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Interview with Roderick M. Hills, October 11, 1982

1982-10-11 Interview with Roderick M. Hills, October 11, 1982 Reed001:1982OH135Reed17 01:18:17 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 Roderick M. Hills; interviewee Terry L. Birdwhistell; interviewer 1982OH135_Reed17_Hills 1:|2(5)|29(11)|43(10)|66(2)|84(8)|97(14)|124(5)|138(12)|153(3)|172(14)|193(9)|224(3)|253(2)|268(2)|284(12)|303(7)|315(5)|345(7)|361(4)|381(6)|394(10)|410(8)|425(7)|444(2)|457(9)|479(2)|512(16)|524(6)|539(8)|560(7)|578(8)|593(7)|615(8)|645(13)|657(1)|670(13)|696(7)|706(6)|717(5)|728(1)|748(4)|766(5)|783(1)|803(14)|816(15)|831(5)|847(11)|865(12)|887(14)|912(5)|928(5)|939(4)|953(9)|969(5)|986(14)|1011(2)|1042(8)|1082(1)|1100(8)|1116(10)|1131(11)|1144(12)|1155(13)|1173(12)|1186(8)|1207(9)|1227(5)|1243(14)|1258(9)|1278(11)|1296(11)|1317(10)|1342(4)|1366(1)|1379(16)|1399(6)|1413(2) audiotrans SFReed reed001:interview BIRDWHISTELL: We'll just begin then, and any time you need to stop, I'll just push the pause button, and we can . . . we can stop without any interruption. I thought we would begin by having you recount the circumstances whereby you became a . . . a clerk to Justice [Stanley] Reed, [and] how that came about. HILLS: I had come back to interview at one of the large law firms in Washington, D.C.: Covington and Burling. It was an unusual event in 1954 because up to that date, to my knowledge, the Washington firms [and] the New York firms had not had the occasion to interview at Stanford University, my school. It happened that Donald Hiss, who was the hiring partner at Covington, was stopping by Stanford to see an old friend of his from the State Department who happened to be dean of the Stanford Law School, Carl Spaeth. During the course of the conversation, I believe the dean, Carl Spaeth, convinced Mr. Hiss that it would be appropriate for him to interview somebody from the Stanford Law School. [chuckle--Birdwhistell] And by some happenstance I was available and I met with Mr. Hiss, during the course of which he offered me a trip back at Christmastime to interview [with] the firm. At the time, the school had notified me that I had been selected for competition to become the law clerk to Justice [William] Douglas. Tradition had it over those years that a man by the name of Mr. Sparrow, I believe, who was a lawyer in San Francisco, would select for Mr. Douglas his law clerk, and Mr. Douglas had said that, unlike all the other justices on the Supreme Court, he would choose his clerk from the West Coast. In those days it was not thought possible to clerk for anybody other than Mr. Douglas and, with only one exception, which was a happenstance relating to Justice [William] Rehnquist, no other law clerk had . . . no other Stanford graduate had clerked for anyone else. Justice Rehnquist had clerked for [Robert] Jackson, and my understanding is that that stemmed from the fact that Justice Jackson had spent a year teaching at Stanford Law School. And as a tribute to . . . both to Justice Rehnquist, who was a . . . a brilliant student, as well as to the law school, he took a clerk back from Stanford to . . . to honor his relationship there. Now, that's . . . that's hearsay. I believe that's what happened, but I don't know of my own knowledge. In any event, I went back to Washington armed with a notion that I had a chance to be a Douglas clerk, and with no other thought of clerking. But when I was at Covington and Burling, several of the lawyers there encouraged me to seek some other clerkship. It was not thought, in those days, that clerking for Justice Douglas was the most attractive of the clerkships. He tended to use his law clerks more as . . . as research tools rather than as associates. And it was thought, at least in the Washington circles, that one should try to clerk for somebody else. I must say the matter was ambivalent to me because clerking for anyone was such an extraordinary idea that . . . BIRDWHISTELL: That you really couldn't . . . HILLS: . . . that . . . BIRDWHISTELL: . . . pass up the . . . HILLS: . . . it . . . it . . . even . . . even as I look back on it, it . . . it strikes me as extraordinary that I would have even contemplated to . . . anything other than the fact that I was in a competition for Justice Douglas. In any event, after a series of discussions with par- . . . partners, partners and lawyers in the law firm, including John Loder Bryan and one brief session with Mr. Acheson--Dean Acheson--who had clerked for [Oliver Wendell] Holmes. I had an occasion to meet with John Sapienza and with a man by the name of Robert Randall, who was an associate of Mr. Sapienza, who was a senior partner in the law firm at that time, I believe, or at least certainly one of the more senior people. [He] had found his experience with Justice Reed very enri- . . . enriching. And Mr. Randall, who had only recently clerked, perhaps the prior year, for Mr. Reed, was particularly anxious that I clerk for Justice Reed or seek his clerkship. After a long discussions with several people from Covington, I found myself, which was not common to my . . . my sense of self-confidence in those days, picking up the telephone and calling Justice Reed's chambers at the Supreme Court and asking for his chambers and having Miss Gaylord--Helen Gaylord--who was his secretary to answer the phone. BIRDWHISTELL: Right. HILLS: I simply stated that my name was Roderick Hills and that I would like to apply for a clerkship. There was a bit of a pause on the other end [chuckle--Birdwhistell] and kind of a giggle, and Miss Gaylord said, "Well, nobody's ever tried that before." [laughter-- Birdwhistell] She said, "Do you think you can have a proper reference from your law school?" and I . . . I said I thought I could since I had been nominated for a different judge. In any event, rather than being carried down to the Court on the shoulders of Mr. Acheson, I found myself wistfully strolling up the steps and . . . and meeting with Justice Reed. And Miss Gaylord had suggested that I might want to come, I believe the hour was about three-thirty, and the reason was that Mr. . . . the justice took a nap each afternoon, and she thought probably the best time for me to meet him was just as he arose from his nap. [chuckle--Birdwhistell] And I think, in reflection, her comment was that he might be less inquisitive about how I got there if I showed up at that particular time. [laughter--Birdwhistell] I had a very pleasant discussion with him. It lasted in . . . as I recall, well . . . well past an hour. And I recall perhaps more than any other event of my life with Mr. Reed . . . with Justice Reed that at the end of the meeting, this man who was above all else kindly, could not re- . . . recall who it was that had referred me to him, and he was very anxious to pay his respects to that person and thank him for sending me in. And fortunately, just at that moment, Miss Gaylord came in and said that Justice [Felix] Frankfurter wished to see me, which came as a great surprise to me, of course. BIRDWHISTELL: I [laughing] would . . . HILLS: And . . . BIRDWHISTELL: . . . just out of the blue like that, is . . . HILLS: . . . and his . . . BIRDWHISTELL: . . . it's amazing. HILLS: . . . his messenger was out in the hall waiting to whisk me off, and [chuckle--Birdwhistell] since I knew one of my professors at . . . at Stanford did know Justice Reed, I said, "I will tell Professor Neal," Phil Neal, who later became dean of the Chicago Law School, "that you sent his best." I thought at the time that was a bit devious of me because Professor Neal, of course, had no idea at all that I was seeing [chuckle--Birdwhistell] Justice Reed, and I only hoped that I could cover my traces later. In any event, I went down to see Justice Frankfurter, quite . . . quite astonished that the esteemed gentleman would even know of my existence, and I found Mr. Hiss there was . . . was regaling Justice Frankfurter with the fact that I'd been a bartender at Stanford, and [chuckle--Birdwhistell] Frankfurter thought that the one thing that Stanley Reed might need was a bartender from California to . . . to help with his opinions. And apparently to some degree Justice Frankfurter was an ally, thinking me to be a disciple of Phillip Neal--Phil Neal--who was a great friend of Frankfurter. In any event, some months went by . . . weeks went by. Unbeknownst to me, during the time Stanley Reed was considering retirement. He was approaching his seventieth birthday, and he wasn't sure that he wa- . . . wished to spend another year on the Court. And so, as weeks went by, Mr. Randall and others at Covington kept telling me that I was in the lead for receiving the clerkship, and then later told me that it was possible the justice wouldn't . . . would retire, and therefore he wouldn't need a clerk. But, in any event, I shouldn't worry about that because their judgment was that he would not retire, and so I held onto the hope. Some weeks went by before the law school became impatient and said to me that I would really have to choose. They could not . . . they were perfectly happy to proceed with the Douglas nomination, but my . . . the time for an interview with Mr. Sparrow had come up, and if I were going to seriously pursue the Reed clerkship, they would withdraw my nomination for the Douglas clerkship. I remember that as a moment of considerable anxiety because the . . . the notion was a feel that it was Stanford's cha- . . . chance for a . . . a Douglas clerkship, and that I might very well be giving off . . . up a bird in the hand for one in the bush. In any event, for some reasons that . . . that I, again, could not possibly justify in reflection, I . . . I chose to give up the Douglas clerkship in the hopes of the Reed clerkship. I went through several weeks of additional agony. My . . . my girlfriend in those days, who I just met, who later became my wife, was a senior at Stanford, and we thought that many . . . and she was planning to go to Yale Law School. And we had long hours worried about whether I'd made the right decision or not. But then it came to pass that one of the professors at the law school, Harry Wellington, who's now dean of the Yale Law School, had caused me to apply for a Fulbright [Fellowship] to the London School of Economics. Harry and I both were interested in labor law and the subject was comparative labor law. I think it was about April that the Fulbright clerkship . . . the Fulbright nomination came through, and I was a . . . I was awarded a Fulbright scholarship. And the time came to decide whether or not I would take it, or whether I would continue [chuckle--Birdwhistell] the Reed clerkship. That was particularly agonizing because the idea of going to England was a . . . was a very great . . . great attraction to me. BIRDWHISTELL: Sure. Sure. HILLS: And again, I let the bird in the hand go, [chuckle--Birdwhistell] relying upon the events that . . . there was a bit of a great apprehension thereafter, but within a few weeks thereafter the justice confirmed my request. I think it was in May, as I recall, and I had a very nice telephone call from him confirming the rumor that I had heard that he was going to ask me, and I was pleased as Sally Forth to be his law clerk. BIRDWHISTELL: That certainly is a little different than most people enter . . . enter as law clerks. A little different circumstance. HILLS: Well, it was . . . it was . . . as I say, it was a happenstance. It . . . the fact that Mr. Hiss interviewed me had nothing to do with the fact that he heard me; it just . . . it just happened that way. It . . . it was interesting that it opened the . . . it opened the way. I never did work for Covington, although I've had a long and a grand relationship with many of the partners. And, in fact, I lived with a couple of the young associates the following year, but it . . . the very next class at Stanford consisted of several really quite remarkable young lawyers, one being Bill Baxter, who's now the Assistant Attorney General in charge of the Anti-Trust Division. Bill was interviewed, and Bill then did work for Covington for a while. And then the . . . a gentleman by the name of Bill Allen, who was in the class behind me at Stanford, also went to work . . . did go to work for Covington and is still there and is one of the major partners of the firm. So it was a long and pleasant recollection, and it led to a long relationship with those people. BIRDWHISTELL: You know, it's interesting about the retirement issue, because Reed was one of those people, back in the early days, who had agreed with the . . . with the retirement at seventy years old, I think. Wasn't it that . . . HILLS: Well, it . . . BIRDWHISTELL: . . . that was . . . HILLS: . . . it's . . . BIRDWHISTELL: . . . an issue that came up and . . . HILLS: . . . everyone has their own recollection of that event. Tommy . . . Tom Corcoran, who I did not know as Tommy, but who everybody affectionately called . . . BIRDWHISTELL: Right. HILLS: . . . "Tommy Cork," recalled it somewhat differently. When the justice was Solicitor General and the court-packing fight was on the front pages of all the headlines, apparently some reporter had asked Justice Reed what he thought about the "Nine Old Men" on the Court. The justice, forever the kind man, and obviously the pr- . . . principal lawyer before the Court as Solicitor General, would not wish to say anything unkind about the Court. [chuckle--Birdwhistell] On the other hand, he was Franklin Roosevelt's appointee and . . . BIRDWHISTELL: Right. HILLS: . . . felt an obligation not to do anything to affect the president, so his comment at the time, which to my knowledge nobody other than the justice recalled, was that, "Well, when a man does reach the age of seventy, he should consider, perhaps, the possibility of retirement." [chuckle--Birdwhistell] And . . . BIRDWHISTELL: Perfect. [laughing] HILLS: . . . as I say, it in . . . in 1955 and `56, I think nobody in the world remembered that comment except the justice. BIRDWHISTELL: Yeah. HILLS: But he . . . but he certainly felt an obligation to act in some way consistent with that comment. BIRDWHISTELL: Did you . . . did you learn then what factors convinced him to stay on as you got to know him better? HILLS: Well, I think, in the first place, he did not reach the age of seventy until the October term, 1955, had started. BIRDWHISTELL: I see. HILLS: And I joined him in August or at late July of `55. And so the issue, I think, in his mind, was having committed to retire at the seventy, he had the choice of either retiring before the term started or at the end of the term or on the day of his birthday. [chuckle- -Birdwhistell] And so, at least as the year started, he had convinced himself that he would not retire until his birthday. And, indeed, I think that his . . . in the back of his mind was the fact that perhaps he would retire at the end of the term. Although it's quite clear to me . . . it was clear to me then that he hadn't made up his mind to do so. In fact, only a few months into the term, he came to me and said that he was continuing to contemplate the possibility [of] retirement and asked if I would be so good as to commit to stay with him should he choose to retire at the end of the term and if he was not quite finished with his work. In other words, I think his feeling was that he would be working to the summer . . . through the summer on some decisions and should he not . . . should he not leave at the end of the summer, and he . . . would I stay for them for the few weeks necessary to wrap up . . . wrap up his work. And I think what he was thinking of is . . . is perhaps retiring before this . . . the Court sat again in Oct- . . . for the October term, 1956. In any event, we talked not at all about that during the year until the following June. But . . . yeah, and the . . . and the story of his eventual retirement is . . . is . . . is . . . is just as interesting. But, as I say, I . . . I think it . . . I think he simply decided that, well, he probably would want to consider it again, but he wasn't going to retire quite then. BIRDWHISTELL: Umhmm. Umhmm. In your talk last year at . . . at the University [of Kentucky], I think you gave a . . . a very good outline of the man's personality and . . . and character. I wanted to take you back, though, to that . . . maybe that first meeting you had with him and the first few weeks that you were working with him, what your initial impressions were, and then were they the same as you . . . as were formed over the months that you were with him? Or did they change somewhat, I guess? HILLS: It's very hard to think back in terms of, really, one's first experiences as a lawyer. I'm not sure what I expected. BIRDWHISTELL: Yeah. Yeah, it's a . . . HILLS: But I . . . and particularly when one comes off the experience of working on a law review where the personal relationship between an editor of the law review, as I was, and . . . a comment editor of the law review, and . . . and one . . . the people that worked with you. It's a very intense relationship in . . . in which one tries to get out a piece of written work, and transferring the . . . the . . . the arrogance, if you will, of a young lawyer who is used to being comment editor and to some extent bullying the people in the year behind him [chuckle--Birdwhistell] to convincing them that his analysis rather than theirs is correct, and to . . . into being in the hallowed halls of the Supreme Court to use the same skills with a justice of the Supreme Court. It was certainly true that Justice Reed encouraged the same intensity of relationship, obviously with a different relationship, but he . . . but the intensity of his interest in the scholarship with which an opinion was . . . was issued was . . . was every bit as great as the intensity that existed in the law review. And I was . . . I was impressed by his . . . I was impressed by his desire to do things, to write opinions and to take positions that were consistent with those of his law clerk. In those days, the justices had two law clerks. And Mr. [Julian] Burke and I, who shared the clerkship in my year, were equally impressed by the justice's strong feeling that he wanted our approval and our agreement as to what he did. I must say that having said that, there were some streaks in his . . . in his constitutional approach, or in his idea of the law, that were impenetrable barriers to reaching agreement on certain subjects. [chuckle--Birdwhistell] So that as kindly and as intense as he was on in seeking our agreement, there was some areas in which it was quite clear one could not . . . one could not budge him. He was very much, as I think I said in those comments, his own man. BIRDWHISTELL: Right. And that . . . that stubbornness that was reflected in his . . . not in just being stubborn at random, but in something that he certainly . . . HILLS: No, they were . . . they were . . . BIRDWHISTELL: . . . had deep convictions. HILLS: . . . all deeply held convictions. BIRDWHISTELL: Right. HILLS: These weren't . . . these weren't convictions lightly arrived at. BIRDWHISTELL: Right. HILLS: However, that . . . the w- . . . the more one examined them, the more deeply his convictions became, so . . . [chuckle- -Birdwhistell] The other . . . the other aspect of st- . . . of the justice was his . . . his sense of humor about . . . about himself. There's an anecdote that occurred many years later that brought that to mind. But he would often chide himself on his own fallibility. He loved to tell stories about the advice he gave people and how . . . how wrong that advice always turned out to be. [chuckle--Birdwhistell] He recalls the time he counseled his family on selling stock in a machine shop that had been acquired. He . . . he insisted that they sell it at a certain time to re- . . . realize a profit. The stock later turned out to be General Motors and [chuckle- -Birdwhistell] would have made him . . . made him and his family rich several times over. He also loved to talk about his certainty that the one town in the country, or the world perhaps, that one should make their fortune would be New Orleans. He felt very strongly that . . . looking at the beginning of the twentieth century, that as one saw the enormous traffic on the river that em- . . . emptied into the Gulf and the . . . the commerce that would come from the south and the . . . the relative i- . . . lack of development that one, one clearly should ignore New York and Chicago and the . . . and the fledgling towns on the West Coast because clearly the great opportunities of the future would . . . would be New Orleans. And, as he looked at the world in 1955, it was clear to him that he'd missed that by some margin. BIRDWHISTELL: That's [chuckling] interesting. HILLS: He loved to talk about his own decisions about his own life, about how he was certain to go to Maysville, Kentucky and make his life as a small-time lawyer, stand for election to the state legislature and . . . and make his mark. He became, as you perhaps know, a lawyer for a railroad and for a farm cooperative. Stood for election to the Assembly, I think it is, in Kentucky . . . BIRDWHISTELL: Umhmm. HILLS: . . . and had the prospect of being Speaker of the Assembly at a remarkable young age, when a political reverse of his par- . . . reversal of his party caused him not even to be re-elected. BIRDWHISTELL: Yeah. HILLS: And he thought for sure his chance in public life was gone forever. Interesting how life turns back. Let me . . . some years later, after I left the Court and he was still serving on the Court of Appeals of the District of Columbia, I came back to see him, and he was working with his then law clerk, whose name escapes me, on an opinion invol- . . . on an opinion involving collateral estoppel. And I think I . . . my recollection of . . . this must have been five or six years after he was . . . left the Court. He . . . he was writing an opinion for the Court of Appeals, and it was necessary in that opinion to interpret a decision that he had written when he was a justice. The case was Partmar versus Paramount [Partmar Corp. v. Paramount Pictures Theatres Corp.]. It was the . . . one of the anti-trust cases involving the movie industry. In fact, it was the focal point of the movie industry, the case which caused many of the motion picture companies to lose their . . . their distribution system, their block booking, and various of the practices that were deemed to be violation of the anti-trust laws. In that i- . . . in that case, the question of whether a . . . a s- . . . a past decision should estoppel the issue from being discussed again, or litigated again, came up. And he was writing an opinion in the Court of Appeals, and his law clerk was . . . was trying to convince him that the opinion he was writing was inconsistent with the decision he had written while he was a justice. [chuckle--Birdwhistell] He has always liked to bemoan the stubbornness of his law clerks, and there seemed to me to be no question but that he was going to . . . going to somehow prevail. But he asked me what I thought of the . . . of the . . . his law clerk's analysis. And I . . . I perce- . . . I happen to know an awful lot about that decision, although it was written before I came to the Court, and we had a long argument, and I cited a law review article in the Stanford Law Review which had . . . had dealt with the issue. And the justice said, with some obvious real irritation, well, his law clerk had already brought that article to his attention, and that that article had been critical of the Court's decision. And he said the . . . he . . . he said to me that he was not disposed to accept the article. That he thought what he was about to do now was consistent with the opinion he'd written before. And I said, with some feeling, that I thought it was far more consistent with the law review article than he had . . . than the opinion. And he said, "Well, what makes you such an expert?" And I said, well, I had written the law review article. [chuckle--Birdwhistell] And he paused. A large smile came over his face and he said, "Did I know that when I hired you as a clerk?" And I said fortunately he had not inquired into that history. BIRDWHISTELL: That's interesting. HILLS: But he . . . but he was a [chuckle--Birdwhistell] . . . he was very quick and very alert to all those things. I might pass on to the subject of his eventual retirement. When I did leave in June, curiously enough, I left to join the firm that I am now with again, a firm called Latham and Watkins. And as I left, he said, did I recall my promise to him? And I said I did. And he said, "Well, go ho- . . . you . . ." he said, "Why don't you go home and take the bar examination in California. I don't know what I'm going to do. But if I should need you in the fall . . ." My co-clerk, Julian Burke, had accepted a job, and it was necessary that he go back to the practice of law in September. And he said, if necessary would I be willing to come back for four or five weeks, presumably between September 1st and October 15th, for the purpose of cleaning up his works. And I said, well, I'd be . . . I'd be, of course, pleased to do that. During the summer, he called me and . . . and accepted my earlier promise, and . . . and so I told my firm that I would be leaving for a few more weeks. Because it was only for about five or six weeks, I did not choose to pick up residence with the people that I was with before, because they needed a longer commitment. So I called my college roommate, a fellow by the name of Gary Kirkorian, who was then playing quarterback for the Baltimore Colts, and he had a basement flat in . . . in Washington, and I moved in with him with a . . . one suitcase and [chuckle--Birdwhistell] . . . and actually had to put up a cot in the boiler room, because the apartment only had one large room in it. When football season was over in December and the justice had not yet retired, I was without a home [chuckle--Birdwhistell] and went to the justice and talked about the question of his decision, and he said, "Well, it's pretty soon now." In any event, Mr. Burling, the then [and] still marvelous senior partner, long retired, I guess he was in his seventies--Mr. Burling, Sr.,--had heard of my lack of home, and he put me up for the last quote "two weeks," which lasted until March 15th [chuckle--Birdwhistell], until the justice finally decided. Well, I say changed my life a bit because I, for some reason . . . for various reasons, I did not . . . I did not have go back to my law firm then. In fact, did come pa- . . . pass until I joined Latham, Watkins again until four years again. So it was a . . . BIRDWHISTELL: Wow. HILLS: . . . was a long vacation. BIRDWHISTELL: Umhmm. That's interesting. I suppose you had studied . . . or become familiar with Justice Reed's role as Solicitor General and other . . . other . . . in his other positions before becoming a justice, from your . . . your studies as a . . . as a law student, and probably looked them over before you even went to talk with him, I suppose. HILLS: No, I didn't, of course, because I had no idea I was going to see him until the day before I called for the appointment. BIRDWHISTELL: That's [chuckling] right. That's right. HILLS: So, I must say, I learned about the justice as I . . . as I lived with him over the years . . . over the year and a half . . . year and ten months I was with him. BIRDWHISTELL: Umhmm. Did he talk much about his time as Solicitor General? Did he look back upon that very often and . . . HILLS: Well, of . . . BIRDWHISTELL: . . . reflect on . . . HILLS: . . . course, he always liked to joke about the fact that he had lost more cases in a row than any other Solicitor General in history. [chuckle--Birdwhistell] Whether that was true or not, I don't know, but he certainly like to take credit for it. [chuckle-- Birdwhistell] He was very chagrined, but he always told with relish the time that he passed out in the Court, a story that everybody is we- . . . well aware of. BIRDWHISTELL: Right. HILLS: He spoke with enormous affection, as he did about . . . as he did all of his life, with all the people that he . . . were with him. People like Paul Freund and others that served with him in various parts of government. BIRDWHISTELL: Right. HILLS: He . . . he . . . he just showed, all of his life, that he . . . a marvelous characteristic of . . . of appreciation for, really, all of his law clerks. He . . . he almost never said anything disparaging about it. As a matter of fact, the one thing that occurred to me as I was talking about Julian Burke. The justice was having . . . it was . . . it was a civil rights case of sorts, and Julian was having a . . . an unusually difficult time with the justice because he felt the justice was on the wrong track on a case. And they'd been going at it quite heavily for a couple of days on the matter. The door to the chamber . . . to his chambers opened, and Julian came in exasperated by his inability to convince the justice to the contrary. Not more than a few minutes went by, and the justice called me into his chambers. I came in. The justice was obviously disturbed by his discussion with Julian. And looked at me with some feeling and . . . and even some emotion. He was obviously concerned that Julian did not understand the finer points involved, and . . . and he said to me, with great concern . . . asked me with great concern whether I was aware of the fact that Julian had not been a Phi Beta Kappa in college. The . . . the . . . the tone of his voice really led him to believe . . . led me to believe that what he was saying is that the reason he was having this trouble with Julian is that his scholarship was at fault. He had not done sufficiently good work in college to understand the finer constitutional points involved, and he was actually saying how . . . saying to me, as a rhetorical question, how could it have happened that he chose a law clerk that was not Phi Beta? He commented that to . . . to . . . never before he had . . . had he had a law clerk that wasn't Phi Beta. And I . . . and I looked at him with a great deal of concern, and finally he blurted out before I left the chambers that he had two of them who had not been Phi Beta [chuckle--Birdwhistell], and I think he decided he was within a den of Communists as the . . . [chuckle] as I left . . . left the office. That he . . . he was obviously at sea without heavy moorings. But he was a k- . . . he was, as I've said so much, he was such a kindly man that thereafter I'm sure he felt very . . . very sad that he had commented upon our own intellectual capacity in such a way. BIRDWHISTELL: That does seem a little out of character for the type of relationship that you had with him, it seems. That he would . . . he must have been quite upset at that point. [chuckle] HILLS: Well, it was . . . it was . . . that was his life. You know, you . . . he took his law clerks from Harvard and Yale, [and] Columbia perhaps, and of course they were all Phi Betas. BIRDWHISTELL: You know, but it seems to me in . . . in . . . in talking to other clerks and listening to interviews with the other clerks, that . . . that, in some way, you had a . . . a somewhat of a special relationship with him in terms of how you got to know him, the rapport you . . . you established with him. What . . . why do you think that's the case? HILLS: Well, I served for a longer period, for one thing. There'd been a happenstance that I stayed an extra ten months. BIRDWHISTELL: But do you think you understood him, maybe, a little better, or he understood . . . he felt more comfortable with you in some ways? HILLS: Oh, I don't think so. I think he had a very close relationship with a number of clerks, but it may be that he was bemused, perhaps, by the Westerner because [chuckle--Birdwhistell] every once in a while I would . . . I would go visit my then fiancee at . . . at Yale, and come Friday night, if I was driving to New Haven to see her, I . . . he would notice a degree of impatience in me and . . . late in the afternoon on Friday to try to leave. [chuckle--Birdwhistell] One night I was up quite late, and I don't recall the occasion really, but it was one . . . it was a . . . there was an occasion at the Court. There was a black-tie occasion at the Court, and the justice and Mrs. Reed were going to the occasion . . . going to the event, and they came back in about, I suppose, twelve o'clock, and I was still in my office working. And he came in to express sadness that I was working so late and basically to say, you know, you really should go home. And somehow I had to blurt out the fact that I was hoping to have all this work done so that I could leave early on Friday morning to go to New Haven. [chuckle--Birdwhistell] There was a flash of impatience in it, and . . . and . . . and then he told a story about how Oliver Wendell Holmes had upbraided one his young men who was putting his romantic life before his Court life, and . . . and he regaled how Oliver Wendell Holmes had e- . . . finished that conversation by saying, "Oh, to be young again." [chuckle-- Birdwhistell] And the justice said, "Well, I'll try to be done with you." And he . . . he did allow me to leave by noon the next day. BIRDWHISTELL: That's a . . . that's great. HILLS: We did have a nice relationship. I . . . he'd meant a lot to my life, obviously, because I had wanted to go to Harvard Law School after Stanford, simply because I'd never been east of Ontario, California. And he really was able to give me the . . . I didn't think I could afford to go to Harvard. Didn't have the kinds of jobs and scholarships that I could have at Stanford. And so the fact that I went to Harvard was a . . . was . . . I mean, went to St- . . . went to . . . to the Court and . . . and worked with so many outstanding young men gave me some of the ambience of going to an East Coast law school. So it was . . . I . . . I know he knew how much I appreciated it. That may have had something to do with it. BIRDWHISTELL: Umhmm. That's good. HILLS: Also it was . . . just happened that the idea of the book fund that's at University of Kentucky came up, and it was my year to get the annual gift and propose it to the other law clerks, and . . . and so I had occasion to see him more regularly, perhaps, than other clerks that weren't in Washington. BIRDWHISTELL: Umhmm. You know, I was just getting ready to . . . to . . . to ask you about that. In your . . . in your talk last year, you mentioned that when you brought this idea up to Reed, that he said that he wanted the books to go to . . . to Kentucky, because they would understand him better there. HILLS: They would appreciate him. BIRDWHISTELL: They would appreciate him better. HILLS: He said, "There are ever so many more famous people at Columbia and Yale, and what would they do with one more Supreme Court justice's effects or library?" And he felt that he wanted to return to his roots, in a sense. BIRDWHISTELL: Umhmm. Yeah. But, I suppose, in some ways as . . . as, I guess, in returning to his roots, he did identify with the state, and of course he still owned the land in . . . in Maysville and . . . and the farm . . . HILLS: He was . . . BIRDWHISTELL: . . . operation. HILLS: . . . he was very much a man of Kentucky. He was . . . he saw everything at the Court through the eyes of his friends and associates [and] his life. He saw the impact of the Court through the eyes of what it would mean to the workings of a state legislature, to the party system of . . . of . . . of Kentucky. I was not there during Brown versus Board of Education [of Topeka, Kansas], but I think through all of his life he was concerned that that case have a constructive effect on society. The one in-depth conversation I had with him on the subject had to do with the question that . . . of whether or not within fifty years the decision would be implemented, that the spirit could be implemented, and hi- . . . his worry that it wouldn't be. I . . . I can't say that it was a . . . it was a desire that equality would be achieved in fifty years but, rather, a . . . a . . . a desire that . . . that the social unrest that might be engendered by going down that path could be rectified. He very much doubted the ability of the Court to have the impact upon society that was assumed by the decision in Brown versus Board of Education. I think, although it's hard for me to know, that his . . . you know, his feelings were entirely consistent with the outcome of Brown versus Board of Education. That he did feel the injustice of separate schools, but he certainly deeply felt that it probably wasn't the role of the Court . . . BIRDWHISTELL: That's . . . HILLS: . . . to right that wrong. That this was a matter for the legislature. And that for the Court to venture into such things would . . . would prove unwieldy. So his . . . his hope and prayer was that fifty years would see the end of it. He certainly didn't think my grandchildren would during their active y- . . . my children, maybe my grandchildren, his comment was certainly my children would not see the end of the social un- . . . unrest that the Court decision would . . . would bring, but he had hopes that my grandchildren might reap its benefits. BIRDWHISTELL: Was he concerned about that particular case also, or did . . . did he not feel like that was the case that should . . . should bring that decision about by the Court? Was . . . HILLS: I . . . I . . . since I wasn't there during that case, and I . . . I really had no knowledge of . . . BIRDWHISTELL: Yeah. HILLS: . . . what mental anguish he went through in the decision. I've read about . . . a bit about it, and I've talked to some of the clerks that were there at that time. BIRDWHISTELL: Yeah. HILLS: But from my own knowledge, it was . . . his view was much broader than that decision. It was . . . it was a . . . it was a great concern about the . . . about the role of the Court. BIRDWHISTELL: Umhmm. That sort of permeates everything he did on the Court. The . . . his attitude about what the role of the Court was in society, and the fact of how the system would work very methodically, it seems like, in . . . in bringing about the decisions. I was wanting to ask you about his relationship with Chief Justice [Earl] Warren. How did you perceive that relationship while you were there? HILLS: [Long pause] He certainly respected the chief justice. This, of course, was very early in the . . . in Earl Warren's stewardship. He respected him as a man and respected him for what he had done as governor. He certainly wasn't comfortable with the chief justice as chief. He . . . he had served under [Harlan] Stone. To him, Stone was the chief. If you ever heard him talk about "the chief" in one way, you know he was not talking about Earl Warren. [chuckle-- Birdwhistell] He was concerned about the Court and about the Court's capacity to break frontiers that were not for the Court to break. He felt very much the fact that he was a swing person on the Court. He felt that responsibility. I remember one time . . . one Monday that I came in early, and he'd asked me if I had been playing tennis with Justice [Hugo] Black. Two of the . . . I had lived for a while with one of Justice Black's law clerks and . . . and somehow had gotten to know the justice, so that occasionally Justice Black invited me to come to his home in . . . in Alexandria to play tennis on Sunday afternoon with . . . with his daughter and with himself and once . . . I think, twice, with his son. And often he would ask me upstairs for some bourbon and branch and . . . and we'd go out to dinner in Alexandria. I think it happened a handful of times, perhaps. Of course, Justice Black was warm and engaging and an enormous personality. The justice clearly admired Hugo Black as a friend, but was really astonished by Hugo Black in terms of his legal analysis. He had . . . he really, I think, although others made . . . others may have a different view, I think he saw Justice Black as being the influential member of the Court. Not Frankfurter, not Douglas, . . . BIRDWHISTELL: Hmm! HILLS: . . . but Black. And . . . BIRDWHISTELL: That's interesting. HILLS: . . . he worried about the chief's susceptibility to . . . to the arguments by Black, Black being a pomp- . . . populist and a colloquial man, a man that could talk in homey terms. We were talking about the Court and about Black, and the justice was obviously probing my feelings about Justice Black. With the normal desire of a young man to be diplomatic, [chuckle--Birdwhistell] I guess I . . . I catered to his notion that Justice Black's analysis of a case here and there wasn't entirely sound. [chuckle--Birdwhistell] And I must say that my . . . my . . . my views toward . . . to scholarship . . . judicial scholarship certainly tended more to the Frankfurter in . . . view of the Court than the Black view of the Court, not withstanding an enormous respect for Justice Black. And I made some fatuous comment to the wo- . . . sense that isn't it marvelous that we lived in a country where the Supreme Court could be represented. I mean, whether or not we might agree with Justice Black's views, wasn't it grand that we had a man of his capacity representing that view on the Court. And the justice looked at me with absolute . . . was absolutely aghast, and said it with such honesty, that how could I think that Justice Black's views should be represented anyplace? [laughter--Birdwhistell] BIRDWHISTELL: Oh! So what did you do after that, just [chuckle] . . . ? HILLS: My tennis games became more anonymous [chuckle--Birdwhistell] in the future. But it's really hard for me to say what he thought about the chief. I think he felt the chief was . . . the chief--I'm speaking of Justice Earl Warren-- . . . BIRDWHISTELL: Right. Right. HILLS: . . . was honest . . . was an honest administrator in the manner in which he controlled the workflow of the Court. I know there was one decision in which the justice allowed me to play a bit of a greater role than normal in the . . . in the drafting of the opinion. It was . . . oh, isn't that . . . how could I ever forget the name of that case? It was an N.L.R.B. [National Labor Relations Board] case involving an employee parking lot. I want to say N.L.R.B. versus Borg-Warner, but that isn't it. It's a . . . it's a fairly well known case. [Long pause] Hmm! Well, I'll think about it in a little bit. BIRDWHISTELL: Let me turn this over while you . . . [End of Tape 1, Side 1] [Beginning of Tape 1, Side 2] BIRDWHISTELL: . . . this, if you . . . if you can . . . HILLS: Well, I know it as well as I know my own name, but I can't [chuckle--Birdwhistell] just say it. BIRDWHISTELL: Sometimes those are . . . are . . . HILLS: But the question involved the right of union organizers to come onto the parking lot of the . . . of this factory and pass out literature on the parking lot for union organization. And the Court was disposed by a narrow majority to say that union organizers should not have that access to company parking lots. And we went through an analysis of company towns and of . . . of shopping centers in those days, and various other . . . various other aspects of it, and . . . and the . . . the Court had voted in chambers to . . . to reverse the N.L.R.B. and to say that these union organizers did not have . . . I'm . . . frankly, I can't recall what the status of . . . whether . . . whether we were reversing the Court of Appeals or affirming it. But in any event, a bare majority of the Court had concluded that . . . that the union organizers would not have the right, under these circumstances, to come onto the company parking lot, and it . . . and it came to us to write this opinion. He had expressed the desire to the chief to write labor law opinions on occasion, and that also was due to my request . . . my interest in labor law. I was . . . I fashioned myself a labor expert of sorts and was interested in the subject of labor law, so that he proudly came back and . . . and said that the chief had voted against him, but he'd assigned the case properly [chuckle--Birdwhistell], and we had the opinion. We worked a long time on the opinion, and we circulated it several times. And, again, I'm . . . my recollection of this isn't perfect, but I . . . but I believe that it is true that the final opinion had either a unanimous opinion of the Court or the . . . or . . . or that two or three of justices changed their mind, and so that it was almost unanimous if it wasn't entirely. He was very proud of that and very surprised, because the . . . if my recollection is correct, the chief changed his position and . . . and came along with the opinion that we wrote. The opinion we wrote had a sentence in it that the justice didn't like very much, but he let go, and it had . . . the opinion went something like the . . . the right of . . . the right of organization, guaranteed by the labor acts, the Wagner Act and the Taft-Hartley Act, . . . I'm a little uncertain in my own mind whether the Taft-Hartley Act covered this. Yes, it did. But we had . . . we had written this fairly flowery sentence for which I was the . . . I . . . I began the . . . I . . . it was my first draft, and he changed it somewhat, but it was still a little bit bolder than he wanted. But I had commented that I thought that if we could recognize that principle in the opinion, the chief and others might go along with it. And we did indeed state with some firmness that the right of self-organization obviously, to some significant degree, depended upon the right to learn about the benefits of self-organiz- . . . self-organization. And he came in with some astonishment to tell me the chief had bought the [chuckle- -Birdwhistell] . . . had bought that language and was signing the opinion as a result. Wh- . . . which was, again, a . . . a . . . he . . . he meant to respect the chief as a result of that. Another amusing thing occurred in that opinion. The . . . the introduction to the opinion required describing the circumstances by which the organization could occur. And there was a country road, or a road that . . . a . . . a fairly s- . . . a fairly significant road, and one turned off the road directly into the parking lot. And it was . . . the justice thought it necessary to describe the width of the road and . . . and [chuckle--Birdwhistell] the amount of shoulder in the road that one could s- . . . on which one could stand to pass out leaflets as cars came through the gate so one could stand in the public access. And he destribed . . . described it as . . . as the cars turned off into the gate, which stood at cer- . . . a certain amount of feet from the metal of the road. And when I saw the opinion typed, I crossed it out and wrote the word "middle" in. I thought that it was a typographical error. And it went back, and the justice called me into his office and showed me the Oxford English Dictionary that his [chuckle--Birdwhistell] prior clerks had given him, and sure enough, the second or third archaic meaning of "metal" was the hard surface of the road, and he was . . . BIRDWHISTELL: Wow. HILLS: . . . he was simply trying to say that the hard surface of the road was so many feet from the gate, which . . . which said to him, at least, that there was room for a union organizer to stand without fear of injury to thrust a leaflet at the car. Well, I think every justice on the Court sent the opinion back crossing out the word "metal" and writing the word "middle" [chuckle--Birdwhistell] in. And it was left to me to describe the third archaic meaning of the word "metal" to every justice on the Court. Frankfurter was the last to succumb [laughter], but he . . . he finally accepted it, and "metal" survived as the . . . perhaps the last time the word was used in the . . . this country to describe the . . . BIRDWHISTELL: It . . . HILLS: . . . circumstances of . . . BIRDWHISTELL: . . . that's . . . HILLS: . . . the hard surface of a road. BIRDWHISTELL: . . . that's . . . that's very possible, it seems, I would . . . I would think. Hmm. That brings up a point you . . . you said last year. He was very methodical in that, in . . . in this opinion, detail and searching for the right words to describe it. It made the role of the law clerk . . . being a law clerk a little more difficult, I guess, didn't it, in terms of . . . of following through on that . . . HILLS: Well, . . . BIRDWHISTELL: . . . idea? HILLS: . . . one was hostage to his three-by-five cards. [chuckle- -Birdwhistell] And every thought he ever had . . . I . . . I'm always amused when I hear President [Ronald] Reagan's three-by-five cards because I don't know that a day went by that Justice Reed didn't con- . . . confine three or four thoughts or opinions or articles to those three-by-five cards. And no file grew quite as fast as that did. [chuckle--Birdwhistell] And, of course, none of us had the key to its index [chuckle--Birdwhistell], so although he often invited us to use it as a tool for our own research, it was im- . . . at least I never found the key. And often the three-by-five cards would come out, and it would take a long day in the library upstairs to find out what the justice had in his mind. BIRDWHISTELL: Umhmm. Did you adapt that type of procedure to your own work after that? Were you influenced by [chuckling] that? HILLS: No. [chuckle--Birdwhistell] BIRDWHISTELL: Did Justice Reed talk much about Chief Justice [Frederick] Vinson and his relationship with him? Did that come up? HILLS: It really didn't. He . . . he . . . he thoroughly enjoyed, I think, the man--Chief Justice Vinson--but he was noticeably, at least with me, he s- . . . he never spoke of him. BIRDWHISTELL: That's interesting. Their careers paralleled so much from early political days in Kentucky to . . . it . . . working their way through the system here in Washington to end up on the Court. Yet they were very different type of people, I think, it would seem. HILLS: Well, I . . . I . . . I . . . I think, of course, it's clear that Justice Reed was never a political intimate of any president. He was a respected journeyman, I think, but not a political intimate. BIRDWHISTELL: Whereas, of course, Vinson traveled in those circles quite easily, I think . . . political circles. What would you say about the relationship between Frankfurter . . . Justice Frankfurter and . . . and Justice Reed? Mutual respect in some ways, is . . . HILLS: Oh, I think Justice Reed probably found Justice Frankfurter irritating, condescending. There's no doubt that he admired his scholarship, but certainly their . . . their . . . at that stage of their relative lives, their respective lives, he was a close ally of Frankfurter in terms of results. He was e- . . . enormously frustrated by the . . . by the . . . by the logic that Frankfurter used. [chuckle--Birdwhistell] And certainly Justice Frankfurter was, of course, quite fond of using Justice Reed's law clerks as an avenue to the justice's opinions. Frankfurter was quite likely to walk into our chambers . . . the clerks' chambers and discuss issues with us that he never talked to the justice about. I remember I tried to circulate an idea, I think it had to do with the anti-trust case . . . the cellophane case, and I was discussing something way beyond my own capacity. Frankfurter accused me of using him for my intellectual garbage pail. [chuckle--Birdwhistell] And I think often the justice had the same feeling but the justice humored him and [chuckle-- Birdwhistell] . . . Justice Frankfurter humored him and . . . but he had great respect for his scholarship and often wrote an opinion in the hope that it would be admired and followed by Justice Frankfurter. BIRDWHISTELL: I said earlier "mutual respect." Did Frankfurter respect Justice Reed, do you think? HILLS: I think you'd have to ask somebody like Andrew Kaufman, who was a fine professor at Harvard and very sensitive to those kinds of things. I . . . I would hate to think that the . . . that Justice Frankfurter did not admire and respect Justice Reed as a friend. I think Frankfurter was intolerant of the influences that Justice Reed's background had on his opinions. And that doesn't mean he wasn't understanding of him. BIRDWHISTELL: Umhmm. I see. HILLS: But Frankfurter, obviously, admired people that came from a more consistently intellectual background. It's hard for me to say. I . . . I . . . I . . . I, of course, admired Justice Frankfurter enormously. It was a . . . was a great insight and a great privilege to have the chance to talk to him. But, I must say, I also felt some impatience sometimes with the degree to which Frankfurter used his theories and logic of the law, which was certainly more consistent than any logic or theory I had, but sometimes it seemed to get in the way of orderly opinion. BIRDWHISTELL: Umhmm. Well, there were . . . you know, it seems to me, in . . . in looking at the time you were there, what an opportunity, you know, to . . . to be with someone like Justice Reed, and then to be around Justice Black, Frankfurter, Douglas, all these people who were really different types of individuals, but . . . and . . . and all very powerful in their own . . . in their own right. And to . . . to sort of see the interaction between . . . and then, of course, Chief Justice Warren, in his own right, interacting with all of these . . . these types. HILLS: That was . . . it was a fascinating time, and . . . BIRDWHISTELL: I know just reading about it, it [chuckle] . . . it seems fascinating, but to have been there must have really been . . . HILLS: I had a . . . an unusual experience. Justice . . . the chief justice and my mother were the only two people that remembered that I played football for Stanford [laughter--Birdwhistell], and . . . which was very little. But because of that, the chief, who was a little . . . still suspicious of the Eastern effete, would once in a while come talk to me about fishing and football and sports, and so I did have a nice relationship with the chief. BIRDWHISTELL: Yeah. I wondered about that, you know, since . . . both Westerners, and it would seem only natural, I guess, to talk about the experiences from out there. HILLS: It was a nice time, and I . . . you know, you look back on it. I wish I'd made more . . . taken more of an advantage of it, but it was a . . . BIRDWHISTELL: Well, that's . . . HILLS: The one herig- . . . heritage I have from the chief is that he gave me the name of this fishing camp in Idaho. It was a quaint little place in . . . in Driggs, Idaho, and as the years go by, I still take my son . . . I have a little cab- . . . I bought a cabin there since, and . . . built one, I should say. BIRDWHISTELL: Yeah. Huh! HILLS: And I still go back and fish with some of the fine gentlemen from Salt Lake City who used to fish with the chief forty years ago. BIRDWHISTELL: Oh, that must be fun. You mentioned the cellophane case. Is that U.S. versus . . . HILLS: Du Pont. [United States v. E. I. du Pont de Nemours & Co.] BIRDWHISTELL: . . . Du Pont? HILLS: Umhmm. BIRDWHISTELL: You mentioned last year that that was probably the most significant case . . . HILLS: Surely the most significant case that arose during my term . . . BIRDWHISTELL: During your term? HILLS: . . . at the Court, that the chief . . . I mean, that the jus- . . . that Justice Reed wrote. It was a . . . we worked a very long time on that case, many, many hours. BIRDWHISTELL: And, of course, you mentioned that . . . in the c- . . . to put that in context of how you mentioned it last year was that, even though that was a very important case, that Justice Reed would take all the cases with the same attitude of . . . they were all important to him, no matter what the . . . HILLS: Yeah. BIRDWHISTELL: . . . the . . . HILLS: I think I used the simile of the . . . or the . . . the comparison of a the last decision I wrote with him, which was the black bass case of Florida [Florida ex Rel. Hawkins v. Board of Control of Florida] . . . BIRDWHISTELL: Right. HILLS: . . . and the cellophane case. BIRDWHISTELL: Right. HILLS: And it was quite true that he just as concerned about a few fishermen in Florida as he was with the entire industry of the United States. BIRDWHISTELL: Are there any other opinions that . . . HILLS: I might . . . BIRDWHISTELL: . . . cases . . . HILLS: . . . I might say that the one . . . the one . . . I . . . I shall never forget the fact that we did have a certain degree of affection, and maybe he did . . . did this with other clerks and just concealed it from me, but [chuckle--Birdwhistell] he convinced me that the first time, his entire time in the Court, that he allowed a clerk to write the entire opinion was the black bass case. BIRDWHISTELL: Is that right? HILLS: And he certainly couldn't have picked a less significant one. [chuckle--Birdwhistell] But he honored it. He . . . he . . . he made a few suggestions, but he made it quite clear to me that I didn't have to accept them. BIRDWHISTELL: From . . . from what I've been able to tell, he really didn't allow clerks to write a full op- . . . full . . . HILLS: One was . . . one was very lucky to get a paragraph. BIRDWHISTELL: Umhmm. What about Justice Reed as a . . . a writer? We talked about him being methodical. Writing didn't really come easy for him; it seems that it was a long, hard process. HILLS: It's hard to say whether it came easy or whether he . . . whether his . . . I . . . I . . . I think that's fair. It did not come easy to him. He . . . he . . . he worried about the shadings of words. His use of that set of ex- . . . of dictionaries was . . . was breathtaking. It was a . . . it was fascinating for me to see him pore through the meanings of words. I don't know if I told you the anecdote of Arthur Krock, but . . . BIRDWHISTELL: No, I don't think so. HILLS: . . . I've . . . I've . . . I've kicked myself for . . . for forgetting a word, but I got to the Court one day, and he handed us a copy of the New York Times column by Arthur Krock, and there was a word that he just did not understand at all. And we went through not only the set of Oxford English Dictionaries that he had, but we went up to the Supreme Court library and had the librarian of the Court help us to try to figure out the word. We worked out several meanings for the word looking at various circumstances. He was trying to find out what Mr. Krock meant. [chuckle--Birdwhistell] I think I spent the better of a full day on the . . . on the . . . on the fool column. [chuckle--Birdwhistell] And near the end of the day, I finally called the paper and asked them what a . . . what the fool word meant and found, of course, that it was a typographical error. [laughter] BIRDWHISTELL: That's . . . that's great. HILLS: A lesser man would have really not cared that much. BIRDWHISTELL: Might have just let it [chuckle] . . . let it pass, I guess. That's a great story. One writer suggested that it's not easy to label Justice Reed; that he tended to be an economic liberal and a civil rights conservative. I was wondering if you had a . . . any thoughts on that. HILLS: The justice basically didn't think that . . . that the national government could be second-guessed by the Court. He . . . he didn't think society would work if that happened. So he thought that the . . . that the society's tolerance for meddling by the Court was modest. Enormous respect for the political process. Like he believed that if all these people got elected, the . . . the whole thing depended upon respect for the political process. At the same time, he was very much authoritarian in the sense that he didn't believe individuals . . . it . . . it may be consistent to say that he thought that neither individuals nor the Court should . . . should tamper with the political process. That there was a certain amount of unfairness in any system, . . . BIRDWHISTELL: Hmm! HILLS: . . . and that it wasn't the job of the Court to respect, overly, the rights of individuals or the rights of states or the rights of other entities. If the federal government speaks, then there's a political way to redo that, and he wasn't . . . he wasn't anxious to interfere with that process. He . . . he was not . . . he was not concerned about socialism. I mean, he was in the broader sense. He believed in, you know, things called "capitalism" and things called "free enterprise," but he was not an economist in the sense of . . . of . . . oh, as we now go back and . . . I . . . I've become associated with, in great degree, with this process of deregulation as in these . . . these past ten years. And I think back on how absent from any of our decisions or discussions deregulation occurred. I mean, he was . . . he . . . he accepted with enormous respect any of the decisions of the agencies. I mean, an agency decision was to be respected. I mean, after all, they . . . he knew very well they didn't know anything more about the subject than he did, but that didn't keep him from respecting it. That that was the natural order of things. That the S.E.C. [Security and Exchange Commission] or the F.C.C. [Federal Communication Commission] or the I.C.C. [Interstate Commerce Commission] did or said something, one . . . one ought not to substitute their . . . their view or their analysis for that of something else. I recall a discussion on socialism that . . . the one thing he was certain about is that incentives would move people. He . . . he . . . he believed it as . . . as a . . . as an absolute, that regardless of the system of government, men would react to incentives. And he said in a socialistic world, the incentives would be the same. It would just . . . one might move on narrower margins, but one would . . . none . . . nonetheless, the world and government would not change much, no matter what degree of . . . of government control there might be. So, I mean, he was fond of saying that the Russians are just like the Americans, [and] that they would respond to incentives, whatever they might be. He certainly was not concerned philosophically, in my judgment, with an oppressive federal government, partly because he had respect for the independence of people and the fact that they would move to their own levels and somehow temper the . . . the central control. I can't easily put him in the sense of civil rights versus economic rights. That's not . . . I think that may be too facile a description of him. If one . . . one could only see him react to the crude petitions for certiorari that came from prisons. His record in reversing, or in . . . or in taking them, was . . . was . . . was not very good from the standpoint of a civil li- . . . libertarian, but certainly he showed an enormous concern for that. I mean, he would . . . when . . . when it was his term to read the special petitions, as we called them in those days, he . . . he . . . this was not something he would trust to his law clerks. He did it himself. BIRDWHISTELL: It . . . it seems to me, just in the . . . in the . . . the little I've . . . I've learned about this that, you know, it . . . it is easy to take a person like Justice Reed and to label them as . . . well, you say, "Well, he's a liberal on this and . . . and conservative on that." But the more you hear about Justice Reed, the more complicated his . . . his thought processes become in terms of how he would view big government. You know, you could write it off as saying, "Well, he was a New Dealer," but it's really more complicated than . . . than that, as I think you've pointed out very well in terms of the view that politic- . . . the political system, the government and the people would respond, and if changes need to be made, let them make them. HILLS: Yeah. BIRDWHISTELL: You di- . . . and then that brings about the whole concept that he's labeled in judicial restraint. And it's not the . . . it's not the Court's role to change the political system, in a sense. It's a . . . it's a fascinating [chuckle] discussion, I think, wi- . . . about Justice Reed. HILLS: He . . . he began his political life . . . I mean his government life, I should say, because of a lawyer in Los Angeles who I got to know in later years. Isn't that terrible how my mem- . . . my mind is failing me. There was a small firm in Los Angeles, and the names were the same. There were three names in the firm, and they were the same name, because of father and sons. You . . . you . . . I'm sure you have the record of the man that preceded him as general counsel of the Farm Board. BIRDWHISTELL: Right. HILLS: And . . . BIRDWHISTELL: I'll have to look that up. HILLS: . . . I interviewed that firm for a job largely because they were interested in interviewing any law clerk of Stanley Reed who was willing to come to the West Coast. [chuckle--Birdwhistell] And he used to tell stories about how he recommended to . . . to the government when he left Herbert Hoover's administration, that this man that had worked for this railroad and this farm cooperative should be the man to succeed him. It's also interesting to see how his view of the justice was similar to mine, that . . . and he . . . of course, he believed in cooperatives. He represented that farm cooperative, and he . . . he just truly did believe in it. That was an expression of the democratic will. BIRDWHISTELL: Who were some of Justice Reed's friends off the Court while you knew him? Did he . . . did he socialize much with a group outside the Court that you were aware of? HILLS: Oh, he was very much part of the Washington society. And he . . . he . . . I guess I can't tell you who. There are very few . . . I mean, even now in Washington, I regularly re- . . . you know, meet people who knew the justice then. Clayton Fritches and . . . and become a friend of ours, and Clayton always reflects warmly upon his feeling for the justice. He was a . . . he was a dearly loved man. He was a . . . he was invited out a lot and he . . . he . . . he accepted it. He loved his apartment at the Mayflower. Loved to laugh about the fact that he took the apartment for one year. [chuckle--Birdwhistell] And, I think, maybe only signed one-year leases all the years he was in the Mayflower, and . . . [chuckle--Birdwhistell] but they finally took the . . . finally took the apartment next door. And he loved that. He loved that . . . he just . . . he just truly loved the place. It broke our hearts . . . Harold Leventhal . . . Judge Leventhal and I were just heartbroken when we learned that the justice and his wife and gone to this rest home up in New York. That was . . . BIRDWHISTELL: Apparently . . . HILLS: . . . sad. BIRDWHISTELL: . . . Mrs. Reed really liked the Washington life, too. HILLS: Oh, she loved it. She loved it. They loved to go out. They loved to go to parties. We saw him, you know, late in life, when Carla and I both came here. He just . . . he just thought that that was . . . that was his . . . that was him. I mean, he . . . we saw at events at the State Department, and even . . . even as I saw him more often, it was harder for him to re- . . . recall exactly who I was. It didn't take long; it took maybe five minutes and one bourbon that . . . that I would slip wim . . . slip him when his wife wasn't looking [chuckle--Birdwhistell] at a party, that . . . that he would like to recount it. I re- . . . I recall, which such joy, the . . . the time that I called upon him to ask if he would preside over my wife's swearing-in ceremony when she became Assistant Attorney General of the United States, and I went with him to the ceremony, and we came up the Solicitor General's entrance to the . . . to the Court and . . . and went to the Attorney General's . . . Ge- . . . Ge- . . . General Saxbe's office for the swearing in, and he stood so proud and erect and recited the oath by memory to the . . . to Carla to have her be sworn in. BIRDWHISTELL: That's great. HILLS: I then talked to his . . . you know, people that were closer to him to find out whether or not he was up to swearing Carla in as Secretary of Housing, and it was the . . . it was the universal view that the East Room and the lights and all the rest of it was . . . was probably more than . . . than he should do, and so Carla found Justice [Byron] White and was . . . Justice White was quite pleased to swear her in. But we . . . we felt . . . we felt bad about it. And then a few weeks later, when . . . when I became . . . came to the S.E.C. and the . . . I asked the justice if he would come to the Rose Garden to swear me in, just enormous joy and pride that he had in doing that. It was . . . a few times I saw him after that, he was . . . he just loved going back and being with the president. He had known President [Gerald] Ford. It was a great moment for him. He had enormous respect for the White House. His . . . if you said there was something he respected, he respected the presidency, above all. He was enormously disappointed that Justice [Potter] Stewart did not replace him as a . . . as a justice. He . . . he had assumed that would be so, and when it wasn't, he was crestfallen. BIRDWHISTELL: Do you think it bothered Justice Reed at all that . . . that . . . when Truman appointed Vinson to the chief justice? HILLS: I can't answer that. BIRDWHISTELL: He . . . I mean, he . . . as you said earlier, he really never mentioned that to you, . . . HILLS: No. BIRDWHISTELL: . . . so it would be hard . . . yeah, it would just be a . . . a guess, I suppose. You know, one of . . . one of Justice Reed's sons, and I'm not sure which one, told me that they thought Justice Reed may have gone back to Kentucky and . . . and, you know, lived on the farm after his retirement, if . . . if . . . if Mrs. Reed had been [chuckle] more . . . more fond of the idea. HILLS: I don't think there was any possibility of that. BIRDWHISTELL: Okay. HILLS: He loved the town. BIRDWHISTELL: Yeah. He would have probably missed it a lot. He . . . HILLS: He loved to talk about the farm, but it never occurred to me that he was going to go back to the farm. BIRDWHISTELL: [chuckle] I . . . I thought of something I w- . . . I was . . . I wanted to ask you this morning, and then our conversation has sort of gone in that direction, in terms of how Justice Reed looked at society and the role of government and the . . . and the fact that things were going to work out . . . if . . . if the system worked, that . . . that things would work out for the . . . for the best. And you ma- . . . you maintained contact with him, and I was wondering if you got an impression of his reaction to the events of the `60s in this country, where it . . . perhaps it looked like the country was losing its direction at some . . . at some point. Did . . . did this concern him at all in his . . . in his later years? HILLS: My reflection, I think, would not be easy on that point. BIRDWHISTELL: Yeah. HILLS: I think he felt, apropos of the discussion I had with him on socialism, that he was an internal optimist in terms of the history of the world. BIRDWHISTELL: Yeah. HILLS: Yet I feel that he thought that a more restrictive form of government was inevitable. I don't think he was optimistic that the Court would always survive. BIRDWHISTELL: Hmm! HILLS: I think he felt that was always a . . . maybe in . . . maybe a hundred years or so, but he may have felt that it was inevitable that we would gravitate toward a more restrictive society. Indeed, it may . . . may have been his feeling that the inevitable growth of civilization required more and more control over the circumstances of life. That wasn't a fact that troubled him an awful lot. I'm not sure that's a fair comment, but I think that maybe he felt there was an inevitability about a stronger central government. I don't think he could per- . . . I don't think he would have predicted the possibility of a . . . of a Reaganesque attack on central government. I think if he were alive today, he would think it was a pass- . . . a passing phenomena. [chuckle--Birdwhistell] BIRDWHISTELL: Well, hi- . . . his career was interesting, and I . . . I think you've referred to this earlier, what . . . because he came from a . . . from such a . . . a different time, you know, a . . . a small Maysville . . . or small Mason County rural community and . . . and sort of an . . . a . . . an education of a former time, you know, without the law degree, but studying law in the different places and . . . and then to end up on the Supreme Court at a time of things such as the Brown decision and all the . . . the complexity of . . . of society. But it seems like he held on to some of that . . . HILLS: I think . . . BIRDWHISTELL: . . . background. HILLS: . . . I think, for example, he really did harbor some hope that his retirement would embarrass Justice Black into retiring. [laughter--Birdwhistell] He made some comment, I recall, at the time, that since Black was a couple of years older than he was, it . . . surely if he left, at least he could take Black out with him. [chuckle--Birdwhistell] BIRDWHISTELL: Gunslinger. That's interesting. Well, that's . . . that's about all of the . . . all of the specific things I wanted to ask you, and I've taken up enough of your time today. Is there anything you'd like to . . . to add that you've thought of, or something that I may have not brought up that you think would . . . HILLS: No, I think I would end . . . end with the same note of his kindliness, of his generosity toward his associates. I think I made some comment in my remarks at the law school that the last time I saw him was in the company of Harold Leventhal, and how he truly . . . I mean, although he seemed alert and aware, it took him a very great deal of time to figure out who we were when we saw him. That when it became clear to him that we were law clerks, he reported, as he always had on every occasion when more than one clerk gathered, that he never did . . . never once had a clerk that wasn't just exactly the . . . the finest clerk that ever was. And how not one of them ever let him down and how proud he was of them and how much they did for him. I think he was very . . . I think he made everybody feel that way. I think if you go back and . . . I had an occasion to spend an evening at . . . at a dinner table with Tommy Corcoran, not too long before Mr. Corcoran passed away, and he had that . . . as a matter of fact, my secretary worked for [telephone buzz] Tommy Corcoran. BIRDWHISTELL: Oh, really? Wow. HILLS: Would you . . . after he passed away, she came to me. Excuse me. [End of Interview] Roderick Hills turned down the Fulbright Scholarship to clerk for Justice Reed, and he served as clerk from 1955 to 1956. He begins his interview by describing Reed's personality and his relationship with the clerks. He then describes Reed's relationship with the other justices, specifically Earl Warren, Harlan Stone, Felix Frankfurter, Hugo Black, and Fred Vinson. Hills discusses the following court cases: Partmar Corp. v. Paramount Pictures Theatres Corp. (an anti-trust case), Brown v. Board of Education of Topeka, National Labor Relations Board v. Babcock & Wilcox Co., United States v. E. I. du Pont de Nemours & Co. (a cellophane case), and Florida ex Rel. Hawkins v. Board of Control (a case involving fishing permits). He recalls Reed's opinions on the Wagner Act, the Taft-Hartley Act, cooperatives, and civil liberties and criminals. He also mentions Reed's work as Solicitor General, his writing style, and his card catalog. In closing, Hills comments on Reed's political philosophy and his predictions about the future of government. Kentucky Politics

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