Transcript

Professor Walter F. Murphy: Would you describe the conference on the two decisions in Williams v. Georgia. The first was, on the first case at least, was decided in June of 1955 and the second decision of the case came down in January of 1956.

Justice William 0. Douglas: The first case Williams v. Georgia was number 412, 1 think, in the 1954 term. And there were four members of the Court voting to grant the petition for certiorari. They were Clark, myself, Black, and Warren. After the case was argued or during the argument, or about the time of the argument, I forget, but at the time the case was being considered on the merits, Harlan wrote a memorandum urging that the case be sent back to the Georgia Supreme Court for reconsideration. The question that bothered the Court was whether there was an adequate state law, whether the federal question raised in the Avery case concerning the use of yellow tickets and white tickets in the jury box distinguishing Negro jurors from White jurors was applicable. And the opinion as it was finally settled upon, the majority of the Court, the majority of six, was written by Frankfurter which speaks for itself, saying there was apparently an entanglement of federal questions and state questions and that the case should go back for reconsideration by the Georgia Supreme Court. At the conference, the Chief Justice just reversed outright and did not do what Harlan urged in his memo, to have the case sent back to the State Court. And Black was inclined to that view. And I felt that it should be reversed outright. Then there were some dissenters. So what Frankfurter finally worked out was somewhat of a compromise to get a court action. And it turned out to be a rather sad sequel because when the Georgia court reconsidered, there were, it seemed pretty clear that they put the case, put the decision on a state ground that would be very difficult to indicate (?) in a federal question in reverse. When the case came back on certiorari on the miscellaneous docket number 328 in the 1955 term there were no clear votes to grant. There were three on the border doubtful what to do. They were Harlan, Black and the Chief, Earl Warren. And the rest of the Court, including myself, felt that we were boxed in, that the Georgia Supreme Court had placed a decision on a state ground that could not be overridden by us in our limited appellate jurisdiction. This case is a little bit like the Minnesota Tea case, I think it was. I wrote it. It was back in 309 or 310. It didn't involve racial discrimination. It involved the question, as I recall, of whether the Supreme Court of Minnesota had applied its due process clause or the due process clause of the Fourteenth Amendment in making a ruling. I was persuaded by Frankfurter, who was always very strong in the scheme of federalism, to keep the Court out of all possible collisions or conflicts with state courts and therefore would go to great lengths at times to try to find reasons to send the case back so that a state court could reconsider in light of the argument before us and the questions that had been raised in our minds. I took the lead and wrote the opinion for the Court, sending it back. We got a very sharp rebuke from the Supreme Court of Minnesota which said, in effect, that any fool would know by reading our first opinion that they had nothing to do with the federal Constitution but only with the state Constitution, something to that effect. In our conference discussions we referred to the Minnesota Tea case and other members of the Court, Black I think was one who along with me was getting a little gun-shy of Frankfurter's treatment. But we went along. We agreed to go along and we felt that we had gone out on a limb and had the limb sawed off by the state court again in this Williams v. Georgia case. And that since the Georgia court had written another opinion making explicit, whether in good faith or not, making clear that this was nothing to do with the federal Constitution, this was a matter of state ground. We felt boxed in. And that is why the case wasn't taken the second time and why all the energies of the Court were exhausted in an exercise of futility. Which emphasizes in the minds of some of us it's much better judicial administration if at a conference discussion the votes shape up prospectively as involving merely a remand, not to touch the case but let it lie, rather than try to bring it up and then have it affirmed on a, on inadequate state grounds or remanded for reconsideration by a state court, which usually infuriates a state court.

Professor Walter F. Murphy: In this case, the Georgia judges certainly appeared irked --

Justice William 0. Douglas: Yes.

Professor Walter F. Murphy: And they had a very strong --

Justice William 0. Douglas: Yes. They got up quite a head of steam on the case. But that's the essence of it. And in the conferences since the Georgia case, Minnesota Tea and Williams v. Georgia, have been referred to as the Court's biggest, some thought its biggest mistakes in dealing with the state courts. So, I think there's a tendency since the Williams v. Georgia and since the retirement of Frankfurter to do less and less of that and either just deny cert or to reverse, reverse outright, like the Chief and Black and I wanted to do in Williams v. Georgia.

Professor Walter F. Murphy: I was wondering if we might go to another case. I know you've said there isn't much on these cases in your notes but I wonder if you could discuss just what you have on the conference on Watkins v. United States which was decided in June of 1957 and Barenblatt v. United States which was decided in June of 1959.

Justice William 0. Douglas: Well, the Watkins case was number 261 in the 1956 term. It came in during the summer and we voted on it in October, the first week in October. And there were six to grant the petition. Brennan hadn't arrived, I don't believe. No, he, Minton was still on the Court. Minton and Reed voted to deny a petition and Burton didn't participate. I think Burton didn't participate because I believe he had a nephew or some relative in the prosecutor's office in the District of Columbia. And those voting to grant included not only myself and Black and Warren but also Harlan and Clark and Frankfurter. That's in the Watkins case. By the time the case was argued, Brennan had arrived. He joined myself, Black, and the Chief, plus Harlan and Frankfurter on the vote to, on the merits to reverse, with only Clark voting to affirm. And the Chief kept the opinion and what he wrote is a matter of public record. When the Barenblatt case came along that was number 35 in the two terms later, the 1958 term, the petition came in during the winter and was granted in April. There were only four to grant and those four turned out to be the dissenters, the Chief, Black, myself and Brennan. And Harlan, Clark, and Frankfurter this time voted to deny. And Harlan wrote the dissent and Black and Brennan -- eh, Harlan wrote for the Court and Black and Brennan wrote the dissent. The discussion at the conference of the Barenblatt case was very cursory. It took just a few minutes, the Chief Justice saying that he thought Watkins applied and that he would reverse. Black and I agreeing, and Frankfurter merely saying that he would affirm because Watkins was irrelevant. There was no lack of notice, or lack of pertinency (?), and so on. It was very, almost cryptic discussion of the case because opinions had pretty well jelled between Watkins and the arrival of Barenblatt. And why they had jelled that other way, I just don't know. But that's about all there is to it because it was not a long, debated case. The, it was well argued but the views of the majority had crystallized very strongly. There was a, became immovable. And so there was no way of convincing anybody in the majority or anybody in the minority. So I think that the upshot of it was that for some reason or another Watkins was greatly watered down and there was generally a retreat from Watkins.

Professor Walter F. Murphy: I have a minor question on this, almost irrelevant, but you reminded me of something I have wondered about. You may recall in his Watkins dissent, Justice Clark, rather this is Jencks dissent, not Watkins, but Jencks was decided about two weeks before Watkins. In Jencks dissent, Clark had said, this was the one opening the FBI files where they were used at a trial where the defendant had to have a chance to see them too if the prosecution witnesses were using them, Clark said something in fact that unless Congress "undoes the evil that is done this day that we've opened a Pandora's box.'' I wonder, among the Justices, is this considered to be going a bit far to urge Congress, the minority Justice to urge Congress to reverse the majority? It isn't usually, I mean, it's unusual. I just wonder --

Justice William 0. Douglas: I don't know if it's happened before or not. I would think we could probably find other examples, if you're serious.

Professor Walter F. Murphy: Probably.

Justice William 0. Douglas: It just indicated a very deep conviction on Clark's part that the decision was so wrong that something ought to be done about it immediately. Of course, the case was greatly misunderstood. A lot of things were written about it that were not true, that this enabled the person accused of subversion, ransacking the FBI files. What had happened actually was that FBI witnesses, FBI agents who were called as witnesses, had become sort of white cows, sacred, because they testified without any possibility of re-examination on the basis of the reliability of their memory. An ordinary witness can be asked a question, "Did you at the time of the, this that you referred to, make any notes or memoranda?" "Yes, I did." Then a request is made for the production And those notes are usually produced unless they are known to be communications between a parishioner and a priest or a husband and a wife, something like that. With those exceptions, they were produced. And we all know the memory of man is very treacherous. Sometimes things as far away as five years or three years telescope and become one with the passage of time. And people make mistakes. And the FBI had become, as I said, into a very favored position with its witnesses who were officers. Because they could not be required to produce any notes that they made concerning the episode. And we didn't see why if there were notes of that conversation made or notes of what the agents saw made, that those shouldn't be produced, that they shouldn't be treated like ordinary witnesses. Because the liberty of a citizen was at stake. And the country was beginning to find out that some FBI agents were notorious perjurers.

Professor Walter F. Murphy: I guess the man involved in this case was Harvey Matusow.

Justice William 0. Douglas: Yes.

Professor Walter F. Murphy: He got a lot, a great deal of notoriety at some time. I wonder if we could move on and discuss the conference in the New York school prayer case of last term, Engel v. Vitale, which was decided last June.

Justice William 0. Douglas: The case of Engel v. Vitale came on certiorari and it was granted. All voted to grant except Whittaker who voted to deny and Stewart didn't vote. Black voted to grant with a question mark. The Chief, Frankfurter, myself, Clark, Harlan, Brennan all felt that the case should come up and be decided on the merits. And it was. And it was argued and the vote at the conference to reverse on the merits were the Chief, Black, Frankfurter, Douglas, Clark, Harlan, and Brennan. Stewart passed and Whittaker passed.

Professor Walter F. Murphy: Excuse me, did you say Frankfurter?

Justice William 0. Douglas: Yes, Frankfurter heard argument and Frankfurter voted on the merits and he voted to reverse. By the time the case, the opinion was written and the decision announced, Frankfurter was not on the Bench because he had had a stroke. And so we marked him out because he hadn't seen any of the opinions. Whether he would have agreed with the opinion written, nobody knows.

Professor Walter F. Murphy: From letters from you to President Truman now in the Truman papers, I gather the President asked you on several occasions if, in your travels around the Near and the Middle East, you would undertake several confidential missions for him. Would you talk about the sort of work that you did for him?

Justice William 0. Douglas: Well, I didn't really do any work for him. I called before I left the city every summer when the Court was in recess, I'd call to ask to see him. And I'd walk in and say good-bye and ask if there was anything I could do for him while I was out of the city. And once or twice he said, "Where are you going?" And I said, "I'm going to India," or "I'm going to the Middle East," or "Africa.'' And I remember once, I think it was in either 1949 or 1950, he said, "Yes, if you're going to India there is something I would like to have you do." He said, "I'd like to have you spend as much time as you could with Mr. Nehru to find out if he is a Communist.'' He said, "He sat right in the chair you're sitting in." And he said, "If I ever saw a Communist, there's a Communist. And I'd really like to have you spend some time with him and smoke this fellow out and find out where he really stands." He said, "I can smell these Communists a mile away. And this man Nehru sure looks like a Communist to me." I went to India and I spent, I think, about two weeks, as I remember, in and around Delhi. I saw Nehru for lunch and tea and dinner, had many conversations with him about many different things. And when I got back to Washington I checked into the White House and said I was ready to report. And I went over and saw Truman. And I said, "Well, I got a report for you on Nehru." And he said, "Nehru is a Communist, isn't he?" And I said, "Well, he's about as much of a Communist as you are, Mr. President." He said, "Oh, don't give me that guff." He said, "Nehru sat right in the chair you're sitting in." And he said, "I can smell these Communists a mile away." He'd repeated what he had said in June and the report that I had on Nehru was like shouting into the hurricane. There was no possibility of any kind of a bridge or access or understanding at all between Truman and Nehru. Not for any shortcoming on Nehru's part because he's a pretty worldly man. He gets along with all sorts of people. But they don't breed that kind of a person around Independence, Missouri.

Professor Walter F. Murphy: Probably a bit too subtle for Harry's taste. On April 11, 1952 --

Justice William 0. Douglas: No. Truman was, he was very provincial. He knew very, very little about what went on in the world, I mean, of his own personal knowledge. Of course, when he was President experts brought him all sorts of information as to conditions and problems. But he started with very little understanding. And anybody who didn't fit the Democratic-Republican pattern of ideology in America was a dangerous person. He was, Truman did not know the world of ideas. He did not know the world of philosophy. He did not know the world of religion. He would give me long lectures about the Persians and they were the demonstrations of the greatest ignorance I have ever known from a person in a high, high place. He just didn't, he just didn't understand. He was a very, very ignorant man at that level.

Professor Walter F. Murphy: In April of 1952 you wrote President Truman in which you fully concurred in his decision to relieve General MacArthur. And you allude to a recommendation you had made to this effect the previous October. I wonder if you would explain the reasons behind your recommendation.

Justice William 0. Douglas: Well, one of the things that I got into when I got out to India in 1950 and when I got out to Hong Kong, was the status of the U.N. Army and its relationship to the 36th Parallel, and whether the 36th Parallel should be crossed. And I think I've discussed that previously. The, Nehru had at that time a very active embassy in Peking. I forget the name of the ambassador but Nehru showed me the dispatches from his ambassador saying that the United States should know, that England should know, and other nations involved in the U.N. action in Korea should know that if the 38th Parallel was crossed that Red China would enter the war. And when I, and Nehru asked me if I would carry that message to Truman. He wanted to make sure that Truman got it before it was too late. And I said that I would and I did report it to Truman. On the way from India to the United States, I stopped in Hong Kong and there were three Chinese came out to see me. I had known a man in the States by the name of Lu, L-u, who owned most of China's coastline shipping. He was a very wealthy man. I had dinner with him in Washington, D.C. I think, in 1949. It might have been the spring of 1949. He decided to go back to China, to Peking, to cast in his lot with Mao Tse-tung. I tried to dissuade him, telling him that I was sure they would liquidate him in time. He said, "No, I have a lot of skills that they need in building this new nation, this new regime. They're Communists, but they also tolerate other people." And, of course, they did at that time keep some symbolic groups around even in their government. Lu was still alive in 1950. He came up to Hong Kong with a couple of others. One was a member of the Chinese, Red Chinese congress, and the other was another Chinese businessman friend of Lu's. And they had the same message to give me for Truman. At that time they also set forth at considerable length other ideas they had. One was that the United States Government and the Peking Government should get together, exchange ambassadors, that the Peking regime was anxious for a trade agreement, that Peking did not want to get too closely dependent upon Russia, and so on and so on and so on. That they wanted cultural exchanges. They wanted a settlement of the Formosa issue. They wanted peace with the United States and, but everything had to start with stopping at the 36th Parallel. And I had been back, when I got back I went in and reported that to Truman, Nehru's message and the message that Mr. Lu gave me in Hong Kong. I summarized them in some detail because they were at that time very fresh in my mind. And when I had finished, Truman, who had been sitting there rather nervously, said, "Are you finished?'' And I said, "Yes." He said, "Well, let me tell you something. I have better intelligence than you've got." And I said, "What is your intelligence?" He said, "They're not going to come into the war." I said, "How can you be so sure?" And he said, "Because General MacArthur who knows more about the Chinese than you do or anybody else tells me that.'' I said that these representations of Nehru and Mr. Lu were from very reliable sources. And he again said, "Well, Nehru's merely a Communist or a tool of the Communists." He wouldn't trust him. He would trust MacArthur first. And I kept on pressing him. I guess I was in there perhaps an hour wasting his time and my time because he finally ended the conversation by saying that the Red Chinese won't come in, that I could rest assured. Secondly, that if they did that, they would, and then he used some very foul, strong language, that they would be battered to a pulp. The aftermath of that, of course, was clear. They did come in, when we crossed the 38th Parallel. And they almost drove the U.N. Army into the sea. It was a great, tragic thing with the loss of 140,000 American lives and we ended up back at the 36th Parallel. It was a needless exhibition of, in the drawing of blood between two nations. That was all in the background of General MacArthur and I kept reminding Truman that my intelligence had turned out to be better than his and that this General MacArthur was going to ruin him in Asia. As I said, Truman was a very ignorant man about world affairs. He was a precinct politician. He was, he had, he was cute, he was popular with taxicab drivers. He was a tough, vigorous, little campaigner but what he knew about the world you could put into a peanut shell. In Asia, he just absolutely had no conception of the aspirations of Asia, the peoples of Asia, the color question in Asia, the hatreds of the whites that were building up in the yellows and the browns. MacArthur was striding the stage of Asia, was the great new symbol of white man's power, white man's strength, white man's domination over these little inferior coolies and MacArthur did great, great, great injury to the image of America that had been built up for decades through missionaries and through businessmen, traders, schooners, that had been built up through teachers, through students, coming here and going back. That was largely destroyed by the symbol of General MacArthur that meant grinding down the little yellow man and putting above him the white warlord. I don't say that MacArthur meant to do all those things but that was the terrible symbol. And I kept reminding Truman of that. And Truman, MacArthur was going to ruin him politically. And the letter of April 11, 1952, had that, all of that as the background.

Professor Walter F. Murphy: I think that this might lead us right on to the next question of what you might think the judgment of history will be on Truman's Presidency.

Justice William 0. Douglas: Well, I don't know. I think that for his, for his courage and outspoken manner in which he pounded away at simple little points on the domestic scene, he will perhaps be well remembered. He was a colorful little, what I always thought of as a pygmy. He wasn't a man who understood what went on in the world. And it's, to think of him sitting with Jimmy Byrnes, Secretary of State, sitting with Stalin, dividing up the world would be like sending a couple of immature high school students to play poker with the pros. They just, those men didn't know the world. They didn't know the problems. And Truman never did, to this day, to the end of his Presidency on or after. There were some good things that he did. And what they, whether they were due to him or to others, I don't know. I think it was a bold thing he did in going into Greece. I think it was an important thing. Greece. I happened to know Greece at the time. It was in complete disintegration and there would have been a Communist takeover in a year. It took courage to go in, not as much courage as some people thought at the time. But it was a commitment of a kind and he had that kind of sturdiness, a willingness to stick out his chin and fight. The trouble is that many of the times he didn't know what he was fighting about. Like in Korea. But it took courage I think to go in. I think it was an advance in international law for the U.N. to go in. I think that actually the Indian statement of the necessity to go into Korea was much more worldly-wise than the Truman statement. Truman gets credit for it but that was a rather unanimous decision of the United Nations at the time. And Truman implemented it quickly and promptly and the American forces were the largest unit in the U.N. Army. I think that those things, those two things required courage and I think that Truman will get a lot of credit for it. I think that the, there are two things that he did which are unforgettable and unforgivable. First, is the way in which under Truman the military became stronger and stronger and stronger in America. He catered to that. He had been a Captain and he, I think, was sort of fascinated with generals, kept them around the White House. He turned to them for advice more and more. And as American history is written I think people will discover that it was Truman, not Eisenhower, that let the Army and the Navy and the Air Force in the back door and they gradually became a dictator, largely dictators of American foreign policy. The second tragedy was that Truman in his great vast ignorance of the world extended principles of the Marshall Plan to the feudal regimes. The Marshall Plan had worked well in Europe because there were foundations of viable democratic societies on which the plans could be built. It took very little to get Europe going again. But the rest of the world, that includes Africa, the Middle East, Asia, Latin America had never had that political development and so the pouring out of money to these feudal regimes was like throwing it out the window. There was nothing to build on, there was no democratic society, no foundations there. People were, in Persia, people were eighty to ninety percent illiterate. The whole country was owned by two hundred men and the two hundred men got a great part of the two billion dollars. And the people at the bottom were worse off at the end of it than at the beginning of it. Truman in his naivete promote Point IV. And people picked up the drums and the Voice of America dramatized it. But Point IV a feudal society is nonsense. Because all you do in Persia, for example, where the peasants pay eighty, eighty-five, ninety, ninety-five percent of the crop for rent plus interests on loans that their grandfathers had made from the grandfathers of the present owner, you increase production in those agricultural lands and all you do is to make richer the landlords who are already --