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


Professor Walter F. Murphy: Mr. Justice, Hirabayashi v. United States and Korematsu are among the most important civil liberties cases in the last thirty years. Perhaps we can discuss these cases separately and take up Hirabayashi first. Would you describe the conference discussion?

Justice William 0. Douglas: Well, in Hirabayashi, the conference discussion was conducted mostly by Stone, who spoke at great length about the war powers and what a dangerous position the United States was in following Pearl Harbor. This was the first war case and the discussion of war cases that this Court had had. And Stone went into it in same detail, giving his views. Unpalatable though the action was, he didn't see how the Court could look behind the judgment of the military. He didn't think it was necessary to reach the question of whether or not they could detain after immobilizing the Japanese citizens on the West Coast and whether they could go beyond that. So he decided, in his view, that there should be a very narrow decision but the tenor of his discussion was that the sky was practically the limit when it came to the war power. The others seemed to, as I remember the discussion, think the same. Certainly Black and Frankfurter did. Murphy didn't vote. He passed. All of us voted to affirm, except Murphy who took no, who did not record a vote at that time. Some of us, Rutledge and I, were less clear then Stone, and Black and Frankfurter. I have no distinct recollection as to Roberts' position, although he did vote to affirm.

Murphy: In the Stone papers, there is a letter from Frankfurter to Stone in which he made several points and I just wonder how these square with your recollection. One point was that Justice Black had told him that were he the Commanding General of the Pacific Defense Area, that he would carry out the program despite adverse Court decision. Do you think Justice, or do you recall Justice Black's views being that strong?

Douglas: I think that's approximately accurate, yes. There was somewhat considerable discussion as to what, what power a court would have to give relief if it were attempted, whether the, in time of war, whether the situation would develop as it did one time under Lincoln's administration where the writ of habeas corpus was suspended. Black, I think, was pretty strong, as I remember the discussion, for the very broad interpretation of the military authority.

Murphy: Did Justice Black ever approach you about your concurring opinion?

Douglas: I don't think so. He may have said a few things to try to persuade me but nothing. He never, Black, unlike Frankfurter, never, never put on a drive to try to change a person's point of view.

Murphy: When you first drafted your concurring opinion, I was wondering if you had as a primary purpose, as Brandeis apparently often did, of persuading the majority to take or to modify their opinion by expressing some alternative point of view as you did here. I think you had a reference to the possibility of habeas corpus as a means of securing justice in individual cases.

Douglas: Yes, I was trying to get at least for myself a, some line of distinction so that there would not be just a wholesale grant of power to the, to the military. I had hoped that it would be written more narrowly but I didn't have any success in that regard.

Murphy: Did Justice Frankfurter, or Jackson, or Stone ever discuss at any length your concurring opinion with you?

Douglas: Stone did. Stone was. When Stone made up his mind, he's like a horse that know that the oats were in a certain stall. And that was where he was going and there was no turning back. He was very solid in his position once he took his position. He was very nice and agreeable about making changes of a minor nature but very seldom of any major nature. He did talk to me about why can't we get together, and so on. Frankfurter rather made fun of it in conference. But before that opinion came down, I don't recall any discussion with Jackson.

Murphy: Was Frankfurter's point the one that he made in his letters to Stone that he was afraid that there would be a flood of litigation in the lower courts?

Douglas: Yes, that was one, that all these things that are on the verge of being unjusticiable because they deal actually with the Commander in Chief.

Murphy: Well, shall we move on perhaps to Korematsu?

Douglas: Korematsu.

Murphy: Regarding Korematsu, I was wondering whether the Government's argument in that case was up to usual standards?

Douglas: Well, as far as I know, it was. I don't recall anything that would suggest that the Government was making a weak argument, tongue-in-cheek, hoping to throw the, get the Court to throw the case, reverse the cases and reverse its whole program of evacuation of the Japanese on the West Coast. When the case came up on cert, Stone didn't vote. He didn't vote to grant, he didn't vote to deny. Black voted to deny, Rutledge Jackson, Murphy, Frankfurter, Reed, Roberts and myself voted to grant it. And after the conference discussion the, there was a five to four decision to affirm. Stone and Black and Reed and Frankfurter were very clear on the matter. Rutledge, as I recall, was less clear, but went along. Those who voted to reverse were Roberts and Jackson and Murphy and myself. Matter of fact, I prepared and circulated at one stage in the consideration of the case a dissenting opinion, but finally folded up and decided to go along with the, with the majority. It was a very bothersome case, troublesome case, as indicated by the five-to-four decision, the five-to-four vote as originally taken at conference. And it was very much discussed, very much considered, very much debated up and down the halls of the, the corridors of the Court.

Murphy: Do you recall why precisely you decided to withdraw your dissent?

Douglas: Well, it was, it was done with same reluctance some hesitation. It was, I had the fear all along of, of detention by the military. The point that we ultimately reached in the Endo case. But there we reached it on the question of the construction of the, of the orders, as I recall, not on the Constitution, because I couldn't get a Court for the constitutional decision. The Court did not want to go beyond the construction of the regulations. It was, I don't know, I regret sometimes that I didn't follow my dissent in Korematsu. This was a very, very difficult, troublesome decision. We did know that if, at that time, America was so disorganized after Pearl Harbor that if the Japanese Army landed on the West Coast that they could march to the Rocky Mountains pretty easily. There was no, all the, no interior defenses. Once they landed and if they landed in civilian garb they could raise great havoc and nobody would know who was a Japanese soldier or who was an American citizen of Japanese ancestry.

Murphy: Do you know, or at least do you have any theories why Stone assigned the Opinion of the Court in Korematsu to Justice Black?

Douglas: I don't know. Stone never consulted me. The conference discussion indicated, however, that Black was very much on Stone's side, very eloquent in defense of the power of the military to do what they did. And he had no doubts, reservations. So whether Stone did it because he thought it would be desirable to have a liberal write in support of this, I don't know. I would suspect that that might have been the reason but that's just on the basis of suspicion not on the basis of anything that Stone said.

Murphy: I was also wondering, this is a very minor, picayunish point, but it's something that's interested me, that justice Black and, apparently at Stone's request from the memorandum in the Stone papers, inserted a statement on page 221 of the Court's opinion that the Justices could not say that Korematsu, would be taken to a detention camp if he obeyed the Army's order. The Japanese-American Citizens League had claimed in Someke's brief that Korematsu would be put in such a camp, and this, of course, was the Army's policy. In, the Government, in its brief, explicitly conceded that detention in the camp would follow Korematsu's obeying the order. I wonder whether there was any objection raised by any member of the Court to the insertion of this statement.

Douglas: As I recall, there was, because I think the Court was divided. It seemed to some of us that there was, Korematsu was under compulsion to leave not as he chose in his own automobile, or on foot, or buying an airplane ticket on such airlines as he might pick out or by any train he might choose. But he was being required to go from the area via the, an assembly center, and I think that division of view in the Court is expressed in Black's opinion.

Murphy: It seemed, I wonder just, this might be a general question as this. Does the Court often reject a statement of fact that both sides concede to be true?

Douglas: No. That is very seldom done. There was in this case the question of, of law, of course, to other detention in connection with evacuation, so you could read this, this particular information, I guess it was an information about an indictment. You could read perhaps this information either way. I felt that this was, the way that the Court put it on page 221, was not correct, was not the fair way of reading the information or this record, that we had had to consider the evacuation and the detention together. There had been, Endo came down the same day I believe, in the same Volume, 323 U.S. I wrote Endo, as I said, that turned on the construction of the regulations. We had a considerable discussion. I had the desire to put it on the constitutional grounds but I couldn't get a Court to do that. Black, Frankfurter, Stone, were very clear that that was not unconstitutional but that this would have to turn, Endo would have to turn upon the construction of the regulations.

Murphy: I was wondering, this may be an unfair question to ask, but with the benefit of almost twenty years of hindsight, do you think that Korematsu and Hirabayashi were wrongly decided?

Douglas: I have had grave doubts. I had grave doubts at the time. I expressed qualifications to Hirabayashi the opinion I filed and I never published the dissenting opinion in Korematsu. The problem is a very, a very difficult one, even looking at it from the point of view of hindsight, where you have a (inaudible) military judgment that people of a certain race would have to be evacuated from an area because there were apt to be landings by a foreign army of the same ancestry making it difficult to determine, as today in South Vietnam, who was on what side. I was sorry that the Court didn't in retrospect, didn't project the problem down through all the stages and say at the time of the Hirabayashi what the limits would be or suggest it. The, there was a in Endo, there was a delay in handing down the opinion. Korematsu and Endo were delayed for some time in the Court after the votes had jelled because there was a lot of dissatisfaction in the Executive Branch. People in the Department of the Interior who were handling the assembly centers were very much up in arms and I think that the idea of Frankfurter and perhaps some others was that if the Court just didn't do anything, that perhaps this thing would solve itself, everybody would be discharged, I mean in the category of Endo, and we wouldn't have to reach the question.

Murphy: But, how, you say the Interior Department, did the Interior Department have any inkling of what the Court's decision was going to be?

Douglas: Oh no, not that I know of, no. But I think that there was discussion at the bar, at the argument of the case, and the briefs, and the newspapers, that something was being done about the assembly centers. They were in the, pretty much the same category as the NRA was at the time the Chepter case was about to, they were about to collapse anyway. People of the Frankfurter school who would like to avoid any decision on any major question of that kind were arguing for just holding, holding the cases. That's about the essence of it.

Murphy: There's a related question here that I might add, that in an article I published in 1958, I notice that the Court has misused, in quotes, "the Hirabayashi and Korematsu in the sense of citing them for the proposition that racial discrimination is odious to the American way of life." And in the Michigan, the Bob Lowe Excursion Company v. Michigan, the District of Columbia school segregation cases. On the whole, I would say, seven or eight other instances. I wonder, do you think or know if this has been part of a deliberate effort at least on the, by some Justices, to restrict these cases to their peculiar situation or whether this has simply been a, here's a piece of dicta that fits in nicely?

Douglas: I think it's probably the latter. I think that the Court, I think Black, if you ask Black today what he thought of Korematsu, he would be much, much firmer than I, I am. I've heard him talk in recent years about Korematsu and indicate with great emphasis why he thought that was the proper decision. I have more doubts about it. I've always had doubts about it. It's a very, always a troublesome case and I was sorry afterwards I didn't file my dissenting opinion. It think that, I think those cases, like the Korematsu and Hirabayashi probably would have been decided the same way by any court that I have sat on in the twenty-three years. I think there would have been a majority for those. But it was, I think perhaps the biggest disappointment to me was the fact that they couldn't. The Court wouldn't, in Endo, go to the constitutional ground but just stick to the conventional way of deciding the case a strain to construe a regulation to avoid a constitutional question. I'm the author of that but I did it under the necessities of the situation. But it seemed to me to be a much more wholesome thing from the point of view of the Court as an educating influence just to say what you can and can't do.

Murphy: Yes, particularly after deciding the others on constitutional grounds.

Douglas: Yes.

Murphy: This seemed to be an excellent place to draw a line.

Douglas: But the citation of these cases, I think is just for a literary phrase here and there and not any attempt to limit them, as near as I know, although I would certainly limit them, I think. In retrospect, I would have done things quite differently if I had to go back and do it over again. Does that about cover it?

Murphy: Yes, I think so. A following hypothesis that has been developed by a small group of sociologists, Professor David Danelski has attempted to apply this task-social-leadership dichotomy to intra-court behavior. I was wondering what your reaction to the value of this sort of study is.

Douglas: Well, I think it has very little value for the reason that most judges are not, in my experience on the Court, have not been evangelists for their own particular point of view. Frankfurter has been proselytizing. I mean, every case is for him a cause. He has a missionary zeal about even a stinking little tax case. He wants everybody to vote his way. Black has been a great campaigner for his point of view, not across the boards indiscriminately like Frankfurter but next to Frankfurter, I would say. And Stone was also a proselytizer and evangelist for his point of view. But most other judges have not been. And most of them make up their mind and then when they make up their mind they think their job is over. That's always been my own particular philosophy. So I have never gone up and down the hall trying to get votes and very few judges on this Court have. So, to imagine a judge with an opinion going up and down the hall trying to persuade others to join it, just isn't realistic, except for Frankfurter, permanently, and to a lesser degree Black and Stone, in the twenty-three years I've been here.

Murphy: Would you say that Hughes was of this sort?

Douglas: Oh, no, no. Hughes was utterly circumspect, always proper, wholly impersonal, never, never arguing, never, never begging, never pounding the table, never denouncing another school of thought, never screaming, never raising his voice, never having near apoplectic fits at somebody's view that sounded to him stupid. Hughes, in his management of the conference, was very sharp, precise, succinct. And he would never take more than just a minute or two with every case and then when that discussion of his was over, would go around by seniority, never once would he interrupt, never once would he reply to anything that was said. He would wait till everybody was finished and then say now we will vote. Hughes was very, very opposite from Frankfurter, from Black and from Stone in that regard.

Murphy: Of course, this is a form of task leadership which you have described in Hughes, to state his views succinctly and precisely.

Douglas: Well, a different kind --

Murphy: But it is a, a --

Douglas: Well, of course, those who came on, the younger generation, like myself and Frankfurter and Jackson, Murphy, Rutledge, those people would look to Hughes with great respect because of his broad experience. And everybody liked him. He had no enemies on the Court, unless possibly McReynolds. Stone liked more of a free-form discussion but Hughes never exploited his, that prestige.

Murphy: This is jumping a bit, but I was wondering if you knew anything about the background of Mr. Justice Burton's appointment to the Court?

Douglas: No. it came as a surprise. Truman told me that he had a great admiration for Harold Burton because Harold Burton was on the Truman committee when Truman was in the Senate. And they traveled around a lot together and Truman was a Republican who was very respectful of --- I mean Burton was a Republican who was very respectful of other people, who was very conscientious, who was no demagogue, just a hard-working, careful, honest public servant. And he and Truman seemed to get along very well on the Truman Committee. So, out of admiration for Burton, he just put him on. I think that other Presidents usually do the same. The Truman appointees were all very much like Truman. And Burton was very much like Truman. So was Vinson and so was Clark, and so was Minton. And Burton was a very fine Christian character who was very, very methodical, very, very painstaking, and he, his mill ground very, very slowly. He was in the building at eleven, twelve, one two o'clock, night after night after night, because he didn't work very fast. But it was Truman's association with Burton on the Truman Committee and Truman's admiration of Burton that led to that appointment.

Murphy: Mr. Justice, Willy Francis case who has been, eh, on the Willy Francis case in 1947, the vote was five to four to allow the state to try again to execute the prisoner. The language in Justice Burton's dissent opinion, which you joined, is very peculiar. In place it sounds like a majority opinion. Was in fact this the case?

Douglas: No. The conference vote in the Resweber case was six, six to three to affirm. I was one of the six, six for, Jackson, myself, Frankfurter, Reed, Black and Vinson. And I was persuaded after the, after the conference after the opinions were circulated, that Burton, Rutledge and Murphy were right. And so I joined the dissent. But it was never written as a majority opinion. It never lost any votes. It picked up votes rather than losing votes.

Murphy: All right. I have a couple more general questions here. One is this. In 1940, 1944 and 1948, you were frequently mentioned as a possible Vice-Presidential nominee. According to Rex Tugwell, Roosevelt was thinking of asking you to run with him in 1940 and certainly the thought was going through Ickes' mind. Did the President ever discuss the matter with you then or afterwards?

Douglas: No, I never had any discussion with Roosevelt about myself running with him as a Vice-Presidential nominee. I never had any discussion with Roosevelt about me running for any, any office. It never, never came up in discussion, neither 1940 or 1944. In 1940 there were friends of mine around Roosevelt who were talking about it, somebody like Wallace. Ickes was one. He used to talk to me about it, and in 1944, Ickes and Tommy Corcoran. There were probably a few others who were talking to me about it. But Roosevelt never talked to me about it and I never set up anybody as an intermediary because I didn't think that being on the Court was compatible with making plans to run for public office. Frankfurter used to make accusations that I was doing just that. But the truth was that I wasn't, that I had no, that friends of mine seemed to be enthusiastic about me but I never gave them any encouragement. As I say, there was no effort made to, that I was aware of, to persuade Roosevelt. Roosevelt never talked to me about it. It was only after the 1944 convention that I knew that Roosevelt had written the convention, had written the chairman of the Democratic National Committee saying that he would be happy to run either with me or with Truman. But I didn't know about that until after the election, after the convention.

Murphy: Remember, just before the convention you, or I shouldn't use before the convention, about the time of the convention, you wrote Stone a note explaining that some people were mentioning your name and that you were taking off to the mountains where you couldn't be reached by phone. And that washed the whole thing that way.

Douglas: Well, I didn't quite, that's not quite the, quite accurate. I had a, at that time, I had a summer place in the Walla Walla Mountains in eastern Oregon. It was rather remote, rather difficult to reach. There was a poor-service telephone that sometimes was operating, but most of the time was not. So, if you wanted to telephone, you would have to go down the valley about sixteen miles. And that was my regular summer place. I went there not to be, not to avoid being considered as a Vice-Presidential nominee, but I went there because it was my home, my summer home. On my way there, when I got to Oregon, some people came up from California. One of them was an old friend by the name of Cook, Cal Cook, whom I'd known way back from college days. And he came up to get my approval to head the California delegation to put me in nomination. And I refused to give him permission. I remember he stayed about a day, arguing with me, pleading with me. And I refer in my letter of July 12th, I think, 1944 to Stone. I didn't mention the conversation with Cal Cook but I said in that letter that on my, on the way to my summer place I was asked by delegates from far western states if they could nominate me. And I told them what I said in the memorandum to Stone of July 12th, a memo that I think is in the Stone papers. There were people from the State of Washington, also, who were very active in promoting me for the Vice President in 1944. That was the reason for the letter to Stone.

Murphy: I was wondering, in 1948, Truman again called you, didn't he, and asked you --

Douglas: Yes. Truman got me on this poor-service telephone up in the Walla Walla Mountains on a Friday, as I remember. And I could just barely hear him, and I got the message, all right. And I asked him if I could think it over and call him back on Monday. And he said, "Take all the time you need." And so I came down, that was --

(END CASSETTE NO. 8)


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