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1981-03-20 Interview with William D. Rogers, March 20, 1981 Reed001:1981OH038Reed06 00:33:13 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 William D. Rogers; interviewee Edward Gilson; interviewer 1981OH038_Reed06_Rogers 1:|9(12)|31(2)|40(10)|49(13)|60(15)|73(13)|85(9)|95(12)|107(3)|116(2)|131(1)|145(13)|161(6)|175(8)|191(5)|204(6)|223(8)|238(2)|262(4)|269(3)|281(6)|300(7)|315(2)|322(1)|334(6)|352(7)|372(10)|387(2)|406(4)|416(5)|441(3)|452(6) audiotrans SFReed reed001:interview GILSON: Well, Mr. Rogers, I . . . I guess the first thing you could tell me is a little bit about yourself, your background, your education, and how you came to be a clerk of the Supreme Court. ROGERS: Princeton University, 1948, undergraduate. Yale Law School, 1951. While I was there, I--in the law school--was cl- . . . close to Fred Rodell, who was a good friend of Charlie Clark's. And Fred recommended me to Charlie Clark as Charlie Clark's law clerk, and I clerked with Judge Clark on the Court of Appeals for the Second Circuit the year 1951-`52. And Judge Clark recommended me to Stanley Reed by letter. And I . . . I can't remember if I had an interview with Justice Reed or not. I think I didn't. GILSON: Really? ROGERS: Yeah, I think I didn't. Maybe I did, but I don't think so. GILSON: He took you sight unseen? ROGERS: I think so, yeah. But I may be wrong about that. My recollection is that I . . . the first time I came here was the day he wanted me to start working, which was, I think, the . . . the Monday after Labor Day. My pregnant wife and I drove into town, I got off at the Supreme Court, and that was the beginning of it. And she went to look for an apartment. GILSON: What were your initial impressions of . . . of Justice Reed? ROGERS: Oh, I don't know that I can separate the initials from . . . the initial impressions from the others. He was consistently throughout cordial, Southern, warm, friendly, all the adjectives that, I'm sure, universally are used by everybody to characterize him. All friendly and congenial and considerate and . . . and decent and nice and patient, and so forth. GILSON: Well, I guess the next step would be . . . why don't you describe your year as a clerk: what you did, the processes the office went through, the court it went through? ROGERS: The routine, as I recall it, consisted of dividing up all of the petitions for certiorari and other papers . . . other cases between the two law clerks. We only had two. My colleague was Bob [Robert L.] Randall at the time. We would each read the petitions for certs then and write a one or two page memorandum to the justice, which was on paper which fitted into a three-ring binder notebook, the same size as the . . . as the printed briefs and other court papers. And then that collection of papers, including our memoranda inside the top document, would go in to the justice. He would read them. And then in a case of petition for certiorari, take them to the conferences and decide on his vote on cert petitions. Then the same process would be pretty much repeated with respect to the arguments on the merits. We would read with respect to a case in which cert had been granted, one of the other law clerks would read the . . . the briefs, write bench memoranda for the justice identifying the major issues, suggesting how we think the . . . the case ought to come out. And he would consider that before the oral argument. And then sometimes additional memoranda would be written, if I recall correctly, before the conference, based on the oral argument. And then after the conference, with respect to those cases which were assigned to him, he would ask us to prepare first drafts of m- . . . of opinions, which we often did. And then they would go through either a greater or lesser process of change in the course of his rewriting those first drafts. Sometimes the first draft would be scrapped completely, sometimes they'd be taken over in very large part by the justice and made his own, [and then] circulated to the other justices, and then either voted up or down and announced. GILSON: Did you ever have any that . . . that he liked so well that he, just with minor change, pretty much passed on? ROGERS: Whew! I . . . I . . . you know, it's funny. I don't remember that as clearly. I had gone through the same process with Judge Clark in which that had happened on a number of occasions. Where he had taken draft opinions and . . . and put them as his own with moderate . . . moderate changes. I . . . I don't remember . . . I think it did happen in some instances, but I probably would have to go through the . . . the body of opinions that he announced that year to really be able to say with any clarity, and even then my memory would probably be foggy. I have a sense there were a few opinions in which he was able to adopt the bulk of them as his own without excessive change. GILSON: Umhmm. What kind of a writer was . . . was Stanley Reed? ROGERS: Well, he certainly wasn't a quick writer. He worked very doggedly and patiently. He was quite a contrast to [William O.] Douglas, for example, who was at the other end of the . . . of the spectrum in that respect. Douglas would first-draft everything and put it out without re-drafting it, and first-drafted in a very rapid way. Reed was on the . . . at the other end of the spectrum. As I say, very dogged, very patient. He was not a flashy writer, but he was a . . . he valued clarity very highly. Clarity of expression. He was . . . did not seem excessively concerned with a style which would be flashy or . . . or appeal just on stylistic grounds to the reader. He wanted something which was essentially lawyerly, which meant clear and well-reasoned. That was . . . those were the basic aspects of his style, at least the kind of style that he admired in opinion writing, as I understood it. GILSON: Okay. How did he relate to the rest of the Court, now that we've mentioned Douglas and broken the ice on that? Or, basically, did he give any opinions about anybody else on the Court? ROGERS: Never . . . I don't ever remember him saying anything negative about any of the other members of the Court, and I don't remember him as having played any role in . . . in any of the Court gossip or alleged conspiracies that existed amongst various factions of the Court. I don't think he . . . I don't think he had any of the personal loyalties or misgivings about other members of the Court that Douglas, evidently, had, and Black had, [and] some of the other members of the Court. He was probably the most collegiate, if you will, of any of the members of the Court when I was there. Others may know more about . . . about that aspect of him. But I don't recall, during my term with him, at least knowing about any of the petty personal aspects of the Court relationships that have come to the surface recently. GILSON: Okay. What about the rest of the Court in general? Can you tell me anything, for instance, about Chief Justice [Fred M.] Vinson? Did you ever meet him? Did he . . . ROGERS: Yes, occasionally. Yeah. I think that was Vinson's last year, and . . . GILSON: That's right, it was. ROGERS: . . . yeah. He was . . . he did not overwhelm one with lawyerly qualities, for one. And it was clear that he'd come to the Court . . . in other words, he wouldn't have been on the Court as a . . . but for the fact that he had been a successful politician and a confidant of . . . of the president . . . of President [Harry S.] Truman's. And one didn't . . . the contrast between him and his successor in terms of capacity for leadership on the Court and a capacity to manage the Court as a human institution was quite remarkable. And one also had the feeling that he was not as enthusiastic about the work of the Court as he might have been. GILSON: I . . . I've heard some things along that line, swapping baseball stories with the clerks and whatnot. ROGERS: Yeah. A very affable and human fellow, and interesting for young people to be around because he's had such a long and interesting experience here in Washington. GILSON: Did you ever know [Felix] Frankfurter? ROGERS: Yeah, I saw him occasionally. He . . . he was obviously interested in . . . in building constituencies amongst the clerks, not just his own. And he went out of his way on a number of occasions to talk to me and send me notes from the bench, and I would send him notes when he was on the bench occasionally just as a kind of a joke. I think he felt comfortable in that because he felt that Reed was a friend, and that there was no institutional animosity in that office as there was from Douglas' office, as far as Frankfurter was concerned. No, there was . . . I enjoyed him very much. He was a colorful figure and a wit, an intellect, obviously a great scholar of the law, and . . . and was one of the giants of the Court at the time, a Court which was not overwhelmed with giants. GILSON: Yeah. ROGERS: I had spent the year before, as I mentioned, on the Court of Appeals of the Second Circuit, and Learned Hand was still around, and Gus Hand and Clark and Jerry Frank. And that was a court where the . . . where the average per capita intelligence was somewhat higher than it was on the Supreme Court. It was something of a comedown. But Felix was an exception to that rule, in my opinion. GILSON: Umhmm. Now, I've heard . . . yeah. Well, Frankfurter was called by another clerk as being "the ultimate intellectual snob," as well. He . . . I don't know if that's accurate or not, but it was certainly a . . . ROGERS: I don't see him as an intellectual snob. I see he was very . . . intellectually very democratic. I mean, in the sense that he . . . although he didn't try to hide his intellectual achievements, his broad reading and experience were his intelligence. He was very democratic in sharing it with others, at least from what I could see, my experience. And he met a lot of clerks. He'd like to be with clerks, young people, women. No, I think if any . . . if anything, Douglas was much harder to reach. Douglas was, in a sense, more snobbish than Frankfurter. GILSON: Yeah. ROGERS: In the sense that he really . . . there were very few people that he reached out to. He was very withdrawn compared to Felix. GILSON: Well, the other . . . the Truman appointees, [Tom C.] Clark, [Harold] Burton, [Sherman] Minton? ROGERS: Minton was . . . was unimpressive. In fact, impressive for being so unimpressive. Burton also. Very slow, plodding, long working, uninteresting mind. Clark, except for a few flashes in his opinions, was a disappointment because although he had . . . he had come to the Court as . . . as Truman's attorney general in a way, he didn't . . . he wasn't as consistently a member of the liberal wing of the Court as one would have expected. And there were times when Clark seemed to be turning away from the liberal tradition that had put him on the Court. GILSON: Were you on the Court for the . . . for the Rosenberg case? ROGERS: Yeah. I . . . see, I had left the Court to come with this law firm when . . . when Douglas had granted, or had . . . yeah, I guess he issued an injunction. And then . . . and then Vinson called for [inaudible] rehearing, and we all rushed back and our car-. . . I got back to the Court . . . it was at . . . late at night in the afternoon when Vinson had done that before Reed got back. And so did Randall. It was a . . . it was a very tense and exciting time. And we worked overnight on the issue that Douglas had issued the injunction on. I don't remember what it was. GILSON: I believe it was the jury in that particular case had to recommend the death penalty and they didn't. ROGERS: Is that what it was? GILSON: And . . . ROGERS: They had not? GILSON: They had not. ROGERS: But the death penalty had been opposed by the judge, and there was some question about the judge's [inaudible]. GILSON: Umhmm. Yeah. ROGERS: [inaudible]. I had forgotten. That's funny. Anyway, we worked overnight and wrote a bench memorandum for the . . . for the justice urging that he sustain or . . . or support Douglas' injunction against the execution. And we failed to persuade him on that. I think they had a conference before, and then they had the argument that day, and then conference again. And I recall that we discussed the issue with the justice on one or two occasions at least. And there was . . . we had conferences, which were fairly unusual. He didn't talk about most of the cases with us. Most of the times he would . . . the . . . the relationship was confined to the exchange of memoranda and exchange of draft opinions, both ways. But in this case we did talk about it at some length. Anyway, he finally wrote it for . . . to allow the execution to go forward. GILSON: I don't what the split was on that. Do you recall how the . . . how the Court went in general? ROGERS: Well, [chuckle] I don't. It's in the record. But my impression is sort of vague that it was . . . it was awfully close, that he might have been a decisive vote. GILSON: Umhmm. Other such . . . [or] what I thought were interesting cases, of course, the big habeas corpus cases were in your term. ROGERS: Randall must have worked on those. GILSON: Okay. ROGERS: I don't remember those at all. GILSON: This is Brown versus Allen and . . . ROGERS: Brown I worked on. And my recollection is . . . I . . . I suppose the recollection that . . . I'm not sure whether it's my recollection or what I've heard since then, or whether they're both consistent. But my recollection is that Reed had not made up his mind but had tried out, maybe even in writing, a vote to re-confirm Plessy versus Ferguson. And I know that I spent a lot of time writing memoranda to him about the case and also discussing the case with him, and being quite committed to the proposition that Plessy ought to be reversed. My recollection also is that the case was argued in a very dramatic argument during our term, and I'm not . . . and then, of course, was re-argued the following term and finally decided. And I don't remember whether or not Reed had . . . had decided to . . . how he . . . whether he decided how he was going to vote by the time I left the Court or not. And I certainly can't confirm that the vigorousness with which I--and I think Randall also got into this-- argued for reversal of Plessy had any effect on his ultimate decision. I know this case had troubled him very greatly, and I am sure, although I don't recall anything specific to support this, that one of the major considerations in his mind was the necessity to preserve a sense of collegiality on the Court. And I think he probably concluded at the end that a unanimous opinion would . . . would contribute to the acceptance of the Court's judgment in that case. GILSON: Yeah. ROGERS: Also, he was not a guy who, I think, would have been comfortable standing alone on a major public issue like that the way, for an example, Douglas or even Frankfurter would have been. GILSON: Umhmm. Well, did he need the . . . well, on a major public issue, did he need the . . . the numbers. I mean, for example, he was the lone dissenter in the Jehovah's Witnesses cases earlier. ROGERS: Yeah. GILSON: Of course, I guess he just . . . that was just something he felt . . . felt . . . well, he . . . he delivered the opinion of the Court before, is probably one reason why. ROGERS: Yeah. It maybe. My . . . my impression is . . . only an impression, that he would have been uncom- . . . uncomfortable on that case being alone. Not that he lacked courage of his conviction in any sense, but rather, I think, a sense that the . . . in this case the Court standing together and unanimous was going to serve the country better than otherwise. Well, I think he was persuaded on the merits. Whether by his law clerks or by the briefing and the spectacular argument of counsel, it's hard to say. GILSON: Getting back . . . backtracking just a little bit, how did he feel about the . . . the . . . well, the . . . I guess, the McCarthy era was kind of coming into being, the Rosenbergs, and there were a number of . . . well, the . . . the situation was . . . was fairly tense. Did . . . did he express any opinions on that, or was it all . . . ? ROGERS: I don't recall any, frankly. I . . . I know that he was not nearly as apprehensive about the intrusions on individual freedoms that, for example, the loyalty program and the exploitation of congressional inquiry represented, that Judge Clark was--a fellow that I worked with the year before--or that as I was. In fact, if I recall correctly, he was the decisive vote . . . how did that come out? We had a . . . an important case involving . . . or was that? I take it back. I was thinking about the Peters case, but that may have been . . . that may not have gone back up to the Supreme Court the year I was there. John [inaudible] Peters, he was a victim of the loyalty program. Dr. Peters at Yale University. And . . . no, I take it back, he wasn't. But I know that on immigration matters, he was not nearly as concerned about denial of rights [inaudible] free exclusions of alleged Communists and people for their political beliefs as I was or, as I say, his . . . Judge Clark was. But he wasn't very philosophical about it. My . . . I don't ever recall a general discussion on the philosophical issue with him. GILSON: I guess that's one bad thing about Stanley Reed when you're talking oral history like this is unless it did come up in court, he generally . . . ROGERS: Yeah. GILSON: . . . didn't really say anything about it. ROGERS: Yeah. GILSON: Was he . . . he wasn't . . . well, he wasn't always serious? I mean, that's the . . . the image that the public gets. ROGERS: Oh, no. He was very lighthearted. I mean, I don't think he was ever, in ter-. . . in terms of his emotional level, he was . . . he was very . . . he projected a sense of equanimity. I mean, one . . . one never had the feeling that he was horribly depressed on Monday and elated on Tuesday. But he was always, as I say, not just congenial, but really lighthearted and . . . and it was easy for him to laugh. It's very true. He was not a natural-born wit, I think, in any respect, or even a funny man. I mean, he wasn't a raconteur of any consequence. But he loved stories. I . . . one of his good friends . . . well, two of his good friends were senior partners in this firm [Covington and Burling], Paul Porter and . . . and Thurman Arnold, both of whom were great storytellers. And . . . and I know that Stanley treasured their friendship because of the humorous side of their characters. No question about it. But he was more of a receiver than a giver in terms of humor. GILSON: Yeah. How did he treat his law clerks in general? Did . . . I mean, did he . . . did he give you enough time to . . . to do everything you needed to do? ROGERS: Oh, sure. GILSON: Did he [say], "I want this on my desk by morning"? ROGERS: No. There were no . . . I mean, he would . . . he would tell you when he wanted . . . wanted something, but the . . . the deadlines were not that concrete. There was always room . . . you know, if you had to go off someplace or see your wife or off for a weekend, there was never any problem about that. He was never demanding about working overnight and that sort of thing. It . . . it was a very congenial work atmosphere. Actually, I think part of that, though, was that there was always the fact that the Court was not that busy then, as it was later. Either that or . . . or the work wasn't that hard. I remember when . . . the first four months I was kind of bored, so I . . . I got down from the . . . from the library of the Supreme Court everything that Atkin had ever written and I read it all, as well as a lot of other non-legal reading. GILSON: I always thought the Court would have been at least busy enough to keep two clerks busy. I . . . two clerks per justice. ROGERS: Well, I think it's a lot busier n- . . . obviously it's a lot busier now than it was then. GILSON: Yeah. Umhmm. ROGERS: Well, this was in the fall when . . . when there were no . . . never many opinions to be decided because there'd been no arguments, and we were just processing cert petitions. And, you know, we caught up with the cert petitions and there really wasn't anything else to do, which was wonderful. GILSON: That must have been nice. How were those law clerk dinners? ROGERS: Oh, you mean the ones that went on and on and on after. GILSON: Yeah. ROGERS: It was interesting to see him and hear his sense [of] where the Court was going, but there was not an awful lot of . . . of inside gossip about the Court, or dazzling insights into official Washington beyond the Court that were the hallmark of Felix's dinners or of the chief justice's dinners during the late `50s and early `60s. They were congenial enough affairs, but I always found them a little burdensome, frankly. GILSON: A couple of the other clerks have . . . have said that too. A couple of them loved them. A couple could have left them alone, I think. This is probably an unfair question, but did . . . did Stanley Reed start liberal and grow conservative, or did he just want to stay static in one position? ROGERS: Hmm! You're thinking about his whole career? GILSON: Yeah. From `38 to `57. ROGERS: My own sense is that he was pretty consistent throughout. I think . . . I think his values stayed rather constant. It was . . . it was possible to be quote, "liberal," unquote, and argue the . . . in defense of the New Deal policies--Gold Clause, Schechter [Poultry Corporation], and so forth. Did he argue Schechter? GILSON: Yeah, he argued Schechter . . . ROGERS: I thought so . . . GILSON: . . . as . . . ROGERS: . . . as . . . GILSON: . . . Solicitor General. ROGERS: . . . yeah. And the triple-A [Agricultural Adjustment Administration] and so forth. And be conservative in terms of an interest in civil rights and . . . and individual liberties less dazzling then Douglas' in the `50s and `60s. The issues changed. I don't think there's any inconsistency between those two positions. The same man could essentially say, "Yes, we need to support the New Deal policies and . . . and . . . and ratify the power of the national government and the executive branch to take strenuous economic measures," and at the same time say, "I'm going to continue to allow the government to intrude, throw out illegal aliens, constrain employment in the government for people with views I don't like," and so forth. That's not a very systematic analysis of the entirety of . . . of Reed's body of written opinions. But I do not . . . as I see the trajectory of his intellectual development, he did not change course in the midst of his public career. He seems to me to be the same man throughout. Is that responsive to your question? GILSON: Yeah. Yeah. That's . . . I'm really . . . that one I was just trying to get a consensus from all the clerks. ROGERS: Yeah. That's a good question. GILSON: Yeah. That's why I introduced it as being unfair. ROGERS: Oh, there's nothing unfair about it at all. [chuckle] GILSON: Well, I think that just about covers it. ROGERS: Great. Wonderful. GILSON: If you have anything else you'd like to add, please feel free. ROGERS: No, I think you've . . . I think you've done a good job. GILSON: I mean, you spent a part of your life being . . . being the legal "man Friday" for this guy. ROGERS: No. I think you've covered the ground very well. It'd be an interesting . . . what . . . are you planning a book out of it? GILSON: I'm not planning a book, no. I . . . let's turn this off. [End of Interview] William Rogers clerked for Justice Reed from 1952 to 1953. He begins his interview by describing Chief Justice Fred Vinson's attitude toward the Supreme Court. Next, he compares Reed's personality to those of the other justices – specifically Sherman Minton, Felix Frankfurter, Harold Burton, William Douglas, and Thomas Clark. Rogers also talks about the relationship between Reed and his clerks, and mentions the annual dinners that Justice and Mrs. Reed held in the clerks' honor. He goes on to contrast the writing styles of Justice Reed and Justice William Douglas. The cases that Rogers refers to are the Rosenberg spy case, Brown v. Allen, Plessy v. Ferguson, and Peters v. Hobby. He ends the interview with a description of Reed's political philosophy. Kentucky Politics