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1981-03-19 Interview with John T. Sapienza, March 19, 1981 Reed001:1981OH036Reed04 00:41:51 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 John T. Sapienza; interviewee Edward Gilson; interviewer 1981OH036_Reed04_Sapienza 1:|10(12)|19(11)|35(1)|43(12)|60(1)|66(6)|74(2)|83(2)|91(10)|107(6)|116(3)|126(5)|144(4)|154(4)|167(3)|176(6)|187(11)|224(2)|252(2)|264(2)|282(2)|296(9)|310(7)|322(12)|345(5)|362(2)|374(11)|383(1)|394(8)|403(2)|412(5)|442(3)|453(9)|465(9)|484(1)|493(9)|500(8)|510(12)|520(8)|529(12)|538(7) audiotrans SFReed reed001:interview GILSON: Okay. Well, first of all, Mr. Sapienza, could you tell me a little bit about yourself: where you're . . . where you're from, where you went to school, and how you came to be a clerk of the Supreme Court? SAPIENZA: I was born and raised in New Jersey. I . . . attended Harvard College and Harvard Law School. I was pointed by then Professor [Felix] Frankfurter as law clerk to Judge Augustus N. Hand, [for] the Court of Appeals for the Sec-. . . Second Circuit. And in the spring of 1938, Mr. Frankfurter called me and asked how I would like to clerk for Justice [Stanley F.] Reed. I told him I thought that sounded . . . sounded very interesting. He . . . he then said, "Make an appointment to see the justice, and he'll tell you about it." I went to Washington. I met with the justice for the first time in the spring of 1938. He offered me the job, and I accepted, and I reported to work, I think it must have been July 1, 1938, for the October 1938 term. Harold Leventhal had been his first . . . was his first law clerk, having clerked for him from February 1938 until the end of June. He gave me some instructions, and then I reported for work. I keep thinking it's July 1. I . . . I'm not too sure about that, however. In any event, I was there for the October 1938 term. GILSON: Okay. What were your first impressions, or your initial impressions, of . . . of . . . of Stanley Reed? SAPIENZA: Very favorable. He is a . . . was a perfect gentleman, a very kind person, not at all arrogant, if anything on the modest side, very genial and very considerate of people. GILSON: Did your . . . did your im-. .. your impressions change of him throughout the years? SAPIENZA: No, they did not. They. . . if anything, they became stronger. He was always very kind and considerate. He had a good sense of humor. He . . . he never imposed on his law clerk, although the law clerk always wanted to get the work done on time. He often had me come into lunch with him so we could save time and discuss cases. He would talk about the Court, he would talk about his life in Kentucky, his educational experiences, his court experiences, his work at the Solicitor's General's office. He would always cap it off by saying, "And now he had the finest job in the world." [chuckle--Gilson] I would often say to him [that] it was a pretty tough job. You are working long hours. In those days, we all worked six days a week. We all worked all day Saturday. His answer was "no." He said, "I find this one of the easiest jobs I ever had because I find it so interesting." GILSON: Hmm! Well, I'd like to get back to those topics that you talked about over lunch in a little bit. But . . . well, describe . . . describe your work as a clerk throughout the . . . throughout the year. SAPIENZA: Well, we're talking about a period that occurred a long time ago . . . GILSON: Yeah. SAPIENZA: . . . and human memory is fallible. My recollections are these. The justice had the corner office, and I had a . . . an office right next to his with a window. [A] fairly narrow and long office with a desk, a typewriter, which was absolutely essential, and there were a number of services there that I could use and didn't have to go to the library all the time. What happened was that as petitions for certiorari and appeals came in, the copies were delivered to the law clerk. My task on these was very specific: I was to review them carefully and prepare a one-page memorandum, and I had to summarize the facts, the issue, and then put down my recommendations, whether certiorari should be granted or denied and the reasons, and whether the appeal lay or did not lay and the reasons. When the Court started hear- . . . hearing arguments, the work would . . . could take several ways. One, the justice might give me the briefs and records of a case to be argued and ask me to read it all and then discuss it with him. Or he might simply call me in and say this case is going to be argued, and I think I'd like a little research and a memorandum on a specific question. After the cases were decided, he had his book where he jotted everything down with a key, and he kept everything locked. He would tell me how the decisions had gone, what cases, how the cases had been assigned, what cases he had. My job then would be to get the . . . the cases that he was assigned and read them very carefully. Sometimes he wanted a memorandum. Sometimes he'd simply give me a draft of an opinion, and my job then was to be sure that the facts were correct, the citations were accurate, that his reasoning made sense, and if I disagreed, I . . . it was up to me to say so, and say so in no uncertain terms. He was not one of those justices who gave the opinions to his law clerks to write. As a matter of fact, during the entire term, he asked me to prepare a draft opinion in only one case, and it was a very simple little case involving a . . . an issue, I think, involving some railroad employee. And that's the only draft I prepared for him. Every other opinion he drafted himself. And my job was . . . I . . . I could, of course, make suggestions, and I did some editorial, some supplementive. My biggest job was to make sure he didn't make a . . . a grievous mistake of some kind. GILSON: Well, then . . . then . . . SAPIENZA: And in particular, my job was to see to it that he wasn't citing cases that had been overruled or reversed. [chuckling] GILSON: What kind of a writer was . . . was Stanley Reed? Was he a fast writer? SAPIENZA: No, he was not a fast writer. On the other hand, he could write . . . actually what he did, he dictated the opinions to Helen [Gaylord] for the most part. At least a draft, and then he'd work on them, revise them. I wouldn't call him a stylist, but he had a good, clear method of expressing himself. He did not believe in purple language or embellishments. He thought the opinion should be such that it would not be misunderstood. In the course of that, some of the most interesting experiences were when he and other justices got into arguments about cases. He did not hesitate to throw me into the fray, particularly when Justice Frankfurter came on the bench. He would often send me to the justice to explain his side and why he was taking it [chuckle]. And from time to time, Frankfurter would come to the . . . my office to try to persuade me to persuade the justice to change his mind. And once or twice when they saw things eye to eye and the question was how to persuade some other justice to change his mind, they would . . . I would be asked, from time to time, to prepare memoranda. And I remember one instance where I . . . I was asked to discuss the views of Reed and Frankfurter to Justice [Harlan] Stone. I did that, and he came around to their point of view. But it was a very, very interesting life. You . . . you never knew who . . . whom you were talking to. The one thing that I did regret is we had the old conservatives on there. [Willis] Van Devanter . . . no, I guess Van Devanter had gone off, but [Pierce] Butler, [George] Sutherland and [James] McReynolds. There was no interchange of views, at least between the law cl- . . . law clerks and those justices. But . . . and that there were . . . there was interchange of views, though, between law clerks, except I don't think McReynolds' law clerk was there. Butler's law clerk and Sutherland's law clerk were there. We . . . we argued with them, but it was pretty obvious their philosophy . . . the philosophy of their justice was different from the philosophy of my justice. GILSON: Radically so, I'm sure. SAPIENZA: Yeah. GILSON: How . . . how was the . . . the old Court? Of course, [Charles] Hughes was . . . was chief justice. Tell me about Hughes. I'm . . . I'm interested in Hughes. SAPIENZA: Well, Hughes was a regal figure. Well, maybe I ought improve on that. I guess if you ever thought of Zeus on high, [chuckle--Gilson] that was Justice Hughes. And he was held in the greatest respect by Justice Reed and by Justice Frankfurter as well. Incidentally, there wasn't much contact between me and Justice [Hugo] Black or Justice [William O.] Douglas, but I knew their law clerks very well--Dave Ginsberg, and a fellow by the name of Cooper, who is practicing law down in Birmingham [Alabama]. So we argued the cases at least among ourselves. Hughes ran that Court with a . . . and ran it well, I think, particularly when he had what I could only call "wild horses" going in different directions. He had the respect of everyone, including the conservatives, at least as far as I could tell. I never saw much of Mr. McReyn- . . . Justice . . . Mr. Justice McReynolds. He was the [inaudible] at that time of all the law clerks, particularly those recently out of law school. Incidentally, some of the law clerks had been there many years. Pierce Butler's law clerk was with him many years. I think Sutherland's law clerk was with him many years. The rest of us kept changing. At the end of one year, off we went. Justice . . . the chief justice had two law clerks at that time. One of them was Ed McElwin, who later became my partner in this law firm. And the other one was a man whom I don't recall, but . . . who was a lawyer and a very expert typist, and he handled all the [inaudible] cases. There weren't as many then as there are now. GILSON: I'm sure of that. SAPIENZA: Yeah. Well, I can't tell you much about the chief justice other than what I saw of him on the bench, and he ran that Court very well. There wasn't any social life involving him in which I got involved. Justice Reed had a tea, I believe it was weekly, and the law clerk attended. And then all the people who came to tea and, I guess, most of the important Washingtonians came to that. That was an exciting adventure. In addition, my roommate was Adrian Fisher, who was law clerk first to Justice [Louis] Brandeis, then to Justice Frankfurter. He's . . . his office was in an apartment house on California Street. We rented a couple of rooms from a maiden lady in that building. I would head down to the Supreme Court Building every morning. Butch Fisher would stay there because Justice Brandeis lived on the top floor and had a one-bedroom apartment, about the fourth floor, and that's where his law clerk stayed. When the justice . . . when that justice died and Fisher moved to Justice Frankfurter, why, then we would drive down, pick up Justice Frankfurter every morning and drive into the Supreme Court. Justice Frankfurter was then living in Georgetown. And then from time to time we'd drive Justice Reed home to the Mayflower [Hotel] in the evening when we were leaving. GILSON: Was [Benjamin] Cardozo still on the Court at the time, or had he retired by the . . . by the time you got there? SAPIENZA: You know, I'm hard put to think. Didn't . . . whom did Black succeed? Was it . . . was it Cardozo? GILSON: No. Black took Van Devanter's . . . SAPIENZA: Van Devanter's, and Justice Reed took whose place? GILSON: I thought it was Sutherland's. SAPIENZA: Sutherland? GILSON: Umhmm. SAPIENZA: And Douglas came . . . GILSON: Then Frankfurter came. I don't know if . . . SAPIENZA: Well, Frankfurter took Brandeis' place. Maybe . . . GILSON: Okay. SAPIENZA: . . . maybe Douglas took Cardozo's . . . GILSON: Cardozo's. SAPIENZA: . . . place. GILSON: Okay. SAPIENZA: If so, then, yes. He was there when I first got there, because I think Douglas came after Justice Reed. GILSON: Umhmm. Oh, yes, he was . . . SAPIENZA: Yeah. GILSON: . . . quite a bit after him, I believe. SAPIENZA: Umhmm. Let's look at the roll I got here. Did . . . they didn't put the name [Sapienza flips pages] or the roll of justices here except when they dissented. When they dissent there. Oh, [Owen] Roberts was there . . . GILSON: Umhmm. Yeah. SAPIENZA: . . . at the time. McReynolds and Brandeis were there. GILSON: Stone was there. SAPIENZA: Stone was there. GILSON: Brandeis for the first half, and Frankfurter for the second half. SAPIENZA: Black was there. GILSON: Black, yeah. SAPIENZA: He preceded, I guess among the old justices, Brandeis, McReynolds and Butler. GILSON: Yeah. Pierce Butler. SAPIENZA: Roberts. Yeah, Black dissented on one opinion they had. Yeah, McReynolds and Butler were the old timers. When Frankfurter joined, he had Brandeis' place. Well, let me say if . . . I really have no . . . no recollection of Justice Cardozo if he was there. GILSON: Okay. SAPIENZA: Yeah. I suppose it would have been a lot simpler to pull down a Supreme Court opinion. This is a book of the justice's opinions. He was good enough to have it bound and he gave it to me as a going-away present. GILSON: I remember a . . . well, I remember going through this year, and all the galleys and galley proof series. SAPIENZA: Yeah. Yeah. GILSON: How many New Deal cases were . . . were on the . . . I mean, I don't need an exact number. Were the majority or were a substantial number dealing with . . . you have . . . have . . . SAPIENZA: Well, by the time I got there . . . let's see, we had a . . . some labor relations cases. GILSON: Umhmm. SAPIENZA: We had the milk cases. GILSON: Yeah. SAPIENZA: Those were really most of the ones I recall as involving what you'd call "the New Deal issues." GILSON: There was the . . . the Rock Royal Cooperative. SAPIENZA: Yeah, the Rock Royal Cooperative. That's the milk. That involved the question whether the government had power. GILSON: Let's . . . let's . . . let's get back dur- . . . during those lunchtime sessions. He talked about his life in Kentucky. Can . . . can you elaborate on that some? SAPIENZA: Well, there he did the usual reminiscing about it, must have been a wonderful life. A wonderful part of the country. Obviously, it was the . . . the late nineteenth century, early twentieth century. He enjoyed it all very much, and he certainly had an interesting educational career, including either a year or two at the Sorbonne. He never did explain why he didn't bother to take a law degree, but maybe the answer is in his day so many people became lawyers just by reading in an office, that a law degree wasn't that important. My recollection is that he studied law at . . . was it Columbia, the Sorbonne and the University of Virginia. GILSON: In his . . . we were talking about his Columbia Oral History thing . . . SAPIENZA: Yeah. GILSON: . . . earlier. I believe I read in the transcript of that . . . I don't . . . I'm not entirely sure it's from there, but he said that he went to the University of Virginia, stayed a year, decided that was all he needed, came back to Maysville and his wife made him go on and do the other . . . do the other law school. SAPIENZA: Yeah. Of course, he loved Kentucky. He . . . he had a farm there, and he always went back there every summer. Then he . . . you may recall, he came to Washington really under the Hoover administration, and then stayed on through the New Deal. My recollection is he was with the R.F.C. [Reconstruction Finance Corporation], and then from the R.F.C. moved on to Solicitor General, and from Solicitor General to . . . to the Supreme Court. GILSON: Yeah. You said he talked about his Solicitor General days, too. SAPIENZA: Yes, he . . . he was very humorous about it. I think he sometimes said he had to boast that he had lost more Supreme Court cases then any Solicitor General. [laughter] And he was there during the tough times. It was only towards the end that they began loosening up. GILSON: Did he ever talk about the time that he . . . that he passed out in front of the Court? SAPIENZA: No, at least not to me. GILSON: Yeah. SAPIENZA: I didn't . . . I didn't learn about that until the memorial service. GILSON: Oh, really? SAPIENZA: Yeah. So I . . . I hadn't . . . never talked about that. GILSON: How did the other . . . the other justices treat Stanley Reed? SAPIENZA: They . . . they treated him with respect. And certainly I never heard any of them talking down to him or criticizing him. And, as I say, he got along with everybody, including McReynolds and Butler. He was such a Southern gentleman that everybody was at least polite to him. GILSON: It must be quite a feat to get along with McReynolds and Butler, from what I've . . . I've heard about them. They . . . SAPIENZA: Well, no, Butler wasn't too bad personally. His philosophy was very conservative, but at least he wasn't discourteous the way McReynolds could be. GILSON: Okay. SAPIENZA: And let me say I never saw any actual discourtesies on the part of McReynolds, because all of these were hearsay and they were told to me. He certainly was very discourteous to Cardozo and to Brandeis both. But as far as I know, he at least treated the others at arm's length. GILSON: Well, you said before that he [Reed] had a . . . a sense of humor. Why . . . why does the public always get the image that Stanley Reed was very austere, very serious? SAPIENZA: I don't know why the public got that idea, because he certainly smiled a lot and laughed a lot and joked a lot. I couldn't say. When he gave his speeches to the law clerks, he always had a couple of humorous touches. Now, whether when he made speeches elsewhere and whether he seemed very austere at that point, I don't know. They certainly were wonderful hosts. They gave their teas, and then they would give a . . . well, there was always a party for law clerks, for example. Those were occasions to which all of us looked forward to and enjoyed going to. Mrs. Reed was a very charming lady. [She was] always interested in . . . in the law clerks and their wives, their families. And then John Reed, the . . . the bachelor son, used to come down all the time to all these parties. We got to know him well. Stanley had a family and couldn't get away as much. GILSON: How did those law clerk dinners ever come about? I can't imagine them adding . . . SAPIENZA: I . . . I don't quite know how . . . how they got started, but you . . . I wouldn't put it past Leventhal getting them started, or Leventhal and [Bennett] Boskey. They are both very gregarious people. They loved the justice, as all of us did. In any event, the first dinners were at the homes of the law clerks. I can't recall the first dinner, but I remember I had a dinner at our house on Loughborough Road in the early `50s. It could have been `51 or `52. And my younger son was quite young, and I remember my then wife telling him that when Justice Reed came, he . . . he shouldn't make comments about his lack of hair. Jimmy was one of these irrepressible children, very loving, very affectionate, but always making comments. And sure enough, when the justice was there and before we could put him to bed [chuckle] he went over and sat on the justice's lap and then looked at him and said, "What happened to your hair?" [laughter]. At which point my wife grabbed him and took him upstairs, but he enjoyed it. And I don't suppose there could have been more than ten or twelve law clerks at the time, `38 to `50. I don't know whether they had started the double law clerking or not. But I remember we had a dinner at Harold [Leventhal]'s house for the justice, and they had a dinner at Boskey's house for the justice. We may have had dinner at one or two other law clerks' homes. Then we decided that the numbers were getting too big for parties at homes, and we started having dinners at the . . . the clubs at . . . I said we had . . . I recall we had some at the Metropolitan Club, some at the Army/Navy Club where Harold Leventhal belonged. I belonged to the Metropolitan Club. That went on until we got so big we started . . . I think we shifted to the Madison Hotel for a number of those for dinners. GILSON: I remember seeing the pictures toward . . . for his twenty- fifth anniversary . . . SAPIENZA: Yeah. GILSON: . . . dinner, and it was . . . SAPIENZA: Yeah. GILSON: . . . wall-to-wall clerks. SAPIENZA: I've got some in there, but I'm sure you have seen them all by now. GILSON: I've seen quite a number of them. Yeah. SAPIENZA: Yeah. GILSON: Every now and then I see a new one. I wonder why we don't have it in our collection. SAPIENZA: Yeah. GILSON: But let's . . . let's get back to the . . . to the business at hand. How did he treat his law clerks overall? Was it . . . was it as . . . was it better to work for . . . for Stanley Reed then it would have been to work for another justice, or . . . SAPIENZA: That's a hard one to answer. All I can tell you is that every law clerk I know has indicated he enjoyed his year with the justice very much. I certainly did. It was one of the finest years of my life. And I suppose he worked differently with each law clerk. I suppose his techniques changed, and when he had two law clerks, he had to do things a little differently, but he was a very interesting period. You . . . you could speak your mind. As a matter of fact, if you didn't, he'd be disappointed. He didn't expect you to agree with him, and I remember one little incident when Fisher and I were driving him home . . . this was . . . Fisher owned the car, and we were driving him home, and Fisher was having a hard time with Justice Frankfurter on a certain case. Fisher and I . . . and I agreed what the decision ought to be, and Justice Reed agreed with us, but Justice Frankfurter did not. Fisher, as he was driving along, he said, "I . . . Justice Reed, you . . . you just got to work on Justice Frankfurter and persuade him." And the justice laughed. He said, "How can I hope to persuade Justice Frankfurter when I can't persuade my law clerk on some matters." [laughter] That's the reason I say he had a sense of humor about . . . about everything, and he . . . he was never critical or backbiting about other justices. He never made any unkind remarks about any of them. I read . . . of course, you've read The Brethren where, at least today, some of these justices really lambaste some of their brethren. But . . . GILSON: And, of course, I'm not . . . man- . . . many of the . . . the clerks I've talked to said The Brethren was strictly . . . strictly sensationalism. SAPIENZA: Yeah. GILSON: It probably is . . . is somewhat true. Of course, there's always a little controversy, but it never reached the . . . SAPIENZA: Well, we . . . GILSON: . . . scope. SAPIENZA: . . . we had the same controversies, and these men believed passionately in their own conclusions. But they never reduced them [inaudible] arguments, nor did they try to depreciate the other justices. GILSON: This may seem like a . . . another hard question. Did Stanley Reed start [as a] liberal and gradually go conservative in his Court career, or he did he pretty well stay the same? SAPIENZA: I don't know that I can answer that. I don't think he ever claimed to be liberal. I think more he believed in a strong central government and didn't think the Constitution precluded that. And he thought that the government had the power to do everything that was necessary to solve any problem that had to be solved by the national government. So if supporting congressional legislation was liberal, then he was a liberal. I don't think he termed himself liberal or conservative or anything else. We didn't have many civil rights cases in those days. So, again, I don't know what to say about that. The later law clerks might be able to talk about that. GILSON: Well, I think that's about all I have to ask you. If you'd care to add anything else, please . . . please do so. SAPIENZA: Well, I don't know that there's much that can be . . . can be added, except that these . . . these dinners, one of the highlights would be the comments of the justice. And in the early days, he would review what had gone on in the Supreme Court and what he did and why he did it. And again I say he had a great sense of humor, and the problems that he had with his law clerks [laughter] in expressing his views. Then as he retired, he still followed the work of the Supreme Court with interest and would comment on what had gone on. Of course, he also for awhile was sitting as a judge in other courts, and he would tell us about those. And one of the highlights of his judicial career was when he sat with Judge Leventhal. I . . . he was very pleased with that. He hoped there'd be more judges, but there weren't. Judge [David] Schwartz was really a . . . what they'd call a "commissioner" at the Court of Claims. But as it happens in this world, we've had inflation in titles. [chuckle--Gilson] They're now trial judges instead of commissioners. Mrs. Reed was present at every dinner, and at first we didn't have the ladies present, and then we decided the wives should attend all dinners. And I think that added a great deal and the ladies enjoyed the dinners. I think he was a . . . an optimistic person. He recognized there were serious problems, but he felt that was life, and we were here to solve them as best we could. He never despaired. He thought all his law clerks were great, although I don't think you can find a more disparate group of men in terms of views. Well, I must say, I think they're all able people, and maybe I can go a step further, and above average ability. He started off . . . he . . . first he took his law clerks from Harvard Law School, and then he began taking them from other law schools. So that . . . well, I actually, I was just out of Harvard. Leventhal was Columbia, then I was Harvard. [John H., Jr.] Maclay, who succeeded me and unfortunately died, was Harvard. [Philip] Graham, who became the owner and publisher of the Washington Post, was Harvard and he died, unfortunately. Then Boskey and Schwartz. I think then about that time he started taking them from all schools, including Harvard. Ed Zimmerman is Columbia . . . from Columbia. GILSON: Yeah, I . . . I can't remember [chuckle] when he did start branching out, but he did. In fact, he eventually took them from such varied schools as North Carolina. SAPIENZA: Yeah. Yeah. GILSON: That was, of course, after his retirement, but . . . . well, I thank you very much. SAPIENZA: Not at all. [End of Interview] John Sapienza clerked for Justice Reed from 1938 to 1939. In his interview, he describes the daily tasks of Reed's clerks, which included writing briefs and reviewing and commenting on petitions of certiorari. Sapienza also recalls Reed's opinions of Justices Pierce Butler, George Sutherland, James McReynolds, and Charles Hughes. Kentucky Politics