The 1924 Term: Recollections of Chief Justice-Taft's Law Clerk

C. Dickerman Williams

My service as a law clerk to Chief Justice William Howard Taft may be said to have begun in the spring of 1924, when Dean Swan of Yale Law School called me into his office. This was in April, I believe. I expected to graduate in June. At that time my own office as editor-in-chief of the Yale Law Journal was next door to his. He told me that Chief Justice Taft had asked him to name a student from the graduating class to be his law clerk beginning in the summer of 1924 and continuing for one year. I was aware that Justices Holmes and Brandeis made a practice of having as law clerks students from the graduating class of the Harvard Law School. Taft had originally taken over the law clerk of his predecessor, Chief Justice White, an older man who served the Chief Justice continuously. However, this man had resigned and Chief Justice Taft had decided to adopt the practice of his colleagues Holmes and Brandeis in choosing a successor. Dean Swan told me that the faculty had decided to nominate three students and let Chief Justice Taft select the one he liked best. The other two, he said, were Douglas Arant (my predecessor as editor-in-chief of the Journal and later to be an outstanding lawyer in Birmingham, Alabama) and William D. Whitney of my own class (and managing editor of the Journal). In the midst of a brilliant career at Cravath, Whitney saw fit to resign to become his wife's business manager--she was Adrienne Massey, a prominent British actress; the event startled the New York Bar.

In accordance with Dean Swan's instructions, I telephoned Chief Justice Taft's office and made an appointment to see him two days later in Washington. At our conference we talked in a general way, especially about my studies; he did not ask me about either my politics or my religion. My duties, he said, would be to digest, i.e., summarize, the facts and issues in petitions for certiorari, a petition to the Supreme Court to review the decision of a lower court, usually a circuit court of appeals, the highest court of a state or the U.S. Court of Claims. These are now usually called "certs," but at that time the full word was used. I would also do research to aid him in his written opinions.

Being in Washington and having to go to Union Station for a train back to New Haven, I took advantage of the opportunity to visit the U.S. Senate, the Capitol being not far from the station. From the public gallery I looked down on the Senate floor; I was seated immediately behind Senators Lodge and LaFollette, who to my mind represented extremes in the Republican party. Indeed Senator LaFollette became an independent candidate for President later that year. The two Senators were talking to each other most cordially.

On my way back I sat in the compartment of the Pullman car which was then maintained for men to

converse. In the course of the conversation, one of the men identified himself as father-in-law of Orme Wilson, Jr., a person who had recently achieved great publicity for some accomplishment, the nature of which I have forgotten. At any rate, on arriving in New Haven I felt that I had really arrived, having conferred with the Chief Justice of the United States; having observed Senators Lodge and LaFollette; and having conversed with the father-in-law of Orme Wilson, Jr. Several days later, Dean Swan informed me that Chief Justice Taft had selected me to be his law clerk and I should write to him as to when I should report for duty. I did so and was told to present myself at the Supreme Court conference room on August 1 and to write digests of the then pending petitions for certiorari and send them on to him.

I was, of course, in Washington August 1. At that time the Supreme Court sat in a room in the Capitol which had been used until the completion of the Senate wing in 1855 as the chamber of the U.S. Senate, the place where Senators Clay, Webster, Calhoun and others had made their famous speeches. The conference room was directly across the main corridor from the court room. It was in the charge of a librarian, but was only large enough for a relatively few books (the United States Reports; the Federal Reports; a number of treatises, and some state court reports). I was expected and the librarian provided me with a typewriter and paper. Mr. Cropley (at that time Deputy Clerk of the Court) handed me a batch of petitions for certiorari for me to work on.

In passing, I might say that at that time the Chief Justice had only one law clerk rather than the three that Chief Justice Rehnquist has. I do not want to intimate that I was doing the work which now requires three people; it is rather that petitions for certiorari are at least five times as numerous now as they were in 1924; also, that the opinions of those days were much shorter and more succinct than those of today and less research was regarded as necessary, perhaps because in those days the Justices wrote their own opinions.

Chief Justice Taft was not in Washington--he was at Murray Bay in Canada, the historic summer home of the Taft family (meaning not only the Chief Justice, but also his numerous brothers, their children and grandchildren). After completing a number of digests, I sent them to the Chief Justice at Murray Bay.

During the summer, Washington is very hot and there was of course no air-conditioning in 1924. I took a room at the Shoreham Hotel and turned an electric fan on myself when I went to bed, and slept all right. I did not then know anybody in Washington; the only people whom I met were Court personnel. The Court Crier (a Mr. Waggaman) and I would occasionally go swimming in the Potomac River on the Virginia side of the old iron bridge at a place from which it was easy to enter the river and remain in not too deep water. This area was then in a state of nature. This was my only recreation.

The Court's Term officially began on the first Monday in October (October 6, 1924), the first day the Court sat to hear argument; however, the Chief Justice came back several weeks earlier to see that everything was in order and to preside over the Conference of Senior Circuit Judges as provided by the Act of September 14, 1922.[1] Also at that time there were only nine circuits; the Tenth was subsequently created out of the Eighth and the Eleventh out of the Fifth. The Court of Appeals of the District of Columbia was not regarded as having the same status; there simply was no District of Columbia Circuit, as there is now--a rather anomalous kind of circuit. The circuits had originally been created by the Judiciary Act of 1789 and historically served as a group of districts. Getting to Washington involved more of an effort than it does today; Senior Circuit Judge Gilbert of the Ninth Circuit told us how his train had gone through a snowstorm in the course of his four day trip from San Francisco to Washington. The Conference was also much more informal than those provided at present under the Judicial Code, but covered much the same ground. The Chief Justice appointed me Secretary of the Conference. Each judge reported on the status of the docket in each of the district courts in his circuit. It was apparent that in some districts the judges were overworked while in others the judges had varying amounts of spare time. I do not recall the comment of any particular judge other than Judge Killitts, District Judge in the Northern District of Ohio, and apparently a rather headstrong judge. Judge Denison, Senior Circuit Judge of the Sixth Circuit, reporting for that District, seemed hesitant in his comment. The Chief Justice said: "Do not hesitate to speak frankly about Killitts--you know I appointed him."

After the survey of the courts the Chief Justice took up "possible suggestions that may seem in the interest of uniformity and expedition of business." The first was the way in which in jury cases many lawyers conducted long--almost interminable--examinations of prospective jurors on the voir dire. The Chief Justice reminded the judges that at common law, which under the Seventh Amendment governed federal trials, it was the judges--not the lawyers--who conducted the voir dire. At the suggestion of the Chief Justice the Conference resolved that that procedure (i.e., questions put by the judges) should be followed in the federal courts. When this ruling was made public, there was a considerable controversy in the newspapers in the form of letters from lawyers who did not like to have this privilege taken away. But Professor (as he then was) Frankfurter, in a letter to The New York Times, ardently defended the Conference ruling.

The Chief Justice then moved on to another grievance; the apparently automatic way in which district judges granted bail pending appeal to defendants convicted in criminal cases. Here he was taken aback by Judge Sanborn,[2] who said in substance: "Mr. Chief Justice, the Supreme Court ruled in Hudson v. Parker,[3] that the accused defendant in criminal cases should not be imprisoned until his conviction has been affirmed by the court of last resort." Apparently the Chief Justice was not aware of (or had forgotten) Hudson v. Parker and could only express his thought that it was unfortunate that a convicted defendant could simply walk out of the courtroom after a verdict of "guilty." The Chief Justice did not argue with Judge Sanborn but bided his time.

When the Chief Justice returned from summer vacation, I lost my office in the Court conference room and was assigned an office in the attic of the Chief Justice's home. He lived on Wyoming Avenue, a short distance from Connecticut Avenue, in a substantial but unpretentious brick house. His secretary, Mr. W.W. Mischler, ordinarily known as "Misch," was also in the attic. Misch and I did not hit it off; I think that he resented me, but we never had any open quarrel and, of course, I spent a good deal of time at the Supreme Court Library. The Chief Justice had his chambers in what I suppose had once been a bedroom. As I recall, he had only the United States and Federal Reports and a few treatises in his chambers. As my research often was concerned with non-federal cases and both federal and non-federal statutes, I was frequently required to use the Supreme Court Library; this was a room on the ground floor of the Capitol, just inside to the right from the main steps of the building. What was then the Library had been the courtroom of the Court until it had moved to the former Senate chamber. This had the incidental result of requiring me to be in the Capitol building many times and enabling me to go up to the courtroom to listen to arguments of outstanding interest, provided that the listening was not excessive in duration.

All the Justices were in town prior to October 6. The Chief Justice called a couple of meetings before the formal opening to make progress on the certiorari petitions and, I suppose, to greet each other. The Chief Justice went in his car, driven by a chauffeur, for the first meeting and asked me to go with him. He said we were going to pick up Justice Brandeis en route. I was curious about the greeting he would give to Justice Brandeis, as I was aware that he had testified before the Senate Judiciary Committee against Justice Brandeis' nomination, as in fact had several--if not most--of the ex-Presidents of the American Bar Association. As we approached Justice Brandeis' apartment house, we saw him standing on the sidewalk in front, waiting. The Chief Justice told me to get out of the car promptly when we reached Justice Brandeis and I did so. He then got out right after me, and going up to Brandeis threw his arms around him with every appearance of affection and said "My brother." I concluded that whatever animosity had previously existed between them had ended.

On Saturdays, the Court met in conference to decide petitions for certiorari, cases argued during the week and other matters, if any. The Clerk would supply a formal list. Each petition had a number given according to the chronological order of filing, and argued cases in chronological order of argument. The Chief Justice would make a presentation of the case. After such discussion as seemed necessary the Justices would vote, the junior Justice voting first. Each Justice had a docket book and would note in his docket how the various Justices had voted. Before the conference the Chief Justice and I would make a pile of the cases, his digest, the briefs and the record in each case being bound by a rubber band. When the conference was over, he would return to his home with his docket book, the Clerk's list and printed assignment sheets. He would then assign each argued case to a particular Justice to write the opinion.

I would note the assignment on the assignment sheet. I would also note "granted" or "denied" against each certiorari petition. The assignment sheets were then delivered immediately to the other Justices by Burke, his messenger, by motorcycle. The actions on the certiorari were on a separate sheet which I delivered to Mr. Cropley on the following Monday morning.

I recall that he once told me to write "granted" respecting a particular petition. As I could see from

the docket book that five Justices had voted against certiorari, I said, "Mr. Chief Justice, there was a majority against." He replied that as four Justices had favored certiorari, it would be granted. This is the so-called "rule of four." The Chief Justice had certain tendencies in his assignments. Cases involving jurisdiction would often go to McReynolds or himself; cases involving public lands would go to Van Devanter (he had been Assistant Attorney General assigned to the Interior Departmentent). As the Term proceeded, the Chief Justice was more and more influenced by the state of the Justices' work. If a Justice had several cases in which he had not yet circulated a draft opinion, he was less likely to get any more. On the other hand, if a Justice was current, as Holmes for instance always was, he would be more likely to get an assignment. Holmes in fact wrote a skeleton opinion in every case during the argument and on the cover of the record in this case. (He would then doze--or at least close his eyes--until the next case was reached.)

I was, of course, curious to see what disposition the Court would make of the various petitions. According to its own rules, the Court took cases according to the importance of the question presented, but in fact it often took a case because it disagreed with the decision of the lower court even if the case was (or seemed to me) of minor importance. Except in a few cases of obvious national interest, and in a few others of total insignificance, I was quite unable to predict when the Court would grant certiorari. This was true at the end of the year as much as at the beginning.

A problem facing the Court, and one which Chief Justice Taft felt he must deal with promptly, was the aging and declining strength of Justice McKenna, at that time the Senior Associate Justice of the Court. He had been failing for some time and his opinions were not of the standard which the other Justices thought the Court's opinions should be. Of course the Justices made suggestions and even demands regarding each other's opinions, but that could hardly be extended to completely rewriting an opinion. The Chief Justice did not involve me in any move to cajole McKenna into retirement, but he did refer to the situation from time to time in discussing McKenna's opinions. He concluded that McKenna would not resign unless he were prompted to do so, but that if he were prompted in a nice way and with due appreciation of his work on the Court (which had extended over a period of more than 20 years), he would step aside. The next Justice in seniority (Holmes) had been appointed by President Theodore Roosevelt and McKenna by President McKinley. One might suppose that, before taking steps in the matter, the Chief Justice would consult the next Senior Associate Justice (i.e., Holmes), but he may have felt that Holmes' reaction would be "I suppose I am next." Indeed, he may have consulted Holmes and perhaps others, but I was not aware of it.

There was a current story that Justice Brewer had been one of a committee to urge Justice Field to resign because of age. When years later a committee of Justices made the same suggestion to Brewer and had referred to his own approach to Field, he had said, "Yes, and a dirtier day's work I never did in my life." At any rate, it was Justice Van Devanter whom the Chief Justice consulted so far as I am aware and who concurred in his thought that pressure should be put on McKenna. Taft did so; of course, I was not present, but I gathered from the Chief Justice that after a preliminary hesitancy, McKenna did agree to resign. He did so. I remarked to the Chief Justice that Holmes--as Senior Associate Justice--would now sit on his right and the Chief Justice commented in substance, "I imagine that he is pretty bitter that he has not been there since McKenna began to fail."

Of course Justice McKenna's resignation created a vacancy and thus the need for a new appointment. The then Attorney General was Harlan F. Stone, who had been appointed to succeed Attorney General Daugherty, who had become involved in scandals of the Harding Administration. The Chief Justice had not known Stone intimately, although presumably they were acquainted as Stone had been Dean of Columbia Law School while Taft had been a Professor at the Yale Law School. (Stone later became a partner in the firm of Sullivan & Cromwell.) Stone was highly regarded by the faculty of the Yale Law School while I was a student there and presumably Taft either shared or was aware of this regard. The final touch was Stone's presentation, on behalf of the President, in the case of Exparte Grossman.[5] Grossman had been convicted of contempt of court in violating an injunction used under the Volstead (National Prohibition) Act and then pardoned by President Coolidge. Judges Carpenter and Wilkerson of the District Court for the Northern District of Illinois refused to release him, holding that the Judiciary and Executive Departments were entirely separate and that the President could not alter a judgment of a court. The Attorney General, as the principal lawyer of the Executive branch, made the argument on behalf of the validity of the pardon (ordinarily the Solicitor General argued important cases in the Supreme Court); the Department of Justice engaged two eminent lawyers to make the argument against its validity. Chief Justice Taft, having been President and knowing the problems of the Presidency, was inclined to sustain the pardon. He found the Attorney General's brief to be excellent. As Stone stood before the Court for about an hour making his oral arguments, the Chief Justice had a good chance to look him over and was greatly impressed. He recommended to President Coolidge that Stone be appointed and Coolidge accepted the recommendation. (I believe Stone had other support as well.)

The Chief Justice wanted to head off the appointment of anyone other than Stone (there was gossip that Chief Justice Von Moschzisker of the Pennsylvania Supreme Court wanted the appointment and had the support of the Pennsylvania Senators). Hence he arranged that the resignation of McKenna and the nomination of Stone be simultaneous, and they were. On January 5, 1925, McKenna resigned at noon and President Coolidge sent Stone's nomination to the Senate that afternoon. Nobody had a chance to persuade President Coolidge to appoint anyone else.

On the night before Stone's induction, Taft and Stone conferred at the Chief Justice's home. The Chief Justice described to Stone the procedures of the Court (the docket, the assignment procedure, etc.). I was on hand to present Stone's docket to him and point to the various entries which the procedure of the Court would call upon him to make and show such other papers as the Chief Justice wanted him to see.

The Chief Justice was soon lobbying Congress to enact what became the Act of February 13, 1925 (43 Stat. 936), greatly reducing the mandatory jurisdiction of the Supreme Court and enlarging its certiorari jurisdiction. The Act of March 3,1891 (26 Stat. 826), created the Circuit Courts of Appeal; it had given those courts appellate jurisdiction over criminal, admiralty, patent, revenue and diversity cases, subject only to certiorari review by the Supreme Court. The Act had left unimpaired the mandatory jurisdiction of the Court in constitutional and other statutory cases, especially railroad liability cases; the latter involved primarily personal injuries suffered by railroad employees. Issues in the Court of Claims also could be appealed as of right. The Court as the highest court in the land was bored constantly having to deal with the details of personal injuries, which were numerous, especially as before reaching the Court, since two other courts would have already considered the merits of such cases.

The Act of February 13, 1925, is a long and elaborate statute dealing with numerous aspects of federal court jurisdiction. I have mentioned the only feature of it which seemed important to the Chief Justice in conversations we had.

I understood from Chief Justice Taft that the Court was unanimously in support of the bill which became the Act. It was supported by appearances before the Judiciary Committees of Congress by a committee of Justices including the Chief Justice, Justice Van Devanter, and Justice McReynolds I do not know who actually drafted the bill, but it was not the Chief Justice.

Enlarging the certiorari jurisdiction of the Court of course meant more work for the law clerks. Fortunately, at least for the 1924 Term law clerks, the Act provided that it should not take effect for three months, i.e., until May 13, 1925. In the first few days of May the Government filed a large number of appeals from the Court of Claims, about twenty, I think, and I thought, "Thank God I have been spared the need to summarize these cases."

All draft opinions were circulated to the members of the Court; the Chief Justice had a messenger (Burke), who delivered to the other Justices the draft opinions and the assignment sheets. All the Judges had messengers to circulate the draft opinions to be discussed at the next conference and approved (or modified). My recollection is that none of the early opinions were modified substantially as a result of points (if any) raised by other Justices at the conferences. Not only the Chief Justice, but also the other Justices had only relatively minor opinions in the early part of the Term.

Important cases came in December. One was Sanitary District of Chicago v. United States,[5] which the Chief Justice assigned to Justice Holmes. Unlike the present situation when the numerous law clerks have lunch with one another in a dining room set aside for that purpose, the law clerks of those days had relatively little contact with each other. It so happened that I did know Barton Leach, law clerk to Justice Holmes and Warren Ege, law clerk to Justice Brandeis; we had lunch together from time to time, but only by pre-arrangement. I recall that Leach told me that Holmes hoped to get the Sanitary District case. When the Chief Justice did assign it to him, I told him that I happened to know from his law clerk that Holmes had wanted to get that case. The Chief Justice said that Holmes, without directly asking him, had conveyed that idea to him also and he was pleased to gratify him. Although I did not think especially about it at the time, I now realize that from my remark the Chief Justice would know that the various law clerks (including his own) were discussing the work of the Court among each other. He apparently acquiesced.

By a curious coincidence, two highly important cases came before the Court on December 5, 1924, Myers v. United States,[6] and McGrain v. Daugherty.[7] I happened to be in the courtroom when the Myers case was originally reached for argument. The issue was the constitutionality of a statute requiring that the Senate approve the removal of an officer appointed by the President with the consent of the Senate. Solicitor General Beck represented the Government and upheld the removal of a postmaster by President Wilson without the consent of the Senate. There was no appearance for the estate of the removed officer; he had died before the case reached the Supreme Court. Mr. Beck told the Court that he regretted this non-appearance, because in his opinion the opinion of the District Court could not be sustained. The District Court had dismissed the case on a technicality which Mr. Beck regarded as unpersuasive and had hence concluded that the case squarely presented the constitutional issue. The Court agreed with Mr. Beck and decided to request the Senate to designate a counsel to present the arguments on behalf of the constitutionality of the statute. The Senate did so and appointed George Wharton Pepper, an outstanding Philadelphia lawyer and United States Senator from Pennsylvania. I listened in April to the arguments when the case was fully argued by Messrs. Beck and Pepper. I shall not attempt to summarize the arguments.

At my next meeting with Chief Justice Taft after the arguments, he assigned the opinion to himself but said that the case was so important that he would not try to get out an opinion during the 1924 Term, but would work on it during the summer and the following year. The opinion was 71 pages long, and there were long dissents by Brandeis (in which Holmes concurred) and by McReynolds. Meanwhile, he instructed me to make a study of the impeachment of President Johnson which had presented the same. I did so in the last part of the Term and wrote an exhaustive paper. It was really an immersion into the impeachment proceedings. The key argument for President Johnson was that the first Congress had rejected as unconstitutional a proposed similar limitation on the President’s power of removal of the Secretary for Foreign Affairs."

Presumably because he was the only member of the Court who had been President and therefore was most familiar with the problems of the Presidency, the Chief Justice assigned the opinion in Ex parte Grossman to himself. In spite of the excellence of the Attorney General’s brief and the similar excellence of the brief on behalf of Judges Carpenter and Wilkerson, the Chief Justice was determined to make his opinion invulnerable. I assigned to research various ideas that might conceivably occur to a constitutional scholar, such as the legal effect of pardons by the King of England, consideration by the Constitutional Convention and other federal cases. The other members of the Court concurred without reservation in Chief Justice Taft's opinion upholding issue the pardon.

Also, I was called upon for extensive research in the case of Carroll v. United States.[8] This case was an appeal from a conviction of transporting liquor in violation of the Volstead Act. The case had originally been argued at the 1923 Term; the Court had decided to affirm. " The Chief Justice had assigned the opinion to Justice McReynolds. In the course of writing the opinion, McReynolds changed his mind and concluded that the judgment should be reversed. The case was then reargued at a later date in the 1923 Term. Again the Court voted to affirm; McReynolds and Sutherland dissented. The Chief Justice this time assigned the opinion to himself, but the opinion was not finally delivered until March 2, 1925, almost a year after the re-argument.

The opinion was elaborate. The facts were as follows. The law officers whose action was challenged had been engaged in patrolling the highway between Detroit and Grand Rapids, Detroit being well known as a place for the unlawful importation of liquor. The officers saw a car on the way from Detroit going west in the direction of Grand Rapids; one of the officers recognized the driver as a man who had made an agreement to sell him liquor (the officer posing as a bootlegger). He had taken $50 for the liquor, but had failed to keep his engagement to deliver. It was accepted law (recognized by all the members of the Court) that a law officer would only arrest a man for a misdemeanor if it was committed in his presence, whereas in the case of a felony, he could make an arrest in the reasonable belief that the man was guilty. It was also a given that transporting liquor was only a misdemeanor; however, after having stopped the car, the officers had kicked the upholstery and found it hard. They thereupon had torn the upholstery and found secreted underneath it numerous bottles of liquor. They seized the liquor and delivered it to the U.S. Marshal for destruction.

The men, whom they then took to the local police station, were prosecuted and convicted. They appealed, principally on the ground that an officer can arrest for a misdemeanor only when he sees it committed in his presence. The Chief Justice's opinion drew a distinction between the evidence necessary to make an arrest of a person and that necessary to seize contraband. He pointed out that the liquor was illicit and possibly subject to seizure at any time; in other words, the question was not what warrants the arrest of an individual, but what warrants the seizure of contraband. He found--with my assistance[9]--cases showing that goods could be seized if the officer reasonably believed them to be contraband. He pointed out that the route westward from Detroit to Grand Rapids was well known for its use to import illegal liquor and that the very defendants involved had made an illegal agreement only a few days earlier for the delivery of liquor. This made it reasonable for the officers to believe that the automobile contained contraband and was therefore lawfully seized. Having seized the liquor there could be no doubt that the men transporting it had done so in their presence. Therefore the requirements for the seizure of contraband and the arrest of persons had been met. McReynolds' dissent was acid and he accused the Chief Justice of disregarding constitutional principles because he thought there was a great deal of violation of the Volstead Act. He more or less ridiculed the theory of contraband which, he asserted, was an afterthought.

The Chief Justice assigned himself other cases. With the exception of the Myers and Carroll cases, to which I have referred, I do not recall specifically the cases in which I did research. Also, I saw the successive drafts of his opinions and, from time to time, made suggestions. I recall in particular one suggestion which he told me to write out for inclusion in his opinion. It was quite brief--only two sentences--and, in fact, he revised the sentences, but did include them in his opinion. I recall that on that Saturday afternoon when he came back from the conference his first remark was "Well, Williams, you have lost your two sentences. McReynolds (who had dissented) said that he would concur if I would strike out those sentences, so I agreed to do so." I said, "Mr. Chief Justice, you must admit that the sentences did prove of some use--they did get McReynolds to concur."

I have already mentioned that two important cases came before the Court on December 5--Myers v. United States and McGrain v. Daugherty.[10] I did not work on McGrain v. Daugherty, but I believe that it is important and the fact that the Court changed its mind while the case was under advisement makes it deserving of more than passing mention.

McGrain was a deputy of the Sergeant at Arms of the U.S. Senate (the Daugherty in the case was not the former Attorney General, but his brother Malley S. Daugherty). This case arose out of the scandals of the Department of Justice under Attorney General Daugherty and held unequivocally that Congress could investigate the Executive departments, notwithstanding that the investigation might discredit an individual. The District Court had reached a contrary conclusion,[11] and granted the writ of habeas corpus. At the initial conference on this case the Supreme Court had agreed with the District Court and voted to affirm. If it had adhered to that decision, the great congressional investigations of recent years either could not have taken place at all or would have been severely hampered.

So far as I am aware it has never previously been revealed that the original vote of the Court had been to affirm. I never mentioned the subject because I thought it confidential. As over sixty years have passed and all the parties (except perhaps some law clerks of that day) are dead, I think it now a matter of history and appropriately stated in an article to be published.

Chief Justice Taft assigned the opinion in McGrain v. Daugherty to Justice Van Devanter. The Chief Justice had high regard for Van Devanter's opinions. According to the Chief Justice he worked with great care and thoroughness, and polished his opinions most thoughtfully. He regarded Van Devanter's opinions as the best of those of any member of the Court.

Before the end of the Term, the Chief Justice summoned another meeting of the Senior Circuit Judges.[12] Although as previously noted, the Conference was primarily occupied with a review of the work in the District Courts, the Chief Justice managed to have the Conference put a limitation on Hudson v. Parker, whose reference to it by Judge Sanborn had so disconcerted him at the September Conference. The June Conference, albeit making a reference to "the purpose of the federal statutes not to subject to punishment any one until he has been finally adjudged guilty in the court of last resort," added the following significant sentence: "But the judicial discretion of the federal courts and judges in granting or withholding bail after conviction should be exercised to discourage review sought, not with the hope of new trial, but on frivolous grounds merely for delay."

Further discussed at the June Conference was the excessive use by prosecutors of the conspiracy statute when only misdemeanors were involved: as conspiracy was a felony, a conviction provided a more severe sentence than a misdemeanor conviction, even if the conspiracy had been only one to commit misdemeanors. Also, evidence was admissible in conspiracy cases more readily. It was resolved that the District Judges and the Attorney General should caution the United States Attorneys.

* * * * * *

Some miscellaneous matters not connected with legal work for the Chief Justice are the following:

Miss Gertrude Ely, a Bryn Mawr woman with an interest in public affairs and some acquaintance with the Chief Justice, came into see him one day. She showed him a photograph and said, "This is a drinking fountain that the City of Geneva has built in honor of President Wilson and his contribution to the League of Nations." I had never before seen the Chief Justice angry. He said in a loud and angry voice: "Wilson doesn't deserve a drinking fountain or whatever. It was his stupidity and obstinancy that kept us out of the League of Nations. If we had once gotten into the League of Nations no one would ever have heard of the reservations."

My status as the Chief Justice's law clerk made me eligible to High Society; more specifically I should say, to the balls given by a Mrs. Leiter, who had a magnificent house on DuPont Circle. Also I was invited to other parties by socially prominent people. In this way I met a number of young men and women. I remember in particular two lovely girls whom I got to know, Miss Helena Lodge, the granddaughter of Senator Lodge, and Miss Eleanor Wilson, whose father had been U.S. Attorney for the District of Columbia during the administration of President Taft.

My mother and one of her sisters, also a widow, took a home on Florida Avenue adjacent to what is now the Cosmos Club. (The house has since been destroyed.) Mrs. Taft invited all of us to Thanksgiving Day dinner. After dinner, coffee was served and the Chief Justice handed coffee cups to my mother and aunt. I think that mother got quite a kick out of being handed coffee by a former President of the United States.

In going to work I walked along Florida to Connecticut, up Connecticut to Wyoming, and then turned left to the Chief Justice's home. The Holton Arms, a school for girls, was at the corner of Florida and Connecticut. I would be walking by a few minutes before nine. In good weather I would see the girls, many of whom were quite pretty, sitting on the lawn of the school. We would wave at each other. Senator LaFollette lived at the corner of Connecticut and Wyoming; he was a great gardener. I would often see him with trowel and spade working on his garden as I went by.

In those days the Court sat from 12noon to 2 p.m. and from 2:30 p.m. to 4:30 p.m. The Chief Justice enjoyed an automobile ride after Court. It so happened that I would often observe who his companion was. Most often it would be Justice Van Devanter and next most often Justice Butler. I never observed him with any other member of the Court. I felt that these Justices were closest to him. Sometimes--presumably when no Justice was available--he chose me. I can't say that he made any startling revelations to me.

He never mentioned his controversies with Roosevelt, MacArthur or Pinchot. He would more often refer to the cases argued that day and the lawyers who had argued them. He occasionally mentioned other members of the Court, but I already stated any comment on them of any present interest. In general, he did not like the influence that Senators had in the appointment of lower court judges. He believed that the appointments of Southern judges he had made as President were excellent--he had had a free hand because no Southern Senator was a Republican. He had an attachment to all Republicans who had remained faithful in 1912--he was not hostile to all who had not; in fact, a majority of Republicans had voted against him but his feelings towards them did not have the warmth of his feelings for the faithful. I surmise that, although he never said so, the disgrace of Daugherty and the semi-disgrace of Harding were bitter blows to him. They had both been completely loyal to him in 1912.

He did not like dissents, although he did recognize that occasionally dissents were called for. He himself had dissented on the Minimum Wage Case of 1924. Although he always spoke favorably of Brandeis and Holmes, he felt that their fairly frequent dissents were a cross which he had to bear. He was opposed to the appointment of any new Associate Justice who might be expected to join Holmes or Brandeis. He did recognize their ability; I recall in particular that he once said of an opinion by Brandeis in some case, "Brandeis has written an opinion that I can only describe as masterly."

He considered McReynolds a difficult personality (as everyone else did, too). In particular, he was annoyed that McReynolds demanded that he take up with the Chief of Protocol at the State Department that Justices of the Supreme Court had the right to be seated with appropriate distinction at Washington dinner parties. He once remarked: "McReynolds seems to think that the hostesses of Washington are in a conspiracy to denigrate the Supreme Court." On one occasion McReynolds, having been seated at a dinner party below an official whom he deemed of inferior status, demanded that the Chief Justice make a specific protest to the Chief of Protocol.

I cannot recall that he ever made a comment on Sutherland or Sanford.

In general it was my impression that, apart from an occasional annoyance, he respected his colleagues and that under his guidance the Court was working well together.

In that quiet era, the Court was able to adjourn the Term on June 8, 1925. The Chief Justice and I took the same train, "The Montrealer," that day; he was going to New Haven for a meeting of the Yale Corporation; I got off at New York to study for and take my bar examinations; that was the last time that we saw each other in an intimate relationship. That relationship had always been pleasant and agreeable but he was exacting as regards my work.

Endnotes

1. The Act of September 14, 1922 (42 Stat. 837), adopted by Congress at the request of the Chief Justice, provided for a conference of the Chief Justice and the Senior Circuit Judges on the last Monday of September. The Act of 1922 also provided a revised method of transferring judges with spare time to districts overburdened with cases. An additional provision of the Act of 1922 authorized the Conference to "submit [further’ . . . suggestions to the various courts as may seem in the interest of uniformity and expedition." Presently, this conference is regulated by 28 U.S.C. Sec. 331. Last revised by the Act of November 19, 1988 (102 Stat. 4650). The present "Judicial Conference" is far more elaborate and generally formidable than the simply conference provided by the Act of 1922.
2. Senior circuit judges of the 8^th Circuit.
3. 156 U.S. 277 (1895).
4. 267 U.S. 87 (1925).
5. 266 U.S. 405 (1925).
6. 272 U.S. 52 (1926).
7. 273 U.S. 135 (1927).
8. 267 U.S. 132 (1925).
9. If I can be said to have made any contribution to constitutional law during my service to the Chief Justice, it was my work in the Carroll case.
10. 272 U.S. 52 (1926); 273 U.S. 135 (1927).
11. 299 Fed. 620 (S.D. Ohio, 1924).
12. This subject is thoroughly discussed and the foregoing language quoted in an opinion by Justice Butler, sitting as Circuit Justice for the Seventh Circuit in 1926 and quoted at 10 F.2d 657, United States v. Motlow.