Professor Walter A. Murphy: You said you might (inaudible) like to tell the story of the Right Reverend John Scherl, that is S-c-h-e-r-l.
Justice William 0. Douglas: The Father Scherl lived in Iowa, in Burlington. He's a very personable man. He was very active in supporting Ed Eicher, who was a Protestant, for Congress. He was a very close friend of the Eicher family. And Ed Eicher was a man whom I got to know very well, and through him, Father Scherl. And then when Ed was defeated for Congress he was named, largely as a result of my suggestion, to the Securities and Exchange Commission as a member of the Commission by Roosevelt. The Right Reverend John Scherl, when I was appointed to the Court, made a very interesting visit here. This was shortly after I was appointed, within a week after I had taken my seat, he said that probably the best intellectual group, the best disciplined group that he knew in America were the Jesuits and that he had worked out, he had a proposition for me, that I could send a duplicate set of all the certiorari petitions and appeals to him. He had this, he had this group organized so that they would give it instant service and get word back to me as to how I should vote an these petitions and appeals. And, furthermore, if I would go and get a duplicate of the briefs and the record in the cases that were assigned to me, that he would see that his little syndicate of Jesuits had promptly in my hand the kind of opinion that should be written. He was serious, serious about it. He did not do it, this in any offensive way. Of course, it was utterly offensive to me but he, it was like the man at the garage who says that he'll service your car any hour of the day or night. He was out to render a service and he had the people who could do it.
Murphy: I hope you handled him gently. In your first years on the Bench, the Court decided several important cases that had to deal with creditor's rights and corporate reorganization. These decisions established what was then a very controversial doctrine, that of full or absolute priority. It is most interesting that not only did you write the opinions for the Court in these cases but also that the decisions were unanimous. I was wondering to what extent or to what do you attribute the assignment of these cases to you and to what their unanimity? I was curious as to whether there was much discussion of these cases in conference in such a highly technical field.
Douglas: Before I look into the records that I have on the cases, I can say this in a preliminary way, Case v. Los Angeles Lumber Products was on the special list. I think I had mentioned that earlier. The special list that would embrace cases that would not be discussed at conference. Hughes put quite a few on and he almost invariably bristled if anyone tried to take one off. I screwed up my courage and asked that this one be discussed at conference and it was discussed. And there were enough votes to grant petition. So, I was the member of the Court responsible for the case being there. And so, when it came to the assignment, Hughes assigned it to me. And since I wrote that opinion and had done quite a lot of work in that field at the Securities and Exchange Commission, I think the others, other two cases mentioned came to me more or less as a matter of course. But the first one, the Los Angeles Lumber Products came to me because I was the one that was instrumental in getting it off the special list.
Murphy: All right. If you prefer we could come back to that when we have, when your notes are out. The next point I would like to ask is that you wrote the opinion in United States v. Pink in 1942. This is certainly among the more important early opinions that you wrote. It's also among the most controversial opinions. Do you still feel that the decision as to executive agreements was fundamentally sound or do you think that your basic views of executive prerogative underwent a change between this case and the 1952 steel-seizure dispute?
Douglas: No. I don't think they underwent a change. I think the decision in the Pink case was sound. We're dealing there with a problem of relationships with a foreign nation, the basis of recognition of Soviet Russia. In the steel-seizure case we were dealing with the matter of internal affairs, purely domestic in its dimensions. The problem there was the, as you know, the power of the President, absent at least according to the majority of which I was a member, absent any delegation of authority by the Congress. The Pink case was in the field that traditionally had been reserved for a large degree of freedom by the Chief Executive and I think that in the long stream of history that it will, it will stand up.
Murphy: It certainly follows the general philosophy of Sutherland's opinion, for example, in the Curtis Wright case in 1937, I believe, which made many of the same points that you did. Moving on to another problem of roughly the same, same period, Justice Jackson has said that when, or once said, that when Chambers v. Florida decided in 1940 first came to the Court, Justice Black voted against it, granting certiorari. Do you know, or do you recall if this is true? And do you recall what the tenor of the conference was when the case was discussed on its merits? It was a unanimous decision as finally announced.
Douglas: On the Chambers case, Chambers v. Florida, 309 U.S. 227, which came to the Court on certiorari in the fall of 1939, there were four votes to bring the case up. One was my own, another was Frankfurter's, the third was Heads, and the fourth was Roberts'. Black and Stone and McReynolds voted to deny. I didn't record any vote for Hughes or for Butler. Butler may have been absent. That was, I think, probably the time when he was ill. Hughes was there but very often in a doubtful case he would just pass the case on without indicating whether to grant or to deny. If there were enough to grant he would just not vote. When the case was argued and came down for decision on the merits, the, there was no real opposition in conference to the result reached, namely, to reverse. Frankfurter and Black, Roberts, Stone, Hughes and myself voted to reverse. Reed and McReynolds voted to affirm. There wasn't much said by them. There wasn't much said by anybody at the conference, except Hughes and Roberts, who led the discussion. And each was very clear that the confessions were involuntarily obtained. And Hughes made the assignment, and he made the assignment to Black. And why he assigned it to Black rather than someone else, I don't know. That's a matter just in the keeping of the discretion of the Chief Justice.
Murphy: You mentioned justice McReynold's name in this. His anti-Semitism, at least, as directed toward Brandeis is fairly notorious. You were not on the Court with Cardozo but do you know if McReynolds treated him in the same fashion as he did Brandeis? And I might also ask how McReynolds reacted toward Frankfurter.
Douglas: I don't know except just by hearsay what McReynolds' attitude to Brandeis and Cardozo was. By hearsay, by reputation, he was very unfriendly. They, they say that sometimes he would be so put out and incensed at the, at what Brandeis was saying that he would get up and leave the room, I'm not positive that it's just anti-Semitism because this man McReynolds was a, very much of an individual. I remember once shortly after I came on the Court, Hughes, who was very meticulous, who never once entered the Courtroom ten seconds before twelve o'clock or ten seconds after twelve o'clock, but right at twelve o'clock, got to the robing room by five minutes to twelve and by two minutes to twelve, or one minute to twelve, he was sending the messengers running to the justices' offices to round them up, in case there were any stragglers. And I remember one day he sent one of the messengers down to McReynolds about two minutes to twelve and he, the messenger walked into McReynolds' office with some trepidation. And McReynolds, who is always very kindly to the people around the building, the servants, the employees, the law clerks, secretaries, asked what he could do for him, and the messenger said in a rather frightened voice, "The Chief Justice says for you to come at once." And McReynolds pulled himself up in the chair, according to the messenger, and said, "Robert, I have a message that I want you to deliver to the Chief Justice.'' And Robert said, "Yes, Mr. Justice, what is it?" And McReynolds said, "Tell the Chief Justice that I don't work for him." And with that the, Robert, the final colored messenger that we had at Court for many years, discreetly withdrew and reported to Hughes that Mr. Justice McReynolds would be along in a little while. But McReynolds didn't come along in a little while and as a matter of fact I think that day he stayed out fifteen, twenty or thirty minutes. So, his attitude to, to people at the professional level was brusque. It wasn't, didn't have much cordiality to it. I remember Van Devanter, whom I knew quite well, used to like to smoke a pipe. He told me that McReynolds was so hard on him for smoking even over in a far corner of the conference room, where Van Deventer once in a while used to retreat, that he finally gave up smoking entirely. It may be that McReynolds did have a, a streak of anti-Semitism, but he also had lots of other streaks that could add up to the same thing.
Murphy: I was wondering how he and Frankfurter got along.
Douglas: There was nothing special about, or unusual about that relationship. McReynolds had a cordial dislike for everybody I think that Roosevelt named except me. And he liked me merely because we had one common friend, Professor George Bates, of the Harvard Business School, who was very close to McReynolds. But McReynolds had a violent view about Roosevelt. He thought Roosevelt was crazy, insane. He thought the country was going down the drain and he had no less regard for Frankfurter than he did for the others that Roosevelt was naming.
Murphy: You had mentioned once before that several times McReynolds invited you to the Sunday brunch that he would give at his apartment. Did he ever, for example, invite Frankfurter to those, to your knowledge?
Douglas: I, I never saw Frankfurter at one of those. I don't, but I never saw any other member of the Court. So, whether he included any others, I don't know. But I don't think he would ever invite any member of the Roosevelt Court.
Murphy: I ask this because Taft, and I believe Hughes at one time, had to have two dinners. McReynolds said he would refuse to appear with Brandeis. And in the notes in the Taft papers, McReynolds refers to Brandeis as the "oriental." And he tells that I will not dine with the oriental.
Douglas: That doesn't surprise me because he had those, those ugly streaks in him.
Murphy: Do you know why Stone used to refer to McReynolds as the "Admiral?"
Douglas: I think it's probably, I've heard Stone say that many times, and I think it was due to the fact that McReynolds wrote the opinion of the Court in the Jensen case, the Admiralty case, in which he laid down what all of us, at least since 1939, thought was horrible doctrine, horrible Admiralty doctrine. And it was a sort of a derelict in the law it changed. It was an important decision. And, oh, with the passage of time, lots of Admiralty practices and decisions crystallized which had come up for re-examination several times. But we finally announced, I think it was Black who wrote the opinion. But all, Frankfurter collaborated very closely, I think, with it. I did too, in formulating a rule of a so-called Davis case (?) which allowed either the Federal Government or the State Government or court, or the state court, in the twilight-zone cases to take jurisdiction. But I think it was due to this rather heavy-handed opinion in the Jensen case that got McReynolds the label of the ''Admiral.''
Murphy: In Bridges v. California or Bridges v. California extended First Amendment protection (?), the contempt of court charges in this case were decided by a five-four vote in 1941. Justice Jackson said later that he regretted having been with the majority. Was there anything in his vote or remarks at the conference or after that indicated serious doubts? Or was there much discussion of this case at conference?
Douglas: I think that there was rather general agreement at the conference that the Bridges case and its companion case, the Times-Mirror case, should be granted. I refer to the case in 314 U.S. 252 that was decided in 1941. The petition for certiorari was granted on the eighth of April 1940. And after argument in October of 1940, there was a vote to affirm. The vote to affirm was Murphy, Frankfurter, Roberts, Stone, McReynolds and Hughes. And the vote to reverse was Douglas, Reed and Black. As I remember, that opinion was assigned to Frankfurter. And by the time spring rolled around in May in 1941, Murphy had changed his position and he was then ready to reverse. So that left it Frankfurter, Roberts, Stone and Hughes to affirm and Murphy, Douglas, Reed and Black to reverse, McReynolds having, I think, retired. So, then, it was put down for reargument and on the reargument in the I fall of 1941 the, it was a five to four decision with Frankfurter, Roberts, Byrnes, Jimmy Byrnes, who had taken McReynolds' place, and the C. J. voting to affirm. That was roughly the, the history of the case. And the Times-Mirror paralleled it.
Murphy: You don't, or do you recall, anything that Jackson might have said to indicate at that time his reluctance?
Douglas: The, the conference notes that I have show no reluctance on the part of Jackson. By that, I mean no doubts apparently in his mind or at least when case was reargued. Because he was one of those that voted without any reservations to reverse. Whether he had doubts later, I don't know. But he, he did not express them at the time.
Murphy: Justice Black's name has come up often in these questions and probably will continue to do so. I was wondering how Black and Hughes got along.
Douglas: Black always got along very well with everyone. He is a very polished person with all the proprieties of the, and protocol of the South ingrained in him. And I think that in the case of Hughes, Black had considerable admiration for him, for his industry and skill and for some of the opinions that he wrote, in a few of the civil liberties that Black liked. They got along very well. I don't think Hughes was the type of a person that Black would pick out, I think, as a buddy or a companion. Hughes was very severe in his appearance and relationships, generally speaking. I don't think that Black would be the type of person that Hughes would pick out. Because perhaps Hughes in his early days when he was Governor but not when he was Chief Justice, because Black was, had, had perhaps too much of the mark of the unorthodox of him. But those two got along very well and Black always thought very highly of Hughes.
Murphy: I assume in assigning opinions, the opinions that Hughes assigned Black, that he had a regard for Black's competence.
Douglas: I think that Hughes had, had high regard for Black's competence and ability. And Hughes was a, was a, I think, a great man. There was nothing petty about Hughes. He knew that every one of the men around the table got there under his own steam and was not beholden to him and was sovereign in his own rights. And he had great respect for, for each of them I think.
Murphy: Talking about Black, still, the story of Black, how Stone's comment to Marquis Childs about Black is well known. And you've indicated that Stone never really thought highly of Black. Jackson claimed that Black's attitude toward Stone was very unpleasant. Would you comment, so far as you can, on the outward observance of amenities between Stone and Black and perhaps the degree to which these observances or non-observances appeared to mask or reflect deeper feeling?
Douglas: When Black first came on the Court, I think he was quite close to Stone. I mean, by that, I think that he had an admiration for Stone. Stone was, had written the dissent in the A.A.A. case. I think that Black looked up to Stone. I think that the relationship deteriorated because Stone, whom I greatly admired and whom I know probably better than any other member on the Court, in view of the fact that I was once his student at Columbia and had been very close to him over the intervening years, had a side to him that was somewhat troublesome. Stone was inclined to be garrulous, gossipy. Stone was, perhaps this was a carry-over from university days, from campus attitudes. I think Woodrow Wilson once 'talked about the minor statesmanship of university politics. Maybe it was habits acquired in dealing with the petty matters that so many faculties have to deal with, or do deal with. I don't know. Perhaps it was just in, part of his deep-seated nature. Stone was a man who was a little gossipy, who relished saying something a little snide about someone. He wasn't malicious. He was a fine, fine man but he just talked too much. And these things that he would drop about Black, some of them at Frankfurter's instigation, some of them under his own steam, gossip, I think, came back to Black. And I think that Black got the impression that Stone was a man who was out to whittle him down in public, to make fun of him, and so I think that that froze Black somewhat. Not in terms of amenities, because he was always very gracious, but I don't think that he had the respect for Stone that he had at the time when he first came on. And I think that his, his real feelings about Stone were of a man that he didn't greatly admire. Black never has, never, never told me that, but I think that, I think it's traceable to those influences that I have mentioned. Now, this never broke out into unpleasant attitudes or incidents or episodes. I don't know what Jackson has claimed about Black's attitude toward Stone being an unpleasant man. Black never, in the years I was with him in conference, never once spoke an unkind word, never, never spoke a mean word or a malicious word. That's not to say that he didn't present powerful advocacy. Hugo Black is, is, and always had been a great advocate. And he feels very deeply and he speaks with great intensity. But never so far is I had observed, does that involve, did that involve any, any personal animosity to Stone as an individual, anything that happened in conference.
Murphy: Well, moving on, in 1949, Justice Jackson described Justice Murphy as a friendly, likeable person, something of a mystic, a good politician, but a poor judge, whose opinions were written by his law clerks. What was your impression of Murphy as a judge?
Douglas: I thought that Frank Murphy made a distinct contribution to the Court. He brought to the Court a different kind of a background in training than the other Justices. He was less a professional lawyer or a professional teacher, such as Frankfurter had been. He'd actually been away from the law quite a lot in his public service. He was a very broad-gauged man with wide interests. His understanding of history was good. He's not the type of man that you would retain to draft a mortgage, first mortgage on the New York Central Railroad. He's not that kind of a craftsman. But he was a rugged craftsman in a different sense. He got the grasp of the larger issues. I think he had much well than some of the other Brethren, including Jackson, a better grasp of the dimensions of the Constitution and the overtones of the various clauses. He had the, the type of approach that I find in a few men here and there who have not been much as lawyers, in the sense of practicing law or teaching law would have, who come out of the field of political science, who perhaps have been immersed in government. I think those people would make a distinct contribution to the Court. As a matter of fact, once shortly before his death, Roosevelt was walking with me and asking me if it was necessary to have every member of the Court a lawyer. And I told him it wasn't necessary to have any of them lawyers so far as the Constitution was concerned, that there was no provision in the Constitution that required the Court to be composed of lawyers. Roosevelt's face lit up and he said, "Well, my next appointment to the Court will then be a layman. Who shall it be?'' And he talked about it. And I came up with the suggestion that his next appointment should be Robert La Follette, who was then in the Senate, who was not a lawyer but who knew much about government, who saw the Constitution from the perspective a little different from a law office, from a plaintiff's lawyer, or a defendant's lawyer, but who, I thought, would make a great contribution if he were a member of the Court. And I think that if Roosevelt had lived that Bobby La Follette would have been the next appointment that Roosevelt would have made.
Murphy: -- a great precedent.
Douglas: It would have appealed to Roosevelt because, in the first place, he had no great regard for lawyers, and secondly, he had an impish way about him in which he liked to break precedence and that would have been a good, a good precedent to break. Murphy's appointment, I think, was somewhat in that tradition because Murphy, although a lawyer, and although he had served as a judge in a lower court, he had been away from the laws as I said, for a long time. He didn't like the work of the Court much, Murphy didn't. He preferred, I think, to be in the executive branch. I think his secret ambition was to be Secretary of the Army, or Secretary of the Navy, some such post. I think his happiest years probably were when he was Governor. But those who run down Frank Murphy as a Justice, I think, are doing him a great injustice and themselves a great injustice, because I think he made some very enduring contributions to the Court. It was Frankfurter who used to always make fun of him. "He couldn't pass a law review test. He couldn't marshal at his fingertips all of the precedents and authorities," and whatnot. But I think he cut closer to the heart of the Constitution than Frankfurter or Jackson or many others who sat on the Court. He, actually, did a lot of the work himself. I only know of one opinion that he left to a law clerk to write in the sense of furnishing him a first draft. But he's not the only one who's done that. As a matter of fact, my Brother Frankfurter has been the one who has farmed out opinions more often than anyone else to law clerks, the job of writing opinions, at least the first draft. And you can tell which ones they have written by measuring the size of them, and the tables that are contained in the appendix to then, those are the ones that the law clerks of Frankfurter have written. And I think that Frank Murphy wrote most of his and I think that he was very much a person who was very much alive to human problems. He brought a compassion, a sense of justice, a feeling for the philosophy of the Constitution to the Bench, almost like no one else. So I was close, very, I'm prejudiced, I was very close to him personally. He was probably the closest friend I have had on the Court and saw him probably more than anyone else, had many, many hours with him, in and out of the building, socially and otherwise. He was, I think, a fine man, although, perhaps, something of a mystic. He was, I think, an outstanding judge in the sense of, not the tax lawyer who is an expert, but in the Constitutional lawyer who sees the full dimensions of the great charter that he is construing.
(END CASSETTE NO. 7a)
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