Transcript

Professor Walter F. Murphy: Mr. Justice, I have noticed in going through Justice Murphy's notes from the conferences that he has many long summaries of statements by most of the other Justices but rarely does he have more for you than a simple reverse or affirm or occasionally a direct statement, perhaps a sentence or so. Do you think these notes would, in general, though not necessarily in a particular case, characterize your participation in conference?

Justice William 0. Douglas: Well, I think perhaps generally they would. My views sometimes were stated at length. More often than not, however, they were stated in a, more of a summary way. I never developed the habit, a habit such as Frankfurter had, and to some extent Black and Stone had, of using the conference as an occasion to try to convince people to change their views or line up behind my school of thought. I think, I thought then, and still think that in most instances the people who walk into the conference room have pretty well made up their minds and I have seen very few conferences in which they have resulted in views being changed. Now, at times it is, it does happen. At times a view of one judge will be changed. That's partly because he is fluid when he walks in, on the fence, can go either way. But most of the time these men they are mature men, they have studied the cases when they came up from the sifting process and the grant of certiorari or the noting of an appeal, And then they have listened to the arguments. They are strong-minded and it seemed to me to be, not to be generally useful to get into the long argumentation that some of my Brothers engaged in. The most conspicuous examples, as I said, are Frankfurter and probably after him, Stone, and after Stone, Black. They were all strong-minded judges, with a flair for speaking. And this is no reflection on them. It's neither demerits or merits. It's just a characterization. And most of the other judges that I've served with have been more succinct and brief in their statement of their views.

Professor Walter F. Murphy: I was wondering, something you said reminded me of another thought I had when I was looking over Murphy's conference notes. I think we are all familiar with the fact that the Stone conferences got very involved, but I seemed to notice in the Vinson conferences there was less of, at least in his notes, there was less interruption. For example, Vinson would state the case. Then it seemed the conference discussion would go around the table rather then with Stone where you would have Stone, then Roberts, then Black, then Black, then Frankfurter, then Roberts, this sort of thing. It seemed more ordered. Does this concord with your memory?

Justice William 0. Douglas: Yes. Of course, Vinson followed Stone and by that time the members of the Court were pretty well exhausted as Stone was when he died, on these endless interminable conferences. And I think that part of what you mentioned was a reflection that a better regime would be less talk, shorter hours, less debate on unimportant, picayunish things. And I think that was generally the pattern that was established. And that has continued under Warren. Of course, under Hughes, you had something of the other extreme. A very quick, summary statement of a conclusion with a very pithy short paragraph of continued (?) reasons and then end to the discussion and then, a rapid rotation around the table that irritated some of the Justices, particularly Stone. But I think that the Hughes technique was probably, in the long run, was most productive because it exposed all the important issues, let everyone have a chance to speak who wanted to speak, and then, but didn't take up the time unnecessarily in endless, petty discussions of all points, little points, middle size points and big points.

Professor Walter F. Murphy: All right. I have a somewhat different question next from the various memoranda in Frank Murphy's papers. As you can see from this I spent part of the summer going through Frank Murphy's papers. I would guess that in his first few years on the Court, that is Murphy's first few years, Frankfurter was quite influential with him. Then a gradual ideological estrangement developed. Is this, do you remember things going this way? Is this --

Justice William 0. Douglas: Yes. That's fairly accurate. I think that when Frank Murphy came on he had not known Frankfurter. He respected him from a distance as a great liberal intellectual, as a great teacher, as a promoter of liberal causes such as the defense of Sacco-Vanzetti. And when he came to the Court, therefore, he eventually came under a strong influence of Frankfurter. He leaned to him. He looked up to him. He followed his votes very often in close cases when he was in doubt because thinking that Frankfurter had the superior wisdom. And then Murphy had a gradual disillusionment because he realized that Frankfurter was not the man that he thought he was, although able, although bright, and although very resourceful and although protesting that he never, he was one judge who never wrote his own predilections into the law, that Frankfurter was probably the most subjective judge that Murphy had ever known. That was part of it. He became very distrustful of Frankfurter. He talked to me many times about it, Murphy did. Another part of it was Frankfurter went to great lengths to ridicule Murphy, ridicule Murphy's scholarship, ridicule him in all of his work, making fun of things that he would write, sometimes ridicule him in conference. And these personal insults got deep under Frank Murphy's skin. He talked to me many times about them. Frank Murphy was not the Harvard-Law-Review type of scholar that Frankfurter seemed to adore but I suppose most of the Harvard-Law-Review type of scholars would make lousy judges. And Frankfurter gradually became, I think, in Frank Murphy's eyes the, a very undesirable example and he did not trust any longer a man who was full of all sorts of guile and tricks and deceitful statements in conferences, a man who would say one thing to your face and another thing behind your back. And Murphy was an easy target because by professional standards, normal professional standards, he wasn't a man to be named here, because, he had been so far out of the law, so far removed from the law, so very little practice or teaching. He had been in public life most of his career, and didn't have the same intellectual discipline that people harnessed to the plough in the law. Yet the experience of being harnessed is usually a very limiting experience. It's a, it makes one look down rather than up. And Frank Murphy, I thought, was eminently qualified, one of the best judges we've had in my twenty-four, twenty-five years, because he's, he had the temperament. And the scholarship is not unimportant. But the feeling about law, and about justice, about people, about the weight of government coming against the individual, I think those are all very important. I think that's why Frank Murphy made a great contribution.

Professor Walter F. Murphy: This also reminded me of something else. I was surprised when I went through the Frank Murphy papers to find what seemed to me in the notes to be a real personal coldness between Murphy and Black. I would have expected that since they voted together so often and joined in opinions, that the notes to each other would have been much more cordial. But there was a very chill tone to them.

Justice William 0. Douglas: I don't think that there was any chill in the relationship between Black and Murphy. I think Frank Murphy had a great respect for Hugo Black. He knew that Black never was up to these petty Frankfurter devices, that he was honest, that he was straightforward. He never made fun of Murphy. He respected his integrity as an individual and his dignity as a human being. I don't think that they were socially very close. I don't think that they were, had that common bond that builds for sociability. But they were very friendly at the professional level.

Professor Walter F. Murphy: I would have gathered too from his papers that Murphy and Rutledge were very close professionally and personally.

Justice William 0. Douglas: They were very close. Murphy and Rutledge were very close. They had offices near each other. They spent quite a lot of time together and Murphy and I were very close. I haven't seen his papers but I mean apart from conferences and the hours at the law, we were very close in the off hours.

Professor Walter F. Murphy: The next question concerns the famous doorbell ringing case of Martin v. Struthers in the 1942 term. And according to Justice Murphy's docket books and notes on the conference, Black first voted to affirm the conviction and actually circulated a majority opinion to that effect. Then, with no explanation that Murphy preserved, Black switched his vote and ended up writing an opinion for himself and the four Justices, including you. You had dissented from his previous opinion. This new opinion, of course, held the ordinance as unconstitutional. I wonder if you recall what might have happened between the circulation of these two opinions to change Justice Black's mind so completely.

Justice William 0. Douglas: Well, I think that's, Murphy's account is an accurate historical account as to what happened because the, there was a five to four decision with Jackson, Frankfurter, Reed, Black, and Roberts voting to affirm and with Rutledge, Murphy, Stone and myself voting to reverse. And as I remember, Black did circulate an opinion to affirm. There were some, lots of discussion about the case. There were some separate opinions written. As I remember, Rutledge had one and Murphy had one. And Black had circulated an opinion, as I remember, to affirm and it got returns from how many people I don't know, maybe from four, so that he had a Court opinion. And then on further reflection and with the passage of time, he changed his vote, and wrote his opinion a separate way.

Professor Walter F. Murphy: I was wondering whether your recollection then is that perhaps it was Rutledge who circulated the dissenting opinion.

Justice William 0. Douglas: I think it was Rutledge. I think Rutledge circulated a concurring opinion, eh, a dissenting opinion. And I think that, I'm a little vague, but I think that Murphy perhaps sent around some kind of a memorandum too. But this was, the matter of this was, this Martin v. Struthers was very much (inaudible) here in the building. We had luncheon talks about it and whatnot and Black, who usually stays put, pulled out from that majority and made, became the head of the new majority. That is not unusual except in this respect. In the twenty-four odd years I've been here a man who is doubtful at conference, he is the ninth man, which if he goes one way it will be reversed, and another way to affirm. He's usually assigned the opinion to write, quite wisely. So, after getting it, he may have indicated at a conference that he would vote to affirm with the reservations that he gets it and studies it and writes to reverse. But it's very exceptional to have a judge who was in doubt take the case, write it one way and then after further reflection withdraw that opinion and write it the other way.

Professor Walter F. Murphy: Yes.

Justice William 0. Douglas: But that did happen in Martin v. Struthers.

Professor Walter F. Murphy: Well, there's also a related question here. According to Justice Murphy's docket book in Adamson v. California in the 1946 term Justice Black at first passed at conference. Later, of course, he wrote one of the more famous dissents in recent Court history. Most scholars have assumed that Frankfurter's opinion in this case was written to answer Black. Yet Black's past makes it seem equally likely that his opinion was written to answer Frankfurter. I wonder if you recall which opinion was circulated first.

Justice William 0. Douglas: Well, I can't quite recall. You're quite accurate that at the conference when the case was first voted on that Black did not vote. He expressed himself as doubtful. But he was, I think at that time, worried about the Fourth Amendment as well as the Fifth Amendment. Black is, had somewhat of a restrictive view, what I would call a restrictive view on the Fourth Amendment, perhaps due to his background and experience in that field where he was in the Senate investigating lobbying and he was in the courts on the legality of his own subpoenas that his own committees had issued. All that's well-known history. But whether that changed his views, whether his views were already more on the side of the prosecutor then on the side of the accused as a result of his role as a prosecutor in Alabama, no one knows. I never talked to him about it. Perhaps he doesn't know or wouldn't know. But at this original conference on Adamson I think his thinking about the Fifth Amendment being applicable was tied up to the possibility of the Fourth. And in retrospect it's interesting to speculate because for awhile he thought that while the Fourth was applicable to the states, the exclusionary rule of the Weeks case that our Court had fashioned for federal prosecution was not applicable to the states by reason of the incorporation of the Fourth. It was the Wolf case, the University of Colorado. Frankfurter wrote an opinion, Black wrote a concurring opinion. Murphy had --

Professor Walter F. Murphy: had dissented. Yes.

Justice William 0. Douglas: He had dissented earlier I know. I wrote a dissent because the only practical sanction of any value for an unlawful search and seizure is the unavailability of the seized evidence for use in the criminal prosecution. Well, I'm not sure that I'm exactly wholly accurate on all the doubts of Black's but they were somehow tied up with the evidentiary rule that seemed to be emerging from the Adamson case and the relationship of that to the same problem under the Fourth. So he passed. And he was doubtful at the conference, and I think that his opinion finally jelled after Frankfurter had circulated. So I think that Frankfurter, Frankfurter as I remember had extensive revisions. But Black certainly was not out in front in circulating a memorandum to the conference in advance of the Court opinion because he wasn't prepared to do that at that time.

Professor Walter F. Murphy: This is what it seemed to me in going through the papers. I just was not all sure. Do you recall or do your papers show how Justice Murphy originally voted in the milkwagon drivers case of the 1940 term? I ask because Murphy's papers indicate that he was pretty much on the fence and that his law clerk suggested to him that he not write a separate opinion but he wait to see Black's and Frankfurter's and then choose between them. And since his vote would be crucial to get whomever he sided with to change his opinion to go along the lines of his projected concurring opinion.

Justice William 0. Douglas: Well, I don't think that's quite accurate. At the conference, as my notes show, Murphy didn't vote. He passed. However, my conference notes were compiled after the conference, the conference I think I missed on account of illness. But the vote at the conference was five to affirm, with Frankfurter, Roberts, Stone, McReynolds, and Hughes. And there were three to reverse, I think I had left my votes with Black, myself, Reed and Black, with Murphy passing. And then, the file shows as the opinions began to be circulated, Murphy having questions and doubts about Black's dissent. I think in one place he had, in a note to Black, said that he had a pageful of questions and so on about the dissent. I don't have too clear a recollection as to why, what was bothering him. I think it was probably the background, the horrible experience of the sit-down strike that he went through in Detroit, and the emergence of the force and violence and the fear of that getting loose in a community. That's just speculation on my part. But those were the kinds of things that were worrying him, vis-a-vis Black's draft dissent. But he wasn't the swing man --

Professor Walter F. Murphy: swing man --

Justice William 0. Douglas: no, the critical man. His vote was not material to the outcome.

Professor Walter F. Murphy: \According to justice Murphy's docket book the conference vote on Akins v. Texas in the 1944 term was five to four to reverse. The decision came down six to three to affirm with you and Justice Roberts having changed sides. Do you recall what led you, at least, to change your mind?

Justice William 0. Douglas: I'm sorry I don't at this time recall. Perhaps if I go further into my files I can get some clues to it but I have no present recollection.

Professor Walter F. Murphy: Fine. Well the next question is somewhat similar and concerns two cases, Terminiello v. Chicago in the 1948 term and Thomas v. Collins in the 1944 term in which you first voted to affirm and later changed your mind. In the first case, you ended up writing the majority opinion and the latter a concurring opinion. I wonder again if in these instances you might have any recollection of what led to your change.

Justice William 0. Douglas: The Terminiello case, Terminiello v. Chicago, at the conference it was a five to four vote. I was the, made up the fifth, composing a majority to affirm. And the opinion was assigned to me to write, perhaps because I had expressed some doubts. The reason that I voted to affirm and then changed my mind was on the, on the question of whether the question was properly, had been raised, properly presented and at the conference I didn't see how we could reach it. When I studied the case, I concluded that we could for the reasons stated in the opinion. Eh, my records do not show any change in my vote. My records show that at conference I voted to reverse along with Rutledge, Jackson, Murphy and Black. Those voting to affirm at that conference being Frankfurter, Reed, Roberts, and Stone. There were a lot of us, or a number of us had doubts, perplexities about the case, the line between making a speech and using your office as a union leader to get funds out of members, the nebulous line between solicitation and a speech. But I may have at the conference expressed some of those doubts but my records show that I didn't change. And I voted on the side of reversal right from the start.

Professor Walter F. Murphy: It certainly would be more consistent with your, this is the reason I asked the question, be more consistent with your views as you stated them before that case. And after that case you voted to reverse all the way through.