Transcript

Professor Walter F. Murphy: In our last session, you said a few words or rather our last session last spring, you said a few words about Chief Justice Warren's conduct in the role as, conduct of his role as Chief Justice. I wonder if you would say, if you know anything, a little about the background of his appointment.

Justice William 0. Douglas: Earl Warren had been prosecuting attorney in Oakland, California, I believe. Then he became Attorney General for a number of terms, and then became Governor I think for ten, eleven years. At that point in time, Eisenhower came to office as President and Nixon as Vice-President and Knowland, from California, was in the Senate. Warren, as Governor, had developed a separate political machine or organization that was designed to get the votes, not only of the Republicans but the Democrats. So from the point of view of men like Knowland and Nixon, Warren seemed to be a sort of an unorthodox, off-beat kind of a Republican, which of course he was. And they found him very difficult to work with, which I imagine he was from their point of view. So they went to Eisenhower, that is Nixon and Knowland went to Eisenhower when Vinson died, and urged that Eisenhower name Warren as Chief Justice because Nixon and Knowland wanted to get Warren out of the State of California so that they could take over the Republican machine, build their own Republican organization, get rid of the Warren people, and so on. And so Eisenhower did name Warren, made a recess appointment. He was later confirmed and so on. I asked Warren about this story. He laughed and said it was true. But he said that there were rather sad consequences as a result in California because the machine that Nixon and Knowland built went down to a defeat and the State has been Democratic ever since. And out of that Warren got more than one chuckle. But he did confirm that story to me and I had heard it independently of him. But I believe that's the truth of the matter.

Professor Walter F. Murphy: Fine. In his first term or two on the Court, the Chief Justice's voting record was not especially pro-civil liberties. Then after a few years he began more and more to vote with you and Justice Black. Do you have any theories about why this change took place?

Justice William 0. Douglas: No, I don't. Many times a man who first comes to the Court faces problems that never had been much in focus in his life before, and sometimes it takes a little time to think them through. Sometimes he changes in perspective as he peels off layers of experience that he has previously gained and settles down into the new job with new responsibilities, gets deeper into the literature of say the Bill of Rights, or the Fourteenth Amendment, or whatever provision of the Constitution is up for decision and then reaches his own common ground with the other members of the Court, or with one other member of the Court, or with two or three other members of the Court. But what the exact processes were in Earl Warren's case, I don't know.

Professor Walter F. Murphy: Most Chief Justices have dissented relatively infrequently. Warren, however, is a frequent dissenter. Has he ever mentioned why he has not followed this unofficial practice?

Justice William 0. Douglas: No. I never, I have never discussed it with him, and I've never heard him discuss it. I think that most Chief Justices think in terms of leading the Court, becoming identified with each majority, as it hands down certain decisions. But each Chief Justice usually arrives at a point where he may be alone or he may be in a minority. If he feels very strongly about the position, he doesn't sacrifice the position just to be identified with the majority. The majority in each of our cases is a rather constantly changing fluid majority. And I think that on the cases where the Chief Justice Warren doesn't feel too strongly, that like other Chief Justices he would acquiesce, stay silent, go along with what the majority wanted to do, but the fact that he dissents means that he feels very, very strongly, has deep convictions. And no Chief Justice that I know of surrenders those deep convictions merely for the sake of appearance of being with the majority.

Professor Walter F. Murphy: In the June 1962 issue of the New York University Law Review, Justice Black is quoted as saying in an interview with Edmund Cahn that the thought that the First Amendment prohibited libel suits. I wonder if you would agree with this statement.

Justice William 0. Douglas: I didn't see the statement to which you refer. If he referred to libel suits under a federal statute passed by Congress, I think probably he would be correct because I never have thought that the alien and sedition laws for example, were constitutional. I don't think that Congress has the power to enact a law that penalizes speech. However, that may be a different question as presented concerning the application of the due process laws of the Fourteenth Amendment and the restraint that it places upon the states. This is a question that has never been presented in the citing of a libel or slander suit. Whether a state law would be unconstitutional because of the incorporation of the First Amendment in the Fourteenth Amendment, that's never been presented for a decision. It may never be. I wouldn't want to prejudge it. It would take, however, considerable persuasion to indicate that the due process, the adoption of the Fourteenth Amendment deprives the states of something that was as historic as libel and slander. Because they have been in existence from the very beginning.

Professor Walter F. Murphy: In United States v. South-Eastern Underwriters in 1944 the dissenting opinion of Chief Justice Stone seems to assume that if the Sherman Act applied to insurance, that all state regulation of insurance would be superseded. I found no such implication in Justice Black's opinion. In fact, I thought he went out of his way to imply quite the opposite. Do you recall whether at any time the majority took a different view then expressed in the published opinion, or if not, do you recall any other reason, conference discussion, for example, why Stone made this assumption?

Justice William 0. Douglas: The South-Eastern Underwriters case was a very controversial case in the Court because it involved modifying a long, outstanding, prior decision on a constitutional question and involved a very important business, fire insurance, life insurance and other kinds of insurance that these days are done on a national basis. The nature, the matter in which the insurance business is done today or at the time of that decision may not have been vastly different from the way in which it was done at the time of Paul v. Virginia but at least the ideas of commerce had considerably changed the idea. The concept of interstate commerce had broadened the scope of the control of Congress over interstate commerce. At that time, I think there would have been no doubt as to the power of Congress to pass a law regulating the insurance business. This was a case under the Sherman Act and the question as to whether or not as to statutory construction the business of insurance was included was the center of the very tense argument inside the Court. I do not believe that there was anything in Black's opinion indicating that if the Sherman Act applied to insurance that all state regulation of insurance would be superceded. Sometimes a dissenting opinion states an extreme interpretation of a majority opinion. I think that that, this is an illustration of a dissenting opinion that did that. Why he made that assumption I don't know unless he felt that if this was a business interstate that the length of the Commerce Clause itself would knock out most state regulations. Many cases, of course, hold that that is a result of the business being commerce and without any action on the part of Congress some state laws are negative. There has been in the twenty-odd years that I have been on the Court great diversity inside the Court as to, when that happens, whether state laws can be enforced even though Congress has passed no law, whether where Congress has passed a law, a state law can survive, work at a different level to regulate the same business. Those are highly provocative cases in which the Court has very seldom been unanimous. It was with that knowledge of that line, of those two lines of cases that perhaps Stone felt that if he was going to sit in judgment on future insurance cases coming along, maybe he felt that the weight of the Commerce clause alone would preclude many, if not most, of the things that the states were then doing about insurance. But that's just conjecture on my part. At the conference on the fifteenth of January 1944, Stone, the Chief Justice, talked at great length about the problems arising under the indictment and the problems arising under the Sherman Act, and the problems arising under the Constitution. It was a seven-man Court, Roberts and Reed, for some reason, not participating. The conference vote was five to two to reverse--Rutledge, Jackson, Murphy, Black and myself, Frankfurter and Stone speaking very clearly at conference that the Sherman Act did not include the insurance business. Shortly after the conference the, Jackson changed his mind and voted to affirm. And then we were down to a question as to whether or not we should decide an important constitutional question on a four to three vote in a Court of seven. Some of us thought that we should not and we had a conference discussion about the matter. The Chief Justice asked me to prepare a per curiam, which I did, and that per curiam, in the form of a memorandum to the Court, said that this was an indictment charging a violation of the Sherman Act and the question as whether the allegations of the indictment sustained the charge under the Act. The Court is of the opinion, the memo said, that this question of statutory construction cannot be decided without raising questions of constitutionality and more particularly the power of Congress and of the states under the Commerce Clause in relation to the business of insurance. It went on to say, "for any view concerning these constitutional questions there is wanting a majorit y of the entire Court. The Court is of the opinion that constitutional issues of such gravity ought not to be decided by less than a majority of the entire Court, the moreso since the decision would involve overruling in principle decisions of this Court which have long been accepted as authoritative. We are therefore constrained to leave the judgment of the district court undisturbed." Stone seemed to be in favor of that. Black refused to go along with that. He wrote a long memorandum to the conference. The result in May 1944, the result of that was that gradually there emerged a very strong coalescence of four to three along the lines that the Sherman Act embraced, should be read as embracing, the insurance business because it was in commerce, although I think that if the seven had had to vote on whether or not Congress had the power to regulate insurance, they, the vote would have been unanimous. And that is the way the issue shaped up. And that is the way the opinion was written and came down.

Professor Walter F. Murphy: One of the questions that has fascinated students in the Court is how the school segregation cases were decided by unanimous opinion. I wonder if you would describe the conferences and provisional vote on those cases.

Justice William 0. Douglas: The case of Brown v. The Board of Education came up for conference discussion on the thirteenth of December 1952. At that time there were only five members of the Court, the Chief Justice, Black, Harold Burton, Sherman Minton and myself, who thought that the state laws requiring segregation were unconstitutional under the Fourteenth Amendment. Reed, Frankfurter, Jackson and Tom Clark presented views on the other side. Some of them indicated that they hadn't conclusively jelled on this problem but they argued at great length for reargument. And that is why the cases were put down for reargument, everyone realizing, of course, that the issues were extremely important in the life of the nation, that a very deep-seated pattern of life was being challenged, that no more important constitutional question had been presented to the Court in this century. That was the sum and substance of the very long discussion on December 13, 1952. Just about a year later, on December 12, 1953, there was another conference on the cases. The Chief Justice, Earl Warren, was very astute, I think, in opening the conference by saying that he thought we should merely discuss the cases informally and take no vote on them at this time, but merely express the views and take as much as we needed to express the views. And so the discussion went around the table, the Chief Justice taking the position that segregation was unconstitutional. Black was absent from this conference but his views were known. I voted that they were unconstitutional. Burton did and Minton did, but the others expressed opposed views. Frankfurter took the position that a host of laws passed by Congress were passed on the presupposition that segregation was valid, that the history of the legislation in Congress, that the course of decisions in this Court, all indicate that Plessy v. Ferguson was right. The position of Jackson was that this was a political question, not for the courts. Burton and Minton were strong in their view that this was unconstitutional. Tom Clark expressed the view that the Negro students in Texas were getting as good an education as whites, that what is good for one state may not be good for another. He thought that, on the merits, the Fourteenth Amendment outlawed segregation but the history subsequent to that was different and that this was something that would have to be worked out very carefully. After some discussion, Tom Clark finally said that he should, he would be willing to vote to abolish it but that the remedy would have to be worked very carefully to satisfy him. So on the basis of the conference, December 12, 1953, there were five clear votes for the abolition of segregation in the public schools in the state cases, with some indication on the part of Clark that he would go along. And the wisdom of the Chief Justice in not calling for a vote was to avoid views crystallizing too fast and too hard, trying to avoid the drawing of lines, people taking dogmatic positions. It was, I think, real statesmanship on his part, his good management of the situation to keep from a formal vote, to keep the conference sort of open for future discussions of it and there was considerable expression of opinion at the end of the conference that the Chief himself should keep the opinion and write it, see if he couldn't build the majority of five up to a majority of six, or seven or eight or possibly nine. But getting nine at that time seemed to be rather remote.

Professor Walter F. Murphy: Was it simply the, do you think, the circulation of his opinion, or do you think it was deeper thought on their own part that persuaded the then minority to come in?

Justice William 0. Douglas: It's hard to tell, it's hard to know, what influences a person's change of opinion, even when the change of opinion is one's own change. The forces at work that go to make up a decision are very difficult to analyze, to break down, to pinpoint precisely. I think that probably the intangible in this situation was the kind of a person that Earl Warren is and was at that time. I think that timid people like Frankfurter would feel as if they were walking safely when they walked in the shadow of a man who had been so popular politically as Earl Warren. I think that probably had a lot to do with it. I think that a politically-minded judge like Jackson would be apt to think that his size-up of a political situation was wrong if a man that had as vast experience as Earl Warren in politics voted this way. Because Jackson, thinking as Bob Jackson did, would think that no man would announce a decision that would be an unpopular decision across the board. I think maybe those, I think in other words it was the position of Earl Warren, as a very successful politician, governor, public servant before he had come to the Court, standing for this thing, standing for overruling Plessy v. Ferguson, rather than any intellectual arguments. I don't think they had much to do with it. The, Tom Clark I'm sure was brought along that way. The very last to capitulate was Reed, who finally said, "Well, if you are all going to vote that way, I'm not going to stand out." And, something that was five to four became eight to one and then finally nine to nothing.

Professor Walter F. Murphy: I know you attend the annual conference of the federal judges in your circuit. From your point of view as a Supreme Court justice, do you find these meetings of any particular value?

Justice William 0. Douglas: Yes, they put a judge, the circuit justice, a member of this Court, into rather close contact with district judges and the Court of Appeals. It exposes the circuit justices to some of the practical administrative day-to-day problems in the lower courts. It adds to his knowledge of the character of the men, their qualities, their limitations, their prejudices, their abilities, who are writing the opinions that he is sitting judgment on. It is a good educational influence for members of the Supreme Court I think to attend these conferences.

Professor Walter F. Murphy: You apparently knew Thomas Corcoran fairly well during your years with the Roosevelt administration. I wonder if you would describe him as a person or as a public servant.

Justice William 0. Douglas: Well, Tommy Corcoran really never held any office of any consequence except as a lawyer in the RFC and Jesse Jones, who was head of the RFC at the time, loaned him to F.D.R. He was sort of a hatchet man for F.D.R. or errand boy, so to speak. I'm not using those words in any derogatory way because he was, he was very able. He was an emissary sent on very important missions around the country and especially up on the Hill. He made many friends. He was a very powerful advocate for F.D.R.'s point of view, made many friends, made many enemies. He was so effective that he was, like all people who get too close to a man in power, he eventually had so many enemies he had to, that F.D.R. had to drop him. And he had made so many enemies by the time that F.D.R. dropped him that no one else in government wanted him. I know that because at F.D.R.'s request I canvassed six, seven, eight, ten cabinet posts, administrative agencies, looking for a place where, as F.D.R. said, we can put Tommy Corcoran with a morning coat and a top hat and make him a respectable citizen. Of course, F.D.R. was joking about this but he was, he knew that Tommy had made many, many enemies. Tommy was so powerful and so effective that nobody really wanted him around in government, nothing to do with his character, just due to the fact that he had become the image of a, being a man of a certain kind, as an operator, and they didn't want anybody who was so strong and so powerful around them. He was, he couldn't work for the President. He couldn't work for anybody else. Rather tragic end of the public career of Tommy Corcoran because he and I were very close, very dear friends and he was a man of tremendous ability.

Professor Walter F. Murphy: I was wondering if you knew anything about the story which Louis Koenig tells in his book, The Invisible Presidency. Koenig claims that five Justices of the Court went to F.D.R., or rather didn't go to F.D.R. but told F.D.R. that they were supporting Corcoran in 1941 for the Solicitor Generalship.

Justice William 0. Douglas: I know that Black, I know that I did. I know that, well I guess I don't have any personal notes beyond those two. I would give credence to the theory that there were five. I just have personal knowledge of the two. One member of the Court who succeeded in scotching that, however, was Frankfurter, who by that time had fallen out with Tommy Corcoran. Corcoran was one of Frankfurter's men. Corcoran, more than anybody else, was responsible for Frankfurter being appointed to the Court. They were very, very close in 1939. But in 1941 they were not. What happened between them I never knew but Frankfurter told me that he was glad about Corcoran because he would never want a fixer, as Frankfurter said, a fixer as Solicitor General. And that activity of Frankfurter in defeating Corcoran for the Solicitor Generalship created a gulf between the two men that never was restored, never resulted in anything but animosity and hard feelings on each side.

Professor Walter F. Murphy: You must also have known Harry Hopkins quite well. What were your impressions of him?

Justice William 0. Douglas: Well, Harry Hopkins was a very able man in a limited way. He was a sick man. He never was in good health anytime that I knew him throughout the early days of the New Deal. Roosevelt took a special liking to Harry, I think, perhaps because of the fact that he was almost an invalid. And for many months near the end of his life, F.D.R. had Harry living at the White House. He was on many, many confidential missions for F.D.R. He was as faithful a watchdog for F.D.R.'s interests as anyone that F.D.R. could have picked out. He was just utterly devoted to being a first-class messenger and spokesman for F.D.R. on confidential issues. He was a man that could not stand any competition. That's true of many men who get close to big men. Much of Harry Hopkin's energies were spent trying to whittle down other men who were around the White House, making his own place more secure. He's probably the one more responsible than any other single man, apart from Frankfurter, in seeing that Tommy Corcoran was ushered into oblivion, so to speak. He was very effective in, at levels like that. At the intellectual level of understanding the broad issues at the political level, of measuring sentiment of people, deciding what is practical, Harry Hopkins was a very limited man. But he was a very, extremely important, strong man in the work, some of the work that F.D.R. had to do, and F.D.R. used him very effectively.

Professor Walter F. Murphy: At our last meeting we were discussing, with the tape off, the defeat of Frank Graham in 1950. Would you comment on this please?

Justice William 0. Douglas: I wasn't very close to the situation existing in North Carolina in June 1950. Court adjourned I believe, before the primary was held. That took place, I believe, on June the twenty-fourth. We handed down three decisions on June the fifth involving segregation problems, the Sweatt case in 339 U.S., the McLaurin case in 339 U.S., and the Henderson case in 339 U.S., in all of which Negroes were vindicated in their right not to be segregated in certain public facilities. That, those decisions probably had such a repercussion that Frank Graham lost out on his Senate race. At least he was defeated on June the twenty-fourth 1950. They, those decisions came down just as a matter of routine, none of us on the Court felt they had, were aware of any possible consequences. Many of us, or some of us at least, Hugo Black and I were, in particular, were friends of Frank Graham. If we had thought about them we would undoubtedly have handed them down anyway because the Court was going out of session into summer recess and the noses would have had been decided normally that term. But some of us were very sad afterwards that the decisions were probably the effective cause of Frank Graham's defeat, in one way, sending him to even wider circles of influence. He became active in the U.N. He was very influential in changing American foreign policy in Indonesia. He was very active in the, he had to settle the dispute between India and Pakistan. So the United Nations gained what the Senate lost.