Professor Walter F. Murphy: At our last session we talked about the division within the Court on the school-segregation issue. What positions did Reed, Frankfurter and Clark take when the question, on the nature of implementing the order was discussed at conference? This was in 1955.
Justice William 0. Douglas: The various members of the Court were united in trying to get a unanimous opinion and a unanimous vote behind a decree. The problem was discussed at some length. Some thought that these suits were real class suits and that the decree should be broadly written. Others thought that the (inaudible) should be restricted to the named plaintiffs. The three Justices you mentioned, Reed, Frankfurter and Clark were in most respects close to the consensus of the conference. They, Reed, thought that the decree should give the school boards the right to proceed with all convenient speed, as he stated it. Clark said at the conference that he didn't think that Texas was going to present many acute problems. He did express the view that Texas, the people would never allow white students to sit under a colored teacher. He was one of those who wanted any speed to be very slow because of the resistance in the South. Frankfurter held pretty much the same view. He said that he thought that the attitude of the South was a fact to be taken into consideration as much as any of the administrative difficulties arising as a result of the decision to integrate. Prior to Brown v. The Board of Education, Frankfurter had consistently voted that we should not take any of these cases that presented the issue of the validity of a separate but equal doctrine. He was, he was quite consistent in all his votes prior to Brown v. The Board of Education, trying to avoid a major decision by the Court in this field. At this conference on the sixteenth of April 1955 on the implementation of the Brown decision, he explained his previous votes. He said that he filibustered for years in the conference for fear that the case would be decided the other way. If that is true he was less then frank with the conference at the time. He never had any regard for Vinson. He thought that Vinson, which was probably true, would have voted the other way. But Frankfurter in the earlier conferences concerning the segregation problem was, seemed to be filling the role, not of a statesman so much as a man who was frightened and timid and reluctant to walk up to an issue that would displace the ancient institution of segregation in the South. But it was interesting at this conference, on the sixteenth of April 1955, he explained to the conference that while he was willing to make a decision all along, he was just playing a role of a statesman who thought filibustering was in the public interest under Vinson. I don't think that that was really the truth of the matter. I don't think that Frankfurter was intellectually honest and would take that position. I think it was a position that the records in the previous cases show a man who was very frightened, very uncertain, very unsure, very hesitant to walk up to the major issue of the racial problem of our times. But his emphasis in this conference on April sixteenth 1955, as I recall it, was for slow speed, not haste, for accommodation for a decree that wouldn't jolt or excite or disturb anyone in the South. His position was that the force of the Brown decision was largely educational and that not much could be accomplished through the writing of decrees. But the, I don't think he represented the consensus. He went along with the decree that was later written. I think that the consensus was that a decree that was firm and unequivocal was a very important factor in getting the changes in the institutional scheme that had been invented in the South and that while it couldn't be done overnight, the ancient chancery phrase "with all deliberate speed" was the appropriate one for this occasion.
Murphy: I was wondering, do you remember also offhand what position perhaps Justice Black took on this? Was he one of those who thought of this as a genuine class action or wanted a more definitive decree?
Douglas: Black felt that there should be a unanimous action. He was willing to go along with almost anything that would produce unanimity. He would leave pretty much the decree, pretty much to the lower courts. He thought that we should not write any official opinion but just enter a decree. He expressed at the conference the view that he didn't think that there would be any federal judge in the South who would go along and back up a vigorous decree. History proved Hugo Black to be wrong on that. Because one of the greatest demonstrations of adherence to the law had been made in the South by southern federal judges who, by and large, had hewed right to the line and enforced the law with vigor and fairness. He, in the main, was inclined to restrict the relief only to the named plaintiffs and not to extend it to the whole class. His main difference from the conference was to have no opinions but just a decree, and to have a short decree leaving the matter largely in the discretion of the district judges, federal district judges, in these various areas.
Murphy: I wonder, do you recall what position you took on this?
Douglas: My position was that we should have an opinion, that we should have a decree, that the decree should be limited to the main plaintiffs, that the decree should require prompt compliance with our decision. I think by the end of the discussion the consensus was that the phrase "all deliberate speed" was the appropriate one to use and that was the one that was used.
Murphy: Do you remember, offhand, by the way, who suggested that particular chancery phrase? It's one I heard that Frankfurter has used in number, or had used in a number of opinions previously. It was one that Holmes used to like.
Douglas: Yes. I don't know. Of course, it came into the argument. I believe in the conference discussion that it was Reed who, who made the point explicit. I think his words in conference were "with all convenient speed.'' I think that was the phrase that he used. I think he was the first in the conference discussion to phrase it in that way, although the, from the very beginning of the discussion by Earl Warren, he had stated that he did not think that any particular date should be put on a decree, compliance by a certain date or else. He did not go for that and I don't think anybody in the conference did.
Murphy: This is interesting in the sense that if the conference was on 16 April and the opinion coming down, May 31, it must have meant that there was, when you left the conference, very considerable consensus then.
Douglas: Yes. The consensus on most of it or "with all convenient speed," or "with all deliberate speed," with most of them favoring an opinion.
Murphy: Well, this was backtracking on my own questions of last time, if we could move on to the questions for this last time, noticed in the, in going through the Franklin D. Roosevelt papers that there was a memorandum of 2 June, 1942, from Marvin McIntyre, the President's secretary, to F.D.R., which said, quote, "Bill Douglas called me this afternoon and said that he was ready to report. He said he had talked the matter over with Black and Roberts, and both questioned the wisdom. He said you would understand, and so on." End quote. I know a number of historians are going to wonder what this memorandum and your call were about. Do you, going back over twenty years, does this ring any bells with you?
Douglas: I haven't any record in my office that I've been able to find concerning this conversation. My recollection is that it related to a proposition that Roosevelt had made to me. I had come on the Court in 1939. At that time I was very close to Roosevelt. And between 1939 and 1942 I saw a lot of him. Almost ever year he had proposed to me that I do certain things for him in the summer, that I stay on in Washington, that I be an administrative assistant at the White House. In 1942 he had some summer idea. What the precise job was I don't know, but it had something to do with an office in the White House, with me supervising some activities with the war effort. And I had always told him that I didn't think that a member of the Court should do that, that if he had a real job he should, the judge should resign and undertake it if he wanted to do it. I remember talking to Black and to Roberts about it. And both of them were pretty clear. They agreed with me. And I believe that this is what that conversation was about.
Murphy: All right. As you know, that was Stone's feeling on the matter in general. He had several such proposals made to him by Hoover and by, I guess, apparently, later by F.D.R. as well. He took the same position as you did.
Douglas: In 1942, it might have been the desire for me to head up the War Production Board. Later in that summer, I believe it was the summer of 1942, F.D.R. called me in the West, and I was in Oregon, and got me to agree to resign from the Court and to head the War Production Board. And I reluctantly agreed to do that. And I came back and reported to the White House in September of that year, a few days after he had talked to me on the telephone, said I was ready to come down to the White House and work out the details with the President, submit my resignation from the Court. And I got no reply back the next, that day. The next morning I saw in the paper that Donald Nelson had been appointed head of the War Production Board. I think it was the War Production Board. And it turned out that I was greatly relieved because I had no desire to leave the Court, certainly not for that kind of job. I had been promoted, I found out later, for that by Baruch, Bernard Baruch, who at that time was rather close to me. A man who was very much opposed to me having the job, I heard later, was Harry Hopkins. And it was Harry Hopkins who had his way and relieved me from the embarrassment of resigning from the Court to undertake such a relatively minor job.
Murphy: Another matter right about this same time, according to a letter in the F.D.R. papers, this one from Justice Black, dated 25 June 1940, the Justice offered to resign to help the President in his third-term campaign. Now you had only been on the Court a little over a year at this time, but I wonder if Black discussed this matter with you, if you knew about it at the time, or if you knew what F.D.R.'s reaction was. Black offered to resign to help the President in his third term campaign against Willkie.
Douglas: I didn't know about it right at that time, although I heard about it later. It came to me in a, at that, even when I heard about it, I didn't hear about it from Black. It came to me in a rather, the knowledge of it came to me in a rather curious way, I left the city in June 1940 going West with the family to the mountains of Oregon and I had no idea of getting implicated in any way into the Democratic national convention. Some of my friends had been promoting me as a running mate with F.D.R. in 1940. And I remember one of those men was Tommy Corcoran, Thomas G. Corcoran, and he was very, very close to F.D.R. These were friends, enthusiastic friends, who were not acting with any authorization on my part and I didn't really and truly know that they were doing this. I was, I had no connection with the convention. As I recall, I was way back in the mountains on a pack trip during the convention with a friend of mine now deceased, James T. Donald, a lawyer from Baker, Oregon. I think the two of us were out on a couple-week pack trip, fishing trip, in the high country of the Walla Walla Mountains. The, what went on in the convention I don't know. I never tried to find out. But Black's interest, at that time, in leaving the Court came to me when I got back from that summer recess. The Court reconvened and the convention was over. And the campaign was on, and Roosevelt's running mate, I believe, was ---
Douglas: Wallace, Henry Wallace. Tommy Corcoran and others associated with him at some junction, part of the convention of 1940, had tried to get support for me, trying to get people to call F.D.R. to put me in instead of Wallace. And one of the persons that they had approached was Hugo Black. And they told me in the fall what they had tried to do and it was rather humorous. They were trying to get my Brother Black to call. But Black didn't want to call F.D.R. because Black was anxious to get into the campaign himself and be F.D.R.'s running mate. This all came to me in the, I think it was September when I got back, 1940, which was a wholly new interesting idea that I had not been aware of up to that time.
Murphy: It would have been an interesting ticket, geographically balanced, a New Yorker and an Alabaman.
Douglas: Yes. And Hugo Black would be a great campaigner.
Murphy: Yes. The next question, oh, do you know what F.D.R.'s reaction was to this? Did he have any that you know of?
Douglas: I never discussed anything with F.D.R. about myself in relationship to any political office. He talked to me many times about leaving the Court for this, that, and the other thing, but never about leaving the Court to run with him.
Murphy: I wonder if you know anything of the background of the appointments of Justices Harlan and Potter Stewart.
Douglas: I don't know much about, of anything about the appointment of Potter Stewart. I think the appointment of Harlan was due largely to the efforts of Harold Burton. Harold Burton thought that the name Harlan was an important one in constitutional history at this particularly time in view of the emergence of the racial problem and the increasing importance of the decisions in the field of minority rights, protection of Negroes, restrictive covenants, segregation, public parks, schools, railroads, and so on. And the symbol of equality had for the races centered pretty much around Harlan's dissent, the first Justice Harlan's dissent, in Plessy v. Ferguson. Burton talked to me about it at the time. How wonderful it would be to get that name which was a symbol of equality on the Court. What a political stroke it would be for a President to do that. And I think he carried the ball on it and I think that was the real reason. Now there were other people also but I think Harold Burton was largely responsible for that.
Murphy: It's interesting, you probably know, you've probably noticed, to see the number of people who were close to Thomas Dewey, or worked for his law firm, who ended up as federal judges during the Eisenhower administration in New York. Of course, Harlan was, had worked for Dewey at one point, I've forgotten whether either in his law firm or as one of his assistants when he was District Attorney. Of course, Brownell, the Attorney General, was an old Dewey man, as well. This is a question on, specifically on your procedure. I wonder how you go about handling petitions for certiorari. That is, do you, as some Justices are reported to do, have your clerk brief them, or do you go through all of this, the whole full step yourself?
Douglas: I go through each petition myself. But I also have my law clerk write a digest or summary, trying to get it on one sheet of paper, which does not always succeed, on the main issues presented, and an analysis as to whether or not the issues, the constitutional or federal questions are properly presented, and his recommendation whether to grant or to deny, to grant and reverse, to grant and vacate, or dismiss or affirm, or whatnot. I go over them independently of him and I very seldom make any written notation on the sheet on which his memo appears. And then, on the basis of my own reading of the petitions and briefs and the jurisdictional statements in cases of appeals and his recommendation, I make up my mind how I am going to vote. The law clerk's memo is a convenient thing to have because there are some months passed between the grant of a petition and the argument of the case and sometimes a case petitions for rehearing. The memos are very helpful to make clear that a point was completely missed that's important, or that the point that's up for rehearing was considered previously. The historical record of the law clerk's memo is very useful.
Murphy: In our last meeting you talked a bit about Justice Reed. Do you know why he retired? As I recall the reason, the announced reason was ill health. But he has done a considerable amount of work on the Court of Appeals in the District of Columbia.
Douglas: I never could understand why Stanley Reed retired. He was in good health. He was not robust. He had suffered from high blood pressure and he had gone down to a clinic at Duke University, I forget the name of the doctor who ran it. This was years back. And he spent some weeks down there, perhaps two months, perhaps three months, and got on a rice diet. And this rice diet, three times a day, plus a little fruit, was a starvation diet that reduced the energy. And, as all doctors know, a starvation diet of any kind, almost any kind, reduces pressure. And so Reed's blood pressure became very low. His energy became low. But he was still healthy, he was still active. He needed a lot of rest and sleep but there was no reason why he should have retired. He never told me why he retired except that he thought that since he had arrived at the time when he could retire that he would just take things a little easier. So perhaps he did feel an inadequacy that didn't appear in his work. But he has been very, very active not only in the Court of Appeals in the District bit also in the Court of Claims. And --
Murphy: I hadn't noticed that.
Douglas: And he's written many opinions and I suppose actually the number of hours he has spent per day have been almost as great since he left the Court as he spent before he left the Court, that is hours per day on cases, writing of opinions, reading the records, briefs, and so on.
Murphy: Of the various statutes, the Supreme Court is allowed to make several appointments in its own staff, a marshal, a clerk, a director of administrative office of U.S. courts, and several others. How do the Justices go about deciding how these places shall be filled?
Douglas: Well, when it comes to one's own staff, those are personal selections that are merely passed on to the Chief Justice who approves them routinely, if the appointment is within the budget that has been approved. As respects the officials of the Court, the marshal, the clerk, the director of administrative office, those are appointments made by the Court but in practical effect they are appointments made on the recommendations of the Chief Justice. The members of the conference have felt since the Chief Justice is the administrative head of the Court, he is the one that is in charge of the building, the operation of the building, the janitors, the scrub women, the police. He's the one that sees more of the marshal and the clerk and has more to do with the running of the machinery than any other member of the Court, that he should have the effective say in the designation. So, invariably, the recommendation of the Chief Justice for one of those offices has been followed by the conference.
Murphy: Has this been the rule as long as you have been on the Court?
Douglas: Yes, it was true under each of the four Chief Justices of which I have served to date. Sometimes some Chief Justices were a little more informal about it than others. Stone treated it more like he would a, I don't know, business for the law school faculty when he was dean. Hughes, Vinson and Warren speak with a little more executive firmness but they always get the advice. But Stone didn't take so much the lead as the others have done, as other Chief Justices have done. That might be due to the fact that, I think, Stone was generally annoyed with the administrative chores that he had to perform. He often said that he felt more like a janitor most of the time than a Chief Justice.
Murphy: The next question is a long one. Perhaps I, just for the tape, will abbreviate it. A number of students of the Court's work have been fascinated by the question of whether there is a pattern in the way a Chief Justice assigns opinion in the Court, and if so, what this pattern means. I wonder if you might, or if you have found any kind of pattern under the various Chief Justices with whom you have sat.
Douglas: Well, I think it's quite clear that none of them had the idea of assigning an opinion so as to have one man emerge as the spokesman in a particular field. I don't think that has been any conscious factor in the assignment of cases, I think rather just the reverse has been true, that an effort has been made to keep any one man from being the spokesman for the Court in a particular fields -- no specialization in other words. The tendency of each Chief Justice I've served under has been to make the assignment, if possible, to the man who can got the greatest number of votes, to the man who comes closer than any other man to speaking for a consensus, or representing a consensus in that, conference, as disclosed by a conference discussion. The, Hughes had a custom of never assigning an opinion to a man who already had an opinion that was unwritten. He made his assignments to those who had nothing to do. As a result, those who turned out work like Stone and Black and myself, we got more than, each of us got more than a ninth of the load. And I think Stone continued that practice and I think Vinson did. It was a thing that annoyed Frankfurter because he would get an opinion or two assigned to him in October and he would almost invariably keep that opinion until April or May. And I remember there was a reporter, I forget his name, who worked for the Washington Post, who started running statistics on the volume of work that the Judges did as measured by opinions for the Court written by each judge. And at the end of the term he would publish in the Washington Post the production of each Justice, the production in terms of opinions for the Court. And some of us would run very high. Frankfurter would always run very very low, not because he was incapable of writing opinions. He could turn out opinions probably faster then anybody else. But he had his fingers in so many things around in government and was in consultation with so many people on affairs of state that not a very large percentage of his energies was ever given to the work of the Court. And the appearance of these tables infuriated him. He used to talk about them. He finally got the man fired from the Post and we lost a very fine reporter. He was very fine not because of the production of those tables, that was rather irrelevant, but he was one of the finest men, I think, to write on the Court that the Post has ever had. But the, when Earl Warren came on as Chief Justice he instituted a different system. He decided that every member of the Court should pull the same size oar and row as hard as anybody else. And so he has roughly allotted the opinions one-ninth to each Judge and he has tried to level it out so if a judge gets a big, complicated case the next time around he gets a simple case. He's tried to even out the work-load. That has some advantages. It has disadvantages to those of us who get out our work promptly because we are, there is practically nothing to do from the first of May on. And judges who work more slowly are working long hours, Sundays, until the whole thing comes to a halt sometime near the end of June. The Hughes method was designed, purely from the point of view of efficiency, by the Hughes standard. The Hughes standard was to spend as little time in conference as possible, to not exhaust yourself by analyzing cases, to leave most of the energies for writing of opinions, and to assign the opinions according to the ability of the people, to get the judges, to get the opinions out. Hughes was always aiming for recess of the Court by the last Monday in May. He loved those long recesses. He enjoyed his months of, out West in the mountains in some park with Mrs. Hughes. Those were the real highlights in his life in his later years. And I think that's why he worked it that way. He had also had some experience under, with Van Devanter. Van Devanter, who was very able, one of the ablest that has ever sat on the Court, had a rather unique disability. Once he picked up a pencil or a pen, he couldn't get his ideas running. If he sat back and talked orally --
(END CASSETTE NO. 14)
Proceed to Cassette 15
Return to the Cassette List