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1981-05-12 Interview with F. Aley Allan, May 12, 1981 Reed001:1981OH066Reed16 00:58:00 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 F. Aley Allan; interviewee Terry L. Birdwhistell; interviewer 1981OH066_Reed16_Allan 1:|21(1)|36(10)|65(15)|78(6)|88(13)|102(10)|114(1)|128(10)|148(7)|165(12)|195(5)|203(7)|213(1)|233(2)|259(4)|272(4)|290(11)|320(2)|334(3)|345(10)|367(9)|396(7)|416(7)|431(11)|450(3)|461(9)|474(7)|494(4)|523(15)|536(6)|563(4)|590(4)|603(6)|615(11)|639(14)|658(10)|688(10)|700(12)|727(11)|749(6)|767(6)|780(4)|806(7)|833(2)|850(13)|865(14)|888(4)|898(1)|915(2)|965(12)|988(1)|999(6)|1016(11)|1044(9)|1061(9)|1081(13)|1099(2) audiotrans SFReed reed001:interview BIRDWHISTELL: I thought we might begin this morning by just finding out a little bit more about yourself in terms of your background, your educational experience, and the activities before becoming a clerk. ALLAN: How far back do I start? You [chuckle--Birdwhistell] . . . I . . . BIRDWHISTELL: Oh, I guess . . . ALLAN: . . . in college, you mean? BIRDWHISTELL: . . . yeah. Basically, where you were from . . . ALLAN: Yeah. BIRDWHISTELL: . . . originally and where you went to college and your degree . . . where your degrees are from. ALLAN: Well, I'm a South Carolinian by origin, but I moved up to New Jersey when I was in high school. Went to prep school in New England and then to Yale College and subsequently to the Yale Law School, after which I became a law clerk to Judge Learned Hand of the U.S. Second Circuit Court of Appeals. And then went from there to be a law clerk to Justice [Stanley] Reed. BIRDWHISTELL: Okay. What were the circumstances regarding your becoming a clerk for Justice Reed? How did this come about? ALLAN: As far as I know, Justice Reed, as the other justices do, made a practice of asking various law schools if they had any recommendations of persons who might be interested in becoming law clerks, and my name was given to him, and he then got in touch with Judge Hand and asked Judge Hand whether he could recommend me, and [chuckle--Birdwhistell] that's how it came about. BIRDWHISTELL: And so it all worked out that way. Did you have any reservations about becoming a clerk on the Supreme Court, or would . . . did you see this as . . . ALLAN: Oh, no. I thought it was . . . BIRDWHISTELL: . . . a real opportunity, I suppose. ALLAN: . . . I thought at the time that it was one of the most exciting opportunities that could come the way of a young lawyer, and I certainly wasn't disappointed. BIRDWHISTELL: Right. ALLAN: It was a great experience. BIRDWHISTELL: What were some of your initial impressions of Justice Reed? I suppose you did a little background work. You knew of him from your law studies and probably checked around a little bit before you went and met him the first time. ALLAN: Well, the circumstances of my meeting him were rather extraordinary because the day I went down to see him was the day that Chief Justice [Harlan] Stone was stricken. And he was stricken while I was sitting in Court. BIRDWHISTELL: Is that right? ALLAN: So that the circumstances of my interview with Justice Reed were . . . were rather complicated by . . . by that event and the turmoil and . . . and concern that the members of the Court were thrown into as a result of what happened. I had arranged to see Justice Reed immediately after the Court adjourned, and so I went and sat in the Court and, of course, this is when Justice Reed . . . Justice Stone, rather, fell ill. So, when I went back to see Justice Reed, why, he was not, of course, in much of a mood for casual or administrative con- . . . conversation. BIRDWHISTELL: Right. Right. ALLAN: But we did . . . did meet, and I found him to be a . . . a very courtly, gentle, courteous man, as he always was. And that was one of the striking characteristics of . . . of the man to . . . to everyone. He had this marvelous Southern urbanity and gentleness that made relations with him extraordinarily easy. We arranged for me to come up and visit with him at his summer home in . . . in New York . . . New York or Connecticut. He was renting a summer home. And I went up later in the summer and met with him on several occasions and got to know him a little better before the Court opened in the fall. BIRDWHISTELL: I'm not real familiar with how these relationships are . . . are worked out in the beginning. Did he outline some ground rules? How . . . what he expected of you as a clerk, how he would benefit from your work, how . . . what . . . the types of things he wanted you to do? Did he . . . did he lay those things out for you in the beginning? ALLAN: Well, my recollections are a little dim [chuckle--Birdwhistell] as to just what the . . . what he had to say to me at the outset was, but the work of a law clerk, at least most law clerks, and it does vary from justice to justice . . . the work of most law clerks is . . . is fairly straightforward. The main thing you have to deal with are petitions for certiorari [chuckle] and they come in at the beginning of the week, as I recollect it, in a huge, great big stack, and you have to go through the . . . the briefs and the summary of the record of the action of the courts below, study the questions that are proposed to be presented to the Court, frame a recommendation to your justice, after which he makes up his mind whether to vote in favor of or a- . . . against the grant of certiorari. Now the same is true, of course, of a . . . of direct appeals, except the number of direct appeals was much smaller than the number of petitions for certiorari. And that really was the main grist for the law clerks' mills was the [chuckle--Birdwhistell] . . . was the . . . the . . . the weekly stack of petitions for certiorari and the few appeals documents that came up. Justice Reed expected us to write short memoranda giving the facts of . . . of the situation, giving the issues, stating our recommendation to him, and our reasons--all, if possible, on one small sheet of paper. [chuckle--Birdwhistell] It was a . . . a great exercise in . . . in learning how to . . . to write briefly and succinctly. BIRDWHISTELL: Adds a little discipline to the writing [chuckling] style, I suppose. ALLAN: It did indeed. It was . . . it was very good for . . . for the law [chuckle] clerk. I'm not sure whether it was for the justice. Then the justice would take those memoranda of the law clerks and his own stack of materials and go over them and discuss points of concern with . . . with the law clerks, and then frame his own recommendation to the justices' conference. Some of the justices allowed their law clerks far more freedom than Justice Reed was inclined to. For example, Justice [Frank] Murphy had a law clerk with him at the time I was law clerk to Justice Reed, who had been with Justice Murphy for years. Unlike most of the justices, he didn't revolve his law clerks on an annual basis or, subsequently, on a biannual basis. BIRDWHISTELL: I wasn't aware of that. That's interesting. ALLAN: But he kept his law clerk, a fellow by the name of Gene Gresham, as I remember it, for some years. And the result was that Gene Gresham drafted many of the opinions of Justice Murphy. As a matter of fact, I'll never forget one comment that . . . that Justice [Felix] Frankfurter made to me in a moment of familiarity, and he said, "The trouble with Stanley is that he doesn't let his law clerks do enough of the work. The trouble with Murphy is that he lets his law clerk do too much." [chuckle] BIRDWHISTELL: It was always kind of a running debate in the Court, wasn't it, in terms of how much the clerks did, how much influence . . . ALLAN: Sure. BIRDWHISTELL: . . . they had. It's a . . . it's . . . ALLAN: A very personal . . . BIRDWHISTELL: . . . an interesting point. ALLAN: . . . relationship, and I think, particularly after my year, I think all the justices followed the practice of having two law clerks and rotating them every two years. So that there was a chance for the relationship . . . the personal relationship between the justice and the clerk to develop even more than it could in the one-year tenure. And I'm sure that the temptation to use the clerks even more than the justice did in my day, must have grown with the . . . with the burden of the Court and with the . . . the opportunity for a closer relationship between the clerk and the justice. In my day, with only a one-year tenure and the burden just growing the point where they . . . they ne- . . . needed a second law clerk, there wasn't quite that . . . that same need, if you will. So my role and my predecessor's role was pretty much confined to writing these memoranda on petitions for certiorari and having long discussion with the justice on legal issues, and going off and . . . to the library to research in-depth points of law that he . . . he wanted to investigate. BIRDWHISTELL: Right. Follow up on the details of the . . . ALLAN: I think . . . BIRDWHISTELL: . . . of the cases. ALLAN: . . . there was only one time that I ever was given the opportunity to actually write an opinion for . . . for the justice. BIRDWHISTELL: Hmm. As you say, it's interesting, the relationship between the clerks and the justices, and it's been said by . . . by someone that Justice Reed seldom smiled but even less seldom became angry. Is . . . is that a pretty good . . . ALLAN: That's . . . BIRDWHISTELL: . . . description? ALLAN: . . . an interesting comment. That's . . . I think "seldom smiled" is not right. He was always affable. Always courteous. He always had a gentle smile, but he rarely laughed. BIRDWHISTELL: I see. Yeah. ALLAN: He was never boisterous. He was a very reserved man. But I never saw him ruffled except maybe once. [chuckle] Justice Frankfurter, whom Justice Reed admired greatly--almost extravagantly- -came into the . . . into Justice Reed's office one day, and my office, which was adjoining his, the . . . the door was . . . was left open for some reason, and I overheard this conversation. It really wasn't a conversation so much as a lecture on the part of Frankfurter to Justice Reed. And Frankfurter literally dressed Justice Reed down for something he had said or written or . . . or done on a point of law. It wasn't a personal matter. He was, in effect, saying to the justice he didn't know what he was talking about, and didn't he understand this, and he was treating . . . treating Justice Reed almost like a student of . . . of Frankfurter's. And I came in afterwards, and Justice Reed was flushed and obviously very upset. And I, being young, said, "Mr. Justice, how can you let that man talk to you that way?" And Justice Reed, still looking a bit crestfallen, said, "Well, you know, you have to understand that Felix Frankfurter is a great man, a brilliant man and . . . and a little temperamental." And [chuckle--Birdwhistell] he was just so marvelous the way he . . . he expressed his respect for Justice Frankfurter and his willingness, in effect, to accept this kind of . . . of treatment just because of his admiration for him. He was a very mild and self-con- . . . -controlled man. Admirable person in every way. BIRDWHISTELL: I suppose you would have to be to re- . . . to react to something of that nature . . . ALLAN: Oh, . . . BIRDWHISTELL: . . . that way. ALLAN: . . . yeah. This was quite extreme. It's the sort of thing that could have gotten another man into a . . . a real temper and could have provoked a . . . a big fight or, at least, a . . . a discourteous treatment on Reed's part to match Frankfurter. [chuckle- -Birdwhistell] And it could have . . . could, in the long term, have provoked a tension between the two that would affect judicial behavior and, I think, frequently did with Frankfurter. Frankfurter had the capacity to . . . to get some of his colleagues very much opposed to him, largely on personal grounds, because he was such a bantam cock all the time. He was always flaring up and talking sharply and lecturing and hectoring all [chuckle--Birdwhistell] of those people. But Reed managed through it all to preserve this very close relationship with Frankfurter, which I much admired. BIRDWHISTELL: I . . . I heard someone ask once if they thought Frankfurter was an intellectual snob, and they said, "No, he'd have been glad to tell anybody what he thought." [chuckle] He'd share . . . share his knowledge with anybody. ALLAN: With anybody. [laughter] BIRDWHISTELL: Whether it was asked for or not, . . . ALLAN: Yeah. BIRDWHISTELL: . . . I suppose. Well, you know, you get a picture of Justice Reed as more or less the stereotypical view of a justice in terms of a . . . a . . . a person in control, a judicial outlook on life, calm and reserved. ALLAN: Umhmm. BIRDWHISTELL: That's . . . that's interesting. What were your impressions or opinions of Justice Reed's career before he went on the Court? Did you go back and look at some of the things he had been involved with, of course, as Solicitor General, the New Deal legislation that he argued before the Court? Did this make any impressions on you in terms of how he handled those cases or . . . ? ALLAN: Well, not . . . not in any formal sense. That is, I didn't do any formal research on what he had done, but you couldn't be in Washington and meet the kinds of people that you did as a young lawyer, at least a . . . a law clerk, without getting to know something about Reed's career. People would come into his office from time to time, like Tommy "The Cork" [Corcoran] or Ben Cohen or this, that, and the other person who had been around during the New Deal times, and . . . and you'd chat with them, and you'd hear their comments about Justice Reed. And one got the impression of a . . . you know, a very experienced and . . . and seasoned practitioner who had been lucky, in some respects, in getting the kinds of positions he had. And that's true of every successful man, I suppose. But had discharged his responsibilities to the great satisfaction of everyone. BIRDWHISTELL: May I . . . ALLAN: I . . . BIRDWHISTELL: . . . shut the door? ALLAN: . . . sure, go ahead. Yeah. Go ahead, I . . . He . . . he would also talk with me from time to time about things he had done as Solicitor General, cases he had argued. The gold clause cases, for example, that he . . . he argued before the Supreme Court. And his work in . . . with the Reconstruction Finance Corporation, which I think was a very enjoyable period in his life, a very achievement- filled part of his career. He used to also talk with mild regret from time to time that he had gotten so caught up in the Washington scene that he had not had a chance to go back to his beloved home state, which he [chuckle--Birdwhistell] really felt very deeply and warmly about. I think . . . BIRDWHISTELL: He must . . . ALLAN: . . . he always . . . he obviously always harbored the . . . had harbored for a long time, at least, the ambition of running for governor of the state. BIRDWHISTELL: Hmm. Yeah, because he was in the legislature earlier and . . . ALLAN: Yeah. That's right. But he'd never . . . he'd gotten, as I say, so entrapped by the Washington scene he never had a chance to go back and do anything. BIRDWHISTELL: Right. By `46 he would have been gone from the state for . . . oh, for almost twenty [chuckle] years. ALLAN: Yeah. BIRDWHISTELL: Yeah. I think you must have gotten a hold of a list of my questions! You're following right [chuckle] along with them. ALLAN: Is that right? BIRDWHISTELL: No. I was interested in . . . if he . . . you know, that's an interesting question about Justice Reed. He kept his family place in Mason County, in Maysville there, but he was in Washington for so long, and I was wondering if he did look back on Kentucky. You know, I knew [Frederick] Vinson did. Vinson was very much still involved with what was happening in Kentucky, and . . . but . . . ALLAN: Oh, yes. Reed couldn't wait to get back to Maysville every year, and talked about it all the time with great nostalgia, and indicated . . . stated to me that one of the things he'd always secretly hoped was that he'd be . . . be able to go back and get into politics and run for governor. He would have been a marvelous governor or a senator. In some respects I think better at . . . at that kind of role than as a Supreme Court justice. Reed was . . . well, a man of distinguished intellect, by . . . by my standards. I think [he] can't really rank in the first rank of . . . of justices of the Supreme Court in terms of . . . of grasp of the deeper principles of the law and ability to express his opinions on . . . on the law. I think as a . . . as a congressman or a senator or a governor, well, his marvelous personal sincerity and warmth and urbanity would have come to the fores in a much more striking way than they could in the rather closed environment of the Court. Well, that's just a personal opinion that I've had for years. BIRDWHISTELL: Yeah. Well, I . . . I think that that would be shared by others, though, in terms of the fact that he had to be somewhat of a politician in terms of what he was able to do in Kentucky before he came, and then to come to Washington, appointed by a Republican, and end up so involved in the New Deal, and then become the second appointee of what became known as the "Roosevelt Court." So this political lawyer background, I think is how it's described . . . ALLAN: Is that . . . BIRDWHISTELL: . . . by some. ALLAN: . . . I think that's a good way of . . . of . . . of putting it. Yeah. I think his . . . those qualifications that would have made him very good in politics served him very well on hi- . . . his way up to the Supreme Court, which was essentially a political road. BIRDWHISTELL: Umhmm. Yeah. ALLAN: But I've often thought he would have made such a . . . such a fine senator, for example. This marvelous stately appearance that he had, this constant self-control, remarkable courtesy and affability to everyone. And yet, at the same time, a deep grasp of . . . of political and . . . and legal principles. BIRDWHISTELL: Umhmm. You know, his . . . his background is interesting, as a justice. One of the last justices not to have had a . . . a . . . a formal law degree received, and likewise, before his appointment, he had never served as a judge. Some of the complaints . . . ALLAN: That's right. BIRDWHISTELL: . . . of the Roosevelt Court, I believe, that you have these people not doing it. Did this . . . did this affect him as a justice? Did he ever mention this as something that was on his mind? ALLAN: No, because by that time, of course, there were a number of such persons on the Court. You had . . . BIRDWHISTELL: Right. ALLAN: . . . [William] Douglas and [Hugo] Black, and I don't know who else, but . . . who had also not served. Vinson, I believe. BIRDWHISTELL: Vinson had been a judge. ALLAN: Had he? I'd forgot that. BIRDWHISTELL: But he hadn't practiced [chuckle] law too much. ALLAN: Yeah. But the criteria for appointment to the bench had obvious- . . . or, at least, to the Supreme Court, had obviously changed with the New Deal. The more practical, political kind of background was more common. And then there'd . . . actually, there had always been in the past, I guess, a . . . a tradition of appointing Solicitor Generals, for example . . . Solicitors General to the . . . to the Court, even though they may have had no legal background . . . BIRDWHISTELL: Right. ALLAN: . . . or judicial background, not a . . . BIRDWHISTELL: And, I guess, Attorney Generals. ALLAN: As a matter of fact, I remember one . . . this is . . . has nothing [chuckle] to do with Justice Reed, but I'll tell you this anyway. [chuckle--Birdwhistell] You can shut off the machine if you want. But a story that I've always enjoyed. When I was a law clerk to . . . to Judge Hand, he was telling me, as it was his occasional wont to do, how it was a matter of regret to him that he had never been appointed to the Supreme Court. And he was telling me about one occasion when . . . when he'd almost been appointed. [chuckle-- Birdwhistell] And I guess it was during the administration of Calvin Coolidge, would that be right? I don't know my history well enough. In any case, I think it was Coolidge who called him and said that he would like to appoint Judge Hand to the bench and wanted to know whether . . . if he did, whether Judge Hand would accept the appointment. And Judge Hand, I guess, indicated that he would. And then Coolidge went on to explain that he had a problem. That he felt that he had to offer it . . . offer the position to former Justice Charles Evans Hughes. Or maybe . . . no, former Chief Justice . . . BIRDWHISTELL: Chief, yeah. Umhmm. ALLAN: . . . Charles Evans Hughes. This was a formality which he owed to Hughes as . . . as a political matter, being the senior legal statesman of the Republican party, but he was confident that Hughes would turn it down because at that point Hughes' son was Solicitor General, and the chief justice would think that if he turned it down, his son would be next in line, and wouldn't that be a marvelous thing to have his son become a Supreme Court justice as he had [chuckle--Birdwhistell] been. So Coolidge called the former chief justice and asked whether he would care to be reappointed to the bench, and the old man said, "Yes, indeed!" [laughter] And so Judge Hand lost out for, I guess, the second time. BIRDWHISTELL: Yeah. That must have been a disappointment to have lost it that way. I mean, to lose it any way would have been bad, . . . ALLAN: But that way. [laughter] Yeah. BIRDWHISTELL: That's interesting. During the year that you worked with Justice Reed, supposedly his close companions philosophically on the Court in the different cases were Justices [Harold] Burton . . . Justice Burton and Chief Justice Vinson. What was your impression of Reed's reaction to Vinson's being named chief justice? I think, probably, that Justice Reed wouldn't have minded being . . . ha- . . . being appointed that, and the fact that Vinson was from Kentucky, his . . . his home state, also, it . . . did that have any . . . ALLAN: He never expressed any personal envy or pique or anything like that to me. No negative feelings whatsoever. I think he genuinely admired Vinson. And moreover, Reed was such a modest man that I doubt that the . . . that he would have been disappointed in any serious way at not having been named chief justice. I'm sure the . . . the thought, maybe even the hope, may have crossed his mind, but again, he was such a modest man. He respected his colleagues like Frankfurter, for example, so much; he didn't put himself in the same category of eminence with some of his colleagues. I suspect in many ways he regarded Vinson as his . . . I don't want to say superior, I don't mean that, but he would have given primacy of place in his mind to Vinson. I can't be more precise than that. He certainly, as I say, never expressed any negative feelings to me. BIRDWHISTELL: Their . . . their backgrounds are quite similar, as you know, being . . . Reed from Maysville and Vinson from near Ashland, where Reed had a law office at one time also. And then, of course, their common . . . or similar appointments in the Roosevelt administrations, and of course Vinson went on through the Truman administrations . . . ad- . . . administration and appointments. So you would say that they worked well together on . . . on the Court? I know they were on the same side a lot in the . . . in the different . . . ALLAN: Well, . . . BIRDWHISTELL: . . . cases. ALLAN: . . . they were both judicial middle-of-the-roaders. They both . . . they had this common background so that they could talk together more cordially, perhaps, than some of the other members of the Court. Yeah, I always had the feeling that they wor- . . . worked very well together and thought very much alike on . . . on most questions. They both had a New Deal kind of background. As you say, Vinson having gone on in . . . with the . . . the Truman administration, obviously had a closer political connection with . . . [chuckle--Birdwhistell] with the . . . the president, who had the power to name the chief justice, than Reed, and that would have been another reason why, I'm sure, Reed wouldn't have felt any envy at Vinson being appointed. He would have recognized that as in the nature of things. BIRDWHISTELL: Umhmm. And I suppose you would say--I don't want to put words in your mouth [chuckle], but--that even if he had thought about this and did feel some jealousy, he would not express it . . . ALLAN: He's not . . . BIRDWHISTELL: . . . outwardly. ALLAN: . . . wouldn't . . . was not the kind to have expressed it. BIRDWHISTELL: Umhmm. The Court was in an interesting period when you were a clerk and when Vinson was named chief justice. It had been through quite a bit of turmoil internally in terms of the relationship between the justices. Public disagreements, I guess, were . . . were developing on the Court, and many saw Vinson as a person who was going to come in and sort of . . . ALLAN: Smooth . . . BIRDWHISTELL: . . . tone down . . . ALLAN: . . . smooth things over. BIRDWHISTELL: . . . all of this . . . smooth over. What were your views of . . . how . . . how did you see this develop as . . . as a clerk? Did you see the Court begin to settle down in this regard? And I suppose that Justice Reed was never really involved in . . . in the disruptions that became public? ALLAN: No, he wasn't. And also, law clerks, in a sense, would be the last to know what was going on in something like that, even though they are very close to the scene of the . . . of the action. Those matters were matters which we learned about in the papers more than [chuckle--Birdwhistell] we did by gossip, because the justices were . . . or at least Reed was very closed-mouth about such matters. One was aware of the tensions because the Court was divided probably in a more extreme way than it . . . than it had been through most of its history. And I suspect, for example, that episode that I was talking about with Frankfurter was probably one of the episodes where those tensions came to the surface in a rather dramatic . . . to me, a rather dramatic fashion. Because I'm sure it had to do with . . . with Reed's, maybe, taking si- . . . [chuckle] sides in a way that . . . that Frankfurter didn't like. BIRDWHISTELL: Which could . . . ALLAN: [Inaudible] . . . BIRDWHISTELL: . . . have been taking sides with Vinson at that time [chuckle], probably. ALLAN: Quite possibly, yeah. The Court . . . it wasn't a clear case of Left and Right with the Court at that time. There were all kinds of divisions, and the numbers of opinions kept growing [chuckle] as the separate opinions kept growing. BIRDWHISTELL: It was an all-time high, I think, at . . . ALLAN: Yeah. BIRDWHISTELL: . . . that point. I think. ALLAN: I wouldn't be a bit surprised. It was a fractionated Court more than a divided Court, I think. And I'm not enough of a legal philosopher and haven't thought enough about such math- . . . matters in over twenty-five years to [chuckle--Birdwhistell] really be able to explain that very well at this point. I probably had strong opinions on it at [chuckles] the time. BIRDWHISTELL: I suppose. ALLAN: Not so much anymore. Vinson, I think, everyone regarded as a moderating influence in that whole business. BIRDWHISTELL: Umhmm. You've mentioned Reed's relationship with Vinson and with Frankfurter. Are there any notable points about his relationship with the other justices at the time, or any recollections you have that stand out in your mind about his relationship with the others? As we were talking, he sided with Burton quite a bit, [and] that he and Vinson and Burton were considered more or less a . . . a block . . . ALLAN: Umhmm. BIRDWHISTELL: . . . at the time. ALLAN: Umhmm. BIRDWHISTELL: But his . . . his relationship with others, was it more or less just a day-to-day working relationship, nothing in particular? ALLAN: Yeah. Again, my recollections at this point are fairly . . . fairly hazy. I don't recall any . . . any other either personal or judicial relationships, if you will, of any memorable kind. Burton was in his office quite a lot. The two obviously shared a lot of views in . . . in common. Yeah, that's better. BIRDWHISTELL: I don't know how much importance this question has, but I was curious as to the attitude of the other clerks. I know . . . I've read that the clerks would go to the . . . to the cafeteria and then take their food and go to a . . . to a room and have lunch together. And I was wondering if you had a feeling . . . or got a feeling about what the other clerks thought about your justice? I was wondering if that's the way it operated. Did you have to defend your justice to the other [chuckle] clerks at lunch? ALLAN: Oh, yeah. You were, you know, [chuckle--Birdwhistell] in a group of . . . group of ye- . . . young men who at . . . at that age fancied themselves as brighter than they really were [chuckle--Birdwhistell], and who tended to be hypercritical about their own justices and . . . and other justices, and to . . . in the kind of frank exchange that went on between the law clerks, they tended to . . . to talk very critically and disrespectfully of the various justices. [chuckle--Birdwhistell] Reed suffered under the law clerks, if I can put it that way, because they did not think he was intellectually preeminent or even in the . . . in the same class as . . . as most of the other justices. I think they all would have rated him superior to Murphy [chuckle--Birdwhistell] or Murphy-Gresham [chuckle], because it was hard to distinguish sometime between the two . . . the law clerk and the justice. And they probably would have rated him superior to Burton. But . . . BIRDWHISTELL: What about Vinson? Would they have rated him ahead of Vinson? ALLAN: I'm not sure. BIRDWHISTELL: Sort of . . . ALLAN: Probably on a . . . on a par. But in any case, the . . . the law clerks tended to deride Reed [chuckle--Birdwhistell] some, and I tended to defend him on some occasions, and to share their views on [chuckle--Birdwhistell] others when I . . . when I was . . . was indignant because he hadn't accepted some [chuckle] recommendation of mine. BIRDWHISTELL: You knew he . . . ALLAN: I remember . . . also, I was inclined to be quite a lot more liberal than Reed in my own views, having been a graduate of the Yale Law School, which is a very liberally oriented school on . . . on social issues. And I remember particularly when some racial covenant cases came up. Some of the first cases on the racial issue came before that Court, and particularly the neighborhood real estate covenants. And I remember writing some spirited memos on petitions for certiorari saying that Justice Reed ought to take a position in the vanguard of . . . of political thinking. He was a New Deal justice and the like. And found that he was . . . being a Southerner and conservative by temperament, was much more inclined to . . . to the conservative wing . . . conservative point of view on such matters. I forget how he eventually shifted or developed on that issue. You probably know a lot more . . . BIRDWHISTELL: Well, . . . ALLAN: . . . about that than I. BIRDWHISTELL: . . . well, I'm not sure, but I think an opinion that he wrote while you were there was Morgan versus Virginia, declaring unconstitutional racial . . . racial segregation on motor carriers in interstate commerce. ALLAN: Umhmm. BIRDWHISTELL: So that would have put him on the right side of the issue there. But I get the impression from my readings that, as you say, he was hesitant, conservative, and not wanting . . . well, the word, I guess, is "judicial restraint" is . . . is always tagged on him in this regard. ALLAN: Yes. BIRDWHISTELL: Civil liberties in general. Not civil rights only, but civil liberties in general. The cases that were coming up from the war years where . . . with the Japanese in California . . . ALLAN: Umhmm. BIRDWHISTELL: . . . the other things. ALLAN: Indian rights. Yeah. BIRDWHISTELL: I find this interesting about his career. I . . . and I . . . that's one of the things I wanted to ask you in terms of a clerk about his . . . his views on these matters, because, as you say, coming out of the New Deal, the Roosevelt Court, the liberal appointments, one would suspect that he would have gone the . . . the other way on those. I guess the question I'm leading up to is, the Left . . . the . . . the Court . . . you know, Left and Right sides of the Court . . . not conservative-liberal, I think, but Left and Right. Reed was appointed, supposedly, for being on the Left side, and did tend to vote that way at the beginning, but later sen- . . . tended to end up on the other side. Did he change or did the Court change, I guess is the question? You know, with the . . . more and more Roosevelt appointments. ALLAN: I suspect it's a little of both. I felt that the man's natural conservatism developed during his tenure as I, at least, understood it. Saw it clearly, I think, as a Solicitor General for the New Deal, he would have taken a much more decisive position in favor of civil rights than he was inclined to do as a justice when I was there. As I say, I had some . . . some spirited discussions with him about . . . about these racial covenant cases where he was inclined to be quite conservative and on the side of judicial restraint. BIRDWHISTELL: How did he come to those conclusions? Did he . . . did he . . . did he say that, of course, this has to come about eventually, the . . . the civil rights laws, but it just takes time, and the . . . and the Court can't rush it? Is that . . . is that a . . . ALLAN: Well, . . . BIRDWHISTELL: . . . fair . . . ALLAN: . . . I think that was part of it. Another part of it was the classic doctrine of judicial restraint, that these were not issues that should be settled in a court of law, that they should be settled by the political process more. I don't think it was more complicated than that. BIRDWHISTELL: I see. ALLAN: He was a . . . now, again, I'm speaking after how many years is it? BIRDWHISTELL: Yeah, that's understandable. ALLAN: And haven't been a lawyer for a long time. But that's my . . . my recollection, that it was more a matter of a natural conservatism supporting, or leading to, an expression of opinion in terms of a classical doctrine of non-intervention by the courts in the . . . in political and social matters that should be settled by . . . by the political process. BIRDWHISTELL: One writer said, "It is not easy to label Reed. He tended to be an economic liberal and a civil rights conservative." Is . . . ALLAN: Yeah. BIRDWHISTELL: . . . as a clerk for him during that year . . . ALLAN: I think that's a . . . that would match my own sentiments, yeah. BIRDWHISTELL: And I think when they're talking about an economic liberal, they're talking about big bu- . . . big government. He was . . . he believed in big government, I think. ALLAN: Yeah. He . . . in that respect, I think he clearly shared the opinion of . . . of his political associates in the . . . in the New Deal administrations. BIRDWHISTELL: Right. Right. ALLAN: His work at the Reconstruction Finance Corporation would have certainly fortified that view. And I'm sure his work as Solicitor General . . . General the same. That he believed in the necessity for intervention of the government in the political system in social questions that were troublesome. He didn't believe in the intervention of the Court in the same way in matters of civil rights. BIRDWHISTELL: Yeah. It's an interesting philosophy for a justice, I think, when the . . . you know, you have the three branches of government, supposedly equal partners. And for one justice in the Court to think that they have to defer to the other two branches is a . . . ALLAN: Well, I don't . . . I'm not . . . not sure that's a . . . the way I would express it. I don't think that Reed, in any sense, lacked a sense of the equality of the position of the Supreme Court in the constitutional structure of our government. But I think he felt, as justices from the beginning of our history have felt, many of them at least, that the exercise of judicial power should be addressed to judicial questions. BIRDWHISTELL: I see. I see. ALLAN: And they've all, from time to . . . to time, define what is a . . . a judicial question and what is a political question differently, depending on the era of history you're talking about. And the . . . I think the way he defined it excluded certain questions, and notably civil rights questions, I felt quite inappropriately. But he felt that this was an . . . an area in which the Court should not encroach upon the prerogatives of the . . . the other branches of the government. I think it was a quite intellectually respectable position. I don't find it curious. I . . . I happened to disagree with it at that time. BIRDWHISTELL: I see. [chuckle] ALLAN: I probably would agree with it at this point in my life. BIRDWHISTELL: Umhmm. Let's switch this over. [End of Tape 1, Side 1] [Beginning of Tape 1, Side 2] BIRDWHISTELL: I'm glad you . . . you went into that. I think that clears that up a little bit for . . . for me in trying to understand that . . . that issue. Let me just ask a searching question here, and if it's not appropriate, you don't [chuckle] . . . don't have to respond to it. One of the interesting things about the study of Vinson is the question of . . . of whether or not the Brown decision [Brown v. Board of Education of Topeka] could have come about if he'd ama- . . . remained chief justice, if [Earl] Warren hadn't become chief justice. And I was just thinking about Reed eventually going along with the Brown decision. Do you find that in line with what we've been talking about here, that he would eventually . . . ALLAN: Now, here I'm going to have to confess that I've forgotten what the Brown decision is, so you'll have to . . . BIRDWHISTELL: Oh, . . . ALLAN: . . . remind me . . . BIRDWHISTELL: . . . Brown versus Board of Education in `54, with the integration of the schools in . . . in . . . ALLAN: Oh, yes. Yeah. Okay. BIRDWHISTELL: You know, it was a unanimous decision, eventually, by the Court, and some credit Warren with that, being able to bring this about. ALLAN: And your question is whether if Vinson had still been chief justice, he had . . . would have been able to bring it about? BIRDWHISTELL: Right. That's one of the questions. And . . . and [chuckle] the second part of that is the . . . having clerked with . . . with Reed in `46 and seeing his view on these cases and talking about what he felt was appropriate, how he would eventually end up in that unanimous decision. It seems to go against, a little bit, just what we were talking about. ALLAN: Yes. And I think that's . . . that's quite true. That I was surprised at his . . . his development in . . . in that area . . . or shifts. I don't know whether it was really [chuckle-- Birdwhistell] . . . it's best described as development or . . . BIRDWHISTELL: Okay. ALLAN: . . . again, my . . . my grasp of these things is pretty well dissipated, but my recollection is that I was always a little surprised when Reed joined a liberal decision on a matter of . . . of, particularly, racial civil rights. BIRDWHISTELL: Umhmm. Civil rights issue. Yeah. That's interesting. Well, I promised at the beginning I wasn't going to get into cases, and I've broken that a little bit. I [laughing] apologize, but as they come up . . . ALLAN: Well, it hasn't edified you much, that's for sure. BIRDWHISTELL: I wanted to ask you about Justice Reed as a . . . as a writer. You . . . we've talked about your role as a clerk and the memoranda that you would give to him. Did he find writing easy [or] difficult? Of course, Justice Douglas has a reputation of writing first drafts and sending them out, and others labor for months over it. [Interruption] My question was what . . . you know, how he approached his writing. What kind of writer was he? ALLAN: He did not write with great facility. I don't think it was a . . . exactly a painful process, but it was an arduous process. I won't . . . I won't comment on his . . . on his style or his . . . his capacity as a writer unless you ask me to, but . . . but I never had the sense that he . . . that it was either painful on the one hand, or terribly easy and comfortable on the other. BIRDWHISTELL: Umhmm. Yeah, I suppose . . . you know, writing a . . . an opinion for the Supreme Court is writing in such a fishbowl. I mean, so many people are waiting to read and analyze and . . . and tear apart every word of it, . . . ALLAN: Umhmm. Umhmm. BIRDWHISTELL: . . . that I suppose that one could get in a . . . one would have a tendency to want to make it as clear and . . . ALLAN: Well, Reed was a conscientious man above everything else, as I'm sure you've . . . has come through to you . . . BIRDWHISTELL: Umhmm. ALLAN: . . . in what I've said and what others have said. A careful, thoughtful man. Maybe not the most brilliant man in the world, but nevertheless a deeply reflective and thoughtful person. He had a clear sense of the role of the Supreme Court in our constitutional system and of his place in . . . in the picture as a justice. His long experience in the administration and as Solicitor General would have taught him that more than it would have tau- . . . taught many other people who hadn't been so closely associated with the judicial process at that level. So he knew when he was writing something that he was writing opinions on the law that were going to be looked at by a great many people, and very intellectually preeminent people, as well as by his . . . his colleagues, whom he admired and respected as, maybe, being in some respects more than his intellectual peers. So he wrote with care and he studied legal questions with care. And one of the duties of his law clerks was to . . . to help him research questions on the law as he wrote his opinions, and research them in depth. So this made for a process that was . . . was very slow and very thoughtful. Not very easy, which came [chuckle--Birdwhistell] through in his style, which wasn't the easiest style. It . . . his opinions didn't flow. He didn't think a long time and then write quickly. He wrote and thought at the same time. BIRDWHISTELL: Umhmm. Built upon each . . . ALLAN: Yeah. BIRDWHISTELL: . . . each sentence. Did you find that the war had made an impact on the Court in any way? ALLAN: You mean in the types of issues that came before it? BIRDWHISTELL: The types of issues . . . ALLAN: Obviously, there was . . . BIRDWHISTELL: . . . or the outlooks or the . . . the atmosphere at . . . at the Court, I guess. It . . . of course, it had such an effect on society as a whole . . . ALLAN: Yeah. BIRDWHISTELL: . . . in this country, it's . . . might be hard to say. ALLAN: Hard for me to compare because . . . BIRDWHISTELL: Just being there . . . ALLAN: . . . I only saw the Court . . . BIRDWHISTELL: Right. ALLAN: . . . during this particular . . . BIRDWHISTELL: Right. It's . . . ALLAN: . . . period of time. BIRDWHISTELL: . . . probably an unfair question. [chuckle] ALLAN: Well, it's not so much unfair as that I just don't think I can answer it competently. There obviously were effects in the sense that there were some issues that came before the Court that . . . that were precipitated by the law, [such as] the Japanese incarceration or whatever you call it. BIRDWHISTELL: Right. ALLAN: The questions of . . . BIRDWHISTELL: Treason cases. ALLAN: . . . treason cases. Even the racial covenant cases were, in a sense, . . . BIRDWHISTELL: That's right. Yeah. ALLAN: . . . precipitated or at least aggravated by the s- . . . the social turmoil and mobility that had been provoked by the war. And the . . . and also the . . . the attitudes towards the relationship between the races that had been engendered by . . . by whites fighting alongside blacks and dying together. Obviously that made a tremendous difference in social attitudes towards racial relations. And that, in turn, affected the business of the Court and the attitudes of the Court. Beyond that, I wasn't aware of anything in particular. BIRDWHISTELL: Yeah. Yeah. Of course, Justice Reed and . . . and Mrs. Reed lived at the Mayflower Hotel in Washington. ALLAN: Umhmm. BIRDWHISTELL: Do you think they enjoyed the Washington social life . . . the social scene there and took advantage of it? ALLAN: Well, they weren't social butterflies [chuckle--Birdwhistell], obviously. Mrs. Reed was . . . I don't know whether you ever met her or . . . BIRDWHISTELL: No, I never . . . ALLAN: . . . heard anything about her. She was, again, a very charming person, but very reserved and . . . and not a . . . a person who was going to dazzle the social scene [chuckle--Birdwhistell] in any way. So they lived a rather quiet life. But then, on the other hand, they had many friends who had held eminent positions in . . . in government and . . . and in business as well. And you can't live in Washington without having a more active social life than you do in most parts of [chuckle--Birdwhistell] of the world. So they had a . . . I'm sure, a very interesting social life. We used to attend . . . when I was law clerk, we attended several affairs that the justice and his wife had at . . . at their apartment in the Mayflower, at which other justices or other legal and political figures of his acquaintance would appear. Always very, very interesting affairs. And then, subsequently, through the years wa- . . . at the annual gathering of the law clerks, we would . . . he . . . he would have a cocktail party at . . . at which he would invite outside personalities of some note. One had the impression that they had a very quietly active [chuckle--Birdwhistell] social life with people of a common professional background, more than anything else. BIRDWHISTELL: Umhmm. These annual law clerk dinners were . . . were, I guess, the big event where all the law clerks came back and . . . and got together and then, I think, you had a . . . a s- . . . a small reception at their apartment the next day, didn't you? ALLAN: Right. Yeah. BIRDWHISTELL: Of course, Reed retired in `57 and remained active in Washington for many years after that. At the law . . . you . . . but you still kept the law clerk dinners, I believe, didn't you? ALLAN: Yes. And he still had a law clerk, in a sense, for many years. BIRDWHISTELL: Right. Right. ALLAN: I don't know what the function of those later law clerks really was, but . . . BIRDWHISTELL: Umhmm. Did you find he'd . . . ALLAN: . . . he had them. BIRDWHISTELL: . . . when he spoke at these later dinners that he'd changed any, that he'd mellowed out or . . . after . . . I guess . . . I guess what I'm trying to say is, after re- . . . getting rid of the pressures of the Court and the restraint of being a Supreme Court justice, did you find a difference in him at all? ALLAN: No. He went through a period, of course, where he had very bad high blood pressure . . . BIRDWHISTELL: Umhmm. Umhmm. ALLAN: . . . and had to lose a lot of weight, and he became physically quite different. And I . . . that . . . that affected his mental outlook, I think, to some extent. He became a lot more spry for a period. Despite growing age, the improvement of his health made him noticeably more . . . more spry physically. I didn't notice an . . . any particular change in personality or intellectual bat as a result of that or anything else. He . . . he could hardly mellow, because he started out being mellow [laughter], you know. BIRDWHISTELL: How mellow . . . ALLAN: He . . . he was . . . BIRDWHISTELL: . . . can you get, right? [chuckle] ALLAN: . . . how mellow can you get? He was as mellow as Kentucky bourbon [chuckle--Birdwhistell] from the start. As he grew much older, he became much more garrulous, as an older man is wont to do, and his . . . his after-dinner remarks tended to go on and on and on. [chuckle--Birdwhistell] And yet it's curious: even at the last dinner we had in Washington when, I think, he was ninety-eight, he was a marvel. He talked too long, he wandered around, but he talked with grace and elegance and had something to say. He wasn't just . . . just wandering all over the law. He was in no sense senile. He was just a little more loquacious than [chuckle--Birdwhistell] . . . than he would have been a little earlier. But he was always inclined at . . . in those remarks to be thoughtful and wander and talk about his exper- . . . experience with prior courts and law clerks and the like, so . . . it was an invitation to wander, anyway. [chuckle-- Birdwhistell] And he just responded to that invi- . . . invitation a little bit more in his later years. BIRDWHISTELL: Right. ALLAN: I didn't notice anything other than that. BIRDWHISTELL: Right. Well, that's about all I . . . the formal questions I've prepared, and I think you've . . . I think shed a lot of light on the man, what he was like and . . . and how he worked. ALLAN: One of the things that I would suggest you do in talking to others, particularly others who have known him better and . . . and whose memories are fresher, is to ask about the man. Because to Re- . . . to me Reed was a more striking person than he was a justice. He was preeminent as a person. He was . . . he was eminent as a justice. He was a marvelous man. He really had qualities of character and personality that . . . that the world should envy. In . . . not in a sense that he was brilliant and . . . and sparkling in conversation or anything like that. I'm talking about qualities of probity and solidness and the like. Talk to somebody like Rod Hills, if you haven't already talked to him, about those . . . BIRDWHISTELL: We haven't. ALLAN: . . . aspects of . . . of the justice. As a matter of fact, have you interviewed Rod yet? BIRDWHISTELL: No. No. ALLAN: Before you interview Rod Hills and Dave Schwartz, if you haven't got around to him, . . . BIRDWHISTELL: Haven't gotten him, either. ALLAN: . . . read their remarks at the memorial celebration or whatever you call it . . . occasion for Justice Reed at the Supreme Court, because they say something about Justice Reed as a man. And it'd be a good takeoff point to ask questions along this line, because . . . BIRDWHISTELL: Yeah. Yeah. ALLAN: . . . if there's a subsequent biographer that comes along, this is, above all, something he should take account of, is the quality of the man. We pay too much attention to the intellectual side [chuckle--Birdwhistell] of human beings, [and] not enough to the . . . the other aspects. BIRDWHISTELL: Right. Well, thank you very much for taking the time to share that today. ALLAN: Okay. [End of Interview] F. Aley Allan begins by describing the duties of Justice Reed's law clerks: reviewing and commenting on appeals and petitions of certiorari. Next, he talks about the relationship between the justices and their clerks, focusing on Justice Reed and Justice Frank Murphy. He also comments on Reed's relationships with Justice Felix Frankfurter, Chief Justice Fred Vinson, Tommy “The Cork” Corcoran, and Ben Cohen. Allan goes on to discuss Reed's work with the Reconstruction Finance Corporation and the Gold Clause cases. He explains Reed's stances on Native American rights, non-intervention, and civil liberties – specifically the case Brown v. Board of Education of Topeka. Other topics he mentions include the annual law clerk dinners, Reed's support of big government, and Reed's writing style. Kentucky Politics