Interview with Tom C. Clark, May 8, 1973

IRELAND: --cording there too.

CLARK: We're loaded.

IRELAND: We're loaded and we're ready. Let me just start off with the sixty- four thousand dollar question: I was reading last night in preparation for this interview that a recent history of constitutional development since 1915 (and the author is fairly well-respected) had this to say about the case of Brown v. Board of Education with emphasis on Chief Justice Vinson. He said, and I quote:

When the decision was announced for a unanimous court on May 17, 1954, it was indubitably clear that [Earl] Warren had succeeded in doing what Vinson had neither the ability not the desire to accomplish previously. He had rallied a divergent membership behind a unanimous legal position that wiped nearly sixty years of judicial gloss off the equal protection clause.

I guess what I am trying to get at is: What would have happened if Vinson had lived and what was his position with regard to that decision?

CLARK: The result would have been the same.

IRELAND: You think so?

CLARK: The opinion may have been written differently. One can hardly surmise how Chief Justice Vinson would have written it. I don't see how any informed person could conclude to the contrary. Indeed, the result was forecast in Sweatt and Painter.

IRELAND: Right.

CLARK: He also had written the Shelley v. Kraemer opinion (which had to do with restrictive covenants) and which announced new doctrines in that area. 00:02:00Then the Court passed upon a burial case out of Iowa, I think it was. Justice [Felix] Frankfurter wrote the opinion in which the chief justice had joined. So I don't see how one can support any other conclusion as to Brown. Indeed, Chief Justice Warren originally had not intended to assign Brown to himself.

IRELAND: Oh, really?

CLARK: No, I think Justice [Hugo] Black was responsible for the chief justice authoring the opinion. I doubt that the chief justice realized the added impact of an opinion authored by that office. No doubt he also felt that Black or even myself, being from the South, might be more acceptable. Sometimes that proves true: to have one write who is of the particular area involved. In assigning 00:03:00cases (I never did assign very many, five or six), I might pick out a justice because of his background in the particular area, i.e.: a state case involving a federal question. For example, a New Jersey case would indicate Justice [William] Brennan or a case involving the business of Wall Street might indicate John Harlan. Each came from those respective areas. If the legal question involved the power of the SEC [Securities and Exchange Commission], Bill Douglas, who was the chairman, would be the logical choice. Potter Stewart was an alderman in Cincinnati and was on the Sixth Circuit and so a case arising 00:04:00from those areas might be profitably assigned to him. So, one exercises a judicial-political discretion in selecting authors for opinions. As you well know, the senior justice on the majority side assigns the case for writing. In the Brown case, Justice Black and I were the only ones (not the more interested in the case or the ore affected by it) that came from the South, which was vitally involved. Naturally, the Court looked to us with reference to the impact that might result. I had always thought of Kentucky as being somewhat of a border state--one that in national affairs switched back and forth politically--but some people think of Kentucky as being Southern. Vinson was 00:05:00certainly more of a Southerner than Chief Justice Warren, who was from California, and understood Southern sentiment. I say this: I have a high regard and a great affection for both Chief Justice Warren and Chief Justice Vinson. I sat with Warren much longer than I did Vinson; however, I had known Vinson more intimately. I had met Chief Justice Warren when he was Attorney General back in 1941, while I knew Fred Vinson from the time when I first came to Washington. The latter was a close friend of Speaker Sam Rayburn. I was naturally thrown with "Mr. Sam", and I met Vinson through him before Vinson was appointed on the Court of Appeals.

IRELAND: You don't subscribe to the theory that had Vinson been on the Court that perhaps the decision would not have been unanimous? Or that perhaps it 00:06:00would have been implemented more slowly?

CLARK: How could it have been any slower! [Laughter]

IRELAND: But you think the decision would have been unanimous even if he --

CLARK: Oh, I think so. We all thought in those terms. As you know, the Court doesn't have any army to enforce its opinions, no money to buy advertising, and we don't want to go out on a picket line in our robes, anyway, to gin up support. The only strength it has is (1) the unanimity of its opinions. That is, if unanimous, an opinion has greater strength. I don't know why--except there is strength in numbers. And (2) the logic and reasoning of the opinion (what I call the common sense of it) has a direct effect upon its 00:07:00acceptance by the public. It may take some time. You remember Chief Justice [John] Marshall had some trouble in the [Cherokee] Indian case down in Georgia during Andrew Jackson's time.

IRELAND: Indeed --

CLARK: However, history teaches us that the opinions of the Supreme Court, while sometimes delayed, eventually are recognized and accepted. Perhaps Brown and the prayer cases have taken longer.

IRELAND: Oh, indeed.

CLARK: In some states that I have visited recently they are not even enforcing the prayer cases now.

IRELAND: Right.

CLARK: They still give prayers in the public schools, despite Vitale and Schempp.

IRELAND: Let me just ask you one more question about Brown--I don't want to belabor it, but the case is somewhat controversial. The critics of Vinson argue that there seemed to be a tendency on his part, if not the Court's, between about '51 and '52 and into '53 to try to stall or evade deciding the ultimate 00:08:00question of whether or not "separate but equal" was constitutional. They point to the fact that a number of cases which were eventually decided were sent back for re-argument on somewhat technical grounds, although there was, of course, the famous request that the case be re-argued on the legislative intent of the Fourteenth Amendment. They see this as evidence of Vinson being unwilling to come to grips with the question of finally striking down segregation.

CLARK: That's all tommyrot, just pure and simple. When I came here, the cases were here. I came in 1949, and all of us thought the climate was not just ripe for change. We often delay adjudication. It's not a question of evading at all. It's just the practicalities of life--common sense. The cases were not really clear-cut. The records were cloudy. They came from the South. We 00:09:00wanted to get a national coverage, rather than a sectional one. There were violations, equally repulsive, other than in the South, such as Delaware, Kansas, and the District of Columbia. We delayed, awaiting the filing of additional cases; we hoped to have one based on the Fifth Amendment along with those predicated upon the Fourteenth. And soon we got one here in the District of Columbia. It was deliberate on the part of each of us, just as much so as the term "deliberate speed" was inserted intentionally into the opinion on implementation--a phrase which, of course, was borrowed from Mr. Justice [Oliver Wendell] Holmes. There was no shuffling of feet, no holding back on the legal question. It was simply a question of (1) getting a broad area of coverage; (2) 00:10:00thereby securing the opinions of the various Attorneys General of the states; and (3) getting more light for ourselves. We were successful in this since we were able to consolidate some five cases into one argument, covering a diversified area from the standpoint of geography. Our determination to do this is revealed in our action with regard to a case in which a state bond issue had been voted to make the schools of the state involved more equal--though segregated. We sent the case back for a determination as to the success of the project. It was, I believe, in the Fourth Circuit.

IRELAND: Well, that's very interesting. I'd like to turn to some other matters about Vinson as chief justice if I may. How did he get along with other members of the Court? One reason he was supposedly appointed was because Stone had so 00:11:00much difficulty with certain factions of the Court. The famous [Robert] Jackson statement--I think it was after Vinson was appointed--had produced strained relations and --

CLARK: Before --

IRELAND: Or was it before? Right. Before. But allegedly Jackson did not get along with Justice Black at all and some of the other members, and vice versa. Do you think that Vinson had the capacity and the ability, and did he have success, in bringing the Court closer together and making it a more harmonious unit? As much as it could ever be?

CLARK: Well, if what you describe is true, he really brought about a miracle! Because when I came to the Court I never heard of any animosity between any of 00:12:00the justices. Indeed, Justice Black and Justice Jackson were more Chesterfieldian than any of them, and certainly all of the justices evidenced not only hospitality but respect for each other, although they were from various backgrounds and geography. I never saw any ill-will or animosity. They treated each other as equals. There was no evidence of any justice having any animosity towards another. There were differences of opinion, of course. I think that Bob did "pop off," as I call it, over in Paris. He was anxious to be chief justice and when [Harlan] Stone died he went about securing it. But he did not know the climate. He was away. He was over in Germany on the Nuremberg trials and had been for some time. (He should have never been the prosecutor on the Nuremberg trials. That was a great mistake. Justices should not accept these 00:13:00outside, extracurricular appointments while they are sitting on the Court. First, it makes a "bobtail" court. Inevitably, the eight left split four-four on their voting. I don't know why it is, but they do. Possibly intentional. Some of them say, "Well, I'd rather split it four-four than get a result that I don't agree with." So they might change their vote deliberately.) In any event, he was over there, busy as always. I love Bob. He carried out his Nuremberg assignment superbly. However, I don't agree with Nuremberg. He was busy trying those cases when he heard that President [Harry] Truman was considering Justice Black for chief justice. It was a position to which he aspired. And, so he called a press conference, which was unfortunate. Unfortunate, since the basis of it was entirely without support. He indicated 00:14:00the Justice Black had participated in a case in which Justice Black's former law partner was counsel. Black had not had any partnership since 1937 at the latest and that was when he came to the Court. (I don't know whether he practiced law while serving in the Senate or not; I feel that he did not.) In any event, the relevant partnership had been dissolved ten years. Stone died in 1946, after which Vinson became chief justice. Any conflict of interest, in my view, was rather far-fetched. Now it is true that Justice [Stanley] Reed stayed out of cases in which the C. & O. [Chesapeake & Ohio Railroad] was a party because he 00:15:00formerly represented them; and that was back in 1929. [Chuckle] Ordinarily, a justice wouldn't carry his associations that far. Indeed, I sat in cases involving Safeway Stores. I represented them back in 1937 before I came to the Court. A case arose here in 1950 or '51. I think you can go to ridiculous lengths in abstention. The idea that one might be influenced by his former connection certainly has some connotations that I wouldn't want ascribed to me -- that I would be prejudiced after so many years. So, I think it was unfortunate. However, the chief reason why Chief Justice Vinson was appointed was because of Chief Justice [Charles] Hughes' recommendation. It had great weight. He was a retired chief justice and a very beloved and memorable one. 00:16:00He had a glorious public career. I happened to be AG [Attorney General] at the time, and know something about it. Of course, the president had a high regard for Chief Justice Vinson. He was his secretary of the Treasury, and had been in the White House under FDR [Franklin D. Roosevelt], in the RFC [Reconstruction Finance Corporation], and on the Court of Appeals as well as a member of Congress. And had been under the appointment of Hughes, the chairman of the OPA [Office of Price Administration] Appellate Court (which was a special court--it had been created for appeals in OPA and other ration cases). So, I would say Vinson was a natural for it. He did have an uncanny knack of placating opposing minds. He had revealed that in the Congress where he had sat for many years. 00:17:00He had shown it on the Court of Appeals, and in the Treasury and other positions. So, it was natural when Chief Justice Hughes indicated that he thought he would be a good appointment, that the president (having a high regard for Vinson himself, being one of his official family) would appoint him. I was for Vinson, too. (He and I had become good friends back when I first came here--each year somewhat more, of course, all the time, as time went on.) And I think one of the motivating forces was the fact that there was a rift--a public rift-- on the Court. With that existing, if you appoint someone on the Court, 00:18:00you might get into a kettle of fish, and so you appoint from outside. Frankly, I'm in favor and I had always thought that the president should promote within the Court, but this was an exception because of this rift which had been aired publicly. So, I would say that Vinson was appointed largely on account of those recommendations. Too, because of his warm friendship with the president and the president's knowledge of him being able to bring about understanding among competing forces and the necessity of trying to bring the court a little higher respect from a public standpoint. It had suffered some because of Bob's prosecuting in Nuremberg. Chief Justice Stone was fretting about it being short 00:19:00a justice (we called it bobtailed). As a consequence, the justices had a heavier caseload.

IRELAND: Do you think that Hughes had this in mind when he suggested Vinson, or was he impressed by other factors, also?

CLARK: I think that is primarily it, together with his experience. He told me his experience with Vinson on that OPA Court and on the Court of Appeals had impressed him. Vinson was an imposing person and he had a knack of being able to placate competing forces.

IRELAND: Was he able to translate this into votes? Eventually the Court has to get together and they have to vote on how they are going to rule. Now, for example, in the conferences, was he persuasive--at that time it was a Saturday morning or a Saturday conference--was he persuasive there?

CLARK: Yes, he was. Of course, anyone who thinks that a chief justice or a 00:20:00justice goes shopping around for votes has the wrong conception of the court. They met at that time on Saturday. Now they meet on Friday. (Have for several years.) You are prepared in your case. If you are high on the totem pole, you know that the presentation that you make on this Saturday morning, when you have heard the cases during the week and are going to decide them that day--will have a considerable effect upon those that talk and vote behind you. All justices behind you would vote before you would because we vote in reverse order. These discussions that are begun by the chief justice in the conference run down the conference seniority-wise; and, of course, indicate how the speaker is going to 00:21:00vote. Sometimes, a justice would say, "Well, I'd vote to affirm." However, most of the time he would await the vote before announcing his position. The idea is, as evolved by the "old boys" who came on before us, that the senior justices voted last rather than influence the young ones. Of course, that's absurd. But, the chief, then Black, then Douglas, then myself, before my retirement, would speak first. We would, of course, indicate our legal views together with the reasons for them. So, I always studied the cases the night before the conference and had a little outline--sometimes in the back of a brief on a blank page. I used to write a little outline on one of those blank pages 00:22:00so I could have it right there before. We had all of the records and briefs in the conference room. Each justice has a little cart he puts them on. So, when it would come your time, you would present your position as strongly as possible, particularly if you had five justices behind you, because you might pick up four. Very often the three ahead of me voted the other way. I'd be the first to vote in opposition and so if I could pick out four of the five who were behind me, I'd have a court. And the last year I was here, I assigned about five or six opinions because I was senior on the majority side. [Chuckle] So, you always try to present the best possible arguments. Subsequent to the conference there are often some changes. Some justices might indicate, "Well, I'm on the fence." I've done it myself when I am undecided--not a vote to affirm or reverse, but, as Felix would say, "dubitante." I have some doubts. I 00:23:00would take notes but all of the other justices would remember when a justice was in doubt. If one was assigned the opinion to write, he might go around and talk, as I did, to the doubtful justice who was on the fence, asking, "Now, what do you think? How should this be written?" And you'd try to get him to come along with you. So, in that way, you might be doing a little lobbying or opinion-legging; but a justice would not go around begging: "Now, look, we want to have a unanimous court on this case, help me out." You just didn't do that.

IRELAND: Well, what was his reaction though, to the steel seizure case? He seemed to be very emotionally involved in that. He wrote one of his most 00:24:00powerful dissenting opinions. It must have been a major disappointment to him when the Court did not go along with his views on this. Did he try to --

CLARK: Never talked to me about it after our conference. I went the other way.

IRELAND: I know you did, and --

CLARK: We were in the Cabinet together, and we served under President Truman. President Truman appointed both of us. He carried Reed, I believe, with him, and [Sherman "Shay"] Minton, wasn't it?

IRELAND: I think so, yes.

CLARK: He had three. But he never spoke to me about it privately, only at the conference. He was of that type. He wouldn't try to twist your arm. I don't know of anybody that did on the Court. Quite often in a conference, one might say, "Well, of course, the more unanimous we could be on this, the more it 00:25:00would help." But, they don't go by that criteria at all.

IRELAND: In a very good article about Vinson that appeared in a dictionary of biography (you may have seen a four-volume biography of the justices), the author wrote the following --

CLARK: No, I haven't seen it.

IRELAND: Well, he wrote the following. He said, "Vinson apparently encouraged Truman to nominate Clark." This is about your nomination to the court. Do you know anything about it?

CLARK: Well, I rather thought he talked to the president. He never told me so, but I rather thought he talked to President Truman.

IRELAND: In another instance, historians argue (and the fellow who wrote this is the biographer of Truman; he's writing a multi-volume biography and he's been in the Truman papers) that Vinson was a very close adviser to Truman even while 00:26:00he was chief justice; that Truman called him frequently on the phone late at night and they talked about all sorts of things. Do you know anything about --

CLARK: I don't think that's true. The chief and I used to go down and play poker. But the president never mentioned any case. We would go down on the Williamsburg sometimes with the president on a Saturday, come back on Sunday. And then sometimes we would go to Vinson's home there at Wardman Park. I think they came over to our house one time. Or we might play at Clark Clifford's house. They came over to my house once or twice, but most of the time it was on the boat. The chief and I would fly down to Norfolk and get on the Admiral's lorry, I think they called it, to take us out to the Williamsburg. But, in all 00:27:00that time, I don't remember Mr. Truman ever talking about a case. I know that he never talked to me about any case. I'm sure he never talked to the chief justice.

IRELAND: Well, the historian didn't say they talked about judicial matters. It was a question of just seeking advice on nonjudicial matters.

CLARK: I doubt that very seriously. In all the time I was here, I went down to Blair House and had dinner several times and the president never mentioned a case. (The White House was being renovated, you know.) While I was in the Cabinet, we talked about things. If he had been talking to Vinson, I'm sure he would have been talking to me. People say Mr. Truman got mad about my vote on Youngstown. I don't think he did personally. In the "palace guard," as some 00:28:00people call it, there was some eyebrow-raising. Mr. Truman came up here and ate lunch with the Court after that case, at my request, and I doubt if it made a bit of difference with him. If I thought that that was the way the law took me, he would applaud it. [Chuckle]

IRELAND: Chief Justice [William Howard] Taft took a very active role when there was a vacancy on the Court or important vacancies in the lower federal judiciary in suggesting possible replacements to his presidents. Do you know if Vinson ever tried that?

CLARK: Well, he never had one, besides me. And Minton. Minton came about a month after I did. President Truman had spoken to me about Minton before. I 00:29:00think he had Minton in mind from time to time, so I am satisfied that Chief Justice Vinson never had anything to do with Minton. There are several reasons for that. You see, when Mr. Truman called me and asked me about coming here I said, "Of course, there are those who think that [Frank?] Murphy's seat is a Catholic seat. I just call that to your attention." And he brushed that aside. Mrs. Minton was a Catholic.

IRELAND: Oh.

CLARK: And he and Shay were on the Truman Committee together. They were warm friends. Roosevelt put Shay on the Court of Appeals, and then Mr. Truman and Shay were seeing one another from time to time. After that, Shay used to come 00:30:00here quite often. He had phlebitis, and he went out to Walter Reed [Army Medical Hospital]. I called on him several times when I was Attorney General. I think that was a personal appointment just like [Harold] Burton. I had a practice of suggesting three names and Burton was on my list, but Bob Patterson was my top man. Mr. Truman indicated that he was going to appoint Patterson on a Friday when i talked to him before a Cabinet meeting, but then he called Monday and said that he had changed his mind. He was going to appoint Burton.

IRELAND: Is there any truth to the rumors that Truman wanted Vinson to seek the Democratic presidential nomination in '52?

CLARK: Not that I know of. There was a lot of talk about Vinson running in 00:31:00the papers, but he wasn't about to run. [Chuckle] I don't know whether that's true or not. I was out of it, you see. This is just a pure guess, but I don't think that he and [Adlai] Stevenson were eye-to-eye, because Stevenson was quite critical of what he called a "mess" or something like that--of which he knew nothing. Stevenson was a fine person. I liked him very much. He didn't know what was going on in Washington too well.

IRELAND: Critics have implied, at least, if not argued directly, that Vinson depended on his clerks too much. Of course, when he came in, the number of clerks increased. I think everybody had one and the chief justice had two until he assumed control, or leadership, and then he got three. Is --

[Pause in recording.]

CLARK: When I came here they had two. That is, each justice had two and the chief had three. Of course, the occasion for that was that the chief supervised the making of what we call "flimsies." We had a lot of in forma pauperis cases--about half of our docket. Quite a large number were filed in longhand. We didn't even have a Xerox or a duplicating machine. We had to send them around to the justices in big folders. The folders had a list of the justices' names on the outside and after studying the file, the justice would check his name. Many times on Saturday, I would have to ask for some case to go over, because I had not received the folder. Of course, it would go over. If anyone had not seen the file of a case, disposition of it would be carried over to the next conference day. The chief would have his law clerks type up "flimsies" (we 00:33:00called them). They were memos on in forma pauperis cases. Each justice would study these together with the papers in the case. From these we made up what we privately called the "dead list"--publicly it was called the "select list." If all of us agreed that a case did not merit any discussion at our conference, it would go on that list. I would say quite a large percent of the in forma pauperis petitions were placed on the list. If any justice asked that a case be discussed, it would be removed from the list and discussed at the next conference. I took some off the list myself and each Saturday conference found cases removed from the list. My personal routine was: first, read the "flimsy," which was always on the outside of the folder that contained the papers in the case. If the petition did not raise any federal question, there wasn't any use in looking inside the folder. The "flimsy" would state the issues raised and one could quickly tell whether it raised a federal question. If it did raise a federal question, most of the time I would read the papers in 00:34:00the folder, besides the "flimsy." The reason the clerk's memo got that tag "flimsy" was because it was on thin onionskin paper. A typist could make eight or nine copies at once. Sometimes my copy was so weak that I could not read it clearly. I would have to get another copy or ignore it. We didn't have any way of duplicating, you see, other than a mimeograph machine, which was not practical. There was no Xerox. I don't think that the law clerks wrote any court opinions. I was told that Justice [William] Rehnquist wrote some when he was a law clerk. Later he wrote some article about it. I expect that he wrote only memos--not opinions--for Justice Jackson. As far as I know, the opinions were written by the justices. It is true, that I would write the first draft of 00:35:00an opinion in cases assigned to me and then give a copy to my law clerks. Quite often they might suggest that the opinion might be changed in form but not in disposition. As long as I was on the Court, no one ever suggested I change my vote. Some of the law clerks might suggest changes in language, make it shorter, or perhaps suggest citations of authority that, in their view, might be stronger or something similar. They always checked the citations and the quotations from authorities. When it reached final form, I would have it printed, and we would circulate it to the other justices. When we got a dissent, we would discuss it (the law clerks and myself), and I would decide how we should answer it by making changes in the circulated draft. Sometimes the 00:36:00dissent almost demolishes you, so you have to get up an answer to it. Of course, you never mention the dissent, but you just say, "some claim," "they say," or something of that order. So, the law clerks were confined, when I was on the Court (and mine still does it) to writing memorandums and researching. Unfortunately, many of our cases are not properly briefed, and about half of them are not effectively argued. Quite often, we would have to brief them. For example, one comes to mind, where Justice [Arthur] Goldberg's clerks and mine put in all their time for a month or so briefing in Barnett as to what the law in colonial days was with reference to petty offenses; was a subject entitled to 00:37:00a jury on a contempt citation if he was sentenced to more than six months in jail, which was the usual penalty in petty offenses. But we didn't find too much to tell you the truth! [Chuckle] Most of the colonial records were in longhand. We devoted a lot of time to it. We devoted a lot of time to it. Another case that received similar treatment was an opinion I wrote on Central Valley which was a reclamation district in California. The chief's law clerks joined with my two, and traced the background of this district and the applicable water law.

IRELAND: That must have been a job.

CLARK: It sure was. Because the lawyers just hadn't briefed it as well as we thought was necessary. So, law clerks do that, and then, too, they would write a brief, or a memorandum, on cases placed on our appellate docket. Then, they 00:38:00might discuss a case with you as to, "Well, a conflict between this case and that case." If there was a conflict, I would always vote to hear it to resolve the conflict. That, I think, is one of the functions of the Court. If there wasn't a conflict, they might say, "Well, this question is raised," or they would discuss it on whatever points were raised. My clerks' memorandums never did indicate how they thought I should vote, but I don't know what form the other justices used. Some justices had their law clerks draw up what they called "bench memorandums." I never did that. These memorandums were used on the bench, and somebody--some wags--used to say that some of the questions that 00:39:00were asked from the bench were supported by these memorandums, which I doubt. [Chuckle]

IRELAND: During Vinson's term as chief justice, the caseload dropped rather appreciably. I am wondering if he had anything to do with that. Scholars argue that he thought that the Court should really restrain itself--that the Court should not act unless there was a question of great constitutional importance. Did he seek actively to reduce the caseload and to reduce the number of cases that were acted upon by the Court?

CLARK: That's the first I've heard of it. I suppose I was as close as anybody on the Court to Chief Justice Vinson because of our past association. Then, when I came to the Court, he suggested that I might specialize in cases 00:40:00involving state taxes on what was loosely termed interstate commerce; such a tax was prohibited, as you well know. So, I wrote quite a few of those cases as you remember--the airline cases out in Minnesota and the pipe fittings case in Georgia. And then I wrote the Railway Express and dissented in the Spector case. (Burton wrote that one.) So, that is the only thing that he ever talked to me about. He said that state levies on interstate commerce were plaguing the Court; it was one of its big problems, and he thought maybe if I would put my mind to it, we could straighten it out. I don't think we did, but we tried. As far as the dockets were concerned, we didn't have but about eight hundred cases, 00:41:00I remember. You can correct me (if you counted them), but I'd say in the October, 1949 term (that was my first term), we had between eight hundred and nine hundred. And, when I left, counting the "flimsies" and everything, I'd say maybe thirty-five hundred; at least over three thousand.

IRELAND: Then there was not a conscious effort by anyone to reduce the caseload or not to --

CLARK: The greatest exponent of judicial restraint was Justice Frankfurter on the Court at that time.

IRELAND: You men no one every said, "We're taking too much business, let's -- "

CLARK: Oh, from time to time, towards the end of the term, the clerk, usually on every Saturday, would give us a resume of how many cases we had heard, how many we had on the docket, how many we had granted, and how many of this and 00:42:00that and the other. And somebody, usually Bill Douglas, would say, "Well, we ought to have arguments through April." And sometimes we had argument, if you remember, through the first week of May--quite often, because our cases would run over; but I wouldn't say that had anything to do with the votes on petitions or appeals. Most of the time we remained in session until after the Fourth of July. Often, we would set some cases for argument in May. Now the Court this year, I think, heard the last arguments about ten days ago, or two weeks, something like that. So, I would say that we were hearing arguments for a longer period, although the number of filings was much less.

IRELAND: Most of the important cases which were heard during Vinson's Court 00:43:00were civil liberties cases. I think many people who criticize him argue that he perhaps over-reacted to the threat of Communism, both domestic and foreign. They often point to the Dennis case as a prime example. Would you care to respond to that? Do you think there is any truth in that?

CLARK: No, I don't think so. Dennis was tried in the District Court when I was AG. I didn't sit in Dennis because of this. I had never noticed that Vinson over-reacted on Communism when he was secretary or when he was here. As you know, when justices write opinions, the critics try to tag them. They tagged me with Jencks and cases like that, but I don't think that he thought of it at all. When a case comes here, we don't say, "Well, that fits in my 00:44:00philosophy Number Two," or something like that. We look at the case and study it, and if it fits in Number Two, well, all right; but if it doesn't, it does not go into Number Two. We don't put them in our philosophical channel. I don't think he did, either. I rather think that on account of the hullabaloo, which I think was highly overemphasized, over Communism at that time, he apparently thought that the chief justice should write the opinion. He assigned it to himself, which is very often what a chief justice does. Making assignments when he is on the majority side is his job. And I thought he wrote it very well. I would have reached the same conclusion.

IRELAND: You mentioned earlier that he sought you out, apparently not only to expedite the interstate commerce and state taxation cases, but also to exploit 00:45:00your expertise. Did he have people on the Court that he used for certain types of cases or would like to? In other words, if they were with the majority, and he was with the majority, would he assign opinions to them because they had some expertise in a particular speciality of the law? Other chief justices --

CLARK: Well, he never told me he did, but I rather think the pattern would indicate it. For example, Variable Annuity was an SEC case; as I said, he'd probably assign it to Bill Douglas. If it was a case involving deportation (I wrote a lot of deportation cases and they thought I was supposed to be an expert in that area; I wasn't, but you know sometimes your reputation is based over false foundations) or anti-trust, even after Vinson, quite often I would write 00:46:00the opinions, because I think Chief Justice Warren felt (possibly on account of my being head of the Anti-Trust Division at one time) that I might have some insights that others might overlook. Or, if it involved a state--say the case was out of New Jersey--one might assign it to the justice that was from that state. It might be more palatable.

IRELAND: We began by talking about his ability to direct the Court, to lead it. Did he get along with all members of the Court? How did they regard him? With affection? With respect? Or simply with courtesy?

CLARK: I think with affection. I told you about one run-in he had with 00:47:00Felix, but that is the only incident I know of.

IRELAND: No, I'm not sure you mentioned that. Did you talk about that?

CLARK: Well, not today, but I thought I said something about it to you. Anyway, it happened soon after I came here (I'd say a year or so perhaps). Justice Frankfurter, while in our conferences, had a practice of standing when he talked. I suppose he gained that from his experience as a professor. Sometimes he would stand up and talk; sometimes he would go and pull down a book. (We had the U. S. Reports and other federal reports in the Conference Room.) As I remember on this particular Saturday, he was standing and talking 00:48:00about a case. As you know, Justice Frankfurter had very decided views in some areas, so he said something that irritated the chief. He thought it reflected on his integrity. Justice Burton sat on the left of the chief, and Justice Reed on the right at the conference table. Well, of course, four had to sit on one side and three on the other, because we had nine, with only one at each end. So Burton sat on the chief's left and I sat next to Burton, then Shay Minton sat next to me, with Felix on Black's end, on what you would call Black's right. Bill Douglas was on Black's left and Bob Jackson was in the middle--only three on that side. So, the chief pushed his chair back, and was coming around his 00:49:00left corner, and I pushed my chair back and Shay tried to push his chair back--but Shay had phlebitis, so he was somewhat slow in getting out of his chair--and the chief was in Burton's way. I don't think there would have been any "free for all," [chuckle] but the chief was sort of making towards Felix [chuckle] and when I pushed my chair back, it was sort of a blockade. [Chuckle] He withdrew a little bit, and then quieted down; and Felix sat down. He never showed any temper other than that while I was there. And I think everyone had a very warm feeling towards Chief Justice Vinson. It may be that Justice Frankfurter had some animosity. He never expressed it to me. I officed next door to him for years. He and I were very close friends. I am a great admirer 00:50:00of Felix. I think he was terrific, although we often differed.

IRELAND: Do you think that people like Frankfurter and Jackson respected Vinson intellectually--thought highly of him as a judge and lawyer?

CLARK: Well, they never expressed themselves to me to the contrary, but I rather doubt if they thought as highly of him as they did Hughes. Or Stone. And I think each had sat with both of them.

IRELAND: Of course, Stone was always criticized for letting the conference break down, allowing people to sort of have a "free for all"--like maybe you described --

CLARK: I never heard of any "free for alls."

IRELAND: But Vinson did not tolerate that?

CLARK: I never heard at any time Vinson saying anything about the disorder. There wasn't any disorder as far as I know.

IRELAND: It was an orderly proceeding?

CLARK: About like you'd have in any committee or little panel group where you 00:51:00might discuss things. The Court had a sort of schism--or they tell me some justices used to have rump meetings when Chief Justice Hughes was here. They'd meet out at Justice Stone's house. We never had such meetings. They would have a rump meeting. I don't know who attended. I rather suspect it would be the ones who dissented most of the time. Hughes was here, I think, until '42, maybe longer, so Felix and Bob would have sat with him. I know they had a very high regard for Hughes.

IRELAND: The critics also argue that Vinson gave the government too much of the 00:52:00benefit of the doubt in civil liberties cases, and they point especially to the Rosenberg case. They argue Vinson tried to rush the Court to a judgement in that case; that there was no need for this haste--weeks, I guess days actually--preceding the execution, and that Vinson should have allowed the Court more time for deliberation on that last appeal. Do you have any reaction to that?

CLARK: Well, we had a special session on Rosenberg, but that was after we'd already handed down the opinion. Bill Douglas granted a stay. We were in early summer adjournment. His stay would have put the execution off until October. It all happened about a week after we adjourned, as I remember. And so most of 00:53:00us were still here. Bill had already gone to his place in Washington state, and Chief Justice Vinson got him on the phone. I'm not sure whether Douglas came back or voted over the phone--one or the other--but we had a session in which we vacated the stay. I suppose that's where they got the idea.

[Pause in recording.]

IRELAND: Some chief justices have tried to minimize the number of dissenting opinions and tried to get people who might otherwise dissent to go along, just 00:54:00for the sake of unanimity. We've alluded to this before. Did Vinson ever try that?

CLARK: No, I don't know of any chief justice who tried it. [Chuckle]

IRELAND: That's a myth?

CLARK: Yes. [Chuckle]

IRELAND: Well, I think we know that Marshall tried it, but maybe beyond that --

CLARK: Well, he announced all of the opinions! [Laughter]

IRELAND: Yes, he wrote everything.

CLARK: [Laughter] But he was a great chief!

IRELAND: Great, indeed. [Laughter] Of course, his times were a little bit different than this -- [Laughter]

CLARK: He's called -- he's called the "Great Chief." [Laughter]

IRELAND: Well, would you care to say anything to conclude this? Or do you have any general comments to make on Chief Justice Vinson? Or Vinson as a --

CLARK: Nothing further. I had a very high regard for him. I think that his stature is evidenced by the fact that of all people in public life that I know, he is the only one who has a club that's named for him, the Vinson Club.

IRELAND: Well, I don't know about this. Tell me about this.

CLARK: It was organized about 1940, I guess--whenever he went on the Court of 00:55:00Appeals. I think it was a little before '40 when he went in as mobilizer for Jimmy Byrnes' assistant. Subsequent to his appointment by Hughes to organize the OPA Court of Appeals, which did not take him off the circuit, it was extracurricular. Well, these lawyers got the idea that they would have a dinner every time Vinson was appointed to some new position. So they started with the OPA Court, which was soon after the war started. They called the club the "Vinson Club." It had an annual affair after he became chief justice. They figured he wasn't going to get any more jobs. I used to go to it and still do. 00:56:00I think they limit it to about fifty lawyers here in the District.

IRELAND: It still meets?

CLARK: Oh, yes. They meet about February every year, or March. Is till go down there. Chief Justice [Warren] Burger now is the Head Knocker--he's the chairman.

IRELAND: Do they pay homage to the chief?

CLARK: Oh, yes. We mimeograph the songs he used to sing. [Laughter] The most popular would be "Old Kentucky Home", "Wagon Wheel", songs like that. They had a man down there (I've forgotten his name now) who played the piano. It's a very prestigious dinner. It's held in the Chinese Room of the Mayflower [Hotel?]. They have about eight courses, with four wines, and two or three different meats, and they have an enormous fern that they put in the center with 00:57:00a waterfall--and they make it into a garden.

IRELAND: That sounds fantastic!

CLARK: Very elaborately done.

IRELAND: You argued some cases before the Vinson Court, did you not? what kind of man was he on the bench?

CLARK: I really don't know. The White case was argued before Vinson came here--I must have argued four cases, I guess.

IRELAND: What kind of man was he --

CLARK: Or maybe Stone was chief justice. Yes, I guess Stone was chief justice. Anyway, he helped me quite a bit when I was arguing John Lewis' case. That was a contempt case and I read (which I think was erroneous) a statement 00:58:00from President Truman with reference to this case, and so we --

IRELAND: In your argument --

CLARK: Yes. We had been to the Vinson Dinner the night before and Justice [Wiley] Rutledge was at the Vinson Dinner. Usually the chief would have one of the justices; I had always been invited. I was AG. So Rutledge had sent me this note. (I had told a story the night before about being introduced at Old Bailey wearing the Solicitor's Wig.) In the note he said, "You don't have your wig with you." So when I went to argue the case, I decided I'd save this letter from President Truman as a great oratorio at the end. [Laughter] I was reading it, and Rutledge said, "Well, Mr. Attorney General, I don't see the relevance of 00:59:00the letter to the case," and Vinson turned to him and said, "Oh, I think it's very good. It's very interesting. I want to hear it anyway." [Laughter] And so I read it all!

IRELAND: [Laughter] That's interesting.

CLARK: Yes.

IRELAND: But he was a kindly man. You hear stories about --

CLARK: He never hurt anybody in his life.

IRELAND: You hear stories about --

CLARK: You hear these things. I heard that Justice -- also from Kentucky, used to be Attorney General --

IRELAND: Reed?

CLARK: No.

IRELAND: Oh, Harlan?

CLARK: No, way back. He was Attorney General under [Woodrow] Wilson. Wilson put him on the Court.

IRELAND: Oh, this is [James] McReynolds.

CLARK: McReynolds.

IRELAND: Oh, he was from Tennessee.

CLARK: Tennessee? Well, I'd heard that he was rough and tough. he would tell people not to smoke, not to drink, and he'd cuss and do everything else. I made a eulogy for him. It was customary for the Attorney General to do this upon the death of a justice. I got some Department lawyers to look into his 01:00:00background and he was a very benevolent old man. He was a widower and had accumulated some money which he left to juvenile agencies that were fighting juvenile delinquency. I found that he was a very kind old fellow. Now, of course, I shouldn't compare him to Vinson, because Vinson was a different type of person altogether. Anyone who says that Vinson had a temper of that kind just didn't know Vinson. I've been with him under various circumstances--playing poker, going to the Derby, going fishing, being with him at all sorts of public affairs, with his family, and the only time I ever saw 01:01:00him lose his temper at all was that day with Felix.

IRELAND: You were in the Cabinet with him for a time, I guess, were you not?

CLARK: Yes.

IRELAND: Some historians (so-called "New Left" historians) have argued that in the early months of his presidency, Truman altered the foreign policy of this country to a more anti-Russian stance, and this is one reason why we had a Cold War. They argue that had Roosevelt lived, there would have been smoother relations with Russia. Do you think there is anything to this, and do you think that Vinson had anything to do with it, or is this just imagination on some people's part?

CLARK: No, I don't think so. I rather think that Mr. Truman was favorable to giving the atomic bomb formula to Russia. I voted against it, and so did Vinson in the cabinet. The cabinet voted against it, and the president decided not to 01:02:00do it.

IRELAND: Interesting.

CLARK: Yes. [Chuckle]

IRELAND: Was this in '45 right after the war?

CLARK: Soon after I came on. I know I made several speeches that were beamed to Italy and Greece through our State Department. It made recordings and translated them into Greek and Italian. It had to do with refugees entering the United States. Under our law one couldn't enter the United States if he was a Communist. I think the State Department--I guess it was [George] Marshall, maybe [Edward] Stettinius--anyway it was the secretary--it might have been Jimmy 01:03:00Byrnes--he was secretary for a while.

IRELAND: Yes, there was a bunch of them.

CLARK: No, Mr. Truman never saw any anti-Communist feeling--nothing like Edgar. [J.] Edgar Hoover had a yen on Communism. He spent about half of his appropriation on it. [Chuckle] I used to kid him that he thought there was a Communist under every government desk, including mine. [Laughter] But the president was the other way.

IRELAND: Well, I don't want to take any more of your time.

CLARK: Good to see you.

IRELAND: Yes, good to see you. It's been very productive.

[End of interview.]