Transcript

Justice William 0. Douglas: When I spoke of Roosevelt's admiration I was speaking particularly about Roosevelt's reaction to his defeat of the Court-packing plan. He felt that Hughes' management, his quiet management, as Chief Justice of the tense situation that existed after Roosevelt announced his Court-packing plan, was an admirable display of political tactics and it was that incident that I think he had in mind when he said that Hughes was the best politician in town. After the Court plan was announced, the Court discontinued for a few years the practice of making an annual visit to the White House to pay their respect to the President. That was discontinued in '37 and '38. In '39 when I first, my first winter on the Court, Hughes announced the resumption of the old practice. And we went over to the White House at five o'clock and were received by Roosevelt in the Oval Room. And he sat with Hughes on the sofa and they were engaged in animated conversation for over an hour. I remember Missy LeHand, who was Roosevelt's secretary, came in and whispered to me that Roosevelt had another engagement at six-thirty that was waiting, and she wondered how one went about to get rid of a Chief Justice. And I assured her that there was no way of getting rid of Hughes, that he and Roosevelt were engaged in very animated conversation. They were making up for some of the lost time in the previous years. And I think that they actually sat there for an hour and a half. I think, that the conference broke up about, the reception broke up about six-thirty or a quarter to seven. I think, in sum, that Hughes had a great admiration for Roosevelt. McReynolds, I think I mentioned earlier, thought Roosevelt was a bad man. I think I said that McReynolds some mornings would greet me saying, "It's true, isn't it, that he's really crazy?" -- meaning Roosevelt. "Is all hope lost?" he would inquire of me. "Isn't this a terrible mess that we're in?" was another McReynolds expression. But Hughes had a sense of the force and direction of the powers at work in the country, social, and economic, ideological, that needed astute management, and I think he had a great profound respect for Roosevelt at that level.

Professor Walter F. Murphy: Well, speaking of another member of the old Court, Mr. Justice Roberts has been off the Court some sixteen years now and yet he still remains an enigma. You sat on the Bench with him for approximately six years. What was your estimate of Justice Roberts as a man and as a judge?

Justice William 0. Douglas: Roberts had been prosecutor in the Teapot Dome cases. He was, came from Philadelphia. He was a very energetic, hale fellow, well-met type of person, very friendly, very energetic, very gracious. He had a farm up near Philadelphia, milk farm. And he struck up a great liking for Hugo Black and they were very warm, close friends. Many a weekend, the Blacks go to Roberts' farm and spend a couple days. They were ideologically, from the point of view of social, political, legal philosophy, they were not very close but as human beings they were very close and had a great respect and admiration for each other. Roberts was older than I, and I didn't have the same relationship with him, although I too visited his farm, spent many hours with him socially, and had a great liking for the man. I never had a great admiration for him as a jurist. His points of reference were, seemed to me to be, fairly movable. He would be, it seemed to me, swayed by inconsequential, irrelevant factors to make a decision one way or the other that were very difficult to match up with what he had done before. All of us change in our legal philosophies and the way we look at problems. That's a part of life. What I'm talking about is something different. It was week to week, month to month, change back and forth that seemed to be a part of Roberts that I never could quite understand. Roberts was sort of a tragic figure in the life of the Court because Stone had not been Chief Justice very long before Roberts became very, very bitter. It was during the war years. I can't remember the exact date, or the exact decision that was involved. But we had approved an opinion, I think there were, there was a dissent, perhaps there were two dissents. It might have been the Korematsu case, dealing with the movement of Americans of Japanese ancestry out of the Pacific Ocean area into the interior of the United States. It may have been that case, it may have been some other case. But it was about that time that we had our conferences on Saturday. We cleared the opinion on Saturday for announcement on Monday. And Roberts called the Chief Justice, Stone, that morning and demanded that there be a conference. We went into conference before Court about eleven or eleven-thirty. And Roberts pulled out the morning newspaper which contained a story written by Drew Pearson that said that the such-and-such case was, would come down this Monday and it would be seven to two, or six to three, or five to four, or whatever the split was, and it was a very accurate prediction.

Professor Walter F. Murphy: Was this Bridges v. California?

Justice William 0. Douglas: I don't --

Professor Walter F. Murphy: Professor Mason has the case in his biography of Stone, while this is inconsequential.

Justice William 0. Douglas: It may have been. I have been trying to find the case. This is the matter that came up several, several times in my early years on the Court. When I was in the Executive Department our major indoor sport was to predict how judges on the Supreme Court were going to vote and what Monday opinions would come down. And I think it has long been an indoor sport in Washington, D. C., still goes on to this day, and some of the prophets are pretty good. Roberts maintained that some member of the Court had leaked to the press this opinion and the vote. And Frankfurter made it very plain in the conference that he had so advised Roberts. The finger of suspicion was directed by Frankfurter to two members of the Court. One was myself and the other was Murphy. I had never talked to anybody, not even a member of the family, about any case that was before the Court and I was confident that Frank Murphy had never done so. Both of us said that where the leak came from we didn't know. We thought probably it was not a leak, that it was just the old guessing game. Roberts, however, was not satisfied and he thought that the case should not come down. So the Court decided not to hand the case down that Monday. And he wanted to explore the matter further. He was very, very, very worked up. And so Stone called a conference for four-thirty when we got off the Bench. During the course of the afternoon, I developed a rather high fever from a flu that I had had that weekend. It seemed to get worse and I left the Court a little early, not staying till four-thirty, and got home and went to bed. And Frankfurter and Roberts used that as proof of the fact that I could not face up to this charge, that I was the culprit, that I had given the leak to the press. Roberts went down to see Black, to talk to Black about it, and Black said that he was positive that neither Murphy nor I had ever said anything to the press. And since we said so he had implicit confidence in us. In other words Black took the same position that I did. As a result of that episode Roberts became very, very embittered. He was constantly reminded of by Frankfurter of these untruthful, unreliable, suspicious, colleagues of his. Never once again did he invite even Black to his home. He would not even come into the robing room. It was the custom for many, many years, it still is the custom, for judges to come into the robing room a few minutes before they go on the Bench and invariably shake hands, one with the other. Roberts wanted to avoid the process of shaking hands so he would wait outside in the hall. He would have the Negro, who kept the robes, robe him out in the hall and step into line as the line came into the Court so he would not need to shake hands with anybody. He would come into conferences very late. He wouldn't, he would have no, no discourse, no conversation with anybody. It was a very, very sad thing that happened to Roberts. He was an extremely gullible man. He believed Frankfurter and he did not believe Black and the rest of us. And so, the, everybody on the Court except Frankfurter became a sort of a conspirator against him, and he withdrew more and more. I don't think he ever said anything outside about this. I always had a great affection for him in spite of his attitude toward me personally. He would always maintain that when he got to be 70 he would retire. And he became 70 and retired at the end of that term. I say he retired. He did not retire. He resigned. He resigned. He was a wealthy man, he wanted to re-enter the practice of law. He never once, never once, came back to any Court function although he was invited. He carried this bitterness with him to the grave, to the great sorrow of all of us, including myself, Black, and Murphy, and the others who had had such a close relationship to him.

Professor Walter F. Murphy: I was wondering just, we probably will want to get into this at a later time when you have had a chance to go back over your files. But I think we discussed once that when Roberts did resign, the problems that came up with the letter to Roberts as a result of the Court not writing him the usual formal letter. And I thought it was, it was interesting that at least the papers that Stone saved, letters, he has a rather thick file on this, showed it was Justice Black who was most deeply opposed to writing Roberts a letter, that he insisted that all the phrases regarding Roberts' ability be struck out.

Justice William 0. Douglas: Well, I'll, I have no recollection of it. I'll look into the files. I don't remember that particular letter but I do know that Hugo Black to this day would put down Roberts as, not the man he admired the most, by any means, but the man whose company he enjoyed the most of almost anyone that he had met.

Professor Walter F. Murphy: Well, we may move on to another point. When Chief Justice Hughes retired, the President consulted him about his successor. Hughes recommended Stone rather than Jackson who many people thought the most likely nominee. Do you know if the President discussed the appointment with any of the Associate Justices or if he was seriously considering anyone but Stone or Jackson? And do you think it was Hughes' advice which was decisive?

Justice William 0. Douglas: I don't know whether Roosevelt discussed the matter of the successor to Hughes with any members of the Court. He never discussed it with me. I, I believe that Hughes did advise the appointment of Stone. Although I'm not sure. I am satisfied that Roosevelt had promised to make Bob Jackson the Chief Justice. I gather that from conversations I had with Jackson even before he went on the Court. I was very close to Bob in those early years. And I was saying, "I hope that someday you will, before long, you will be on the Court with us." And he said he wouldn't think of coming up there unless he came up as Chief Justice. And I was told later that Roosevelt had promised him, or had created in his mind, the impression that he had received a promise that he would be the next Chief Justice. Afterwards, Roosevelt told me that he thought that he would have to or should appoint a Republican, Stone, as Chief Justice. I think that was the, one reason. I think another reason was that Roosevelt never forgot Stone's dissent in the decision involving the constitutionality of the Agricultural Adjustment Act and I think those two reasons combined to block Bob Jackson out. Stone's name went to the Senate as Chief Justice in July 1941, a few days before he sent Jackson's name up to the Court. Jackson was satisfied that he had been promised that while he couldn't be Chief Justice after Hughes, he would be Chief Justice after Stone. And that circumstance was very unfortunate. How good or great a Chief Justice Bob Jackson would have made nobody knows, but it was a force that worked in him to make him extremely disagreeable to the regime of another Chief Justice. It was true under Stone. Jackson was more and more irritated with Stone, more and more curt, more and more disrespectful, and then, of course, Roosevelt died and his promise to make Bob the next Chief Justice was not kept by Truman, who may or may not have-known about it. I don't think Truman liked Jackson anyway. And under Vinson that, the Chief Justice that Truman named, the relationship between Bob and Vinson was a very unhappy one. Anson told me one day that he thought that anyone who sat in the chair of the Chief Justice, as long as Jackson was on the Court, would get about the same kind of treatment that he, Vinson, was receiving from Jackson, which was one of curtness, disrespect, flying up to little inconsequential things, harboring apparently inside him a great resentment that the man who sat in the chair of the Chief Justice was not Bob Jackson. It did, I think, have a side effect on Bob Jackson's whole life. He became morose and bitter. He was not the happy, free-wheeling, ebullient, friendly person that we had known as Solicitor General and later as Attorney General.

Professor Walter F. Murphy: By the way, while we're still on this, when Jackson and Warren were both overlapped for a very brief time, did they not, about a term wasn't it? Jackson died the summer of '54 wasn't it?

Justice William 0. Douglas: He died after Earl Warren became Chief Justice.

Professor Walter F. Murphy: Was their relationship a pleasant one or did it follow the same pattern?

Justice William 0. Douglas: It didn't have time to develop into the same rather bitter relationship that existed between Vinson and Jackson. Whether it would have developed into a friendly relationship, nobody knows. I rather suspect that, that Bob's disappointment would carry through his life and be directed at anyone who sat in the chair of Chief Justice.

Professor Walter F. Murphy: Cantwell v. Connecticut in 1940 was an important First and Fourteenth Amendment case. One of the most interesting aspects of the decision, especially in light of the later controversies, was that it was unanimous. Was there much discussion of the case among the justices either before or after or during the conference? Or do you know if Roberts had much difficulty in getting the Justices to agree to his opinion as he had first written it?

Justice William 0. Douglas: The, there was a lot of discussion about the case. Hughes, who led off the discussion in the conference, left the matter in a very unusual way. Instead of saying, "Gentlemen, this statute is clearly, is constitutional," or "Gentlemen, this statute is clearly unconstitutional. Plainly, this is a judgment we should affirm or reverse" put a series of questions indicating the great trouble on his mind and actually didn't vote on the case, on the merits. It was Stone, largely, and Black who led the discussion. It was unanimous, interestingly enough, to reverse, even McReynolds voting in conference to reverse. And I think Hughes, after listening to the discussion, assigned it to Roberts with a view that Roberts might be the man who best represented the sense of the meeting, of the various divergent views that had been expressed, to work out an opinion for the Court, which he did, and which was extremely well done. But it was a really, not a Roberts conception so much, or a Hughes conception. It was more of a conference conception. There was a lot of exchange of views about it inside the Court and great discussions about the opinion that Roberts was writing. And by the time that Roberts had hit the main theme and provided the formula for the case, I think he had pretty much the agreement of the Court. In other words there was a lot of conferencing going on after the main conference concerning the work, the formula to be used, and the kind of problem involved, and so on.

Professor Walter F. Murphy: All right, well, in your first years on the Court, you joined Mr. Justice Black in asserting that the Court had only a minor role to play in protecting interstate commerce from state regulation. If abuses were present, it was the duty of Congress rather than the Court to correct them. In --