Professor Walter F. Murphy: Okay, on the last tape we were talking about Hughes and we were talking about Hughes' Chief Justiceship and the way he ran the conference. You may want to go on and speak a bit about Stone's Chief Justiceship, just to, in contrast to Hughes.
Justice William 0. Douglas: As I said, Stone was very unhappy about the rapidity with which these cases went by, went around the table. Hughes was a very formidable man. He looked like Jehovah with his beard. He had a very cold eye if he wanted to make it such. He could be very, very severe or very, very warm but in conference he was always very, very severe in his, the regime that he ran. So Stone, as I said, felt pretty well scrunched. So when Stone became Chief Justice after Hughes retired we went to the other extreme. I always personally preferred the Hughes method. The Stone method killed Stone. He would start the conference at the beginning at twelve o'clock. He would state his views on a case. He would not only take up the main point, but he would take up the five or six or seven collateral points that Hughes would always say that we can leave that to the writer of the opinion. And he would discuss them with a thoroughness of which a professor in the law school of the first-year class might proceed. Then he would turn to the senior judge, who at that time was Roberts. Roberts would give his view and then Stone would lock himself in battle with Roberts and have it out for five minutes, twenty minutes, thirty minutes and then go on to the next Justice who was Black, who would state his views, and then Stone would have it out with him. And so around the table with these endless discussions. So, it, we had to advance the hour of convening the conference from twelve to eleven because we weren't even through at six o'clock. And when we advanced it from twelve to eleven, we still weren't through at six o'clock. And many times we came back on Monday morning and sat from ten to twelve, went into Court, heard cases until four-thirty, came back into conference at four-thirty, sat until six or six-thirty. Came back the next morning, on Tuesday, sat from ten to twelve in conference, on the bench from twelve to four thirty, sat till six or six-thirty in conference, and back again on Wednesday. And once I think we went into Thursday. We were almost in continuous conference, spent battling every single point, big ones, little ones. It became, the conference became a great ordeal. After all, the Justices are mature people. They are not students in the university or college sense of the word. They each of them had studied the cases, had heard the oral argument, and made up his mind. And in my experience on the Court the conferences accomplished very little except to expose a position and indicate what range of, what range of the spectrum is covered, where the middle position is, around what point can you get a majority. But the conference is a futility in terms of trying to persuade somebody because everybody has made up his mind before he comes in. Once in a while there is an exception but that's very, very rare. Hughes with his wide experience knew much better than Stone and conserved his energy and the energy of all of us and really got as much done in a four-hour conference as Stone would get done in a twenty-hour conference. So, in short, I felt that though Hughes certainly did dominate the conference and while he certainly cut short the discussion, and while he did squelch, so to speak, a lot of conversation, that he didn't rob the conference of its great, of its real significance, and handled it in about the right way.
Murphy: Well, may I ask two subsidiary points here that have come up. One, on this rump problem, the problem, not problem, but the fact that Stone was holding this rump conference, did, after his Chief Justiceship, do you know if he, Stone, continued to do this?
Douglas: No. After he became Chief Justice he said that he couldn't do it anymore because he would be showing partiality to some members of the Court, perhaps, or some might think that, and so that was discontinued. And no other Justice in my time ever tried to do anything comparable.
Murphy: I assume you know that when Taft was Chief Justice that he used to do
this. Stone was invited only for a few times but Taft -
Douglas: Yes, I know. Since 1939 Stone is the only one so far as I know who ever
did it.
Murphy: I did mention to you once before and we had just discussed this briefly that
there is an implication at least from the Stone papers that Roberts and Stone were not particularly friendly. And as I recall you said that you didn't feel that this was true.
Douglas: I don't know how close they had been before the Agricultural Adjustment
Act case came before the Court, when Stone wrote his dissent to Roberts' opinion. They were not certainly hostile when I knew them. As I say, Stone invited Roberts to the rump conferences on Fridays at Stone's house and Roberts usually came. There seemed to be no outward manifestation of hostility.
Murphy: All right, well we perhaps could, well when you first came to the Court, how was the docket subdivided?
Douglas: Well, it really wasn't subdivided. We had what's known as the appellate docket and on it were the appeals, the jurisdictional statements, and the petitions for certiorari. We did not, at that time, have the miscellaneous docket. We had cases of the kind that are now on the miscellaneous docket but they were, they had no number. The, it wasn't until after Hughes' regime, it was in 1945, that we, there started to appear a miscellaneous docket, and that miscellaneous docket contained only extraordinary writs like mendamus. And I think it was 1947 that the presently constituted miscellaneous docket was set up with all of the extraordinary writs and petitions for certiorari and appeals, all informa pauperis, mostly from prisoners in state and federal penitentiaries was established. That I think was in 1947. I might say that in that connection that prior to, prior to that time, when I say that time I mean prior to the Stone Court, the Chief Justice himself processed all of the miscellaneous cases. Hughes put on the staff a man whose name I forget, but he, but Hughes paid him out of his own pocket. He was preoccupied in large part in going over the cases in the miscellaneous docket. It is quite a cumbersome job because they come in, some of them in handwriting, most of them typewritten, and to go through the papers is quite a chore. Hughes would bring them all to conference and he would not discuss the facts of all of them. He would say, "Gentlemen, there are only two this week in the miscellaneous group that I think need mention. One is a capital case say from South Carolina and the other is a felony case from Michigan," or whatnot. And he would summarize very briefly and if anybody was interested in seeing the record, he would say, "I will distribute it." Once in a while somebody would say, "Would you mind if the case would go over so I can look over the record?" And he would say, "Certainly." So he would send the record around to those who wanted to see it. But those cases were handled by Hughes himself and his, the law clerk that Hughes paid out of his own pocket, until, all during the Hughes regime. And it was about the end of the Hughes regime, or the beginning of the Stone regime that a different way of handling the, those cases, the miscellaneous cases, appeared. As I said, the docket was not formally constituted until 1947, but several years before that, I think it started in 1942, the miscellaneous had increased in number to such an extent that Stone decided, quite wisely, to inaugurate a different method of handling. He got an additional law clerk, and this law clerk went over each of the miscellaneous cases and prepared a memo and had an original and eight carbons made and these were distributed to each judge. And that's what we call at Court the "flimsy." The flimsy appeared, I think, in 1942 for the first time, and then the, all capital cases were circulated, the record and the petitions and the briefs. They were all circulated to all the Justices and that is the system that has continued since that time. The cases covered by the flimsies are not discussed in conference unless some judge wants to have them discussed, or secondly, unless they involve a capital case. And that was established under Stone and that's the system that continues to this day. The great increase in the miscellaneous docket is due to the decision of the Court in Johnson v. Zerbst. I think Black wrote the opinion. Traditionally, as you know, the habeas corpus was used to test the jurisdiction of a court. And the jurisdiction in the federal sense, as in the sense of many of the State laws today, meant technical jurisdiction. Did this judge have the right to sit in felony cases, was he the right judge, correct judge, and so on? There had been some cases, very few, like Moore v. Dempsey, where mob violence was said to deprive the Court of jurisdiction where there was, reduce it, the trial to a mere formality, not the kind of a trial a person is supposed to have. But along comes Johnson v. Zerbst and said that the Court does not have jurisdiction. The Federal Court does not have jurisdiction if during the trial the defendant is deprived of the Constitutional right. And then a few turns later the same principle was applied in our Court's review of habeas corpus cases coming from state courts. And so, from that time, the miscellaneous docket grew by leaps and bounds, from a few, three or four dozen, when I first went on the Court, to probably nine hundred now. And that has been the great increase in the volume of the Court business. And those are the statistics that I'm thinking people, like some of the professors at the Harvard Law School, seize upon to show how we're greatly overworked. These, the appellate docket today is just about what it was when I went on under Hughes. The total number of cases has increased by about 900, that increase being in the miscellaneous docket. We have to process those. But we don't actually personally consider many of those miscellaneous cases apart from reading the flimsy that the law clerk prepares, except the capital cases, and we do look at those. And out of the, all the eight or nine hundred cases on the miscellaneous docket today, we grant on the average only about 2%, which is sixteen, seventeen, eighteen, eighteen a year, for oral arguments. So they don't as far as the working day of the Justices is concerned, add material substantially to his labors.
Murphy: A somewhat related point here is that in the last ten years there has been much discussion of the way the Court handles cases coming up on appeal as contrasted with certiorari. In a recent speech, Mr. Justice Brennan stated the Court now uses the same procedures to decide to take a case on appeal that it does with certiorari petitions. Now, it might be worth discussing whether this procedure was followed under Hughes' Chief Justiceship, and, if so, when you came to the Court, was this a recent innovation or had it been standard practice since 1925? If not, when and under what circumstances did the change come about, that is if you know this?
Douglas: I've covered some of that in a lecture I gave at Cornell in spring of 1960, published in the Cornell Law Quarterly in Volume 45. To date we haven't any systematic way of finding out how many appeals, for example, are disposed on motions to affirm or dismiss. Let me go through and count them. I did some research in preparation for my Cornell lecture and discovered that we are now disposing of our, of about 75% or more of our appeals on motions to affirm or dismiss. Which is, I think what Justice Brennan may have had in mind. I haven't talked to him about it but it's comparable to the certiorari practice, with this difference. Under Hughes, Hughes wouldn't, this was brought out by consulting the Supreme Court reports under, in his regime. The Hughes Court would never affirm an appeal, would never dismiss an appeal, without the citation of a past authority or a citation of the page of a case where there was a dictum that sustained the position of the Court. Hughes was very, very meticulous in that respect. He came into the conference prepared with all the authorities for affirming or dismissing. And he would, and he insisted that if we could not cite a case, then we should hear this particular appeal. And that was a practice that we followed. That practice continued under Stone for the first few years and then, if you go through the U.S. Reports, you will find that under Stone we would begin to affirm or dismiss without the citation of a precedent, occasionally. That's a sign of fatigue, that's a sign of an overworked Chief Justice, that's a sign of these long, long conferences. The toll was taking itself, taking a lot of the energies. We didn't have the time. Somebody in the conference, nobody in the conference said, "Chief, don't you think we had better cite such and such a case?" It was just a matter of neglect. Usually though under Stone we cited a case. You see, after a conference, the members of the Court never saw those orders. They were prepared in the office of the Chief Justice. Under Vinson we finally degenerated to granting the motions to appeal or dismiss usually without the citation of any authority. And so, when the Warren Court arrived, when Earl Warren became Chief Justice, we had drifted into that groove, which I think is a very undesirable practice which I had been trying to exhort my Brethren to do something about. Because appeals are there as a matter of right under the statute, they must be disposed of on the merits. And I think that Hughes was absolutely right, that if we hadn't previously decided the question, this case is, presents the occasion when we should decide it.
Murphy: Would you, would it be possible for you to describe your own feelings when you first took your place on the Bench of the Supreme Court?
Douglas: Well, since as I said earlier, I had no ambition to be on the Court, since it was never a part of my planning, my daydreaming, my hopes, or my ambitions, I perhaps had a different experience from others who had looked forward to it for years, as I'm sure some members of our Court have, men probably like Frankfurter, men like perhaps Stone. I found the Court very, a very unhappy existence. I had been very, very active in the Executive Branch. I was now doing things that, in the library, it was like having a professorship without any classes to teach. It was a research job in fields that were very remote from any past experience or knowledge. I soon discovered that it would be impossible to select a man for our Court who was really competent in terms of being familiar with the materials with which we deal. Because there to no teaching experience, there is no law practice experience that can possibly produce the variety of problems that we have -- patents, copyrights, admiralty, taxation. Those are, in their refinements, are sort of exotic branches unfamiliar to the average lawyer. We have many problems, the Fourth Amendment, First Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment, Fourteenth Amendment, that we know about generally, but have never got into in terms of actual practice, administrative law, and so on. I found it was an experience that was, for a year or two, very dreary. A case seemed to be very slow, the work quite uninteresting. And it took about two or three years to get caught up in the enthusiasm of the broad group of ideas that the Court dealt with. And from that time on, from about 1942, 1941 or 1942, 1 was quite happy there.
Murphy: Supposedly, there is a tradition on the Court, and by the way I read last night in the manuscript biography of Chief Justice Waite, and it was Waite who started this tradition, that a freshman Justice may pick the case for his maiden opinion. Your first opinion was in United States v. Powers, 307 U.S. 214. Did you have any special reasons for this choice?
Douglas: Well, the Powers case actually was not my choice. At the end of that conference, our first conference that I attended, Hughes called to me and said, "Would you wait for a few minutes? I would like to talk with you." And he said, "It's according to our custom that the incoming Justice, the first week of his presence here after, argument, has the choice of opinions to write.'' I said, "Yes, I had heard about that." And there were a number of very important cases argued that week that had excited my interest. And I said, "I had some ideas." And before I could tell Hughes what they were, he said, "I think that the best thing for you to do is to take a little case you may think is a nondescript case, and it probably is, the Powers case." And he said, "I think that not having had any previous experience in writing opinions, you might just as well cut your teeth on this one." So, in effect, I didn't have a choice. Hughes was a very demanding person and he really thrust it on me. He assigned it in other words.
Murphy: Right. An additional question that might come in here is your own feeling about the value of seriatim opinions either to the Court, or to the profession, or to the country in general.
Douglas: That's an old argument in American constitutional history. The British had seriatim opinions, still do, in their appellate courts. Jefferson thought that seriatim opinions were the only way so that the public would know where every judge stood. Of course, he had his quarrels with Marshall. And he was trying to get the Justices out in the open and away from the Marshall opinion. Marshall had the other view, that there should be a Court opinion. Some of our present members, Frankfurter has often talked about the desirability of the British practice of seriatim opinions. Once in a while, the Court has decided that a case is so important, or the views are so diverse, that there should not be any Court opinion. One such instance was the case where the Court held that Truman had unconstitutionally seized the steel mills and I think each of us wrote an opinion there.
Murphy: Yes, but as I recall of that, Justice Black's opinion is labeled the opinion of the Court even though each of you did write --
Douglas: Yes.
Murphy: write --
Douglas: Yes. Black got for his opinion a majority but that we decided that we would, the conference decided that it would be desirable if each person with a majority could write a separate opinion. I think we did that also in a later case, one of the segregation cases. Perhaps I'm wrong, but I think that the tradition, the Marshall tradition, is the best to get a Court opinion if possible. It's a better guide for legislatures, for the Bar. Sometimes it's impossible because the views are so divergent, they go off on so many different tangents. Sometimes it's impossible to get a, anything, more than a judgment of the Court with seriatim opinions. But I think most members of our Court, since I've been on it, have felt the institution of a Court opinion is the desirable one. Of course, the institution of the Court opinion has a lot of disadvantages from the point of view of the man who is writing. Our Court is very often criticized for the kind of opinions it writes, that they don't face up to certain things, that they make short shrift of points that should be treated more seriously. I remember reading recently a book I think called the Common Law Tradition that Karl Llewellyn, of the University of Chicago, wrote in which he takes some Justices to task for that. What these people on the outside overlook is that many of the plums in the pudding that you are producing are taken out by your colleagues, so you end up with a decimated opinion. You make so many compromises to get a Court, qualifying this phrase, taking out this paragraph, not citing this case. If you take out the citation of this case, then maybe I can join. But I dissented in that case and therefore I don't want to became implicated in perpetuation of its theory, and so on. All of those informal things that go, that take place up and down the hallways, or on the telephone, or in the conference between the Justices results sometimes in the Court opinion being rather pale and meaningless. Usually, however, you can get a Court opinion that presents the sense of the meeting, the sense of the group that sits at that time, and, as such, it becomes a better guide, I think, than these long seriatim opinions.
Murphy: Now when you first came to the Court, Justices McReynolds and Butler were the only two holdovers from the ultra-conservative wing of the old Court. What was their attitude toward, to the newer Justices and toward their colleagues like Hughes and Roberts and Stone? Did either McReynolds or Butler go out of his way to offer friendly advice or hints about Court procedures? Did they participate actively in conference discussion? Did you know if they were themselves close friends?
Douglas: Butler died, I think, late in 1939, and I was with him only from April 1939 through just a few months. So I didn't get to know him well. I didn't know him before I went on the Court. He was a very, very personable, very friendly, likeable man. When you crossed swords with Butler you know you were crossing swords with an expert. He had a very extraordinary mind and great powers of argumentation. He was a great adversary and he was a very warmhearted, a very warmhearted friend. He has been greatly, I think, misunderstood. He's never been seriously studied. I don't know if I would agree with Butler in many things. I had an admiration for him on some of the issues that he stood for. He was, for example, the only dissenter in the Palko case, Palko v. Connecticut, holding that it is not double jeopardy for a State that got a verdict that it didn't like in a criminal case to appeal, get a reversal, and then go back and try the man and get the death penalty. Butler was with Holmes and Brandeis in the wiretapping problem. I talked to Butler sometimes about these problems. Butler had been a prosecutor. And despite the fact that he had been a prosecutor he felt very strongly against certain types of police activities. And that was very unusual because usually you find a man that was a prosecutor in his early years and he comes to the Bench and there is a carryover in thinking. He continues to act and react more from the point of view of a prosecutor than from the point of view of a judge. It's one of those subconscious influences. McReynolds was a very crusty man. I probably knew him better than anybody on our Court due to the fact that we had a common friend who was Professor George Bates at the Harvard Business School, who wrote McReynolds that I was coming. George and I had been very close, so McReynolds went out of his way to be very friendly to me. The, he was, he had a very sharp tongue. I remember the first time I reported an opinion to conference in the Powers case that we mentioned. I said that, it said in the opinion that had been circulated, that Marshall had said in a dictum. And McReynolds, in conference, said he couldn't agree to the opinion, to any opinion that downgraded Marshall. Talk about Marshall's statements as a dictum was to him downgrading a great Chief Justice. So I had to take out the word "dictum'' and with that McReynolds joined up in the opinion. He was a very hard person in that respect. He and Brandeis never got along. I think McReynolds was basically anti-Semitic. He had very kind streaks, generosity, in him. He was very kind to children, to charities, local charities. He was a persnickety person. He wouldn't allow anybody, or he would protest if anybody in conference in the conference room smoked. He said tobacco smoke, pipe smoke, was offensive to him. Even Van Devanter, whom I knew quite well, who was not on the Court when I went on, told me he had to stop smoking his pipe in conference on account of McReynolds. McReynolds didn't participate much in the life of the conference. He was very curt and short and would say, "It is obvious, this should be affirmed. I need not state my reasons." And let it go at that. He never would argue with anybody. He, in his conversations with me, was very much interested in Roosevelt. He would ask me such questions as, "Is Roosevelt really crazy?" He would call him an insane man. And "Is there any cure for that type of insanity?'' Probably that was done perhaps just to egg me on for a fact, but some of it was serious. He would say, "Is there any hope of the turning of the tide? Is this strung to communism, socialism?'' The two words were, I think, synonyms in his mind. "Is there any, any rescue from that?" He was very severe with all members of the Court. He had a custom of breakfast, Sunday breakfast. He lived at 2400 16th Street, an apartment house, and he gave these elaborate Sunday breakfasts. I went once or twice, late, to what we call a brunch these days. He was a very, very gracious host, At that time I was a smoker myself, smoking cigarettes. I used to delight, when I could get him in his own house, to light a cigarette for me because he hated the smell of cigarette smoke. But in his own home he was the old plantation owner and the patrician who was extending the utmost of hospitality to his guests. But around the Courthouse, he was a very severe man.
Murphy: Merlo Pusey, in his biography of Chief Justice Hughes, has a rather concise but nevertheless a full account of the conference that took place in the Court on the first flag-salute case, the Gobitis case. How does Pusey's accounts square with your recollection of what went on at that conference?
Douglas: Well, it's partially correct in the sense that there was no opposition to the Hughes position stated in conference. The, Hughes in his discussion of the flag-salute case said that he approached that problem like a skittish horse approaches a band. It was his figure of speech to indicate that this was a very delicate problem, a problem that had given him great concern, And he went on to state that he didn't think that this violated, could be said to, unconstitutionally violate freedom of expression of religion, exercise of religion in the First Amendment. Although there may be religious scruples, not every religious scruple can carry today against the police power. And Hughes in the conference laid great emphasis upon the Mormon cases, where the Mormons had put Polygamy down in the category of religious scruple and sought to defend it against Government regulation under the First Amendment. There was no contrary view expressed at the conference. I, recently on the Court, was, had such a great respect for Hughes that I was inclined to follow him wherever possible. Hughes and I were very, very close actually, personally. I was forty. He was seventy-eight. I guess he knew that I was going to be there a long time. And he took me under his wing, took me into his confidence, talked to me a lot about the affairs of the Court, and the problems of dealing with the obstreperous members of the Court, and so on. And so, I had at that time a very high regard for Hughes, which I still have. And without any –
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