Monday, January 12, 2009

Supreme Court History Lesson

St. John's Law Review has published the transcript of a fascinating panel discussion held in 2007, commemorating the 55th anniversary of the 1951-52 term of the United States Supreme Court. The panelists were law clerks who served under the justices of that term, including (via videotape) the late Chief Justice William Rehnquist, who clerked for Justice Robert Jackson. The panel was sponsored by the Robert H. Jackson Center and the Supreme Court Historical Society.

One thing leaps out at you when one looks at the appendix to the article, which lists the justices and their clerks from that term: All the justices on the Court at that time were named by just two presidents, Franklin D. Roosevelt and Harry S Truman. By contrast, today's Court is made up of justices nominated by five different presidents (Ford, Reagan, Bush 41, Clinton, and Bush 43). Whether this difference has an effect on the intellectual diversity -- and hence strength -- of the court is something worth pondering and debating.

While the bulk of the discussion is devoted to one particular case -- Youngstown Sheet & Tube Co. v. Sawyer, known as the Steel Seizure Cases -- it also touches on a number of other issues, including Zorach v. Clausen (regarding establishment of religion); Sacher v. United States (re: criminal contempt convictions of attorneys representing officials of the Communist Party of the United States); Adler v. Board of Education (re: teacher’s refusal to sign an anti-Communist oath); and Brown v. Board of Education and the other school segregation cases that were in 1951-52 coming to the Supreme Court.

The panelists were Charles Hileman, former law clerk to Justice Harold H. Burton; Abner J. Mikva, former law clerk to Justice Sherman Minton; James C.N. Paul, former law clerk to Chief Justice Fred M. Vinson; Neal P. Rutledge, former law clerk to Justice Hugo L. Black; and Marshall L. Small, former law clerk to Justice William O. Douglas. The moderators were Professor John Q. Barrett of St. John's University Law School and Dean Ken Gormley of Duquesne Law School.

The discussion included many revealing historical tidbits, including this one from James Paul:

Chief Justice Vinson was an extraordinary friend of Harry Truman. Harry Truman admired him greatly for all his political talents — as a congressman for twenty-two years, he served in the Roosevelt administration and briefly on the Court of Appeals, came back as Treasury Secretary under Truman. The Chief really liked that position. For the record, John, I am holding my fingers together, I did find quotes — this is what Truman said of Vinson: "He is a completely devoted patriot with a sense of personal loyalty seldom found among Washington’s top men." That says a lot, I think, if one knows Washington. And then again it sort of may seem strange to us today, but the President and Chief Justice Vinson loved to play poker. McCullough says that Truman was a “loose” player who liked to be in the pot but sometimes shouldn’t have been there. Vinson, on the other hand, was an expert and that was also something that Truman admired greatly. Also, a story is reported that one evening they were sipping away on their bourbon, and this time they were playing blackjack, Truman was dealing and Vinson drew a ten, and the other card, he needed — just one card more — not too high — anything below a queen would help him win this pot, which apparently was pretty big, and Truman dealt him the queen of spades, and he was out. And the Chief exploded and said, “Why you son-of-a-bitch.” And then he said, “Excuse me, Mr. President.” I guess that shows something of the relationship.

I want to close this by saying I once sent a book that I had written to Truman — I won’t talk about the book except it was about history in the politics in the Jacksonian period; I knew Truman was a great fan of Andrew Jackson as President, in fact that he used Jackson as a model, and I thought that this book at least was relevant to his interests. And he wrote back and thanked me and all that stuff, but when he wound up he said, "I hope you have a grand tour with the Chief Justice. I don’t know a finer man." All of that, to me, just epitomized his admiration for Vinson; he liked to be a folksy politician, yet underneath he was terribly shrewd and knew what he wanted and often got people to do it.
Paul relates a similar anecdote later in the discussion. This event occurred in the aftermath of the Steel Seizure Cases:
Justice Black and the other Justices threw a small party right after the decision and invited Truman. Black felt he owed it to Truman to do this, as a gesture of respect. Truman went, but he was a little grouchy when the thing started off, but then finally he said to Black, “Hugo, I don’t like your law at all but your bourbon is mighty good.”
Both of these stories are striking because, in today's environment, such intimate relationships between Supreme Court justices and personnel of the political branches would be nearly unthinkable (Dick Cheney's hunting trips with Antonin Scalia being the exception to the rule).

Still later, Neal Rutledge recalls what was likely an assassination attempt against Justice Hugo Black:
Justice Black made, just as Justice Douglas did, very copious notes about what went on in the Conference. And we were allowed — he kept those notes over in the secretary’s office. And of course he was appointed back in ‘37, so he’d been on the Court longer than anybody else there and he had more of these notes. All of the clerks had gone in and looked at his notes, which were superb. In fact, one of the notable things about my term as law clerk to Justice Black was that once at midnight I was working there alone. I had to go into the secretary’s office to get some of these Conference notes. I decided to go in through the Judge’s chambers because he wasn’t there. I opened the door, turned on the lights and walked into the Judge’s chambers and a shot rang out. A bullet came in through the window — whizzed right by my head. This was within two weeks of Mrs. Black’s subsequent death. So of course the Supreme Court police came up and investigated and couldn’t find who fired the shot. They immediately called Justice Black at his home to warn him somebody might be out after him. And he responded by enjoining the police. And he talked to me thoroughly and very sternly — he said, “I don’t want you to say a word about this to anybody.” He didn’t want it to get out and hit the newspapers because he didn’t want his wife to read about it because she would then be even more worried and he thought it might have an adverse effect [on her health].
At another point in the conversation, which was centered on the desegregation cases, Abner Mikva remembers an encounter with Justice Felix Frankfurter:
An interesting story that at least Marshall Small and I remembered is that there was a tradition of inviting a Supreme Court Justice down to lunch with the clerks. We had our own separate dining room so that we could talk about the cases and not be overheard by lawyers who wanted to know what was going on. And we would invite one Justice down each week to talk to us about what was going on.

One week we invited Justice Frankfurter down. It was just about this time of the year, May, and one of the desegregation cases had been argued in that Term. I don’t remember what it was—I think it was a South Carolina case—and clearly no opinions were being circulated. So it was clear the Court wasn’t going to decide the case that year because if they heard it in the fall, certainly the drafts of opinions are circulating among the Justices by May. And one of the clerks had the temerity to ask Justice Frankfurter, who was our guest, “Mr. Justice why isn’t the Court going to come down with a decision in the desegregation case?” This is 1952, May of ‘52. Frankfurter looked at us as if we were all wet-behind-the-ears recent law school graduates, which we were, and he said, “Why, don’t you realize this is a social revolution we’re talking about. You really want us to come down with a case like that in an election year?”

We all gasped in horror at the idea that the Court even knew when the election was, let alone would consider when to hand down cases based on the election date. I remember one of Justice Frankfurter’s clerks, Abe Chayes, was looking for a hole in the ground that he could fall into and not be there, he was so embarrassed. Then the same clerk followed up with, “Mr. Justice, we don’t understand. What does that have to do with whether the case should be decided or not?” Frankfurter explained to us the politics of it. “Here you’ve got these two candidates running for President, Eisenhower and Adlai Stevenson. Neither one will read the opinion but they’ll come down on different sides of it. One will oppose it, one be for it. Is that the way you want this important case to be put into the public arena?”

Well, I was a Stevenson Democrat and I like to think he would have read the opinion. I think he would have come out for it. President Eisenhower made it very clear later on, privately anyway, that he was very much opposed to the decision in Brown v. Board of Education. But if he had expressed himself publicly in the campaign saying he was opposed to it, what would have happened at Little Rock, where the only way that the decision was enforced and the peace was kept was because President Eisenhower called out the troops to keep the peace in Little Rock, Arkansas? Perhaps he would have said then, if he had made it an issue in the national campaign and been elected anyway, which he would have been, what President Jackson once said — "The Supreme Court has got its decree, let them enforce it” — which would have been a disaster for the country. So over the years I began to think that Justice Frankfurter maybe had more sense than I thought he had when I was twenty-five.
I have highlighted some of the more colorful stories told by these former law clerks -- who all proceeded to have distinguished legal careers -- but the core of this article is a substantive discussion of how the Supreme Court works and of a case (Youngstown Sheet & Tube Co. v. Sawyer) that still has resonance today in terms of the limits of presidential powers.

The whole law review article is worth reading -- and, considering how rich and dense it is, it's a surprisingly quick read.

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