Transcriptions of Conversations between Justice William O. Douglas and Professor Walter F. Murphy


Professor Walter F. Murphy: Now, Mr. Justice, I was thinking that since Baker v. Carr was handed down earlier this week, you'd like to say a few words about individual views or about the conference in this case.

Justice William 0. Douglas: Well, Baker v. Carr represents, in substance, the dissenting opinion that Black wrote in Colgrove v. Green, that I wrote in the Georgia case, Smith v. --

Murphy: South v. Peters --

Douglas: South v. Peters. That view finally obtained as a result of the arrival of new judges on the Court. The Chief Justice, Warren, was very much of that view at the conference after argument of the case, so was Brennan. The four who were, seemed to be definitely opposed to it were Frankfurter, and Clark, and Harlan and Whittaker. So the vote of Stewart was the critical vote at the time of the original conference on the case. As a matter of fact, but, he being the junior Justice, it was four to four when they came to him to discuss. He had been greatly troubled in the case and stated that he could not agree with the conference views as expressed by the Chief and Black and me. Those views having been those primarily expressed in Black's dissent in Colgrove and my dissent expressed in South v. Peters. So, there was considerable uncertainty as Stewart continued his discussion. Finally, he said that he would come out to reverse on a very narrow ground and that was whether, that was that the, in a very technical sense the case presented a justiciable issue. What kind of proof should be needed, he wouldn't want to say, although he indicated that it would seem to him to be a case requiring very, very clear showing. He thought that a distinction between farmers and city people could be taken, that a legislature could weight the voting on the farmers' side as against the city people. But he was all clear on only one thing and that was that the issue as to whether the apportionment statute of a state violated equal protection did present a justiciable issue. And so on the, on that very, very narrow ground he voted in the case to reverse. The problem then arose as to the assignment of the opinion. And Black and I felt very strongly that it should be assigned to someone other than Stewart. Because Stewart's views would, put into an opinion, would probably reflect a very narrow aspect of the problem and perhaps cast a shadow, by innuendo and whatnot, on the merits, making the reversal merely a technical victory, and that the end result would be the same as in the past, namely, that courts should not be of any effective relief. Black and I talked about it. We were convinced that we shouldn't write the opinion nor should the Chief because it would be very difficult to get Stewart to go with us. So we talked to the Chief and urged him to assign it to Brennan who in conference had stated a position somewhat in between the Chief, Black and me on one side and Stewart on the other. And that's the way it was done. And Brennan, before he circulated the opinion to the rest of the Court, took it up, took the draft opinion up with Stewart, and got all of Stewart's criticisms, and embodied them in the first circulation. So that when he circulated, he had an opinion in which there were two votes, his own and Stewart's, already obtained. Black and I had difficulties with the opinion and that's why I wrote my concurring opinion which explains itself. After the case had been, Brennan's opinion had been circulated and after the dissents had been written, to the very great surprise of everyone, Clark had changed his mind and thought that on reconsideration of the matter that the problem was not only justiciable but that on that present record there probably could be a decision on the merits. It's likely that if Clark had felt that way at the time of the original conference that there might have been four others who would go along with him. But his switching vote came so late that the rest of us felt that to follow it at that late stage would mean an impossibility of a decision in 1962, which was an election year, and the decision in March of 1962 would possibly give the courts and the legislature time to work out a reapportionment for the 1962 election. But that was one of the fortuitous circumstances that sometimes comes into the judicial process that greatly changed the whole complexion of the case. Because Clark's view made five for the result on a much broader basis than could be said at the time when we only had Stewart as the fifth. But with Clark as the fifth vote, Baker v. Carr represented a very substantial advance, a reversal of long policies, the repudiation, in substance, of Colgrove v. Green. And it means that with a Court composed of those five, there would be no doubt but what the district judge would be supported on a decree written within the framework of the general equal-protection decisions of the Court. That could not be said prior to Clark's conversion. Because under the Stewart view, it would be extremely unlikely that Baker v. Carr would have accomplished anything except making the issue a justiciable one by putting the remedy for all practical purposes beyond the reach of judicial authority.

Murphy: Well, may I ask one thing on this? You indicated that Justice Whittaker was opposed to the decision in conference. Is, did you recall if he actually voted with the minority?

Douglas: Yes. He voted with the minority. But he got sick and was in the hospital. And we know some weeks ago that he was going to retire and had sent a letter to the President, that the President was going to accept about this time into the end of March 1962. And he asked that, therefore, that he be recorded as taking no part in any of the decisions in which he had voted that had not come down at the time that he went to the hospital.

Murphy: I was also wondering whether in conference Justice Frankfurter repeated this argument that he's used before, that if a state is maldistricted, that the remedy is for the people who are, whose votes aren't counted, to elect legislators or new legislators. I wonder did he repeat this?

Douglas: Yes, he felt very fervently that the remedy was at the political level, the level of legislative action, election of a Governor who would stand for those reforms and building up of the pressure on the legislature through public opinion, and so on, to do something about it. It was the same old talk that was at the heart of Colgrove v. Green and that reflected in his opinion that this is a matter for political remedy in which the courts were not competent to act. Of course, a court couldn't act like a legislature and reapportion. All a court can do is to determine whether or not a particular law violates the standards of equal protection and the standards of equal protection here are not any more vague or more uncertain than the standards of equal protection in other respects. Absolute equality, of course, is impossible. And that's what all the cases say, if that, if absolute equality would make a graduated income tax unconstitutional.

Murphy: Mr. Justice, this morning's papers have the information that President Kennedy has nominated Byron White of the Justice Department to replace Mr. Justice Whittaker. I'm just wondering if you knew anything in advance about the appointment, whether anyone on the Court was consulted, and whether you have any personal acquaintance with Mr. White.

Douglas: The first vacancy on the Court had been promised to Abe Ribicoff, former Governor of Connecticut, a member of the Cabinet. He told me several weeks ago that the promise had been made to him and he had looked forward to sometime possibly serving with me on the Court. I've known Ribicoff a long, long time. But he said that after being here in Washington and thinking things over he had decided that if there was a vacancy and it was offered to him, he would turn it down because he would not like the life on the Court. He did not like the life of a Cabinet officer. He said he thought that the only life that he enjoyed was a political office, like Governor or Senator, and that he had been Governor in Connecticut for a number of years and enjoyed the office, public speaking, campaigning, and he thought that his long-term contribution to American public life would be in the United States Senate. And he was going to announce for the United States Senate, which he plans to do, and he plans to leave Washington July 1, 1962. So with Ribicoff out, the question arose as to other possible selections. I had been up to the hospital talking to Whittaker and I had not known him before he came on the Court. He and I became very close in the five years he was here. He was in very poor physical condition, very worried and very depressed, of a very low physical ebb. He asked me what I thought he should do. I told him I didn't think that he was, would be in a position to decide what he should do until he got well, and to forget about the Court for six months and come back in October and make up his mind then. What I had in mind, and I talked to the Attorney General about it, was, was this. Whittaker, Whittaker's great joy in life came when he was District Judge, Federal District judge. Eisenhower named him. He served there about a year. That was his dish, that was his happy medium. He loved the arena, he loved the courtroom, the trial, the cases, and as I told the Attorney General, that if he could find for Whittaker a vacancy on the Federal District Court in Missouri and would be willing to name him, I was morally certain that Whittaker would take that and resign from this Court. And live happily ever after, because that was his first love. He found the details of the court work here very, very wearisome. Whittaker was somewhat like Stone. Stone pursued every single, bloody point in the case, whether it was important or unimportant, right down to the razor's edge, and Whittaker did the same thing. He was an extremely thorough and painstaking man who just never, never stopped working on a case. He had no patterns of recreation, took every case home with him and woke up in the middle of the night worrying about it. He, therefore, was very, very unhappy. Why he decided, however, to retire in March 1962 and not wait until October to make up his mind, I don't know. Because his decision came as quite a surprise to me in view of the talk I had with him in which he agreed not to do anything until October. I talked to Kennedy, the Attorney General, about that, that kind of a shift for Whittaker. And after Whittaker's retirement Bobby Kennedy, an old, old friend of mine, came in to see me to talk about the vacancy. Whether any other members of the Court were consulted, I don't know. His first thought was that he would appoint a Negro, Ribicoff having declined. So, he was going over the list of available Negroes.

Murphy: I can see Senator Eastland's face.

Douglas: I beg your pardon.

Murphy: I can see Senator Eastland's face.

Douglas: There had been quite a number of very able Negroes arguing before us. Probably the ablest one alive is Thurgood Marshall, who was named to the Court of Appeals for the Second Circuit. He mentioned his name. He also mentioned Hastie of the Third Circuit Court of Appeals. Hastie is a very fine person. He's not as able a man as Thurgood Marshall. Matter of fact, he is a sort of a pedestrian type of person, very conservative. Another very able Negro is a man by the name of Crocker out in Detroit, Michigan. If I had to name the ten ablest advocates that have appeared before the Court during my term of twenty-three years, I would put two Negroes in that category. One would be Thurgood Marshall and the other would be Crocker. Trouble with Crocker is that he was one of the lawyers for the defendants in the Dennis case and he was one of the lawyers that was held in contempt by Judge Medina in the Dennis case. The Michigan Bar Association gave Crocker, later on, a clean bill of health and he's a member of the Bar in good standing and has argued many, not many cases here, but a number, and he's one of the very ablest advocates that I know. But he was out of the running because of his association with the Dennis matter and his being held in contempt of court, plus the fact that he was a Negro. Why the Attorney General stopped looking for a Negro, I don't know. Whether the decision was purely a political one, that they didn't think that it was worth the political sacrifice at this time, the long drawn-out battle for confirmation, that probably never would have been forthcoming in the end, I don't know. But anyway, the, I know that the search went on. And Byron White was quite a logical choice for several reasons. First, his youth, and Kennedy is looking for younger men at all levels of appointment, executive, administrative and judicial. Secondly, Byron White was very active in the pre-convention days for Kennedy in Colorado. He gave a lot of his time, headed up a lot of the Western work in getting delegates, very active. He has made a very fine deputy. He showed up with great strength in the school cases down in the South. He's very able, very clean cut, a fine outstanding man. I think it came as a great surprise to him. And I think that his appointment was made because the Kennedys knew him intimately and favorably and because they wanted to make a quick appointment and not let the thing drag out with all sorts of political pressures building up for this candidate or the other candidate. And those pressures were already starting, many wanting Adlai Stevenson on the Court, many wanting Kefauver, and so on. Byron White served as law clerk to Fred Vinson when Vinson was Chief Justice. That's when I came to know him first. He went to Colorado and became a partner of my first law clerk in my Washington service, Quigg Newton, who was my first law clerk at the FCC when I was a Commissioner. And he has been very active in Democratic politics in Colorado. He is the first justice to be appointed to the Court from Colorado. The Western states, I think, need representation here, more representation then they have had in the past. We have had very few. Sutherland from Utah, and Van Devanter from Wyoming were the old timers from the Rocky Mountain area and I think that Byron will make a very fine contribution. The jokesters, of course, are already saying now the Court is desegregated with a White and a Black.

Murphy: Well, perhaps, we could move back to some of the more historical questions that we have been pursuing. Skinner v. Oklahoma, which was decided in 1942, has been interpreted as a major modification of Buck v. Bell in its upholding of compulsory sterilization. Was there any discussion of the general philosophy of Buck v. Bell at the Skinner conference? I was wondering particularly what people like Justice Murphy had to say and whether when you, for example, wrote the opinion of the Court, were you intending to modify or to merely limit Buck v. Bell?

Douglas: No. There was no attempt to limit Buck v. Bell. Whether, whether the Court would have been unanimous in the case but for the equal-protection point, I have no way of knowing. After the argument of the case, Stone, who was then Chief Justice, thought that, that perhaps there should be a reargument. They were, the conference discussion was rather inconclusive. The vote was unanimous to reverse. Stone was greatly troubled by the case because he didn't know how to get around the presumption of the constitutionality of the statute. At the same time he realized that the matter of civil rights was involved, that a person who was about to be sterilized had the standing to assert those civil rights and be heard. His discussion was along the lines that this is eugenic legislation like what, like the long involvement in Buck v. Bell. He stated in conference that after a discussion that went on for a period of about a month, off and on, that he would not ply the presumption in favor of constitutionality of the law because he knew the legislature was legislating in a field about which he knew nothing. Whether Stone would have, would have reversed Buck v. Bell, I don't know. He was greatly bothered by it. He said in the conference he didn't like the equal-protection point. He didn't think there was much to it. But he said that he would, he would go along with it if the Court wanted to go on that ground. Some of us, I in particular, were very clear on the equal-protection point. And I was very clear on the constitutionality of Buck v. Bell. I thought that this kind of legislation was permissible and constitutional but that it had to be surrounded by very careful procedural safeguards lest it be used oppressively or arbitrarily and that the states that had it should be held up to a very high standard of meeting the, all constitutional requirements as far as due process and equal protection. Due process seemed to be satisfied in the Skinner case but the equal-protection point didn't, in my opinion. Roberts was doubtful about the equal-protection point even when the case came down but he agreed to keep his doubts to himself and not write anything. So it came down, came down that way (inaudible) this Court. It was a Court, by the way, where there was a unanimous vote to draft a cert and a unanimous vote to reverse (inaudible). Stone and Roberts, in particular, being very doubtful about the equal-protection point. But Murphy and Black and Frankfurter, Reed and I were very clear on the equal-protection point from the beginning.

(END CASSETTE NO. 7b)


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