Interview with Gordon B. Davidson, March 4, 1981

GILSON: Okay. Well, Mr. Davidson, first could you tell me, how did you become a clerk to begin with? It's sort of an exclusive job.

DAVIDSON: [chuckle] Well, it was a . . . it was quite a surprise to me [chuckle] how I got it. I graduated from the University of Louisville Law School in 1951, and at that time there was a tremendous glut of lawyers, post-war types, that were graduating and jobs were 00:01:00very hard to come by. And . . . though I graduated with honors and second in my class in the largest class that ever graduated from U of L Law School, there was nothing in the Louisville market at that time that really was very attractive.

GILSON: Right.

DAVIDSON: So I commiserated with the dean of [the] University of Louisville Law School at that time, a fellow named Ab Russell, and he suggested that with things the way they were, what I needed to do was get a graduate degree in the law, which I didn't particularly want another year of education, but he got me a fellowship at Yale where he had graduated.

GILSON: Right.

DAVIDSON: And so I went up as a Sterling Fellow at the Yale Law School in . . . in the fall of 1951, and spent a year and got my Master of Law at Yale. While at Yale, of course, I made a lot of good friends among the faculty and so forth, and enjoyed it very, very much 00:02:00and [they] helped me a great deal. In the meantime I had gotten a commission in the Judge Advocate General Reserve because I had been in World War II and . . . and decided that if there was going to be another war I wanted to ride rather than walk. So I got a commission as first lieutenant in . . . in JAG and then lo and behold, the Korean War was getting hotter and hotter, and I got called . . .

GILSON: Yeah.

DAVIDSON: . . . in May of 1952. So I went into the service as a JAG and I was Assistant Army Staff Judge Advocate at First Army and served there for approximately two years and a little more. And one night about 11:30 at night I was asleep and the phone rang, and it was a professor that I'd had at Yale by the name of John Frank, who had also clerked for [Hugo] Black many years before . . .

GILSON: Yeah.

DAVIDSON: . . . and was an author and a very distinguished scholar. 00:03:00And we had become friends since I had taken some courses at Yale. And he said that he had received a letter from Stanley Reed, . . .

GILSON: Yeah.

DAVIDSON: . . . as he frequently did, asking for nominations for law clerk for the `54-`55 term, and that frankly he didn't have anybody currently that he [Frank] wanted to recommend but he thought of me. This was two years after I had gotten out, which was in itself pretty flattering.

GILSON: Yeah.

DAVIDSON: And I allowed as how I would love to have the job, and so he said fine, he'd recommend me. A few days later I got a phone call from the Court, and the justice's secretary asked me to come down for an interview. [I] went down for the interview and kept my fingers crossed, and . . . and . . . and sure enough in about, I don't know, two to three weeks I got a . . . either a letter or a call from the justice saying that he had selected me. So I . . . I got to be a clerk through Yale, really.

GILSON: Okay.

DAVIDSON: And specifically through the recommendation of John Frank and also Wesley Sturgis, who was then the dean of the Yale Law School.

GILSON: I was just wondering if there was a connec- . . . a Kentucky connection.

DAVIDSON: Well, it certainly didn't hurt [chuckle], there's no question about that. The justice had never had a clerk from Kentucky, interestingly enough.

GILSON: Yeah. I don't think he had one since then either.

DAVIDSON: Well, he had one later after he'd retired from the . . . from the Court and while he was still active as sitting in D.C. and the circuit and on the court of claims. But . . . but no, during the time that he served as a justice of the Supreme Court, I was the only Kentucky clerk he ever had.

GILSON: Right.

DAVIDSON: And he . . . really, I think that the fact I was from Kentucky, and then I had another leg up in the sense that my wife, who is from Ashland, her grandfather had been [a] United States senator from Kentucky, a gentleman by the name of Ben Williamson, . . .

GILSON: Oh, yeah.

DAVIDSON: . . . who had been appointed by the governor to fill in an unexpired term, I think, of Logan--H.H. [sic M.M.] Logan--who was the senator and died in office. The then governor appointed Ben Williamson to serve the balance of the term as sort of a token of esteem and so forth. Williamson was not . . . he was . . . he was in politics, but he'd never held public office. He never ran for office. He was a successful businessman in Ashland, had a wholesale hardware company. But anyway, so he served about a year or a year and a half as [a] U.S. senator. Well, Reed, of course, came from Maysville and . . .

GILSON: Right. The same area.

DAVIDSON: . . . exactly and they had known each other in Democratic politics and so forth. And while Senator Williamson was in . . . in Washington, he and the Reeds were great social friends.

GILSON: Yeah.

DAVIDSON: So there was a . . . an additional family connection, not through my family, but through my wife's family to kind of make, I guess, make my name stand out in his mind that this boy is from Kentucky 00:06:00and also he's married to Ben Williamson's granddaughter. So . . .

GILSON: Yeah.

DAVIDSON: . . . I think all of these things went into it.

GILSON: Plus a Master of Law at Yale didn't hurt either.

DAVIDSON: Well . . . well, I think I had to have the credentials . . .

GILSON: Yeah.

DAVIDSON: . . . but on the other hand I think those things helped. And he was always very pleased and proud of my Kentucky connection and . . . and was always afterwards. And whenever he came to Kentucky, generally I heard from him and we got together on occasion when he'd come back.

GILSON: That's good. What was your initial impressions of . . . of the justice when you first met him?

DAVIDSON: Well, I'd like to start a little bit farther back than that . . .

GILSON: Okay, fine.

DAVIDSON: . . . by saying that when you are in law school the . . . the . . . of course, the . . . the Supreme Court becomes sort of a almost holy grail type thing.

GILSON: Yeah.

DAVIDSON: And you become intimately interested in the justices and their lives because they are giving you the scripture that you are supposed 00:07:00to learn. And it's true of the . . . even of the deceased justices, you get interested in [Benjamin] Cardozo and [Louis] Brandeis and so forth, . . .

GILSON: Right.

DAVIDSON: . . . but even more so the ones that are alive. And you begin to form--I think every law student does--opinions about the individual. During my days in law school in the . . . in the `50s, I would say the . . . the darling of the law schools was probably [William] Douglas.

GILSON: Yeah.

DAVIDSON: Not of the law schools, but of the law students, was . . . was Douglas, who was sort of the young rebel and handsome outdoorsman and glamorous sort of fellow.

GILSON: Yeah.

DAVIDSON: And . . . and then I would say Black probably had a pretty good following among the liberal element in the law schools. And I would say that Stanley Reed was to most law students [a] "color me gray" [chuckle--Gilson] sort of guy. And I would say [that] I had 00:08:00that opinion. I mean, certainly you didn't . . . I don't think anyone disliked Stanley Reed or . . . or disagreed particularly with him, but he was just kind of, you know, an okay kind of fellow. But certainly he . . . he didn't have a lot of glamour about him.

GILSON: No.

DAVIDSON: And so my guess is that when I went to see him I was expecting to see a rather austere, pleasant, but very sort of strict type of individual who was going to be very businesslike, and so on and so forth. Well, he was that, but on the other hand he was one of the warmest, dearest, sweetest, pleasant men that I've ever known in my life. And much of his public image was . . . was . . . was . . 00:09:00. was misleading. He did . . . he . . . he walked very erect. He was a tall man . . .

GILSON: Yeah.

DAVIDSON: . . . [and] thin in those days since he had some high blood pressure, heart problems early in life . . . early in his Washington career and had gone on the famous Duke [University] Rice Diet.

GILSON: Oh, yeah.

DAVIDSON: And so he was . . . he was thin and tall and almost Lincolnesque in . . . in appearance. [A] very handsome man, impressive looking, and . . . and did give the appearance of being somewhat austere. But sitting down with him, he . . . he . . . he was quite the opposite. Very warm, very thoughtful, very considerate, the ultimate gentleman . . .

GILSON: Right.

DAVIDSON: . . . in every regard. But just an absolutely delightful 00:10:00human being. Great sense of humor, loved to laugh at himself as well as . . . as at other things. Got a big kick out of life, loved to eat, absolutely a gourmet extraordinaire.

GILSON: Yeah.

DAVIDSON: He loved to go to the embassy dinners in Washington, and he knew where each . . . he knew which embassy had the best chef, [laughter--Gilson] and . . . or chefs, I should say. And at that time I can remember that one of the South American embassies, I don't know whether it was Brazil or Venezuela or Argentina, that . . . that he considered their chow the best . . .

GILSON: Yeah.

DAVIDSON: . . . and [chuckling] he never missed any of the things that . . .

GILSON: It seems to me that it was the Argentine embassy that . . .

DAVIDSON: Was it? [chuckle]

GILSON: . . . yeah.

DAVIDSON: Well he . . . he . . . he loved good food and he loved a good drink of whiskey and . . .

GILSON: Yeah.

DAVIDSON: . . . and he loved the . . . the finer things of life so to speak, and good living and . . . and yet was very disciplined because of his health problem which was pretty much over, but he didn't 00:11:00want it to reoccur.

GILSON: Exactly.

DAVIDSON: He ate every day for lunch the same thing which was a . . . in a glass jar, I guess it was a . . . well, it was maybe bigger than a pint, maybe it was a quart jar of boiled rice . . .

GILSON: Yeah.

DAVIDSON: . . . which had something in it, either a fruit or a vegetable [such as] peas or carrots or sometimes pears or fruit. And Ross, his . . . his great and good messenger . . .

GILSON: Yeah.

DAVIDSON: . . . would--at, say, five minutes to 12:00--would take the jar of rice that he brought from home and heat it and take it up to the justice's dining room and pour it in a bowl, and that was the justice's lunch. And that was his lunch every day.

GILSON: Yeah.

DAVIDSON: So he . . . he . . . the reason he said he did that was 00:12:00so he could eat a big dinner at night, [laughter] which he did. But he was an absolutely delightful man and . . . and the point of my narrative here is to say that his . . . the image that you got . . . got from reading his opinions . . .

GILSON: Yeah.

DAVIDSON: . . . or the image that you got even by meeting him in a . . . in a public arena at a dinner or something . . .

GILSON: Exactly.

DAVIDSON: . . . would lead you to believe that he was much, much more aloof and austere than he really was.

GILSON: Okay.

DAVIDSON: A delightful fellow.

GILSON: Well, let me see. That . . . that's a lot of interesting things you . . . you told me there. In fact, you covered a lot of the stuff I had . . . I wanted to say anyway. I guess just for the record, could you go through what a clerk does through his . . . his term as a clerk a little bit?

DAVIDSON: Well, yes. I can go through what a . . . what a clerk does first for Stanley Reed because each of the justices, obviously, had a 00:13:00different modus operandi with their clerks.

GILSON: Yeah.

DAVIDSON: And I might add as a sort of footnote to my former remarks, that Douglas, the darling of the law students, was probably the least attractive personally.

GILSON: Oh, yeah?

DAVIDSON: He was a very cold fish. He . . . he had almost no contact with the [other] clerks and with his own. And he only had one. All the other justices had two . . .

GILSON: Right.

DAVIDSON: . . . except the chief [justice], who had three. And . . . and Douglas had an extra secretary in his budget rather than a clerk--usually an attractive lady, I might add. [laughter--Gilson] But Douglas almost never talked to his clerk. Everything was by written communication.

GILSON: Yeah.

DAVIDSON: And I would say the worst clerkship [opportunity] at the Supreme Court was Douglas'.

GILSON: Was Douglas?

DAVIDSON: Right. Because the clerk got less . . . was . . . was 00:14:00made to feel less a part of the team and so forth. I would say one of the premier clerkships was Reed because of his relationship and his reliance on the clerks. One of the first . . . I was the first new clerk to arrive, and my predecessor was a fellow named Jack [John D.] Fassett . . .

GILSON: Yeah.

DAVIDSON: . . . and Jack was . . . is now the president of the utility company in New Haven [Connecticut]. After he graduated from Yale and then clerk . . . after his clerkship, he was with a firm that represented the utility company [chuckle] . . .

GILSON: Right.

DAVIDSON: . . . and then later became president. But Jack broke me in, in other words, and I was there about a month or at least a month when the justice was in Kentucky. So I did not see him. In other words, when I arrived he was gone, and Fassett started me out on certs, and then about a month later the other clerk, Joe Kozol, clerked with me [who was] a fellow from Boston [and a] Harvard graduate, arrived and I broke him in. So I had a period of time in which there was 00:15:00really no one there except me and . . . and the secretary, and she wasn't there a whole lot during the summer. But when the justice returned, of course, both of the clerks were in place and . . . and I can remember vividly that one of our first meetings, when we started officially with him, working with him, was that he called us in the office and he said, "Now," he said, "I demand a lot from my clerks and I rely on them a lot and . . . and . . . and I need your support." And he said, "I want it clear that there . . . that I never make a mistake." [chuckle--Gilson] "I'm a justice of the Supreme Court of the United States and justices don't make mistakes. If there is a mistake made in this office, it's made by the law clerks or my secretary." [chuckle--Gilson] And, of course, this was tongue-in-cheek.

GILSON: Yes.

DAVIDSON: But it did indicate in a way the tremendous reliance and confidence that he put upon both his secretary, who had been with him 00:16:00for a number of years, and . . . and . . . and the clerks.

GILSON: Yeah.

DAVIDSON: His relationship with his clerks was daily, very personal and very much involved.

GILSON: Yeah.

DAVIDSON: Our job was to brief initially every petition for cert or every appeal for him. And we got them first. We went through them and we did a written memorandum. The written . . . which was typed. And we made two copies: one for him and one for us. And the original copy was shoved into the petition brief and into the packet, and then they were taken into him. And the first thing he did was read the memorandum. And after the . . . he read the memorandum, which was in a form that he had dictated which set forth the general information about when the petition was filed and was it timely, and all that sort of thing, . . .

GILSON: Right.

DAVIDSON: . . . then the facts [and] then the issue and then our 00:17:00discussion of whether or not the cert should be granted. And he wanted from the clerks in each case a recommendation . . .

GILSON: Right.

DAVIDSON: . . . as to grant or deny, and so we would give that. After reading the memorandum, if there was anything in it, and, of course, a large number of them by reading the memorandum you could tell there was nothing there.

GILSON: Right. Right.

DAVIDSON: But if there was anything that piqued his interest or any point that caused concern, then he would read the petition himself and call us in. But he never acted on a petition without talking to the clerk who wrote the memo.

GILSON: Yeah.

DAVIDSON: And giving his view of yes, he agreed with us or no, he didn't agree with us. The others that he didn't have an interest in would come back with a signature on them saying agreed or whatever . . .

GILSON: Right.

DAVIDSON: . . . the message he wanted to deliver. But if we said that, for instance, there was one that was a close case, but we would . . . we would grant the petition. If he felt that he didn't want 00:18:00to go along with that he would call us in and say, "Now why?" And then we would debate the issue and . . . and in a completely gloves-off approach. I mean, obviously, we always showed respect, but . . . but it was a no-holds-barred kind of situation. He didn't want you to be a yes man, and if you were, he . . . he would quickly get you out of that, that, "You're agreeing with me just because you think you should, and I don't want you to do that sort of thing." So that was the general operation. We . . . he would frequently have us to his home for dinner; we'd have lunch together on many occasions. There was a . . . there was a great camaraderie between the justice and the clerks. When we got to the sessions on . . . on hearing the cases on their merits, he frequently wanted us in the courtroom to hear the oral argument in cases of particular interest to him, or cases in which 00:19:00we had made the rec-. . . where, say, I had written the memorandum for the grant and he wanted me to come in and sit and listen to the oral arguments so that he later could discuss with us, not only what the briefs said, but what counsel had said in the oral argument.

GILSON: Yeah.

DAVIDSON: If he was assigned the opinion with . . . to write for the majority, then he followed one of two courses depending upon what he considered to be the magnitude of the case.

GILSON: Right.

DAVIDSON: If the case was not in his view one in which he had a great interest or one he thought was of great moment, then he might ask us to do the first draft of the opinion.

GILSON: Okay.

DAVIDSON: And then he, of course, would go over it very carefully and make such changes as he thought were necessary [and] asking for rewrites or whatever. If it was a case of interest to him and one of considerable moment, then he wrote the first draft . . .

GILSON: Right.

DAVIDSON: . . . and submitted it to us for review and critique.

GILSON: Okay.

DAVIDSON: But I want to make very clear, since I don't know who is ever going to listen to these, and I certainly do not agree with The Brethren theory of . . . of that kind of boloney that was spread in that book. Every opinion of Stanley Reed's was Stanley Reed's opinion. There was no such thing as saying, "Well, write the opinion," and then he would sign it, and the law clerks were the law of the land.

GILSON: Right.

DAVIDSON: That's absolute garbage, and I don't know of any justice that was on the Court who did that when I was there, or has ever done it. Perhaps there has been.

GILSON: Yeah.

DAVIDSON: But writing for Justice Reed was a difficult chore. He was not . . . the other end of the spectrum was Douglas, who just would dictate the opinion almost off the top of his head.

GILSON: Right.

DAVIDSON: Reed, generally, wrote them in longhand on a yellow pad.

GILSON: I have seen thousands of pages . . .

DAVIDSON: Right. [chuckle]

GILSON: . . . of yellow pads.

DAVIDSON: He generally wrote them in draft form on the yellow pad and then had his secretary type them. Or he would dictate them in . . . in part and write them in part. But he agonized over them with . . . with tremendous [chuckle] suffering. Words did not flow easily with him in writing. They did verbally but not . . . not in writing, and he always wanted an excellent product. He was never satisfied with a slapdash type of opinion.

GILSON: Right.

DAVIDSON: But he . . . but . . . but, in other words, it worked one of two ways; either we drafted and he critiqued or . . . or vice versa. But the more important cases were all drafted by him in the first draft. Yeah.

GILSON: That . . . that's . . . that was the impression that I got 00:22:00going through the . . . the opinions. Well, year after year they always seemed to be in his handwriting . . .

DAVIDSON: Yeah.

GILSON: . . . throughout the . . .

DAVIDSON: Yeah.

GILSON: . . . throughout the time.

DAVIDSON: Yeah.

GILSON: I only saw one that was really . . . that I could tell was actually a clerk's handwriting. That was [William D.] Roger's.

DAVIDSON: Well, I drafted, I suppose, oh, three or four opinions. Normally we . . . I typed them, wrote them and typed them, and then he went from there with them. But there's really only one in . . . in the `54 term that he di- . . . di- . . . he almost didn't change a word of.

GILSON: Oh, yeah?

DAVIDSON: It was a very unimportant case. [laughter] Involved . . . it was a criminal case involving corroboration of a . . . of a . . . of a confession.

GILSON: Was it Gonzalez?

DAVIDSON: Was that a . . . was he a congressman?

GILSON: Whew!

DAVIDSON: As my recollection was . . . he was a . . . this guy had 00:23:00something to do with Congress.

GILSON: I've got a list of the cases here, but I don't know.

DAVIDSON: I honestly don't remember the name. That doesn't quite sound right, but . . .

GILSON: Hopper? Well, it makes no difference.

DAVIDSON: . . . well, now, that was an interesting case.

GILSON: Yeah?

DAVIDSON: That's the one involving the Uniform Code of Military Justice, isn't it?

GILSON: Yeah. Yeah, I believe that's it.

DAVIDSON: What . . . what's the full title of that case? Do you have it?

GILSON: I just have Hopper [sic Opper] versus U.S.

DAVIDSON: Yeah. I . . . I . . . or that may have been the one I re-. . . I don't know. That name is very familiar. No, the one . . . the one I am thinking about that had a really interesting history was a case involving a young man who had been in the service and had committed a crime, a major crime as I recall, in Korea. He had later been discharged and subsequently arrested by the military police 00:24:00at his home in . . . in Pennsylvania . . .

GILSON: Right.

DAVIDSON: . . . and taken back into the military for trial under the Uniform Code of Military Justice.

GILSON: Yeah.

DAVIDSON: Justice Reed felt very strongly about that case. It was a . . . it was a real cause celebre with him. He felt that . . . that definitely the code did have the power to reach people who had been discharged from the service, and that the fellow should stand trial. The court was . . . was badly split on the case.

GILSON: Right.

DAVIDSON: And it was originally . . . the original vote was five to four with Reed to write the opinion for the majority of holding the military's power . . .

GILSON: Right.

DAVIDSON: . . . to get him. We wrote the opinion, and it was a very difficult opinion to write, very difficult, and I worked on case for hours and hours and hours and hours. The justice worked on it. We went back to old English law and Napoleonic code . . .

GILSON: Yeah.

DAVIDSON: . . . and all kind of . . . and finally we came up with an opinion, which he circulated, and the chief justice began to waver.

GILSON: Oh, yeah?

DAVIDSON: He had voted with Reed the first time, and so he wavered and we couldn't get a majority. So we rewrote it some and we talked . . . he talked to the chief justice, and so anyway they set it down for re-argument the next term--that was after I had gone--and the final vote was either five [to] four or . . . I don't know, maybe somebody disqualified themselves. I don't remember. But anyway the chief [justice] swung the other way and Reed's opinion, which had been the majority opinion draft, became the dissent.

GILSON: Dissent, yeah.

DAVIDSON: [laughter] I . . . it's funny I can't remember the name of that case, but I think Opper might be the case I am talking about that I wrote.

GILSON: Okay.

DAVIDSON: Now, when I say I wrote I mean I drafted.

GILSON: Yeah.

DAVIDSON: I don't want to give the impression that he didn't . . .

GILSON: Well, that's . . .

DAVIDSON: . . . spot-check it, but it wasn't a . . . but I've always . . .

GILSON: I am sure he kept a . . .

DAVIDSON: . . . it's always been a . . .

GILSON: . . . a leash on you.

DAVIDSON: . . . nice thing to me to see my . . . my hand in the Supreme Court [laughter] reports. Let me look . . .

GILSON: Sure.

DAVIDSON: . . . at the list and see . . .

GILSON: Sure, let me dig it out.

DAVIDSON: Because that one case, it has a very interesting . . .

GILSON: If you can read my writing.

DAVIDSON: . . . yeah. The Teton Indians [Tee-Hit-Ton Indians v. United States] is another very interesting case.

GILSON: Yeah. Douglas and Black dissented on that one.

DAVIDSON: Yeah. Yeah. That was a case that . . . that the justice, I remember, in our debate said, "If . . . if the Indians should win in this case, how would we ever pay them off?" [laughter] Which is a pretty pragmatic view of the thing.

GILSON: Yeah.

DAVIDSON: Gee, see this case that I'm talking about didn't come down in this term. So . . .

GILSON: Okay.

DAVIDSON: . . . the chances are you don't have it. But it was the . . .

GILSON: Yeah, well that's going . . .

DAVIDSON: . . . secretary of the army . . . it was the secretary of the army . . . was the, you know, the party against this 00:27:00individual whose name eludes me. Opper is the case that . . . that I've mentioned about the corroboration with the criminal. That's right. That's how I recognize that name. But this other case . . . and this . . . this case became quite a cause celebre in its day. I think that basically the law has changed now to uphold the Reed position.

GILSON: Really?

DAVIDSON: Yeah. I think that his dissent has . . . has now really become the law due to subsequent cases stemming out of Vietnam and so on and so forth.

GILSON: Yeah.

DAVIDSON: But the Teton [Tee-Hit-Ton] Indians was . . . we had a . . . we had a heck of a time with the Indians, and I've learned a lot about Indians. I helped with that opinion, too. They were members of the Klingit tribe.

GILSON: Yeah, in Alaska.

DAVIDSON: Spelled K-l-i-n-g-i-t, Klingit, and the justice was quite a really . . . he was . . . he was sort of a leading expert in Indian law for the Court.

GILSON: Oh, yeah?

DAVIDSON: He had written probably more Indian cases than anybody else, generally scalping the Indians, I might add. [chuckle]

GILSON: I remember reading some . . . some memoranda from . . . from Douglas after . . . well, after he had retired, after Reed had retired, and one of the . . . he wrote to Reed criticizing one of [Charles] Whittaker's opinions, saying that, you know, "You scalped the Indians, but Whittaker's really doing it." [laughter--Davidson]

DAVIDSON: Whittaker didn't last very long, did he?

GILSON: No, he didn't.

DAVIDSON: This Peters versus Hobby was a great case in its day. That, as you know, involved a professor at Yale, I believe, or Harvard, who had refused to take a loyalty oath.

GILSON: Right.

DAVIDSON: And it was Thurman Arnold who argued that case for Peters and . . . and won for Peters to leave the Senate, but it was quite a 00:29:00case in its day.

GILSON: Yeah.

DAVIDSON: The public concern.

GILSON: How did . . . how did Reed feel about that? The . . . the times were . . . were . . . were tense. People . . . the correspondents, people would talk about how they were supporting Americanism and opposed to . . . to Communism. How . . . how did he feel about the . . . the [Joseph] McCarthy era? How did he feel about . . .

DAVIDSON: Well, Reed . . . you've [got] to see this flow through his opinions.

GILSON: Yeah.

DAVIDSON: I mean it's true in that it was very pro-government.

GILSON: Yes, he was.

DAVIDSON: I mean, he had . . . you know, Stanley Reed in a sense represented the--oh, I would say the . . . the American dream that was the American dream of how a young man should behave and how life should go starting from 1890 to 1920. You know, law abiding, salute 00:30:00the flag, patriotism, all of the things that unfortunately seem to be the kind of corroding around the edges in the last twenty years. Reed . . . Reed had trouble finding the government doing any wrong.

GILSON: Yeah.

DAVIDSON: He . . . he had great faith in the American system and great faith in the justice system and . . . and great faith in public servants by and large. Now, there are notable exceptions. He . . . he went along--my recollection is--against the president in the steel seizure case, . . .

GILSON: That's right.

DAVIDSON: . . . feeling that at that point they had overstepped they bounds. And then, of course, he . . . he did guard the Constitution and . . . and no one could assault that in his view. But on the other hand in . . . in the regulatory type situation or in the loyalty oath situation, he would generally come down on the side that, 00:31:00"It was for the good of the government and good for the cause and therefore . . ."

GILSON: Good for the country.

DAVIDSON: . . . yeah. In other words, he was . . . he was . . . he was definitely pro-government; there is no question about it.

GILSON: Yeah.

DAVIDSON: He was not as sympathetic, for instance, to the great problem of . . . of all that Communist litigation. I mean, he felt that anyone who, you know, was a member of the Communist party was entitled to all due process, but on the other hand they weren't entitled to more than due process.

GILSON: Exactly.

DAVIDSON: And he had great trouble with Black and Douglas, of course, in this area.

GILSON: Yeah.

DAVIDSON: And he had great trouble with Brown against the School Board [Brown v. Board of Education of Topeka].

GILSON: Oh, yeah?

DAVIDSON: That court case was argued the term prior to the `54 term. In our term it was the mandate that came down.

GILSON: Exactly.

DAVIDSON: And the clerks . . . or the two prior clerks had told us he 00:32:00suffered agony with the Brown case, finally joining the majority. And . . . though he was a big believer in civil rights, in . . . in a sense, but, you know, his . . . his . . . his gauge of civil rights as opposed to Douglas' gauge of civil rights was a different scale.

GILSON: Exactly.

DAVIDSON: But one of my first duties when he came back . . . well, actually before he came back, the chief justice had asked that each justice make available one of their law clerks to work exclusively for a period of time in assembling all of the information on integration and segregation of the schools anywhere in the world. And I was . . . Reed picked me to represent him. And we compiled--it's a shame it's never been published, really--we compiled I would say the greatest compendium of information on that issue that ever had been compiled 00:33:00before.

GILSON: Yeah.

DAVIDSON: And, of course, we had Library of Congress going for us and, you know, we had sources . . . unlimited sources.

GILSON: Right.

DAVIDSON: But each of us took various phases. I can remember I . . . I had four or five areas, one of which was Cairo, Illinois, [chuckle--Gilson] in which they had had tremendous problems in . . . in integrating the schools there.

GILSON: Right.

DAVIDSON: And so we each cou-. . . and we . . . we presented to the justices by the time the term started, which was in October, so we did [this] through the summer, this . . . this tremendous volume of information, which really answered every question that you could possibly [think of] both psychological, sociological, law enforcement, financial. It . . . it . . . it dealt with the whole issue. The thing that made Reed go along with Brown, and the thing that made him go along with the mandate, was the fact that he did not believe--and I 00:34:00think with some merit--he did not believe that Brown against the School Board ordered integration.

GILSON: Umhmm. Right.

DAVIDSON: It merely prevented segregation.

GILSON: Okay, I've got that.

DAVIDSON: Now, you may say that's a distinction without a difference, but it isn't.

GILSON: Yeah.

DAVIDSON: And if you read Brown and if you read the mandate . . .

GILSON: Yes.

DAVIDSON: . . . you will find that what Reed believed and signed was true. That he . . . it did not order . . . well, wait, for instance, Reed I don't think would have ever gone along with busing.

GILSON: Okay.

DAVIDSON: He couldn't have possibly gone along with busing. This had nothing to do with a black prejudice on his part, none.

GILSON: Right.

DAVIDSON: I mean, he . . . he really . . . he was a man without rancor or prejudice.

GILSON: Okay.

DAVIDSON: But it had to do with . . . with individual rights of all citizens, not just preferring one over another because of color and that sort of thing.

GILSON: Okay.

DAVIDSON: Reed could never have gone with busing in my opinion. And . . . and he said time and time again, "Well,"--when we were working on the mandate--"well, we're . . . we're not ordering integration. We're . . . we're merely prohibiting segregation."

GILSON: Segregation.

DAVIDSON: And that he could buy. I don't think Stanley Reed could have ever agreed to order integration, not because he didn't feel that the . . . that the blacks or the minority groups ought to have rights, but because he felt it was an infringement on the other people's rights to order just because of . . . of these other guidelines.

GILSON: Yeah.

DAVIDSON: But it was to him a big distinction, that Brown merely prevented segregation but did not demand integration.

GILSON: Integration. That's interesting.

DAVIDSON: And . . . and really if you read . . . if you look through it, Brown did not order . . .

GILSON: That's right. It didn't.

DAVIDSON: . . . but it was then an evolution, in other words, once the foot got in the door . . .

GILSON: It was the primary mover.

DAVIDSON: . . . that's right, and, of course, then the Court started 00:36:00changing and . . . and the Warren . . . you know, the key in Brown is the footnote from [Gunner] Myrdal.

GILSON: Yeah.

DAVIDSON: I mean, that's the key in Brown . . .

GILSON: Okay.

DAVIDSON: . . . is when you say you cannot have equal opportunity with . . . with segregation, which is impossible. Separate but equal is impossible because of the sociological and psychological impacts . . .

GILSON: Right.

DAVIDSON: . . . on the student. That's the key.

GILSON: Okay.

DAVIDSON: And that's the ball that Warren then took with Black and Douglas and ran with it in later decisions.

GILSON: Exactly. Well, of course, actually that came . . . what came down in May of `54 was argued in the last year of Fred Vinson's term . . .

DAVIDSON: Right.

GILSON: . . . and then was re-argued . . .

DAVIDSON: That's right.

GILSON: . . . with Earl Warren.

DAVIDSON: Yeah. Right.

GILSON: Do you think that could have happened with Fred Vinson still as chief justice or not?

DAVIDSON: I don't know. I don't know. I don't think Vinson . . . 00:37:00you see, the thing is, Vinson was not a strong chief justice.

GILSON: Yeah. Yeah.

DAVIDSON: Vinson never really liked being chief justice. I . . . I knew him slightly. We both had gone to Centre College--not together, not in the same class--but I knew him through Centre College, and I knew him again through my wife's family, again he was from . . .

GILSON: Again. Right.

DAVIDSON: . . . eastern Kentucky. So . . . and a dela- . . . what a charming, delightful, super guy he was.

GILSON: Yeah. Yeah.

DAVIDSON: But he was really bored with the Court. Basically he was a polit- . . . Sherman Minton was too.

GILSON: Oh, yeah?

DAVIDSON: Minton . . .

GILSON: Well, I knew he retired fairly early.

DAVIDSON: . . . Minton . . . yeah, he . . . he never liked the Court. I mean these were . . . these were gung-ho, old fire horse politicians.

GILSON: Exactly.

DAVIDSON: And that's an interesting thing about Warren, who certainly was that, but who . . . who . . . who really took hold of his 00:38:00. . . of his job at the Court, which was kind of a surprise to everyone, because I think everyone felt that they were really getting another Vinson.

GILSON: Yeah.

DAVIDSON: Not that Vinson was not, you know . . . his integrity and his character and all [of] that, but he . . . he couldn't control the Court. In other words, he . . . he was not . . . as opposed to a Charles Evans Hughes . . .

GILSON: Exactly.

DAVIDSON: . . . who, you know, ran the Court with an iron hand and the justice had many, many stories about Hughes. But . . .

GILSON: Oh, yeah.

DAVIDSON: . . . but the point is I don't know what would have happened, because there is no question about the fact that Earl Warren formed a focal catalyst to get the Court together to make that decision.

GILSON: Right.

DAVIDSON: Whether Vinson could have done that or not . . . I don't think the que- . . . the issue is that Vinson would not have voted for it. I think Vinson might very well have voted for . . .

GILSON: Well, he just couldn't have pulled the factions . . .

DAVIDSON: No. No. No.

GILSON: . . . to . . .

DAVIDSON: No. I . . . for instance, I don't know that . . . that he . . . that he could have gotten Reed . . .

GILSON: Yeah. That's true.

DAVIDSON: . . . whereas Warren did. So I think that's more it. I . . . I don't think . . . I don't think the issue . . . I di- . . . the issue is going to be decided that way at one time or another.

GILSON: Right.

DAVIDSON: Now whether it would have been delayed because of Vinson or . . . or there would have been a split Court, which would . . .

GILSON: Yeah.

DAVIDSON: . . . have been tragic.

GILSON: Yeah. That's true. Well, that was the landmark because it was a unanimous Court.

DAVIDSON: Well, it almost had to be.

GILSON: It had to be.

DAVIDSON: Yeah. And Reed understood that. I think Reed would have liked to have written at least a concurring opinion, but, again, for the good of the cause [he] realized that it was not the thing to do. He had very little trouble with the mandate. He . . . we struggled with it, all of us in coming up with the . . . a great phrase of "all deliberate speed."

GILSON: Deliberate speed.

DAVIDSON: Which by the way is the work product of the chief justice's 00:40:00law clerk.

GILSON: Oh, yeah?

DAVIDSON: Yeah. [chuckle] I mean it was his phrase. He is now a partner in a Chicago law firm. I can't . . . Earl . . . hmm, first name is Earl and I don't remember his last name. I mean I would, but I don't remember it right now. But . . . but Reed had trouble with the basic decision, but he didn't have trouble with the mandate. Once that decision was made he didn't have any.

GILSON: Of course, you really were . . . were too late for that. Did he . . . did he ever speak of Vinson to you? I am asking [about] Vinson because we also have the Vinson . . .

DAVIDSON: Yeah.

GILSON: . . . papers in the library.

DAVIDSON: Oh, yeah. Of course, they were great friends.

GILSON: Yeah.

DAVIDSON: And . . . and I would say Reed was a . . . was a . . . well, very frankly, I think Reed had . . . had . . . really had the greatest clout under Vinson.

GILSON: Oh, yeah?

DAVIDSON: In other words Reed was . . . Reed could con- . . . I 00:41:00don't say could control Vinson, that's . . . that's too . . . too strong of a statement . . .

GILSON: No.

DAVIDSON: . . . but . . . but . . . but he had much more persuasion with Vinson then he did with Warren. Really, the coming of Earl Warren was the demise of . . . of Stanley Reed's power on the Court. Reed occupied . . . you see, the two senior justices were . . . were . . . were Black and Reed.

GILSON: Exactly.

DAVIDSON: And during Vinson's days the chief leaned on Reed. During Warren days, though there was . . . and I was there, of course, the first full term of . . .

[End of Tape 1, Side 1]

[Beginning of Tape 1, Side 2]

GILSON: Okay. We were . . .

DAVIDSON: I was saying that I was there the first full term of . . . of Warren's reign.

GILSON: Yeah.

DAVIDSON: And there was a great vying, I would say, between . . . well, the various justices to, in effect, to capture Warren. [laughter]

GILSON: Yeah. Yeah.

DAVIDSON: [Felix] Frankfurter was in the fray, Reed was in the fray, [and] Black and Douglas, particularly Black. And I guess the . . . the justices are very conscious of seniority and the chief being new on the job, the new boy on the block, obviously leans on one or the other of the old hands to guide him through . . .

GILSON: Yeah.

DAVIDSON: . . . at least in the early years. Now, it didn't take Warren very long to [chuckle] row his own boat . . .

GILSON: True.

DAVIDSON: . . . but there was vying during my term, I would say, between Reed and . . . and Black to, you know, sort of keep their hand in with the chief.

GILSON: Yeah.

DAVIDSON: And during the Vinson days I would say that . . . that 00:43:00Vinson probably relied more on Reed--and this is . . . I couldn't prove this, it's my supposition, and the justice would never say this, I mean even if it were true he wouldn't say, "Well," you know, "I could really swing Fred around."

GILSON: Right. Right.

DAVIDSON: But I think that's true. I think that's true. And . . . and . . . and Black was very frustrated. And if you notice the number of Black-Douglas dissents during the Vinson days and the number of . . . of Reed majority opinions, you'll see that . . . what I . . . what I'm saying, I think, is . . . is provable in statistics. Toward the end of . . . of my term it became pretty obvious to the justice that Black had won the day.

GILSON: Yeah.

DAVIDSON: And that the ball was . . . and that entered partially into his decision about retirement. He had . . . because he had been . . . of course, during the [Franklin] Roosevelt days, had been 00:44:00involved in the "nine old men" business . . .

GILSON: Exactly.

DAVIDSON: . . . and so forth, [and] had pretty much always committed to himself that he would retire at seventy. And he turned seventy in my year.

GILSON: Yeah.

DAVIDSON: He asked me to stay on as a clerk in order to . . . in toying with his decision . . . not toying with it, but in considering his decision whether to get off or resign at the end of the term. Part of that was he said, "I just . . . I just don't want to break in a new clerk. If you'll stay, maybe I'll stay."

GILSON: Yeah.

DAVIDSON: I unfortunately had . . . he didn't raise this until late in the term, and I had already made arrangements to come with the law firm, and though I hated to leave and hated to leave him, but I felt I had to, and I'd made commitments and a house . . . housing and a lot of things. Well, anyway, he did decide to stay, and Rod Hills, of course, came on, and I promised the justice that I would break Hills 00:45:00in, which I did. And then Hills stayed on another term with him on the same basis that he . . .

GILSON: Right.

DAVIDSON: . . . he . . . Reed, you know, he loved the Court. He absolu- . . . as opposed to these guys who hated it like [Charles] Whittaker . . .

GILSON: Right.

DAVIDSON: . . . and Vinson . . . I [shouldn't] say hated it, but, I mean, didn't enjoy it. Reed loved it. And there was . . . so there was a personal thing. But the other thing was that there was really fear in . . . that the Court was getting out of hand . . .

GILSON: Yeah.

DAVIDSON: . . . philosophically. While he had great respect . . . he had no animosity for any . . . there were no personal rivalries or any of that stuff. But . . . but he . . . he really did fear Black-Douglas in . . . not personally.

GILSON: Yeah.

DAVIDSON: He had high regard for them as individuals, but philosophically he . . . he thought they were a great threat.

GILSON: Yeah.

DAVIDSON: He . . . he did feel some duty not to give up his vote. And then, of course, politics entered into it in one degree or another. Eisenhower was president. He [Reed] didn't want to empty a seat and let a Republican . . .

GILSON: A Republican come in.

DAVIDSON: . . . come in. He wanted to stay till a Democrat got in.

GILSON: Yeah.

DAVIDSON: So all of those things entered in. But part of . . . part of his decision-making process was based upon his concern over the . . . the way the Court . . . or that he could see the Court turning under Warren. So I would say that the . . . the Vinson-Reed liaison was one thing that . . . and when Vinson left then it became the Warren-Black . . .

GILSON: Right.

DAVIDSON: . . . axis or the Black-Douglas, I suppose. They speak of the Warren Court, [but] it was more nearly, in the early days, the Black Court [laughter].

GILSON: Yeah. Yeah. How was his relationship with Frankfurter? I am interested Frankfurter.

DAVIDSON: Excellent. Well, they were very close friends.

GILSON: Yeah.

DAVIDSON: Very close friends, and Frankfurter had great respect for Reed in . . . in an interesting way. Frankfurter, of course, was the 00:47:00ultimate scholar, the ultimate intellectual snob.

GILSON: Oh, yeah.

DAVIDSON: And Reed, certainly by credentials or even talents in many ways, did not any way come up to Frankfurter's standards. But on . . . on the other hand, he respected Reed's complete integrity and dedication. And he told me at one . . . Frankfurter told me at one point, he said, "You know, Stanley Reed is really the ultimate justice. I mean, he . . . he's really just the epitome of what a justice ought to be."

GILSON: Yeah.

DAVIDSON: He said, "I'm too, sort of, feisty and so forth, and so and so is . . . is not dedicated enough, and Reed is really the ultimate. Next to [Oliver] Holmes, he's probably the . . . the epitome of a justice." So there was this great bond of respect, and Reed felt the same way. Now, they disagreed on damn near everything . . .

GILSON: Yeah. That's . . . [chuckle]

DAVIDSON: . . . but . . . but yet with great respect for each 00:48:00other. But Reed was a man who had great respect for all of his colleagues. Interestingly enough, I would say the one he was the highest on was [Harold] Burton.

GILSON: Oh, yeah?

DAVIDSON: Reed used to say . . . did say many times, he said, "I don't know that I'll ever get to meet Jesus Christ," but he said, "if you've met Harold Burton, you have come about as close as you can." [chuckle--Gilson] He . . . he really . . . he just thought Burton was . . . was . . .

GILSON: Yeah.

DAVIDSON: . . . the greatest thing since sliced bread, [chuckle-- Gilson] as a man, you know, as a . . . as a person.

GILSON: Right. Right.

DAVIDSON: And he . . . but he had great respect for all of us. And I . . . I really never heard Stanley Reed ever tear anybody apart.

GILSON: Yeah. Yeah.

DAVIDSON: Never. He just . . . it just wasn't in him. He could disagree and think they were off base and . . . but never was it personal, never did he say "that madman Douglas," or "that idiot Black," or . . . never . . . those words never crossed . . 00:49:00. he di- . . . that just wasn't the way he . . . he handled himself. Frankfurter was, of course, always very close to all the law clerks, and he sort of was . . . he never got over being a professor and . . .

GILSON: Yeah. Yeah.

DAVIDSON: . . . we were sort of his extracurricular students. And because of the relationship with Reed, we saw an awful lot of Frankfurter, including one day when he threw a law book at my co-clerk . . .

GILSON: Oh, yeah?

DAVIDSON: . . . in my office. He used to come in and [chuckle- -Gilson] and argue cases with us. And Joel Kozol, who had gone to Harvard, he made some statement to the justice and infuriated him, and he picked up a book [laughter] and threw it at him. Now, that . . . that shows you, you know, Reed would never do something [like that].

GILSON: That's right.

DAVIDSON: But Frankfurter, of course, was a . . . was a very, very interesting character.

GILSON: Yeah.

DAVIDSON: A nice man, and very nice to clerks, very nice to law clerks. But very intolerant of . . .

GILSON: Yeah.

DAVIDSON: . . . of anyone who wasn't a genius and . . . or who 00:50:00differed with him.

GILSON: That's interesting. I . . . I knew . . . I knew he was fairly emotional.

DAVIDSON: Oh, yes.

GILSON: Douglas was talking in his book how he and . . . and Frankfurter almost got in a fist fight . . .

DAVIDSON: Yeah.

GILSON: . . . in the conference room once.

DAVIDSON: Yeah. Yeah. Yeah. Well, there . . . there . . . there . . . you know, Douglas and . . . and Frankfurter was . . . was . . . was very intolerant of him, but he was . . . he was very tolerant of Reed because he respected Reed and . . . and he really, I don't think, respected Douglas or Black.

GILSON: That's interesting.

DAVIDSON: I mean intellectually.

GILSON: Intellectually.

DAVIDSON: He . . . he thought they were intellectually dishonest, . . .

GILSON: Oh, yeah?

DAVIDSON: . . . I think. I mean, I think that was Frankfurter's view. Reed did not, but Frankfurter I think did.

GILSON: Well, that's . . . what you're saying was the ultimate . . .

DAVIDSON: But I . . . I must say, that I . . . I think Black was . . . was frequently intellectually dishonest. Not dishonest in a personal sense, . . .

GILSON: Yeah. Yeah.

DAVIDSON: . . . but . . . but dishonest in reaching a conclusion 00:51:00that he wanted to reach [and] not worrying about the means or how he reached it.

GILSON: Right. How did the other clerks on the Court receive Reed?

DAVIDSON: Oh, they were all . . .

GILSON: The same?

DAVIDSON: . . . very fond of him. Yes.

GILSON: Very fond?

DAVIDSON: Yes. I . . . I would say he was one of the . . . the most popular justices in . . . and many of them said to us, "Geez, you . . . you guys are the luckiest of all." And in many ways we were because of this relationship [and] the way he worked with you.

GILSON: Yeah.

DAVIDSON: Yeah, I would say he was . . . he was very popular always with all the law clerks because he took the time to go out of his way to speak to them and to get to know them, and you couldn't . . . you couldn't dislike Stanley Reed. I mean, it was impossible.

GILSON: Yeah.

DAVIDSON: There was no ground [chuckle] to dislike him. And I don't think most of the clerks had great, oh, feeling that he, you know, they 00:52:00were at the feet of an intellectual giant or one of the great men of our time or a great jurist, but they had great respect for him.

GILSON: Yeah.

DAVIDSON: And I would say Burton was very similar in that regard. He was . . . he was very much respected by everyone. Tom Clark was not . . . he was a different way, but he was, of course, the eternal . . . as . . . and so was Minton. They were sort of the eternal politicians. They were very friendly, very backslapping and so forth, but you never got the feeling that they were really worried to death about the business of the Court.

GILSON: Right.

DAVIDSON: Whereas you did with Burton and Reed. In other words, Burton and Reed carried their . . . their . . . their justiceships, if that's a word, with . . . with almost religious fervor.

GILSON: Yeah.

DAVIDSON: I mean, they . . . they . . . they were almost priests . . .

GILSON: Yeah.

DAVIDSON: . . . in the temple. And the clerks respected that.

GILSON: This is a question I guess scholars have debated back and forth. Did Reed become more conservative, or was he just staying static in his . . . in his beliefs?

DAVIDSON: Well, I think . . .

GILSON: From `38 to `54.

DAVIDSON: . . . yeah. Yeah. I . . . I . . . I'd . . . I would answer the question that he did not become more conservative, but he was always a conservative.

GILSON: Okay.

DAVIDSON: Now what causes the confusion is the New Deal episode.

GILSON: Right.

DAVIDSON: [chuckle] But there again he . . . he was first . . . well, not first. First he was, you know, just a man of high character and . . . and high morals and high integrity, and a family man and all of that.

GILSON: Right.

DAVIDSON: But moving into his professional life, he was first an advocate. He was a lawyer.

GILSON: Right.

DAVIDSON: And he was a dedicated lawyer for hire. In other words, he . . . he understood--which many people don't, particularly 00:54:00laymen--that a lawyer can stand up and mouth all of kinds of things which the lawyer doesn't believe in at all, or which he may differ with personally, but his job is . . . is to represent his client. And Reed was first and always--as a . . . as a lawyer, not as a judge--but he was an advocate, and therefore when he was "hired" by the New Deal administration or Roosevelt, he was their man. And if the president said, "We are going to do this," that was what the client said and his job was to do it. Like the Gold Clause case, of course, which was . . . I suppose his . . . his really first great claim to fame, in which he worked out the so-called "Hawaiian Doctrine," saying that they didn't really mean what they said.

GILSON: Yeah.

DAVIDSON: Stanley Reed as a man would have . . . would have said, I think--although we never discussed it--but I think he would have said the government should have paid off in gold.

GILSON: Yeah.

DAVIDSON: But that wasn't his job. His job [chuckle-- Gilson] was . . . he was hired to figure a way where they didn't have to pay off in gold.

GILSON: Right. Right.

DAVIDSON: He was hired to defend the N.R.A. [National Recovery Act]. The . . . he was hired to defend the A.A.A. [Agricultural Adjustment Administration]. He was hired to . . . he was an advocate, and I think many of the positions that he took as an advocate [such as] solicitor general [or] with the Reconstruction Finance Corporation, were not Stanley Reed principles at all, . . .

GILSON: But . . .

DAVIDSON: . . . but . . .

GILSON: . . . Stanley Reed, lawyer.

DAVIDSON: . . . the lawyer.

GILSON: Yeah.

DAVIDSON: Right. Now, once he's freed of the advocacy requirements, then he can be what he independently wants to be, a decision-maker. Before he was an advocate, [and] now he's a decision-maker.

GILSON: Right.

DAVIDSON: No, Stanley Reed was always a conservative. He . . . he was a . . . he was a . . . he was a conser- . . . he was typical of the conservative Democrat that we know and have known in our history in the South.

GILSON: Right.

DAVIDSON: A big believer in . . . in rights and due process and in . . . in doing the right thing, and God, mother and the flag, but very conservative, particularly in fiscal matters, and . . . and very loyal to the government. No, I . . . I don't think he changed. I don't think he got more conservative. I think he just was freed.

GILSON: He just . . . yeah.

DAVIDSON: He was freed of the bounds. And, you know, how can this man . . . this . . . but this is, you know, this is journalist laymen kind of . . .

GILSON: Yeah. Yeah.

DAVIDSON: . . . analysis.

GILSON: Right.

DAVIDSON: How can this guy stand up and . . . and defend the agricultural act or the . . . the N.R.A. or whatever, and then two years later write an opinion that says the government can't do these 00:57:00things.

GILSON: Right.

DAVIDSON: And the answer to that is it's the difference between a judge and an advocate.

GILSON: Exactly. Exactly. Well, we mentioned his health earlier. How . . . how was his health during your term?

DAVIDSON: It was very good. He had no . . . no major problems . . .

GILSON: Yeah.

DAVIDSON: . . . during my term, and as far as I know his . . . his . . . his only problem had been during those horrible day[s] . . . he . . . well, he . . . his . . . his explanation was that he said that he had ga- . . . he had gained . . . he had never gained more than one pound a year, but he had done that for forty years. [chuckle--Gilson] And so he was overweight. If you see his early pictures, he was pretty chubby.

GILSON: Yeah, he was.

DAVIDSON: And this high blood pressure and heart problems hit him, and he . . . he was very concerned about it. Of course, his father was a doctor and he was sort of . . . well, he wasn't a hypochondriac by a long shot, but he was . . . he was more sensitive to health then 00:58:00the average guy.

GILSON: Yeah.

DAVIDSON: And so he was told to stop smoking and to lose weight, and he's a guy who could take orders, and that's what he did [chuckle-- Gilson]. And he stopped smoking and he stopped . . . he . . . he observed the dietary restrictions for the rest of his life and, my God, lived to [laughs] . . .

GILSON: He was 95.

DAVIDSON: . . . long . . . longer than . . . than most people. But he was very . . . he was very health-conscious. He was a great walker and walked frequently from the Mayflower [Hotel] to the Court and back, and was very concerned about his diet. He was a . . . he was a very disciplined fellow, a very disciplined fellow. I mean, you know, you . . . you could almost set your watch by what time he'd come in and what time he'd go out.

GILSON: Oh, yeah?

DAVIDSON: And he was . . . had much better discipline than most of us do [chuckle], particularly in the health field.

GILSON: Right.

DAVIDSON: I say as I puff my cigarette. [chuckle--Gilson] But no, he had no . . . no health problems at all.

GILSON: Yeah.

DAVIDSON: He's . . . he . . . I . . . we could see him aging. I would say he . . . his . . . as . . . and as time went on it got worse. He had arteriosclerosis . . .

GILSON: Yeah.

DAVIDSON: . . . which finally, you know, really kind of rendered him to a vegetable.

GILSON: Yeah. Yeah.

DAVIDSON: But . . . and . . . and you could see signs of that in the sense that he would become a little forgetful. But nothing major. And . . . but no, I . . . his health was excellent.

GILSON: Yeah. I was just wondering if . . . well, I mean, since he spoke to you of retiring, if . . . if the health had anything to do with that . . .

DAVIDSON: No. No.

GILSON: . . . at all?

DAVIDSON: No. No, it was pure- . . . purely his . . . his feeling that, "By golly, justices ought to retire. They oughtn't to stay on too long."

GILSON: Yeah. Get some new ideals and new . . .

DAVIDSON: Yeah. And . . . and then he . . . he . . . well, 01:00:00he was very quick to recognize the . . . the . . . the aging process. I mean, he . . . it wasn't something that he tried to hide, or that we could see and he didn't. He . . . he . . . you know, he knew he wasn't as able as he had been to do all this tremendous volume of work and . . . and stay as alert and quick as he'd al- . . . as he had been.

GILSON: Yeah.

DAVIDSON: No, it . . . it had nothing to do with his health. It had to do with health in the sense of aging only, but not any . . . not any immediate health problems. And I . . . I . . . I really believe had there been a Democratic president . . .

GILSON: He would have retired earlier?

DAVIDSON: . . . and had Vinson still been the chief justice, I think he probably would have retired at seventy.

GILSON: That's interesting.

DAVIDSON: That's pure speculation. But he hated to retire. I mean, he . . .

GILSON: Oh, yeah. Well, he . . . he worked for so long afterwards.

DAVIDSON: You know, sometimes we reach conclusions on moral grounds that 01:01:00we really want to reach on personal grounds.

GILSON: Right. Right.

DAVIDSON: How much of it was, "I want to stay on, and I want to find an excuse to stay on," I don't know. But . . . but no, it was probably the idea that he'd always said he would retire at seventy, and he agreed with Roosevelt's position and . . . and now here he was, and what was he going to do about it?

GILSON: Right. Right. He finally had to cross the bridge. What do you consider the role of the Court, if anything? As a referee, or as a . . .

DAVIDSON: The Supreme Court?

GILSON: Yeah.

DAVIDSON: Oh, no. I . . . no. The Supreme Court is a . . . is a policymaking body. [chuckle]

GILSON: Okay. Yeah.

DAVIDSON: No. No. I . . . the referees are the courts of appeals.

GILSON: Okay.

DAVIDSON: They're the ones who, you know, decide who's right and who's wrong in any special litigation. The . . . the . . . the particular individuals or the . . . the particular subject matter of 01:02:00a Supreme Court case is completely immaterial.

GILSON: Yeah.

DAVIDSON: It's only a means to an end, and the . . . the Court's cert power has developed the idea that we only take those cases in which we can make some pronouncement that's going to have wide-reaching results.

GILSON: Yeah.

DAVIDSON: But to take a case to decide who's right and who's wrong or whether some . . . somebody was put in prison erroneously is . . . is . . . is . . . is really not . . . not a part. And . . . and then to hear our current chief justice talk, he even thinks the lower courts maybe are doing too much. [chuckle] But no, no. The Supreme Court of the United States is . . . is . . . is . . . is the interpreter of the Constitution as . . . as our history has developed purely on policy grounds.

GILSON: Yeah.

DAVIDSON: And the administration of [the] justice system, again, which 01:03:00is policy decisions. It . . . it . . . the question of deciding the merits of the specific litigation are completely immaterial.

GILSON: Right. Well, I think that's about all I had to say.

DAVIDSON: All right, sir.

GILSON: Would you care to add anything else?

DAVIDSON: No, I don't think so. I . . . I think that the fact that the justice left his papers at the University of Kentucky Law School [sic University of Kentucky Library Special Collections and Archives] is a . . . is a wonderful tribute to his dedication to his state which he had great loyalty to, because he could have left them at a lot of other places. And he really had no connection with U. of K. as you know, except that he was born in Kentucky.

GILSON: That's the truth.

DAVIDSON: So I think he was a . . . a loyal son of our state that we can all be very, very proud of. I know of no blemish on his . . . on his career, and that's hard to say for a man that's been in public life and so forth, that . . . that he never stumped his toe. He 01:04:00didn't go swimming in any of the pools with any go-go dancers, or have sex on the steps of the capitol. [chuckle]

GILSON: Right. Right.

DAVIDSON: No, he was a . . . he was a great guy and the law [inaudible], I think testified to . . . to that. The dinners every year were loyally attended, the . . . the . . . the personal affection that was felt was very, very strong.

GILSON: Did all the justices have the same dedication as the clerks, . . .

DAVIDSON: No. No.

GILSON: . . . or once . . .

DAVIDSON: No.

GILSON: . . . their term was over they were . .

DAVIDSON: No. No. In fact, ours was the only one that had the annual dinners. Some had dinners spasmodically, but ours was the only group that had a . . . had the kind of relationship that I know of. Now, of course, you know, I don't know what other justices are doing now . . .

GILSON: Right.

DAVIDSON: . . . but in those days . . . well, I think all . . . all the clerks felt some loyalty to their mentor, but nothing like the 01:05:00Reed clerk situation which has remained a very strong, kind of, "old boy" network.

GILSON: Yeah. Yeah.

DAVIDSON: And it still lives today.

GILSON: Okay.

DAVIDSON: Very good.

GILSON: Well, thank you very much.

DAVIDSON: Yes, sir.

[End of Interview]