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Interview with David Schwartz, March 16, 1981

1981-03-16 Interview with David Schwartz, March 16, 1981 Reed001:1981OH041Reed09 01:00:26 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 David Schwartz; interviewee Edward Gilson; interviewer 1981OH041_Reed09_Schwartz 1:|6(12)|17(1)|31(4)|43(2)|54(7)|66(1)|79(1)|107(8)|123(2)|134(7)|147(7)|161(15)|171(6)|181(3)|198(2)|215(6)|233(4)|244(3)|256(2)|262(9)|273(13)|284(9)|295(4)|307(3)|319(11)|330(8)|343(12)|355(6)|365(11)|392(10)|414(8)|425(1)|437(7)|452(2)|461(14)|483(3)|493(11)|503(13)|517(5)|532(1)|543(6)|561(9)|571(6)|588(1)|602(2)|610(4)|620(1)|631(4)|642(4)|654(14)|670(14)|691(8)|712(4)|724(2)|736(1)|751(9)|765(2)|778(15)|791(8)|803(1) audiotrans SFReed reed001:interview GILSON: Well, Mr. Schwartz, first of all could you tell me a little bit about how you became a clerk, your background? SCHWARTZ: Yes, indeed. I was a New York City boy. I went to college in New York and law school at Harvard, and then I . . . I wanted to join a law firm rather than work for the government--this was 1939--and I did. But after a year or so the war became more imminent and the headlines more threatening, and I thought that I ought to be working for the government. So I came to Washington. I worked successively for Immigration as a . . . an examiner, I wrote opinions for the attorney general, and then I . . . after Pearl Harbor I was transferred to the Alien Enemy Control Unit. And while I was there one day--this was the spring of `4- . . . `42--a classmate called and said . . . no, not a classmate. I forget who called. But I learned that Justice [Stanley] Reed wanted to interview me to become . . . with a view to . . . a job as his law clerk. I had several classmates who had become law clerks. There were three up there at the time. And it was pretty clear to me that one of them had mentioned my name, probably to Justice [Felix] Frankfurter, who had been our teacher, and that Justice Frankfurter had passed the name on to Justice Reed. He did that at that time, perhaps later. In any event, I told my boss that I was going up to the Supreme Court to meet Justice Reed, and he smiled, and he said, "I've already talked to Justice Reed." So I realized that there was . . . there was a lot of . . . discussion had been going on. My boss at that time had been in Mr. Reed's office when Mr. Reed was Solicitor General. GILSON: Who was your boss? SCHWARTZ: Edward J. Ennis, E-double N-I-S. So I don't know who first suggested my name. I never did know who first suggested my name to either Justice Frankfurter or Justice Reed. But he evidently picked it up and talked to my boss, and my boss said I was okay, I suppose, because when I went up to see him it was perfectly clear that he had decided to hire me. I mean, he . . . he just said, "Hello," and, "How are you?" and, "I wanted to meet you," and then he said, "You'll begin at," you know, "when . . . when the present law clerk leaves," or something like that. I was, of course, very thrilled, because I hadn't become a law clerk. I'd gone into the law firm and then the government, so I got there in, probably, August 1 or July 1, I really don't remember. That was [the] October term, 1942, and I began to get the regular weekly stint of certioraris from the clerk. We did twenty-five certs a week at that period. And after about a week or so the hallway suddenly became alive, and I heard to my astonishment that the Court was convening. Mr. Justice Reed was out of town. He was in Kentucky. He went there every summer. The Court was convening to hear the saboteur case [Ex parte Quirin]. It was going to be a summer session, very unusual. I forget the name of the case when it finally came down. It wasn't Korematsu. No, it was something else. Those were the saboteurs who had landed on Long Island and had been picked up immediately, and they had been tried by a military court. The question was whether the military court had jurisdiction in wartime of such persons that . . . at home, so to speak. Anyway, Justice Reed turned up, and we didn't have very much intimacy. He was a sweet man always when you . . . you knew him, but he didn't pour out any personality, as the saying might go. He was kind and sweet and helpful, but he did his work, and he left you to do his . . . your work, and there wasn't a tremendous amount of mixing or intimacy during the day. He invited his law clerks to his home. I . . . I went there with my wife. He was very gracious. But he worked, and I worked, and we worked in adjoining rooms. For instance, he would rarely come into my room. He would . . . I think he had a kind of a delicacy about it. I would knock on the door and ask him if I could come in and bring him something or . . . or discuss something with him or something, and he always said "yes." He . . . when you opened the door, he was always sitting at his desk. And the room was rather dim. They didn't have very good lighting. He had a desk lamp, and I think there were no ceiling lights, because I remember that his face was not clearly outlined. And this sight I saw hundreds of times or a hundred times. And there would be books piled around him like a semicircular barricade. He would read a book and put it down, read a book and put it down, and built up an enormous number of books. And there'd always be a yellow pad in front of him, and he had been writing or . . . or was . . . was writing at the moment. He wrote his opinions with a lead pencil on a yellow pad like most lawyers . . . like many lawyers do, and he just wrote along. There seemed to be . . . he . . . he'd read and he'd write a little, then read again and write a little some more, but he never had any trouble. He didn't seem to have any pains, you know, author's creative pains. He never minded being interrupted. He was very kind. He would lift his head as soon as I opened the door and knocked, always said, "Come in," and then he'd tell me whatever I needed to know, or give me the lead or advice. I think I'll stop and let you ask a question. GILSON: Well, that's . . . you were going right along the . . . the line. SCHWARTZ: Am I doing all right? GILSON: Yeah. SCHWARTZ: All right. GILSON: Well, you've got into this a little bit. What did you do as a . . . as a clerk? SCHWARTZ: Well, the basic job was to read all the petitions for certiorari and write memoranda on each one. And you wrote them on a loose-leaf page and then handed them to him, and he would put them in a loose-leaf book . . . [interruption in taping] GILSON: Okay. Take them, I think, . . . SCHWARTZ: . . . of these things afterwards, but they were loose-leaf . . . small sized loose-leaf pages about six by nine, and I kept the carbon and gave him the original. They . . . they put the name of the case, the Court number, petition of the cert with the name of the Court, in forma pauperis without a lawyer [inaudible], and there'd be a short statement of the facts, and then the simple word "Deny" or "Grant" or something. Now, this one looks like it was done by Justice Reed himself, you see? GILSON: Yeah. SCHWARTZ: We covered all of them. I don't remember why he should have done one. Maybe he did the in forma pauperis. Most of them I would type my initials. You see, the one I was just looking at that he had signed was better typed than mine. Of course, I think his secretary typed his. [chuckle] And I t- . . . also, his was shorter, you see. He didn't have to persuade somebody else, you see. And I would say this case is substantially identical with another in the case thus and thus happened, and I say here, "If the other has been granted, this one should be, too." I said, "Grant for the reasons on #177." That was the basic business of Mr. Justice Reed's law clerk. We had twenty-five certs a week. We had, say, forty . . . fifty . . . forty weeks, and that would make one thousand certs during the year. I think there were actually less than that. In recent years the number has grown well over a thousand, and the Court . . . many members of the Court are feeling almost [inaudible]. This was also the period--October term, 1942--when the justice had just one law clerk. Some years later they started to have two. Now, I was saying the justice was always so calm. He ran a calm suite. He had a secretary for all the years that I knew, Miss Helen Gaylord, who still lives in Washington, and he had a messenger, Ross, and I don't know his other name. GILSON: Gerald Ross. SCHWARTZ: Gerald, right. He came with the justice from Kentucky, and . . . and I think he stayed with the justice for years after he retired. And the law clerk and the justice, those were the four people in the suite. And there was never any voice raised, never any flap, never any trouble, never any harsh words, or any reproachful words. It was a very calm, tranquil organization, and it was really modeled on the justice, who was a tranquil man. He was confident about himself without being the least arrogant or putting himself forward. He was always . . . I . . . I can hardly remember him except quietly passive-faced, or smiling. When he talked he would more likely be smiling than not. Had a charming way of talking. He stood straight and tall and handsome. He was fat in those years, and at one point he went to that rice clinic in . . . in . . . where, North Carolina, South Carolina? GILSON: Oh, yes. Duke. SCHWARTZ: At Duke, was it? And went on the rice diet and stayed on it for the rest of his life. He described himself as . . . when he had seen the pictures in the old days, he'd say, "I looked like Holstein cow." [chuckle] And that means he was fat. In later years, of course, he became much leaner and . . . and the bones showed on his face, and he therefore looked so much taller and so much handsomer. He was a very, very, very superior lawyer, you know. There were people who [inaudible] to . . . to hold him not in high regard because he wasn't full of fireworks, you know. His opinions didn't have brilliant words in them like Justice Frankfurter's, and he didn't write these enormous essays of learning and so on. But he was a very good [inaudible] lawyer. His opinions were based on real principles, and he knew what he was talking about. He was never foolish. He never went out overboard. There was something . . . there was one . . . one moment that he demonstrated to me a simply superb understanding of a written document. There was a railroad mortgage . . . we had an Interstate Commerce Commission railroad reorganization. And he was going to write most of the opinion, and he gave me a . . . a . . . one issue in the case and . . . or else that's my recollection. It may have just been that I just did a piece of what he was going to use in . . . that he was going to do the whole opinion. And I started studying my piece or segment, and there was a railroad mortgage which . . . whose clause was central for the case. And it ran like most mortgage clauses, a lot of words and length, and the phrases and the clauses were just were added on to each other and the "provideds" or . . . so on, and I just didn't understand it. I read it and I re-read it and I tried to [inaudible] it or diagram it. And I talked to some other law clerks about it and they were kind of scared of it, you know. I was then, what, 26 years old, and I'd never seen a document like that before. And so I finally took it into him and said I couldn't understand it. And he picked up a record, which I was reading it, and he started to read it aloud. And by the time he finished, I understood it. GILSON: [inaudible] SCHWARTZ: And I think it was all in the way he dropped his voice and . . . and the inflections, you see. The provisos . . . he'd hesitate before the provisos, and then he'd emphasize the key phrase when he came to it. And he did this without ever having read it before, you see. It was a tremendous achievement which showed that he knew legal language and he knew the meaning of words. I thought it was a great little episode. I . . . I've always remembered it. Well, what else [inaudible]? GILSON: [chuckle] That . . . that was very interesting. How did he get along with the other members of the Court at the time? I believe . . . SCHWARTZ: He was a very gentlemanly person. You didn't see so much of how he got along, you see. You sat in your room and he sat in his, and I suppose if you . . . you . . . you never went into [the] conference room with him. You didn't go to lunch with him. He lunched with the other members of the Court, and you lunched in the cafeteria. You would meet him and other members of the Court once in a while socially at his house. Not many would come, you know, a birthday party or something. I remember [William O.] Douglas would come and was very friendly. Obviously he was on good terms with the justice. But the kind of thing that has since come out, you know, judges' vendettas and that kind of thing, there was no trace of that about Stanley Reed, you know. GILSON: Yeah. SCHWARTZ: It was . . . it was well understood that he . . . he was not on bad terms with anybody. When judges might . . . he didn't venture out of his office much. And, mind you, I didn't quite know because I'd be sitting in my room and he might very well leave. The customary entrance and exit from his room was through his secretary's room. So he could have been out talking to a lot of judges all day, and I might not have known about it, but it . . . I gathered that he didn't, you see. I have learned about other law clerks [inaudible]. I gathered he didn't. And the other judges, when they . . . if they were to come in to see him, and I gathered they didn't much, would also have gone through the secretary's office and I wouldn't have seem them. But Justice Frankfurter, when he came in to see Justice Reed, would come through my office, you see. That was a way of saying "hello" because he had been my teacher, and I had a pretty good idea that he had been the cause of my getting the job, you see. And he . . . if that was so, he certainly knew that, and he felt he was my sponsor. So he'd come through me, and he would tell me a word or two, a kind of a mysterious hint of the . . . the errand he was on, you see. It was a matter of thus and thus case or something. And it was perfectly clear that he was going in to try and persuade Justice Reed of a particular point of view. He was lobbying him, if you want to call it that. But there weren't enough contacts with him and the other members of the Court in my sight and hearing, so that I could have a very good opinion, except it was rather well understood that he got along well with the other judges. There was never any . . . never any talk about hard feelings, or certainly not the kind of things that were said about [Hugo] Black and Frankfurter and that kind of thing. Also, you must remember that he was a man whose opinions were often in the middle. So, since he wasn't at one extreme or the other, . . . well, he was at one extreme on some kinds of cases. It was well understood that he tended to uphold convictions. He was not as . . . as rigorous in demanding constitutional protections that would invalidate convictions. But that was entire. Was not on every case. And so in that respect, he was at one end of the spectrum of . . . of the range of opinions. But even then he was such a gentleman and so courteous and . . . and proper and nice. I'm trying to remember . . . one time, Frankfurter came into lobby him and he told me something about it afterwards. And he said--he was obviously being discreet, as he didn't mention the matter of the case, and he didn't give me any details--but he said that, "He wants me to vote a certain way, and I can't do it." Something like that. Very matter-of-fact and very kindly toward Frankfurter, but he had been lobbied, and he hadn't been willing to agree, and that was that. He told it to me. There was a kind of a tone in his voice that implied there was a lot more to it, but it was reflective and thoughtful as if . . . as if he were thinking of a lot more than he was saying. But he wasn't going to tell me. I think he thought it indiscreet. He had definite ideas on the difference between a justice and a law clerk, you know, as I think he should. There's . . . as I think is proper. One time we had a cert up involving the Group Health Association, which is a prepaid medical plan which is very prominent still in Washington. And it was young then and it was having antitrust troubles with the hospitals. The hospitals weren't . . . it was the day before group plans were kind of recognized as legitimate or respectable. And the hospitals weren't giving proper privileges to the doctors of the . . . of Group Health rolls, and so they brought suit and they eventually won and the hospitals gave them all the privileges. And we had one stage of the case up on a cert. I was a member of Group Health, and so I went in to see the judge and I said, "I think you should know that you may not want me to work on this because I'm a member of Group Health." And with a smile he said . . . he said, "David, judges can be disqualified but not law clerks." [chuckle] And I got the point on that. He was a very kindly man. A very decent and kindly man. He never . . . he never said a word to me that could be regarded as reproof or scolding or criticism. I'm sure I deserved plenty of it. I was very young and very callow and pretty damn ignorant. You know, the issues you get, one case after another, range over the whole field of federal law, and not the federal law which is routinized and taught to people, you see. It's all . . . everything is brand new outside the ordinary body of knowledge. And I'm sure that I expressed opinions to him that were wrong and silly and uninformed and everything. Never did he smile or laugh or mark any of them or criticize any of them. A very decent man. Very . . . just kindly. He didn't slap your back or tell you you were great or anything, but he was warm all the time. You had a feeling that he liked you, respected you. I certainly reciprocated. In those days, conferences of the judges were on a Saturday, and after arguments. And so [on] Saturday there was a hush around, and . . . and the judges would be in conference. He hardly stopped in at the chambers. And then I always assumed that he went home after conference. I'd be working. My hours were often late and seven days and all of that, and I didn't know when he came or when he left. But I . . . I took it for granted that on Saturday, if there was no conference, that he wouldn't be down. If there was a conference he'd . . . he'd go home right after conference. But he wasn't one of those workaholics, I think. I think he . . . he kept fairly decent hours. He'd go home like a man should. He had a wife at home, and he'd go home and had a decent home life. So, this was on a Saturday, and my mother and my mother-in-law were in Washington on one of those visits, you know, where you take them to see Mount Vernon. So . . . so I asked them to come down to the Court, you know, to show them the marble temple, and this began to be about five [or] six o'clock, and I was sure I was the only one in the suite because his secretary and . . . and Ross were never there on Saturday. So I was going to show them the judge's chambers, and I opened the door to his chambers and I said, "Look, Mom." And there he was working, you see. And so I apologized. I said, "I'm so sorry, Mr. Justice. My mother . . ." He said, "Oh, bring them in," you see? So I brought them in, and I was worried about interrupting him, you know, imposing on him, but he had them sit down, and he told them all about the Court and all about me and all about my work and how much he liked me and how well I was doing and . . . and what he was doing. And it was just about the nicest thing they could have happen to them when they were in Washington, you know. Here they had met the great man that I was working for. He showed himself to be such a friendly, warm, outgoing person. I was actually good and surprised, you see, because he hadn't been that outgoing to my knowledge in other things that year. So he was just being nice to these people who were visitors, strangers, parents, that kind of thing. As I said, he was a very decent man. Something of what he meant to the boys--and I'm thinking now of the successive law clerks--may be seen in . . . oh, how we described him. We called him "Uncle Stanley." [chuckle- -Gilson] We called him "Uncle Stanley." It . . . it was kind of half-affectionate, half-presuming intimacy, you know. He wasn't the boss, and you'd call him Judge or Mr. Justice, but among us he . . . he wasn't the governor or the boss or . . . or the judge. He was "Uncle Stanley." We felt he was kind of avuncular, you see? GILSON: Umhmm. That's interesting. SCHWARTZ: There were law clerks--not me--who . . . who played a part in his actual votes. I remember there was a story around that when he went to conference to vote in Opelika [Jones v. Opelika], the great flag salute case. Then Phil Graham, who had been his law clerk two years before, was hanging on his arm as he went to conference, begging him not to vote a certain way. Well, Phil was a very forward fellow. Phil has since died. He was a very brilliant, very superior man. He had . . . he was publisher of the Washington Post. It may well be the that the story was true, and that Phil had taken a great interest in Opelika when it was, of course, a great case, you see. It came to the Court twice, and so there was a lot of . . . and Stanley Reed was . . . was the key of the swing vote, something like that. And so it may very well have been entirely true, but I didn't have that much intimacy with Justice Reed. I didn't how he had voted on cases. We didn't discuss cases until after they were assigned to him. Those cases we would discuss, his opinions. I would look up some law for him, or I would write a piece of the opinion. One time we had a case, I think it was some . . . what I would now call a "silly" case about dental expenses. Somebody's dental expenses. Not an individual, something to do with a dental company that made false teeth or something. And I wrote a piece of it . . . no, I may have written all of that one. I think it was this other case . . . this reorganization case. I wrote a small piece of it and he wrote a big piece. I wrote the severable issue. And, of course, he revised it or scrutinized it, I really don't remember. But when we circulated it, they came back . . . the copies from the other judges with things marked up and criticized, and he said to me rather ruefully, he said, "I see that your part hasn't been criticized at all, and my part, they're [chuckle--Gilson] just cutting it into pieces." But I made the mistake of saying, "Well, of course. You wrote the most important part." I should have just kept my mouth shut. It wasn't for me to try and soothe him, you know, his injured feelings. And I don't know that he really had injured feelings, he was just making a kind of a semi- joke about it, you see. What more can I tell you? GILSON: Well, I . . . I wanted to get into the Opelika case a little bit more. SCHWARTZ: Well, I wasn't there when . . . when it was decided, you know? GILSON: Right. SCHWARTZ: Neither of them was decided. GILSON: But . . . well, true. But you were there for the . . . well, when he wrote the dissent. SCHWARTZ: I don't know that I was. Was I? GILSON: Yeah. Yeah. He wrote a dissenting opinion during your term, although it may have just been a rehash. SCHWARTZ: It was more or less he was just sticking to his old guns, and . . . and I don't think we discussed it much. GILSON: Okay. SCHWARTZ: Let me have a look at that. GILSON: Certainly. SCHWARTZ: Would these be the cases he wrote when I was there? GILSON: Yeah. If you can read my handwriting, you can . . . SCHWARTZ: I can, yes. Uh-huh. American Dental Company, that's the one I just mentioned. GILSON: Yeah. We were talking about Reed's writing before. Did . . . did he have trouble writing, or did he . . . SCHWARTZ: I don't think so. I think he went slowly, but he just wrote. I think . . . I think he would refresh himself about a case which he had read before out of the briefs, and they were all lined up or piled up, and then he'd write about it. And then he would write the part that came right out of him, his . . . his feelings on it. I don't think you can say he had trouble writing. I don't think he re-drafted very much either. I'm not terribly sure. I don't remember seeing any manuscripts that were marked up, so I don't know how much he rewrote. No, I think he . . . he wrote pretty straight, you know. It just came out of him slowly and thoughtfully, but without any great difficulty. GILSON: Uh-huh. Well, scholars have kind of debated this question back and forth, and perhaps you can add a little something to it. Did Stanley Reed start liberal and go conservative, or did he stay pretty much the same? SCHWARTZ: I tried to look into that one time because I was to make a talk. I . . . there was a rumor that he had introduced into the Kentucky legislature a workman's compensation law, which would have meant the usual label words that he started "liberal" and he turned otherwise, although such labels, you know, are always misleading. I tried very hard to check that out and finally got word, no, it was a mistake, and the mistake was made in somebody's little speech for a kind of an obituary notice in the Maysville newspaper that was celebrating his . . . what, his anniversary or his resignation or something like that in his honor. There's a copy of that newspaper in the file on . . . in . . . at the Supreme Court. If you have never seen it, Mr. Gearinger can help you with it. He is the Supreme Court librarian. And it said that Stanley Reed had been instrumental in introducing liberal labor legislation. I wanted very much to know that because, as you say, it has been said he was conservative, he [inaudible] individuals, he was against the criminals, that kind of thing. I don't know whether he changed at any time. As I knew him he was . . . he was what he was. He used to tell an interesting story about his early days in the law. You see, he was counsel for the railroad in his area. GILSON: Umhmm. That would be the C&O [Chesapeake and Ohio]. SCHWARTZ: Right. And he had helped create the counsel for the tobacco cooperative. And he once said--and it was a very charming, witty remark--he said, "One year I totaled up all the cases I had handled for the railroad and the cooperative." And he said, "You know what? I had won all the cases for the cooperative and lost all the cases for the railroad." [chuckle] That's the way the juries went, you see. Now, I don't know. You know, I myself have never known what any details about his rather exotic career as a law student, you know. He went to where, Yale or Columbia, and then he went to study law in Paris. That's pretty exotic for a boy from Kentucky whose father was a doctor, you know. And I never knew anything about it. I guess if I knew it then, I . . . I didn't feel I had the privilege of asking, although I can't see now why I shouldn't have asked. But it fascinated me when I first learned about it. GILSON: And he was somewhat of a . . . of an aristocrat from Kentucky, though he wasn't. SCHWARTZ: Yes, he carried himself like he was. But ev- . . . even upper-class folk, going to study law in Paris was pretty unusual, I think. GILSON: Yeah. SCHWARTZ: Yeah. GILSON: How did you feel about being a clerk for Reed? Was it any different or . . . working for any other justice on the Court at the time? SCHWARTZ: Well, I felt that my judge was not a star, you see. I felt that he was one of the solid, sitting-in-the-middle-of-the-road judges, you see. The other law clerks had unique judges, you know. Frankfurter was very full of fireworks and Douglas was an exotic fellow, and Black made his law clerks a great friend, how he'd talk with them about all kinds of things. So all of these other law clerks had all kinds of anecdotes to tell about their judges which, of course, were terribly interesting and it enhanced the law clerk in your eyes and source of . . . and as a favorite, somebody having such intimacy with his judge. My judge was not like that, so I didn't have that extra cachet to my job. I was . . . I . . . I had no share in any feeling that my judge was inferior to any other judge. I thought he was a very solid citizen. He was a conservative, there's no doubt about that. He was a conservative on criminal matters and on constitutional matters. But he was a very strong man for the central federal government. This was wartime and the federal powers to do special things were very important. You know [Franklin D.] Roosevelt's giving of the destroyers to Britain on a rental ba- . . . without fee basis, you know, that kind of thing. And Stanley Reed was a great man for the federal government. The federal government rarely lost a case that he had any say about. The Labor Board never lost a case in his life, I think. Maybe much later on, but not in those days. The administrative agencies were . . . were going high. How did he vote on Chenery [Securities and Exchange Commission v. Chenery Corporation]? I saw there that he dissented on Chenery. Is that Chenery II or Chenery I? GILSON: I'm not sure. SCHWARTZ: Let me see now. Let me think. Chenery I, they kicked out the S.E.C.'s decision and he dissented. Right. So he was for the S.E.C. right then and there. I think that was Chenery I. And so he was . . . he would have upheld the S.E.C., which was what the Federalists or the strong central government, pro-administrative agency position would have been. How did I feel working for Stanley Reed? Well, of course, personally I was thrilled, you know. It was a very demanding job. I knew I was very lucky to have it. I knew I would be favored among lawyers after I was finished. It would be a great feather in my cap. I was the envy of everybody I knew in Washington because, you see, it had come to me only after law school. Usually you start these jobs right from law school, and I knew that I had my classmates and my old teacher Justice Frankfurter to thank and I was very grateful. And . . . and I wasn't likely to find fault with Stanley Reed, you see, [chuckling] because I felt terribly fortunate in having this job. And I recognized that he was a great powerhouse of a . . . of a lawyer and a . . . and a pretty great man. But he wasn't fireworks brilliant, you see? GILSON: Yeah. SCHWARTZ: And so I was a law clerk to a non-fireworks judge, and they were other fireworks judges and their law clerks around. But I grew to feel very warm towards him, you see, as the years went by afterward. Even then I thought he was a great man, and I would . . . you know, I would be a little nervous even in his presence. He was kind of like a great stone idol, you see. There he'd be sitting at his desk in the most beautiful room I'd ever seen or ever been in, and legal up to the ceiling in all the books. And the . . . his office was as neat and proper as you . . . it could be, except for that mess of books around him. Not like my office here. And I . . . I . . . and he'd sit there, [and] he'd talk, and he . . . he wouldn't . . . he didn't do much smiling at work, you know. It was all serious and thoughtful. So I was definitely on . . . on my toes when I'd be with him because I wanted to do well. Maybe I suffered some lack of confidence, but maybe it was deserved, you know, like the fellow who has an inferiority complex, but it's justified [chuckling] because he's really inferior. GILSON: Really inferior, yeah. [chuckle] SCHWARTZ: I was not terribly knowledgeable, and I knew I was not terribly knowledgeable, and he was, you see. There's one . . . one episode that happened that year that I think was . . . was really historically significant and I want to tell you about it. One time during the year he went to one of these bar associations--this was 1942, you understand--and Brown against the Board of Education [of Topeka, Kansas] didn't occur until when, 1956? GILSON: `54. SCHWARTZ: `54. And so this is twelve years before Brown against the Board of Ed. And he'd gone to some bar association banquet or dinner, and he came back the next day, and I was in his office, or we were together somehow, and he said to me, he said, "David," he said, "last night I did what I had never done before and didn't think I ever would do. I sat down to dinner with a Negro." You know, he pronounced Negro as "nigra," which is the Kentucky way of saying it. And, of course, this was long before the word "black" came in to describe Negroes. So here he is saying to me, "I sat down to dinner with a Negro." And then he added, "But it had to be done," or some such thing as that. "But it was necessary to be done and I did it." And I think that was kind of a foretaste or a forecast of what he did in Brown against the Board of Ed. where we've seen or we . . . we've read and heard that he had thought it out by . . . by thinking it was equal . . . separate but equal is all right or some such thing as that, and he came around, [and] he made the decision unanimous, you see? And he did it obviously or . . . or you know, more than obviously. It's well known he did it because he felt it . . . it needed to be done. Congress would never do it on their own, and only the Court could get it done. Only the Court had so little to fear. And I think that . . . that little episode was sitting down to dinner with a Negro was . . . told you what he might do twelve years later in Brown and Board of Ed. GILSON: I'm afraid I have to change . . . [End of Tape 1, Side 1] [Beginning of Tape 1, Side 2] GILSON: Well, we . . . we kind of touched on this in the last . . . in that last episode. What did Stanley Reed consider the role of the Supreme Court to be? Was it a policymaker and . . . like in the . . . in the Brown case, or was it a . . . more of a referee type of institution? SCHWARTZ: I think it's varied, of course, with the type of the case. There were many cases that were simply legal jobs to be decided correctly. He was one of the few judges who believed that the amount of money involved in a case was a reason enough for the Supreme Court to take it, if it were a big amount of money. So a railroad reorganization or a decision holding the United States liable for a lot of money, like the Texas City explosion case. Then there were issues that came up that were absolutely of constitutional first importance, [such as] religious rights and the like, segregation. There he . . . well, I don't like to say that he voted his own . . . his own taste in constitutional law, but there's been a lot of belief that constitutional law principles are terribly subjective. There's no such thing as . . . apparently, as a neutral principle, or at least so the writers say. In other words, your training and your . . . your set of political beliefs are likely to determine what your views are on constitutional limits, and constitutional con-. . . conflicts, one clause and another. And I suppose like most people he had a set of . . . not suppose, like most people he had a set of political beliefs, and so they would come out in . . . in constitutional cases. So I think referee is . . . you know, you can be . . . referee and policy can mean the same thing. Referee on policy matters, adaption . . . adaptation of conflicting views on policy matters. Law is policy. The decision on . . . on the power of the federal government on displacing state power, on conflict between criminal law enforcement and due process, on the rights of the accused, those are all policy questions. There are no answers in the Constitution. There are just a group of principles. Principle of enforcement of the laws, principle of due process which means everything, the principle of, say, the indictment by a grand jury. When . . . when are you going to upset conviction because the grand jury wasn't properly constituted. Well, that's policy. How far you're going to carry your feeling that a grand jury ought to be constituted by fair means. What are fair means? If you believe that it's a great pity that . . . that guilty people should be released, because they ought to be punished, and they're likely to commit another crime, and society needs to be protected, that's policy. And it'll determine . . . it'll at least influence where you draw the line between picking a grand jury correctly and . . . and incorrectly. I . . . I don't understand the question in that sense. I think there . . . there's . . . you can call it policy, you can call it belief . . . sincere belief as to the extent of legal protections and legal principles. But to be more precisely responsive, I don't know what his forms, philosophy [chuckle-Gilson] of the role of the Supreme Court was, you know. There are a lot of law clerks these days who purport to psychoanalyze their . . . their judges, you see. And there are a lot of commentators who purport to psychoanalyze judges, never having worked for them. There was a . . . if not a 60 Minutes [television program], then another kind of program like that recently about Chief Justice [Warren] Burger. And you . . . you could hear his . . . some of his former law clerks and some newspaper people saying, "Oh, he's a small-town boy who never did very well in law school," or this or that or that. Those are gratuitously insulting, I think. Those people don't know enough to do that kind of thing. It's one thing to do that in private conversation, you know. You believe that he's a . . . essentially a small-town boy, so what? You believe it or you don't. It doesn't [chuckling] much matter. But to say it on . . . on national television as if you are a pundit, a guru, a source of wisdom, I think is offensive. I think it would be offensive if you said that about a fellow down the street, much less if you say it about the chief justice. And I don't mean that I'm doing this because I'm a great admirer of the chief justice or anything like that. I just think there are people who are presuming to have deep psychological knowledge of what makes judges tick who haven't got any such knowledge. GILSON: I suppose you have . . . have the right to say that since you yourself are a judge. You can know more about . . . SCHWARTZ: Well, with some . . . with some judges, they talk more. They . . . but I think every case is different, and . . . and I think . . . what I probably really think is . . . is Stanley Reed had such a concept of what the Supreme Court was, he may not have known it. He just acted as he felt he ought to. And, of course, he felt that he was sincere and he was sincere and he felt he was right and he felt he was treating the Supreme Court as it ought to be treated. So I don't know that he . . . he knew the . . . his total view of the Supreme Court in the sense that you're asking about it. He just did what . . . what he felt was right, [chuckle] and was, of course, influenced by all his upbringing and . . . and beliefs and . . . and standards and . . . and the class he was in and . . . and the morality he believed in. GILSON: Yeah. Okay. That's . . . SCHWARTZ: I guess you tried, . . . GILSON: I tried. [chuckle] SCHWARTZ: . . . but I . . . I haven't got any complete answers to what he thought the Supreme Court's role was. GILSON: Well, I really was just wondering if he had any . . . any set of . . . of . . . well, any set of ideas that . . . that would govern his . . . his opinions? Anything which . . . SCHWARTZ: I'm sure he did. I'm sure that one them . . . GILSON: [Inaudible] SCHWARTZ: . . . one of them . . . I'm sure that one of them, for instance, was that . . . this was the day and the era of the federal government and the administrative agencies. GILSON: Yeah. Umhmm. SCHWARTZ: This was the period in which administrative agencies were on the up. They were the . . . the great new experiments of the New Deal and the post-New Deal, and they were not to be limited, you see. When the Labor Board decided something, he [Reed] felt that that decision should be respected by the courts. If another administrative agency wanted to do something, he didn't want the courts interfering with them. If you want to call that liberal, you can. It . . . it may be called conservative in . . . in . . . in . . . by another's vocabulary. I'm sure that was one of his principles. He was a federal government man, and he brought to the Supreme Court the view that the federal government needed support, approval. No, not that it needed support, [but] that it was right to do it the way the federal government was then doing it. I think another one of his deep principles was that he . . . he didn't hold with this readiness to release criminals easily because of little defects . . . he would probably have said little defects here and there and the process. I think he was a law-and-order man. The phrase "law and order" can be used as a . . . as a . . . as a pejorative, or it can be used as a mark of approval. I think it means different things. It isn't that there's one law-and-order type of whom some people approve and some disapprove. I think it's meant differently by the people who use it as praise and the people who use it as criticism. GILSON: Fair enough. Let's get to the . . . to the Court itself. How--of course, this is still a little bit before your time--how did . . . I mean, . . . well, not this part. How did [Harlan] Stone run the Court as opposed to the previous chief justice that Reed knew? SCHWARTZ: I wouldn't know. I didn't have much . . . we used to talk about the days of "Whiskers." We called [Charles] Hughes "Whiskers." I was the kind of law clerk who didn't develop that kind of opinion. I knew . . . I . . . you know, I was like the cat looking at the king. I knew about Stone from little conversations with his law clerks, and that showed him to be a very powerful, thoughtful man. And I knew nothing about how he managed the Court or . . . or managed relations with his colleagues. I wasn't privy to that. GILSON: Uh-huh. Okay. I think that's really about all I had to ask you. SCHWARTZ: All right. GILSON: If there's anything else you'd like to add? SCHWARTZ: I can't think of anything right now. No, I think my relationship with Stanley Reed was a very personal thing. That is, I worked for him, and it wasn't a very intimate relationship. As I said, we each worked, but it was a good relationship. In the years thereafter, as I went to those parties that we had each year at his judicial birthday, it became clearer and clearer that he thought the world of his law clerks. He would say so very often, that he felt very privileged to have had them work for him, and I'm beginning to understand that. I mean, you have a bright young face and an eager, enthusiastic, young person around you, that in itself is . . . is a . . . gives you a lift. When that person shows initiative and . . . and . . . and enthusiasm in . . . in the direction of improving your opinions, your work, bringing you the product of his hard work, you can't help feeling warm towards such a person. They're . . . they . . . naturally, they are . . . they are not as smart as you are. After all, as I said to one of them, "I've been in the business forty years, my dear, you know. If you . . . you make mistakes, of course, you do. You're . . . you're just out of school." So they aren't going to be as good or . . . as you or as brilliant as they . . . you would ideally like them to be, but you can't help liking every one of them, see. Even the . . . the . . . the mistakes, the worst of them, you must have a little sympathy for because they . . . they . . . they're a little . . . they're in a little bit over their head but they're . . . they've all got good hearts, they all mean well. So he liked his law clerks very much, and it showed, and therefore, I think they liked him. There were stories of judges who didn't treat their law clerks well. Douglas was supposed to be nasty and mean to his law clerks: ignore them, sarcasm, hard work, unreasonable demands. But not Stanley Reed. He never said something like, you know, "I'd like to know about this by tomorrow morning," or something like that, which is the boss' way of saying, "Work all night if necessary." Okay. GILSON: Okay. Oh, one more thing. How did those law clerk dinners every year come about? Did it just sort of develop from . . . from the first clerk on? SCHWARTZ: I'm not sure how they began. You know, the . . . the senior law clerk was Harold Leventhal, who was a judge on the Circuit Court for the District of Columbia. He died a year ago. Other of the law clerks will tell you how they began. You will be talking to [Bennett] Boskey and [John] Sapienza. I know that they didn't exist in the year I worked for him. I think then he used to invite law clerks to his house. I remember there was a lovely party at which there were several of us there, and I remember one came in uniform, Harold Leventhal. And then I think the parties may have gotten too big for his house, you see. Too many people. So we held them outside, and Leventhal was . . . as senior law clerk, he would convene them and act as master of ceremonies. But they are more or less the custom among judges. Most judges who have had . . . well, I don't know about most. I know that Douglas had such meetings . . . had annuals, Frankfurter's people had such annuals. I think most ju- . . . many judges do, and he did, too. I think they do it out of sentiment or . . . or other less creditable [chuckle] motives. It gets to be, you know . . . I saw signs at some points in these meetings that they are like convivial get-togethers of law clerks in different cities. They mean something for the diners . . . the guests in terms of reciprocal business. But mostly the . . . the . . . the . . . the point is sentiment and honor to the old gentleman. At a certain point we decided that wives should come along. Then it clearly became a social thing and no longer professional. GILSON: Okay. SCHWARTZ: I hope I have . . . GILSON: Thank you very much, Judge. SCHWARTZ: . . . I hope I have . . . [End of Interview] David Schwartz clerked for Justice Reed from 1942 to 1943. He begins his interview by describing Reed's personality and his relationship with his assistants, Helen Gaylord and Gerald Ross. He also comments on Reed's relationships with his clerks and the other justices. Schwartz then discusses Reed's views on the Interstate Commerce Commission railroad reorganization, the Council on Tobacco cooperative, the Securities and Exchange Commission, and the Group Health Administration. The cases that came before the court during Schwartz's clerkship included Jones v. Opelika (which involved Jehovah's Witnesses and the American flag), the American Dental Co. case, and the Texas City explosion case. Schwartz concludes by discussing Reed's political philosophy and views on the role of the Supreme Court. Kentucky Politics

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