. Clark took no part. So it was, by the end of that conference, it was six to two to affirm. I believe that's the way it came out in the end.
Douglas: I think the other things can --
Murphy: The steel-seizure case of 1952 has gone down as one of the great, great cases in constitutional law. Would you discuss it?
Douglas: Well, the conference discussion was a rather lengthy one. That was a conference held on the sixteenth of May 1952. The Chief Justice was Vinson. He spoke at great length. The next speaker was Black who spoke at great length. Reed spoke at great length. In this case, even Sherman Minton, who very seldom said anything at conferences, I mean in terms of extended discussion, spoke at great length. The vote at the conference was I think the same as it was at the end. Minton, Reed, and Vinson decided that the President had the power. They voted to reverse. The other six voted to affirm. There was no change in opinion during the conference as I recall nor afterwards. At a later conference it was decided that in view of the importance of the case, the, we should try, of course, to have an opinion, a Court opinion but that each judge if he wanted to should write his own views out in addition to the views of the judge who was writing for the Court, namely, Black. It happened, that happened as a result of some luncheon discussions and discussions at later conferences. Chief Justice Vinson did feel very, very strongly about the case. He was a bulldog kind of a person who hung onto his own view as most of us do. But he was also a great advocate for his point of view and did express himself on many different occasions in the confidences of the Court, about how unwise the Court was acting and what a great injustice this decision would render. He didn't bring his powers of persuasion to bear on me. I imagine he did though on people like Tom Clark and Harold Burton, who were Truman appointees. But the majority that was formed at the conference on the sixteenth of May 1952 was the same majority that handed down the opinion.
Murphy: In his article on the steel-seizure case in Volume 53 of the Columbia Law Review, Professor Corwin asserted that Justice Black proved too much. That is that the President's action in seizing the steel mills was unconstitutional because Congress had exclusive power to order or authorize such a seizure. Then Congress must also have had exclusive authority to order the return of the mills. I wonder how you would meet Corwin's criticism.
Douglas: That criticism is a little out of line with the history of the assertion of judicial power in American history. Because if an executive seizes a man and is about to execute him, habeas corpus issues even though Congress could by remedial legislation provide for the arrest and conviction of men who did things like that particular person did. What the role of the judiciary is in this country under the Constitution has been pretty well settled since Marbury v. Madison and the judiciary has undertaken to undo as far as it can unconstitutional acts whether by Congress or by the Chief Executive or by a state judge or a state legislature. So I don't think that there is anything inconsistent with what the Court did there with the American tradition of the role of the judiciary maintaining the balance in the system.
Murphy: If I can just, knowing Corwin's point on this if I can just pursue it a bit. He would say that in the example you gave, for example, that both courts and Congress and the executive traditionally had had each a share in the punishment of criminals. But that Black's opinion in the steel-seizure case asserted that this area was one exclusively under Congressional jurisdiction. That Article I put this authority completely under the control of Congress. Therefore, Corwin would say it would differ from the traditional area of jurisprudence.
Douglas: Well, of course, that isn't true either because all property cases involving constitutional claims have had a large degree of judicial protection. Is the taking for a public purpose? Is the compensation paid adequate? Can they take before they pay, or must they pay first? Is this the taking? All those questions are involved, we come down to just another facet of an old, old problem, the protection of property under the constitutional system, in which the judiciary has played a very important role.
Murphy: Right. And you would say that this is exclusive only in the sense that the President does not share with Congress except in signing the legislation but not exclusive in the sense as precluding the courts from overseeing the protection of these rights.
Douglas: Well, that's the traditional role of the court in both its respects, personal rights, civil rights of individuals, and the rights of property owners.
Murphy: Fine. I wonder if we might pose another criticism of the steel case with a more general one.
(END CASSETTE NO. 12)
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