Justice William 0. Douglas: As to the first decision in the famous Gobitis cases Hughes, as I said, had rationalized his result that the flag salute was constitutional by reliance on the cases holding that the Mormons could not practice polygamy in spite of the fact that it was part of their religious scruples. But, as I say, he was somewhat unsure in his presentation although he voted to sustain it. All voted to sustain it. There was no discussion, no views expressed against it. Two mentors of the Court, however, passed and didn't vote at that conference. One was Stone. The other was Black. Pusey's statement that, at Roberts' suggestion, Frankfurter went to the, Hughes, or said to Hughes that Hughes should write the opinion and that Hughes replied that he was going to assign it to Frankfurter, is not true. No one would ever suggest to Hughes that Hughes assign that opinion to one person or another. Hughes was very severe, Frankfurter was very brash, but even Frankfurter would never have done, would never have dared do that. Frankfurter, at that time I was, I had never known Frankfurter very well. I was, I had met him several times. I had thought of him as a great progressive liberal professor and student and advocate. I had held him in very high esteem. But after this case, Frankfurter, knowing of my close relationship to Hughes, called me into his office and asked if I would go to Hughes and have Hughes assign the flag salute case to him to write. And I told him that I couldn't be any such errand boy and I wouldn't do it. Frankfurter, I think, was very upset. He was longing to get that opinion and did get it. But it wasn't due to the intervention of anybody or anybodies, as far as I know, although he, as I say, he did try to get me to go to Hughes and have it assigned to him. He circulated his opinion and there was some considerable discussion of it. I signed up with it. Hughes signed up with it. Black signed up with it and everybody signed up with it except Stone. Nobody knew what Stone, what Stone's views were. And Stone finally at one conference said that he was having trouble and he would circulate something that would indicate his position. And so it came out finally as a dissent which ultimately became the law. Because when the Gobitis case was, by the time it came up for re-argument, for a petition for a rehearing, Black and I had had several discussions. We felt that we had probably made a mistake. We had, we were beginning to have regrets. I think by the time it was reargued, I haven't examined the records, but I think Murphy was on the Court. I think Rutledge was on the Court, too.
Murphy: In the second flag-salute case, Rutledge and Murphy.
Douglas: Right. In the second flag-salute case.
Murphy: Murphy was on the Court in the first.
Douglas: That's right, I'm sorry. Murphy was on the Court in the first. He joined the Frankfurter opinion with Black and me. And it was Black and Murphy and I, that, in the following term, had discussions and we were concerned about our joining the Frankfurter opinion. We thought we had been taken in and we mentioned this several times. It was, it was a matter of, that we wished we hadn't, hadn't gone along. We wished we had had a re-argument. We wished we could have further consideration, and so on.
Murphy: Right along with this, there has been a rumor that the day the Gobitis decision was supposed to come down, that Murphy had approached Hughes and asked to change his vote and Hughes had refused him this. You may not know if this is true or not but does the story have anything of a true ring to it?
Douglas: No. Because up to the time that the opinion is announced from the Bench, anybody can change his views. And while I was there under Hughes, somebody, I forget the name of the case, changed his views about a quarter to twelve before we went in and joined the dissenting opinion, making a six to three decision, of five to four, as I remember. No. Hughes would be the last to say you can't change your vote. Hughes would say I have no jurisdiction over that. Hughes was meticulously proper in all of his relationships. He knew that every judge was sovereign and that he had no control over them and he never tried to exercise any control. He was the most meticulous Chief Justice that we have, we have had in my time.
Murphy: Well, right along the same lines that you have been talking about your shift with Justices Black and Murphy, that came about in Jones versus this separate opinion that you three wrote in Jones v. Opelika, 1952. Do you, can you put your finger on any particular fact or a set of factors that acted as a catalyst in helping you to crystallize your philosophy?
Douglas: I don't know that there was any one particular thing. We had been, we had been troubled at the time. We had joined up with the Frankfurter opinion. Before the next case came along, the second flag salute case, West Virginia v. Barnette, I think it was decided in 1943, we had become pretty well separated from Frankfurter. This is nothing that happened overnight. It was an evolutionary thing. Frankfurter had lost the respect of Black and myself and Murphy, just generally speaking. We learned that he was utterly dishonest intellectually, that he was very, very devious. He, we none of us had known him very well, but he spent his time going up and down the halls putting poison in everybody's spring, setting, trying to set one Justice against another, going to my office and telling me what a terrible person Reed was or Black, going to Reed's office telling Reed what a stupid person somebody else was, and so on. So we got a full measure of the, of the intrigue of the man and of the manner of his operations. And we saw finally, something we probably should have seen at the time, that he was introducing, trying to introduce into American constitutional law a system that seemed to us to be quite foreign to our constitutional scheme. Frankfurter is deeply and passionately devoted to the British system, to the supremacy of the legislative branch. Frankfurter thinks that the First Amendment, the Fifth Amendment, the Sixth Amendment, and the Seventh Amendment, and the Eighth Amendment don't mean what they say. The only thing that means what it says is the Fourth Amendment. He defends the Fourth Amendment and the strict application of it because he says they are not an organized group and they have nobody to represent them. Therefore, the Court should enforce it strictly. He would give the Legislature great leeway to pass laws, restricting freedom of speech, religion. He would not enforce the right to counsel, and so on. He would take these commands of the Bill of Rights more or less as councils of moderation or whatnot, as Learned Hand once put it. This was beginning to unfold in our minds and we began to realize that here was a man who instead of being a friend and a champion of civil liberties was using his position on the Court to line up allies for a constitutional doctrine that we didn't, we couldn't go with. So the explosions in the conference had become more and more frequent, particularly between him and Black, and between him and me, and we had become more and more suspicious of the good faith of the man, his intellectual honesty. We disagreed basically with him on so many different things. So all of this shaped up to make the doubts that we had about the original flag-salute decision became mare and more important. So by the time this other petition was filed in the Barnette case, we had had, Murphy, Black and I, many talks and decided that if it came up again we would change our vote.
Murphy: When the second flag-salute case itself was argued, were the divisions in the conference similar to the final ones that were recorded in the U.S. Reports?
Douglas: Yes, they were. It was Stone, let's see, Jackson, I think, was assigned the opinion by Stone, Black and Murphy, Rutledge and I, in a six to three. And Frankfurter adhered to his original decision.
Murphy: At the conference itself, was the opposition to reverse led by Frankfurter?
Douglas: Yes, he held forth at great length.
Murphy: Did any of the others, Reed and Roberts, I believe, join with Frankfurter in dissent? Did they have much to say at the conference?
Douglas: Roberts was a, for most of the time that I was on the Court, was a wonderfully pleasant, personable person who never took up much time in conference, merely stating his views very briefly. He worked largely at the conference level in the tradition of Hughes. Reed was a little more outspoken, took a little more time, but neither one of then were the, used the sort of filibuster kind of tactics that Frankfurter introduced into the Court. And at this conference on the Barnette case I, Reed, and Roberts had very little to say.
Murphy: All right, this is an entirely new topic, but you have the reputation of being the quickest opinion writer since Holmes. While this facility has undoubtedly been sharpened by experience, did you have such speed and accuracy in research and writing when you first came to the Court? Have your procedures in opinion writing changed?
Douglas: I had never had any experience before in writing for the Court, opinions on any court. I had written, of course, many briefs and so on, many law-review articles and whatnot. I think, due to the fact that I was a commuter in the early years out of New York City, I learned to write with a pencil or a pen on a yellow pad on my lap and that is the manner in which I have done all my work on the Court. Writing, taking briefs and records with me on airplanes, and writing opinions as I cross the country, or out in the desert in Arizona, where I try to go in the wintertime, or wherever I might be. There is a charge made around sometimes by some outsiders that the judges assign their opinions to law clerks to write. I have never done that. I have written all my own opinions. I use my law clerk to do research for me. I often send him to the library to prepare a footnote to an opinion that I am writing, telling him the cases pro and con that I want him to collect. Sometimes I ask him to prepare a digest for me that I'll put in a footnote. My law clerk has the responsibility of approving all my opinions for accuracy. I encourage controversy and debate in my office. I find the criticism that my law clerks give me very helpful. My law clerk writes a memorandum on all the certioraris and appeals that come in -- a very useful record. I make some notes on his memoranda and they are good reference material, particularly if the case comes up for argument or if it comes back for a rehearing. Whether the other Justices use law clerks to write opinions, I don't know. We, under Warren, I think it was, the Justices were given, by Act of Congress or by an appropriation, the right to have two justices - eh, two law clerks per justice and I tried the two justices -- eh, two law clerks, one term and found that they didn't work very well. So I only have one. The others have two. The Chief Justice has three. One year, Frankfurter brought on a man as a third law clerk and he tried to get Warren to put him on the Federal payroll but Warren refused to do it. But this man wrote, worked in the library, and he wrote some of Frankfurter's long opinions. This law clerk wrote Frankfurter's opinion in the Sunday Law cases that were decided. He wrote Frankfurter's opinion in the civil-rights case, where I wrote for the Court coming out of Illinois as to what the meaning of under color of state law in the Civil Rights Act (?). The length of the opinions of some of the justices is, in the trend to develop in the Court sort of law-review articles as opinions, I think has been due to the extensive use by some Justices, particularly Frankfurter, of law clerks in preparation of opinions.
Murphy: Historically, the Court has had its famous pair of Justices, Marshall and Story, Holmes and Brandeis, and now Black and Douglas. Your views and Justice Black's on many fundamental matters are very much alike. And according to what passes as inside information in Washington, the ideological affinity between you and justice Black is reinforced by a close personal friendship. Was this relationship a spontaneous one? I mean when you first came to the Court did you immediately sense a kinship with Justice Black or has this relationship been a product of long years of work for the same cause?
Douglas: I had only met Hugo Black once before he went on the Court. At that time I was chairman of the, maybe not chairman, I guess, just a member, of the Securities and Exchange Commission. We were investigating companies, including the American Gas and Electric, and I had one man who was keeping track of all the legislation that was presented on the Hill or very powerful lobbies, then as now, trying to get bills through. There was one innocuous looking bankruptcy bill that came through, that on its face seemed to mean nothing much. But those who knew the problems of this particular utility company and met this bill several times, realized that it fit this company just like a glove, and only this company just like a glove, and only this company, although it was cast in general terms, and would relieve this company of the rigors of the reorganization that was in store for them. It had passed the Senate the day before and I rushed over to the cloakroom and asked to see one Senator, and he wasn't there, and I asked to see another one. Then I said is Black there, and Black came out. And I knew that he had been a great campaigner against the utilities. He had been a great sponsor of the Holding Company Act of 1935. He conducted many investigations. So I told him that he had just done, that he and his colleagues had just done the utility company that he had most despised the greatest favor that anybody had ever done it. And he asked me what he had done and I told him. He said, "Are you sure?" And I said, "I am sure.'' "Are you positive?" he said. I said, "I'm positive." He said, "I'll get the bill recalled,'' I forget the Senate procedure. That was the only time I met Hugo Black. I didn't know much about him, except he was from the South, except that he was very active as an investigator. And so the relationship between Black and me was one that developed while I was on the Court and didn't blossom suddenly. It was a long-term development. Actually, personally, Black and I have never been very close. I very, very seldom see him. We're very seldom together socially. It's more just happenstance, I think, that we have found generally some kinship, although Black and I very often disagree on important matters.
Murphy: Yes. During the 1939 term when President Roosevelt appointed Frank Murphy to fill Pierce Butler's chair, do you know anything in the background of this appointment?
Douglas: No, I do not. I know that Frank Murphy was anxious to move on from the Office of the Attorney General to some other post. I don't think that he had the Court particularly in mind. I think Frank Murphy's real preference would have been to be Secretary of the Army, some other Cabinet post than Attorney General. I think that Roosevelt named him because he was, had a liberal background, liberal tradition, and because he was Catholic. Pierce Butler was a Catholic and I think Roosevelt merely followed the long pattern of having a Catholic on the Court. I don't, forget how many Catholics had been on the Court. I never talked to Roosevelt about Murphy's appointment. I am just surmising that it was because, not because he was Catholic but because he was a Catholic with a liberal philosophy that was generally in accord with Roosevelt's ideas.
Murphy: Right. In answer to question twelve at our last session you had mentioned that at the conference in which the second flag-salute case was discussed that Mr. Justice Frankfurter carried on in his discussion what amounted to a filibuster. I wonder if you would just perhaps in a few more words describe this particular conference?
Douglas: I don't know that it was any longer than many of the, most of the Stone regime conferences. I think I said before that the conferences under Stone went to the great extreme of detail, long, lengthy discussions, almost interminable, and the one on the Barnette case was of that variety. But how many hours were spent on that one case I have no exact recollection.
Murphy: All right. Thank you. Well, perhaps we could move on to the next question which refers to Justice Jackson when he was Solicitor General. He was Solicitor General during most of your first year on the Court, and Attorney General during the next twenty-one months. He had a reputation among practicing lawyers of being a brilliant advocate. Was this your evaluation of him after hearing him argue such cases as the Sunshine Anthracite Company case? How would you compare him with men like Davis, Biddle and Marshall?
Douglas: Robert Jackson was an exceptionally able advocate. He made an extraordinarily good Solicitor General. I think that perhaps his happiest years in Government were his years as Solicitor General. I think that he was very ambitious to become Attorney General, and did become Attorney General but that once the administrative tasks had settled on him, he did not like that office. But I think he thoroughly enjoyed being Solicitor General and I would say if I had to make up a list of the ten best advocates for the Supreme Court during my tenure, I would certainly put Bob Jackson among the ten. He was a little less austere than people like Francis Biddle, a little less precise than people like Charles Fahey, who was subsequently Solicitor General, not as reserved and dignified as John W. Davis. I think Jackson basically was a good jury lawyer and he talked to the Court pretty much as I think he would talk to juries, not just sheer oratory, but a lot of common sense, and a lot of emphasis of the facts, turning of a phrase, figures of speech. He was extremely, extremely good as an advocate.
Murphy: Very well. While we're on this Sunshine Anthracite Company case, Mr. Justice Roberts did not dissent from your opinion even though he had been one of the majority in the Carter Coal Company case in 1936. Either from your discussion at the conference or from his comments on your slip opinion, did you judge that he went along reluctantly, perhaps feeling it would do no good to protest, or that had he truly changed his, changed his mind, or was there some other alternative?
Douglas: As I remember, Roberts at the conference followed the lead of the Chief Justice, who then was Hughes, and felt that the act struck down in the Carter case had been rewritten, revised, clarified, remodeled, so that it met the objections that he and the majority of the Court saw in it the first time it was up. At least there was no protest on Roberts' part. And of the nine, there was only one vote to reverse at the conference and that was a vote cast by McReynolds. Pierce Butler, who was on the Court at the time, passed. He did not vote. Roberts voted to affirm, as did the other eight members of the Court. Whether, there had been a conversion by Roberts from his earlier views, I don't know, but I think that he sincerely felt that the case was in a different posture than it had been in the Carter case under another act.
Murphy: Well, on the Sunshine case, Chief Justice Hughes had dissented in the Carter case against the Court's overture declaration of the unconstitutionality of the price-fixing clause of the Guffey Coal Act. But he had nevertheless taken the narrower view, (inaudible) had taken the narrower view of the Commerce power. And it concurred that the judgment of the Labor Division Regency Act was invalid. You've talked a bit in answering the last question about Hughes' attitude in conference. Would you want to add anything, perhaps, what he said, what you recall he said on your draft opinion?
Douglas: Hughes, I think that the, I think what I said about Roberts applied to Hughes in part, that is that Hughes felt that the Act as remodeled was within the Commerce power. His discussion of that part of the problem was not extensive at all, just in a few sentences, as I remember it, as my notes show. He spent most of the time talking about other parts of the Act, getting down to the central problems as to whether Congress had acted within the scope of the Commerce Clause. And his summary conclusion in conference was that it, that Congress had so acted and that the law as applied was constitutional. And I think that the rest, apart from McReynolds, just agreed with that rather summary disposition and the opinion is, I wrote it, I think is one that was substantially the one that was finally approved.
Murphy: Right. Well, along the same lines as this previous question is the Darby Case which as far as 1941 was a major step, if not the major step, toward the abandonment of the old "direct-indirect effects doctrine," which Chief Justice Hughes had earlier applied to determine whether a specific Congressional regulation was valid in the Commerce clause. Hughes' comments on Stone's, or comment on Stone's slip opinion was simply, I will go along with this. Do you think that Hughes went along reluctantly or that he had by then changed his mind or that his early use of the "direct-indirect effects doctrine" had been occasioned by the necessity of operating within the juristices of existing constitutional law?
Douglas: Well, that's a difficult thing to know. At the conference discussing the Darby case, the vote of the Court was unanimous to reverse, except for two members of the Court who did not vote. One was McReynolds and the other was Hughes, the Chief Justice. Hughes, in his exposition of the Commerce Clause at the conference, gave a very broad construction of the Commerce Clause, as I remember, he went into it in some detail, He thought that the Act should be construed to show that the person to whom the Act was being applied was conducting a business that was or was not related to commerce. I think that the reason that he passed was that he, Hughes, was in transition in his thinking, carried over from the earlier decisions, his earlier views as to the Constitution and meaning of the Commerce Clause. But, as I say, it's the reason I think he passed and had Stone write the opinion. I don't know that there is such more to add than that. Hughes did go along with the Stone, with Stone's opinion, but I think that he probably did so somewhat reluctantly in view, of the earlier views that he had expressed on the Commerce Clause.
Murphy: Right. Well, you have read Charles Handel's interpretation of Chief Justice Hughes' judicial career, particularly his final summation on page 279 that we have. Now, what is your reaction to Hendel's interpretation?
Douglas: I have a little different view of Hughes than the one expressed by Charles Hendel. I don't think that Hughes had any respect for constitutional precedent that is implied it that statement. I think Hughes was very conscious of the changing nature of constitutional interpretation, that what was decided in one age did not necessarily fit a subsequent age. Hughes used to say that the Constitution was made for many times and many problems. He was the least doctrinaire of anybody that I have known who sat on the Court. I did not know him as well perhaps as others. But watching him work, reading his opinions, discussing problems with him, I felt that probably he was the most open-minded man that had sat. He was not in any sense, I think, a tragic figure. I think he had quite a problem with the old Court in the '30's. They were pretty obstreperous. They were nine wild horses of various breeds and kinds and he had quite a job in getting any kind of a liberal distillation out of what he had, what he had to deal with. I think that he was willing to go as far as he could take his Brethren. I think that he didn't like to, as Chief Justice, to be known as a dissenter from the Court over which he was supposed to preside. He had a great sense of the importance of the chair of the Chief Justice and he submitted to, I think, decisions that, if he had felt free, he would have not submitted to. He felt restrained, I think, from the point of view of his office. He liked a solid front to the extent that it was possible. He occasionally dissented. More often than not, however, I think he subdued his differences and rode along hoping that times and conditions would change. And I think he had a great sense of history, a great sense of time. He had a great admiration for Roosevelt as a politician. It was a mutual admiration society, Roosevelt had a great admiration for Hughes as a politician. Roosevelt used to tell me that Hughes was the second-best politician in town. Sometimes Roosevelt said, "I think he is --- "
(END CASSETTE NO. 3)
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