Transcript

Justice William 0. Douglas: Hughes had had an experience with Van Devanter aimed primarily at the increase in production in agricultural countries which would make sense in a nation of small landowners who were not wise to modern science, did not know how to bring to bear problems of chemistry and so on to a particular crop. But in a feudal society like Persia, if you increase production one hundred percent, very little of that would go to the tenant. Most of it would go to the landlords. And I tried in conversations with Truman to get him interested in tying in his foreign aid program to reforms in the Middle East, saying okay, I'll grant you $250 million dollars or loan you $500 million dollars or whatnot, if you do, if you have a land reform program, or do this, that or the other thing. But he had really no independent judgment I guess on these matters. He was under pretty much the domination of Acheson. And Acheson was a feudal landlord himself in his own psychology and his attitude toward the world. And so it was that a much publicized Point IV foreign program was pretty much a fraud and a delusion, pretty much a political gadget at home that didn't amount to hardly anything abroad.

Professor Walter F. Murphy: This is a minor, a very minor point. I don't know whether you had any independent information on it or not or any recollection. We once talked at some length about the appointment of Chief Justice Vinson but I neglected then to ask you whether you knew anything about the Truman story that Charles Evans Hughes had recommended Vinson for the Chief Justiceship, that Hughes was still alive when Truman first mentioned this and he denied this story. I wonder if you knew anything. You had known Hughes, whether you knew what sort of advice he had given Truman, or whether he had given any.

Justice William 0. Douglas: I would doubt very much if Hughes gave Truman any advice. Certainly Hughes would never volunteer, I say that really, just really on the basis of my appraisal of Hughes as a very independent, superior person who would never dream of going around giving advice to a President as to what he should do. If asked, he would. If asked, Vinson would be the last person on any list that Hughes would prepare. Because Hughes was a highly trained, highly sophisticated, highly intelligent and basically a very liberal judge. And he would see in Vinson none of the qualities that he would admire in a justice. I think. I never talked to Hughes about Vinson. Vinson was a very close friend of mine but he didn't have any of the elements of greatness that Hughes and some of the few other Chief Justices have had. And, of course, that ties in with what I said earlier about Truman. I said two unforgivable things that he did. Actually there were three. His appointments to the Court were as mediocre as Truman himself. And the Court went way, way down hill. But for those appointments of Truman, if there had been other appointments of quality, I think that we might well be ten years ahead on say, the racial problem. But nothing under Vinson would ever break through under his regime. Nothing would ever break through. And we would rock along under Plessy v. Ferguson, if Vinson were alive, probably today with a Truman dominated Court.

Professor Walter F. Murphy: I wonder if you would describe the conference discussion of two very recent cases just this term. The first is N.A.A.C.P. v. Button which you decided in January of 1963, and the second is Gideon v. Wainwright, which was decided shortly thereafter this year.

Justice William 0. Douglas: There isn't very much to say about Gideon v. Corcoran [Wainwright], No. 155, decided earlier in 1963 this year. The vote to reverse because the petitioner did not have a counselor at his state criminal trial was unanimous. The old case of Betts v. Brady that was overruled was, I think, a six to three decision. I think the opinion in that had been written by Roberts. And the Court had vastly changed from that Court of nine that sat on Betts v. Brady. I think there are only two left, that's Black and myself. And Black and I had been dissenters in that case, Black having written a dissenting opinion in which I joined, as I recall. So we had seven new judges looking at the problem. And Frankfurter was out. He would, I think, have voted to affirm and stand by Betts v. Brady because he was very passionate about Betts v. Brady and the various problems it presented whenever a case came up before. However, he did not sit in the Gideon case. He had retired. His predecessor, eh, his successor, Arthur Goldberg, was there. Byron White was there, Potter Stewart, Brennan, John Harlan, Tom Clark and Earl Warren. I think that the reason that people like Tom Clark and John Harlan and Potter Stewart voted to reverse is probably the vast experience the federal judiciary had in processing habeas corpus petitions and petitions under 2255 in the federal system, the part of prisoners who claim that they have been denied their constitutional rights because they did not have a counsel at the trial, or who had been denied constitutional rights which would not have been denied in all probability if an intelligent counsel had been present at the trial. In other words, Betts v. Brady, plus the very liberal use of habeas corpus as a result of the Court's decision in Johnson v. Zerbst produced hundreds and hundreds of cases all over the country in the federal courts each year that were the product, in part at least, of the absence of counsel in state cases. And I think it was that the realization that Betts v. Brady was depositing all that debris in the federal courts that probably persuaded men like Harlan and Clark. That's mere conjecture on my part but not completely because those were the kinds of things that came into many of the preliminary conversations about the problems in Betts v. Brady and the Gideon case.

Professor Walter F. Murphy: Do you recall if the announcement of any decisions during the 1956 term was postponed until after Justice Brennan's confirmation by the Senate? I was thinking particularly of perhaps the DuPont case, and the Jencks case.

Justice William 0. Douglas: I don't believe so. Those cases were before the Court for some months. But my recollection is that they were merely being slowly processed. There were divided votes in a divided Court in each case and I think that June 3 was the end of the period of gestation.

Professor Walter F. Murphy: It must have been rather embarrassing for Brennan to be sitting here on controversial cases while the Senate was considering his nomination.

Justice William 0. Douglas: Well, I never talked to him about it. The, that, of course, that was not an experience peculiar to him. Others went through the same thing, the Chief Justice did. And I'm sure there are earlier examples. That is the reason why I have always looked somewhat askance at these recess appointments because it's conceivable that in cases with, embarrassing cases might arise requiring a decision that might implicate a man in such a way so that, a good man, so that he would, could never be confirmed. Because some decisions do have a very high emotional content as far as popular opinion goes. But I don't think that was present in the Brennan situation at least I'm not aware of it.

Professor Walter F. Murphy: When you were in the Executive Department you must have worked at some time with Henry Morgenthau. I wonder what sort of person you remember him as.

Justice William 0. Douglas: Well, he and I were very close personal friends. He was a man that had known F.D.R., a long time. He was rather a subservient fellow when he was around F.D.R. He was rather, his attitude was more that of the servant, the slave, the messenger boy rather than an independent Secretary of the Treasury. I thought he was a very able man. Roosevelt had a nickname for him, called him "Henny-Penny," always teased him about being a tightwad, which I guess he was. Morgenthau had one very disconcerting practice. Every time I picked up the telephone there would be a tape recorder start taking down all the telephone conversations and every conference there would be a tape recorder taking down everything that everybody in the room was saying, which led some of us to put in a lot of irrelevant, semi-salacious, humorous elements to try to perk up the history that was being made, make it more interesting than these dull, long dull discussions. I wasn't very active in them except as a member of the FCC in some financial matters I would be there for many long hours. He was a very meticulous person, sort of professorial type. He was not really a man of the world. He made a lousy speech. He was pretty much an errand boy of F.D.R. but a man of great integrity and very able.

Professor Walter F. Murphy: As I recall last year you mentioned in passing that you had such doubts about the Court's decision in the Korematsu case in 1944 that you actually drafted a dissenting opinion. I was wondering, I should have asked you at the time, but I wonder if you remember now why you decided to go along with the majority in that case and not to publish your dissent.

Justice William 0. Douglas: The dissent was not a, as I remember, was not a full-fledged dissent. It was a dissent to, a partial dissent, as I recall. It was a dissent to the evacuation program through the relocation centers. It seemed to me that to evacuate in order to better handle a Japanese invasion that people thought might momentarily happen whereby the Japanese would be doing on the West coast what the Vietnamese up from the North were doing in South Vietnam, mixing with the people, being indistinguishable using, wearing civilian clothes, would make the operation, the military operation very complicated and difficult. And, therefore, to tell all Japanese to leave and that they had an hour or a day or a week, it seemed to me that those problems would raise military situations that would be difficult, embarrassing. And that the military in anticipation of a Japanese invasion could, therefore, with some semblance of reason, rationality, require all Japanese to leave. To pick them up, however, and deposit them in relocation centers in the interior was very, very difficult for me to swallow. And so that's why I wrote that partial dissent. And why I didn't file it, I don't know. I regret that I didn't. It may have been because of the conjunction of the opinion in the Endo case and the Korematsu, namely, that it had become by that time more of an academic question than anything else.

Professor Walter F. Murphy: Yes.

Justice William 0. Douglas: But it was clear by the time of Endo that the Army was committing, or the Department of the Interior and the Army were committing terrible outrages in the treatment of these people once they were evacuated. And so I've always regretted I never filed it.

Professor Walter F. Murphy: Well, if we can pick up the Button case now that we had passed over a few minutes earlier.

Justice William 0. Douglas: Let's see, that case was under the name N.A.A.C.P. v. Harrison, Number 44 in the 1961 term. And it was argued and we had a conference on it in November, 1961. And the vote at that time was five to four to affirm, those voting to affirm being Stewart and Whittaker, Harlan, Clark and Frankfurter. Then in April 1962 the case was restored to the calendar for reargument and it seemed to, it seems to me that the reason for that was the likelihood of Frankfurter not returning. He had been stricken, and was ill, how ill we didn't know. But it was a close case. So rather than hand down an opinion in which he could not participate because he wasn't even receiving messages, letters, or newspapers, anything, we put it down for reargument. So at the time it was reargued in the beginning of the 1962 term, we had, we had a new situation. I may be wrong on my dates. I may be wrong on the reason I give for the reargument. I see that the notes show that it was restored to the calendar for reargument on April 2nd and I'm not sure that Frankfurter was gone by then, I mean that he had been stricken. I do recall, however, that Whittaker had had a nervous breakdown and he was at Walter Reed Hospital. And I had been up to see him and the Chief had been up to see him. And with him out, or with him probably unable to participate in any more cases that term, this would have, irrespective of Frankfurter, would have made it necessary to put it down for reargument. So it may have been just Whittaker or it may have been Whittaker and Frankfurter. But it was one of those two reasons why it was put down for reargument. And then it was reargued and by, by that time we had, I guess, two new judges. And what was a five to four decision to affirm became a seven to two decision to reverse. The only two voting to affirm in October 1962 were Harlan and Clark.

Professor Walter F. Murphy: Stewart must have later switched, didn't he? I think it was six to three.

Justice William 0. Douglas: At the October 12th conference in 1962, Potter Stewart was not sure but he was inclined to reverse on the narrow ground that there was a discrimination denying equal protection, a manner in which Virginia treated (?) constitutional rights and rights of property. Pecuniary interests is the statute in Virginia (inaudible).

Professor Walter F. Murphy: Yes. This was the kind of grounds that you used in your concurring opinion.

Justice William 0. Douglas: Yes. But the next day or so he came into another conference and said that he was now doubtful as to the position he took in the case and while he had voted to reverse, it was now to reverse with a big question mark, which later I think became a vote to affirm. I think that explains it.