Oral History Interview with Edward F. Prichard, Jr., November 29, 1982

Hellard: Three, four ( ) This is tape five in a series of interviews with Edward Prichard, today being November the twenty-ninth, 1982, conducted by Vic Hellard. [tape turned off and on] Now I’ll turn it on. Now, Mr. Prichard you were a law clerk for Justice [Felix] Frankfurter, you want to tell us about the circumstances which number one, got you that position, and number two, what kinds of assistance you rendered Justice Frankfur—Justice Frankfurter?

:Well, I suppose in answering the question how I got to be his law clerk, I’d have to say I—I just sort of slipped into it. It never was some formal decision that occurred. As I probably told you in our last interview, after I graduated from law school, where Frankfurter and I had had a very close relationship as teacher and student, but perhaps closer than would ordinarily have been the case, and after my summer with the [Robert M.] La Follette Committee, I returned to Harvard in the fall of 1938 as a teaching assistant to Justice Frankfurter. And I believe I described that to you a little bit. We worked very closely together. One of the things that he was working on was a long law review article on the career of Justice [Benjamin N.] Cardozo, who died in 1938, and whose place he ultimately took, his seat he ultimately took on the Supreme Court. The Harvard, Yale, and Columbia law reviews decided to publish, simultaneously, an article on Cardozo’s career as a judge, which appeared in the—I’d say the December issue of the Harvard, Yale, and Columbia law reviews. Justice Frankfurter, then professor Frankfurter, asked me to work with him on those articles, which I did, did some of the research and we worked together on it. And that was the period when, of course, the great question under discussion was who would be Cardozo’s successor. Mr. Roosevelt, of course, was going to make the appointment, and there was already one Jew on the Supreme Court, Justice [Louis] Brandeis. But of course when Cardozo and Brandeis both served, as they did for a number of years, there were two Jews, so there wasn’t any barrier to be broken of that sort. But there was considerable feeling that President Roosevelt was somehow obligated to name a westerner to the Supreme Court. There always comes an intermittent discussion of the geographical balance of Supreme Cour—Supreme Court appointments. His first two appointments were Justice [Hugo] Black, who of course was a Alabamian, and then Justice [Stanley] Reed, a Kentuckian; one a deep southerner and the other a border state southerner. And there were a good many people in the Congress and the Senate who thought that the president, who at that time had a—had as a strong part of his political coalition the western states, the progressives from the West, should name a—a westerner to the Court. And among those under consideration were people like Judge Harold Stephens of the District of Columbia Court of Appeals, who had been appointed to that post by Mr. Roosevelt and had been a law school professor I believe at Cornell, and who came from, I believe, . And then Judge [Wiley B.] Rutledge, who was then dean of the law school and later was appointed to the Court by Mr. Roosevelt. See the West stretched all the way from the to the Pacific coast so it had a wide compass. And then there was the suggestion of Judge [William] Denman of the ninth circuit, who had been appointed to that court from by President Roosevelt. Judge Denman was a distant relative of, incidentally, of Mrs. Frankfurter, whose name was Denman, her maiden name. I suppose that this is dealt with at its greatest length in a new biography of Justice Frankfurter, the first volume of which has just been published by a professor Michael Parrish of the . And I recently had that chapter read to me, and it tells in some detail of the campaign to get Justice Frankfurter appointed. Now, I don’t think Justice Frankfurter himself was so much an active participant in that campaign, but I think he knew what was going on. The campaign was really managed by Tom Corcoran and Ben Cohen, who were his close friends and were then strategically placed in the—in the Roosevelt staff, were then probably the leading members of the so-called “Brain Trust” of that period, the Second New Deal. And they were constantly working and maneuvering to get him appointed. I never felt that he really was that much dedicated to getting the appointment. I’m sure he—he was not unwilling to take it, and that he would regard it as an accolade, but he always said to me—and you’ve got to take these things with a grain of salt—but he always said to me during the years I’d been around him as a student and a teaching assistant, that he thought a specific ambition pursued with fanatical zeal was a great folly, that it simply led to disappointment, to a warped personality. And, for example, when Mr. Roosevelt first became president, and this was before I really knew Justice Frankfurter, he asked Frankfurter to be Solicitor General, which of course is, as I think I’ve said earlier in these interviews, was the prime plum for a—an intellectual lawyer. Solicitor General’s office was—was always considered the—the prize position for a lawyer’s lawyer. Frankfurter declined that appointment. And one of the reasons that he gave for declining it was that he never believed in accepting a position or appointment because he thought, might think it would lead to another and higher appointment. Mr. Roosevelt, having said to him, “Now, Felix, if you accept the Solicitor Generalship, and are confirmed by the Senate, that has—makes you overcome the biggest hurdle to going on the Supreme Court, and it’ll make it a lot easier for me to name you to the Supreme Court.” Nevertheless, Frankfurter declined it as he had previously declined an appointment by Governor [Joseph B.] Ely of Massachusetts even prior to the New Deal. Ely nominated him, or proposed to nominate him, for the Supreme Judicial Court of Massachusetts, which of course would have been another stepping stone to the Supreme Court. And Frankfurter declined that appointment. And I think somewhat for the same reason, although he gave as an additional reason for declining the appointment to the Supreme Judicial Court of Massachusetts that he regarded his work at the Harvard Law School, his legal scholarship, and his what you might call other career in putting young people into public service and into legal scholarship, as equally important, equal to a judicial post in importance. Now, this is all background, of course, about it. Now, Frankfurter told me after he was nominated that Mr. Roosevelt told him that he really didn’t want to name him to the Court, that he sought to name a westerner and find a westerner, but that he had so much advice to the effect that Frankfurter was outstanding in his qualifications, and that above all he wanted to appoint or nominate Frankfurter because he thought that was a message to Hitler. That it was very important that it not be thought that a Jew could not be considered and named to the highest court in this country at that particular time. And I think at least if you may take Frankfurter’s statements at face value, that that had a good deal to do with his willingness to be at least to be campaigned for as a candidate if he didn’t do it himself. And when he was actually nominated in late December 1938, have I told you this already?

Hellard:No.

Prichard:I was at home in Kentucky for the holidays with my family over at Paris. And when I heard on the radio—there being no television then—there be—we would—that he had been nominated, of course I was bursting with desire to go immediately to Washington with him as his law clerk, and had every reason to think that I would be his law clerk, not because he’d ever said so, but because of our close relationship. I sent him a telegram from Paris, “When do we leave?” Signed it. I got a telegram back, “I leave on confirmation, you leave at the end of the term.” Meaning that I was not to go with him for the, what I call the bobtail term, from January 1939 till June 1939. He felt that I was committed to the law school, to remain there for the rest of my teaching—the fellowship. And not only did he feel that, but he felt that I was especially under duty and obligation to remain to assist the professors who were taking over his classes—Professor Henry Hart in federal jurisdiction and procedure, Dean [James M.] Landis in administrative law, and Dean Landis in labor law. And I did remain, and I think he was perfectly right, not that I was indispensable, but they were taking over, taking over classes in the middle of a term, and I think they felt they needed a little continuity and I—

Hellard:Did—did—did he do without a law clerk during that period?

Prichard:No, he first got Joseph Rauh who had been Cardozo’s last law clerk. ’Course Cordozo had been ill for—for over a year, but had not resigned or retired. Joseph Rauh, you’ve heard me speak of already, he was a very favorite student of Frankfurter’s, and Frankfurter had named him—he was a high ranking student—named him as Cardozo’s law clerk. He chose not only Brandeis’ law clerks, but Cardozo’s law clerks, as he had Holmes’ law clerks. He chose law clerks for three justices of the Court: Holmes, Brandeis, and Cardozo. And he sent Joseph Rauh to Cardozo, and Joseph Rauh served until Cardozo, either until his death or until his, you know, total incapacity, not mental incapacity but physical incapacity. Joe had gone to work in one of the federal agencies, I believe maybe the Department of Labor, as a lawyer. And so Felix asked Joe Rauh to leave that position, temporarily, to be his law clerk for the remainder the ’38-’39 term. But Joe was saved from having to serve more than a few weeks, because immediately, almost immediately, after Justice Frankfurter was confirmed, and I’ll talk a little about that confirmation process in a minute—

Hellard: You want your food?

Prichard:Yeah, is it here?

Hellard:Okay.

Prichard:Got it on?

Hellard:Let me—yes it’s on—let me ask you a question if I might. Justice Frankfurter, you said, didn’t actively campaign for the—for the appointment but was that, I’ve gotten the impression from what little I know about Justice Frankfurter he might well have thought that was beneath him to actively solicit support. Would that be an accurate statement?

Prichard:I think he certainly thought it was beneath him to appear to solicit support actively. What I have doubt about, and what there still remains some doubt about, is how active a part he actually took undercover. I was not under the impression that he was pursuing it actively at the time, and I was seeing him constantly. But I was under the impression that Tom Corcoran, who might have been called his either self-appointed or designated campaign manager, did keep him informed as to what was being done. I think Frankfurter was very anxious not to appear to be seeking the appointment, and I—I’m not sure that he was seeking it actively, but he was not unwilling for his friends and protégés to seek it for him. That’s a thin line. After he was confirmed—and I’ll talk again in a minute about his confirmation because I was mixed up in that—Brandeis almost immediately retired, within a matter of three or four weeks. Frankfurter then released Joe Rauh to go back to his career in government and took over Justice Brandeis’ law clerk, my dear friend Adrian Fisher. Adrian Fisher was—I’ve mentioned him before I think—he was one of my close friends in college at Princeton where he was a year ahead of me, one of my close friends all the way through law school where he was a year ahead of me. And he came back as a teaching assistant to Frankfurter during my third year in law school so I saw him a great deal. We’ve been intimate friends ever since. He became chief legal advisor to the state department when Mr. [Dean] Acheson was Secretary of State; he was an ambassador to the disarmament negotiations in Geneva in the Carter administration; he was dean of the Georgetown University Law School; and is now president of George Mason University in northern Virginia. And I’m sad to say that he has come down with cancer and had to miss our Frankfurter celebration week before last because he was having chemotherapy, which apparently is helping him a great deal. But he served, really, for the remainder of the ’38-’39 term, until June when I took over. There was considerable question as to whether there would be a fight on Justice Frankfurter’s confirmation. There were great many things in the history of his long career that were controversial. His role during World War I in the [Woodrow] Wilson administration where he was Secretary of the National War Labor Policies Board and the National Mediation Commission. Prepared a very controversial report on the [Thomas J.] Mooney case in California which hung around the courts until the 1930s when Mooney was finally cleared. He had written a report on the so-called Bisbee Deportations in which the—a group of vigilantes out in Bisbee, Arizona had deported a group of labor organizers and just hauled them out in the desert in box cars and turned them loose. His defense of [Nicola] Sacco and [Bartolomeo] Vanzetti, or at least his attack upon the integrity of their trial was very controversial. His action as counsel in many of the cases in Boston arising under the Palmer Red Raids in 1919, when he attacked and cross examined J. Edgar Hoover who played an active part in that. All these were controversial. Theodore Roosevelt had once denounced him as an ally with [Vladimir] Lenin and [Leon] Trotsky. There had been moves by the, some of the Harvard trustees to censor his activities in the early ’20s. He’d been a very controversial figure. His defense of the rights of labor, he was the author of the Norris-LaGuardia Act, had written a book on the abuses of the labor, of the labor injunction. All these were controversial matters. In addition, there had been a lot of publicity in the press during the Roosevelt administration about the “happy hot dogs” and the pupils of his who had been placed in high positions in the federal administration. So everyone was interested to see what would happen at his confirmation hearings. I went to Washington with him for those hearings, which were attended by a large coterie of people. He had as his counsel at those hearings his student and dear friend Dean Acheson, who remained a very intimate and close friend of his all through his life, and with whom he use to walk to work every morning when he was on the Court. For the most part, his interrogation before the Senate Judiciary Committee was very friendly, the only hostile, or seemingly hostile, senator was Senator [Pat] McCarran of Nevada, who interrogated him about many of the things we’re talking about. But the consensus was that he had come through the hearing with flying colors. And my recollection is that he was reported favorably by unanimous vote of the Judiciary Committee and confirmed without any real trouble. But that was a very dramatic set of hearings and, you know, there were some nuts that testified against him, but no really reputable or formidable movement against his confirmation was presented. Most of the press lauded the appointment. And I attended his swearing in, where a host of his friends, and students, and colleagues were there. And then I went on back to Cambridge, finished my year. Then, when June came of ’39, I went back to Kentucky for the summer, and he went to New Milford, Connecticut, where he and Mrs. Frankfurt-, [Marion] Frankfurter were accustomed to spend their summers at the home of their close friends Dr. and Mrs. Alfred Cohn, C-O-H-N. Dr. Cohn was a very distinguished doctor and medical scholar who was a professor of what was then called the Rockefeller Institute and is now called Rockefeller University. [microphone noise] He—the Cohns and the Frankfurters were very intimate, in fact Dr. Cohn left Mrs. Frankfurter $50,000 in his will. ( ). Anyway, he arranged for the clerk to ship me all the petitions for certiorari during the summer of ’39. They were shipped to me in Paris, my home. And I would prepare summaries and memoranda and mail the whole thing to him, then, in New Milford. Then we arranged that about ten days before the term was to commence, I would go to New Milford and join him at the Cohns’ summer residence, where he and I would then go over the memoranda and the applications for certiorari, and we did that. And that was very dramatic, because that was right at the start of World War II. In those days, of course, we had no television and we listened on the radio, and Edward R. Murrow was then beginning to acquire fame as a broadcaster, and we would listen on the radio in the evenings and at night to Ed Murrow and to H. V. Kaltenborn, and I guess to Edgar Davis, Raymond Gram Swing—those were the famous commentators of that day. And we listened eagerly, and I must say that I thought the general feeling in that household was one of great relief when war came. I think it’s Frankfurter, Mrs. Frankfurter, had felt that a war was inevitable, that Hitler was embarked on an effort for world conquest, and that it was imperative that it be stopped and that it couldn’t be stopped without mili-, military force. And I would say the feeling was one, you know, of sadness on the one hand but a relief on the other, that at last the issue had been joined between what Frankfurter would have characterized as Hitler and the civilized world. Frankfurter was always an Anglophile. He—he loved English history, he loved English law, he loved the English universities, he loved English institutions. I suppose he felt the greatest honor that had come to him, prior to his nomination for the Supreme Court, was his appointment in 1933, before I knew him, as the Eastman professor of history at Oxford University, a period that was one of the happiest years in his life and is described vividly by Sir Isaiah Berlin in his essay on Justice Frankfurter in the last volume of his collected works, which is called Public Impressions—Personal Impressions [Personal Impressions is correct]. And he was exhilarated, happy at Oxford, and formed there close friendships with many leading people in public life and academic life in England which continued all through his life. He—he was a—

[end of tape one, side one]

Hellard:Can you continue?

Prichard:Uh-huh.

Hellard:I might ask you, right quick, was Justice Frankfurter, during the years leading up to the Second World War, aware of the Jewish plight in—in Germany?

Prichard:Uh-huh.

Hellard:And the—and the extent of it?

Prichard:Yes,

Hellard:The extent of it.

Prichard:In fact, that was illustrated to me very dramatically during the period when I was in law school. There occurred the Anschluss in, what, 1937, when Hitler took over Austria. Frankfurter had an uncle who was a rather distinguished scholar, named Solomon Frankfurter. He was what was called in German a hochprof meaning a learned scholar or a professor. He was probably on the list to be detained by the Nazis after they took control of Austria. And I remember that Justice Frankfurter, through his friendship with Lady Astor, who was the leader of the so-called peace party or appeasement party in England, close friend of Neville Chamberlain, Stanley Baldwin, you know, she was a Langhorne from Virginia originally, but she was a famous British MP with a tart tongue. But she was a close personal friend of Frankfurters, although, they disagreed strongly on issues of foreign policy vis-a-vis Hitler. Well, he wrote Lady Astor and asked her to intervene with Hitler to get his uncle released, and his uncle was released due to Lady Astor’s intervention, and I believe came to New York as an old, old man where he lived out the balance of his life. I think he was about seventy-seven years old when the Anschluss occurred. He was acutely aware of the plight of the Jews and was very much interested in every project or proposal to find a haven for the refugees, particularly the intellectuals and the artists and the writers. I can remember we had a rally at the law school to raise money for the—providing refuge and opportunity for distinguished refugee scholars, Frankfurter and I both spoke, I think I was the, being a student, was the chairman, because it was a student rally. And that was a very moving occasion. Frankfurter, I think one must realize, had the deep feeling of a young immigrant boy coming to this country when he was twelve years old, and he couldn’t speak a word of English. And, you know, though he was a liberal and might in some quarters even have been considered a radical, at some times in his life, in his social and economic views—he really wasn’t ultraradical, he was a left-of-center liberal—but he had a profound feeling of just old-fashioned flag-waving patriotism, which I think had something to do with his opinion, that I’ll discuss later, in the flag-salute cases, which brought him more obloquy and more criticism and more revilement than anything he did on the Supreme Court. But he—he adored the memory of Abraham Lincoln, who was his idol, he read everything he could get his hands on about Abraham Lincoln, he loved to read and repeat quotations from Lincoln’s state papers and speeches. In many ways he was fired with just plain old-fashioned patriotism, which many people thought was somewhat at odds with his critical views on some of our institutions. But I never thought there was anything inconsistent there. It always seemed to me that he always felt that this country was founded on such noble ideas and such lofty principles that one was compelled to be critical of the ways in which we did not measure up to those ideals and those principles. And it never seemed to me that there was any real inconsistency there. He—he, you know, he loved this country, perhaps more so than if he had been a native American. When he came to this country, he was twelve years old, he couldn’t speak a word of English, and in four years he was making stump speeches on a cracker barrel for William Jennings Bryan for president in 1896. He graduated from College of the City of New York when he was only eighteen years old, I believe that’s right, 1900, born in 1882. And he—then he worked for a while in the city government in New York to save up enough money to go law school, and then went to law school, where I believe he graduated about 1906, but, and had a brilliant record. But—

Hellard:Did he have a mentor much as he was mentor for many of you?

Prichard:That’s hard to answer. He certainly was deeply devoted to some of his professors in the law school, whether they were mentors in the same way that he was for those of us that were his students I wouldn’t know. I know that he always spoke with deep devotion of some of his professors, particularly Dean James Barr Ames, Professor Thayer, James Bradley Thayer, who taught him constitutional law, Professor Eugene Wambaugh and several others. Whether they had the same relationship to him that he had to us I would doubt, although it was moderately similar. I think his mentors ultimately were these people, not, this is—this is hard to analyze, but I think his first mentor was Colonel Henry [L.] Stimson for whom he went to work in his first job in the U.S. Attorney’s office in New York, later in the War Department in Washington, and whom he persuaded President Roosevelt in the twilight almost of Stimson’s life to name as Secretary of War just before World War II. He idolized Stimson. Stimson was a conservative Republican, you know, conservative certainly by present-day standards, although as a U.S. Attorney he prosecuted a lot of corporations that were engaging in shenanigans, but he was—he was a Republican all his life, rather conservative. His second mentor was Justice [Oliver Wendell] Holmes, whom he met while he was in Washington, maybe he met him before but he got to know him while he was in Washington. You see, Frankfurter served roughly from his graduation at law school, he served either in the U.S. Attorney’s office at New York or in the War Department at Washington from the time he graduated from law school until World War I, no, not World War I, until 1914, then in 1914 he returned to Harvard as a professor where he served until World War I started when he got leave off to serve in the War Department and in the, he was major in the—in the reserves and he served as Secretary of the Mediation Commission, as I said, and of the National War Labor Policies Board during the Wilson administration. So he was in Washington during part of the Roosevelt administration, the [William Howard] Taft administration, and part of the Wilson administration. Then when World War I was over he returned to Cambridge, where I guess he’d been on leave, and he did serve as the Zionist representative at the Paris Peace Conference, representing the interests of American Zionists and engaging considerable in negotiations on the creation of the Jewish home land in Palestine. This is going around the barn, but it was at that conference that he met John Maynard Keynes, and he—he brought back—and I was talking about his love of British and English institutions and English intellectuals—he brought back from Paris to New York the manuscript of Keynes’ famous book The Economic Consequences of the Peace, which was a biting attack on the reparation provisions of the Versailles Treaty, and brought it to New York to the publisher as Keynes’ trusted friend. And I met Keynes through Frankfurter when I was in Cambridge and again in Washington. He was a glary—very close friend of Harold Laski, L-A-S-K-I, who was a sort of left-wing guru at the London School of Economics all during the ’20s, ’30s, and even the ’40s. Frankfurter had met Laski when he was a young tutor at Harvard in the post-World War I period, and they were intimate friends from then on. They did not agree in their economic and political philosophy, Laski was a socialist and a rather left-wing socialist. Frankfurter was never a socialist. He was a traditional American progressive. But he and Laski were very intimate friends, and I met Laski through him. I met many English people through Frankfurter when he was a—a really zealous Anglophile, and he, I don’t know how I got onto this question of his love of the English and English institutions, but it was very pervasive, and this I think affected his attitude toward the war, as well as his position as a Jew and as a liberal and a humanitarian. And I never felt there was any doubt as to where he stood on the issues of foreign policy and foreign affairs during all the years that I knew him. He was what you would now call a hawk. He didn’t believe Hitler could be stopped except by force, and I think that remained his—his position all through those years. He—and so that fall—that’s what I was talking about—in the fall of ’39, we all sat on the edges of our chairs and sofas in Dr. Cohn’s comfortable summer home in New Milford, Connecticut, listening to the radio, short wave and long wave, and all the rest of it. We knew we were on the edge of some historic change in world affairs, but of course what we didn’t know was the long road that we’d follow. It was still the hope of all of us that the French and the British could stop the Germans at the Maginot Line and that we would not be engulfed in a long world war, and of course that hope was soon disabused. But when we went to Washington, first of October in 1939, we were in the second month of World War II, and that clouded and overshadowed all the other things in which we were interested. When we came to work, that is when I joined with some other young friends, bachelors, in living at we called “Hockley” over in northern Virginia, where we lived for about a year. There were a couple of law clerks, I believe I’ve told you a little of this before, there was Phil Graham, John Oakes, and Adrian Fisher, and John Ferguson. Graham Claytor, later president of the Southern Railroad and then Secretary of the Navy under President [Jimmy] Carter and head of Amtrak, he was one of us. And we had a very, even though we were in the beginning of wartime period, the—the rigors of the wartime economy had not been set in. And we had a very pleasant life at Hockley. It was a, it was not an old house by then standards. It was probably a house built in the early part of this century or—or maybe the latter, last decade of the last century. It was a great big house, not in the finest repair, but perfectly livable. We had about fifteen acres of ground around it, and there was ample room for six or eight of us to live, and to live rather well. I may have told you, I can remember exactly what our rent was for Hockley, the rent for the whole house was a hundred and ten dollars a month, and that’s for all of us. And the landlord arranged to have the lawn mowed, our bills for all our meals, we had, you know, the privilege of two meals at Hockley, breakfast and dinner, of course we’d a lot of times go out to dinner and we’d bring guests to dinner, so that sort of averaged out. And our bills for that first year averaged between eighty-five and a hundred dollars apiece for our food and our majordomo.

Hellard:So even for that time it was remarkable?

Prichard:Oh, I think it was remarkable. And we, you know, we had good food and we entertained a lot, we would have parties, Sunday morning breakfasts. And when the American Law Institute met we’d have a big julep party. In some ways we more or less lived the life of Riley. As I say, the rigors of wartime economy hadn’t set in, but the prewar stimulus to the economy had been felt, so there were time that were not inflationary but prosperous. And there was a, there was a just a very pleasant life, and we would have, you know, a lot of guests at our parties. The Frankfurters would be there, and Justice Reed and his wife, and Justice [Robert H.] Jackson and his wife, later on…Attorney General, Solicitor General, later Attorney General [Francis] Biddle and his wife; the Canadian ambassador, sometimes the British ambassador, lots of journalists. That’s where I first got to know, although I had met him at Cambridge, Joe Alsop, Drew Pearson, lots of newspapermen. And in those days, each Supreme Court justice had only one law clerk; now they have two or three. Justice Frankfurter and I had a—a method of work which we quickly worked out, and that was on the applications for certiorari, I would go with him and write him a memorandum on each one, a very short memorandum. He would go through them in a great hurry and mark them yes or no as to whether they should be granted or not. Most of the work we put in was on the opinion. Occasionally I’d write him a memorandum, ( ) that he might use as a basis for questions to be asked from the bench, but that wasn’t very frequent. Most of the time he could stand the briefs, get his own questions lined up. But when he was assigned opinions by the chief justice, I would usually prepare some kind of a memorandum. It was not a draft opinion; he would not take kindly to letting his law clerk draft his opinions. He would read my memorandum, he’d read the briefs, read portions of the record that he needed to read, and then he and I would sit down and I would peck out on the typewriter the opinions as he more or less dictated them, and as we would, bandied back-and-forth discussion of the phraseology and of the line of expression and thought. And, you know, once we reached something, which would be his primarily, then I’d peck it out. Then when that was finished, double-spaced, I’d go over it and edit it for typography and my own mistakes of punctuation and so forth, and the we’d give it to his secretary to copy. And then we’d keep on working on revisions till he got it in the shape he wanted and send it to the printer, and often, following the example of Brandeis, he’d send an opinion to the printer in a fairly early draft and these use the printer, use the printed opinion as his text for revision. Brandeis did that often. Brandeis would write his opinions in longhand, send them to the printer, and then when the printer sent the printed version back, he rewrote it and sometimes do fourteen drafts. Frankfurter never did that much, but sometimes he would do two or three drafts from the printer. And, of course, he would dissenting and concurring opinions, not infrequently. And still in those days the workload did not seem to me to be unduly burdensome. The number of cases decided is not that much greater than it was then, but the number of applications for certiorari has doubled, trebled, quadrupled. And I suppose that that’s the basis for the additional law clerks….

Hellard:Uh-huh.

Prichard:…that are now there.

Hellard:How was Justice Frankfurter received by the other members of the Court?

Prichard:Well, this varied of course. By Black and Reed with open arms. He had been a very strong supporter of Justice Black. When Justice Black was under criticism at the time of his confirmation, Frankfurter was a strong defender of Black. When Black was under criticism in his first months on the Court, Frankfurter was rather inclined to defend Black. And I remember his having some correspondence Justice [Harlan Fiske] Stone when Justice Stone was criticized through Mark Chiles in the press, leveling a few criticisms at Black’s lack of legal background. Frankfurter would write to Stone and express high opinion of Black’s pretention. Frankfurter and Stone, by the way, had been intimate friends through the years. Stone had been dean of the Columbia Law School, and he and Frankfurter had great respect for each other, and Stone, when Frankfurter’s name was under consideration for appointment to the Court, went to see President Roosevelt and urged him to appoint Frankfurter. So they were, they were good friends.

Hellard:Ready to eat? Want some food?

Prichard:I thought there was another piece of . . .

Hellard:There is.

Prichard:Yeah, another piece of the tangerine. So he was received well by Stone. I would say [Charles Evans] Hughes sort of took him into camp. He had been rather critical of Hughes during the Court-packing controversy, where he’d thought Hughes was engaged in political manipulations and had taken advantage of Brandeis to co-opt him in those manipulations to defeat the president’s Court-packing plan. He thought that Hughes had been somewhat political in his shifts from left of center to right of center on the Court in some of the opinions on New Deal legislation. And I can recall that when we started to work on that article on Cardozo, one day I was sitting in his study and had all of our materials spread out on a kind of a carpenter’s bench that we used to put materials on. And he looked up at me and says, “Prich, god what a swine Hughes is”—meaning that he had assigned opinions to Cardozo on matters that weren’t worthy of his great talent and learning and had grabbed the star opinions for himself. But once he got onto that Court, Hughes had such a magisterial presence, such an awe-striking persona with that beard and that formidable, formidable in manner and mien, that he soon took Frankfurter into camp, personally, and they became close friends, and became a great admirer of his, perhaps greater than I would have thought that merits justify. He was—he had been rather contemptuous of [Owen J.] Roberts when I was in law school, thought of Roberts as a lightweight, as a sort of wobbler who moved from one side of the line to the other. But when he got to the Court, again, he was charmed. Ro-, Roberts was a lovable man. He was not my judgment an intellectual heavyweight, or not even in history as a great judge, but he was a lovable, sweet, good man. And Frankfurter, Frankfurter became very much attached to him. And as Frankfurter began to develop his differences with the Black-Douglas axis, as he got to calling it, I think that made him feel closer to Hughes and Roberts, particularly to Roberts, because Hughes didn’t stay on the Court, I don’t believe, except that one term when we were there. I believe Hughes retired at the end of the 1939 term, retired in 1940, I believe. Of course with the old guard on the Court, his relations were dissident. [James C.] McReynolds barely spoke to what he would recall—would call the “liberal radical wing” in Court. McReynolds was crusty and nasty and personal and anti-Semitic, and just kind—

[End of tape one]

Hellard:We’re continuing on the November twenty-ninth interview with Edward F. Prichard. You were saying that Mr.—that Justice McReynolds had never spoken to Cardozo?

Prichard:That’s right, and he and Frankfurter never had anything more than the barest nodding acquaintance. Justice [Pierce] Butler was very dissident, there was a little civility between Frankfurter and Butler than between Frankfurter and McReynolds, but I would say there was nothing more than civility. Now, Brandeis, as I said, retired within a month after Frankfurter’s appointment, after Frankfurter took the oath. Brandeis was then in his eighties, up in his eighties, his successor was Justice [William O.] Douglas, whom Frankfurter also welcomed with open arms. Frankfurter had been a great admirer of Douglas’ career at the Columbia and Yale law schools, in the Security and Exchange Commission, and in the differences that developed between Douglas and Dean [James] Landis, who was Frankfurter’s protégé, over the policies of the Securities and Exchange Commission, in which Douglas sort of took Landis to task for following the views of Joe Kennedy too closely. Frankfurter took the part of Douglas, and it really caused a kind of a breach between Landis and Frankfurter, as I’ll tell you in a minute those relationships changed later on. So then we had the Court, and this was during most of the term, I call it my term, the term I was his law clerk. The Court was Hughes, Roberts, Butler part of the time, Black, Reed, Frankfurter, Douglas. Is that nine of them?

Hellard:Eight. Stone?

Prichard:And Stone, of course, that’s it, and Stone. His relations started off very cordial with Hughes, Roberts, Stone, Black, Douglas, and Reed; cool with Butler; very little relationship at all McReynolds. Then during the course of the term, Butler retired, later in the term, and Mr. Roosevelt appointed as Butler’s successor then attorney general, not then attorney general—I think he had gone to the Philippines—Frank Murphy, former attorney general, former governor of Michigan. And I would say that Frankfurter welcomed him with half-open arms. I don’t think he ever thought of him as a very profound lawyer, but he—he—he generally liked Frank Murphy, although Murphy was regarded as a somewhat odd duck, as he proved to be. So that left only McReynolds from the old guard, what you might call the old guard. And I guess McReynolds served till on in the next term, when [Wiley B.] Rutledge was named to succeed him after he retired. But that, during—during the year I was there, Rutledge was not on the Court. Murphy—Murphy chose as his first law clerk Edwin Huddleston, who was my classmate at the law school and president of the law review when I was on the board. And it was generally believed that signaled that Frankfurter had captured Murphy. Later on, divergencies developed there, which we can talk about. But no sooner had the Court seemed to shifted in its balance toward the, what you might, you know, rough description, call the “Roosevelt philosophy” then cracks began to develop in the marble front of the Roosevelt Court. Black had always had some rather idiosyncratic notions, which Frankfurter didn’t take very, true with great hostility, but which he didn’t quite go along with, such as the notion that a corporation was not a person within the meaning of the Fourteenth Amendment; such as his belief that all the first ten amendments were incorporated by implication in the Fourteenth Amendment as restrictions on the states, including the right to a grand jury; and some of the other things that—that are in the first ten amendments, with which Frankfurter never agreed with. Those were not things that really created hostility in the beginning, just some diversions. But I think the advent of Douglas was the key factor that led to the split and the rancor in the Roosevelt Court. You know, one has to read the recent biography of Douglas, which I’ve only scanned, to realize that while Douglas may have been a great judge and a great liberal, he could be a very nasty man, and that he had a lot of sadistic elements. And I never was sure whether this goes back to the old jealously between the Harvard Law School and the Yale Law School, or what it involved, but it seemed to me that Douglas set out—well, there were two things that were, two forces. One is that Frankfurter probably unconsciously, half unconsciously, regarded himself and his role on the Court as that as a professor conducting a seminar for a group of students. Now he didn’t regard Stone as a student because Stone was sort of an equal. He didn’t regard Hughes as a student because he looked on Hughes as some sort of a Jovian presence. But the rest of them he looked on as members of a seminar who were there to be somewhat instructed by him. And that didn’t set well. You don’t instruct Hugo Black, you don’t instruct Bill Douglas, and you don’t instruct Frank Murphy if he understands what you’re trying to do. So while he may have had them in his camp for a while, they began to—to get loose at night, so to speak. And Douglas, who I think had an underlying, really jealousy for Frankfurter, and a mean spirit, I think Douglas began to play factional politics for the purpose of taking the laureate crowned liberalism away from Frankfurter. And it was Douglas who was the source of most of the mean-spirited controversy that pervaded the Court from that time, and gradually more from that time, up, and really up until the retirement of Frankfurter in 1962. Now it didn’t occur all at once, and the shifting membership of the Court put the balance in one way or another, but I’m now talking primarily about the Court when I was there. These cracks were just beginning to show in the façade, I can well remember—

Hellard:Was Frankfurter aware of what he was doing then, or what was going on in the sense of—

Prichard:Began to be dimly aware of it, and I’ll tell how I—the first occasion—

Hellard:Do you want to take your pills?

Prichard:Yeah.

Hellard:I was afraid you might have forgotten them.

Prichard:I did, you’re not afraid of it, you tell me, you’re accurate as the devil.

Hellard:Here’s your cup.

Prichard:This is the first case in which I saw the ugliness develop, was a very unimportant case regarding a suit by an Indian, that’s a red Indian, in the state of Kansas, to claim immunity to certain taxes imposed by Kansas on the ground that that immunity was conferred on the Indians by the Constitution of the United States. The Indian won his suit, and the question was whether he was to get interest on his judgment, and that question involved the further question of whether the collectibility of interest was to be considered a matter of federal law or a matter of state law. In other words, was the Indian’s right to collect interest so much a matter of national policy that the collectibility of interest was to be determined the same no matter what state the suit brought in, or was this, was this to be a situation in which, like any other taxpayer in Kansas, the Indian could or could not collect interest just as if he hadn’t been an Indian? Well, the Court got all tied up in the technicalities of that, and like many technicalities, you know, the things got a little more complex, and this is one of the few times that Frankfurter ever sort of turned to me. You know, usually he had opinions, and the question was just how we’d say what we were going to say, but this was a case where he sort of turned to me and said, “Prich, how are we going to ever going to resolve thing, this miserable case?” he would often say. And I suggested to him that the right solution was to say it’s a matter of federal law, but that the federal law would be construed to defer to state law as a matter of comity. But if the Congress chose to enact a uniform federal rule, the Congress had the competence and the constitutional power to do it, but since the Congress hadn’t prescribed a rule for recoveries in this sort of suit, it would be the part of wisdom for the federal courts to defer to the state law and let the Indian be in exactly the same position as any other taxpayer in Kansas who is suing to restrain or to recover the illegally collected tax. Well, we worked on that, and we wrote an opinion and circulated it. Frankfurter, you know, he wrote it, but it was—came nearer being my opinion than anything that came down that year. Well, he got back, you know, each judge would write something on the back of the printed copy, you know, you circulated, and he got back extravagant praise from everybody except Black. Douglas said, “I whole heartily join in this magnificent opinion and all that stuff.” Black came to see him, very forthright, and said, “I believe like Saint Thomas Aquinas that all interest is usury, and I’m never going to allow interest in any case, if there’s any way I can keep from allowing it.” And Frankfurter smiled a little bit; he didn’t get angry about that. You know, he sort of said “Hugo’s a populist, and populists don’t like interest,” and this didn’t offend him. He disagreed and thought it was a naïve view, but didn’t offend him. So it looked as if the case was going to come down—Black wrote a little dissenting opinion—come down with eight justices supporting Frankfurter and one supporting Black, namely Black. On the morning when they marched in through the back door—you know they always went in through a back door in their robes and up on the bench—and as the bailiff was conducting them all across, I saw Douglas call Frankfurter aside and whisper to him, and Frankfurter looked very shocked. And when the opinion came down, Frankfurter gave his majority opinion, Black gave his dissent and said, “I’m authorized to state that Mr.—Justice Douglas concurs in this dissent.” And Frankfurter told me afterwards that what Douglas had said to him as they were going on to the bench was, “Felix, I really agreed with you, but I concurred in Hugo’s opinion because I didn’t want to make him feel alone in his position.” Well, this just shocked Frankfurter. Really shocked that a judge would, you know, take a position out of sort of fraternal feelings when you didn’t agree with the position. And that was the beginning of the rift between Douglas and Frankfurter. And I think Frankfurter felt—with some justification—that Douglas was again just playing Black, and playing the political cards to create rifts between Frankfurter and the other members of the Roosevelt Court. Now that doesn’t mean that Frankfurter was always right and they were always wrong. I personally would have nearer agreeing with Black and Douglas on some of the civil rights/civil liberties cases that came on later than I did Frankfurter, but I always believed that Frankfurter got hardened in some of his views by the tactics that Douglas used to create sort of factional unity and factional partisanship on the Court. And that really the rifts were developed as part of a design by Douglas to strip from Frankfurter the laurels of the liberal leader of liberal thought in this country by forcing him into what would be regarded as reactionary positions, in that Frankfurter, having a very tempestuous and emotional nature, allowed himself to be outmaneuvered in that. Now that’s a long way around the barn, but I have always said and always thought that it would have been possible for some of us who loved Frankfurter to use some of his methodology and reach the results that Black and Douglas did in such a way that both sides could have agreed to it, but that this emotional and factional rift tended to widen those breaches quite unnecessarily. And one would have to say—and this is going way down the line now twenty years, even more than twenty years—that Frankfurter’s experience on the Court was not a happy one, that he probably would have led a happier, serener, and more fruitful life if he had not gone on the Court, if he had stayed at Harvard, continued to send young people into government, continued to be an inspiration for the young students who picked up his flame. And that the Court, the Supreme Court, was not on the whole a happy and rewarding experience for him. And if one reads his diaries, which are published in frank, fragmentary form, edited by Joe Lash with a very perceptive biographical essay. I wrote a review of that for the Washington Post when it was published several years ago. I pretty near reached that conclusion. And it was very sad because I suppose that the controversies about Frankfurter’s—the enigma—the enigma of Felix Frankfurter, and the tragedy of Felix Frankfurter, all really are based on—on personal quarrels and controversies that pervaded increasingly his service on the Court, and which rendered it unhappy. I don’t believe he had a close personal relationship with over two or three judges that was a happy one. And some of those weren’t intellectual relationships. He got to be a close personal friend of Roberts, but that was simply misery loving company because Roberts couldn’t compare with Frankfurter in intellectual caliber, and Frankfurter simply took comfort in Roberts sort of being on his side on things. I think he took real comfort and pleasure in his relationship with Justice Jackson, whom he—to whom he was devoted and to some degree later to Justice [John Marshall] Harlan. I believe those were probably his two happiest associations on the Court during later years. He didn’t get along at all with Chief Justice [Fred] Vinson. He, oh, did Fred Vinson Jr. die the other day?

Hellard:Not—not that I—

Prichard:Somebody told me there was something in the paper about it.

Hellard:Prich, if he was unhappy on the Court, why wouldn’t—why would he not resign and go back to—to Harvard?

Prichard:Too stubborn; wouldn’t confess failure. And he thought he had a hold in nation by that time to hold the fort against these profanations of the Constitution. I mean, I—I think, you know, Frankfurter was a—you see, I’m not all together defending him in this—I think Frankfurter had many weaknesses of temperament. And one of them was he—it was hard for him to brook intellectual and ideological opposition without translating it into personalities and ad hominem recriminations. I think this was one of his greatest weaknesses. Everybody that disagreed with him tended to be a symbol evil, and this was awfully hard for him to resist throughout his life, particularly his judicial life, but even before. Now—so he thought he was holding the fort.

Hellard:Let me ask you, your—your perceptions of the memories of the Court when you went there as a clerk—

Prichard:Uh-huh.

Hellard:—in terms of Justice Hughes, and what kind of a relationship, if any, you had with him?

Prichard:Well, I had a rather distant relationship with Hughes. He was, this was his last term, toward the end of the term his fail, his health was beginning to fail some, although he lived several years after he retired. Hughes was a man of such awful—meaning awful in the sense of inspiring awe—personal impressiveness that one couldn’t but feel almost in the presence of some very august being when you were around Hughes. Here he was with this—he was a very sophisticated man, he was a very fluent man, he was a—had an able mind, he was—had that beard and that Jovian presence, you know, felt you were in the, you know, I—if he called me to his chambers, which he didn’t very often, you know, I felt a slight tremor that I was in the presence of a most impressive person, and one that you didn’t trifle with. But I never thought that he was terribly honest intellectually. He was always a kind of a Jesuitical casuist who could make the worst appear the better reason if it suited his purposes. I’ll never forget what my constitutional law professor, Thomas Reed Powell, said about him when the Court switched, you know, during the period of the Roosevelt Court-packing plan, and they began to uphold. He said, “Hughes adopted the philosophy that a switch in time saves nine.” [Laughing] And—and I thought there was a lot of that in Hughes. And he manipulated Roberts just as if Roberts were kind of a puppet. So, you know, I thought he was man of tremendous ability, tremendous prestige, greatly impressive, but I never was wholly admiring of his intellectual integrity. Roberts, well, Stone would be next in seniority. I thought that Stone was a great judge. A man of conservative New England background, but whom the world of scholarship had opened to greater horizons, wider horizons, man of great courage, a man of great intellectual insight and scholarship. A poor chief justice, he wasn’t a good. Hughes was a magnificent chief justice, magnificent presiding judge, magnificent in the administrative work of the chief justice. Hughes was very poor at that. It didn’t suit him, you know; he wanted to stick to his scholarship. Lived a rather pleasant social life, I don’t mean extravagant or vulgar, but set a good table and had plenty of money. I know the justices use to have their lunches brought from their homes to their chambers because they thought the cafeteria at the Court was a little beneath them. Well, some of them, like Black and Douglas, began eating at the cafeteria, but Stone always had his butler bring his lunch from home. And it would be, you know, marvelous chicken and a bottle of chilled wine, [laughing] all that sort of thing. But anyway, Stone, Frankfurter never lost his respect for Stone. He thought he was a poor chief justice and a poor administrator but never lost his respect for him. Roberts was really a lightweight; a lovable, genial, pleasant, one of the easiest men to talk to I ever knew. I remember talking to him about Justice Murphy once, you know, the justices always had in their home one—one day a week and it was customary for the law clerks to go to different justices’ houses when they were at home for tea. And we were at Roberts’ one day, and Roberts just turned to me all of a sudden and says, “Don’t you think Murphy’s a sort of eerie fellow?” [laughing] I mean, he was uninhibited that way.

Hellard:What was your response?

Prichard:I—I think I said, “Yes, he is—was sort of eerie.” Then we had a—Black was a man—Frankfurter once that, “God almighty gave Black the best set reigns on the Court.” Black was a man of just the keenest possible intellect, and what he lacked in formal education, he more than made up for in self education. He read incessantly, you know, read history, ready biography, read, read, read, and he was very proud of it, you know, very proud of it. And he—Black had kind of a simplicity turn of mind, he tended to want to get certain simple varieties about the Constitution and—and cling to them as you would an anchor. He really believed that everything that the Constitution meant was contained in the words of the Constitution, which is not exactly the judicial activist. But what he did was translate the words of the Constitution into a kind of literal interpretation that suited his purposes. I can remember hearing him being interviewed by Eric Sevareid, and Eric Sevareid said, “Well, where do you find your judicial philosophy, Mr. Justice?” And he held up a little Prudential Insurance Company the Constitution of the United States, he said, “It’s all right here in this booklet; all right here.” Well of course anybody that knows anything about constitutional law knows it isn’t all in that booklet, but he loved to persuade himself that it was. But within those limitations, he was a man of magnificent intellect and great courage. And he and Frankfurter, while they had great differences, never became personally hostile in the way that Frankfurter and Douglas did. And in their years—Black outlived Frankfurter—but in their years they became very much emotionally attached to each other again. And I can remember—and Paul Froen recalls the same thing in his wonderful speech the other day—the last time I saw Frankfurter, he was paralyzed, his hand on a pillow, in a wheelchair, talking in a horse whisper, and he said, “Hugo Black was here two days ago in the very chair where you are sitting, and he said to me, ‘Felix come back to the Court’”— [blank space on tape] Reed—it was always for Frankfurter to take Reed seriously. Reed was not an intellectual heavyweight. He was a rather dull person, you know, perfectly decent, tried hard, worked hard, although Phil Graham and I use to say the motto on Reed’s crest was “anything for a free meal.” He went to every party in Washington to which he was ever invited, and I never knew when he had the time to do very much deep work, but he did try to work hard. Mrs. [Marion] Frankfurter use to say he looked like a Gluyas Williams drawing in the New Yorker magazine, which he did. And you know, he lived to a phenomenal age, he died way up in his nineties here about two years ago. But nobody will ever put him down as a distinguished judge, but he was a perfectly nice man, did the best he could, and—

Hellard:Didn’t he—he was from Kentucky?

Prichard:Yeah, Maysville.

Hellard:How did he get the appointment?

Prichard:Well, that’s a long story, but I’ll tell it. During his early life he was a lawyer in Maysville, and he was a—thank you—he was also a member of the Kentucky legislature during the period about World War I. He was—he came of a fairly well-to-do family in Mason County. He was educated at Yale and maybe the ( ). He—his father was a doctor over in Mason County, and I think Stanley Reed had inherited a couple of nice farms. And when he was in the legislature, he became very much interested in farm cooperatives, and he was a sponsor of legislation, which wasn’t passed until I believe after he served, but he sponsored it during his time to set up special legislative provisions, which later in the ’20s became known as the Bingham Act and may still be on the books. The act which the first Burley Co-op was formed. Well when the Burley Co-op was created in the ’20s, the president of it was a Republican from Madison County, James C. Stone, big land owner over there. And Jim Stone named Stanley Reed as the legal counselor for the Burley Co-op, and he was identified with that. Well, when Mr. [Herbert] Hoover became president, he set up a Federal Farm Board, which was designed to try to have measures to stabilize farm prices and the marketing of farm commodities. Only trouble was they didn’t have any money to make loans like they did under the Roosevelt program. They tried to—to set up, you know, they would buy—buy during times of surplus and sell during times of shortage, but they didn’t have any authority or any mechanism to control or restrain production, so it didn’t work very well, particularly in the face of a world depression. But when Mr. Stone went to Washington as chairman of the Federal Farm Board, he took Stanley Reed with him as general counsel of the Federal Farm Board, although Mr. Stone was a Republican and Stanley Reed a Democrat. Then during Mr. Hoover’s administration, there was established the Reconstruction Finance Corporation. A lot of people think that was a creature of the Roosevelt administration, but it was a creature originally of the Hoover administration. And when that board was named they chose Stanley Reed as the general counsel of the Reconstruction Finance Corporation. And he—in the course of that he hired as a young lawyer from a Wall Street law firm, one Thomas G. Corcoran, of the famous team of Corcoran and Cohen later, when Tom Corcoran came to Washington, not in the Roosevelt administration but in the Hoover administration. Well, when Roosevelt came in, of course that put Felix in the business of a one-man personnel officer. So Stanley Reed got named as solicitor general, partly by the intervention of Felix and Tom Corcoran. As solicitor general, he argued some of the big New Deal cases before the Supreme Court, and that’s how he got to become politically eligible for the Supreme Court appointment. Now that’s how he got there. And his son, Stanley Jr., was in my class at the Harvard Law School, we were very good friends. Now, let’s see, who’s the next judge we can talk about? Named Black, I’ve talked about Douglas—

Hellard:Butler, you can talk about Butler.

Prichard:Well, I never saw enough of Butler, I only judged him at a distance. I don’t suppose I had three conversations with Butler in my life, and none with McReynolds except just about ( ). You know, what I’d say about them would be what any person would say who read decisions and not based on any personal knowledge. Frank Murphy was an eerie fellow. He had an impulse for the right side and a lot of courage. I don’t suppose he ever wrote three opinions while he was on the Court. His law clerks or some former associate wrote them all. He was not a scholar or an intellectual, but he had strong emotional feelings for liberty, civil liberties, civil rights, and really, if you judge him by his results, was a good judge. He—he was neurotic as he could be, never married, seemed always to be dating some beautiful girl, but nothing ever happened. He very courageously dissented in the internal cases that upheld the internment of the Nisei in World War II. He was dissenter, and I regard that as one of the bravest acts of any judge in history of this country. There’s an excellent biography of Murphy, which was written by a Kentuckian, professor Jay Woodford Howard, then of Johns Hopkins University, who was the son of Bert Combs old law partner Jack Howard of Prestonsburg and the brother of Judge Harris Howard on the Court of Appeals. Now—and it’s an excellent biography—I guess that about—

Hellard:Well, what kind—what kind of—what were your feelings when you first walked into your—into your office knowing that you were going to be a clerk to a justice on the Supreme Court?

Prichard:Oh, I was just excited and eager to get to work. I mean, there—was I awestruck?

Hellard:Yes.

Prichard:Not as much as I should have been, but you know, I was awfully brash in those days, Vic; you know, I really wasn’t as awestruck about a lot of things as I should have been. And I must admit I was nosey. I wanted every little thing that was going on, and all the gossip. I was far too much interested in all that—not that I was not interested in the intellectual controversies and legal matters, I was, and it isn’t that I neglected them for that—but I was terribly curious. You know, I was young, I was twenty-three years old. And I guess a part of the brashness came from my being young and from my getting thrown into, oh, what you might call exciting and, you know, circles and where there were people, when I was terribly young, and I guess I was inclined to be a little full of myself. And I would often want to know things that went on in the conference where, of course, nobody was allowed but the justices. And Frankfurter, quite properly, would not indulge that curiosity. He was very scrupulous obeying all the conventions, and one of them was you didn’t tell what went on in the conference. Although once he told me a funny story, this was while Butler was still on the court. They had a, you know, it was customary for the chief justice to state the case in the conference, of course this was after argument the conference always considered the case, on the first Saturday then—first Saturday morning after their oral argument Chief Justice Hughes states the case, and then you started and in order of seniority they went around the table and expressed their views. Butler was senior, and Butler expressed his opinion, then it came to Stone who was next in seniority. And Stone says, “I have a great deal of sympathy, Chief Justice, with the position just expressed by Chief Justice—by Justice—by my brother Butler.” And Butler says, “Hell, Stone, it’s not sympathy I need; it’s votes.” [laughing] I remember Frankfurter’s telling me that.

Hellard:Let me—let me go back just a minute to—you were talking about Frankfurter’s confirmation, and how controversial he had been in his public life, you mentioned he had attacked Hoover?

Prichard:J. Edgar.

Hellard:Yeah.

Prichard:In 1919, when Hoover was very active under Attorney General Palmer in what was called the Red Raids, that was the situation in which a lot of federal immigration authorities and federal investigations agencies, you didn’t have the FBI then, you had an old institution called the Bureau of Investigations which was much more political. And Palmer made—who was then attorney general—made a list of all the so-called subversives he could find, and they sent them out in the night to arrest them, and if they were aliens to try to deport them, and if they weren’t aliens to try to find criminal charges against them. And a lot of those arrests were made in Boston. And Frankfurter, pro bono represented some public, you know, interest groups that were defending these people. And he took Hoover’s testimony on cross examination, and Judge Anderson of the U.S. District Court of Massachusetts handed down a scathing opinion in a case called Collier v. Skeffington, in which he set aside a lot of these things. And Frankfurter from then on detested J. Edgar Hoover. And I always said that Hoover tapped his wires. And the proof was later incontrovertibly presented that Hoover had been tapping his wires.

Hellard:Knowing Hoover’s reputation it has struck me as odd, he was the—was he not the director of FBI in 1939?

Prichard:Oh, and from then on till he died.

Hellard:I was just wondering if he had had any . . .

Prichard:He was appointed by Stone when Stone was attorney general in 1924, and he served for forty years.

Hellard:I was just wondering if he made any efforts to sabotage Justice Frankfurter’s confirmation.

Prichard:No, he wouldn’t, he’s too—too smart politically to do that, no. He knew that he, you know, Hoover was smart enough not to strike at a king unless he thought pretty damn well he could kill him. And he couldn’t stop Frankfurter’s confirmation. ’Course he didn’t have anything, but he tapped his wires just on general principles. Hell, he tapped my wires when I in the White House. Dee Huddleston told me just within the past two or three months, he’s chairman, or was chairman, of the Senate Intelligence Committee, and is now the ranking Democrat on it. He said they were going into past history of wiretapping and that my wires had been tapped by Hoover. And Lyndon Johnson told me a funny story about Hoover once when he was president. I was somewhere with him, and I said, “Mr. President, why don’t you fire Edgar Hoover?” He said, “It’s like the man that went hunting out in the woods, and he had to relieve himself. And he came on this little tumbled-down log cabin in the woods, and it looked like nobody had been there for years. So he pulled to the side of the log cabin and started to relieve himself, and from inside the cabin came a voice that says, ‘Mister, wouldn’t you just a soon come inside and piss out?’” And he said, “I’d rather have Hoover on the inside pissing out than the outside pissing in.” [Hellard laughs]

Hellard:Did you have occasion to ever meet Hoover?

Prichard:Many times, oh yes. He ate every night with his friend Clyde Tolson, his deputy, at a famous restaurant then called Harvey’s. It still exists but it has a different location, it was then right next to the Mayflower Hotel, it was once sort of the old elegant restaurants in Washington. And he ate on the second floor at the table right against the front wall, just two of them. And I’ve seen him there a hundred times. No, we had very cordial, you know, on the surface—shook hands. You know, there was always some great question about Hoover’s sexuality. And when he died, he left everything to Clyde Tolson, and the great question asked around Washington was whether Tolson had claimed the marital deduction. [Hellard laughs]

Hellard:Well, I think that’s about going to do it for today, Mr. Prichard. You got—have you got a few more minutes?

Prichard:Uh-huh.

Hellard:If you have I’d like to run this tape on out.

Prichard:Yeah, sure, let’s go ahead.

Hellard:Well, what were some of your most memorable cases that you assisted Justice Frankfurter on?

Prichard:Oh, the most memorable of all, and the most disastrous for his reputation—and I wouldn’t want to conclude—was the flag-salute case. Gobitus v. the Minersville School District, that was decided, I think, on the last day of the term. And it was the case that upheld the right of a school board in Pennsylvania to expel a young, two young Jehovah’s Witnesses for refusing to salute the American flag. And it did more to earn Frankfurter the obloquy and the reprobation of his liberal and morals than anything he did on the Court, and it did a lot to set him in the—in the mold that he later fell into of being a sort of falling angel of the legal liberals. I think his—there are some who say that fall of France set him in an emotional frame of extreme patriotism. There are others who say that this followed his judicial philosophy that he’d always professed. There are some who think that he was just the patriotic little immigrant boy swept off his feet by the idea of the flag. The interesting thing to me about it was that every judge on the Court except Stone concurred in his opinion, and Stone wrote a strong dissent, which Frankfurter, to me, characterized as a noble affirmation of the freedom of the human spirit, so he did not take personal umbrage at Stone’s disagreement. He later became very bitter because three years later the court overruled Gobitis v. Minersville School District with Frankfurter as the sole dissenter. In an opinion written by Justice Jackson, called Barnette against, I’ve forgotten, West Virginia Board of Education. And Murphy, Black, and Douglas, all of whom had concurred in Frankfurter’s opinion, abandoned that position and went over to the other side to make up three of the votes in favor of Jackson’s opinion in Barnett. Frankfurter bitterly resented this. He said that Black reported to him that he, Murphy, and Douglas had changed position. And he said to him, “Hugo, did they reread the Constitution, or did they simply read the newspaper?” Because, of course, the newspapers had uniformly criticized Frankfurter’s opinion. Literally nobody defended it—liberals, conservatives, or anybody else. It isolated, and I think it did a lot to sour his whole judicial career. And I tried desperately to get him to take a different view, and I couldn’t do it. And I did something that could have got me fired. Joe Rauh tells about it in his Holmes lecture on the civil—civil rights and civil liberties careers of justices Frankfurter and Black at the Harvard Law School. I took the draft of the opinion to his house in the dead of night with tears in my eyes, and I said, “Joe, is there anything we can do to prevent this disaster?” And we stayed up until the wee hours in the morning and concluded there wasn’t anything we could do. And so the opinion came down. Frankfurter took it on the narrow ground that any nondiscriminatory statute or ordinance was constitutional it if didn’t—wasn’t directed at religion. In other words, that religious immunity, religious scruples did not confer immunity against the statute which had a public purpose and was not directed at religion, analogizing it to the statutes against polygamy and the statutes requiring vaccination to which people objected on religious grounds. Now it must be clear that if you look at the Supreme Court precedents, there were two previous cases in which the Supreme Court had ruled the same way Frankfurter did, without even a dissent, just by procuring opinions. But, nevertheless, I think everybody agrees it was a terribly wrong decision and that it—it absolutely blasted Frankfurter’s reputation as a great liberal jurist. Now, there’s a professor who’s writing a book on those decisions, from out of Stanford, who interviewed me recently, and has gone in to them in great depth. Anyway, that’s the way it is. That was unquestionably the biggest single case that came up, and it was right at the end of the term. And he—he was never the same again.

Hellard:Now it was—at the end of your term, also at the time you were concluding your service to him?

Prichard:Uh-huh, right, June of 1940.

Hellard:Do you recall any of the conversations you had with him about that case—

Prichard:Oh yes.

Hellard:—why he was so adamant?

Prichard:He was adamant because he said he was following the views of Holmes, which was that one must defer to the actions of a legislative or municipal or state body unless they invaded rights in such a way as to permit the clogging of the channels of political change, that the only time the courts were justified in interfering with legislative or local government decisions was when those decisions prevented people from having a free opportunity to change the laws; that is, freedom of speech and of assembly and of political acts.

Hellard:Okay, well, at the next taping we’ll take up at June 1940.

Prichard:Right.

Hellard:We’re just—