Five Chiefs Page 5

  In 1948, during the spring of my clerkship, President Truman hosted a reception at the White House for federal judges and their clerks. As a Republican, I was not a special admirer of Truman, but I still vividly remember the favorable impression that he made when he greeted me in the receiving line. He was a genuine, friendly guy whom I liked right away. So, although I voted for Dewey in the election that fall, I found myself pulling for Truman while listening to the returns.

  I did so despite my adverse reaction to the timing of his appointment of Rutledge’s successor a few weeks earlier. A year after my clerkship with him ended, Justice Rutledge had a stroke while driving, and he died two weeks later, on September 10, 1949, at the age of fifty-five. Because his excellence as a scholar and a judge was so well established, his premature death was an especially sad occasion for his host of friends and admirers. As I left the church following the funeral services, I was startled to find a newsboy hawking papers with headlines proclaiming that Truman had nominated Sherman Minton to fill Rutledge’s seat. Perhaps my grief at the time has colored my views, but I thought then and have often commented since that Truman’s announcement was an unnecessarily prompt and somewhat disrespectful response to a tragic event.

  I recall mentioning this to Tom Clark in the 1970s. After serving as attorney general, Clark was appointed to the Supreme Court by Truman, and he proved to be unquestionably the strongest of the four Supreme Court appointments that Truman made. As I explained, we became good friends while I served on the Seventh Circuit Court of Appeals. His response to my comment sheds some light on the process by which Truman nominated Supreme Court justices.

  Sherman Minton was a judge on the Seventh Circuit Court of Appeals; he had formerly served with Truman in the Senate. Tom told me that Minton was at home in New Albany, Indiana, when he read the newspaper’s report of Rutledge’s death. He immediately bought a railroad ticket, boarded the overnight train to Washington, and, upon his arrival, took a taxi to the White House. Without any advance notice, he arrived at the gate, identified himself, and told the guard that he wanted to see the president. He was promptly admitted and taken to the Oval Office. As Tom Clark related, Minton simply told his friend, former colleague, and the current president that he wanted the job that Rutledge’s death had made available. Truman agreed on the spot, and Minton became his third appointment to the Court soon thereafter. Perhaps I am prejudiced, but I never thought that he had a love or understanding of the law remotely comparable to Rutledge’s.

  I know nothing about the process that Truman followed when he selected Fred Vinson to succeed Harlan Stone. In light of Clark’s story, however, it is reasonable to infer that a friendship that included regular poker games and frequent telephone conversations played a role in the decision.

  In his first term as chief justice, Vinson selected Byron White as one of his law clerks. Byron was an All-American athlete in football and basketball, a Rhodes Scholar, a World War II Navy intelligence officer who had survived kamikaze attacks in the Pacific, and a top graduate of Yale’s law school. He was also the first former law clerk to become a justice. (Bill Rehnquist was the second, I was the third, and Stephen Breyer—who clerked for Justice Arthur Goldberg—was the fourth.) Byron was appointed to the Court by President Kennedy in 1962 and served for thirty-one years. It was Byron’s conduct as a clerk that gave rise to the Court’s adoption of a strict rule that has remained in place for sixty-five years. Byron regularly shot baskets in the gym on the third floor, which was immediately above the courtroom. On one occasion, he was practicing layups as his boss was presiding over an oral argument in the room below him. Whether the sound of his bouncing ball had an impact on the outcome of that case is not known, but Byron never denied responsibility for Vinson’s promulgation of an unwritten rule that is still in effect today: While the law clerks are allowed regular late-afternoon games—in which, by the way, Byron participated for years after becoming a justice—no basketball is permitted in the gym while the Court is in session.

  It is quite clear that President Truman continued to have the greatest respect for Vinson in the years after he became chief justice. For instance, in 1948, when relations with the Soviets were at a particularly low ebb, the president considered sending Vinson to Russia on a diplomatic mission. Vinson mentioned this proposed mission to Moscow to his law clerks so often that Art became excited about the possibility that Vinson might take a law clerk with him. Instead, the State Department torpedoed the idea.

  This closeness did not, however, prevent deference in Vinson’s interactions with Truman. Well aware of the men’s warm relationship, Art Seder was surprised to overhear Vinson address his close friend as Mr. President in a telephone conversation.

  That deference may have influenced Vinson’s vote in the landmark case of Youngstown Sheet & Tube Co. v. Sawyer (1952). That case arose during the Korean War, when defense contractors needed massive amounts of steel. Concerned that an impending strike would disrupt the steel supply, Truman seized control of the mills. The steel companies sued, challenging the constitutionality of the seizure, and the Court held, by a vote of six to three, that the executive power vested in the president by Article II of the Constitution did not authorize his seizure of privately owned steel mills, despite the existence of a national emergency. The fact that two Truman appointees—Justices Burton and Clark—joined the Court’s judgment exemplifies the independence of the federal judiciary. Although the three dissenters included the two other Truman appointees—the chief justice and Justice Minton—the fact that Justice Reed joined the chief’s dissent demonstrates that this position, too, was not without arguable merit. (There is a nonfrivolous rumor that the president’s decision to seize the steel mills may have been influenced by something that Vinson said while playing poker with him one evening during the emergency.) The limits on the power of the president imposed by that decision have been respected ever since.

  Arthur Seder, law clerk to Chief Justice Vinson (1948–1949 term). Used with permission of Arthur Seder.

  Art Seder regarded Vinson as a confident and competent chief. Though a decisive judge, he was by no means the intellectual leader of the Court. Three of his colleagues—Felix Frankfurter, Bill Douglas, and Wiley Rutledge—had exceptional and superior academic credentials. Frankfurter had been among the nation’s leading public intellectuals while a professor at Harvard Law School before joining the Court. Though Douglas’s academic tenure was shorter, it was also distinguished, and it included positions at Columbia and then Yale. Wiley Rutledge’s law school teaching matured in deanships, first at the Washington University School of Law and then at the University of Iowa School of Law. Three members of the Court—Hugo Black, Robert Jackson, and Stanley Reed—had extensive experience in trial and appellate litigation, which Vinson did not. Black worked as a private attorney, prosecutor, and local judge before leading investigations as a United States senator for Alabama. Prior to Jackson’s appointment to the Court, he had been both solicitor general and attorney general in FDR’s administration. And Reed had also served as solicitor general before joining the bench. To quote Art: “One would think Vinson might have been a little overwhelmed—he a country lawyer from a small town in Kentucky—sitting at the head of a table surrounded by law professors and others whose careers had been made in the practice of law. But if so, he never gave any open sign of discomfort.”

  Vinson was not a writer either and may have had a little difficulty following some of the more esoteric arguments advanced by counsel. Nonetheless, he had confidence in his ability to identify which outcome of a case would, in his judgment, best serve the public interest. In Art’s words, he “gave his law clerks very few instructions about how they should write drafts of his opinions, but he was very clear about the result he wanted.” In discussing cases with his clerks after the Saturday conferences, Vinson cogently described the positions of each justice and readily answered the clerks’ questions. Those candid and detailed postconference sessions made i
t clear to his clerks that the chief was well qualified to serve as the equal of every one of his colleagues.

  Sharing the views of other law clerks during the 1947 term (and thus not including Art Seder’s), I was not an especial admirer of the chief. My boss was frequently one of four dissenters. In Fourth Amendment cases, he and Frank Murphy shared the views of Frankfurter and Jackson, while in antitrust cases they tended to agree with Black and Douglas. I do not recall any five-to-four decisions in which Vinson and Rutledge agreed, but I do recall one case in which it was Rutledge who wrote for the majority over Vinson’s dissent. Only one other justice—Jackson—dissented from my boss’s narrowly written opinion in that case, Bob-Lo Excursion Co. v. Michigan (1948).

  Bob-Lo presented the Court with an opportunity to overrule its unfortunate precedent in Hall v. DeCuir (1878). In DeCuir, the Louisiana Supreme Court had affirmed an award of damages to a woman of color who had boarded a steamboat in New Orleans, Louisiana, to travel to Hermitage, Louisiana, and then been refused accommodation in a cabin set apart for white persons. The Supreme Court reversed on the ground that because Louisiana’s attempt to protect its citizens from racial discrimination involved an interstate carrier—the steamship continued on to Mississippi, where state law could require separate accommodation for nonwhite passengers—its actions violated the commerce clause of the federal Constitution. Today that Court decision seems patently wrong because the Louisiana court was simply enforcing a state law that was fully consistent with the objectives of the then recently enacted post–Civil War amendments as well as the common-law duties of public carriers. It is also remarkable because the Court thought that its result was compelled by the absence of congressional action—that is, it thought that the Constitution barred Louisiana’s ban on race discrimination when Congress had said no such thing.

  In Bob-Lo, the owner of a vessel that made daily round trips between Detroit and a Canadian island in the lower Detroit River argued that the enforcement of its “whites only” policy against an African American high school student enjoyed similar constitutional immunity, in this case from a Michigan antidiscrimination statute, because its vessel was engaged in foreign commerce. In an uncharacteristically short majority opinion, Justice Rutledge distinguished the DeCuir case—which is to say, explained that it was relevantly different from Bob-Lo—on the narrow ground that unlike the potential conflict between the Mississippi and Louisiana laws, in Bob-Lo, Michigan law, Canadian law, and federal law all prohibited discrimination on the basis of race and so presented no risk to carriers of conflicting legal obligations. Justice Douglas, joined by Justice Black, indicated in a concurring opinion that they would have overruled DeCuir. The chief, by contrast, joined Justice Jackson’s dissenting view that the interest in protecting foreign commerce from burdensome state laws was of primary importance. The dissenters’ reliance on DeCuir suggests that they were less concerned about discrimination against a nonwhite passenger than about the modest—indeed, trivial—potential burden on the shipowner. In the end, the Court affirmed the judgment finding the defendant guilty of violating Michigan’s Civil Rights Act and requiring the company to pay a fine of twenty-five dollars.

  Formal group photograph of the 1946 Vinson Court.

  Seated from left: Justices Felix Frankfurter, Hugo L. Black, Chief Justice Fred M. Vinson, and Justices Stanley Reed and William O. Douglas. Standing from left: Justices Wiley Rutledge, Frank Murphy, Robert H. Jackson, and Harold H. Burton. C. 1946. By Harris & Ewing, Collection of the Supreme Court of the United States.

  The cases in which Rutledge dissented that troubled me the most were Bute v. Illinois (1948), holding that Illinois did not have to appoint counsel for a defendant charged with a felony carrying a twenty-year sentence, and Ahrens v. Clark (1948), holding that enemy aliens did not have access to the writ of habeas corpus because they were being detained on Ellis Island rather than in the District of Columbia, where their custodian—the attorney general—was located. Happily, both of those cases have since been overruled. Indeed, in a recent narcotic-possession case, the Court held that even an alien’s right to counsel may be violated by a lawyer’s incorrect advice that his guilty plea would not lead to his deportation. And rejection of the narrow reading of the habeas corpus statute played a critical role in the Court’s conclusion that the writ was available to detainees in Guantānamo. Even terrorists allegedly sharing responsibility for the attack on the World Trade Center on September 11, 2001, may seek judicial review of the basis for their detention.

  Despite my misgivings about Vinson’s judgment in some of the cases that the Court decided during my one-year clerkship, he undoubtedly came out on the right side in the two most important cases of the term, both of which he authored. Those opinions came in the restrictive-covenant cases Shelley v. Kraemer (1948) and Hurd v. Hodge (1948), which provided me with an opportunity to see Thurgood Marshall—then chief counsel for the NAACP—argue before the Court (he also argued three other cases that term). Justice Rutledge and two other justices did not participate in those cases, presumably because they owned property burdened with covenants prohibiting their sale to African Americans. If there had been a three-to-three vote among the six justices who were not disqualified, they would merely have entered an order stating that the judgments had been affirmed by an equally divided Court. Fortunately, however, they unanimously held that judicial action enforcing such covenants is prohibited by the Constitution. Their exceptional importance merits brief comment.

  The first of the two restrictive-covenant cases arose in Missouri and Michigan. The decision rested on an interpretation of the equal protection clause of the Fourteenth Amendment—a provision that prohibits “any State” from denying to any person within its jurisdiction “the equal protection of the laws.” The decision prohibited a widespread and odious form of racial discrimination in every state of the union. Because the second case arose in the District of Columbia—which, of course, is not a state—the Fourteenth Amendment was inapplicable. In order to reach the same result in that case, it was necessary for the Court to find another source for the government’s duty to govern impartially that was expressly protected by the Fourteenth Amendment. Vinson found two: a federal statute applicable to Washington, D.C., that stated the same policy as the Fourteenth Amendment and a rule announced in earlier cases that federal courts should not enforce private agreements that contravened the public policy of the United States, including the requirement of equal protection expressed in the Fourteenth Amendment. Thus, simple justice rather than constitutional text dictated the result. Together, the two cases protected the right of an African American to purchase property anywhere in the United States despite the existence of a covenant prohibiting the purchase from taking place.

  Because of the importance of these holdings, the chief justice appropriately assigned himself the opinions in both cases. I have always believed that they were drafted by his clerk Frank Allen, a brilliant scholar who later became dean of the University of Michigan Law School. Frank was also a graduate of Northwestern; the quality of his work, like that of Art’s, no doubt influenced Vinson’s later decisions to have two Northwestern graduates as law clerks during succeeding terms.

  While the chief justice is an equal of the other justices when he votes on a case, he is first among them in shaping many of the internal workings of the Court. It is here that some chiefs have had their greatest influence. Indeed, the procedures that Chief Justice Fred Vinson followed are quite different from those in place today.

  While the Court has continued the Vinson-era practice of holding seven two-week oral argument sessions during each term, the number of argument days in each of those weeks has been reduced; whereas there were five a week under Vinson, there are only three a week today. Except for the few cases on what was called, in the Vinson period, the summary docket, each side was allowed a full hour for argument.

  What is now a two-hour morning session beginning at 10:00 was, when Vinson was chief, a ses
sion that began at noon and lasted until 2:00 p.m. There was then a half-hour luncheon break before the Court reconvened at 2:30, meaning that hungry justices sometimes ate a little too much and found it difficult to remain alert during the afternoon session, which lasted until 4:30. On more than one occasion, Justice Rutledge thought it necessary to give Frank Murphy, his neighbor on the bench, a jab or two to make sure that he was awake.

  The questioning of advocates at oral argument during Vinson’s tenure reflected the particular personalities of contemporary members of the Court. On occasion, Justice Rutledge returned to chambers after argument quite obviously pleased with the fact that an experienced lawyer had been unable to make an effective response to his question. I have no memory of any questioning by the chief. I do recall, however, that the justice who was by far the most active in posing questions to counsel during oral arguments was Felix Frankfurter. Sometimes I received the impression that he had not yet read the briefs and was relying on counsel to identify the exact issue in dispute. On other occasions he treated the advocate in a way that reminded me of a law professor dealing with a student who needed to be told what earlier cases had decided. I recall one colloquy with Thurgood Marshall, then an attorney appearing before the Court, in which Felix reiterated his understanding of a precedent several times and Thurgood firmly adhered to his position, respectfully stating more than once: “That is not how I read the case.” Though Thurgood was unlikely to win that point with Felix, he was a remarkably talented advocate. For example, in arguing a challenge to segregated legal education in Sipuel v. Board of Regents of the University of Oklahoma, Thurgood was so persuasive that his oral arguments ended on a Thursday and on the following Monday the Court ordered the University of Oklahoma to admit his client, Ada Sipuel, to its law school. Years later, while playing golf with an Oklahoma graduate who had been one of Ada Sipuel’s classmates, I was pleased to learn that the students had welcomed her as a friend despite the state’s attempt to enforce its exclusionary policy.