Five Chiefs Read online

  The five-days-a-week oral argument schedule under Vinson made it necessary for the Court to set Saturdays aside for the conferences at which the justices discussed and usually decided the merits of each case. Those conferences differed from those held in recent years in three significant ways—the processing of petitions for review, the determination of what opinions were ready for public announcement, and the discussion of how to decide the cases argued during the preceding week.

  The normal procedure in the Saturday conferences in 1947 included a discussion of almost every petition requesting that the Court review a lower court decision; the only exceptions were a relatively small number of cases that the chief considered too frivolous to merit discussion. He would identify those cases on a dead list circulated on Friday, but even cases that the chief had dead-listed would be discussed if any member of the Court so requested.

  During the time that Vinson was the chief, however, that strong presumption in favor of discussing almost every case ready for disposition changed. Since 1950, the reverse presumption has maintained. Under the new procedure, before each conference, the chief justice circulates a discuss list, identifying cases ready for disposition that he considers worthy of discussion. Any justice may add cases to that list, but other than those additions, the requests for review that failed to make the discuss list will be denied. This difference in procedure is adequately justified by the fact that only 1,510 cases were filed in Chief Justice Vinson’s first term in 1946 whereas 8,521 filings occurred during Chief Justice Roberts’s first term in 2005.

  In the Vinson era, when the print shop returned the first printed draft of an opinion to its author, his messenger delivered one copy of it to each of the eight other justices’ chambers. In the Rutledge chambers—and I assume in the others as well—that copy went directly to the justice, who normally responded without even consulting his law clerk unless the draft presented a question prompting further deliberation. If the responding justice agreed with the draft, he would usually write the words Please join me on the draft itself and return it to the author. The Saturday conference would be the occasion when the author could inform his colleagues about the status of his circulating opinions.

  Today, first drafts are circulated in multiple copies, enabling law clerks to provide the justice with comments before the justice joins, suggests changes, or advises the author that he or she intends to write separately. During my years on the Court, I used the traditional “please join me” formula for expressing my unqualified agreement with the author, even though my join was written in a separate letter rather than on the back of a copy of the opinion. And since copies of join letters, as well as letters asking for changes or announcing planned dissents, are now routinely circulated to all chambers, there is seldom any need for an extended discussion of the status of circulating opinions.

  The most important business at conference is the decision of the cases that have been argued and submitted since the prior conference. In the 1947 term, the chief justice introduced the discussion of each case, and the other justices then spoke in order of seniority. (Because there was no limit on the time that each might speak, I understand that Justice Frankfurter occasionally provided his colleagues with comments akin to a fifty-minute classroom lecture.) After everyone had had an opportunity to speak, the voting began. The junior justice voted first, followed by the others, in reverse order of seniority.

  Sometime between 1947 and 1975, when I joined the Court, it became regular practice for the justices to announce their votes during their initial comments. Bill Rehnquist, before he became the chief, and I sometimes stated that we thought that the practice followed during the years when we had been law clerks was preferable because, as the two most junior justices, we thought our opportunity to persuade our more senior colleagues was lessened once they had announced their votes. When he served as the chief, however, Bill’s views on this issue changed. Mine have not.

  The staff of the entire Court, as well as the staff in each justice’s chambers, is larger today than it was in 1947. Instead of one or two law clerks, each associate justice is now authorized to employ four. Notwithstanding this increase in the clerk-to-justice ratio, there is now more interaction between justices and clerks working in other chambers than there was in 1947. The justices now have a joint reception to which all clerks are invited; the clerks in each chamber customarily invite each of the other justices to lunch once a term; and there is both a Christmas party and an end-of-term party to which all justices and clerks are invited. No such routine contact between justices and clerks working in other chambers occurred in 1947. Like all of the other clerks, I did, however, have a number of spontaneous and stimulating conversations with Justice Frankfurter. (A topic to which he returned more than once with me and others was what he regarded as the Court’s mistaken conclusion that tidelands oil belonged to the federal government rather than to the coastal states.) I think all of us had some occasional contact with every other member of the Court. I especially recall one meeting with Justice Black, and another with the chief.

  Justice Black, a former United States senator who had excelled in the competitive world of electoral politics before joining the Court, played tennis regularly on a court in the backyard of his home in Alexandria. He once invited me to play singles with him. During the ride to his house, he impressed me as a gentle, soft-spoken man; on the court he turned into a fierce competitor. I easily won the first set, but he was the victor in a long, hard-fought second set. I was really disheartened and surprised that a sixty-two-year-old man was in so much better physical condition than I was.

  As chief justice, Fred Vinson was ably assisted by Edith McHugh, an especially competent secretary who might also have been characterized as somewhat officious. Art Seder told me that she kept track of the number of times that the chief disagreed with his clerks’ recommendations on whether to grant or deny petitions for certiorari, and she seemed to enjoy giving the clerks what she regarded as failing grades. My foremost memory of her concerns a morning that she called Justice Rutledge’s secretary, Edna Lindgreen. Edith advised Edna that the chief justice wanted to meet with Justice Rutledge, quite obviously expecting that Justice Rutledge would come to the chief’s chambers to do so. When Edna conveyed this apparent summons to Justice Rutledge, he told her to advise the chief’s secretary that he would be happy to welcome the chief whenever it was convenient for the chief to come to our chambers. My memory of Vinson’s arrival a few minutes later is a continuing reminder of the status of the chief justice as just one of nine equally powerful decision-makers.

  In 1947, commuting to and from work was one area in which there was not complete equality among all nine members of the Court. Each justice had a messenger responsible for delivering papers to the chambers of other justices and for serving lunch to his boss. The justices ate (and paid for) the food that was prepared in the public cafeteria, sometimes eating in the justices’ spacious dining room on the second floor and sometimes in their own chambers. The messenger was available to drive for the justice (or his wife) in the justice’s own car. Chief Justice Vinson’s car and driver were, on occasion, put at Mrs. Vinson’s service. When that happened, Vinson’s law clerk might be given a particular nonlegal assignment. As Art Seder described it, “When Mrs. Vinson had commandeered the chief’s car and it was time to go home, he frequently asked me for a ride in my car. I had a beat-up old 1938 Ford at the time, but the chief squeezed himself in and we rattled and bumped our way to the Wardman Park, where they lived. There the doorman was always ready to order me off the premises until he saw the chief justice emerging from the car, when his attitude changed markedly. I always enjoyed that experience.”

  Chief Justice Vinson also contributed to one of my earliest and more memorable professional successes in private practice. While still a law clerk in 1947, I helped Justice Rutledge draft his concurring opinion in Marino v. Ragen, a case reviewing a denial by the circuit court of Winnebago County, Illinois, of Ma
rino’s application for a writ of habeas corpus challenging the constitutionality of his conviction. Illinois law did not provide for appellate review of such orders in the state system. As a result, the only Court with jurisdiction to review the state trial judge’s denial of the writ was the Supreme Court of the United States.

  Marino had been in prison since 1925 as a result of having pleaded guilty to murder. He had been eighteen years old at the time, in the country for less than two years, and unable to speak English. No lawyer was appointed to represent him; instead, the arresting officer served as his interpreter. After the case arrived in our Court, the Illinois attorney general confessed error, acknowledging both that Marino’s twenty-two-year-old conviction was invalid and that Marino had invoked the proper state remedy. Justice Rutledge joined the judgment setting aside Marino’s conviction but wrote separately to explain why he believed that the three postconviction remedies available to Illinois prisoners—common-law writ of error, habeas corpus, and coram nobis—constituted a procedural labyrinth made up entirely of blind alleys. In his judgment, these arcane procedures were virtually useless, and the possibility that the Illinois attorney general might eventually confess error in flagrant cases was not an adequate state remedy. He noted that during the preceding three terms, about half of all the in forma pauperis petitions alleging violations of constitutional rights had been filed by Illinois prisoners.

  Just over a year later, possibly influenced by Rutledge’s opinion, the Illinois General Assembly enacted a new postconviction remedies act that simplified the procedures available to convicted prisoners. In a speech to the American Law Institute in 1949, Vinson commented favorably on the state’s elimination of its “blind alleys,” noting that many, if not most, of the cases in which the Court has spelled out the requirements of a fair trial had come up as in forma pauperis petitions.

  Despite the clarity of the text of the new Illinois statute, state judges continued to use boilerplate orders to deny prisoners any hearing in cases asserting constitutional claims. Finally, in 1951, in three cases argued by my former law professor and ongoing role model Nat Nathanson and decided in an opinion written by Chief Justice Vinson, the Court effectively directed the Illinois Supreme Court to decide whether the state statute meant what it seemed to.

  When the case was sent back to Illinois for further proceedings in state court, I was practicing law, and Nat asked me to represent two of the three petitioners, Julius Bernard Sherman and Arthur La Frana. I agreed to do so. On my first trip to the state prison in Joliet, I interviewed Sherman, who alleged that the police had forced him to sign his confession. In the text of the confession, he had written something to this effect: “I have signed this confession because I insisted on doing so.” It seemed likely that that comment had been dictated by a threatening police officer rather than composed by Sherman himself, so I expected to meet a client eager to tell his side of the story in open court. Instead, I met a man who could have been a defensive tackle for the Chicago Bears and who showed little interest in discussing his pending case. It was not that he was not happy to see me; he was. But he welcomed me as a lawyer for another reason. As he explained, he needed advice about how to patent the invention that he was perfecting. When I asked him to describe his invention, he identified it as a new method of digging tunnels. While I respected his judgment about the possible utility and demand for such a device in Joliet, I was unable to assist him.

  My visit to Joliet to interview Arthur La Frana was more productive. He had been convicted of murdering a theater cashier in 1937. His petition under the new postconviction remedies act alleged that the police had handcuffed his arms behind his back, hoisted him until his feet almost left the floor, and then beat him until he agreed to confess. Unlike Sherman, La Frana did not have a particularly striking physical appearance. He was of average size and did not look like a man who would assault a defenseless victim. He was courteous and articulate. The most memorable moment of our first meeting came when I asked him to describe the most severe pain caused by the handcuffs, expecting him first to refer to his wrists. He instead described excruciating pain in his upper arms and shoulders. I was surprised but also convinced that he was telling the truth. That conviction motivated a more thorough search for corroborating evidence than I might otherwise have undertaken. Among the evidence that we found was a county jail medical record describing the injuries to his wrists, a news photo taken of La Frana when the police announced that they had solved the case, the testimony of his former wife, who was present in the police station at the time, and the information that several days elapsed between the confession and his transfer from police custody to the county jail. Most persuasive, however, was the incredible explanation for his injuries offered by the police captain: La Frana had fallen down the stairs when allowed to use the men’s room. There was simply no possibility that the fall the captain described could have produced the injuries that the record established. There was also no explanation for the delay in transferring custody of La Frana to the county jail other than officers’ hope that the healing process would eliminate the bruises that appeared in the photograph that we made a part of the record.

  Ultimately, the Illinois Supreme Court ruled in our favor, and La Frana was released. A critical step in the process that led to the termination of his seventeen years of wrongful incarceration was the opinion that Fred Vinson announced in 1951.

  IV

  Earl Warren

  Earl Warren, Chief Justice (1953–1969)

  CHIEF JUSTICE FRED VINSON’S death in office on September 8, 1953, gave President Eisenhower his first opportunity to fill a vacancy on the Court. It took him less than three weeks to make his decision. On September 27, 1953, Attorney General Herbert Brownell flew to California to convey the president’s choice in person to the man selected: Governor Earl Warren. Warren immediately agreed to accept the appointment.

  In naming Warren, Eisenhower nominated one of the most popular politicians of the day. Warren’s career had been a series of successes: prosecuting attorney for Alameda County, attorney general of California, and then governor of that state. In 1942 he was elected governor on the Republican ticket, and in 1946 his reelection was unopposed because he received the nomination of not only his own party but the Democratic and Progressive Parties as well. In 1948 he was the vice presidential candidate on New York governor Thomas Dewey’s Republican presidential ticket, which was narrowly and surprisingly defeated by Harry Truman. Warren’s importance continued to grow after he joined the Court.

  As chief justice, Warren has been described as the “Super Chief” who drove an “engine of reform” from 1953 to 1969. But there is a question of the exact date he became the engineer. Three days after Warren accepted Eisenhower’s nomination, Eisenhower announced at a press conference that he was making a “recess appointment” of Earl Warren as chief justice of the United States. Later that day, Warren sent a telegram accepting the nomination and also made a more formal statement to the same effect. The written evidence of the appointment was dated October 2, 1953, and he took the oath of office three days later, on the first Monday in October.

  At that time, the Court heard no oral arguments during the first week of the term. Instead, it held conferences to dispose of the certiorari petitions and jurisdictional statements that had been filed during the summer recess. Because he was unfamiliar with the procedures followed during conferences among the justices, Warren asked Hugo Black, the most senior associate justice, to preside.

  During that initial period, and indeed until March of the following year, it is arguable that Earl Warren was not entitled to act as the first among equals. Article II of the Constitution provides that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” President Eisenhower and Attorney General Brownell relied on that provision as the basis for filling the vacancy caused by the death of Fre
d Vinson during a recess of the Senate. Earl Warren and his future colleagues acquiesced in that literal reading of the words “all Vacancies.”

  There is tension, however, between that reading of Article II and the provision in Article III that states that the “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” A recess appointment must expire at the end of the “next Session” of the Senate; a judge’s good behavior, one hopes, will persist somewhat longer. To prevent premature expiration of Earl Warren’s tenure as chief justice, President Eisenhower took additional action that unquestionably authorized Warren to serve as the chief as long as he behaved himself. On January 12, 1954, the president sent his nomination to the Senate. The Judiciary Committee then held three days of hearings and, by a vote of twelve to three, recommended confirmation by the full Senate. On March 1, the nomination was confirmed by a voice vote; the president signed Warren’s commission the next day, and on March 20, 1954, Warren was sworn in for the second time.

  The dissenting votes of three senators on the Judiciary Committee illustrate how a hostile Senate could have used its power to decline to confirm a nominee and thus bring Earl Warren’s tenure as chief justice to an end, notwithstanding his continuing “good Behaviour.” Moreover, reflection on the underlying reasons for providing federal judges with life tenure—to ensure their impartiality and independence—has persuaded me that the president’s power to make recess appointments does not include the power to make judicial appointments. It surely does not apply to vacancies in the legislative branch, for the Constitution commits the power to fill vacant congressional seats to state voters and officials. In my judgment, the president’s power to make recess appointments should be construed as limited to vacancies in the executive branch of the government. I therefore treat March 20, 1954, rather than the date of his recess appointment, a little more than six months earlier, as the date when Earl Warren became the chief justice. Perhaps that date is merely a matter of academic interest because Warren’s contributions to the law occurred after his legitimate tenure began, but in my judgment future recess appointments of judges should be avoided.