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Interview with Paul A. Freund, October 18, 1982

1982-10-18 Interview with Paul A. Freund, October 18, 1982 Reed001:1982OH138Reed18 01:49:49 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 Paul A. Freund; interviewee William J. Marshall; interviewer 1982OH138_Reed18_Freund 1:|1(4)|17(13)|26(3)|33(12)|49(8)|57(6)|68(8)|77(7)|85(7)|93(9)|101(3)|112(14)|121(7)|132(6)|144(14)|154(9)|167(1)|184(11)|193(1)|203(1)|218(13)|226(10)|236(3)|270(1)|277(11)|291(10)|299(11)|307(4)|320(5)|328(3)|340(5)|364(6)|374(2)|382(3)|392(11)|401(13)|411(6)|426(10)|432(10)|442(8)|460(1)|469(11)|489(7)|502(1)|508(3)|513(12)|525(10)|533(9)|541(4)|549(2)|554(10)|564(11)|572(7)|581(3)|590(10)|606(8)|619(7)|633(8)|642(13)|654(8)|663(1)|671(11)|683(3)|694(7)|708(6)|716(7)|727(1)|740(1)|753(3)|761(6)|772(7)|803(6)|818(7)|837(7)|858(9)|868(6)|889(6)|900(1)|913(11)|920(7)|927(6)|935(1)|949(1)|959(3)|972(11)|985(5)|999(4)|1005(5)|1011(3)|1026(4)|1032(1)|1042(12)|1056(14)|1069(1)|1083(5)|1094(4)|1105(12)|1112(11)|1118(7)|1124(8)|1135(7)|1156(9)|1166(2)|1172(8)|1182(1)|1193(1)|1208(5)|1224(3) audiotrans SFReed reed001:interview MARSHALL: Professor Freund, how did you become associated with Stanley Reed? FREUND: I became associated with him at the R.F.C. [Reconstruction Finance Corporation]. To go back just a little bit in . . . in my own career, when I left the clerkship with Justice [Louis] Brandeis, I went to the Treasury Department, where Tom Corcoran had installed several young Harvard law graduates, and I became one of that little team. We had very close access to Dean Acheson, who was under-secretary of the Treasury. When he disagreed with President [Franklin D.] Roosevelt over the gold purchase and devaluation of it in 1933, Acheson resigned, and the little group that had worked under him, including Tom Corcoran, also left, and several of us went to the R.F.C. general counsel's office, which was headed by Stanley Reed. There I did very little work of the . . . of the traditional or . . . or central kind at the R.F.C. I was virtually full time on the gold cases. Stanley Reed was slated to be the lead counsel for the government in those cases because the R.F.C. held Gold Clause bonds of the Missouri Pacific Railway, which, however, were subordinate to Gold Clause bonds held by the Bankers' Trust Company. And so the R.F.C. was taking the position that the Gold Clause should be inoperative pursuant to the resolution of Congress abrogating gold clauses. In other words, the R.F.C. was defending the government's gold policy, which was basic to the devaluation of the dollar. It was obviously going to be a big test case. It was then in the District Court in St. Louis, the eastern district of Missouri, and I worked on that brief virtually full time and kept . . . kept with that case on appeal. So that while I was at the R.F.C., I did very little of the regular R.F.C. work. However, it brought me into direct personal association with Stanley Reed. When there was a vacancy in the Solicitor Generalship in early 1935, I guess it was, he was appointed Solicitor General and asked me to accompany him to the Department of Justice, which of course I was delighted to do, and there continued work on the gold cases, which then were reaching the Supreme Court. And he argued for the government in the Supreme Court. That's how I happened to become associated with him. MARSHALL: Okay. In 1933, after you were with Justice Brandeis, you went to the Treasury for a little bit, as you mentioned. FREUND: Yes. MARSHALL: This was the beginning of a so-called "New Deal." Did you recognize or notice any changes? Did you feel that you were a part of something? FREUND: Oh, yes. It was a very heady, exciting time, particularly for younger people, young lawyers in particular, in the government. The lights were burning in all the government departments late at night because no one had the solutions or proved solutions. There . . . there were . . . there were no conventional channels of communication, no hierarchies to speak of. Juniors had access to seniors in the government. It was less like a bureaucracy than one would imagine and, therefore, it was a particularly exciting time. The . . . the center of gravity of the country had moved from New York and Wall Street definitely to the Capitol in Washington. I remember one evening when I went out to dinner with the young fellow who shared an office with me in the . . . in the Treasury Department. We had a large office, it being an old-fashioned building which still had large, high-ceilinged offices. There were two of us in . . . in the office, and we generally went out together to dinner, and we came back together to work in the evening, as we almost always did. When we got back, there in our two chairs with their feet up on our respective desks sat Dean Acheson, the under-secretary of the Treasury, and Eugene Black, the governor of the Federal Reserve System. Well, we came in [and] saw our desks occupied by these [chuckle] two gentlemen, and they turned to us and said, "What should we do about the closed banks?" Well, it's hard to imagine that sort of thing happening in normal times. Certainly hard to imagine it happening today. But that's the way it was. There was a free forum for ideas. The . . . the older, traditional answers didn't . . . didn't seem adequate, and people . . . at any rate, people like Dean Acheson and Eugene Black were very open to ideas. So, in answer to your question, quite simply, yes, we s- . . . we had a sense of a new order of things, a time for creative thinking. MARSHALL: There was no typical New Dealer from what I've read and heard. There was an intellectualism and, as you mention, a freedom of the passage of ideas from one to another. But in some way in that loose mold, if there is a mold, did Stanley Reed fit in? FREUND: Stan- . . . Stanley Reed was not by temperament, I should say, an innovator. He was a very dedicated worker and a very willing and . . . and faithful lieutenant of President Roosevelt. Of course, he was a holdover from the [Herbert] Hoover administration. He was certainly no flaming radical, but he was perfectly open-minded and without prejudice. I'm thinking, for example--to move ahead just a little bit--of his experience in arguing the big test cases on the National Labor Relations Act. His professional experience had been, I suppose, in commercial law in connection with the farming industry--agriculture--and, at the R.F.C., banking. But in order to prepare for the argument in the National Labor Relations Act cases, he went through records and did a good deal of talking and reading on the background of the Labor Relations Act, and he became firmly committed to the necessity for and . . . and the validity of those laws, which to many conservative-minded people seemed revolutionary. And--again, to leap forward--on the Court there was no one, it seems to me, more concerned and knowing and sympathetic than he to the cause of organized labor. And I trace it to his experience in preparing for and arguing the National Labor Relations Act cases. He filed in the records a history of abuses against labor, of resistance to organization of labor, and resistance to collective bargaining, that couldn't be denied. And being the fair-minded person he was, he continued to believe that measures by government to overcome that imbalance, that disparity in power, were necessary and proper. MARSHALL: He's been termed an economic liberal. Whether that's true or not and whether you can . . . again, that's a rather broad and nebulous term. But he did fit in, in many respects, with the thinking of the time as far as Roosevelt's administration going, in terms of economics. Is that a fair assumption? FREUND: I think that's a fair assumption. I think he learned a lot in the course of his experience, as the Labor Relations episode, I think, suggests. I think he learned a lot. It's hard to characterize in th- . . . as a liberal, economic or otherwise, because he didn't have a . . . a holistic philosophy. He was a very empirical, pragmatic sort of person, dealing with problems as they came along and exercising his exceptional sense of fairness and balance in dealing with those problems. The Roosevelt administration tried new measures, tried to overcome what was perceived as inequities and imbalances. He saw them the same way. And so he lent his abilities and . . . and . . . and energies to that cause not, I think, from any general philosophical standpoint, but because instance by instance that course seemed to him the fair one. MARSHALL: Okay. What did Stanley Reed think of F.D.R. [Franklin Delano Roosevelt]? Did you ever hear him discuss F.D.R.? FREUND: I really can't testify to that. As I said before, he was a . . . a very faithful lieutenant, as he proved to be in the case of the court-packing plan, where he testified . . . without selling his soul, testified on the score of the Court's business. He did it, I think, without any . . . any great enthusiasm, but he did it because he was asked to do it and he . . . he was a good servant. MARSHALL: Okay. Arthur Schlesinger wrote in The Coming of the New Deal that those working in the early years of the New Deal, and I'm quoting, "often suffered frustration and delusion. They worked to the edge of collapse. They had moments when they hated Washington and government and Roosevelt. Yet for most of them, this was the happiest time and the deepest fulfillment that they would ever know." Does that, in any way, fit Stanley Reed? FREUND: I thi- . . . I think so. I think it does. Of course, he was a tremendous worker, terribly conscientious, and he, at times, did overwork. But as Solicitor General, he . . . he obviously was in his element. He . . . he recognized, as others in that office have done, it was the greatest law office in the world. I know when we were working on the gold case, which involved, it was estimated, anywhere from seventy-five to a hundred billion do- . . . billion dollars, which in those days was a rather tidy [chuckle] sum, he said to me, "No matter how long you live or what great cases you have, you'll never have a case as big as this one." And I think that characterized a great deal of his work. So many of the cases were big. They . . . they were extraordinary. They were the kind that one could never expect to be repeated. And I'm sure he had a sense of . . . of the historic importance and the pivotal role of his office, to be in that office defending the government's measures in the Supreme Court in a time of, really, constitutional crisis, to say nothing of economic crisis, was a unique experience. MARSHALL: Let me turn to the R.F.C., [to] go back a little bit. What kind of a relationship, just from your observation, did Stanley Reed have with Jesse Jones? FREUND: From my observation, [and] it was only observation, it was an extremely close and cordial one. Jesse Jones was a great admirer of Stanley Reed and I'm sure a great political supporter and, indeed, a sponsor, if you will, of Stanley Reed, as were the Congressional representatives of . . . from Kentucky, particularly Senator [Alben W.] Barkley. Yes, it was a very close, intimate, cordial relationship, so far as I could see. And I . . . I . . . I have no doubt of it. MARSHALL: Did their philosophies seem to mesh well? FREUND: Well, that's a very broad question. MARSHALL: Indeed. [chuckle] FREUND: I . . . I would guess . . . MARSHALL: Yes. FREUND: . . . that Stanley Reed was more open than Jesse Jones to ideas that, shall I say, were . . . were new and, at first blush, s- . . . somewhat un- . . . unfamiliar and . . . and . . . and threatening. I think Sta- . . . I think Jesse Jones was . . . was more of a stand-pat conservative than Stanley Reed. Stanley Reed was, as I say, open, pragmatic, willing to experiment, not . . . not a passionate believer, but an . . . a good craftsman who was prepared to strike out on new courses. MARSHALL: As general counsel of the R.F.C., what were Stanley Reed's responsibilities? FREUND: Well, he supervised a great many different endeavors. I suppose the two biggest had to do with the railroads and the banks. That is to say, loans by the R.F.C. to the railroads, and that included putting representatives of the R.F.C. on the board of railroads and, similarly, with banks. As banks needed more capital and the R.F.C. supplied it, the R.F.C. imposed rules about the conduct of banking operations and put members on the board. And Stanley Reed, as general counsel, together, obviously, with the board of directors of the R.F.C., was responsible for the supervision of . . . of . . . of those activities. Of course, in addition, there was litigation in . . . in the courts. The gold clause litigation was quite out of the ordinary, but nevertheless, it too was Stanley Reed's responsibility. MARSHALL: You mentioned that when you arrived in . . . in the R.F.C., you spent most of your time with the gold cases. FREUND: Yes. MARSHALL: Can you give me any idea what a typical day for you would have been like, up until, of course, the cases were argued? Maybe there was no typical day. [chuckle] FREUND: Well, a lot of it was research as well as writing of briefs and memoranda of law, but there was a good deal of consultation with people at the Treasury Department. I remember particularly Jack Leyland of the Treasury Department, who was extremely helpful. And people at the Federal Reserve. I remember their economist, Win [Winfield] Riefler, who was extremely good in working with lawyers. So that I had an experience of working, if not with private clients, at any rate, with other departments who were in a sense our clients--the Treasury and the Federal Reserve. I spent a good deal of time talking with them. They would look over drafts. They would submit memoranda of their own. And I relied on them a very great deal for the economic data, including charts and graphs, which we used in our District Court brief. Perhaps the brief was a little top-heavy for a mere district judge, [chuckle] but we did load it up with that kind of economic data showing the need for devaluation, particularly in international trade. MARSHALL: When the gold case came to the fore, it was argued, I believe, in January of 1935, and there were some jokes, but it wasn't funny at all, but in the particular case . . . I think . . . wasn't it Norman versus B.& O. [Baltimore & Ohio Railroad Co.] . . . FREUND: Yes. That was the private bond case . . . MARSHALL: Right. FREUND: . . . and the public bond case was Perry against the United States, I think. MARSHALL: Anyway, in Norman versus B. & O., we were talking about a difference of something like eighteen dollars . . . FREUND: Yes [chuckling]. MARSHALL: . . . and . . . which was an astounding thing, that you could get a case based on eighteen dollars that could bring down the entire economic system, which it could have for . . . at least, in . . . in one sense. FREUND: Yes. It . . . MARSHALL: As far as . . . FREUND: . . . it was, . . . MARSHALL: . . . the gold standard was concerned. FREUND: . . . strictly speaking, a case over one coupon . . . interest coupon on a bond. And the interest coupon was . . . well, I . . . as I remember, I think it was $22.50. MARSHALL: Right. FREUND: But it . . . [chuckle] it, of course, was symbolic of, as I said earlier, anything from seventy-five to a hundred billion dollars, because not only state and municipal and U.S. bonds, but many corporate bonds, including railroad bonds and, indeed, some agricultural mortgages contained gold clauses. If they were enforced, then devaluation would increase the amount of recovery on those bonds by something like sixty percent . . . fifty-nine percent, which would be a windfall given that the price level didn't increase anything like that. It increased modestly, but it would have been a tremendous wi- . . . windfall to . . . to the bond holders. And would have made it a practical impossibility for the government to carry out a devaluation of the dollar, if it had to pay, and other debtors had to pay, a sixty percent premium on every dollar of indebtedness. MARSHALL: Were you present at the Court when it was argued? FREUND: Yes. MARSHALL: Do you recall anything about the arguments at all that comes to your mind? Is there anything that stands out in your mind? FREUND: Well, a good many things stand out. Norman, who was the bond holder arguing against the B. & O. and the R.F.C., was a youngish lawyer who was arguing his first Supreme Court case. I remember that Homer Cummings, who was Attorney General and who decided to participate in the argument, wanted to argue first. He wanted to be able to argue without having to refer to anybody else's prior argument. He thought the Attorney General of the United States was entitled to open this great case. and he went down to see the Chief Justice, [Charles] Hughes, in advance to suggest that he be allowed to open the case. He repor- . . . Hughes reported back . . . excuse me, Cummings reported back that Hughes very politely said that the Court would adhere to its usual practice: the counsel for the petitioner would open, particularly since it was the first Supreme Court appearance for Mr. Normal . . . Norman. The Court would not change its practice to . . . to supplant him. I think Cummings was affronted by this, but frankly, I thought that Hughes showed a good deal of grit and . . . and admirable judgment in . . . in doing what he did. He made a . . . Cummings made a very general argument about the powers of government: great things were ahead, international conferences were impending, and the United States must not enter those conferences like a cripple but must enter on a parity with every other nation which had this power, etc. It was a very broad, sweeping argument. Cummings thought that the brief was a bit too technical and . . . and lacked the . . . the majesty that the occasion [chuckle] required. It was left to Stanley Reed to make the nitty-gritty argument. [chuckle] I'm sorry . . . [Interruption in taping] FREUND: . . . Stanley Reed made the nitty-gritty argument . . . lawyer-like argument. He was set on ferociously by Justice Pierce Butler in particular, who . . . who was a rather savage cross- examiner, repeating, I think, his early days when he was a trial lawyer cross-examining witnesses. At any rate, it . . . it was a . . . it was a rather grueling experience, and I think, fortunately, there was a . . . a break in the argument overnight and . . . either overnight or for lunch, there was . . . there was a break while Stanley Reed was arguing. And our . . . our little team went into a huddle with him, and the conclusion of his argument was a . . . a very succinct and summarizing presentation which attempted to clear up any misunderstandings that may have been left as a result of the questioning. I think the close of his argument was particularly strong on that score, and they let him go through it pretty much uninterrupted. MARSHALL: Again, he . . . the amount of time that you're allowed to argue a case that's before the Supreme Court is usually limited. In this particular case, were there limits? FREUND: Well, there were always limits, but in those days they were more generous than they are today. I've forgotten, [but] I think there were two hours to a side. Now, that time had to be divided, of course, among counsel. But . . . two hours, yes, as I . . . as I recall. MARSHALL: That particular case, which I th- . . . believe ended up in a 5-4 decision in . . . in favor of . . . FREUND: Yes. Right. MARSHALL: . . . Stanley Reed's side, it took the Court a couple of weeks to come to that decision. FREUND: Oh, I think more than that. MARSHALL: I think the date I had was something like . . . yes, it was more than that. It was February 18th, . . . FREUND: Yes. MARSHALL: . . . which is over a month. FREUND: Yes. MARSHALL: During that intervening time, which was in . . . I . . . I believe an abnormal time . . . amount of time, was Stanley Reed optimistic? Were you optimistic? What . . . again, this must have been a very trying time, literally, for your staff. FREUND: I think we were reasonably optimistic, yes, but nervous. In those days, the government went into the Supreme Court, in New Deal cases, pretty regularly with four votes against them before the argument started. That was a fact of life. And so it was a question of holding the other five. Well, we thought we had clearly the . . . the superior legal argument. Whatever might have been thought about the wisdom of the policy of devaluation and abrogating gold clauses, we thought we clearly had the . . . the advantage in . . . in the law . . . the constitutional law, but one could never tell. I remember . . . I guess at that time Crawford Biggs was still Solicitor General. Mr. Reed was still R.F.C. counsel. And we had a conference shortly after the decision in Attorney General Cummings' office, and I remember Solicitor General Biggs, who was a North Carolina trial lawyer, then Solicitor General, saying [chuckle] to the Attorney General, "That was a close one. Hot dog!" [laughter] MARSHALL: Oh, my. [chuckle] I'm just sure . . . sure you were elated with that case. You'd worked so hard on that. FREUND: Oh, yes. And particularly because the opinions followed our argument . . . tracked our argument pretty closely. In the Liberty Bond . . . the government bond case [Perry v. United States], Hughes, however, pulled a rather . . . a . . . a rather clever one, it seemed . . . seemed to me, in which he was able to denounce breach of faith and breach of promise by governments. It sounded as if he were back in his secretary of state days denouncing Latin American countries for breaching their contracts. While at the same time holding that the United States didn't have to pay anything extra on the gold bonds beyond their nominal face amount because no damages had been shown. Well, this was a pretty bold position to take since . . . since this was a . . . an action for money and . . . and normally you don't have to show damages. If . . . if the bonds called for a certain amount in money and that was a valid promise, then you get that amount of money and not damages. And Hughes had held in . . . in the course of the opinion that the promise to pay gold was not the promise to deliver a commodity, but to pay money. Indeed, that was im- . . . important to establish the government's authority over the mon- . . . monetary unit. But then to hold that there had to be damages shown was a bit of sleight of hand. And Justice [Harlan] Stone protested. Justice Stone always insisted that there was no opinion of the Court. I said, and you said it was 5-4, and, of course, it was so far as the holding was concerned . . . the judgment. But as far as opinions were concerned, there was a separate opinion by Justice Stone concurring in the result, but taking the position that what the government did was valid without all . . . all of the ne- . . . necessity of condemning breach of contract. And so he always insisted that it was wrong to speak of Hughes' opinion as the opinion of the Court. There was no opinion of the Court. [chuckle--Marshall] It was 4-4-1 as far as opinions were concerned. [chuckle--Marshall] MARSHALL: It was a close decision. One saying in the `30s, as far as the Court was concerned, "As [Owen] Roberts goes, so goes the Supreme Court," because he was considered, in some respects, the center of the Court. Was there a particular justice in this decision that you worried about who would swing one way or the other? Obviously, in your strategy, you would look at each of the justices that you would hope to sway. FREUND: Well, Roberts was always a . . . a questionable figure. In this particular case, I think there was some reason to be a little worried about [Louis] Brandeis because it was pretty well known that he was unsympathetic to . . . to the policy of devaluation. And there is an anecdote reported by Dean Acheson, a former Brandeis law clerk, who called on Brandeis during this period of the gold policy and told Brandeis that the Attorney General had given an opinion that the gold policy . . . the gold purchase policy, by which the price of gold was bid up over the statutory price before devaluation occurred, to prepare for devaluation. That Cummings had given an opinion that it was valid and constitutional, and Acheson had given an opinion in the Treasury Department that it was not. And he wa- . . . wanted Brandeis' advice or views. Well, Brandeis, very characteristically, would not give any legal opinion, but according to Acheson what he said was, "I would rather have Dean Aches- . . . Acheson's opinion on any . . . any question than the Attorney General's." [chuckle] Which is a kind of Delphic reply, but fairly clear. However, when it came to the actual case, he sided with . . . with the government and with the majority. But I'm sure he did it without enthusiasm. MARSHALL: Okay. [End of Tape 1, Side 1] [Beginning of Tape 1, Side 2] MARSHALL: Justice Reed was nominated as Solicitor General in March of 1935. Did you talk to him about his nomination, and was he surprised? Was this, for him, a logical step forward or just come to him as a surprise? Or both? FREUND: I really can't answer that question. I . . . I . . . he always had g- . . . good relations with Congress. He was a person who didn't offend others and was respected. I'm sure he must have felt that there were people working for him, like Jesse Jones and Senator Barkley and, no doubt, others that I can't identify. But I don't know for sure what his feelings were. MARSHALL: How was it determined that you would go with him? FREUND: Well, he asked me. I don't remember any particulars of it. He just asked me if I would like to go over to the Solicitor General's office with him. That . . . that's the . . . MARSHALL: Did he take most of his . . . FREUND: . . . whole . . . whole story. MARSHALL: . . . staff with him? FREUND: Oh, no. I think I was the only one. You see, the Solicitor General's staff is a very small one. At that time, there were only, perhaps, seven or eight people in . . . in the Solicitor General's office, and they stayed on for the most part, though later, I think, Stanley Reed did make some additional appointments. But it wasn't a . . . a case where there was a big turnover or a lot of vacancies. MARSHALL: For you this was really a . . . a good stroke, also. FREUND: Yes, it certainly was. And I suppose it . . . it was a determining event in my own life, because while I had, up to then, a . . . a . . . a special interest in the work of the Supreme Court, having served as a law clerk, still, to be in the Solicitor General's office brought you very close to the work of the Supreme Court and was preparation for teaching constitutional law. MARSHALL: A very good preparation. What . . . you've mentioned the Attorney General, Homer Cummings. Just from your remarks, and also from what I've read, he and Stanley Reed were very different as far as personalities were concerned. How did they work with one another while Reed was Solicitor General and Cummings was Attorney General? FREUND: Well, as far as I could see, they worked very harmoniously. It was not difficult to . . . to work with Stanley Reed, either above him or below him. He . . . he was not a . . . a person to create friction. He wasn't self-assertive. He didn't clamor for recognition or praise or publicity. Cummings knew that he could rely on Reed with perfect confidence. Cummings was an able man but not a hard worker. He loved to go off on golfing holidays. Frequently went to Pinehurst. Reed was . . . was an intensely hard worker. They complemented one another in that way, I suppose. Reed was much more of . . . of a technician than . . . than Cummings. Cummings was a fluent speaker, practiced speaker, very eloquent on the podium. Reed was adequate as a speaker but he certainly didn't make his reputation for eloquence or felicity of speech. With him it was . . . it was hard work, preparation, knowing the facts, mastering his subject. So they were very different. But they got along extremely well, because . . . I think mainly because Stanley Reed got along well with . . . with anybody. MARSHALL: Good. During your talk in Lexington, you mentioned that Stanley Reed, as Solicitor General, was the right choice, at the right time, in the right place, and that he had the integrity and was int- . . . was trusted by the Court, whether or not his arguments carry today. Could you expand on that a little bit? FREUND: Well, the . . . the Solicitor Generalship is in many ways like the tenth justice of the Supreme Court. The Supreme Court justices expect the Solicitor General to help them. To be not simply an advocate for the government, but a resource, whose briefs will develop the background of the law, all of the relevant authorities, and whose briefs in argument can be relied on implicitly for accuracy and integrity. And they expect a Solicitor General to have a staff that is . . . is devoted to . . . to the same end. When . . . when a new Solicitor General is appointed, he . . . he makes the rounds of the . . . of the justices, making a courtesy call on each. And he comes back from those calls deeply impressed with the expectations that the justices have of him and his staff. During the early New Deal days with J. Crawford Biggs as Solicitor General, I . . . I think it's fair to say that the Court did not have that same confidence. Mr. . . . Mr. Biggs was by experience a trial lawyer, [or] really a jury lawyer, and he would make rather emotional arguments but he had not had experience with Federal law, including constitutional law, nor was his strength in appellate advocacy. And I think the Court felt that the government was not getting the kind of representation that it needed, nor was the Court getting the kind of help that it needed. And I think Stanley Reed felt a . . . a special responsibility coming in in those circumstances. And I think the Court quickly found that they could depend on him, that he was always well prepared, and that he would not over-argue. That if he made an argument, it was an argument that had been well considered as worthy of being presented and not something that might have a superficial ring to it but be hollow at the core. Stanley Reed did not prevail by brilliance of advocacy, by turning phrases, or appealing to sentiment. He . . . he prevailed by very honest, straightforward, deeply felt presentations well grounded in the actual record and in the careful use of precedents. MARSHALL: Okay. He had a role during that period [of] 1935, 1936, `37, in almost every major case that was argued before the Court as far as the government was concerned, which is really a fantastic responsibility and really creates a lot of pressure. Did you ever notice how he dealt with that pressure? FREUND: Well, he was always, on the surface, extremely calm and cool. He never blew his top or flew off the handle. I . . . I'm . . . I had never seen him in any such mood. But underneath, I'm sure there was a great deal of tension and . . . and worry. He did suffer from high blood pressure for a time. And one summer--I don't remember the exact year--he went down to Duke where they had a so-called "Rice Diet Program." He went down and enrolled in that program [and] came back somewhat thinner and apparently much improved in general health. And I suppose his longevity testifies to [chuckle] the effectiveness of such a program. He gave up chocolate ice cream, which was his favorite food. [chuckle--Marshall] He did once faint in the courtroom during the argument of the Bankhead Cotton Act case [Bankhead Cotton Control Act of 1934]. I think he had just finished arguing a . . . a difficult case, the . . . the Basic Agricultural Adjustment Act case [United States v. Butler], and then this one came up immediately following. And Justice Butler pressed him very hard at the op- . . . during the course of the argument. And Reed, who must have been very tired by that time, sank back and collapsed into a chair behind the counsel table . . . behind the rostrum. And the Court rose and left the bench. And I remember Mrs. Reed came over, and others, of course, huddled around him. The Marshal of the Court, who always kept smelling salts for such occasions, which are . . . are not all that rare, applied them, and . . . and Reed seemed to recover very quickly, but Mrs. Reed insisted that he needed . . . that he leave, which he did. I think he . . . he was examined that evening and pronounced fit, and he wanted to resume the argument the next day. But, as I recall, it was felt that that was needless, and the briefs were in, and so the rest of the case was submitted on the briefs. That was the only occasion when he seemed to show any effects of fatigue or anxiety. MARSHALL: But he was that kind of a hardworking person that he . . . he would put himself to that end. FREUND: Oh, yes. Yes. It may have been unwise to take on two big cases in immediate succession like that. MARSHALL: Was he . . . this leads me to ask whether or not he was a . . . a delegator. You would know that [chuckling] firsthand. FREUND: He was a delegator. That is, he didn't insist on . . . on doing things for himself, but he was not, shall I say, a . . . a releaser of responsibility. He liked to see the final product and to have the . . . the last look and the last say. Others might have delegated more . . . more in that respe- . . . more deeply in that respect. "Oh, well. No, I don't care to see it. Just file it. If it . . . if you think it's all right, fine." No, he didn't delegate to that . . . in that way, but he did welcome others doing the . . . the basic work. But he always felt that he had to answer for the product. MARSHALL: Okay. As I mentioned, there were so many big cases argued during that period of time. A couple of cases where his arguments prevailed would be for the T.V.A. [Tennessee Valley Authority] in Ashwander versus T.V.A. Later . . . much later, the Wagner Act was approved in the N.L.R.B. [National Labor Relations Board] versus Jones and Laughlin [Steel Corporation]. But the heart of the New Deal, the N.I.R.A. [National Industrial Recovery Act], or N.R.A. Act and the Agricultural Adjustment Act in Schechter Poultry Corporations versus . . . versus U.S. and U.S. versus Butler went down the drain. Those were cases that he argued hard on. Did you ever see him really down after some of those cases? In other words, that he'd given everything . . . you'd given everything, [and] probably your staff had, and yet against some pretty good odds you didn't make it. What kind of disappointment did he . . . FREUND: Well, those were two important cases. I . . . I wouldn't agree that they were the heart of the New Deal. I think they may have been the heart of the first phase of recovery, but they were not the heart of . . . of the long-term New Deal like Social Security, the Wagner Labor Relations Act, T.V.A., which were meant to be enduring institutional changes. The A.A.A. [Agricultural Adjustment Administration] and the N.R.A. were meant to tide over a period of acute depression. They were terribly important, but I hesitate to say they . . . I . . . I wouldn't say they were the heart of the New Deal. Well, I think you have to distinguish the two cases. The Department of Justice, the Solicitor General's office, didn't have much faith in the N.R.A. case. We tried--that "we" includes Stanley Reed--to get by without a Supreme Court test until the N.R.A. expired and might be amended. It was to expire by its terms two years from its enactment, and that would be in June, 1935. And the time was approaching when the Court would rise in the spring of `35, and the N.R.A. would not have been tested in the Supreme Court. Which was fine with the Solicitor General's office, but not so fine with the N.R.A., which felt itself slipping administratively and needing some kind of validation to give it more strength and more respect. Anyway, the Schechter case was decided in the spring by the Second Circuit Court of Appeals in New York, and it was decided partly for the government and partly for the complainant. MARSHALL: Was that Judge Hand that . . . FREUND: Judge Hand wrote, yes, for the Second Circuit. The labor provisions were struck down, but the price provisions were . . . were sustained . . . the trade practice provisions were sustained, and the other side applied for certiorari on those provisions. Well, the . . . that left the government no choice. The government then had to apply for certiorari on . . . on the provisions where it had lost, the labor provisions. But it was a . . . an unhappy and unwelcome opportunity for . . . for the government. It came up, in other words, late in the term, and there . . . while Stanley Reed of course gave it his best, I really can't say that he was deeply disappointed or surprised at the outcome. The A.A.A. case was different. Of course, that was close to his heart, having been an agricultural lawyer and knowing the problems of agriculture, and having a great deal of faith in . . . in the legal position of the power of the government through the spending power to induce farmers to curtail certain basic acreage. That, I think, was a big disappointment. And, of course, that was 6-3, and at least he had the satisfaction of a strong dissent from Justice Stone, writing for what might be called the three most admired members of the Court: Stone, Brandeis and . . . and [Benjamin] Cardozo. So, I . . . I would make a distinction between the two cases. MARSHALL: Okay. What sort of input did you have into those briefs in both those cases? Did you have quite a bit? FREUND: No, but they were not primarily my responsibility. I have forgotten who did most of the work on the N.R.A. Robert Stern had a good deal to do with it. On the A.A.A., Alger Hiss, who was in the office really to work on agricultural matters since he came over from the Agricultural Adjustment Administration. That was his speciality at that time. And one of the reasons that I could never understand how he might have been a . . . an active Communist Party member was I didn't see how he had the time, that year at any rate, [chuckle--Marshall] to do [chuckling] anything else but the Solicitor General's office work. MARSHALL: Well, later on, I . . . I believe Stanley Reed testified in his behalf, didn't he? FREUND: Yes, he did, as a character witness. He was subpoenaed, as I recall, and in response he gave favorable character testimony. But, of course, anyone . . . any colleague of Alger Hiss' under subpoena would have testified the same way. If he was a party member, I suppose his value was that he was so highly regarded by everybody. But as I say, from my observation it was difficult to think of him as being an active promoter of the Communist cause. MARSHALL: How did your function change when you went from the R.F.C. to the Solicitor General? You said you didn't work on either of those two cases directly. What were you doing at this time? FREUND: In the Solicitor General's office? MARSHALL: Umhmm. FREUND: Well, I was a kind of first assistant to Stanley Reed. I . . . I reviewed the briefs in opposition to certiorari and the petitions for certiorari. These were the briefs we filed as short briefs before the briefs on the merits were prepared. As his first assistant, I would review and initial those drafts from . . . coming from other members of the staff. I also reviewed the briefs of other divisions in certain areas. Agriculture was not a responsibility of mine, in that sense. I was in charge of the T.V.A. litigation for the Solicitor General's office and, indeed, spent weeks sitting in on the trial in Knoxville. It was a big case. And the holding company litigation, the S.E.C. [Security and Exchange Commission] litigation, and . . . and of course others. But tho- . . . those were the big ones. And I did odd jobs for the Solicitor General. If he had to give an opinion or something of that sort, he might call me in, or he might call someone else in who . . . whose speciality was involved. It was a small office, as I say, and everyone had access to the Solicitor General. It was not really a bureaucracy. But I did have the responsibility of looking at and initialing and reviewing the . . . the petitions and briefs in opposition that were prepared in the office. MARSHALL: That sounds beautifully informal. FREUND: Well, it was. That was the . . . the charm of the office. MARSHALL: One of the things in an earlier interview with Stanley Reed . . . well, the only interview we've had with him, years ago now- -we're talking about . . . yeah, six or so--he was asked about . . . I guess it was after the . . . the Agricultural Adjustment Act decision, whether he thought that we ought to have a . . . a new Court. And one of the traits you mentioned about him in your speech was that he was . . . one of his traits was self-effacement. He said, no, he was thinking about the Solicitor General. [chuckle] He apparently, from one thing that I've read, did write a memorandum about possible Court reorganization, but basically, from what I've read also, he stayed out of that fray. The person I believe that was involved with that was the Attorney General, Homer Cummings. Is that . . . is that correct? FREUND: That is true. It was a very closely held project. He borrowed one member of the staff of the Solicitor General who worked in perfect confidentiality. I certainly wasn't aware of what he was doing. I knew he was doing this special job for the Attorney General, but I didn't know. I . . . I rather think I suspected it was speechwriting, but it turned out that he was doing the hard, technical work on drafting a . . . a bill for increasing the membership of the Supreme Court, unless there were retirements. It . . . it was a rather intricate kind of drafting. That was Warner Gardner. The Solicitor General was drawn into it later when there were hearings on the bill and, as I say, like a good soldier, he testified. But, no, it was Cummings' project. Cummings together with Carl McFarland, who was, I think, head of the Lands Division at the time, but who was the author, or co-author with Cummings, of a book on the history of the Department of Justice, called Federal Justice. So Cummings and McFarland worked closely together. And it was McFarland who had discovered the fact that [James] McReynolds, when he was Attorney General back in 1913 or `14, had suggested for the district courts the appointment of an additional district judge where the sitting judge had reached the age of seventy and had not retired. And McFarland said, "If this is good enough for the district courts, why not for the Supreme Court? And after all, the origin lies in the mind of Justice McReynolds himself, the arch-conservative." And Cummings was delighted. And this appealed to the puckish streak in F.D.R. All of which was very unfortunate, I think. It . . . it . . . because it took on a . . . a note of sleight of hand. MARSHALL: Is that how Stanley Reed felt about it? Did you get . . . FREUND: I . . . I re- . . . MARSHALL: . . . it . . . FREUND: I cannot . . . MARSHALL: . . . you never talked to him about it? FREUND: . . . I . . . I really don't know. I really don't know. I think his dominant impulse was to support the president because the president wanted it. MARSHALL: In that sense and as you've mentioned before, he was, in a sense, a party man and . . . and . . . FREUND: Yes. MARSHALL: Okay. One thing, I'd like to go back . . . I . . . that I should have asked earlier. In the Schechter case, the Court went out of its way to go beyond the basic decision to strike down the A.A.A., because Congress probably could have repaired it . . . FREUND: You . . . MARSHALL: . . . if they'd left it alone. FREUND: . . . you're speaking of N.R.A. now? Schechter? MARSHALL: Yes, I'm sorry. It is N.R.A. and Schechter. Yes, you're right. Did he ever mention this at all to you, as to why they went beyond where they could have stopped? FREUND: I've no recollection of that. I know some of us felt that this was just another evidence of the Court's essential hostility to the administration, acting, I think one can fairly say, in an unjudicial way by taking two mortal strikes instead of one. MARSHALL: You . . . you also mentioned that . . . when you were in Lexington, that at best the Supreme Court was a skeptical one, and at worst it was a hostile one towards the administration. So, that kind of buttresses what you've just said. FREUND: Yes. Well, I guess I said it better in Lexington. [chuckle] MARSHALL: No [chuckling]. What was Stanley Reed's reaction to the appointment of Hugo Black as justice? That was Roosevelt's first appointment, the first break in the Court he had since the . . . you know, the court-packing . . . FREUND: Yes. MARSHALL: . . . business. And . . . I mean, he'd been in for three or four years without being able to replace one of the "Nine Old Men" quote. FREUND: Well, he had been in for a whole four years . . . MARSHALL: That's right. It'd be five, wouldn't it, or six, right? FREUND: Exactly. And that was . . . up . . . up to that time it was, I think, unprecedented that a president went a full four years without at least one opportunity to appoint a Supreme Court justice. As to Reed's reaction to Black's appointment, I cannot testify. My recollection is that Mrs. Reed didn't like it. Hugo Black was, I think, not her idea of a Supreme Court justice. [chuckle] You know, he was . . . MARSHALL: Sure. FREUND: . . . an Alabama populist and . . . MARSHALL: Of course, during the hearings it came out that he'd been a member of the . . . FREUND: Member of the . . . MARSHALL: . . . K.K.K. [Ku Klux Klan]. FREUND: . . . Klan, way back. Well, yes, in his . . . in his campaign for the Senate early on. That's right. But I . . . I don't recall hearing Stanley Reed make any comment on it. MARSHALL: Did . . . you . . . you mentioned Mrs. Reed. I . . . I think I . . . I need to ask this, so you . . . from your observations. Which of the two was most dominant? You mentioned that Mrs. Reed, of course, prevailed upon him to discontinue his argument or at least . . . FREUND: Yes. Well, she was a very forceful personality, and my impression is that she pushed him forward a good deal. He'd . . . he was a . . . a reticent man, rather diffident, inclined if anything to underrate his own . . . his own capacities. She, I think, was very solicitous for him. Some people might call it ambitious for him. She was well connected in Washington socially. And I think she was helpful in making his career, in supplying the kind of driving force that alone he might have lacked. MARSHALL: Did you know her well? FREUND: No, I can't say I knew her well. I . . . I mean, I attended some parties at their house, but otherwise not. MARSHALL: Okay. FREUND: And since I wasn't blessed with a wife, we didn't have that kind of association. MARSHALL: Sure. Did you have an inkling, or did he have an inkling, that he might be next? FREUND: Next on the Supreme Court? MARSHALL: Umhmm. FREUND: Well, again I think it . . . I think it entirely likely that it crossed his mind. I remember when he was made Solicitor General there was a large party in his honor to give him a sendoff, and Senator Barkley was the principal speaker. And I remember his words. He . . . he was an old-fashioned Kentucky orator and I remember his phrase, "If a grateful nation should call him to still higher service, he will be prepared . . ." etc. But I . . . I still remember those ringing words, "a grateful nation will call him to still higher service." Well, Stanley Reed must have heard those words, at any rate, [chuckle] and thus gotten the hint of the possibility. MARSHALL: One of the reasons given for his appointment was all of the- -well, to use probably a later word--flak . . . I'm searching for a better word, that F.D.R. received over the Black appointment. Here you have a man who is quiet. He is conservative in many ways. He's trusted already [phone rings] . . . [Interruption in taping] MARSHALL: Anyway, as I was mentioning, was he, again, the right choice? I mean, he was an obvious choice in some respects in that he would probably make it in on . . . or onto the Court with . . . with not much difficulty, so he was maybe an obvious choice for . . . for Roosevelt. But really, was he a . . . was he a good choice? FREUND: Well, I . . . I think he was. It seems to me that the Court could at that time, and I dare say at any time, have used a solid lawyer with experience in federal law who was inclined toward the goals of the administration, but not an ideologue who had the confidence of lawyers. I won't say the country, because that's a vague phrase and the ordinary man on the street probably couldn't judge. But at any rate, the pro- . . . legal profession certainly had confidence in . . . in Stanley Reed, and as . . . as an offset to the court- packing charge, it seemed to me a good appointment. If the president had appointed a politician, another Hugo Black . . . of course, Black turned out to be a great judge, don't misunderstand me. But at the time, it looked as if he was being appointed because, as a Senator, he was a very strong advocate of . . . of New Deal policies. Reed, on the other hand, was more of a professional. He supported the administration as an advocate in court, arguing that the law permitted what the government was doing, and was not identified a- . . . as a . . . as a politician. So . . . [End of Tape 1, Side 2] [Beginning of Tape 2, Side 1] FREUND: Also, I'm quite sure that the Court welcomed him because they respected him from his work as Solicitor General. And that was important, to put someone on the Court who would not set up a . . . a . . . a kind of counter-reaction among his colleagues, but who would have influence because he was respected. MARSHALL: Do you, again, I've asked this question before, but . . . you know, when he became Solicitor General, but do you remember any reaction at all to his . . . or surprise on his part that he would be the nominee? FREUND: I don't remember anything specific, but in general, he always had the attitude of surprise that he was where he was. And I think it was genuine. I think he'd ask himself, "Now, how does it happen I'm here? Who could have imagined it?" Well, this is a common enough experience, but I think he had it more than most. But I can't remember any specific incident, no. MARSHALL: Where did this leave you? FREUND: Well, it left me still in the Solicitor General's office, this time, however, serving under Robert Jackson, which was a delightful experience and another learning experience. MARSHALL: And he, of course, was to become a justice . . . FREUND: He . . . MARSHALL: . . . in what, `41? FREUND: . . . he first arose to be Attorney General and then, again, a Supreme Court justice, yes. So it . . . I served under Stanley Reed, who . . . who excelled in thoroughness, in preparation, in command of the record and the authorities, and under Robert Jackson, who excelled in the scintillating character of his oral argument. If he had any weakness, it was that he hadn't always mastered the record. He had spent his time polishing his oral argument, which was always a delight to listen to. MARSHALL: What I'd like to do now is . . . is to just talk a little bit about Stanley Reed on the Supreme Court, without really delving in too heavily into . . . in . . . into a lot of case law. It's very difficult, again, from what I've . . . I've read, to pin a label on Stanley Reed. When you look at dissents, like . . . as [C. Herman] Pritchett did, you see that when he first was on the Court, he might have been slightly left of center, and then he moves, in the `40s, into a center position for a couple of years as far as dissents are concerned, if you can look at blocks of justices. And then in his later years, actually from the mid-`40s on, he starts going a little bit to the right. But the makeup of the Court changes, and that's one of the reasons why this happens. I mean, you have new justices coming on so that the . . . what the Court once was, it no longer is, and the decisions, of course, reflect that as the cases come through. Is there any way that you can save me from that morass of . . . or . . . or from . . . from that kind of a . . . a thing in . . . in . . . and . . . in a discussion of Stanley Reed? That's a very broad question, I know. FREUND: No, I think you've put your finger on an important aspect of it, that the . . . what might be called the center of gravity of the Court shifted. Also I think the kind of cases the Court was being called on to hear changed. That is, when he went on the Court and for perhaps a decade or more thereafter, the economic measures were the focal point. And there, thanks, I believe, to his, really, educational experience on the executive side of government, he was aligned with the quote "liberal" group on the Court. But later on, issues of Bill of Rights, civil liberties, rights of criminal defendants, came to the fore, and there his firsthand experience was not so rich, and I think his native conservative temperament led him more often to agree with the quote "conservative" wing of the Court. In issues involving so-called "internal security" or criminal defenses, he was on . . . on the . . . generally on the conservative side. But I think it's fair to say that he didn't have a closed mind. He . . . he could be reached. But statistically, he was . . . he was a conservative on those issues. MARSHALL: Pritchett called him in the `40s the most moderate member of the right wing. And . . . FREUND: Yes. I think that's fair enough. MARSHALL: Were there any other justices on the Court who served with him who seemed to have an influence on his thinking? I'm . . . again, looking at [the] Supreme Court, each of them has an influence on the other, in some cases more than others. Were there justices whom you think that Reed admired, who had . . . may have had some influence on him in various situations? FREUND: Oh, I . . . I don't really know. I think his law clerks would be in a better position to judge that than I am. I'm sure he was a great admirer of Chief Justice Hughes at the beginning. Of course, Hughes retired in `41, fairly early in Reed's tenure. Everyone had great regard for Hughes. Beyond that, I can't point to anyone in particular. He admired [Felix] Frankfurter very much, but certainly often enough disagreed with him. MARSHALL: How about Stone? FREUND: Yes, I think he had [a] very high regard for Stone. And this goes back to the Solicitor General's days when Stone's opinions were very impressive, certainly from the government's point of view. As I mentioned, in the gold cases he . . . he wrote a separate opinion that was, I think, very strong. In the A.A.A. he wrote the . . . the dissenting opinion. And in a matter that is not terribly notorious but was very important at that time to Stanley Reed, so- called intergovernmental tax immunity cases. State taxation of federal agencies, federal taxation of state agencies, where Stanley Reed as Solicitor General led the movement for a change, a reduction on both sides of immunities from taxation. Stone was the leader on the Supreme Court in that very movement. Yes, I . . . I think that's perfectly right, that he had [a] high regard for Stone. MARSHALL: It's been said of Stone that he's been hi- . . . highly admired by other jurists, except for when he became the chief justice. That he was not as good administrating the Court as he was as an associate justice. FREUND: That's my impression, that he . . . he was a better side justice than he was a chief justice. He was more of a soloist than a conductor. MARSHALL: I'd like to briefly go over some of the issues . . . four or five different issues. You've, of course, in some of your own writings have . . . have done this succinctly on a number of things. And, again, to get at Stanley Reed's philosophies as a justice, one of the things from my reading I've noticed is that he tended to avoid challenges to the exercise . . . exercise of executive power. An example would be his and Fred Vinson's dissent in Youngstown Sheet and Tube [v. Sawyer], where we're talking about Truman attempting to . . . to seize steel . . . the steel mills in `52 to carry on the Korean War. Where here he's again being an administration man. Or there may be even something deeper than that, I don't know. Is this, is . . . FREUND: Well, I . . . MARSHALL: . . . [inaudible]. FREUND: . . . I don't think it's entirely fair . . . wouldn't be entirely fair to say he was an administration man in the sense of being loyal to the Democratic administration in power. I think he genuinely felt, again from his experience in Washington, that it was more important to have adequate executive power than it was dangerous to do so. I think that's the balance he . . . he struck. He did not fear the dangers as much as some others, and he felt the need for strong executive authority more than some others may have felt it. That was a balance he struck, and I think it would have been the same whoever was in the White House doing the very same act. MARSHALL: Okay, good. Another thing--you've already mentioned this--he tended to favor organized labor, and we've talked about that. Another thing that has come out is that he was an opponent of censorship, to a degree. In another case, he's held that religion, or organized religion, is taxable when they get into the commercial realm or sector, so that you've got issues of church and state which he's looking at from a slightly different position than the rest of the Court. In another situation, he upho- . . . upheld the Hatch Act, which is not an invasion of the rights of free speech. And also, then, another trait that . . . that I've picked up, that you might want to . . . to say something about: he was very strict with regard to the standards for criminal prosecution. The cases that followed him in the `50s and the `60s must have caused him some concern, [such as] Escobedo and some of those, if he'd still been on the Court. I go . . . again, I go back and . . . and cite the McNabb case . . . McNabb versus U.S. in 1943. Could you comment on that one in particular? Not that particular case, but that particular philosophy. FREUND: Well, he tended to be on the side of authority. He was not sentimental, and perhaps he didn't see larger principles involved in what were, on their face, unappealing claims. In other words, liberals in these fields, [namely] criminal procedure and civil liberties, frequently have had to say that the cause of civil liberties has been espoused by some very unappealing individuals, rogues and rascals. I think Stanley Reed, who did not have a terribly philosophical mind, was more impressed by the fact of rascality and roguishness than he was by the possible principle implicit in the case that might have caused, and did cause, other judges to overlook the defects of the individual for the sake of . . . of a larger cause. I think Stanley Reed was less inclined to take the other end of the telescope, so to speak. He looked at the case before him, and if he felt that a guilty man was convicted, that was a pretty strong presumptive case for upholding the conviction unless there was a plain violation of a clear constitutional mandate. And so he didn't stretch and strain to overturn convictions in the interest of some broad general principle. Again, it was a pragmatic outlook, which has its virtues as . . . as well as its . . . as its shortcomings in a judge. He was . . . he was not given to . . . to philosophizing in . . . in a large sense. He didn't generalize much in his opinions. He stayed pretty close to the facts of the case. MARSHALL: His . . . one thing that surprised me a little bit was his stance on civil rights. Again, he comes from . . . even though he's just across the river from Ohio, he comes from a state that, in some respects, has many Southern characteristics and certainly has a . . . had a tradition of . . . of treating blacks the way the rest of the South treated them. But his . . . his . . . his going along with the decision in the Brown case [Brown v. Board of Education of Topeka] in 1954 was difficult for him, as you had pointed out in the memoranda that you . . . you saw from Justice Frankfurter to . . . to . . . FREUND: Ye- . . . yes. MARSHALL: . . . Reed in the collection. FREUND: Complimenting him . . . MARSHALL: Yes. FREUND: . . . in . . . in . . . in . . . in . . . in really very deeply felt terms, on overcoming what mu- . . . must have been very strong initial impulse and finally led Reed to acquiesce, at least, in what the Court was doing. MARSHALL: At one point, as I've read, he considered writing a separate opinion in that case. Yet, if you look at some of the other civil rights cases . . . his opinion on some of the others in the `40s, they're somewhat consistent with the Brown case. Morgan versus Virginia, declaring unconstitutional rag- . . . racial segregation as far as motor carriers are concerned, it . . . it . . . as it involved interstate commerce. He sided on behalf of blacks in some school cases, some elections, so that there . . . he . . . he's really not hard and fast here. FREUND: Well, I . . . I think that's true. Certainly he was nothing like a racist. And if . . . if a rule of law was, in his view, unconstitutional under the Commerce Clause, it was unconstitutional, even though the result was e- . . . e- . . . equality of treatment for blacks. And similarly, in . . . in egregious cases of discrimination against blacks in jury selection or in . . . in connection with the . . . the application of . . . of criminal law, he would . . . he would support the . . . the claim of the blacks. But when you came to more subtle or deeply rooted social custom, that was harder for him. He got on very well with colored people in the way that a . . . a . . . a tolerant Southern gentleman does. I mean, he . . . he liked his messenger . . . colored messenger [Gerald Ross], for instance. And I remember once the . . . the colored messenger made some response to him that caused Stanley Reed to laugh, and when the messenger left Stanley Reed said to me shaking his head, "They're a very funny people." Which was a rather Southern reaction . . . a Southern tolerant reaction, you know. But not the reaction of a . . . of a . . . of a violent reformer, but a person who knows how to get along with black people. MARSHALL: I . . . I guess my . . . I have the impression that he really wasn't quite ready to . . . to say that this case was the case that we should overturn Plessy versus Ferguson on, which is what happened. That . . . FREUND: Yes. Of course, Justice Jackson was reluctant, too. He was one of the . . . the holders-out, though apparently Reed was the last holdout. Jackson, I think, felt that it should be done by Congress under the power to enforce the Fourteenth Amendment, because it was such a politically charged question. It shouldn't be the Court. It should be Congress that declared desegregation in the public schools. So Reed wasn't alone in . . . in his hesitation. Of course, Vinson, before he died, I think, would also have been on that side. So it was a gradual process of achieving a unanimous Court. MARSHALL: This . . . this is one of the few examples, at least up to that point, where the impact of a decision would be so great by the fact that it was a unanimous vote. FREUND: Yes. MARSHALL: This element you don't see in most cases. FREUND: And they worked very hard for it. I mean, [Earl] Warren did, and I think Frankfurter, helping Warren. MARSHALL: Right. Because Warren's brand new . . . FREUND: Yes. MARSHALL: . . . [inaudible]. FREUND: Yes. He inherited it from Vinson, really. MARSHALL: Okay. You've mentioned this in various ways before, but I'd like to ask it as a total question. Reed comes from a rural background . . . came from a rural background, rather. Maysville is a river town, a small place. It's a . . . one of the earliest settlements in Kentucky, but it's still basically very rural. He worked with the Burley Tobacco Cooperatives, then as . . . he had his work with the Farm Board and R.F.C. All of these factors shaped him as a justice. I've gotten this from what I've read; I've gotten this today from what you've said. His work, again, as Solicitor General working with the government. Were there any other factors that you can think of that had an influence on him beside his wife, for instance [chuckle], as personal factors, and some of the justices we've talked about? FREUND: I don't know . . . I don't know, for instance, whether the church . . . whether religion ha- . . . had that influence. That would be interesting to look into, but I just don't know. I'm afraid I can't go any further on that. MARSHALL: That's fine. Is there anything we have not . . . FREUND: I [chuckling] think we've covered . . . MARSHALL: . . . discussed about Justice Reed? FREUND: . . . all I know and a little more besides. [chuckle]. MARSHALL: Well, on behalf of the University of Kentucky, I'd like to thank you for a very pleasant interview. FREUND: Thank you. I've enjoyed . . . MARSHALL: We really appreciate it. FREUND: . . . it very much. [End of Interview] Paul Freund worked for Stanley Reed while Reed served on the Reconstruction Finance Corporation. Freund opens his interview with a discussion of the Gold Clause cases – specifically the Missouri bonds held by the Banker's Trust Company, Norman v. Baltimore & Ohio Railroad Co., and Perry v. United States. Then he discusses the National Labor Relations Board cases. He also mentions the Bankhead Cotton Control Act of 1934, United States v. Butler, A.L.A. Schechter Poultry Corp. v. United States, and Brown v. Board of Education of Topeka. Next, Freund describes his duties as a clerk, which included doing research, writing memos, and consulting with staff at the Department of the Treasury. When Reed took the Solicitor General position, Freund became his assistant, writing briefs and reviewing petitions of certiorari. Freund comments on Reed's relationships with Louis Brandeis, Homer Cummings, Jay Crawford Biggs, Learned Hand, Harlan Stone, Benjamin Cardozo, Hugo Black, Robert Jackson, and Alger Hiss. Other topics he mentions include the time constraints on arguing a case before the Supreme Court, Justice Reed's political philosophy, Reed's views on civil liberties and criminal procedure, and the Agricultural Adjustment Administration. Kentucky Politics

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