Transcript

Justice William O. Douglas: He said I was to take as much time as I wanted to think it over. I said I would call him back on Monday. So I went down to Portland, Oregon, and, where I had quite a few friends and where I could make telephone conversations to the East and talk to many people on the phone, and talk to half-dozen or more friends of mine in Portland about the matter. And I called him back on Monday saying that I thanked him for the honor, and so on, but I decided to stay on the Court. The reason that I took as much time on it was because I heard from so many friends who thought I should do it, people that I respected. And I decided that Black, Murphy, Rutledge and I, on many issues, were a nucleus in the Court with the thought that it should not be broken up. The reason was rather a foolish one, in retrospect, because before the year was out I think both Murphy and Rutledge had died. And we never, never got back for a long time to anything near four for a so-called liberal group in the Court. Beyond that, was the decision to, that the judicial career was better for me, as that was where my interests lay rather than in politics. I never had been in politics as such, never run for office. And I had no particular regard for Truman. I thought he was very small potatoes although I liked him personally. He had previously, it may have been earlier that same year, or it might have been in 1947, he tried to get me to leave the Court in order to take over the Interior Department. Ickes was out. I was very close to Ickes and hated to leave the Court. I hated to leave the Court, especially for the Department of the Interior, to help Truman save face with a liberal group by taking Ickes' place. And I just hated to leave the Court. And I remember Truman had lunch, had me over for lunch at the White House and he talked very long and earnestly about the great and wonderful job that could be done in the Interior. And I told him in a half-joking and half-serious way that if he offered to make me Secretary of State I might possibly leave the Court, but not for Interior. I had no desire to leave the Court for anything. And that's the sum and substance of the episode with Truman in 1948.

Professor Walter F. Murphy: Very good. I was wandering if we could get back to a question on the, on Court practice and it concerns the value of amicus curiae briefs. It's been much-debated in academic circles in recent years and possibly within the Court itself, since the rules have been changed. And the charge has been made that these briefs are seldom read by the Justices and are rarely of any help to them. I wonder, what is your feeling about the value of these briefs and how happy are you with the way the current rules operate?

Justice William O. Douglas: I suppose the person who is most, had the most pronounced views on the amicus briefs was Bob Jackson. And he thought that they were very undesirable because they brought in a third person who sometimes raised other collateral matters that a petitioner and a respondent would have to answer with a reply brief and that they were, from the point of view of the litigants, a nuisance. From the point of view of the Court, he thought they were essentially, in most cases, publicity devices whereby certain groups in association, a lawyer for an association would be able to get some free advertising or get an additional fee or justify his existence to the association by filing these briefs. Frankfurter took that view and for some years we had a hard time getting any amicus brief file unless it was filed with the consent of the parties. In more recent years, the Court has been quite liberal about granting briefs and I think that on the whole they serve a very useful purpose. We had some extraordinarily fine briefs by certain groups in the field of civil liberties. We've had some very fine amicus briefs on economic matters pertaining to Interstate Commerce by interested companies who would be affected perhaps in another state by the ruling in a case where the state was before us. They have been, I think, very helpful and I think that even though they, the Court denies them the permission to file, that they are always read.

Professor Walter F. Murphy: Well, that would take care of some of that. Do you have to stop?

Justice William O. Douglas: No.

Professor Walter F. Murphy: Justice Jackson described Justice Rutledge as quote"a sincere professor who doesn't see what's going on at the time, except in his books.'' I wonder what sort of man and judge you found Rutledge to be.

Justice William O. Douglas: Well, I think Jackson's statement of Rutledge is rather down-grading. Of course, he was a professor, had been a professor, so had Frankfurter, so had Stone. I had taught for awhile. Roberts had taught for awhile. Rutledge was quite a different person from Jackson. Jackson was a trial lawyer, the man whose opinions, brilliantly written, were documents for, really for a jury. They were not law-review article type of opinions. I always find the, found them very interesting and refreshing, even though he was, even though Jackson was dissenting from an opinion that I had written. But I don't think he and Wiley Rutledge ever got along very well. I don't think Jackson understood Rutledge. Rutledge was a man somewhat like Burton who had, whose mill ground very, very slowly. He was very, very, very conscientious, down to the finest last detail and he would write heavily footnoted opinions that sometimes seemed to me to be useless expenditures of time and energy on a problem that didn't need that detailed treatment. But that's the personality of the man and he had to find his place in the mosaic. He had to work out all the pieces of the mosaic and then put his little piece, his case into that mosaic. So temperamentally, they, Jackson was, would be very much opposed to Rutledge. Because Jackson would say, "Well, any fool would know that this should be reversed." And he'd be less interested in the, in the reasons and in the desirability of the results. Jackson was more that. Rutledge, of course, was independent. He knew where he wanted to go but he had more difficulty. He was more conscientious, I think, than most, almost any other judge that sat on our Court, conscientious in trying to keep the whole pattern of law with him as he took one little tiny inch step forward, or to the side, or some variation. He was a very valuable man on the Court because he, he was provocative. He always came up with ideas. He was sort of an off-beat person, very unconventional, and his ideas, I think, were, generated more than Jackson's.

Professor Walter F. Murphy: In his diaries, Harold Ickes frequently mentioned your name as a friend, an election companion, and as one with whom he could discuss general problems of government. I wonder if you could say whether you were close friends, and if so, what your general estimate of Ickes was.

Justice William O. Douglas: Yes. I knew Harold Ickes very well. We were very close from the time I first came to Washington when I was with the FCC and then the relationship continued some socially, probably as much as any other person, if Roosevelt's poker games were held either, usually at Ickes' place out in Olney, Maryland, or at Morgenthau's home here in the District. So I saw Harold on those occasions. I would have lunch with Ickes probably several times a month. He was always full of ideas about what other Cabinet officers were doing that was wrong. He was, I don't think there was any conversation that I had with Ickes where he didn't express to me the desire to have the full service transferred to the Interior Department from Agriculture. He was obsessed with that idea. He was a very honest man, a hard-hitting man, a frank, refreshing type of a person who gave a nice sauce to Washington, D.C.

Professor Walter F. Murphy: He had been a Republican up until about the time Roosevelt's election, hadn't he?

Justice William O. Douglas: Yes. I hadn't known him before then.

Professor Walter F. Murphy: I just remember there was a letter in the Hughes papers in which he solicited a contribution, as I recall, from the Chief Justice in 1930, just after Hughes was appointed. And Hughes sent a very blistering no, about what a violation of propriety this was.

Justice William O. Douglas: Yes.

Professor Walter F. Murphy: And Ickes apologized, saying it was a form letter and his secretary shouldn't have sent it to Hughes. Let's see. Ickes reports in his diaries on the bottom of page 514 that in May of 1941, that you and he had discussed the lack of leadership in the American defense policies, and that he asked you to get together with Justice Black and call on the President to urge him to do something about this situation. Do you recall ever following through on this suggestion?

Justice William O. Douglas: I have no doubt that Ickes talked about it, because he talked about almost everything, except cases before the Court. He talked very freely about everything that was going on in the executive branch. I have no recollection that he asked me to get together with Black and to call on the President. And I don't believe that I ever did take the matter up with F.D.R.

Professor Walter F. Murphy: I was also wondering, here, that Ickes had mentioned in, or that Ickes mentioned in Volume III of his diaries, that in September of 1941 Roosevelt was considering you for the task of overseeing the entire defense effort. And Ickes speaks of a conversation with you in which you said that you had very briefly discussed the matter once with Roosevelt. And he said he would call you back and he never did. I wonder if you would recall any more specific details about this.

Justice William O. Douglas: Yes, I was in eastern Oregon in September of 1941. I was in the town of Pendleton. Oh, I remember it was a very, very hot night and I got a long-distance telephone call from Roosevelt saying that he was going to take me off the Court and draft me and make me the head of this agency that was overseeing the defense. I forget now the name of it. It was the office of Donald Nelson. I talked to him at some length, expressing a desire to stay on the Court and not to get off. And he said that this was no time for argument, that I was drafted and when could I be back to Washington to take over. We discussed several dates on the phone and he objected to the later dates. He wanted me back earlier. And so I came back in a week or so and he said just check in when you get here. So I came back from Oregon in September 1941, thinking that my days on the Court were over. The clouds around the horizon seemed to be rather ominous. It seemed that the United States was going to get into the war and that personal choices had no, and preferences had no part to play. I had agreed, in other words, on the phone in Pendleton, Oregon, in September 1941 to take over the job. And I was merely to report in when I got to Washington, D.C., to come down to get my instructions as to when I was to start and turn in my resignation as a Justice. So I got back and called Roosevelt's secretary, Missy LeHand, told her what the conversation was, she had known about it, of course, and to tell the boss, as we called F.D.R., that I was in town ready to report to work. And I never got a call back from Roosevelt. Next time I saw Roosevelt, which was a few weeks later, he talked about something entirely different, because in the few days after my return to Washington, D.C., Donald Nelson was appointed. What was behind that, I don't know. I know that Baruch, Bernard Baruch, whom I had known quite well, was the sponsor of Douglas for this job and I think that he was the one that had got Roosevelt to make the telephone call. After the call had been made and Harry Hopkins discovered it, I think that Harry said they had to have somebody else. Because Hopkins would not want, I don't think anyone in the job who was as close to Roosevelt as I had been because he was, Harry was a sort of very jealous of those kinds of relationships, a very fine friend of mine, a very fine individual, but very small in respects like that. So he put, I think Harry put Donald Nelson in. I think he thought that he was cutting my throat. Actually he was doing me a good favor. But Roosevelt never did discuss it after that in spite of all these detailed arrangements that had been made.

Professor Walter F. Murphy: The next question is a terrible one, I think, but perhaps is one you might be willing to try to comment on. I gather from both what you have said and from Ickes' diaries that you and Roosevelt were not only on good terms but actually very friendly. It may be asking too much to answer a general question about a man as complex as F.D.R., but would you like to simply reminisce, have some general evaluations of him?

Justice William O. Douglas: Well, I knew him quite intimately. I spent a lot of evenings. I'd get word that Ambassador so-and-so was coming in from Europe or Asia and F.D.R., wanted me to come down to the White House and have dinner with him and the Ambassador, with him and one or two other people. Or he and some big shot from overseas were having dinner and would, could I come down about half past eight or nine and join the conversation? Or would you like to come to the White House and see a movie? Roosevelt saw quite a few movies and then we would have a chance to talk, his secretary would say, about some things that were on his mind. I was very close to Roosevelt in that way in those social affairs. I was on the river, Potomac River, on his Presidential yacht, many times. He liked to go down there and have the boat lay out a course, a big circle, and run all night, eight, nine, ten hours. The roar of the engine was, put him to sleep. He found those river trips very refreshing. I used to go up to Camp David, what was at that time known as Shangri-La, spent a lot of time up there with him. He'd have speeches to write, and even when I was on the Court, I would go over and help him prepare a speech, sometimes sitting up till eleven, twelve at night. I don't know how he did it. But he'd have, he'd sit at the desk and he, perhaps Harry Hopkins and myself, perhaps Harry Hopkins, Tommy Corcoran and myself, we'd have a draft. And we'd be revising paragraphs substituting paragraphs, two or three secretaries working. That's the way a lot of his speeches would get out, used to work for him. I knew him in a very intimate way. I think I was probably one of the few people around him who talked to him about his, the things that he did wrong. And I think that, I realize that the, after seeing the Presidency, how difficult it would be for a man to get to know facts, because everybody would come in and try to tell him something that would please him. And I remember in the Stock Market decline in September 1938 when I was Chairman of the Securities and Exchange Commission. The Dow Jones average were off I think twenty points one day. We called that Black Tuesday. And Roosevelt, who called up from Warm Springs, Georgia, late one night said that he had seen what was happening and that it was the old story. And I said, "What do you mean by the old story?" Well, he said, he thought it was a conspiracy on the part of the business-financial community against his administration. I said, "Well, if there is such a conspiracy, I would be very much surprised, Mr. President." I said, "The thing that triggered this was that speech you made over the weekend, or your press release that you gave," I forget the details, "restricting public spending. This is a reaction to that. I think that they are making more out of it than, I mean the market operators are giving the thing a downward spin but I don't think there's any conspiracy.'' And we made an autopsy of the market. And I later published that in a paper, which showed that the operators had given the thing a downward spin and were accelerating the decline but the decline reflected predictions as to economic affairs. But people around F.D.R. were commonly telling him things that would be apt to please him and flatter him. I always tried to tell him, F.D.R. the truth. And sometimes the truth was very, very bitter, especially the truth about his son, James Roosevelt, who at one time was Administrative Assistant in the White House and who was operating in a very corrupt way. And I had once tendered my resignation to F.D.R. saying that I just couldn't become part of a, stay a part of an executive department where there were shakedowns being made by, through the pressure of government positions, on people being regulated by the SEC. Because there was a drive by Jimmy and some of his friends to collect from the holding company presidents, $100,000 each, to, smooth the way with me. And we had a knockdown, drag out fight in my office. And I went over to F.D.R. and tendered my resignation, told him what was happening. And I remember he put his head on his hands on his desk, first time I ever saw him cry. He was very, very much upset. And told me that, to hold the fort, that I was right, there was nothing like this going to happen. What happened behind the scenes between him and Jimmy, I don't know. Well, there are a lot of things of that nature, but we were very close and very intimate. But as I said, he never, never asked me to leave the Court, except once, that's for the agency that Donald Nelson (inaudible). Well, he never talked to me about politics. I never talked to him about going into public life, into politics. Many people in 1944, Jimmy Byrnes was one, who, going in and saying to Roosevelt, why don't you have me as your running mate. Because everybody knew that he was dissatisfied with Henry Wallace and wanted to get somebody else. And F.D.R.'s reaction was instantaneous with a big smile, saying "Think how wonderful it would be for you and me, Jimmy, to run together. I can't think of anything nicer." Well, he said that, F.D.R. said that to about seventeen different people, and most of them believed it to be true. But that was just his way of getting out of any real commitment. But he never, we never talked about things like that. I never talked to him about why don't you let me run with you. I never dreamed of doing that because I had no idea of getting into poli-- tics and, as I say, he never mentioned it to me.He called me over just once on a real, real serious matter and that was in late September, or early October 1940. The Republican National Committee had picked up copies of letters that Henry Wallace, then Vice-President, had been writing to, no, he wasn't then Vice-President, he was, had been nominated. Henry Wallace had been writing to a spiritualist. He had a very elaborate code. I remember that the code for Roosevelt was "the Flaming One". And these were rather interesting letters. I don't think they have ever been published. But F.D.R. was, he was shocked, horrified. Here they were, the Republican National Committee had them, and it was his running mate who was setting the price of corn by having a seance in Georgetown, in a dimly lighted room, with, and asking this figure, this figure that appeared in mist-like form above a piano what to do. And these were fantastic letters. Wallace was practicing just as a matter intellectual curiosity. I don't know. I never talked to him about it. But there the Republican high command had the letters and the question Roosevelt asked me was, "How do I get rid of a running mate?" And I told him I couldn't tell him offhand. I'd have to come back the next day. So I did come back the next day. And the only way of the, getting rid of the, of the running mate would be a more serious political risk than just holding your breath and hoping these letters wouldn't reach the public. They never were, reached the public because about that time some people in the Democratic National Committee got some fine recordings of Willkie's conversations with some of his girlfriends up in New York, so Willkie's recordings, his conversations with his girlfriends offset Henry Wallace's letters to the spiritualist. That is the way in which the 1940 campaign was --

Professor Walter F. Murphy: stayed clean.

Justice William O. Douglas: stayed clean. Yes.

Professor Walter F. Murphy: Mutual blackmail. Do you think we have time to go on to the next?

Justice William O. Douglas: Turn this off because I'll have to check this --

Professor Walter F. Murphy: Kramer v. U.S. in 1945 is interesting for several reasons. First of all, from the Stone papers it seems that the conference was provisionally unanimous in deciding to reverse the treason conviction. Then doubts arose and when the decision finally came down it was five-four, with you, the Chief Justice, Black, and Reed dissenting. May I ask what, who brought about the change in the minority's attitude?

Justice William O. Douglas: Well, originally, in March, I think it was March, March 1944, I believe, the judgment was to reverse on some points of evidence and not reaching the constitutional questions as the treason clause. And then various people had had doubts. The Kramer case was argued, the vote was taken. I think it was unanimous to reverse and the majority for reversal, I think at that time, agreed on errors, that there were errors in evidence. The, there's an opinion for the reversal written by Jackson that was circulated in which he stated, it was circulated April 24, 1944, in which he turns on the questions of evidence and the prejudice in the error and then he says, in the next to the last paragraph, that he reviews the constitutional questions, whether or not an overt act had to have in it some treasonable content or whether it would just be a physical act alone which in a setting could be a signal or whatnot. And he says as to that, the Court is divided on the issue and the issue is one not free from doubt. And he says its long been the practice of the Court not to decide constitutional issues unless until it was necessary this (inaudible) case of Congress. This leaves time to experience the reflection, shed such light as may be possible before a decision is reached. And the majority of this Court thinks that, in view of our agreement, that this conviction cannot stand in either event, is not necessary or appropriate, now, to decide this constitutional question. Some of us think otherwise but defer to the majority and leave consideration of the question to another time. As a result of that and further conference discussion they decided, we decided to put the case down to be argued. And so Jackson prepared a memorandum to the conference in a proposed order for the reargument. And the reargument was only on the constitutional question and not on the evidence points. And I think the further that the Court got into the question of evidence, the less substantial evidential questions became more important as soon as the Court decided the constitutional question. So on the constitutional, when it was reargued the constitutional question was voted upon. It was a five to four vote and that's the way it stayed, the four voting to affirm being Stone, Black, Reed and myself. And I wrote the dissent and Jackson, I think, wrote the majority opinion.

Professor Walter F. Murphy: Yes. I was wondering, in this regard, that in most cases you take a very narrow view of criminal statutes in accordance with the old common law rule. But here your dissent took a less narrow view than the majority. One student has explained your opinion in the Kramer case in terms of a gradual development of your own judicial philosophy. That is, in your pre-Court days, you were mainly concerned with leading economic problem and your concern for civil rights and criminal justice cases grew with your judicial experience. Do you agree with this analysis or do you simply believe now that Kramer, as you stated then, and stated a few years later, that Kramer misread the treason clause?

Justice William O. Douglas: Well, I would have thought that it did. It seemed to me that the, my reading of history, which is essentially British history, was that the purpose of the overt act was to take the thing out of the drama of imagining the death of the King and just conceiving of something and putting it into, into operation in some way. And that an act innocent on the face might be a part of the, of the whole project. And that these acts, although innocent on the face, were an integral part of triggering a, that this whole scheme, which seemed to me to end up to treason. The Court didn't take that view. I think I would still vote the same way if the case were here before, if the case were here again.

Professor Walter F. Murphy: It's always seemed interesting to me that you and Justice Black voted to uphold the conviction, with Frankfurter and Jackson voting on the other side. Whereas, at least in most matters of criminal justice, there was a switch, that you and Black took the stricter view. Jackson and often, not always, Frankfurter, were on the other side.

Justice William O. Douglas: Well, it's a, it was a case as to how you read, how you read history. Well, that was the way that I read it and three of the members of the Court.