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1985-06-11 Interview with Robert von Mehren, June 11, 1985 Reed001:1985OH121Reed22 00:50:20 Stanley F. Reed Oral History Project Louie B. Nunn Center for Oral History, University of Kentucky Libraries Reed, Stanley Forman, 1884-1980 Robert von Mehren; interviewee William Cooper; interviewer 1985OH121_Reed22_Mehren 1:|7(1)|16(9)|32(1)|42(1)|58(2)|71(3)|82(12)|97(5)|109(9)|121(11)|134(6)|144(2)|160(5)|189(1)|202(14)|215(5)|227(6)|241(13)|254(9)|276(3)|299(1)|322(5)|340(6)|359(7)|379(9)|399(1)|415(8)|425(8)|438(1)|453(7)|467(9)|488(14)|504(5)|516(2)|535(4)|550(6)|586(9)|623(3)|639(10)|660(5)|681(8)|703(10)|720(7)|740(2)|751(12)|768(9)|789(3)|797(11)|813(1)|828(12) audiotrans SFReed reed001:interview COOPER: Mr. von Mehren, I wonder if . . . if you would mind starting by relating just a bit about yourself, about your background, your educational experience and . . . and so forth. VON MEHREN: Well, I was brought up as a boy, as a matter of fact, partially in Kentucky, in Frankfort, but I moved . . . my family [moved] from Kentucky back to Minnesota, where I'd been born, when I was still quite young. I went through grade school and high school in Minneapolis, then won a national scholarship to Yale University, graduated there with summa cum laude and first in philosophical orations, then went back and taught as an assistant instruction at the University of Minnesota for a year, then went to the Harvard Law School, from which I graduated in the spring of 1946 with a degree, magna cum laude, having been president of the Harvard Law Review. Then I clerked for a year with Judge Learned Hand in the October 1946 term. Judge Hand, at that time, was the chief judge of the United States Court of Appeals with the Second Circuit. And after that, I went to Washington and clerked for Justice Stanley Reed during the October 1947 term. Now, I can . . . if you like to . . . to have me do so, I can give you a brief resume of my professional background as well, but I don't know if you want that. COOPER: That . . . that isn't necessary. I . . . I was leading up to the circumstances that . . . that led to your becoming a law clerk for Justice Reed. Do you remember, specifically, those circumstances, how you were contacted and by whom? VON MEHREN: Yes. Yes. I never met Justice Reed. Indeed, I had planned to . . . after concluding my clerkship with Judge Hand, I'd planned to go back to the firm I'm now a partner of, which at that time was called Debevoise, Stevenson, Plimpton, and Page, [and] go back and practice law with them. I had actually, before I went with Judge Hand, spent about four or five months as an associate. I got a call from the law clerk that had been hired by Justice Reed, John Spitzer, who was a graduate from the Yale Law School, saying that, as I recall it--I think it was John who called me--saying that under new legislation Justice Reed was entitled to two law clerks, and he wanted to ask me, having been law clerk with Judge Learned Hand, if I would . . . would accept the . . . an offer of a position with him during . . . with . . . with Justice Reed during the October 1947 term. I considered it for a short period of time and then said I would be pleased to . . . pleased to do so. And I'm quite happy that I did that. COOPER: Umhmm. Did . . . did you have an opportunity to discuss the job with any of his previous law clerks before taking it, or was it one of those kind of things that you were going to take irregardless of what you might have heard about working for Justice Reed? VON MEHREN: No, I discussed it with Judge Hand. I was inclined to take it, although I had not applied for a clerkship on the Supreme Court. When I graduated from law school, I think it's fair to say that at least as far as graduates from the Harvard Law School are concerned, the premier clerkship of the United States was the . . . was with Judge Learned Hand on the Second Circuit. And at that time, there was some . . . some of the . . . for example, some of the partners in this firm felt that one shouldn't spend more than one year clerking. That was enough. So I had not applied for a clerkship in the Supreme Court. On the other hand, having been offered one, I thought about it, and I considered the enormous advantages, as a very young lawyer, of seeing the American j- . . . system from the very top of the pyramid. And that seemed to me to be an enormous advantage, plus the fact that there were a number of interesting personalities on the Court at that time, and I thought that would be interesting. COOPER: Had you followed Justice Reed's career very closely prior to the time you clerked for him? VON MEHREN: Yes, to a certain extent. Justice Reed was a close friend of Francis Plimpton, who at that time was one of the name partners in the firm. And Francis had been with Justice Reed when the justice had been the chief lawyer for the R.F.C., the Reconstruction Finance Corporation. And Francis Plimpton thought very highly of Justice Reed, and I discussed it, to a certain extent, with . . . with Mr. Plimpton. I . . . and I've s- . . . I said I also talked to Judge Hand, but I . . . I didn't . . . I didn't really talk to any of the ex-law clerks of Justice Reed. I knew, generally, his reputation as a person and a . . . and as a judge, of course. COOPER: What were your first impressions of Reed, when you then did first meet him? VON MEHREN: Well, he impressed me as being a very pleasant, decent human being. I think that's the one quality which stands out, I think. He was clearly a man who was very humane and very kindly, and that quality, I think, enriched both his service as a . . . as a member of the Supreme Court, and also very much enriched the experience of being a law clerk with him. He was a very agreeable person to work with. COOPER: Did those impressions change any over the years? VON MEHREN: Not really, no. I . . . I . . . [chuckle] I . . . at least, as far as I was concerned, I liked him enormously from the first and throughout his life. I . . . I was always very . . . very fond of him. COOPER: In general, what did he expect of his law clerks? How much freedom and how much responsibility did . . . did he give to his clerks? VON MEHREN: Well, as you probably know, there's a . . . there was at that time, [and] there still is, and I guess always will be, a spectrum of the way in which the members of the Court use their law clerks. I suppose one end of the spectrum was Felix Frankfurter, who at that time and, I think, throughout his career as a member of the Court, used his law clerks primarily to do things like construct the footnotes to his opinions [and] do that type of research, etc. I think it was much more of a cooper- . . . cooperative endeavor with Justice Reed. He would assign the two law clerks he then had, John Spitzer and myself . . . he would assign the petitions for certiorari to us, we'd split them up, and we would each write with respect to the ones that we had a memorandum, which would take . . . take some position, and it either advised a cert be granted or cert denied and state our reasons for that. And then we would discuss each of these cases, unless it was very clear that the . . . that the Court wasn't going to grant cert, with the . . . with the judge, before he went into the meeting, [which] ordinarily at that time it was on Saturday, as I recall. It's when the Court con- . . . decided what petitions for cert it would grant and whi- . . . what petitions it would deny. As you probably know it, at that time and still today, takes four justices to grant a petition for certiorari. So that was one function we had. Another function we had was when the justice was assigned an opinion by the chief justice, he would ordinarily ask either John or myself to write a first draft of that opinion. And this was . . . he felt this was very helpful because it allowed him to get a . . . a structure of an opinion and get the ideas of somebody else as to what the issues were and how the issues should be considered and dealt with. He then, generally speaking, would . . . re- . . . reorganize, rewrite, restructure the . . . the opinion. There was . . . there was one . . . one case in which he . . . I wrote an opinion for him. It wasn't a very important case, but he . . . he accepted it with, I think, very, very few changes at all. Now, it was the custom at that time for . . . for example, Justice [Frank] Murphy, on the whole, had his law clerk write all his opinions. [chuckle] And, I mean, it's . . . so you have . . . you have the spectrum between Frankfurter and Murphy, and Justice Reed was someplace in the middle of it, I'd say. And then there were the qu- . . . questions of commenting on and discussing with the justice draft opinions that were circulated by other members of the Court, either majority opinions or dissents. And we did that, and sometimes if the justice were going to dissent, he'd ask one of us to write a draft of a dissent for him. As a matter of fact, I recall a rather amusing anecdote about one such dissent that the . . . that the justice asked me to draft for him. I forget the . . . the case, but in . . . in any event, I started out the dissent with a . . . with a metaphor, which was to the effect that the views expressed by the majority opinion were very much like a . . . like a . . . a pointillist painting: it was fine seen from a distance, but upon close inspection the whole argument [chuckle-- Cooper] exploded and you just saw little dots together. And I thought that was a very good metaphor, and it [chuckle--Cooper] was quite accurate. I sent the draft in to the justice. In due course he buzzed me, and I went in and talked with him about it, and he said, "Bob, I'm sorry. I . . . I . . . I can't use the opening portion of this draft." And I said, "Well, Justice Reed, why not? Isn't a very accurate description of the [chuckle--Cooper] . . . of the majority feeling?" He said . . . he said, "Yes, it is. But you know, Bob, if I use this, Felix is going to come down and ask me which one of my law clerks wrote it for me." [chuckle] So we changed the opening. [chuckle] COOPER: But it sounds as if he . . . he gave his clerks a considerable amount of responsibility and . . . and depended upon them a great deal. VON MEHREN: I think that's correct. I think that's correct. COOPER: Certainly not to the point of Murphy, where I've been told it was difficult to tell whether Gresham or Murphy was the jus- . . . justice. VON MEHREN: Gressman, yeah, that's right. COOPER: Gressman. VON MEHREN: Gene Gressman. Well, that's right. I mean, Gene did . . . did most of the . . . most of . . . I think most of the thinking for Murphy and turned . . . in certain areas, turned Murphy opinions into quite good opinions. COOPER: Was the one-year tenure for clerks, or the one-Court-term tenure, do you think, a good idea? And . . . and did all . . . all justices practice the rotating of their clerks each year, or did some of them . . . VON MEHREN: No. COOPER: Murphy obviously didn't. VON MEHREN: Murphy didn't. I think he was the . . . probably the sole exception. It depends, really, on what you want to use a law clerk for. Do you know the history of the law clerks in the United States? COOPER: Not very well. No. VON MEHREN: Well, the first . . . the first law clerk was hired by Judge Learned Hand and Judge Tom Swan, and they paid . . . they paid his salary out of their own pockets. And that experience convinced them that it was . . . this was a very desirable thing to have . . . a very desirable adjunct to the function of a judge. And so shortly after that ex- . . . that individual experiment, Congress passed legislation which allowed a judge to have one law clerk. And then it changed to two law clerks on the Supreme Court at the time when I went down to Reed. And now, indeed, in the . . . on the Circuit Court you have two law clerks. As a matter of fact, at the time I was there, the chief judge was . . . the chief justice was [Fred M.] Vinson. And I remember an . . . well, an amusing conversation I had with Judge Hand after I got back from my year on the Court. I went to see him, and we talked about a number of things, and he then said, "Well, Bob, you know Gus . . ."--that was his first cousin, Augustus Hand--"Gus and I look at the Supreme Court, and we look particularly at the chief justice, and we see that he has an administrative assistant, three law clerks and a chauffeur. We call him 'Vinson, Incorporated.'" [chuckle--Cooper] And I said, "Judge Hand, that's an excellent description, except it should be 'Vinson, Limited.'" [chuckle] Well, the . . . you . . . you . . . you asked the question whether rotation is desirable. I think, myself, it is because one of the principal functions of the law clerk is not only to assist the judge in his . . . in his . . . in his judicial function; it's offer . . . it's also to bring a continual infusion of the latest thinking of the law schools to the bench, and to bring the enthusiasm and the new perspectives of younger people to judges who in many ways are quite isolated from what's maybe going on at the universities, etc. So I . . . I think it's a uniquely valuable function in that regard, and I think you lose a part of the importance of the function if you keep a law clerk certainly any more than two years. There are some judges who like to keep them for two years because it's a little bit easier. You can . . . in a certain sense, part of the first year is a learning process for the clerk. But I . . . also from the point of view of . . . of the personal experience. I mean, I . . . I . . . I view my own two clerkships as really the ideal sort of situation: two very exciting years in t- . . . two different courts with two very different judges. And I would . . . I would not . . . if I were a judge, for example, I think I would opt for the one year . . . for the one-year system. COOPER: Reed had a great deal of . . . of legal training, but he did not have a formal law degree and had no prior experience as a judge prior to his coming on the bench. Did those things ever bother Reed, to your knowledge? Were they any handicap to him at all in the eyes of the other justices? Although his situation was not unique to the Court, I guess, at the time. VON MEHREN: I don't think so. I think the general perception of Justice Reed among his colleagues was that this was a very sound judge. Not the most articulate of the justices, not the most profound, but a very sound judge. He had . . . was on, I think, good terms with all of the Court, something you couldn't say of everybody at that [chuckle] time, and that was a tribute to his very decent, humane personality that I talked about earlier on. But I don't think that . . . that he . . . that it bothered him. I . . . sometimes he found it h- . . . he . . . he found it hard to make his . . . make up his mind and make his decision, and he would . . . he'd like to talk at considerable length with both John and myself, and sometimes with the two of us, if it were a particularly important case. And we'd discuss in depth the problems and the approach he was taking to it. But in those discussions, I can't say that I felt any lack of a . . . either a legal training in the justice or any lack of a judicial background. It seemed to me he functioned well as a . . . as . . . as a judge. COOPER: He never expressed any regret, at least to you, about not having . . . VON MEHREN: No. COOPER: . . . done those things? VON MEHREN: No. No. No. Not . . . at least not that I can recall. COOPER: What justices were Reed closest to philosophically on the Court during the term that you clerked for him? VON MEHREN: That's a difficult question. I suspect he probably was closest philosophically to Frankfurter, but, you know, he . . . he . . . he was in many a swing . . . the swing justice. I would say his . . . probably his two best friends on the Court then--this is . . . I never asked him this, [so] this is just my own personal observation--but I think the two people he . . . in a way, he was closest to were Frankfurter and [Hugo] Black. And, of course, they represented . . . COOPER: Oh, really? VON MEHREN: . . . opposite sides of the Court. COOPER: That's interesting. VON MEHREN: But I suspect, in a way, he was closest philosophically to Frankfurter in the sense that I don't think Reed liked to decide things that . . . that weren't before the Court. He . . . he wasn't a judicial activist in the same way that [William O.] Douglas was, for example. But he . . . but he was the sw- . . . was the swing man, so sometimes he tilted one [chuckle] direction, sometimes in the other. COOPER: What about Vinson? Would . . . would he be philosophically very close to Vinson? VON MEHREN: A little bit hard for me to say, because Vinson had not been chief justice very long when I was there, and I . . . I just don't really know. I . . . I really don't feel that I can comment effectively on that. COOPER: Many people back in . . . in Kentucky at the time Vinson was appointed chief justice expressed an opinion that the appointment should have gone to Reed. After all, he had prior experience on the Court, even back beyond that as Solicitor General and so on and so forth. Did Reed himself ever express any disappointment to you that Vinson had become chief instead of himself? VON MEHREN: No, and I . . . he never expressed any view that he had really been in the running. He . . . he never made any . . . any comment on . . . on it at all. COOPER: He never . . . there was no, even under the surface, hints that he might be somewhat resentful of Vinson? Their relationship was . . . VON MEHREN: I . . . COOPER: . . . pretty good? VON MEHREN: . . . yes. I . . . at least as far . . . I never observed anything like that, and it would not have been, in my view, the nature of Justice Reed to have been resentful on the . . . in that sort of a th- . . . thing. COOPER: What justices would he be inclined most often to disagree with on the Court? VON MEHREN: Well, I guess he'd be probably most . . . probably . . . probably Frank Murphy, would be my guess. One would . . . one could . . . I . . . one could make a . . . make a statistical analysis of this, but I think that philosophically he probably was as far away from Murphy as anybody on the Court. COOPER: Did . . . did any disagreements that you ever recall ever reach the point of . . . of personal animosity which would have affected his performance on the Court? Or . . . or was he able to stay above that kind of thing? VON MEHREN: Well, you know, my . . . my own view is that I don't know of a single occasion where Justice Reed expressed personal animosity towards anyone. He . . . in my view, he just wasn't that type of person. He wasn't. He didn't have the type of personality that, for example, Justice [Robert] Jackson had. He . . . or, indeed, that Felix Frankfurter had. He . . . I . . . it would be untypical, in my view, for his . . . him to express personal animosity towards any member of the Court. COOPER: So he . . . he was in no way involved in the . . . the Jackson-Black feud and that kind of thing. VON MEHREN: No. No, he certainly wasn't. COOPER: It's rather amazing that he could have . . . have stayed above all of that and still retained his position as a sort of a swing man, or maybe that's the reason he could . . . VON MEHREN: I think that's the reason he could. I think . . . I think, first of all, everybody . . . all the members of the Court viewed him as being a decent, careful judge with good judgment, and somebody who didn't get involved in personal squabbles. And I think that was one of the reasons that he . . . he really was a good friend of, as I observed, to everybody on the Court, and did perform this function of being sort of the swing man that . . . that decided some very . . . very important . . . very important cases. COOPER: And a . . . a particularly important influence on the Court in those times, I would think, with the . . . the Court so divided. They needed [chuckle] . . . VON MEHREN: That's . . . COOPER: . . . they needed that kind of thing. VON MEHREN: . . . that's absolutely correct. Yeah. COOPER: If I might digress just a moment, I wonder if . . . if you could give me your impressions of Vinson, because Vinson, of course, is . . . was also a Kentuckian. We have his papers. And, as you say, he had . . . had not been chief justice very long when you came. But . . . but do you have some general impressions of Vinson and the Court? VON MEHREN: Well, I don't think that Vinson was a great chief justice by a long shot. He impressed me, on the whole, as being aloof, austere, not extraordinarily intelligent, [and] not, I don't think, a very good choice as chief justice. But I say all of this with the caveat [that] I did not know him well, and he may have been in . . . if you knew him, he may have been a much warmer person than he appeared if you didn't know him. COOPER: But he . . . he was obviously a political appointment. He'd been very close . . . VON MEHREN: Clearly. COOPER: . . . to President [Harry] Truman. VON MEHREN: Clearly. Clearly. Yeah. Yes. And I think . . . I mean, I think . . . I think that the bar viewed him as a political appointment, and I think that was a disadvantage to Vinson insofar as he tried to function as chief justice. COOPER: Were the . . . the clerks of other justices, what was their attitude toward Justice Reed? When the clerks would get together, as I assume they did over lunch or maybe at other times, did you ever find yourself in a position of having to defend your justice? Was that a . . . a common thing, which . . . VON MEHREN: Well, certainly not . . . not as a human being. I think he was very popular with the clerks as a human being. I mean, you always had arguments as to whether or not your . . . your justice was right or wrong in his opinions, but that's . . . that's a different thing, and those were de- . . . dealt with on intellectual levels. But I think he was quite popular among the clerks as a . . . as a human being, as I said. I think he was viewed as being too conservative for some of the . . . some of the clerks. And . . . well, you know, law clerks, tending to come directly out of law school, are likely to be judicially more liberal than either practicing lawyers who have practiced some time or judges. So ordinarily most clerks are more liberal judicially than the judges they . . . they serve. So . . . I . . . and that wasn't unexpected to me that a number of my colleagues, particularly those who worked for the more liberal side of the Court, would say, "Well, Reed has been too conservative in this case. He should have gone along with my judge." So you [inaudible] it might have been. But he . . . yeah, he . . . he was, I think, respected by all, and he had . . . and good common sense. For example, he didn't write dissents which went on and on and on. Justice [Wiley] Rutledge, who . . . who died just after the conclusion of the October 1947 term, literally worked himself to death, and he did that because he would write just extraordinarily long dissents. I mean, forty or fifty page dissents which were really not very helpful, in my view, as . . . in terms of the evolution of the law. But he felt a compulsion to do it, and he killed himself by overwork. Interesting. You know, his law clerk . . . or one of his law clerks was John Paul Stevens, who is now a member of the Court, and . . . and John used to have to work . . . I mean, they'd stay up way past midnight working with . . . with the justice to get these enormous dissents done. COOPER: Maybe that makes Stevens' dissents shorter today. [chuckle] VON MEHREN: Maybe. Maybe. Well, Stevens, I mean, is . . . is a very . . . much more of a practical . . . practical-minded person, I think, than Rutledge was. COOPER: Did you have some philosophical differences with Reed yourself? VON MEHREN: Well, there are lots of . . . lots of things that I think I might have . . . I . . . if I'd [chuckling] been a judge at that time, I might have decided differently, but I . . . I think that on the whole, there weren't any profound philosophical differences. I think I more or less agreed with his general attitude as to the function of a judge, which was somewhat more activist than that of Felix Frankfurter's, but . . . but not as . . . certainly not as activist as . . . as Murphy or Douglas. I think that in certain areas, politically the justice was more conservative than I was at that time, but I . . . I think that's just inherent in being young. COOPER: But he . . . he, at least, did encourage and accept disagreement from his clerks, is that right? VON MEHREN: Oh, yes. He encouraged . . . I mean, he . . . he wanted to . . . he wanted . . . he didn't want people to simply say, "You're quite right. This is the answer. You've thought about everything." No, he wanted really to get your critical analysis of . . . of the problem, whether you agreed with him or disagreed with him. He'd make the final decision, but he wanted to have . . . well, he really wanted to explore the problem. And that was really great fun. We spent hours talking about a case and his . . . his views, and very often he would change his views after . . . after the . . . after the discussion. Very often he wouldn't. COOPER: But he didn't reject differences of opinion . . . VON MEHREN: No. COOPER: . . . out of hand. VON MEHREN: No. No. Certainly not. COOPER: How would you describe Reed's idea of the . . . the proper role of the Court in general in our system of government? Some people have written about Reed that he was in his opinions rather deferential to the legislative and executive branches. Would you find that to be the case during the year that you clerked for him? VON MEHREN: That's a hard question, because you're taking a very small slice of life. But I . . . I think . . . I mean, I think his experience in the executive branch and his contact with the legislative [branch] probably made him, in the area of administrative law, for example, give perhaps greater weight than somebody from a different background might give to the decisions and the actions of the executive and the legislatures. Because I think . . . as . . . as a generality, I think it's a fair observation, but I . . . I . . . shouldn't be pushed too far, by any means. COOPER: Right. Not to the point of making the . . . the Court absolutely subordinate to the other two branches. VON MEHREN: Most certainly not. Certainly not. COOPER: Some have labeled Reed--I think it's Herman Pritchett, who . . . who did an article on Reed--labeled him as an economic liberal and a civil rights conservative. What do you think of that assessment? Is that, in any way, accurate or descriptive enough? VON MEHREN: Yeah. I mean, tha- . . . that's . . . that's . . . that . . . that is descriptive, and it has a certain amount of truth in it. I think that the . . . particularly the integration issues were difficult for him because he came from a basically Southern background, and I think he was more conservative in the civil rights area than he was in the economic area. But I . . . again, he wasn't . . . he wasn't doctrinaire. He . . . he was prepared to look at the problem and consider the problem and consider the arguments, and he didn't reject a position out of hand simply because it was not, perhaps, consistent with what his own . . . his own predilections might have been. COOPER: But that . . . that tendency toward judicial restraint would . . . would make it difficult for him to accept the role of the Court, certainly, in promoting civil rights, would it not? VON MEHREN: Yes. Yes. COOPER: Automatically. Irregardless about his . . . his own personal racial feelings. VON MEHREN: I think that's right. I think it would. COOPER: He . . . he's been criticized a . . . a great deal for being reluctant in . . . in the field of civil rights, but yet in looking back over the . . . the cases, starting maybe as early as 1938, it seems to me that in most of those racial covenant cases he ultimately came down on the right side as far as civil rights is concerned. For instance, he . . . he wrote the opinion in a couple of cases. Morgan versus Virginia, I think, was about 1944, where it was declared unconstitutional for racial segregation to exist on motor carriers. He wrote the Smith-Allwright case [Smith v. Allwright], which out- . . . outli- . . . or outlawed the white primary. And in all of the cases that I can find, he's coming down on the right side in terms of civil rights, but still historians are . . . are tending to criticize him for his . . . his reluctance on civil rights. And I'm . . . I'm . . . I'm a little perplexed, and I wonder if that's really . . . if they're really being quite fair to Reed. VON MEHREN: Well, I'm not sure they are. He . . . I think he . . . he . . . he did . . . he didn't sit in the racial . . . first racial covenant case, did he? I think he just . . . he . . . COOPER: There was one in 1938, the Gaines versus Canada case [Missouri ex rel. Gaines v. Canada], which had to do, I think, with opening up graduate schools . . . VON MEHREN: No, I'm . . . COOPER: . . . to . . . VON MEHREN: . . . talking about . . . COOPER: . . . blacks. VON MEHREN: . . . restrictive covenants on land. COOPER: No. VON MEHREN: I think . . . COOPER: He might not have . . . VON MEHREN: . . . I . . . I think . . . COOPER: . . . had . . . VON MEHREN: . . . recused himself the first case that that came up in. But when I was with him, the Court had the . . . I think it's called the Oyama case [Oyama v. California], [which] involves the racial . . . racial restrictive covenants in California against the Japanese. And as I recall it, he joined the majority opinion there. COOPER: Yes, he did. VON MEHREN: And I . . . and I recall the discussions with him. He was quite clear that the . . . that the Court should strike those . . . those restrictions down. The . . . I recall that he was the sole . . . was either [the] sole dissenter or he was one of the dissenters, perhaps the sole dissenter in the school prayer case, wasn't he? COOPER: He was. VON MEHREN: Yeah. And [chuckle] . . . COOPER: Yeah. VON MEHREN: . . . that earned him the nickname of "the Cardinal" from [chuckle] . . . from Justice Frankfurter, which always amused me to hear Frankfurter come around and ask how "the Cardinal" was. [chuckle] COOPER: Yes, in that . . . that McCollum case [Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois], he was the only one who found no violation of the Constitution in that release time for religious . . . VON MEHREN: Religious instru- . . . COOPER: . . . instruction. VON MEHREN: That's right, yeah. Yeah. Yeah. Yeah. COOPER: And . . . and he tended to be very conservative on cases involving . . . well, the Japanese-American cases, for instance. He had voted for their being put into concentration camps at . . . VON MEHREN: Yes, this is the . . . yeah . . . COOPER: . . . the beginning of World War II. VON MEHREN: . . . the war, yeah. COOPER: And then there was another case, I think, which came up during the time that you clerked for him, and I know it's not . . . really not fair to ask about specific cases, but I wonder if you recall anything about the Takahashi versus the Fish and Game Commission. It was a case where California had a law denying aliens the right to engage in commercial fishing, and the Court struck that law down but Reed vigorously dissented, which would have been consistent with his earlier stand on those kind of cases. VON MEHREN: I, quite frankly, don't recall that case. COOPER: And I . . . I was wondering what . . . if there was any clue as to why he would be rather conservative in those kind of cases, when on civil rights cases involving blacks, it seems to me that ultimately he . . . he votes on the liberal side? VON MEHREN: Well, I think I . . . if the Takayama [sic Takahashi] case involved the question of the constitutional protection of an ou- . . . of an alien, of course, I think you've got different problems [or] different questions. That's the only suggestion I could offer. I . . . because I, quite frankly, don't remember the case [and] don't remember any discussion with the justice of the case. After all, it was a long time ago. [chuckle] COOPER: I . . . I realize that, and it . . . it really isn't . . . isn't fair to ask that kind of a question. Did . . . did Reed appear to miss Kentucky? Did . . . in . . . in your conversations with him, did he ever talk much about Kentucky and his roots there and . . . VON MEHREN: Ye- . . . COOPER: . . . whether he would like to come back? VON MEHREN: . . . yes, he did, and he talked very fondly about Kentucky. He obviously had enjoyed his early life in Kentucky, and I . . . I . . . I think that he went back every summer when I was with him. And I think he enjoyed that enormously. I don't recall as ever having discussed where he wanted to retire to. As a practical matter, he stayed in Washington until he went to the nursing home on Long Island, I believe. And I think that it was only natural that he wanted to stay in Washington after he became a senior justice. But he talked very fondly of Kentucky. COOPER: Did he ever talk about . . . apparently he had, at one time at least, a . . . a great desire to be governor of Kentucky. Did he ever say anything about political ambitions in the state? VON MEHREN: No. No, he never mentioned that to me at least. COOPER: Did . . . did the Reeds seem to enjoy the Washington social scene? Did they do a lot of entertaining? VON MEHREN: I think they did. I think they did quite a lot of entertaining. I think they enjoyed it. And . . . well, they had a very nice apartment at the . . . at the Mayflower, which . . . and . . . and I do think they enjoyed the diplomatic rounds and things of that type. COOPER: Did you know Mrs. Reed very well? VON MEHREN: Well, I won't say I knew very well, but I knew her well. COOPER: Which . . . I've been told that . . . that she was a tremendous asset to him in the social realm of things, at least. Is that . . . VON MEHREN: Yeah, . . . COOPER: . . . accurate? VON MEHREN: . . . she was a very . . . I mean, she was a very nice hostess, very kindly and generous, and I expect that's true. I wasn't . . . I didn't myself, as a law clerk, have enough contact with the social life of Washington to know whether or not that was true . . . the statement you made is true or not. But I can see how it . . . how it could be true. COOPER: Could you describe the . . . the annual law clerk dinners? Had those been going on ever since Reed had been a justice? VON MEHREN: That I can't say, but they certainly went on as long as he was active on the Court after I clerked for him. They were very fine affairs. You'd have a very high percentage of attendance. We ordinarily had the dinners at the . . . was . . . at the Army- Navy Club, and they were very pleasant. And then they were generally on Saturday . . . Saturday night, and then on Sunday the Reeds would give a sort of a brunch at their apartment for the law clerks and their wives, which was very . . . very pleasant. [End of Tape 1, Side 1] [Beginning of Tape 1, Side 2] COOPER: Well, it must have been a rather great tribute to Reed himself. You . . . you mentioned the . . . the high percentage of law clerks who came back each year, and . . . and I'm sure they were scattered all over the country and world by that . . . VON MEHREN: Yes. COOPER: . . . time. That must have been a . . . a very pleasant thing for him. He must have enjoyed those a great deal. VON MEHREN: Oh, I think he did enjoy it a great deal. And I . . . and I don't know any of his law clerks who wa- . . . who was not very fond of the justice. I think they . . . they all really very much respected and . . . and like him. COOPER: In . . . in later years, as you went back for the . . . the dinner, did you notice appreciable change in . . . in Justice Reed, in his mental outlook? Of course, I'm sure there was great change in his physical appearance, but . . . VON MEHREN: Well, when he became a senior justice and was getting along in years, clearly he was not as much on top of intellectual repartee and discussion as he had been earlier, but I didn't observe any particular changing in his basic attitudes or approaches to life. And I certainly didn't observe any sense of . . . of disenchantment with life or with what was going on in the country or what the Court was doing. Indeed, it s- . . . he . . . he . . . he welcomed, as he got older, the contacts with his old law clerks and was very much interested in what they were doing [and] what was going on. It was a very . . . very affirmative way of looking at life. COOPER: What about Reed the man? You . . . you've talked a little about that already. Was he, for instance, more impressive as a man than as a justice? That's the kind of thing a . . . that a biographer would . . . would like to play with, I'm sure. VON MEHREN: Yeah, well, you know, it's pretty hard, when you're talking to an ex-law clerk to separate the two [chuckle], because you knew the man as a justice . . . COOPER: Yeah. VON MEHREN: . . . and that was the context in which you . . . you saw him. It's a very close relationship, at least in my experience with the two judges I served. The law clerk/judge was a very close relationship. And it . . . I think is . . . for me, it's hard to complete . . . to . . . really to separate the attributes of the man from the attributes of the judge. And I . . . but I do think that the attributes of Reed as a man reinforced his qualities as a judge. And those . . . and I've said before, I think the qualities of the . . . of the . . . the attributes of the human being were, first of all he was a very decent, generous person. And secondly he wasn't . . . he was not . . . he was not dogmatic. He was not . . . he hadn't made up his mind before he heard the arguments. And these were qualities both of the individual and of the judge. COOPER: Is there anything else you would like to add? Any . . . any other stories about Reed or . . . you . . . you've given us some [chuckle--von Mehren] very good insights already, but if there's anything else you'd like to add, why, feel free to. VON MEHREN: Well, let me think for . . . let me think for just a m- . . . [Interruption in taping] VON MEHREN: . . . I think there's one . . . one story which involves a rather important case, which you may have gotten from somebody else, but if not, it's so- . . . something that'll probably be of interest to you. The South-Eastern Underwriters case [United States v. South-Eastern Underwriters Association] was a case in which the Supreme Court affirmed by necessity a decision of the . . . of the Second Circuit, that the insurance industry was subject to the antitrust laws of the . . . of the United States. The . . . the affirmance by necessity resulted from the fact that Reed recused himself and the Court split 4 to 4. The case was handled for the insurance industry by John Cahill of Cahill [&] Gordon. At that time, John Reed was an associate at . . . at Cahill [&] Gordon. John Reed had nothing, as I understand it, at all to do with the case, yet his father re- . . . recused himself because I'm sure--I . . . I never discussed this with the justice--but I'm sure that he did because the justice felt that this was a case where it was very important that there be no appearance of im- . . . of impropriety. Well, the . . . as . . . shortly after the decision came down and the affirmance by necessity was recorded, John Cahill came into John Reed's office and told John Reed . . . [von Mehren is interrupted] Yes? M- . . . I've got a very . . . I've two very im-. . . [Interruption in taping] VON MEHREN: . . . as I said, John Cahill told John Reed he'd have to find another job because Cahill [&] Gordon was going to take a lot of cases to the Supreme Court, and they didn't want Justice Reed, whom they counted on to support their position in the South-Eastern Underwriters case, to disqualify himself and sometimes deprive them of what they thought was their just victory. Well, John Reed then went to Davis [&] Polk, a firm that at that time was led by John W. Davis, who had far more cases at the Supreme Court than John Cahill did, and John Reed continued and . . . his practice there until his retirement a few years ago. And I think that's . . . that's an interesting vignette of . . . of . . . of . . . well, New York practice, the problems of the . . . the recusal of a judge, the attitude that Justice Reed took towards that and . . . and some of the dynamics of . . . of constitutional law practice. COOPER: That's a . . . that's an important bit of information. I don't think we . . . we've gotten that from anyone else. I appreciate your doing that. VON MEHREN: I think, Mr. Cooper, that's . . . those are the only . . . the only things that come to mind right now. I might end by saying that, personally, the year I spent with Justice Reed was a very pleasant one, a very instructive one, and I had the greatest affection for him and for Mrs. Reed then, and I do now. COOPER: Thank you very much. You've been a great help to us. [End of Interview] Supreme Court justices Robert von Mehren begins by describing the expectations the Supad for their clerks. Justice Reed's clerks reviewed petitions of certiorari and sometimes wrote first drafts of opinions. Von Mehren explains Reed's view on the role of the Supreme Court, and compares Reed's personality to those of the other justices. He recalls the other justices' opinions of Reed, and Reed's opinions of them. Then he provides a history of the law clerk position at the Supreme Court, explaining the clerks' one-year rotation system. The cases von Mehren discusses include Oyama v. California, Takahasi v. Fish and Game Commission, and McCollum v. Board of Education. He also mentions school prayer, Japanese internment camps, and the Southeastern Underwriters Insurance case. Kentucky Politics