Transcript

Justice William 0. Douglas: Vinson's relations with Frankfurter were not good. Van Devanter was a very articulate man, very able. He could analyze a very complicated case in very simple, clear terms and if a stenographer had taken down what he said it would take very little polishing to make it into a fine opinion. But he froze when he picked up a pencil or a pen. His ideas did not run off the end of his fingers. He could get into great difficulty in expressing himself in the written word. And I think the statistics speak for themselves. But I think there were very few terms that he wrote more than about six opinions for the Court. And many terms that was Frankfurter's production, but not due to inability to write but due to the fact that Frankfurter was spending most of his time on activities that had no relationship to the Court, like getting people jobs, or getting people fired, or getting people promoted, or getting policies that he was in favor of adopted, either domestically or in foreign affairs, getting ambassadors approved or disapproved, things of that kind.

Professor Walter F. Murphy: I take it you much prefer, that you as a Justice, much prefer the Hughes method in relationship to the Court.

Justice William 0. Douglas: It doesn't make too much difference actually. I would prefer the Hughes method because it would give the Court an extra month in recess. And I think the extra month of recess over the long pull is good for the health of the Court as an institution.

Professor Walter F. Murphy: As Hughes, you know, said, when he was, that held run with, had run as a presidential candidate once and that he found that any one term on the Supreme Court more physically taxing than a presidential campaign. He dropped this in a note to Taft. There's a problem that has at least recurred in the past and that is retirements of Supreme Court Justices. At least four Justices were asked by their colleagues to leave the Court. I wonder if any such instances occurred while you have been on the Court or if in light of your own experience in that of previous Courts you think that there should be a mandatory retirement age. But if not, do you have any other solution or do you feel this problem occurs so seldom as not to be serious?

Justice William 0. Douglas: No such problem has occurred since I've been on the Court. I've thought, however, that probably the best way to handle it would be a constitutional amendment limiting the judges to a fixed term of years, say like Pennsylvania, where they are limited to one twenty-one year term or alternatively, retire at a specified age such as seventy. It's difficult to make out a case of a need for it because these kinds of situations you mentioned have not, don't arise, commonly arise. So it's actually not a serious problem. But I think over the long history of the country it would probably have been better to have a limited term, say of twenty-one or retirement at seventy. The reason is that all judges, like all executive or professors or deans or college presidents, they get into grooves and they develop calluses, all sorts of calluses. And they become immune to the infiltration of different ideas or at least new ideas have difficulty in getting through. And, the more I'm here the more I'm inclined to think that the period of growth of a judge is very limited and once he reaches that plateau where all his ideas become pretty fixed, it's time to get a new judge.

Professor Walter F. Murphy: In off-the-bench statements many Justices complain of the generally poor quality of oral argument before the Court. I believe you once spoke of this in a letter to F.D.R. Do you now, since your letter to F.D.R. was written shortly after you came on the Court, feel that this criticism is, as a whole, valid? And would you explain what sort of oral presentation you prefer?

Justice William 0. Douglas: Well, I think that the criticism is valid. I would say that about, only about forty percent of the arguments before the Court are competent, have real quality. The rest are very pedestrian. The, or if they are not pedestrian, they are on a plane that has very little utility to the Court. So many spend their time trying to explain to the Court what the decisions of the Court mean and it's a kind of a waste of time, to try to tell the judges what their opinions mean. The education that a judge needs on a case that's coming up is the education of the facts of this particular case and by facts, not a deadly recitation of everything that happened, but a very short, concise summary of the relevant facts and why those relevant facts keep this case within the stream of such a decision or call for an exception. And the arguments that are most helpful are those that do that. One other aspect of the matter is, pertains to the honesty, intellectual honesty of the lawyer. I don't mean to say that lawyers appear here who are dishonest in presenting, or have guile, or who will purposely mislead. But the tendency of people is to get enthusiastic about their cause and the tendency of lawyers is to overstate their record. The most effective advocates before our Court are those who never overstate the record, who stay precisely within that record and who show that one or two or three relevant facts that keep this case within the normal run, within the stream of the law, or make this case demand in the interest of justice or equity or whatnot that there be an exception. It's a factual argument rather than a legal argument that is most helpful.

Professor Walter F. Murphy: I take it that in the factual part that you would also include perhaps what the implications of this decision would be in the long run, that is the decision the lawyer is asking for. You know, how it would affect existing laws that he wants to change, what the effect this change would have.

Justice William 0. Douglas: Yes, that would be relevant if he has any idea on it. We grant, as you know, an hour on each side unless time is enlarged. I have found that lawyers use an hour whether they need it or not and that it increases the quality of the argument to put a case on the summary docket, that is give each side thirty minutes. Because there are very few cases, except those long, involved cases, with many points, deep involvement in factual variations, that cannot be argued in thirty minutes. Most of them can be. And I notice that the lawyers from Bars who have that practice in Pennsylvania, for example, always restrict lawyers to thirty minutes on appeals. Those lawyers that come here make probably the best arguments. They reduce the case to a capsule and you'll find them back in their seats in twenty-five or twenty-six minutes. They're accustomed to the regime. The regime has made it imperative that they reduce the case to simple, relevant terms, and that usually can be done in thirty minutes.

Professor Walter F. Murphy: I suspect that most professors' lectures would improve if they were cut from fifty to thirty minutes too. In some appellate courts it's a practice for the judges to have to read the briefs before oral argument and then to direct argument to certain limited points. I know the Supreme Court, except on reargument, rarely directs argument. But as far as you know do you think it is a general practice on the Court for the Justices to have carefully read the briefs before oral argument? I wonder if the cases are often discussed in conference prior to argument, that is, other than when the certiorari petitions are brought up.

Justice William 0. Douglas: The Court rarely directs argument. The only way we do that is on the grant of a petition for certiorari. We sometimes limit the grant to one or two points and we specify what those points are. Or when we grant the petition, rephrase in our own terms the question that we went argued and put that in the order of granting certiorari, or noting jurisdiction in the case of an appeal. We do read the brief before oral argument. The cases that are not yet argued are not frequently discussed. After the petition for certiorari is granted or after the jurisdiction, probable jurisdiction is noted in the case of an appeal, unless there are other developments such as new cases in the same field or an act of Congress that bears upon this field, then the problem is discussed. But generally, we don't discuss the case prior to conference, eh, prior to argument, except in the conference discussion when the petition is granted or the appeal noted.

Professor Walter F. Murphy: Shortly after the school-segregation cases in 1954, the Supreme Court refused to hear two miscegenation cases, Jackson v. Alabama and Naim v. Naim. I wonder if you could describe the conference discussion on these two cases.

Justice William 0. Douglas: These cases presented the question of whether a state could make it a crime for a member of the white race to marry a member of the yellow race or a member of the black race. The, there were three of us who felt that the state had no such power, at least we were, we needed to be shown that, where that power could be found. Those three were Chief Earl Warren, Hugo Black and myself. The opposition was headed by Frankfurter who spoke at great length, who was convinced that this was just a run-of-the-mill police-power case. It was as clear that the state had the power to prevent this as it did to prevent nuisances or prevent houses, houses that were firetraps, that the purity of the race was as legitimate a subject for legislation as the purity of milk, or the purity of water, the healthful condition of housing, and so on. He was very, very vocal, very clear, very demanding in this case. He spoke at great length, with great feeling, pounding the table, shouting. He spoke so vehemently that I was beginning to feel that perhaps he was less sure on the inside than he seemed to be on the outside. The vehemence was trying to make up for perhaps a weakness in his own position that he felt. I thought that as a result of these long discussions on these two cases, that the Frankfurter position, if it could be honestly stated, that this was no time for a court to be arousing the people in the South any more than they were already aroused. And therefore he was willing to cast principles aside. But it seemed to the three of us this is such a highly personal thing, as personal a thing as the matter of one's belief or one's opinions or one's religion, that we were entering a domain that in a free society should be of no concern to government. At least we felt that it wasn't open and shut. We wanted it argued. But it takes four to grant a cert and that's the reason why those were not granted.

Professor Walter F. Murphy: I was wondering if anyone made this a political argument overtly in the conference.

Justice William 0. Douglas: No, I don't, not that I recall.

Professor Walter F. Murphy: This, I had just guessed and had written something on this. It isn't published yet, but I had made a guess that this, that the argument that you described as the real one of Frankfurter is possibly the real one behind the decision, eh, I mean the denial. In this case, just exactly what you have said, that you felt that Frankfurter's real position was. Because it would seem to me that if school segregation is unconstitutional, that it certainly must be unconstitutional to choose, to forbid a person to choose a marriage partner because of race. Would you describe the conference at the last hearing of the Rosenberg case after you had granted a stay of execution?

Justice William 0. Douglas: As I recall, I granted the stay on the sixteenth of June, or it right have been the seventeenth of June, 1953, after oral argument in my chambers. This was a Second Circuit case, and Justice Jackson was Circuit Justice of the Second Circuit. I was headed west. I was alone, driving my car to the State of Washington and my first stop was going to be St. Louis. I had an engagement to see Irving Dilliard, who was an old friend of mine connected with the St. Louis Post-Dispatch. And the Court had adjourned on Monday. This was Tuesday. And I was, unfortunately, I came to the office instead of leaving right from my home. I say "unfortunately" because when I came to the office, the counsel on the Rosenberg case was there asking me to stay the execution, which I think was set for Thursday. I told them that this was a Second Circuit case and that the application should go as a matter of custom and propriety to Justice Jackson. And they said, "Well, the reason that we're giving it to you is that we know that we won't have time to present it to Jackson and then present it to you because we understand that you are leaving town or driving West." Which was the fact. How they knew it, I don't know. Perhaps somebody in my office inadvertently told them. I told them that a Justice didn't grant a stay in any case from another Circuit without the, if the Circuit Justice of that Circuit was available. And so they got hold of Jackson. And Jackson called me and told me that he thought I should pass on the motion since I was leaving town. The fact that he hadn't passed on it was immaterial, that he would not consider it improper for me to entertain it. So I asked the government to come in and the counsel for the Rosenbergs to come in and had an oral argument. My law clerk had left the city for the summer and he was taking a Bar examination, I think, in Arizona. So I borrowed one of Black's law clerks and after the oral argument, he and I went to work on it. We worked intensively on it till about eleven o'clock at night. The point presented, namely, the effect if any, of the change in the punishment while the crime was being committed, that point had never been presented to any court. The case had been to us several times. But after we checked the District Court records and the Court of Appeals record and the petitions that had been filed at various times with us, I realized that this was a new point that had never been considered by any court. And I had difficulty in concluding that it was a frivolous question. The crime was a crime of conspiracy, a conspiracy that I recall that was charged and was proved extended over a four year period. When the conspiracy started there was the death penalty attached. After the conspiracy was two years old, the statute was changed so as to make the death penalty not mandatory but permissive on the recommendation of the jury. And there had been no such instruction to the jury. The old law had been assumed to be applicable, that is the law in existence at the time the conspiracy was started rather than the law as it was amended during the commission of the conspiracy. We went into the record to see what the proof was. We found that the essence of the case, the guts of the case against the Rosenbergs was made up of episodes that occurred after this law had been amended, the most incriminating evidence against them. And I always felt from reading this record that the Rosenbergs certainly were guilty of some federal crime in connection with the attempt, at least, to transmit secrets to Soviet Russia I wanted to, I did not want to grant the stay. I did not want to grant it, at least that day. I wanted to sleep on it. So about eleven o'clock at night, I left the Court building and went up to see the Chief Justice, Fred Vinson. Washington was pretty excited. There were pickets around the White House and there were pickets around the pickets. There were masses of people milling around the Courthouse. There were about two hundred cameramen and newspapermen in the hall waitin g for me to make a ruling. I didn't, wouldn't talk to them. I slipped out the back way and left by way of the garage. I went out to the Sheraton Park where Fred Vinson lived and had a long talk with him about it that night. I said that I didn't come to him for advice but I thought I had better tell him that I turned up a very troublesome question that had never been presented to any court before. And since this was a death case I was inclined to think that some court should hear it. He had never considered the matter before, the point of law before. But he immediately undertook to demonstrate that the point was a frivolous point and the more that he talked the more convinced that I became that the point had some substance. So I left him about one o'clock in the morning to get some sleep and return to the office about ten o'clock in the morning. And when I woke that morning and thought about it, I decided that I had only one course to do and that would be to grant a stay. They were to die the next day. That was a Thursday. I think I'm right on that. Well, anyway, I think they had only a day or so to live and that nobody could really rule on it, to get briefs and argument on it, make up his mind on it in that short time. And, therefore, I prepared a stay that would permit the question to be presented to the District Court. And then by that time, our Court would have reconvened in October. The Court of Appeals had doubtless, would have expedited it and heard it. And the case, the point of law, should come before us on a case for certiorari, which we would either grant or deny. But by that time it would have been explored by two courts and found to be, have merit, or found to be of no merit. So I issued the stay and I left town by car, thinking that the matter was disposed of until next fall I had got, as a result of the late start, I reached some point south of Pittsburgh by dusk and registered in a motel. And I heard an announcement an the car radio as I was coming into the motel that the Chief Justice had called a special session of the Court for the next morning to pass on the, my stay order. I left my bags at the motel and went back to the nearest town and, to call my office to see if that report was true, and if so, to advise Vinson that I'd be on hand for the session, and third, to arrange transportation to find out how I could get back, where I'd leave the car, and so on. I called my office and discovered that the, that Vinson had called the Court into special session for twelve o'clock the next day. I advised my office to advise him that I would be on hand. The, one of the things at that junction that disturbed me was that there had been no effort to reach me. The, Vinson knew where I was going, knew the route I was on. He knew I was driving and a simple alert to the Pennsylvania police would have got the message to me and I could have been advised. But he was not interested in getting me there. He was interested in getting the stay vacated. I went back to the motel having discovered that I would have to drive to Pittsburgh and that I could catch an early plane out of Pittsburgh that would get me to Washington in time for the argument. So went back to the motel to get my bags and as I drove into the grounds where the motel was located, my headlights picked up a huge crowd of people that had assembled around the place where I was staying. And the mood of Washington, D.C. had been so ugly that I thought this was the mob that had come to pay their, tell me what they thought of me and perhaps do something about it. I stopped the car and turned off the headlights and stepped out. A man stepped up and asked if I was Justice Douglas and I said I was. He turned to the crowd and in a very loud voice said, "It's him." And three or four men rushed up and grabbed me. I thought it was, momentarily, that it was for a lynching or some acts of violence. Actually they put me on their shoulders and it was very embarrassing when they carried me about a mile to a picnic that they were having. These were Eastern European coal miners. T hey were rough, uneducated men, had their wives and children at this big picnic. And they were overjoyed that the, not at the Rosenberg particularly, but at the feeling that a Justice was about to, that a Justice hadn't gone down the drain, that there was going to be a hearing. It was very difficult for me to get away from that crowd. After a delay of an hour or so I got back to my car and drove to Pittsburgh and caught my plane and got to Court in time. And we had a preliminary conference prior to twelve o'clock. And Black raised the question that Vinson had no power to convene a Court, that no Chief Justice had the power to convene a Court, that the Chief Justice was not like the manager of a baseball club or a football team, that a Court could convene only on a majority of a vote of the Court. And Black was clearly right, in my view. And when the vote came to me on that, I stated that I thought that Black was right but that I would defend the right of the Chief Justice to summon the Court to take a vote on whether or not a Court should be convened, and that I would cast my vote to convene the Court. And that was, Black thereupon withdrew his opposition and we went into Court, into the Courtroom to hear the argument. After the argument, we came back into session to consider it and I asked for a vote of the conference on whether or not the stay as issued should stand. And on that, the vote was five to four. Those who voted to let the stay exist, to stand, were Black, myself, and Burton. Frankfurter passed but later changed his position and voted that it should stand and that the District Court should hear argument and we would have a chance to pass on it. Then there was another vote taken on another question and that was whether or not the Court should grant the stay and then put the case down for a hearing on the merits of the question presented. And that motion obtained four votes, Black, Frankfurter, Burton and myself. And then the final vote was to vacate the stay, and on that there were just three votes, that is, Black, Frankfurter and myself, with the rest of the Court, namely, Vinson, Reed, Jackson, Burton, Clark and Minton, voting to vacate the stay, that the question of the law was a frivolous, insubstantial one. And that was the way it was announced the following day, which was a Friday, no, which was a Thursday. But the vacation of my stay by the Court on Thursday necessitated a redesignation of the time of execution. And that took. It was impossible, apparently, to get the machinery working fast enough so that the Rosenbergs could die on Thursday night. The fastest the machinery of the court, of the federal courts, could work was to execute the Rosenbergs on the Friday night. But it was clear that the Rosenbergs had to die. The country was out for blood. The Court was blind to any reason. Vinson was filled with passion to such an extent that he could hardly utter a calm word. This was the closest I have ever seen this in my own personal experience. I have read things to this effect but in my own personal experience, this is the only time I had ever seen the spirit of a mob, the spirit of the streets, dominate a court. The Rosenbergs died Friday night and the whole country had a, exulted in some strange orgasm of hate. Vinson died later, in three or four months. He was at the American Bar Association meeting in Boston in August of that year, a month before his death. My brother, who is a lawyer, but who at that time was President of the Statler Hotel system, happened to be in Boston at the same hotel. And Vinson heard that my brother was there and called my brother to his suite and went into the whole Rosenberg case. And by August, which was two months later, the Rosenbergs were dead. The mob had tasted its blood and Fred Vinson was a sad man. He was sorry at what had happened. He had, he looked back upon this last judicial act in his life with sorrow and misgivings, regret. And he told my brother that I had been right. He had been wrong. And he wanted to do everything he could in the rest of his life to try to clear my name of any wrongdoing and to make up for this great injustice that had been done. It was rather sad. Nobody knew at that time that Fred had only a month to live but perhaps he had some premonition.