Transcript

Professor Walter F. Murphy: We stopped talking the last time you were discussing the day that (inaudible) Court his retirement.

Justice William 0. Douglas: Yes, we had gone to Court to bond down opinions and then to recess for the summer and as we were falling into line, Hughes raised his hand and said that there would to a conference shortly after, or immediately after we rose. Since there was no business to transact, we, all of us, felt that some unusual announcement was going to be made. So when we did recess and came back to the conference room, Hughes took his customary chair at the head of the table and said that at twelve o'clock this day I have sent my notice of retirement to the President. He spoke affectionately of his association with the Court and with the present members. He said that he was sorry to leave. He said that he didn't feel inadequate, that he still could do a day's work as far as energy was concerned. He had no problems of health, that, at that particular time, that was, that were causing him to leave. He had, in the previous year, been sick off and on, but he seemed to be in good health for a man his age. As a matter of fact, Hughes was a man who could do in four hours what it takes the average person eight hours to do. And he had a so-called photographic mind, flipping a page and reading it at the same time, taking in its content. So all of us who knew him knew that he would be able to handle the work of being the Chief Justice for some time to come, at least for another year or so, spending maybe just four or five or six hours a day in his administration of the office. But he said that he had always had one fear in his life and that was the fear as he got old, the fear that he would have a delusion of adequacy. And he said so. He said, "Maybe my feeling that I am adequate is merely a delusion. But to play safe and not become a burden," he said, "I have decided to retire." Which I have always thought was an extremely wise decision because so many men as they reach the advanced years don't have that same discernment, and lose that quality of judgment that Hughes exercised up to the end.

Professor Walter F. Murphy: Where in fact he did outlive his successor, Stone, didn't he?

Justice William 0. Douglas: Yes --

Professor Walter F. Murphy: A year or more.

Justice William 0. Douglas: Hughes continued on in Washington, D.C. in his home on R Street, the home that in more recent years has been taken over, purchased I think, by the Burmese Embassy. It was really a lonely life. He had been very, very close to his wife and they shared many of, of his activities together. He was very, very lonesome without her and particularly lonesome in that big house. He had a distinct feeling of proprieties. He, after his retirement as Chief Justice, he would not appear on a social occasion with the new Chief Justice, not that he had any resentment to Stone. He didn't. But having been the head of the Court, he, I think, didn't feel that he should now go way down to the end of the line and appear as an ex-Chief Justice. But whatever, whatever may have motivated him, perhaps it was his feeling that the new Chief Justice would be embarrassed if he did not allow Hughes to (inaudible) be ahead of him, whatever the reason, Hughes never would appear on an occasion when the Court appeared with the new Chief Justice, to avoid any embarrassment either to he, Hughes, or to the new Chief Justice.

Professor Walter F. Murphy: Well, we could --- you were talking, and this is a follow-up question on the, our first session, you mentioned the fact that Stone had hold rump conferences. Now, my memory is bad, and I don't remember whether you said he held these on Fridays just before the conferences, the regular conferences, or whether he had held these raps on Sundays.

Justice William 0. Douglas: Oh. In those days, we sat from twelve to two, and two-thirty to four-thirty. And as quickly as Court recessed at four-thirty on Friday, those who were invited, went out by car to Stone's house on Wyoming Avenue and we sat in his library. And Stone played the role of an acting Chief Justice and stated the case and they had long, long discussions, oh, sometimes two or three hours.

Professor Walter F. Murphy: Do you think that Hughes knew about this?

Justice William 0. Douglas: I don't know whether Hughes knew about it or not. I don't know whether all members of the Court were invited. The ones that appeared were Roberts, Frankfurter, and myself. There may have been some others. Black never appeared but whether Black was ever asked, I don't know.

Professor Walter F. Murphy: All right. Thank you. Perhaps we could move on to a somewhat different topic but still related to Stone, rather than Hughes. Before the South-Eastern Underwriters decision in 1944, Drew Pearson again predicted the Court's decision. Did this prediction, and "prediction" in quotes, further upset Justice Roberts?

Justice William 0. Douglas: I've been trying to refresh my recollection on those cases. There were several cases in which Justice Roberts became upset at predictions by newspapermen, or others, as to what the Court was going to decide. Like I said before, predicting the outcome of a case before the Court is one of the great indoor sports around Washington D. C. It was when I was in the Executive Branch, and we had things pretty well worked out in our own minds as to how a particular case was going to be decided. When it was going to be decided was something else. We, I never, never had heard of any leak before I had come on the Court. Whether there was a leak in the case, South-Eastern Underwriters decision, I don't know. Pearson, Drew Pearson, had announced that the Court was going to decide in favor of the government. Before then, he had made a prediction, as I recall, in the Hope Natural Gas case. That was an opinion that I wrote for the Court. And I think that came down on January 3, 1944, and I think his prediction was made the night before. I noticed in a book entitled America's Advocate, Robert H. Jackson, written by Eugene C. Gerhart, that Gerhart says on page 258 that the evidence pointed to me as the informant of Drew Pearson on the Hope Natural Gas case. The truth of the matter is that nobody knew until Monday morning, the third, whether the case was going to come down on Monday. At the Saturday conference, Rutledge was still undecided and he told me that while I could get the thing printed he'd let me know Monday morning whether he wanted to write or whether he wanted to go over another week. And I find in my files a longhand note from Wiley Rutledge dated the third, the morning of the third, that he had given the case further consideration over the weekend and it was all right for him, with him if the case came down on that noon. So nobody was in a position to tell that the case was coming down or not on the third. So that must have been just a sheer prediction because it was a prediction made I think the day before. As to the South-Eastern Underwriters decision, a case written by Justice Black, a divided Court, I think it, that came down in June 1944. That was the case, that was another case in which Justice Roberts was very upset. He was convinced that in the Hope case that either Murphy or I had told the press, or Pearson, or somebody outside the Court, what the result was going to be. And he was convinced in the South-Eastern Underwriters case that one of us had leaked. The, his feeling in the South-Eastern Underwriters case was so great, I think that was in the middle of March 1944, that we decided just to put the case, the opinion, in the icebox, although it was ready to come down. And, as a matter of fact, we didn't hand it down for several months later, I think, in June. But we held it not because there was still votes to come in but merely to, merely to, not to, merely to avoid giving credence to Pearson's prediction, whether Pearson had merely guessed, whether there was a leak, nobody knows. I can't believe that any member of the Court leaked it. Members of the Court, I, in my years, have always been very, very discreet. Whether some law clerk leaked it, I have no way of knowing. But all of us, except Frankfurter and Roberts, were convinced that if there was a leak, it was not a member of the Court, and I don't personally believe that any member of the Court did leak it. Although if there were to be a leak from the Court it would probably come from my Brother Frankfurter, who in those days, was very, very active, very, very talkative, very, very much in contact with litigants, with the press, working overtime in the, all the social circles in Washington, D. C. But I doubt very much if he was the, if he was the source, although it might possibly have come from his office.

Professor Walter F. Murphy: I, I thought I would simply mention in passing a fact that I have mentioned to you that on the eleventh of January of 1944, after the whole incident, that Pearson reported in his column that Mr. Justice Roberts was, as he said I believe, "sputtering and fuming," was the quotation that Pearson used about his prediction in the Hope Natural Gas case. So it would seem that perhaps Pearson at least had contact with someone --

Justice William 0. Douglas: Well, as to that, I don't know. It's possible that Roberts, in his own social circles, indicated his, that he was upset.

Professor Walter F. Murphy: That would be very possible.

Justice William 0. Douglas: I have I have no way of knowing.

Professor Walter F. Murphy: Well, all right, a totally different topic -- you were not on the Court at the time either justice Black or Justice Frankfurter was appointed but you were in Washington on the Securities Exchange Commission. Do you know anything of the background of their appointments?

Justice William 0. Douglas: Justice Black was at that time, namely 1937, probably the, the most liberal, I suppose many people would say radical member of the Senate. He was a great debater, a great investigator, a great campaigner. He was very, very, very vigorous. And he had made many speeches that are a matter of public record concerning the Court, the old Court, and the way it had misconstrued the Constitution, and the way it sat as a super legislature. Roosevelt had suffered his late political defeat, probably his greatest in his career, when the Court plan, the so-called "Court Packing" plan that he and Homer Cummings worked out, or actually that Homer Cummings thought up and sold to Roosevelt. And that defeat was obvious by the summer of 1937. It was obvious that he was not going to get the enlargement of the Court. And then it was that Van Devanter retired from the Court leaving a vacancy. What Roosevelt decided to do was to make an appointment to the Court that would, in the eyes of the conservative, old-line reactionary members of the Court, be the worst possible appointment that they could conceive of. So they took this fiery, so-called radical Senator, Hugo Black. It was like throwing a tiger into the arena with these old timers. Because Roosevelt felt that Black was their equal, that Black would make life miserable for them, and that Black would carry on inside the Court the great tradition of liberalism that he had built up on the outside. It was, in a way, I suppose you'd say it was a manifestation of Roosevelt's sadistic side. He did have a sadistic side to him, everybody does. At the same time, he was looking for a man who unmistakably would champion the kind of regime of political thought that Roosevelt himself believed in. And so it was that Hugo Black, added to the mixture of those two motives of Roosevelt, met the requirements and was appointed.

Professor Walter F. Murphy: I know, at least, I doubt if you would know the answer to this, but in some of the accounts of Black's appointment there is a mixed opinion depending on who writes the account as to whether or not Roosevelt know that Black had once been a member of the Klan. Some writers say that Roosevelt did not know, Roosevelt himself claimed not to know. But several writers have doubted that he did not know this. Others have accepted Roosevelt's statement and said that he had no knowledge. Do you have any opinions?

Justice William 0. Douglas: I have no information on that. I never talked to Roosevelt about it or, nor, did I ever talk to Black about it, nor to any members, member of Black's family. I just don't know. I have no information.

Professor Walter F. Murphy: How about Frankfurter's appointment? You again were in Washington at this time.

Justice William 0. Douglas: Frankfurter was Roosevelt's third appointment to the Court. The second was Stanley Reed who had been Solicitor General, who had argued so many of the so-called New Deal cases before the Court. And Frankfurter was Roosevelt's acquaintance, if not a friend. Roosevelt had known him for some time and he had a, the impression that Frankfurter was another Hugo Black, that he was a, what Roosevelt used to call the "flaming liberal'' who would carry on in the great liberal tradition. Washington, D.C. was very, very much excited at that news about the appointment. Harold Ickes, who had not as of that time been disillusioned about Frankfurter, set out the, a call for a big celebration and it was held in the Ickes, in the Department of Interior, in one of Ickes' entertainment rooms. I remember that Ben Cohen was there. Marguerite LeHand was there from the White House and Harry Hopkins. I was there. I forget how many others, three of four others. And Ickes had ordered up champagne and the bottles were opened. And the toasts were made and glasses raised. I remember Harry Hopkins saying that this was, this was the greatest thing that Roosevelt had done because with Frankfurter on the Court the Roosevelt philosophy would be a continuing influence in the life of the nation for decades after Roosevelt's death. Hopkins I don't think lived long enough to realize that the Frankfurter appointment was, while the appointment of a very highly-qualified man, was not the appointment of a type of a man that Roosevelt had in mind, and was not the type of a man that Ickes had in mind. Before Ickes died, he was completely disillusioned, that he and Frankfurter became very bitter opponents, very bitter enemies, hardly speaking to each other. But the Frankfurter reputation had, was one that had been made, I think, largely in the Sacco-Vanzetti case where he did a very stouthearted job in defending, from a public platform, and in a book, some two men who I think went to their death unjustly.

Professor Walter F. Murphy: Ickes, I believe, in his diaries said that Stone probably was the principal influence on Roosevelt in appointing Frankfurter. Does this have any, does this ring a bell with you?

Justice William 0. Douglas: I don't, I would doubt very much if Stone was much consulted by Roosevelt. I wouldn't say never consulted but Stone would not be the type of man that Roosevelt would be talking to about an appointment at that particular time. Frankfurter had many friends in the White House. He and Harry Hopkins, he and Ickes were very close and it may very well be that Harold Ickes or Harry Hopkins got Stone to telephone Roosevelt or go over and see Roosevelt or write Roosevelt a note saying Frankfurter would be a fine appointment.Professor Walter F. Murphy: I would have thought that people like Tom Corcoran and Ben Cohen who would probably have been very friendly toward Frankfurter at this time would have been much closer to #1 Roosevelt.

Justice William 0. Douglas: Yes. I think the, the driving power came from that small group of Ickes, Hopkins, Tommy Corcoran and Ben Cohen.

Professor Walter F. Murphy: Right.

Justice William 0. Douglas: Rather than from Stone. I think that they probably did put on some layers of recommendations but I don't think Stone would initiate that.

Professor Walter F. Murphy: Speaking of your pre-Court days, when you came to the FCC you worked closely with Joseph Kennedy. How were your relations with him and what sort of man was he? How did he get along with New Dealers like Tom Corcoran or Ben Cohen or Ickes?

Justice William 0. Douglas: Well, Joseph P. Kennedy at that time, 1933, 1934, was at his prime. He had made a considerable fortune. He was a man of brilliant energy and he was a Democrat. He was very much for Roosevelt. I think he was bored with business and he came on to Washington to head up the Securities and Exchange Commission, which was organized in 1934. The Securities Act of 1933 originally was administered by the Federal Trade Commission. In 1934 when the Securities and Exchange Commission was formed, the enforcement of the '33 Act was transferred to the new Commission. And some of these from the Federal Trade Commission came over to become commissioners - Robert Healy, George Mathews, and Jim Landis. I think there was one other member of the Commission in addition to Kennedy. I think it was Ross, public power man from the State of Washington. Well, anyway, oh, it might have been Pecora, Ferdinand Pecora. Anyway, Kennedy was organizing the Commission and I had done quite a lot of field work in bankruptcies and in receiverships. I had published quite a lot about bankruptcies and receiverships and protective committees. I had never known Kennedy but I got word in New Haven where I was then teaching that he wanted to see me. So I came to Washington.And he asked me to head up what we would call a bureau or a branch of the SECV dealing with protective committees, the initial job being to make an investigation and write a report and submit it to Congress pursuant to a statutory provision that had been written into the Securities Act of 1934. So, I got a leave of absence from Yale and I reported in October or September 1934, thinking that it would be a job that could be accomplished in one semester of an academic year. Before that semester had passed, I got an extension of time from Yale because I was nowhere near finished, and then planned to finish by the summer of 1935. But by the summer of 1935, but by the summer of 1935, we still were not finished making the investigation and I got another extension of time from Yale. I forget the exact time when Joe Kennedy left the SEC. He went from the Chairmanship of the SEC over to the Maritime Commission. And he was succeeded as Chairman of the FCC by Jim Landis. And I think it was in the winter of 1935 or 1936 -- Kennedy wasn't very long at the FCC -- when we got to be very close friends. We worked together. He was a two-fisted, tough, hard-driving administrator. He backed up his subordinates and I found that he was a very fine man to work with in harness, so to speak. Joe Kennedy, before he left or right after he left, got Roosevelt to name me as a commissioner to fill a vacancy and I believe that was the beginning of 1936. And the report to Congress was still not finished. So, I got another extension of time from Yale down to, that would carry me through the summer of 1936. I got still another extension of time, this time a year, I believe, from Yale. Because the, while most of the field work had been done, the writing of the report turned out to be about eight volumes, was quite a, quite a task, and the drafting of the legislation, and so on. Well, anyway, in the, in another year, in the beginning of 1937, I was visited by a committee of the Faculty of the Yale Law School and they wanted me to come back to Yale and to be Dean of the Yale Law School, an idea that had a lot of attraction to me. And I had planned to leave in the summer sometime, or late summer or early fall of 1937. In the meantime, that is between the first of 1937 and the late summer of 1937, there had developed inside the Commission a, a great controversy as to what the attitude of the Commission to the Stock Exchanges was going to be and to the other Securities Markets. There was a, one group that was anxious for very moderate action. I was in a group that thought we should make some rather radical changes, clean house, make the Stock Exchange more of a public institution than a private club, and so on. As that controversy developed in Washington, D.C. the members of the Roosevelt famil y, so to speak, I don't mean his personal family but the political family, became divided and feelings ran, ran very high. Many of them wanted me to stay on. I finally agreed that I would stay on provided that I was made Chairman. But the other group that was opposed to this reform movement vis-a-vis the Stock Exchanges and Securities Markets was headed by Jim Landis. And the last thing that Jim Landis wanted was for me to become Chairman of the FCC because then the cause that he had espoused would lose out. And so this became somewhat of a contest, whether because Jim was leaving to become Dean of the Harvard Law School. And everybody thought he would leave in the summer but he didn't leave. Everybody thought he would leave the first of September, but he didn't leave. And Harvard was about to open and he still didn't leave. And the obvious strategy was to get me to go back to Yale before he went to Harvard. It was sort of a waiting game. And finally, my time was out and I had to go back and so I got a hold of Joe Kennedy at the Maritime Commission and told him what the score was. We talked about it, and I said I'm leaving at ten o'clock in the morning. I was staying, I think, at the Cosmos Club at the time. I got up and had breakfast and had my bag packed. And I was about to leave the room when there was a telephone call from Joe Kennedy saying that he had been over talking to Roosevelt, and for me to stand by in the room because he thought that Roosevelt would be calling me in a few minutes and that I would not be leaving town. Well, in five or ten minutes Roosevelt did call and in his most gracious way told me that he was announcing that I had been chosen as the new Chairman of the FCC. So it was, those are the early associations I had with Joe Kennedy. He was often thought of as a symbol of the wolf of Wall Street and so on. But he, he knew the problem, he knew what should be done. And but for Joe Kennedy I would have caught the train to New Haven and have put the Washington, D. C. and the New Deal behind me, and probably never, nobody knows, but probably never would have returned and have led out a very peaceful life as Dean of the Law School.

Professor Walter F. Murphy: Probably sometimes you have regrets. May I ask you this, did you know how Kennedy got along with people like Corcoran or Ben Cohen?

Justice William 0. Douglas: Just fine. They were all very, very close. They were very intimate. They were a very good team.

Professor Walter F. Murphy: In your work, did you get to know Marriner Eccles very well when you were on the Commission?

Justice William 0. Douglas: Yes. I knew Marriner. He was, in those days, he was a very difficult man to talk to because he did all the talking. I remember so many times being sent over by Roosevelt on missions to get Marriner to do so and so but at the end of an hour and a half, two hours, Marriner would still be talking. He was a very fine person. He was very difficult in the administrative set-up because he wasn't a man who was subject to much control, even by Roosevelt. Jesse Jones was somewhat the same, Jesse was sort of an empire builder. He did a fine job as banker. He was honest as the day is long and very, very, very independent of Roosevelt. I remember one time Roosevelt called me in and said that he had been having trouble with Jesse and would I get Jesse over sometime so that the three of us could have a talk about this matter? So we worked it out and Jesse and I appeared. And for thirty minutes Roosevelt talked and delivered sort of a sermon and laid down a directive to Jesse Jones and turned to me and now I hope that you can see to it that this thing is done. So Jesse and I walked out of the White House and Jesse had his big, black limousine to get into and before he got in, I said, "Jesse, when are we going to have another conference about this?" He said, "We're not." I said, "Well, you heard what the President said." And Jesse took off his hat and pointing to his gray hair he said, "Young man," he said, "when your hair gets the color of mine you'll have more wisdom I hope than you have today or that you showed today." And I said, "What do you mean by that, Jesse?" And he said, "When you're around Washington awhile with Roosevelt, you realize that he is so busy doing so many things that he never can possibly catch up with the thing that he tells me to do today, so we'll just forget about it." So it was buried and Jesse was right -