Transcript

Professor Walter F. Murphy: Let's see where were we? Oh, I was reading this question discussing the fact that in your first year at Court, you and Mr. Justice Black enjoined in asserting the Court had only a minor role to play in protecting interstate commerce. In your 1955 Indian lectures, however, you take a broader view of the Court's function in this field. Does this 1955 statement more closely reflect your current thinking?

Justice William 0. Douglas: My thinking underwent, on that subject, a rather radical revision since I was on the Court. When I first came on the Court I was inclined to lump together all decisions that struck down state laws that dealt with social and economic matters whether the reason of conflict was with the Commerce Clause conflict with the Federal law, or conflict with what the judges might think was due process of law, an used in the Fourteenth Amendment. But as the stream of cases continued, a reorientation in my mind took place. It's a rather common experience for judges to change as a result of exposure to new or different problems or to increased dosages of old problems. I think that Black has more or less stuck with his earlier view expressed in those cases that you mentioned, I've got pretty much away from them and have, I concluded sometime backs, that the Commerce Clause both in its affirmative and its negative aspects was probably a very useful, important, outstanding document in developing areas of free trade in America. And it gave us what's now known as the Common Market without state tariffs and barriers and that the work of the Court over the years, in policing that domain had been very important. So I'm, I moved to the opposite side of the circle in my thinking and that's where I ultimately arrived. And I think that's probably my resting point. As I say, I don't think Black has changed, at least changed so much as I have. But that is the one element in the constitutional law that has brought about the greatest change in me since I've been on the Court.

Professor Walter F. Murphy: Well, to a somewhat different matter, Justice Byrnes served for such a short time on the Court that it is impossible for students to arrive at an accurate estimate of his work. What was your impression of him as a colleague? Do you think that if he had stayed on the Bench he might have developed into a great judge?

Justice William 0. Douglas: Jimmy Byrnes was, is an old, old friend. I knew him when I was in the Executive Branch and he was in the Senate, He was very unhappy when he was on the Court; he was very, very happy when he was in the halls of Congress. He was named by Roosevelt, I think, in June 1941, shortly before Roosevelt named Stone as Chief Justice, and Jackson. The three of them came on about the same time. Jimmy Byrnes is a man that was at his best in a cloakroom where he was getting somebody by the lapel and, with a smile or a joke, softening him up, or getting him to qualify his position, and so on. He was a mediator in the political sense and walked a very tight rope very, very skillfully. When he got to the Court, he was sitting there in his office with all these problems in front of him and books staring at him from the bookshelves. And there was nobody coming in to talk with him. He was very restless, very, very unhappy. He didn't like the isolation of the Court. And I don't think he ever would have enjoyed it because he was, had been for too many years outside the realm of scholarship, outside the realm of even legislative drafting. Jimmy Byrnes was a man for the hustings and I don't think that he would have settled down any, no matter how long he stayed here. And I think he was very happy when Roosevelt gave him a chance to get off the Bench and head up one of the war agencies.

Professor Walter F. Murphy: I was wondering whether there was anything in your relationship that might have led you to believe that after school-segregation cases he would become such a bitter critic of the Court.

Justice William 0. Douglas: I think that if Jimmy Byrnes had been on the Court when Brown v. Board of Education had been decided, he would have been a very loud dissenter. Jimmy Byrnes at the time he was on the Court, at the time he was in Washington, D.C., felt very, very sensitive about the Negro problem. And we had a lot of Negro cases during that time and he would always appoint, approach them very gingerly. He was, Jimmy Byrnes was not a libertarian. I imagine that if he stayed on the Court he, inside the Court, would have been as bitter a critic of the Court as he has been on the outside, on the question of the Negro, on the question of the racial problem, not on the other issues. I think he probably would have settled down to some kind of reconciliation of his views with those of the majority in other areas but the racial thing was too deep-seated. I don't think that would ever have been removed from his mind as a judge.

Professor Walter F. Murphy: Well, after Roosevelt, after Byrnes resigned, Roosevelt consulted Chief Justice Stone about a successor. Stone strongly recommended Learned Hand and apparently several other people. Well, the Stone papers are not quite clear on who these were except that Stone twice denied having recommended Rutledge. Do you know anything of the background of Rutledge's election, whether any Associate justices were consulted, whether any of them were actively interested in having him on or off the Court?

Justice William 0. Douglas: Well, I know of something about the Rutledge appointment. The first time that I met Wiley Rutledge was when I walked into the anteroom of the Subcommittee of the Senate Judiciary Committee to consider my nomination to this Court. Because at the time that Roosevelt sent my name up for this Court he sent Wiley Rutledge's name up for the Court of Appeals here in the District of Columbia. Wiley Rutledge at that time, at the time he was appointed to the Court of Appeals, was in Iowa. He was Dean of the Law School. Part of the time, he had been in St. Louis. In St. Louis while he was at the University, Washington University, he made many friends and there was no warmer friend that he had then than Irving Brant, who later was to become the great biographer of James Madison. And Irving Brant had great admiration for Rutledge. There were people in the Iowa delegation who were also very, very great admirers of Wiley Rutledge. Congressman Ike [Ed] Eicher was one. But I think it was Irving Brant that got Roosevelt to name Rutledge to the Court of Appeals. Irving Brant had a close relationship to Roosevelt. He didn't see him very often. Roosevelt had great confidence in him and he would slip in for five minutes and in those five minutes would get things done that others were unsuccessful in getting done. And so when the Byrnes vacancy occurred on the Court there was a great promotion going on for Learned Hand. At that time I was, I would see Roosevelt at a small group either at Henry Morgenthau's house or at the house of Harold Ickes up in Olney, Maryland, usually, at one of those two places to play poker. And we'd have dinner and then play poker. One of the rules was that nobody could discuss anything serious at those poker evening sessions. This was for Roosevelt's relaxation. And so nobody brought up anything serious, it was always a gay, lighthearted evening. One night in February 1943, we were forgathered at Morgenthau's house having dinner preparatory to poker. I was sitting on Roosevelt's left at the table and he turned to me and he said, "Would you like to know who is not going to be appointed to take Jimmy Byrnes place on the Supreme Court?" And I said with a smile, "I'm bursting with curiosity but according to the rules of these poker sessions I never would be invited back if I asked you because we're not supposed to talk business." "Well," he said, "but there's no reason why I can't bring it up. Would you like to know who is, or can you guess who is not, going to be appointed?" And I said, "No, I have no idea who is being considered." "Well," he said, ''the man who is not going to be appointed is 'Learned Hand.'" And I said, "Well, Mr. President, you are going by a very distinguished person. I've often thought that he would make a great addition to the Bench.'' He put down his fork and turned to me. His jaw was set. His Dutch was up, so to speak. Roosevelt could get very stubborn at times. He said, "Well, this time your Brother Frankfurter has overplayed his hand." And I said, "Well, in what respect?" He said, "Nineteen people have seen me or called me saying I must appoint Learned Hand." And he said, "By God, I'm not going to do it." As near as I could tell he was not using nineteen people as a figure of speech. There actually had been nineteen people who had called him. The campaign that Frankfurter had put on was so intense that Roosevelt reacted the other way. It so happened that at about five minutes to six that night, Marguerite LeHand, Roosevelt's secretary, came in and said, "Would you have just five minutes to see Irving Brant?" And he said, "Sure, send him in." And Irving Brant said, "Mr. President, I have got the man for you to fill that vacancy from Jimmy Byrnes." And Roosevelt, who had just made up his mind he was mad, who had just made up his mind that he was not going to appoint Learned Hand, said, "You are just the man I'm looking for. Whom shall I appoint?" And Irving Brant said, "Wiley Rutledge." And Roosevelt said, "That's my man." And in a few days he sent up Wiley Rutledge's name and that's the way in which the Rutledge appointment was made to this Court. I never told Learned Hand this story and I'm sorry that I didn't. Because I think he would have been very much interested, of course, and in the, in retrospect, would probably have enjoyed the story very much because he knew Frankfurter. And he, they were very close in a way, and yet he knew the weaknesses of Frankfurter. He knew that Frankfurter was a great divisive influence in any group that he joined and often talked to me about it, that no group would be a happy group that Frankfurter joined. Because his tactics would be to try to split the group, to get one against the other and somehow or other to himself come out ahead and how he had utilized all these prominent men. I don't know who all the fourteen, all the nineteen were who called Roosevelt or saw him that day. It was a part of the Frankfurter strategy. Because I don't suppose anytime since he's been on the Court did he ever spend more than about four hours a day doing Court work. Most of it, most of his time was spent in getting things done in government, getting judges appointed or other or people not appointed in various departments, in getting lawyers or whatnot salted away in government. It was sort of a passion with him and the way in which he promoted Learned Hand was Frankfurter at his best, which turned out to be Frankfurter at his worst because he missed out on getting a good man for the Court. Rutledge was, in retrospect, probably a much better choice than Hand because Rutledge brought a very fresh mind to the task and Hand was a person who was pretty largely, by that time, committed I think to the conception of the Constitution that was quite at war with the one that Rutledge brought to the Court.

Professor Walter F. Murphy: Well, to try a different topic, one that's more personal, several students of the Court pointed out that at least in your first seven years on the Bench your voting record shows a peculiarity regarding deference to administrative agencies. That is you consistently voted to sustain decisions of all the independent agencies except the Interstate Commerce Division. Would you say that this is only another example of the inability of statistical analysis to take account of important differences between cases or would you say that the reason lies in your own approach to administrative law?

Justice William 0. Douglas: I have never seen those figures and I don't know whether, I assume that they're accurate. I don't know what a twenty-year summary would show. I came to the Court out of an administrative agency, the Securities and Exchange Commission. I've seen the administrative process at the bureaucratic level and have fought the battle in Congress and in the Courts for maintenance of administrative law. At the FCC we were in some very bitter controversies. At one time, I think we had as many as two hundred cases in courts, where courts were trying to enjoin us, I mean that parties were trying to get courts to enjoin us from doing one thing or another. And I suppose that therefore I came to the Bench with a prejudice in favor of the administrative agency that a person who did not have that experience might lack. I don't know that it was what you would call a prejudice born of intellectual experience so much as practical workings of an agency. I never had, never had taught administrative law but having been identified with a very active agency that was in lots of trouble, lots of litigation, I probably carried over to the Bench a feeling for agency prestige that, I, some of my Brothers may not have had. I'm not aware of any particular experience that I had with the ICC that should have led to a different result. My first impression though of ICC work was not a very good one, from the point of view of the ICC. I felt that they were, in quality, a very inferior agency from the basis of the kind of things that they turned out. The opinions sometimes were hardly intelligible -- rambling, disjointed opinions. You could hardly tell what the, where the findings were. I had had very little relationship to the Interstate Commerce Commission. I had some at the administrative level. I felt that they had probably reached the point that all agencies eventually reach, namely, that they are very much oriented to the group that they are regulating. I think that in a natural development. That the group that is in charge of regulating a particular industry ends up eventually with the industry's point of view and not in any venal sense but becomes sort of a spokesman for that one point of view, which, in the case of the Interstate Commerce Commission or the railroad interest, they had large competitors in the buses, in the trucks, that were filling the highways, and the barges that were trying to carry wheat and other commodities up and down the rivers and across lakes. And the orientation I think of the Interstate Commerce Commission was a result of the close affiliation to the railroads end against these other groups. It, perhaps an awareness of that or feeling that, was the truth of the matter that set me off on a different course as respects the ICC. But by and large, I think that I was rather agency-minded, agency-minded in a way that perhaps a person who had not been on an agency but had just practiced before an agency might not be. Perhaps I was too agency-minded. Then, when it comes to a particular job, with a particular background, and an experience he has had in previous work, previous lines of activity, usually is reflected in what he does. That is why I have always thought that the clearance of members of this Court through the Senate was an extremely desirable thing. Because a person's background, things that he has been doing, whether he has been a special pleader for a union, or for a railroad, or for bankers, or for farmers, does play a part in the totality of his philosophies, attitudes, his reactions. He has developed certain calluses. He has some blinders to other points of view. And the screening at the Senate level, I think is an extremely, an extremely, extremely important part of the selection of judges. I think that the Senate has sometimes made mistakes. I think that Parker, whom they turned down, probably would have been a greater judge of this Court than Owen Roberts turned out to be, much as I like Roberts. I think that Parker, who was opposed by organized labor because he had follo wed the yellow dog contract case of, decided by our Court, was one of the men that had great capacity for growth and I think he probably would have developed greatly here. So I think that the rejection of Parker by the Senate was a great, was a great tragedy. But, nevertheless, the process is an important one. All power can be abused, but the airing of qualifications of judges is, for this Court and for the federal courts, is a very important stage in the selecting process.

Professor Walter F. Murphy: A little while ago we were talking about the Roberts letter, and now that you have had a chance to look at your files, would you like to say anything more?

Justice William 0. Douglas: The matter of that letter to Justice Roberts who had resigned from the Court came up during the summer recess and I was out in Oregon. And it was picked up by Stone who was Chief Justice after Roberts resigned. I don't recall any conference discussion about it. The first rose during that summer when Stone prepared a draft of the letter and sent it to Black asking black if he would sign it and pass it on. Mason's book on Stone contains the draft of the farewell letter that Stone prepared. And when Black received the letter, he suggested that, in a correspondence, as Mason points out, some revision. The account that Mason gives is not a complete account. It doesn't reflect the very deep bitterness that Roberts had towards Black, towards me, towards Murphy, and towards Rutledge. This was a bitterness also partly directed to Stone, although not principally directed to him. It was a bitterness that was inspired by Frankfurter who had convinced Roberts that one of us, probably either myself or Murphy, was leaking Court news to the press, a fact which never took place. So then, as a result of that rumor that Frankfurter spread, that necessitated a conference which I was too sick to attend on account of a flu. As a result of Frankfurter's denunciation of me or Murphy as the culprits, Roberts believed in that.sq As a result of Roberts' visit with Black in which Black said that he stood by Murphy and me and believed us and not Frankfurter, as a result of that, there was on Roberts' part a great bitterness.And, as I said earlier, he never shook hands. He wouldn't speak. A relationship that had been bubbling with friendship, happiness, good humor, became a very, very ugly relationship around the Court. Roberts became a very solitary figure and so it became difficult to sign a kind of a letter that Stone had prepared. Black suggested that the sentence which Stone wrote, "The announcement of your resignation as a Justice of this Court brings to us a profound sense of regret that our association with you in the daily work of the Court must now come to an end," Black suggested the omission of everything after "sense of regret", namely, "that our association with you in the daily work of the Court must now come to an end." Black was quite right, I think, in saying that there had been no association. Roberts had been driven so far from association with us that there was absolutely no communication. And Black also wanted taken out the sentence, "You have made fidelity to principle your guide to decision.'' The truth of the matter was that Roberts, who was a very highly principled man, a man of great character, was so bitter, a bitterness that he carried month after month, that he would just be emotionally against anything that either Black or Murphy or Rutledge or I were for. He was, he was a pitiful, pitiful character in those days and the sadness was accentuated by the fact that once we had all been so very close. But this little thing, really just a childish thing, had been raised into gargantuan proportions in his mind, and, and he just thought he was surrounded by unscrupulous people. So when Stone was proposing that we say you have made "fidelity to principle your guide to decision," it was a difficult thing to agree to. That's the other side of the chapter on the Roberts letter that Mason doesn't refer to. Black and I had some correspondence about it. And, as Black said and as I thought, at the time no member of the Court could truthfully say what the letter asserted. Black had the feeling that if the letter was signed and sent to Roberts, he might simply use it as an occasion to let go another blast at the four of us that he had come to suspect and despise. Anyway, that is the, that is the reason that Black reacted as he did, not because he was picayunish, not because he was intrinsically unfriendly. He's, he had been very, very friendly to Roberts. But this strained relationship had existed and was so pronounced and was so prolonged that Black being a very honest man intellectually just couldn't put his name to something that wasn't true. I think that rounds out the other side of the story that Mason doesn't relate.

Professor Walter F. Murphy: Yes, it certainly does. I understand that Hughes in preparing the cases for presentation to the Court had what he called his special list. Would you talk about that for a few moments, please?

Justice William 0. Douglas: Well, Hughes would send around before a conference a list of cases that he put on a special list. On the special list were cases that were, in his mind, patently frivolous cases that didn't present any substantial question, that were not even worthy of conference discussion. Anyone, theoretically, if he wanted to discuss a case on Hughes' special list could have the case removed from the special list and brought up and discussed and voted upon. But it hadn't been done, at least very often, when I came on the Court. Hughes used the special list as an efficiency device to get through by four-thirty and to speed up the work of the conference. It is a device that all other subsequent Chief justices have continued to use, some sparingly, some generously. By that, I mean putting on a lot of cases, or a few cases, as the particular Chief Justice looked at the problem. Since the days of Hughes, members of the Court had been, felt very free to take cases off the special list. Usually, they will circulate before the conference a memorandum saying that they would like to have case number so-and-so, bearing such-and-such a title, discussed at the conference and it will always be discussed. Sometimes, cases that are taken off the special list are granted. If they summon enough, four votes, they will always, of course, be granted. And many do, or at least some do. I was on the Court but a little while when some cases started to appear upon Hughes' special list. One of them was the bankruptcy case, Pepper v. Litton, L-i-t-t-o-n, and the other was Case v. Los Angeles Lumber Products Company, both in fields that I had been interested in, bankruptcy reorganization. And I circulated a memorandum asking that the case, each of those cases be taken off the special list. Hughes was a very severe presiding officer and he fairly bristled at the idea of having any case taken off the special list. He was very, very severe in his comments about how obviously these are cases that we should not concern ourselves with, we have much more important things to do, and so on. But I presented my case to the conference for taking those two cases off the special list. I don't think this was at the same conference, I think at different conferences. They were taken off the special list and enough votes were summoned to bring the cases here. And when they were argued and came to conference for decision, Hughes would assign the cases to me and they all turned out to be unanimous decisions. Whatever he may have thought that the certiorari stated, he had become convinced or had acquiesced in a decision. Whether he thought they were important or not, he was inclined usually to go along with the Court. In any event, the cases that I took off the special list that caused such a tremendous rumpus were cases in which he finally joined up in the opinions to reverse the lower courts. Chief Justice Hughes had a side to him that was not known to the public. He appeared, as I think I said before, to be a Jehovah himself, very dignified. The beard set him off in grand style. But he had a very keen sense of humor. As I said before, I came to know him very intimately due to probably our age differences, and he had in him the makings of a good end man in a minstrel show. He never got into any off-color stories. He always stopped short due to his strict Baptist upbringing, but he had a tremendous potential in humor. And he had a very, very bright twinkle in his eye that very seldom appeared during conference. It was for him a very quick, alert, hard-working process rather than a relaxed conversation. But the humor, the humor was there. The day that he announced his retirement, it was the last day that Court sat that session, that term, as we were walking into the Courtroom, he stopped the line and held up his bands and said there would be a short conference right after we recessed. There was no business in the Court to transact because we were through till fall so we knew that something was up, something very special. It turned out tha t it was because after everybody had taken his seat that he --