Transcript

Professor Walter F. Murphy: We skipped a question, number 34, last time. I was just wondering, Mr. Chief Justice Stone spoke in a letter of the "patient negotiation'' which was required to get an opinion from the Court of the Nazi saboteurs case, the Ex Parte Quirin in 317 U.S. 1. I wonder if you could mention what this "patient negotiation'' involved.

Justice William 0. Douglas: I don't know if I would call it patient negotiation. It was patient exploration, I would say, of what the various views of the Court in the final analysis were. You see we came back to sit on this case in a special term. And when we had finished the argument, finished hearing the argument, we had a conference and all the views were expressed at the conference. And we came in the next day and filed a per curium opinion indicating what the result was and stating that a full opinion, a full-dressed opinion, would be filed later on. And Stone took it upon himself to write the full-dress opinion which he did that summer and circulated it later in the summer. And it was finally worked out and filed in late October of 1942. The experience with Ex Parte Quirin indicated, I think, to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds, the examination of the grounds that had been advanced is made, sometimes those grounds crumble. Sometimes the bases upon which the vote was taken have to be changed. We didn't run into real difficulty in Ex Parte Quirin in the sense that while nine had voted to affirm, four changed their mind. That sometimes happens. Sometimes the vote will be unanimous and you'll end up with a split Court. Sometimes the majority will become the minority. We didn't have that kind of a problem in Ex Parte Quirin. It was merely different routes that the Justices finally used to reach the same conclusion. Those are explained or touched on briefly in the latter part of the opinion, of the full opinion, the last three paragraphs, I believe. Jackson had one view that the President was not compelled by the Articles of War to afford any belligerents of this character who came into a country in civilian clothes, in disguise in other words, to any trial, that they could have just been apprehended and executed without more. That view did not meet with everybody's approval. It didn't meet with mine, I know. So in one paragraph near the end of the opinion, Stone put that question aside, saying we don't need to deal with it. And then we had another division in the Court concerning whether or not the Articles of war applied to a presidential military commission, or whether it applied to other types of military tribunals. Jackson and Frankfurter were pretty strong in their opinion that the Articles of War did not govern a presidential military commission. I think Stone, as I remember, was disinclined to that view and took the view that I took that the word commissions in the Articles of War included all, all commissions, including this type of presidential military commission. It was that type of a problem that, I think, Stone must have meant when he says "negotiation." But "negotiation" is the wrong word because you don't negotiate between judges. You try to settle differences in that, on the basis of giving little bit here and giving a little bit there. That's not a part of the judicial process. The judicial process is normally merely one of trying to find what the bases of decision are and see if they can possibly be reconciled. And here they could be reconciled because whichever route was taken they all came out to the same end. So I would say that Stone patiently explored the situation. We had, of course, correspondence and telephone calls, and so on. And finally he produced the unanimous opinion.

Professor Walter F. Murphy: I wonder if we could move on to a rather less pleasant topic, that involving Justice Jackson and the, his famous telegram to the chairman of two judiciary committees. If you would, could you explain what you know of the background of the appointment of Chief Justice Vinson?

Justice William 0. Douglas: Fred Vinson had served on the Court of Appeals. He had left the Court of Appeals to become a member of some agency during the war. And he had always been very friendly with Truman and he was Secretary of the Treasury at the time. I don't know that Fred Vinson had any idea of becoming Chief Justice. I rather doubt it. I know the night that, of the day when he was appointed, by Truman, nominated by Truman, Sam Rayburn, Lyndon Johnson and I were at a dinner in a private home. And we excused ourselves after dinner and were gone about an hour, so we could go down to Vinson's apartment in the Sheraton Park Hotel and drink a toast to him and wish him well. We rang the doorbell and the door was opened by his wife, Roberta Vinson. And we found her in tears. She was crying her heart out because her husband had been made Chief Justice. Fred Vinson had been in Washington, had been in Congress for a long time, in government for a long time. He'd had very, very little of the worldly goods, practically no insurance even. And I think that Roberta Vinson's plan or dream for Fred was presidency, say, of some big insurance company. And it may be that Fred Vinson had had that plan further along than any of us knew. Of course, being a product of the law, interested in the law, he was extremely flattered at his nomination. And, but it took Roberta Vinson a long time, I think, to get used to it. I think she had sort of a premonition that Fred wouldn't live very long, and she would be left as she was, high and dry, without any assets. It took, I think, a special act of Congress to take care of her, so that she wouldn't have to work. She told us that night about how one wife of a Justice, I forget which one it was, when the Justice died, had to bake pies and sell them to keep alive. This was before there was any provision in the law taking care of the widows. And it was that kind of a specter, I think, that faced her. She was also upset because Fred Vinson didn't give her any advance notice but it wasn't Fred Vinson's fault. It wasn't any oversight or neglect on his part because this thing came up very quickly. He was at the White House. There was some reception in the afternoon and he stepped out, Truman asked him if he would step out on the balcony with him a minute. And when they got out there, Truman said to Fred, "Fred, how would you like to be Chief Justice?" And Fred's eyes lit up according to the accounts and said that that would be quite an honor. And Truman slapped him on the back and said, "Well, maybe you will be." And that's all there was to the conversation. And so Fred had no definite information. But before he got home from the office that night he had been named and it was on the news. And Roberta Vinson heard, I think, in a beauty parlor that her husband had been named Chief Justice. So she, at that time I think, blamed Fred a little bit for not letting her in on the secret. But he really didn't have any chance because his name was sent up an hour or so after Truman talked to Fred Vinson.

Professor Walter F. Murphy: I was wondering if you knew anything, that Truman evidently claims he talked to Hughes about this, and Hughes had recommended, Truman says Hughes recommended Vinson. Hughes later denied this, at least in talking to Merlo Pusey, that he had recommended Vinson.

Justice William 0. Douglas: I don't know that he did. I would doubt that Hughes would recommend Vinson. Fred Vinson didn't need any recommendation with Truman because he was, had known each other a long time. They were very close socially. Fred was in Truman's Cabinet and Truman relied upon Fred very heavily. He had unlimited confidence in Fred. So I don't think that anybody, that Truman would ask anybody what you think about Vinson. Because Truman would take his own view on that. Whether he asked Hughes, whom Hughes would recommend for Chief Justice, I don't know. But that seems very unlikely because I don't think that Truman knew Hughes.

Professor Walter F. Murphy: Did you recall in Jackson's telegram he charged that you and Justice Black had visited the White House to try to persuade Truman not to appoint him, that is Jackson, as Chief justice?

Justice William 0. Douglas: That Black and I

Professor Walter F. Murphy: had --

Professor Walter F. Murphy: Yes.

Justice William 0. Douglas: There's just absolutely nothing to that. We never talked to Truman about the appointment at all. Truman never called me and as far as I know he never called Hugo Black. We didn't go over together to see Truman and we didn't go separately. We were just not consulted. I don't think anybody on the Court was consulted.

Professor Walter F. Murphy: I wonder, part of this telegram, also was Jackson's charge that Black had "bullied him" especially in the Jewell Ridge case. I wonder if you have any recollection of this? Do you know or do you recall if your records square with Gerhart's account that in the Jewell Ridge case, or rather I guess we should start with this, I beg your pardon, that, would you give your reaction to Jackson's charge that Black had bullied him in the Jewell Ridge case?

Justice William 0. Douglas: Well I don't know what Bob Jackson meant to imply by that. The Jewell Ridge case was a very heated controversy. I mean not, not just the Court, it was in the papers, and everyone had, took up sides rather quickly on that issue. As I remember it was a five to four split in the Court. Black was very, very strong and vocal for the, for affirmance. He thought that it was covered by the, by the act at the time spent by the miners, was covered by the act in travel time. And Jackson was very vociferous in thinking that it was not. The arguments --- Black is a very forceful pleader. He's, he is one of the two or three men on the Court that has been a very active exponent of his point of view. He has an evangelistic fervor. Jackson had that same point of view. He was pretty much of an evangelist for his point of view. Frankfurter led all the rest in that regard. He was, he never gave up. Five minutes before the opinion came down against him he was always trying to get the extra vote. He's been that way ever since he's been on the Court. It's perhaps the old professor in him coming out. Stone was that way to a certain extent. So you had on this Court, you had four very active pleaders for their own particular point of view. And three of them were Stone and Frankfurter and Jackson at this time were allied as I remember and Black on the other side who represented the majority view. And I don't recall any unseemly episode. The only unseemly episode that I remember was later on under Vinson's regime when in a very heated argument Fred Vinson, thinking that he had been insulted, got out of his chair and came around to physically beat up Brother Frankfurter. And a fist fight was averted only by the intervention of some of the other Justices. And, of course, that was the, that passed before the day was out and there were letters of apology by, or notes of apology, or calls, telephone calls or visits extending apologies both by Frankfurter and by Vinson. But there was nothing like that in this Jewell Ridge case. There was pounding of tables, but there's always been pounding of tables on issues that stirred people deeply. And this seemed to, for some reason or other, seemed to stir Jackson very, very, very deeply. Why I don't know. Because it's easy to see in retrospect how reasonable men could take different views of this simple, bare, legal question, namely, compensation for travel time. So I wouldn't think that Black bullied him. Black, I don't think, ever tried to bully anybody but Black is a forceful speaker. He was almost as forceful as Jackson and both of them were old jury lawyers. And both of them poured it out with great vehemence and emphasis and at great length on issues that affected them deeply, on which they had deep feelings.

Professor Walter F. Murphy: Do your records square with Gerhart's account in America's Advocate, page 250 and 251, that the original vote in the case had been against portal-to-portal pay and that pressure had been put on Mr. Justice Murphy to switch?

Justice William 0. Douglas: No, that's not true. The original vote was five to four and Murphy was one of the five. Since Black was the, since Black was the senior judge, he assigned the opinion to Murphy.

Professor Walter F. Murphy: Do you remember --- oh, excuse me.

Justice William 0. Douglas: I take that back to this extent. That the, Murphy never changed. He was always of the view of the original conference on this. Reed had voted the other way. And Reed, Reed changed his view after the original conference. Reed had originally voted as the Chief Justice voted, namely, to reverse, saying that travel time was not included in time to be compensated. And then the assignment came to Black because Black became then the senior with the majority group. But Murphy never changed his view. Murphy's view was that all along.

Professor Walter F. Murphy: So, however, originally the vote was five-four against portal-to-portal pay.

Justice William 0. Douglas: Five to four the other way with

Professor Walter F. Murphy: With Reed.

Justice William 0. Douglas: Reed changing his mind. Yes.

Professor Walter F. Murphy: Right. I wonder if you have any recollections or notes of the conference discussion on the rehearing of the Jewell Ridge case when the lawyers, the losing lawyers, specifically mentioned that Crampton Harris had been a former law partner of Justice Black, and therefore, he should have disqualified himself.

Justice William 0. Douglas: Yes. That was a, quite a stormy conference. I think the thing would have been dismissed as ludicrous, as silly, as something not worth even of considering, but for Bob Jackson, who for some reason or other, was steamed up. Why he was steamed up, I don't know. Except what I just heard him talk about. How he thought anything would be accomplished by getting Hugo Black out of the case is difficult. Because if Hugo had not sat, the case would have been a firm four to four. The result would have been the same. It wouldn't have been a different result. So Jackson's motivation must have been ad hominem, it must have been directed to Black, I think. His conference discussion was highly personal, and why I just don't know, what was in his --- There was a growing feeling on the part of Jackson that Black was an undesirable judge, or, I don't know what was behind it all, because when Hugo Black was appointed back in 1937 and Jackson was in the Department of Justice he had the highest praise for Black. And, but having come on the Court and starting working in the team of nine, he developed this very quickly, this animosity to Black. Whether it was a feeling of Jackson that he should be the leader of the liberal block and he finally found himself more and more on the other side, in the minority, or associated with so-called conservative decision, I just don't know. But it was very evident in almost all our conferences that Bob Jackson thoroughly disliked Hugo Black and was out to try to destroy him. I mean destroy him in the sense of discrediting him. And his words were very acid, very derogatory. A lot of that carried over to me also but Black, I think, was his primary target.

Professor Walter F. Murphy: I would imagine that Black could give as well as he got in a discussion of this sort.

Justice William 0. Douglas: No. Black, in this, at this level of discussion, was always the perfect Southern gentleman. He never, never got personal. He always kept it at the purely professional level. The fact that Crampton Harris had been a partner of Black's and argued the Jewell Ridge case never occurred, I don't think, to anybody, except Jackson, that Black should disqualify. Nobody mentioned it at the original conference. It wasn't brought up originally. Frankfurter tagged along with Jackson because Frankfurter was using Jackson as a tool to get a lot of other things accomplished. So this was Frankfurter's way of buttering up Jackson. But Frankfurter on that issue was thoroughly dishonest intellectually because the people, people that Frankfurter was, has been very, very close to, much, much closer then Black ever, ever was to Crampton Harris, argued cases all the time before the Court. Frankfurter has always sat and there is no reason that I see why he shouldn't. His closest, the man that he sees every day, the man, that, his father, his brother, means everything to him, Dean Acheson a man that he worships and adores, he argues cases Frankfurter sits, and no one would suggest, I certainly wouldn't suggest, Black never suggested, that merely because a man has a close friend, that the judge hearing should not hear the argument. There have, if a case was in the partnership at the time that the judge left the partnership to go to the Bench, then of course he wouldn't. If there had been a client, an old, long-time client of the firm, and that client years later came up sometimes a judge will recuse himself. Roberts had done that, and Stone had done that, some old client, even though he had nothing to do with it, do with that particular problem of this particular client. He had had many things to do perhaps with other problems of this particular client. But you see this Jewell Ridge fit none of those categories, it was merely the fact that Black had at one time been a partner. Jackson was highly emotional, highly emotional, and it was a, it was a feud. Not a feud in the sense that Black was feuding against Jackson or retaliating because as I said Black was always a Southern gentleman. He was always perfectly proper in his relationships. He never was personally vindictive. I've never seen him do a vindictive thing in his life. But Jackson was quite the opposite.

Professor Walter F. Murphy: Well, perhaps we could switch to a somewhat different topic and that is Fred Vinson's Chief Justiceship. You've spoken about Hughes and Stone. I wonder if you would give your estimate of Vinson's intellectual capacity and his ability to lead the Court and how you might compare him with the other Chief Justices that you sat with.

Justice William 0. Douglas: Well, Fred Vinson didn't have the intellectual capacity of Stone or Hughes. He didn't have the deep learning in the law that Stone had, that Hughes had, or that Holmes or Cardozo or Brandeis, any of the Supreme Court greats had. He had been, furthermore, for many, many years away from the law, been in Congress. He saw some of the law there, the federal law, particularly tax law, and he was very much enamored with tax law. So at the level of an intellectual discussion, I don't think Fred Vinson asserted as much so-called leadership as his predecessors. He had one quality, however, that made up for some of that. He had sort of a dogged, bulldog attitude. He'd take a position on a case. And there would be, that position would become his manifest destiny and he would never give up, never qualify. He was a person who was not amenable to many suggestions. In that respect he was very much like Frankfurter, although he wasn't as learned a man as Frankfurter. Vinson, when he knew what he wanted to do, would use all the power and prestige of the office of Chief Justice to do it and do it very quickly. When Court had adjourned, I forget the term, I was leaving town, and was presented with a petition for stay of execution in the Rosenberg case. I delayed my departure from Washington for two days while I gave the matter consideration and finally granted the stay on a point of law that had never been considered by the District Court or by the Court of Appeals. And within twelve hours at the time that I had granted the stay, Fred Vinson did something that no Chief justice had the power to do, that is he summoned the Court into special session. The Chief Justice has no such authority to summon the Court into special session. The Court comes into special session only on a vote of a majority. Of course, having been summoned into special session, a majority approved his action. At the conference preceding the argument in the Rosenberg case, I flew back from, I was on my way West, and Fred Vinson didn't even give me the courtesy, although he knew where I was or was going to be, he never gave me the courtesy of trying to contact me. He was going to have his will done right away and so he summoned the Court. When I came he was rather surprised, I think, that I came back to the session because he hadn't tried to reach me. I rather think that he hoped that I wouldn't show up and when we were about to go in to hear the argument, Black raised the question as to the power of the Chief Justice. "The Chief Justice," said Black, "has no power to summon the Court." And Black was absolutely right. And I spoke up and said that while I thought that Black was right, that the Court was here, and that I didn't think that we should involve this important case, that was already a highly, highly emotional case, in another emotional case, namely, the power and prerogatives of the Chief Justice. And that I would acquiesce in the, in the special session. Well, he, that's the way everybody acquiesced and therefore and following that, everyone, including Black and we heard the oral argument. And I don't think that any Chief Justice but Vinson would have done that, would have summoned the Court. I think that he would have let this thing go through its regular channel. Because stays of execution are granted over and over and over again. And we, it's the first time in the history that it has been done, but these were the Rosenbergs, these were the so-called Communists. The city was aroused. The country was aroused and Fred Vinson, he was bent on seeing to it that the Rosenbergs were executed on schedule. He couldn't quite arrange that because they did get twenty-four hours of life, but he saw that they were executed that week. But this was Fred Vinson. He was, he felt very, very keenly. He was like a chairman of a committee in the House, who used all possible methods and devices to get his will done. He and I were very close friends. And Fred Vinson died that, that September, that same year. About a month before he died he expressed his great regret at what he had done and the way he had done it. He thought I had been right, that I had acted properly and that he had been impetuous and bull-headed and so on. But that was Fred Vinson. He was carrying over into the Court the tactics of a majority leader in the House and throwing his weight around, using the office of Chief Justice in a way that I don't think many of his predecessors certainly not Stone or Hughes, would have done.

Professor Walter F. Murphy: How was he as a presiding officer? You've mentioned Hughes' austerity and efficiency and Stone's proclivity to carry on a discussion endlessly. How was Vinson at the conference?

Justice William 0. Douglas: Vinson was very amiable. His discussions were very short. He never gave any long, detailed exposition. It was rather summary. He was, he was inclined to, however, to talk back. I mean he was more in the Stone pattern in that sense of picking up and arguing with somebody who disagreed with him, prolonging the conference somewhat in the Stone fashion.

Professor Walter F. Murphy: I take it the conferences did not got on to the extent they did under Stone.

Justice William 0. Douglas: No. No, they were more expeditious but they didn't run as efficient sessions as Hughes.

Professor Walter F. Murphy: I wonder, while we're still on Vinson, if you would, might discuss Vinson's relations with Jackson and Black and perhaps elaborate a bit on that story about Frankfurter.

Justice William 0. Douglas: Well, his relationships with Black were always very good, personally. I think he and Hugo liked each other. Hugo Black used to take Vinson on sometimes. Vinson once came on into the conference with a proposal that the salary of the Chief Justice, there was some bill that he had got the judicial conference to endorse, recommending that the Chief Justice I think, get $10,000 more a year than the other Justices. And we had quite a lively conference discussion on that. Hugo Black, with all due respect to Fred Vinson, nevertheless, taking that on and saying that Vinson had no business doing it and that this, he had only one vote. But Fred would never be therefore, he was no more than just another Justice, but Fred would never be diverted by that. He was like the horse going into the barn and knew the stall he was supposed to be in or wanted to be in and that was where he was going. With Jackson, Fred had a very bitter experience because you see Jackson had been promised the Chief Justiceship by Roosevelt. Then Roosevelt called him in and said that he had appointed so many Democrats that he thought politically he should appoint a Republican as Chief Justice. So he made Stone Chief Justice. He promised Jackson the next appointment as Chief Justice. So Bob Jackson went through those years of his life thinking of himself as Chief Justice, thinking in every conference that he sat what he would be doing if he were Chief Justice, quarreling, disputing, arguing, complaining with every Chief Justice, scolding every Chief Justice. And Fred Vinson told me once after a very embittered conference with Jackson pouring out vitriol over Fred Vinson, that he, Vinson, thought that Bob Jackson's ambition would lead him to find fault, to quarrel with anybody who sat in the chair of Chief Justice. And I think that was probably right. I think that was Bob's one great big ambition, to be Chief Justice and he resented Vinson very, very much. He thought he was an inferior person, and he had no liking for Vinson. Vinson, of course, handled it very astutely. The only time, as I said, that he ever got off the rails, exploded, was under, talking of Frankfurter and who has had a habit of getting highly personal and casting aspersions on a person's motives.