Justice Stanley Reed

---

J u s t i c e Stanley Reed - Interview 6

-

- by

May 9, 1958

Shaughnessy.

We have d i s c u s s e d the N. R. A. and the A. A. A. c a s e s . second Gold C l a u s e c a s e w a s not a v e r y i m p o r t a n t c a s e .

The

It had to do

public utility in M a s s a c h u s e t t s t h a t had t h e i r

with a v e r y

payments t h a t they had to m a k e , t h a t w e r e m a d e to them, by f a c t o r i e s t h a t used w a t e r power, t o be paid not in gold coins, j u s t in gold, not i n money.

T h a t m a d e a little variation.

T h e decision was m a d e t h a t

would c o v e r t h a t phase; too. The Public Utility Holding Company Act was a n e x t r e m e l y imp o r t a n t c a s e , b e c a u s e it involved the S e c u r i t i e s and &change,

and the

holding by t h e m , by a single holding company, of many public utilities. It was upheld, m e r e l y a s a policing organization, w h e r e a s in i n t e r s t a t e c o m m e r c e t h e r e should be power in the F e d e r a l government to r e q u i r e that holding companies should a t l e a s t r e g i s t e r . f a r t h e r than r e g i s t r a t i o n .

It never went any

L a t e r c a s e s c a m e up a s to whether they

had to d i v e s t t h e m s e l v e s of p a r t of t h e i r holdings.

When you once got

t h e principle established t h a t they had to r e g i s t e r , it n e c e s s a r i l y followed a l m o s t t h a t the government had the right to s a y how they should manage t h e i r b u s i n e s s , what limitations they should be under.

I don't think t h e r e w a s anything s i n g u l a r in the p r e p a r a t i o n o r a r g u m e n t of t h i s c a s e .

T h e m a n who worked with m e on the brief was

P a u l F r e u n d , who's now a p r o f e s s o r a t H a r v a r d , and the group t h a t had worked with me on the o t h e r s .

Actually, it w a s a m a n by the naine

of Warner G a r d n e r , who came f r o m Columbia, who was an extraordinarily

capable m a n .

He was the first p e r s o n that I'd known who had taken the

- L -

c o u r s e in d r a f t i n g of s t a t e and F e d e r a l legislation a t Columbia.

It w a s

originated about the time t h a t he was in school, two y e a r s before.

There

is much c r i t i c i s m - - p r o p e r l y much c r i t i c i s m - -of the sloppy drafting of

both F e d e r a l and s t a t e legislation, not so m u c h today as p r i o r to that The d r a f t s m a n s h i p w a s not

t i m e , back i n the e a r l y p a r t of t h i s century. a specialty.

Now you know they have a drafting group that m e e t s with

C o n g r e s s m e n to d r a f t legislation.

Columbia had s t a r t e d the first- -indeed

t h e only c o u r s e I e v e r knew o f - - i n drawing up proposed bills, and G a r d n e r had been v e r y s u c c e s s f u l i n that. You could s a y that s o m e of the New Deal legislation' w a s d e c l a r e d unconstitutional b e c a u s e of sloppy legislation.

I don't think t h a t ' s a l l of

it, because s a y in the N. R. A . , they had gone so f a r in delegation t h a t t h e Court s a i d it went beyond the limits of the constitutional power.' C o n g r e s s c a n ' t delegate its legislative power.

But they c a n delegate

t h e a d m i n i s t r a t i o n of a n a c t a f t e r it's been drawn.

by J u s t i c e C a r d o e a a s delegation r u n r i o t . you c a n delegate.

That was c r i t i c i z e d

It was a p r o b l e m of how f a r

I t ' s still a p r o b l e m of j u s t w h e r e to draw the line.

But I wouldn't s a y it's been d r a w n c a r e l e s s l y - - a s a m a t t e r of f a c t , the bills w e r e drawn quite c a r e f u l l y , and t h e r e w a s much d i s c u s s i o n within t h e a d m i n i s t r a t i o n of the drafting of bills. You take the Wage-Hour Bill, which of c o u r s e had v e r y i m p o r t a n t features.

It w a s d r a f t e d and r e - d r a f t e d , a t the v a r i o u s conferences that

w e r e held a s to j u s t what approach should be m a d e s o as to get the advantage of the g e n e r a l welfare c l a u s e in the Constitution. Certainly o u r office did not a s s i s t in the drafting of m o s t of t h e m ,

but in those t h a t the a d m i n i s t r a t i o n w a s i n t e r e s t e d in, and that had s t r o n g political o v e r t o n e s . I don't r e c a l l having anything to do with t h e SEC bill.

Hours,. y e s . '

The Wage

T h e second T r i p l e A , the r e c o v e r y of the l a r g e amount of

m n e y that w a s collected i m p r o p e r l y under the first T r i p l e A.

N.L.R. B. T h e r e w e r e many c o n f e r e n c e s o v e r that. v e r y able people i n the White House.

The

T h e r e w e r e some

Judge.Rosenman was in.on a

number of a c t s , took a n active p a r t in the d i s c u s s i o n and the drafting. Of c o u r s e , t h e r e w a s C o r c o r a n and Benjamin Cohen, who w e r e intimate .

with the White House, and w e r e c a l l e d on and w e r e able to do excellent draftsmanship.

They w e r e both well educated, competen. m e n , and

w e r e r e l i e d on by M r . Roosevelt f o r many of the things that he was i n t e r e s t e d in which w e r e a d m i n i s t r a t i v e - - a d m i n i s t r a t i o n legislation. They'd be c a l l e d in. ,

T h e r e ' d be d i s c u s s i o n s .

A few t i m e s I w a s a s k e d

t o come o v e r t o the White House and sit in on one of those.

The P r e s i -

dent would a l s o t a k e p a r t in the d i s c u s s i o n , as to suggestions that might be m a d e about m e s s a g e s t o C o n g r e s s on t h i s bill. The o n e s I've been speaking of w e r e altogether those t h a t came out of a d m i n i s t r a t i v e a g e n c i e s , and of c o u r s e the a g e n c i e s hadn't been c r e a t e d , b e c a u s e they w e r e j u s t about to be c r e a t e d through those bills.

I don't know if F r a n c e s P e r k i n s contributed to the drafting of t h e N. R . A . o r the Wagner Act.

I'm s u r e she w a s consulted about it,

because s h e w a s a v e r y competent p e r s o n , and knew well the conditions. But I don't r e c a l l h e r sitting in on d i s c u s s i o n s .

I ' m r e f e r r i n g to d i s -

c u s s i o n s of four o r five people of technical questions.

In the Public Utilities Holding c a s e , I would s a y t h a t Dean Landis w a s the m o s t active p e r s o n i n that.

of the H a r v a r d Law School.

He, a s you knqw, w a s l a t e r d e a n

He w a s not only competent but e x t r e m e l y

able lawyer in h i s own right, and h i s advice on the technical m a t t e r s was both sought and followed.

So f a r a s the a c t u a l originating of the

idea, I think a thousand people had thought of it and worked on it. C o r c o r a n and Cohen w e r e v e r y active in the drafting of that. C o r c o r a n (Cotton & Franklin) had been a n a s s o c i a t e of a n important law firm in New York--Wright, Gordon, Z a c h r y & P a r l i n . type.

He was' competent to d r a f t a bill of t h a t

He had been drafting t r u s t i n s t r u m e n t s , bonds, s t o c k s , and so 9

f o r t h in New York, and contributed g r e a t l y to the formulation of the words that went into the a c t , and w a s i n t e r e s t e d in it a s a protective m e a s u r e f o r the c o n t r o l of the conditions t h a t had a r i s e n before the Crash.

Cohen w a s a m a n who had g r e a t facility of e x p r e s s i o n .

He

could contribute g r e a t l y t o . t h e choice of the p r o p e r word to d e s c r i b e what you wanted to. The next one, the Railway L a b o r Act, I'm not s u r e what that r e f e r s to.

I think t h a t ' s the c a s e t h a t I a r g u e d on t h e Virginian Railway.

If it is, it was a n important c a s e .

I ' m not s u r e that I r e a l i z e d how im-

p o r t a n t it was going to be when I a r g u e d it.

It was on how f a r you could

go towards t h e regulation of negotiations between the railway w o r k e r s and the labor unions t h e m s e l v e s .

We hadn't r e a l i z e d how important t h a t

w a s going to be, and as you know, the r a i l r o a d s had had a g r e a t d e a l of

trouble with s t r i k e s f o r many y e a r s , and I'd had s o m e p a r t in litigation o v e r t h a t through the Chesapeake and Ohio Railroad that I was d i s t r i c t

- 5 -

counsel f o r i n Kentucky.

We'd had a switchmen's s t r i k e down in Kentucky

t h a t was v e r y bad i n the l a t e twenties, before I c a m e up h e r e .

I was

i n t e r e s t e d in that, and the r a i l r o a d s w e r e j u s t a s m u c h i n t e r e s t e d a s '

t h e w o r k e r s o r m a n a g e r s , b e c a u s e t h e r e ' s nothing t h a t ' s a s costly to '

the r a i l r o a d a s a s t r i k e .

They'd been trying to work out some method

of adjustment between them, and f o r all p r a c t i c a l w r p o s e s , the bill w a s r e a l l y w r i t t e n a s a m a t t e r of a g r e e m e n t between the r a i l r o a d s and the railroad workers.

While t h e r e w e r e many things that, they fought o v e r ,

fundamentally they w e r e v e r y glad t o have it, because o t h e r w i s e the r a i l r o a d s had c o m e t o the . r e a l i z a t i o n that they couldn't d e a l with five, s i x , eight, t e n thousand w o r k e r s individually.

You c a n ' t do it.

You

have t o d e a l in a different way. Of c o u r s e the Association of E n g i n e e r s and the Association of Switchmen had become v e r y powerful political and economic entities. They r e a l l y sat down among t h e m s e l v e s and worked out the bill that w a s acceptable t o the a d m i n i s t r a t i o n and acceptable t o C o n g r e s s .

There

w e r e many people who w e r e i n t e r e s t e d in i t in C o n g r e s s , who c a m e f r o m railroad districts.

T h e whole thing w a s j u s t a question whether the

C o n g r e s s had the power t o effectively d e a l with the l a b o r a s p e c t s of i n t e r s t a t e r a i l r o a d s - - a n d they w e r e all i n t e r s t a t e by t h a t t i m e . of the small r a i l r o a d was about o v e r . on down.

T h e day

They'd been combined f r o m 1870

They w e r e put together f r o m s m a l l p i e c e s t h a t had originally

been r a i l r o a d s , one f r o m B a l t i m o r e t o Washington, t h a t type of thing. And they'd a l l b e c o m e i n t e r s t a t e .

So it w a s a p e r f e c t field f o r it.

There

- 6 -

w a s no question about the i n t e r s t a t e c h a r a c t e r of r a i l r o a d s .

So when it w a s p r e s e n t e d t o the u p r e m e Court, they had had enough e x p e r i e n c e with those things obviously to g r a s p it with no diffi.

culty and s e e the n e c e s s i t y of it, and f r o m m y point of view, and I think f r o m m o s t l a w y e r s ' point of view, t h e r e ' s no question about it, because we'd a l r e a d y had the e a r l y Coronado c a s e s ; the first and second Coronado c a s e had shown the principle by which the whole c o n t r o l of i n t e r s t a t e c o m m e r c e .had grown to what it is today. In the Wagner Act it was not a t a l l a c a s e of m o s t of the l a w y e r s feeling it would be sustained, b e c a u s e t h e r e had been a number of c a s e s when t h i s C o u r t had held t h a t production, w e t h e r it was in a textile

mill o r a s t e e l mill o r a f a c t o r y of any kind, t h a t production itself was And while it had been held equally well

essentially a local matter.

t h a t so f a r a s t r a n s p o r t a t i o n is concerned, it was i n t e r s t a t e , making a g r e a t difference between them.

Then in t r a n s p o r t a t i o n t h e r e was always

a recognition of g o v e r n m e n t ' s i n t e r f e r e n c e ; that went on back to the

I. C. C. and even before that.

You couldn't even build a canal like the

E r i e Canal without s t a t e help, government help.

T h e n c a m e the period

of s t a t e aid to c a n a l s - - O h i o , B a l t i m o r e , the Chesapeake Canal h e r e , a l l those.

P e o p l e had accepted the f a c t that in t r a n s p o r t a t i o n you always

have government a s s i s t a n c e .

We had the new s y s t e m of a i r p l a n e t r a f f i c ;

it r e c e i v e d t h e s a m e governmental aid. to have governmental aid.

Roads.

Any t r a n s p o r t a t i o n h a s

T h a t w a s a help f o r the r a i l r o a d s .

I would s a y t h a t before I a r g u e d the Wagner c a s e , I felt that it should be sustained by the C o u r t a s it w a s then constituted.

However,

- 7 -

t h e r e w a s plenty of r e a s o n to doubt it. t h a t w e r e v e r y s i m i l a r to it.

We had l o s t c a s e s right along

One of the ones t h a t w a s l o s t was the A l s o t h a t w a s quite a blow b e c a u s e

c o a l c a s e , the Guffey Act on coal.

we thought t h a t t h a t was something p r e t t y closely akin to the National L a b o r Relations Act.

I r e m e m b e r it p a r t i c u l a r l y b e c a u s e of c o u r s e I

w a s then Solicitor G e n e r a l .

O r d i n a r i l y the Solicitor G e n e r a l d o e s n ' t

a r g u e except in t h e S u p r e m e C o u r t of the United S t a t e s .

Well, we had

l o s t a good many of t h e s e N. L. R.B. cases in the c i r c u i t c o u r t s , so I l o s t s e v e r a l of t h e m , and I s a i d . t o m y group, "I'm going down and a r g u e t h e s e c a s e s myself.

T h e r e ' s no r e a s o n to l o s e t h e r e .

I ' m going to a r g u e

it down in m y own c i r c u i t , because t h e r e they know m e , and t h e y ' r e v e r y excellent judges, a n c I ' m s u r e I ' l l be able to show t h e m t h a t this is a perfectly constitutional a c t , in view of the Coronado c a s e s ana the c a s e s of the g r a i n a r e a s of Chicago

. . .

I'

we called the r a t e s on the m a r k e t s

a t Chicago wheat b e c a u s e wheat w a s moving i n t e r s t a t e , which didn't s e e m much different f r o m controlling the wages, o r at l e a s t negotiating o v e r the wages and working conditions, which is what N. L. R. B. was.

So I went down to the c o u r t of appeals of the sixth c i r c u i t , which w a s held in Cincinnati where I'd been accustomed t o arguing when I was

practicing law in t h a t c i r c u i t , and knew the judges, in the way that a Lawyer knows judges.

I had r e s p e c t f o r them, they had r e s p e c t f o r m e .

When I went t h e r e , M i s s F l o r e n c e Allen had been appointed one of the judges, and I f e l t s u r e s h e would be thinking a good d e a l in that direction.

- 8 -

When I got t h e r e I found that while she'd been on the panel, s h e ' d had a n accident a few days before and couldn't sit, so I had Judge Moorman and o t h e r judges who w e r e not sympathetic to m y point of view.

And I

had a v e r y h a r d t i m e , and they a l m o s t r e f u s e d to l i s t e n to m e .

Finally

one of t h e m s s i d to m e , "We've a s k e d you t h r e e o r four t i m e s to d i s tinguish t h i s a c t f r o m the Guffey C o a l Act, and s o f a r you haven't a n s w e r e d that question.

''

Well, I'd been answering it f o r s o m e t i m e , so when I s t a r t e d out again with about the s a m e a r g u m e n t , he j u s t c l o s e d the brief and closed the book and s a t back and n e v e r s a i d another word the r e s t of the argument.

T h a t was the Fruehauf T r a i l e r c a s e , and I lost that

c a s e , j u s t a s everybody e l s e had been losing t h e m before.

It c a m e

up to the Supreme C o u r t , and of c o u r s e eventually the c a s e w a s won. (April, 1937) A g r e a t d e a l w a s done by the quality of the National L a b o r

Relations B o a r d t h a t was appointed.

Even today, if you examine the

people that w e r e on t h a t b o a r d , they w e r e r e p r e s e n t a t i v e of good quality men. ' T h e r e ' s a man by the name of C h a r l e s Fahy who w a s later

Solicitor G e n e r a l and is now a judge of the c o u r t of appeals of the D i s t r i c t of Columbia.

He w a s the g e n e r a l counsel.

And I think his

handling of the p r o b l e m s connected with t h a t had m u c h to do with public acceptance a t l e a s t of the d e s i r a b i l i t y of the board.

The -- public's a t t i -

tude that s u c h a b o a r d w a s d e s i r a b l e probably had a n effect on the attitude of the C o u r t , when you c a m e to look at things that n e c e s s a r i l y have s o m e incidents of c o m m e r c e connected with them.

- 9 -

T h e c a s e w a s of c o u r s e a v e r y important c a s e .

We followed

o u r p r a c t i c e of inviting the g e n e r a l counsel of the National L a b o r Relations B o a r d to t a k e p a r t in the a r g u m e n t , and it's one of the few c a s e s which w a s recognized then a s being a v e r y important c a s e , bec a u s e all the a r g u m e n t s a r e included in the printed volume of the United States S u p r e m e C o u r t R e p o r t s .

T h a t was done because the

supposed i m p o r t a n c e of the c a s e brought it t h i s wide publicity, and

it was a r g u e d e v e r y place and talked of e v e r y place. The work on the brief w a s done by Judge Wyzanski of M a s s a c h u s e t t s and C h a r l e s Horsky. briefs.

They worked v e r y h a r d on those l a b o r

And by a Columbia m a n whom you know, P r o f e s s o r H e r b e r t

Wechsler.

He w a s called i n to advise u s on t h a t m a t t e r , and r e n d e r e d

great service.

He didn't wholly approve of a l l the things t h a t we s a i d

in the b r i e f , s o h i s name d o e s n ' t a p p e a r on i t , though he had taken p a r t in the a n a l y s i s of it.

T h a t w a s at his r e q u e s t .

had gone p e r h a p s too far in the c o m m e r c e c l a u s e .

He thought we But h i s g e n e r a l

advice on the p r o b l e m was v e r y helpful. T h e P r o c e s s i n g T a x c a s e ? I understood that t o m e a n the c a s e t h a t r e c o v e r e d f o r the government t h e amount of money t h a t had been i m p r o p e r l y paid under the o l d AAA c a s e .

I think w e did d i s c u s s that.

T h a t w a s a billion d o l l a r c a s e , which a f t e r all is a lot to have involved in a single c a s e . On the Gold Bond Refunding- -I don't know what that m e a n s . We had a c a s e f r o m the Dixie T e r m i n a l i n Cincinnati that involved a

- 10

-

g;ld c l a u s e , where ther'e'd been s o m e refunding done by the Cincinnati Power Company, I think. . I t ' s called the Dixie T e r m i n a l , where they built a g r e a t t e r m i n a l building to house the business that passed between Cincinnati and Kentucky electrically.

They had some gold bonds.

I r e m e m b e r it p a r t i c u l a r l y because it's the only c a s e that I argued against (with o r against) the lawyer who l a t e r became Senator Taft and a nominee f o r P r e s i d e n t , Robert A . Taft.

That was back when he had no yet c o m e

into g r e a t national prominence, although he w a s well-known in the community f r o m which he c a m e , and of c o u r s e well-known throughout the country because of his f a t h e r ' s P r e s i d e n c y .

That c a s e was argued by

him on behalf of the Cincinnati bondholders, and of c o u r s e he made a n excellent argument.

The momentum that had been obtained by the p r e -

vious gold c l a u s e c a s e nevertheless c a r r i e d over into his, n e c e s s a r i l y ; t h e r e w a s not any g r e a t difference in i t , although t h e r e w e r e differences. By analyzing the brief you can find where he had subsumed the c o r r e c t n e s s of the other decisions, and y e t had gone far with his own views a s t o why these gold bonds should be paid. The T. V. A . power c a s e - - t h e T. V. A . had already been settled, but t h e s e c a s e s involved problems of whether a r r a n g e m e n t s could be made with c i t i e s , so that they had power f r o m T. V. A. , and what t h e i r stockholders could do to object t o i t , and s o forth.

of those c a s e s that went along together.

There were several

The briefs w e r e a l l drafted i n

the Solicitor G e n e r a l ' s office, but j u s t who worked on it I don't know.

I certainly thought I had a n unusually capable staff of men.

It

-

11

I w a s given absolute c a r t e blanche by

w a s accidental in one s e n s e .

the Attorney G e n e r a l to have anyone t h a t I wanted, f r o m the t i m e I wen t h e r e .

I don't r e m e m b e r when he first s a i d it.

It was thought

t h a t the Solicitor G e n e r a l ' s office had not been a s . . s t r o n g as it should be. '

As a m a t t e r of f a c t , the Roosevelt Administration had not been In '35 it had been t h e r e ' t h r e e y e a r s , but it hadn't

i n too many y e a r s .

been v e r y s u c c e s s f u l , a s we've s e e n (in C o u r t ) a t l e a s t not h e r e t o f o r e . When I c a m e h e r e not many new people had been r e c r u i t e d into it.

I

was given the privilege of bringing in anyone I wanted to and asking anyone I wanted to. A m a n t h a t I took o v e r with m e was P r o f e s s o r P a u l F r e u n d ,

now of H a r v a r d who had come down to work a t the R. F. C. when I was o v e r t h e r e , and I had come to know him t h e r e and t o r e s p e c t his abilit i e s and judgment.

T h e r e w a s at the R. F. C. a l s o M r . C o r c o r a n t h a t

I've spoken of b e f o r e and M r . Cohen worked o v e r t h e r e , o r a t l e a s t was around t h e r e a good deal. r e c r u i t m e n t f o r t h e R. F. C. that c a m e t h e r e .

M r . C o r c o r a n had done a good d e a l of

Those w e r e largely the boys f r o m H a r v a r d

Well, h e had m a d e suggestions, and probably con-

tinued making t h e m , although I have no one specifically in mind. Judge Wyzanski c a m e t h e r e a little l a t e r , a f t e r I ' d been t h e r e s o m e little t i m e .

He had been o v e r in the L a b o r D e p a r t m e n t - - o r , p e r -

haps h e ' d gone to the L a b o r B o a r d l a t e r .

But a t any r a t e , h e ' d been

around Washington and belonged to t h a t H a r v a r d group that was quite active.

Mr. W a r n e r G a r d n e r , of whom I spoke a while ago, had been

a t Columbia, and he was a l a w c l e r k of J u s t i c e Stone, and J u s t i c e Stone

-

- 12

-

had suggested to m e when I went o v e r to the Solicitor G e n e r a l ' s office that h e r e was a likely young m a n who'd be around h e r e , and wanted m e to look him o v e r . T h e r e w a s another v e r y competent m a n who worked a good d e a l on things f o r m e , p a r t i c u l a r l y the tax m a t t e r s , by the name of Arnold Raum, who had been a t R. F. C . , w h e r e I'd c o m e to a p p r e c i a t e his good qualities.

He was i n t e r e s t e d in taxation.

judges on the tax c o u r t .

H e ' s now one of the

He'd come o v e r f r o m the Department of

J u s t i c e , and helped in tax m a t t e r s . Of c o u r s e , Robert J a c k s o n had been with the T r e a s u r y Department, g e n e r a l c o u n s e l of the I n t e r n a l Revenue Bureau.

When he c a m e

o v e r to the D e p a r t m e n t of J u s t i c e , he worked v e r y closely with the Solicitor G e n e r a l ' s office, and he had gone down and gotten hold of one o r two good m e n . closely.

He w a s n ' t in m y office, but we worked v e r y

He w a s in another division t h e r e (probably t a x ) , but he w a s

i n t e r e s t e d in a r g u m e n t s , and i w a s quickly found out that t h e r e was no b e t t e r advocate t o p r e s e n t a c a s e than the l a t e r J u s t i c e Jackson. .

He and I worked v e r y closely together and w e r e v e r y intimate. T h e r e w a s a m a n by the name of Golden Bell f r o m California who j u s t c a m e and asked f o r a place t h e r e , and sold himqe3f.

He w a s

d i v e r t e d f r o m t h e d i r e c t work of the Solicitor G e n e r a l ' s office because

Mr

Cummings took a fancy to him.

opinion

of the Attorney General.

He wrote many of the d r a f t s of t h e

He worked on the examination into

b i l l s that had been p a s s e d , o r that w e r e going to be enacted into law, before they w e r e approved by the P r e s i d e n t , f o r t h e i r legality.

-

T h u r m a n Arnold w a s the s a m e way. a t Yale.

Bob J a c k s o n sold him to m e .

13

-

He'd been a p r o f e s s o r up

It w a s when the Attorney

G e n e r a l w a s away one s u m m e r , and Bob c a m e in and said, "Meet t h i s man, h e ' s awfully good.

P e r h a p s he h a s a sabbatical y e a r - - i f we c a n

g e t h i m down h e r e , he'd be v e r y useful. idea e v e r y day.

H e ' s the m a n who h a s a new

I'

He introduced him to m e .

So he was brought down.

John Abt? No, I don't r e c a l l him.

I had nothing to do with h i s coming h e r e .

I r e m e m b e r the n a m e , but I had suggestions f r o m Colum-

bia on m e n , and J u s t i c e F r a n k f u r t e r - - o f c o u r s e at that time he was a t t h e H a r v a r d L a w School.

I. had come to know him through M r . C o r c o r a n ,

I think, who had brought him in when I was on the R. F. C . , and he had suggested s e v e r a l n a m e s .

Some of t h e m w e r e taken.

I ' m not s u r e j u s t

who they w e r e . T h e r e w a s M r . C h a r l e s Horsky. man t h a t we had.

He w a s another v e r y capable

He'd been a l a w c l e r k to J u s t i c e Stone.

Whether

J u s t i c e Stone had suggested him to m e o r P r o f e s s o r F r a n k f u r t e r , I don't r e m e m b e r .

Yes, ment.

A t any r a t e , he came.

hey w e r e talented; that w a s t r u e a l l through the govern-

T h e r e a s o n w a s $hat t h e r e w e r e not many openings, and the

government was the place w h e r e they could come and g e t a s a l a r y of two o r t h r e e thousand d o l l a r s a y e a r , which was so mu.-h m o r e - - w e l l , they couldn't g e t any anyplace e l s e . stations.

They had to go to work in filling

Things like that.

We still g e t t h a t kind of talent h e r e , i n the Supreme Court.

-

14

The law c l e r k s a r e of that quality. Things like this happened.

Governor Max G a r d n e r , whom I'd

known, went out as governor and he had a legal a d v i s e r in North C a r o lina.

He s a i d something to m e about "This is a n awfully good m a n ,

. and I ' m going out, and why don't you t a k e . h i m on a t the

R. F.C.

?'I

We took him o v e r t h e r e , and p r e t t y soon he w a s doing awfully well. He ca:ne i n and s a i d , "How am I doing?"

I s a i d , "Fine.

It

He s a i d , "Could I expect a n advance?""

I s a i d , "Yes, c e r t a i n l y . of s i x month

You g e t the r e g u l a r r a i s e a t the end

.

"How much is t h a t ? " "Two hundred d o l l a r s a y e a r .

It

I c a n ' t g e t along on that.

He s a i d , "Well, that won't do m e . Cou1dnY.t. I go out i n the field? t ' Y e s , w h e r e would you like to g o ? " '

T h e r e w a s a vacancy in Georgia.

I s a i d , " T h e r e ' s a place

down t h e r e now; would you like to go down t h e r e ? " He went down t h e r e f o r $ 2 4 0 0 o r $2800, o r $3009, whatever it w a s , and p r e t t y soon he f o r m e d a firm t h e r e . around o v e r the country.

We had r e p r e s e n t a t i v e s

T h e next thing I knew he w a s handling the

Coca Cola b u s i n e s s and quitting us e n t i r e l y , j u s t giving u s a s h o r t t i m e . He became l a t e r the s e c r e t a r y of Coca Cola, and a high official of the company, and went on to a s a l a r y m u c h higher than anybody e l s e that w a s around t h e r e .

But t h e r e w e r e many of t h e s e young m e n .

-

-

13

-

You s e e , t h e trouble is t h a t o r d i n a r i l y , when the Government is not expanding v e r y rapidly in s o m e agency, government p r o g r e s s

is s o slow.

A m a n p r o g r e s s e s ,like I would think would be t r u e in a n

institution like Columbia.

No m a t t e r how b r i l l i a n t and able you a r e ,

t h e r e a r e people ahead of you who j u s t s o m e way you c a n ' t g e t p a s t . I t ' s only when something new c o m e s along that you have a chance to show what you c a n do. Well, t h e s e w e r e a l l new'things.

T.V.A.,

the work that was

done down t h e r e - - n o t j u s t the law work, but the whole, conception.

It

brought many people to the f o r e , a l l the New D e a l agencies did, who wouldn't have been h e a r d of o t h e r w i s e .

M r . J o n e s w a s no m o r e capable

a f t e r he got t o the R. F. C. than he w a s before he ;came t h e r e , but it gave him a n opportunity to show the g r e a t capacity t h a t he had.

That's

t r u e with the Solicitor G e n e r a l and the Solicitor G e n e r a l ' s office. Chance h a s a lot t o do with it. When I got appointed to the C o u r t in ' 3 8 , Mr. Roosevelt had never spoken to m e about it a t a l l before, and I'd r a t h e r given up.

I

think I told you before I thought I would have t o w a i t until t h e r e was a vacancy f r o m m y p a r t of the country, b e c a u s e M r . Cummings told m e when J u s t i c e Black was s e l e c t e d t h a t m y name was laid a s i d e at that t i m e because the P r e s i d e n t s a i d , "He'll have t o wait until McReynolds g o e s , ' ' o r whatever the language w a s .

T h a t was the last I h e a r d of it.

At any r a t e , it w a s n ' t long until t h i s o t h e r vacancy c a m e , and t h e r e w a s d i s c u s s i o n that I might be appointed, but t h e r e was d i s c u s s i o n t h a t other people might be appointed a l s o , when J u s t i c e Sutherland r e t i r e d .

-

16

-

I don't think the strong stand M r . Cummings took in favor of t h e Court reorganization plan had anything t o do with his not being appointed to the Court. the Court.

I don't think M r . Cummings wanted t o go on

He w a s a n a t u r a l lawyer, in the s e n s e that he enjoyed the

law, particularly the higher ranges of the law, w h e r e , h e was in a position t o d r a f t bills, o r if he was in active p r a c t i c e he enjoyed that.

He

had a n important firm in Connecticut that handled l a r g e r legal affairs i n that s t a t e , and he wanted. such a firm h e r e .

disposition to wish to go on the Supreme Court. h a r d place. time. there.

Ne never showed any He knew that it w a s a

He knew that he w a s in the middle sixties at l e a s t at that

I r e m e m b e r his 60th birthday that he had shortly a f t e r I went He thought he wouldn't have a long s e r v i c e ,

It w a s the practice

t o put no one on the F e d e r a l c o u r t s who w a s over 60 y e a r s of age. that wasn't a n unbroken r u l e .

Now,

Some exception:. w e r e made, if a m a n had

had his birthday the day before, o r even might be a few y e a r s older. But it w a s not thought d e s i r a b l e that m e n beyond t h a t age would be put on the F e d e r a l C o u r t s .

It would give them a n opportunity f o r experience

and development that they couldn't g e t the b e s t out of.

With v e r y few

exceptions, that was done, and I ' m s u r e that had s o m e effect on M r . Cummings, because he w a s a m a n who wouldn't want to do something himself that he had advised the P r e s i d e n t not to do with other people. But relations between P r e s i d e n t Roosevelt and his Attorney General w e r e very c l o s e , and so f a r a s I could s e e , and I'M

s u r e I would know,

t h e r e was mutual r e s p e c t between t h e m and they worked very well together. If M r . Cummings had really d e s i r e d to go on, I suppose the P r e s i d e n t

-

-

But he n e v e r indicated the

would have m a d e a n exception in his c a s e . s l i g h t e s t d e s i r e t o do so.

1 1

In f a c t , he indicated quite the c o n t r a r y , that

no, he didn't want it, he'd have a lot m o r e fun arguing c a s e s and trying out v a r i o u s l e g a l m a t t e r s in the C o u r t than he would sitting on it.

Of

c o u r s e he had been active in the C o u r t E n l a r g e m e n t Bill, but that wouldn't Nobody was questioning the appointments Roosevelt

have been a f a c t o r .

made a t that t i m e , and he was making appointments that w e r e acceptable to Congress.

M r . Cummings w a s e n t i r e l y acceptable to C o n g r e s s .

I

haven't the s l i g h t e s t doubt he would have been not only nominated but confirmed if he had r e a l l y e x p r e s s e d a n idea to go bn, o r if anybody h a d brought his name f o r w a r d and the P r e s i d e n t had thought he wanted to'&o)on.

I don't think the P r e s i d e n t a s k e d m e f o r suggestions a s t o a s'ac'c e s s o r in the officeiof Solicitor G e n e r a l . succeed m e , I think. attorney g e n e r a l .

It was kn0w.n that J a c k s o n would

That was g e n e r a l l y a s s u m e d .

He w a s then a s s i s t a n t

I think I told you about his telling m e that he would

r a t h e r be Solicitor G e n e r a l than Attorney G e n e r a l .

It was a s m a l l indident,

but it showed the quality of mind of Jackson. F r o m t i m e to t i m e t h e r e w e r e r u m o r s of Mr. Cummings' r e t i r e ment, because h e ' d e x p r e s s e d a d e s i r e to f o r m a l a w f i r m , which h e later did, and p r a c t i c e d l a w h e r e in Washington.

Whether it

wanted to m a k e money, o r public s e r v i c e , o r whatever.

. . .

p e r h a p s he

E v e r y now and

then t h e r e would be suggestions that Cummings w a s about to r e s i g n , and s o m e t i m e s people would s a y that I would succeed him.

T h i s t i m e , though,

the g e n e r a l i m p r e s s i o n w a s that M r . J a c k s o n would succeed him, b e c a u s e M r . Jackson w a s thought of as a possible candidate in New York f o r the

-

18

g o v e r n o r s h i p , getting him r e a d y f o r the end of M r . Roosevelt's second term.

It w a s talked of a t the t i m e , so that it would be a n a t u r a l thing

t o p r o m o t e him t o t h e Attorney Generalship. He c a m e into m y office one day and s a i d , "I've j u s t been o v e r t o t h e White House, and I told the P r e s i d e n t that I'd s e e n s o m e of t h i s talk about m e being Attorney GeneYal when Cummings went out. t h a t you d e s e r v e d t h a t place, and that

I told him

I would not a c c e p t it. 'I

Well, t h a t ' s unusual, to have a m a n t e l l you something like that. In f a c t , it's the only instance where it happened in m y life. 'Well, I c e r t a i n l y a p p r e c i a t e that.

I said,

N o r e a s o n f o r you t o do t h a t , if the

P r e s i d e n t would r a t h e r have you o r thinks t h a t ' s the b e s t thing to do"-whatever I s a i d , I don't r e m e m b e r the words. He laughed and he s a i d , "Well, 1'11 t e l l you.

I'd lots r a t h e r be

Solicitor G e n e r a l than Attorney G e n e r a l , and if you become Attorney G e n e r a l , j u s t help me out on t h e Solicitor Generalship. T h a t was m e r e l y n a t u r a l again,

"

He w a s a m a n of that type.

He

was g e n e r o u s to his f r i e n d s , and ambitious f o r himself, too. The first I h e a r d of m y appointment w a s when I w a s called to the phone and told t h a t the P r e s i d e n t wanted to speak t o m e - - w h i c h happened, not e v e r y day, but s e v e r a l t i m e s a y e a r h e ' d c a l l me up about something. He s a i d , "Well, Stanley, I'm a f r a i d I ' m going to have to a s k you t o r e s i g n t h e Solicitor Generalship.

'I

I wasn't s u r p r i s e d about it. "Well, sir,

.

..

'I

I knew what t h a t meant.

I said,

-

-

19

-

He s a i d , "Yes, I've j u s t s e n t your n a m e up i n nomination f o r t h e vacancy of J u s t i c e Sutherland on the S u p r e m e Court.

Won't you

come o v e r and have lunch with m e today?" That was all that w a s s a i d .

Maybe s o m e o t h e r p l e a s a n t r i e s

That w a s t h e first I h e a r d of it.

p a s s e d back and f o r t h .

L a t e r Senator

Barkley called m e up and s a i d , "Your n a m e ' s j u s t come in--nomination f o r the Supreme C o u r t . "

I s a i d , ItMr. B a r k l e y , I'm v e r y happy,

I'

and he s a i d , "1'11 do

everything I c a n to s e e thaf. it g o e s through all r i g h t . "

That w a s not

unexpected e i t h e r , b e c a u s e he'd been a v e r y staunch s u p p o r t e r of mine. A fellow-Kentuckian.

him.

I'd c o m e to know him.

I went t o California with

I think t h a t w a s w h e r e I c a m e first to know h i m , the y e a r before,

back in 1920.

T h e r e he'd been a candidate f o r office.

He r e a l l y owed

me nothing, b e c a u s e when he w a s a candidate f o r g o v e r n o r , I w a s f o r Campbell C a n t r e l l who was h i s opponent.

However, when he c a m e down

t o m y county campaigning, I took him around to introduce him to the politicians t h e r e .

He always s e e m e d to a p p r e c i a t e it and was always

v e r y kindly disposed towards m e , though I hadn't done as much f o r him. He c a m e f r o m t h e w e s t e r n p a r t of the s t a t e . My n a m e went before a judiciary subcommittee, of which Senator Logan, who w a s the o t h e r Senator f r o m Kentucky, was the c h a i r m a n .

So I had a relatively s i m p l e t i m e bfifore the c o m m i t t e e .

The c o n f i r m a -

tion went through.

T h e r e was no vote- -I don't think they took a vote on it.

I don't r e m e m b e r .

Anyway, it w a s nothing at all.

-

L U

-

Well, I w a s in a peculiarly good position, because I suppose I knew every Senator, Democratic and Republican, at that t i m e , having worked with the F e d e r a l F a r m Board, the R. F. C., and then as Solicitor G e n e r a l , and I'd been active in getting about. them a l l , and they all knew m e .

I was young then.

Nothing had gone bad.

I saw

Everything

that I had done had gone very well.

No, the office that w e ' r e in now w a s not my original office when I came to the Court.

J u s t i c e Sutherland, who had been h e r e before m e - -

it was his r e t i r e m e n t that brought m e onto the Court--had had a n office on the c o r n e r o v e r next to the F o l g e r L i b r a r y ; on that c o r n e r of the Court a r e the best o f f i c e s in the building, because they have m o r e light.

o t h e r s a r e closed in. tice's.

The

The w o r s t office in the building is the Chief J u s -

I t ' s badly designed, a d a r k little hole where you c a n ' t even s e e

to r e a d without a light.

But these two c o r n e r offices a r e v e r y nice.

This is a c o r n e r office h e r e . law clerks'office is h e r e ,

SD

The s e c r e t a r y ' s office is t h e r e , and the

it m a k e s it possible to go between the s e c r e -

t a r y and the l a w c l e r k s without going through the J u s t i c e ' s office--the t h r e e offices open that way, which m a k e s it very convenient.

That's

where the b e s t light i s , and the L i b r a r y of Congress and the Folger L i b r a r y , it's a beautiful outlook--.I've spent 19 o r 2 0 y e a r s h e r e in that office, never changed. Then, when a Justice l e a v e s , the ranking J u s t i c e h a s the choice of the office, if he wants it. the best to s t a r t with.

So I had to make a change; because I had

Sutherland w a s a n older judge and one of the few

who w o r k e d a t the Court, s o they gave him the first choice of offices

-

21

-

when they came o v e r h e r e . When I came in h e r e , I had to excuse myself f r o m c a s e s that

I had d i r e c t e d to be brought h e r e , and on many of them of c o u r s e in the e a r l i e r y e a r s I had worked on the b r i e f s that w e r e presented h e r e .

No, I didn't sit in on such c a s e s ; I would just leave the bench.

Probably

f o r a y e a r I had a s m a l l e r number of c a s e s to work on than the other Justices.

That was really a n advantage f o r m e , because obviously

coming f r o m p r a c t i c e , never having had any judicial experience, it was difficult f o r m e t o do the work that I was supposed to.do. T h e r e w e r e no problems in adjusting to the tempo and customs of the Court, a f t e r t h e first meeting.

I r e m e m b e r being quite concerned,

because I'd understood that the J u s t i c e who was l a t e s t in appointment, the m o s t recently appointed, gave h i s judgment a s to how the c a s e should go first,

and I thought that would be quite difficult, since s o m e of the

c a s e s w e r e c a s e s where I obviously wouldn't know a s much about what the Court had been doing a s the Court itself was.

So I had a g r e a t ad-

vantage when I came h e r e , because the Solicitor G e n e r a l is the person who s e e s e v e r y c a s e that comes down f r o m the Supreme Court, during the t h r e e y e a r s that I'd been t h e r e , and is m o r e intimately i n touch with t h e newer c a s e s in the C o u r t - - t h e b r i e f s in the m a t t e r s we had been dealing with.

Take the m a t t e r of t a x e s .

We had many, inany f e d e r a l

income tax c a s e s that I had worked on and argued and so forth.

So I was

b e t t e r p r e p a r e d - - I ' d had a n opportunity t o be b e t t e r p r e p a r e d - -than a l m o s t anyone who might come to the Court. But I know the first conference, I w a s somewhat concerned as t o

-

22 -

whether I would acquit myself well o r not; worked v e r y h a r d to know all about the c a s e s , and w a s happy t o find that the then Chief J u s t i c e ,

l E .Hughes, than whom no one could b e t t e r understand a c a s e o r state i t , was the one t o s t a t e the c a s e first. the c a s e .

Chief J u s t i c e Hughes first stated

The conception I had had w a s that the youngest o r newest

J u s t i c e speaks f i r s t , but t h r t only applies t o the vote.

After the d i s -

cussion, which goes f r o m the Chief J u s t i c e down to the newest J u s t i c e , then the vote is taken, and the vote s t a r t s with the newest Justice and c o m e s back up.

But by that time you know how everybody e l s e is feeling

about it, and about how t h e y ' r e going to vote, o r substantia.lly so.

There

m y be some change a s the discussion goes on, but you have a very good idea.

So the new m a n does not need to be e*mbarrassed over having to

take the lead when the Court has m o r e experience than he has. This is one interesting thing, though.

The first c a s e that I h e a r d .

w a s E r i e Railroad v. Tompkins, which has come to be a famous c a s e in

the United States.

It o v e r r u l e d the doctrine of Swift v. Tyson that had

been in effect f o r o v e r a hundred y e a r s , that s o f a r a s t r i a l s in f e d e r a l c o u r t s a r e concerned, the t r i a l s which would take place--no f e d e r a l t r i a l c o u r t o r d i s t r i c t c o u r t c o v e r s m o r e than one s t a t e .

Most of them w e r e

only small sections of the different s t a t e s , you s e e , s o t h e r e ' s something like 139 d i s t r i c t judges, p e r h a p s m o r e than that now.

At any r a t e , the

law had been that in m a t t e r s of g e n e r a l law, the f e d e r a l c o u r t s would e x e r c i s e t h e i r own judgment a s t o what the law should be, and did not bllow the. s t a t e l a w .

That w a s the doctrine of Swift v. Tyson, and had

been s o applied.

L5

-

T h e r e had been s o m e c r i t i c i s m of it, because the law

in the s a m e s t a t e might v a r y as to whether you w e r e i n the f e d e r a l c o u r t o r the s t a t e c o u r t .

So t h e r e ' d been s o m e d i s c u s s i o n of i t , but I had n e v e r

been p a r t i c u l a r l y i n t e r e s t e d in that.

My f e d e r a l work had been largely

l i m i t e d , when I w a s in p r a c t i c e , to c o u r t actions, and one o r two constitutional c a s e s t h a t had involved organization of f a r m e r s into unions o r cooperative association.:.

I ' h a d n ' t had wide e x p e r i e n c e in the f e d e r a l

c o u r t s , and I don't know that I'd e v e r questioned the r u l e at all.

So to

have t h i s c a s e brough up the v e r y first thing w a s v e r y . i n t e r e s t i n g . T h a t c a s e h a s become the m o s t prolific s o u r c e of litigation in the twenty y e a r s that I've been on the C o u r t , and still is, b e c a u s e it m e a n s t h a t the f e d e r a l c o u r t s have t o know .the s t a t e l a w s and the v a r i a t i o n s in them. Like today, we have c a s e s a l l the time as t o what is the s t a t e law and how it should be applied.

Certainly it is the c a s e t h a t ' s been m o s t often

cited since I ' v e been on the C o u r t , the first c a s e t h a t I h e a r d . Another mildly i n t e r e s t i n g thing about that is t h a t I didn't d i s s e n t in the c a s e - - J u s t i c e B r a n d e i s wrote the opinion, and he went f a r t h e r than merely to o v e r r u l e t h e preceding c a s e s .

He gave a new interpretation to

t h e d o c t r i n e of the authority of the f e d e r a l judges in those c a s e s , and s a i d t h a t the old doctrine of Swift and T y s o n w a s unconstitutional, b e c a u s e C o n g r e s s had no power to d e c l a r e what the law should be in its f e d e r a l courts.

I thought he

was

wrong about that.

You c a n understand the g r e a t

r e s p e c t I had f o r J u s t i c e B r a n d e i s and the g r e a t knowledge he had of law, and a l s o a l l the o t h e r judges went with him.

It w a s p r e t t y difficult f o r m e ,

on m y first c a s e , I%od i s a g r e e with h i m , but I did.

I c o n c u r r e d in the r e s u l t ,

-

24

-

but I c o n c u r r e d in the r e s u l t on the ground of the statutory construction, and s a i d that if it w e r e a constitutional m a t t e r I thought Congress would have power t o d e c l a r e what the f e d e r a l l a w was, whether it was to be a d m i n i s t e r e d in the s t a t e s o r not, and that all they had to do w a s to s a y , under the Rules of Decisions a c t , that i d i covered not only the l a w s of the s t a t e (which always had been enforced) but it covered the decisions of the s t a t e that they had handed down on the p a r t i c u l a r e questions of law that came up. well accepted.

That s e e m e d quite h e r e t i c a l at that t i m e .

I t ' s been pretty

That old c a s e of the E r i e Railroad and that statement has

never been overruled.

But it's been cut into, and it's been greatly c o m -

mented on, and j u s t in the last number of the Yale Law J o u r n a l (Dec. 1957), o r one of the l a s t n u m b e r s , dedicated to J u s t i c e F r a n k f u r t e r , they speak of this c o n c u r r e n c e of mine and m y objection t o i t , saying that this may well be the m o s t important opinion that J u s t i c e Reed e v e r wrote. No, I w a s not at all in'on the c a s e s I didn't sit on.

When you with-

draw f r o m a c a s e , the other J u s t i c e s don't d i s c u s s it with you.

I would

have a feeling of impropriety in discussing with a J u s t i c e a c a s e that I felt that I shouldn't participate in. extremes.

You don't c a r r y that to ridiculous

One would stop you in the hall and say, "When you were

working on that ;case, did you r u n onto such and such a c a s e ? " o r anything like that.

I'm s u r e that's happened t o m e , and I would say, ''Well,

you'll find that w a s o v e r r u l e d in a l a t e r c a s e , I ' o r any information I could give to be helpful. If a c a s e came f r o m the Government, and I hadn't worked on it,

I participated.

I m a d e this a s a rough rule--that if I had signed any Paper

-

25

-

in it, a s a direction t o anybody, o r if my name appeared on the p a p e r s , then I didn't take p a r t .

I think I told you before that when 4 was Solicitor

G e n e r a l , the p r a c t i c e w a s that no appeal could be taken without m y written .

approval, any place, f r o m one c o u r t to another.

That was to avoid--even

if it was f r o m the d i s t r i c t c o u r t t o the c o u r t of appeals, we-didn't do that

without authority.

Of c o u r s e , the fellow who t r i e s the c a s e is a l w a y s s u r e

that h e ' s been badly t r e a t e d below, and he'd appeal every c a s e , a l l the w a y to the Supreme Court.

It d o e s n ' t cost him anything.

You're just convinced

that you're right about i t , you, know, whatever position you take, and if you r e a c h a conclusion that the Government w a s wrong about i t , you'd s e t t l e the c a s e , you'd s a y , "All r i g h t , the other fellow wins.

'I

Well, that m a d e

it impossible, I thought, f o r m e to participate, since, while i n a few c a s e s you might take the appeal because t h e r e w a s doubt and you wanted it settled, and you might think c o n t r a r y to what you argued, mostly you w e r e convinced.

I think I told you once before about one appeal that I took where I took two different appeals. lost.

In one place we won, in another place we'd

I didn't take the two a p p e a l s - - I ' m not quite c o r r e c t about that--but

exactly the s a m e legal problem a r o s e in New York and i n Massachusetts in the d i s t r i c t c o u r t s .

In one s t a t e we won, and in the other state we lost.

So i n the s t a t e where we'd won, I r e f u s e d o s e t t l e , and in the state where

we lost I took the appeal, and then when the other fellow took the appeal, he came to m e and said, "How can you defend this before the Supreme Court when you've written a petition f o r c e r t i o r a r i in the o t h e r ; you ought t o s e t t l e with u s .

'I

I s a i d , " N o , " because I'd argued both of them.

-

It was that situation.

26 -

M i s s C r o s s - -unfortunately s h e ' s no longer

in this world--who w a s a very capable tax lawyer, e i t h e r volunteered o r w a s asked to a r g u e both of the c a s e s i n the Supreme Court, one on one

s i d e and one on the o t h e r , and she did.

She simply presented the argu-

ments; as we wrote the b r i e f s and brought them up, a s t o why one of the c o u r t s below was r i g h t and one w a s wrong.

I think the Court appreciated

it. Everybody appreciated it except the m a n who had won below and .

didn't want h i s c a s e brought up h e r e . The Mooney c a s e c a m e up e a r l y .

(You're f a m i l i a r with the c a s e ,

of c o u r s e , and this is not the place to go into a g e n e r a l review of the situation, which had lasted since the First World War, 1915,. back a long time. ) T h e r e w e r e m a t t e r s connected with it that r a i s e d questions .

i n r e g a r d to the propriety of the conviction.

Mooney was seeking a w r i t

of habeas corpus in o r d e r t o s e c u r e his r e l e a s e f r o m prison, claiming he was unconstitutionally imprisoned.

at that t i m e it was something new.

Now that is a commonplace, but

It w a s r a r e l y if e v e r r e s o r t e d to.

F r o m my own experience, the Mooney c a s e w a s my first experience w i h it.

Mooney claimed that he had been railroaded to jail unjustly, and

that t h e r e w a s knowledge in the hands of the p r o s e c u t i n g attorney, s t a t e ' s prosecuting attorney, that could have c l e a r e d him, and that it w a s concealed and not used, and that actually he was convicted i n a manner that violated the F e d e r a l Constitution. The Mooney c a s e w a s a c a u s e c e l e b r e f o r y e a r s , of c o u r s e . t e l l you a n interesting thing about that.

I'll

When the Mooney petition f o r

- 27 c e r t i o r a r i came h e r e , on the habeas corpus, i t got h e r e some t i m e in the spring of 1 9 3 8 , just a f t e r I'd gone on the Court.

We had funds that

we used f o r the printing of in f o r m a pauperis cases--Mooney didn't have a nickel, of course--and the Chief J u s t i c e in conference one day s a i d , "The Mooney c a s e is h e r e , and the c l e r k has made a n e s t i m a t e , and it will c o s t $50, 000 to print the r e c o r d . we had.

Well; that was m o r e money than

It had been going on since 1915, as we said.

There w a s a dis-

cussion, and it w a s decided that instead of printing it, the r e c o r d would be shipped around to each one of u s , t o the places where we w e r e i n the s u m m e r , and that would give each of us s e v e r a l weeks to go over it. .

That w a s done.

I w a s up at Nantucket that s u m m e r , and it w a s shipped

up t o m e , and i t c a m e in a box that looked about the s i z e of a piano box-. nearly as l a r g e as one of t h e s e d e s k s .

Thousands and thousands of pages

that one would have to go ov.er to get a g e n e r a l view of the c a s e . You asked me how we settled it.

It had been filed in the f e d e r a l

c o u r t s , as I r e c a l l - - t h e petition f o r habeas corpus--and the c o u r t s below had refused.

The doctrine that you l-ust

first t r y in the s t a t e c o u r t p r o -

bably originated right t h e r e : that the s t a t e c o u r t should have a method of deciding whether o r not a m a n should be given a new trial; that you had t o go to the s t a t e c o u r t f i r s t , b e f o r e you went into the f e d e r a l , t o avoid a conflict of jurisdiction between the two.

T h e r e ' d been a famous c a s e

called Mooneysv::. Hollohan, where t h i s Court said: "We w i l l not a s s u m e that the State of California w i l l not r e d r e s s any injustice, unconstitutional a c t , that h a s been done in h e r c o u r t s , t h a t ' s brought t o the attention of the C o u r t . " That w a s in 1935, before this.

-

28

-

Then, f r o m that, Mooney went into the California c o u r t s and sought r e l i e f by habeas corpus.

When he did, the California c o u r t s

decided that as a m a t t e r of fact--not a s a matter of law, but a s a m a t t e r of f a c t - - t h e r e had not been any such s u p p r e s s i o n of evidence, o r anything that injured the constitutional r i g h t s of Mooney.

T h e r e f o r e the California

c o u r t s decided against him. When i t came up, I thought--and J u s t i c e Black did too, I ' m s u r e , although I don't m e a n to speak f o r h i m - - t h a t they had made out a sufficient c a s e to show that t h e r e had been injustice done, even if the prosecuting .

attorneys hadn't actually s u p p r e s s e d evidence that would have been benef i c i a l t o him.

So I voted to .bring it up,

and announced m y decision on

The r e s t of the Court of c o u r s e thought that he hadn't shown

the m a t t e r .

that t h e r e w a s any s u c h injustice.

J u s t i c e Black a g r e e d with m e .

I don't

r e m e m b e r whether o u r r e a s o n s w e r e exactly the s a m e o r not.

I think the language you quote is quite a c c u r a t e : that a cas.e is given c e r t i o r a r i if even four J u s t i c e s strongly urge it. repeatedly s a i d in this Court.

I t ' s what has been

A s a m a t t e r of a r u l e of Court (though I

don't believe it's been written into the r u l e s ) t h e r e ' s never been a variation +

f r o m t h i s : whenever four J u s t i c e s think that c e r t i o r a r i should be granted, it's granted.

I never h e a r d i t quoted as "two J u s t i c e s " any place except

in the quotation you just called my attention to?,

With t h r e e , it's quite

frequent, but it's never done because t h e r e a r e t h r e e .

I t ' s only done

hecause someone e l s e s a y s , "Well, if t h r e e of you think it ought t o come h e r e , I don't think so, but I ' l l join you,

I'

and then that m a k e s it four.

But

t h e r e ' s never been a rule that t h r e e would be sufficient to bring it h e r e ,

-

29

-

and ;certainly no rule that two would be sufficient.

I have no independent recollection of our discussing why o r why not the g r a n t should be reviewed--if I ha'd, I probably wouldn't t e l l you-but a s a m a t t e r of f a c t , I have no recollection of that a t all. itself d i s c l o s e s that two J u s t i c e s wanted not t o bring it up.

The r e c o r d But speaking

generally, of c o u r s e t h e r e ' s always discussion certainly of a c a s e that had as much publicity and i n t e r e s t as the Mooney c a s e .

It had been h e r e

a time o r two b e f o r e , and I suppose that the older J u s t i c e s had t h e i r minds p r e tty well m a d e up about the whole thing.

T h e r e ' d be no r u l e about that.

E v e r y c a s e that c o m e s up ;here is not elaborately argued a t the conference. You e x p r e s s your views, and if y o u ' r e not content, eight people a r e against 'you and you're convinced y o u ' r e right, you c a n ' t take m o r e than fifteen o r twenty minutes.

T h e r e ' s no'limitation on talk, but actually you have too

many c a s e s , you c a n ' t stop on any one of them ad infinitum. collection that t h e r e w a s discussion on that.

I have no r e -

I do r e m e m b e r the c a s e , and

the r e a s o n s that led m e , and I suppose J u s t i c e Black, t o vote to bring him up.

No, those r e a s o n s a r e not available i n a written d i s s e n t , because you only noted your d i s s e n t in a c e r t i o r a r i .

When a c e r t i o r a r i is refused,

you can if you want to e x p r e s s views as to why it should have been granted, but normally it's only a n otation of dissent. Why did I d i s s e n t ? Because I thought that t h e r e w a s enough evidence in the c a s e to indicate that it should be heard, and the r e c o r d examined:'

more carefully than you w e r e able to examine it in a petition f o r c e r t i o r a r i .

I don't r e c a l l that I w a s convinced one way o r the o t h e r , but I thought t h e man w a s entitled to p r e s e n t his c a s e before the Court, and I'm s u r e that would be Justice Black's view, too.

1