Five Chiefs Read online

  In 1954, I was one of the three lawyers who had recently formed the firm of Rothschild, Stevens, and Barry. During Earl Warren’s entire tenure as chief justice, I continued to practice in Chicago with Ed Rothschild and Jack Barry as my partners. I was thus primarily an observer, rather than a participant, in the work of the Court during those years.

  Like the coin flip that decided whether Art Seder or I would clerk for Wiley Rutledge, an event over which my colleagues and I had no control led to a decision—this time to form a partnership—that had an enormous impact on my career. When Ed, Jack, and I passed the Illinois bar exam and were hired as associates in the firm of Poppenhusen, Johnston, Thompson, Raymond, and Mayer, the firm had a roster of twenty-eight lawyers, including both partners and associates. It was what was then considered a large firm. My boss was Edward R. Johnston, regarded by many as the leading antitrust lawyer in the country. The partner listed immediately before Johnston on the letterhead, Conrad Poppenhusen, was the firm’s senior member, but he no longer came to work on a regular basis. The name that directly followed Johnston’s was that of Floyd Thompson, who was also called “the Chief” because he had joined the Illinois Supreme Court at the age of thirty-two and then become its chief justice. Thompson was both a tough, widely respected trial lawyer and the tight-fisted managing partner of the firm.

  Ed, Jack, and I met when the Chief decided that we would share Mr. Poppenhusen’s office and secretary. A few weeks later we traveled to Springfield, the state capital, to be admitted to the bar. Rather than rewarding us for becoming lawyers, the Chief docked our pay for being out of the office on a working day. That decision was almost certainly the proximate cause of our commitment to one another to form our own firm as soon as it became feasible to do so.

  The term diversity fairly describes the membership and clients of our partnership. Ed Rothschild had played varsity basketball at Harvard College, engaged in combat in France as an Army officer during World War II, and then performed outstandingly as a student at Harvard Law School. Jack was a first-string end on an undefeated Notre Dame football team coached by Frank Leahy, skippered a small ship that landed troops and evacuated wounded soldiers during the Normandy invasion, and graduated at the top of his Notre Dame Law School class. I played tennis on the B team at the University of Chicago, served in the Navy at Pearl Harbor during the war, and graduated from Northwestern University Law School. Ed was a Jew who lived in a North Shore suburb; Jack was a Catholic from the West Side; and I was a South Side WASP. Ed backed Adlai Stevenson as an Independent; Jack served as a Democratic precinct captain and had supported Dick Daley in his campaign to become clerk of Cook County; I was a Republican without any political experience or expertise.

  The depth of the friendship and the mutual admiration that began in Mr. Poppenhusen’s office never abated. Until it was necessary to define our respective interests in unpaid fees for past services when I left the practice to go on the bench in 1970, we never needed and never had a written partnership agreement. Having had two of the best lawyers in Chicago as partners back when I was confronting the wide variety of problems that arise on short notice in a busy private practice did far more to enhance my ability to resolve contested issues on the bench than did the excellent education that I received in law school.

  Edward I. Rothschild, John Paul Stevens, and Norman J. Barry, partners in the Chicago law firm of Rothschild, Stevens, and Barry.

  The word diversity also describes our clients. We represented defendants as well as plaintiffs in commercial litigation and personal injury cases. My clients included large enterprises such as Foster Wheeler Corporation and the Cuneo Press, both of which did business on a nationwide basis; companies such as the publisher of the Wichita Eagle and the Bowman Dairy, which were leaders in local metropolitan areas; and individuals with a wide variety of personal problems.

  By the luck of the draw, I also happened to represent a surprisingly large number of entrepreneurs who were distributors of products manufactured by others—coin-operated washing machines, auto parts, calculating equipment, magazines, automobiles, and soft drinks.

  These distributors seemed to share certain qualities that set them apart from the senior executives of the major companies with which they did business. They were hard workers who devoted long hours to their businesses. A friendly outlook on life rather than punctilious adherence to rules of etiquette enabled them to get along well with their employees, their customers, and members of the general public. I don’t remember any who had a college education, but they were uniformly intelligent—more so, in my judgment, than most executives in the corporate world who had earned graduate degrees in business administration.

  Two incidents in London in or about 1957—one involving a Chicago client of mine, the other involving Warren—suggest that the chief justice and my clients shared views about some social customs. This similarity is one reason that I have long believed that if Earl Warren had entered the private sector rather than the public, he would have owned his own successful business. The first incident involved my representation of Norm Niemi during an attempted negotiation of a renewal of his franchise to distribute calculating equipment manufactured in England and sold in America. Niemi was taller, stronger, better-looking, more alert, and funnier than either of the immaculately dressed British gentlemen with whom we negotiated. He also had a superior understanding of the relevant stateside market. The fact that he was wearing brown shoes made no impression on me until our hosts went out of their way to emphasize the importance of wearing black shoes on certain occasions. While that offensive digression must have been intended to give them some advantage in our negotiations, it merely generated hostility that led to an impasse and ultimately to litigation that was costly to the manufacturer and highly profitable to Norm.

  Earl Warren, who was also a tall, handsome man, had a somewhat similar experience in England in 1957. While attending a meeting of the American Bar Association in London, he made a major speech to a large audience of British and American lawyers at which he was expected to appear in a morning coat and striped trousers. Not having been forewarned about this sartorial requirement, he wore a brown suit to address the assembly, which evidently offended his hosts. The reaction of the audience to his social gaffe apparently embarrassed Warren and led to his resignation from the ABA. Like Norm, the chief may have overreacted to trivial comments. I suspect, however, that both of them were offended by the implication that an American’s informal brown apparel was an admission of inferiority.

  That experience did not prevent Warren from playing a significant role in foreign affairs. He traveled widely when the Court was not in session, made numerous speeches to foreign groups—as many as eight in one day on a visit to Ireland—and attended and helped to organize international judicial conferences advocating world peace through law. His liberal opinions motivated “Impeach Earl Warren” campaigns by hostile stateside critics, but Solicitor General J. Lee Rankin’s travels with Warren led him to remark that people living beyond the borders of the United States regarded Warren as “the greatest humanitarian in the Western Hemisphere since Abraham Lincoln.” In 1963, President John Kennedy asked him to head the American delegation at the coronation of Pope Paul VI and made Air Force One available to enable him to attend a world peace conference during the same trip. President Johnson also provided him with the use of Air Force One for several goodwill missions abroad. His choice of Warren to head the commission to investigate the assassination of President Kennedy reflected Johnson’s judgment that the chief was the most trustworthy man available in the entire country. When two of the top officials of the Justice Department, Nicholas Katzenbach and Archibald Cox, asked him to head the commission, Warren turned them down because he thought it had been a mistake for Justice Owen Roberts to lead the investigation of the Navy’s failure to anticipate the Japanese attack on Pearl Harbor and for Justice Robert Jackson to take a leave of absence to serve as the lead prosecutor in the Nuremberg trials
of German war criminals. Warren firmly believed that Supreme Court justices should not accept such nonjudicial assignments. Nevertheless, in a meeting at the White House, President Johnson persuaded Warren that he had a patriotic duty to take charge of the investigation. After accepting that responsibility, he took an active part in the commission’s work. For example, he and Gerald Ford made a trip to Dallas, where they inspected the window on the sixth floor of the Texas School Book Depository where Lee Harvey Oswald fired the shots that killed the president and wounded John Connally, the governor of Texas. On that trip he and Ford also questioned Jack Ruby, who had killed Oswald, and authorized the use of polygraph tests to verify Ruby’s explanation that his sole motive was to make it unnecessary for Jacqueline Kennedy to suffer the anguish of returning to Dallas to testify against Oswald. Warren’s reluctance to accept an unwanted assignment did not impair the quality of his performance.

  Both President Kennedy and President Johnson demonstrated their respect for Earl Warren by stopping in for a brief visit at an annual dinner hosted for the chief by his law clerks. (Kennedy was present in 1961 and Johnson in 1966.)

  Those dinners were far from the only opportunities Warren’s clerks had to socialize with the chief. Unlike his predecessor, Warren led a Court that heard no arguments on Fridays and that used that day to hold what would otherwise have been a weekly Saturday conference. The chief frequently took advantage of this flexibility in Saturday’s schedule by inviting all of his clerks out for a social lunch. Warren’s clerks also often spent time at his home watching sporting events. He apparently enjoyed conversations about politics more than judicial business during these outings, but their discussions about the Court did make it clear that Felix Frankfurter was not his favorite colleague, presumably because Frankfurter was so loquacious in explaining his own analyses of legal issues. On two occasions, after Felix announced a lengthy oral dissent in open court, Warren took it upon himself to provide the audience with an extemporaneous response to the dissent even though he was not the author of the majority opinion that Felix had criticized.

  At the office, a formal set of rules governed clerks’ access to their boss. Warren did not have an open-door policy for them because his “formidable secretary” guarded his door. That watchdog was Edith McHugh, the former secretary for Chief Justice Vinson, whom I have already mentioned. For her, the job of a clerk was by no means equal to hers, and other justices were not equal to her boss.

  My most vivid memory of Chief Justice Earl Warren is from my one and only oral argument before the Supreme Court, in 1962. The image of Warren that remains fresh in my mind is not one of his asking me a question I could not answer or his reacting favorably to a clever argument that I had advanced. It is instead the very first glimpse of him that greeted me as I rose to address the Court. Startlingly, Warren loomed over me, appearing to be only inches away.

  Although I had witnessed dozens of arguments, I had not realized how close the justices are to the lawyer who is addressing them. Many Supreme Court advocates who were far more experienced than I—including current justices John Roberts, Ruth Bader Ginsburg, and Elena Kagan—have told me that they retain a similar vivid recollection of their first oral arguments. Although the actual distance between the lectern and the bench is a little over six feet—and the distance between the advocate and the chief is about eleven feet—I was convinced that Chief Justice Warren could have shaken my hand had he wished.

  In my argument on behalf of the Bowman Dairy Company I was defending the decision of a district court to dismiss a government antitrust case against Bowman and another dairy after some eleven years of litigation. In the trial court, the government had established against Bowman a prima facie violation of a federal antitrust law known as the Robinson-Patman Act. It had done so by proving that five specific independent stores paid higher prices than their chain-store competitors. To avoid liability, we had to show that this price difference was justified on permissible grounds, in this case because the costs of providing the independent stores with dairy products were higher than the costs of serving the chain stores. Among the costs on which we relied was time spent by the drivers in making daily cash collections at the five independent stores. The Court agreed that the evidence justified the differential with respect to the stores selected by the government but reversed because the record revealed that Bowman’s drivers did not make cash collections from all of the independent customers who did not receive the chain-store discount. The Court remanded for further proceedings to address that issue.

  The second Justice John Marshall Harlan dissented, deploring the fact that the remand would prolong litigation that had already been in the courts for nearly twelve years. He stated that if “what the record now reveals [had] been fully appreciated at the time the Jurisdictional Statement was considered, a summary disposition of the case would have been called for.” He then added that “the nature of the issues in this litigation again point up the inadvisability of vesting sole appellate jurisdiction over this type of case in this Court.” His point was that the statutory provision that then gave the government the right to file a direct appeal in the Supreme Court from an adverse district court decision in antitrust cases should be repealed. He reasoned that such a change would both reduce the delays occasioned by the Court’s then overcrowded docket and give the Court the benefit of the court of appeals review before deciding whether to accept appellate jurisdiction. An amendment to the Judiciary Act enacted by Congress twelve years later in 1974 did make that change and thus contributed to the reduction in the size of the Court’s docket today.

  Justice William Douglas wrote a separate concurring opinion to stress the importance of effective enforcement of the Robinson-Patman Act’s prohibition against discriminatory pricing. In his view, the act reflects “a purpose to control practices that lead to monopoly and an impoverishment of our middle class [and therefore should be read] in a way that preserves as much of our traditional free enterprise as possible. Free enterprise is not free when monopoly power is used to breed more monopoly. That is the case here unless store-by-store costs are used as the criteria for discounts.”

  The so-called monopoly power to which Justice Douglas referred was the power of each of the chains to switch its patronage from one dairy to another. In the trial itself, the government had not claimed that any chain or any dairy could be fairly characterized as a monopoly, as that word is used by economists. But Douglas’s concern was not that of classical economists such as Milton Friedman; instead, it represented an approach to the antitrust laws that was characteristic of the work of the Court as a whole when Earl Warren was the chief.

  In many respects I did not—and do not—agree with the approach of the Warren Court to antitrust issues. As a young lawyer, I taught courses in antitrust law at Northwestern and at the University of Chicago. The course at Chicago, called Competition and Monopoly, was traditionally co-taught by an economist and a lawyer. The year that I substituted for Edward Levi, who later became the attorney general under President Gerald Ford and provided much-needed leadership in the Justice Department after the Watergate scandal, the economist was Aaron Director, a brilliant teacher whose disciples included Bob Bork and Dick Posner. While I did not learn half as much about economics as either of those outstanding rising scholars, I did—through my association with Aaron—pick up a few fundamentals.

  For example, I learned that price concessions by competitors in free markets are more likely to benefit consumers than is rigid enforcement of rules prohibiting sellers from charging different customers different prices for similar goods. Thus, what Justice Douglas condemned as an abuse of “monopoly power” may actually have been good for the public. Similarly, the sale of one product on condition that the buyer accept another is sometimes a form of beneficial price cutting rather than an abuse of market power often condemned by characterizing it as an illegal “tying arrangement.” Because Earl Warren is not noted for his antitrust opinions, I shall not attempt a
ny in-depth review of the Court’s work in that area of the law during his tenure. I shall merely state that I think many practitioners representing business clients would not have given the Warren Court high grades in a course on antitrust law.

  A minor incident that occurred while I was working on the opinion in a case that was argued on my first day on the bench as a court of appeals judge may have affected my appraisal of Earl Warren’s jurisprudence in cases involving economic issues. The case raised difficult questions concerning the enforceability of a National Labor Relations Board order that required the employer to engage in collective bargaining at a time when the union no longer represented a majority of the company’s employees. The most relevant precedent was the then-recent forty-five-page unanimous opinion authored by Earl Warren in another labor case known as the “Gissel case.” Because Warren’s reasoning, though obviously relevant, was not directly in point, I decided that it would be helpful to examine the briefs filed by the parties in the Supreme Court. The University of Chicago Law School library then included a collection of Supreme Court briefs and records, so I was able to gain access to the briefs by visiting the law school. When I did so, I was surprised to find that Warren’s opinion had copied several paragraphs from the solicitor general’s brief in the case, without attribution. Needless to say, that discovery made me wonder about the care that the chief justice took, not just in writing opinions, but also in editing the work of his law clerks in cases in which he had no special interest.