Interview with Bennett Boskey, March 18, 1981

GILSON: Well, Mr. Boskey, I guess first of all could you tell me a little bit about yourself: how you came to be a clerk, what your education was?

BOSKEY: Well, I had gone to Williams College, and when I finished at Williams College I thought I wanted to be an economist, and I went to the University of Chicago to do graduate work in economics for a year. 00:01:00Sometime in the summer following that year I came to the conclusion that instead of being econo- . . . an economist, I wanted to be a lawyer. And it was rather late in the summer--it was about the beginning of August--that I decided that I would apply to two law schools, one Yale and one Harvard. And at Yale Law School they said it was a small class that they had, it was full, and they'd be delighted to have me, but they had no room. At Harvard they weren't quite that full and they said come along, and that's how I happened to get to the Harvard Law School. While there . . . I was the class of `39 at the Harvard Law School, and while there I was on the Law Review and I got to know Professor [Felix] Frankfurter moderately well. We were in one of his seminars in federal jurisdiction in my third year, and that 00:02:00was the year he was appointed to the [Supreme] Court in the middle of the year. He had had the power of appointment, so to speak, of the law clerks of the two Hands in the Second Circuit. He appointed the law clerks, sight unseen, for Judge Learned Hand and Judge Augustus N. Hand. And as far as I can recall in those days, he never went to see either of the judges. Professor Frankfurter designated you and that was it. And in that way I became a law clerk of Judge Learned Hand. I had been designated by Felix Frankfurter. There was a path of progression that did not always ring true or follow, but some of the law clerks, at least, who went from Harvard Law School to the Second Circuit to clerk for either of the . . . of the Hands or in . . . 00:03:00also in my year, John O. Boyle, another officer of our class in the Law Review, clerked for Judge Patterson that year. But in any event, there was a tradition of some mobility of moving on to a Supreme Court clerkship for some of us in some circumstances. And I think that Felix Frankfurter had been very instrumental, really, in the fact that my predecessors as law clerks had ended up with Stanley Reed. Not, of course, the first one, because Stanley Reed's first law clerk was Harold Leventhal, whom Stanley Reed knew directly from the Solicitor General's office. He had been editor-in-chief of the Columbia Law Review. But, certainly, the second law clerk was John Sapienza, and 00:04:00he had been president of the Harvard Law Review and then a Gus Hand law clerk, and I'm sure it was just Frankfurter's recommendation that brought him down to the Supreme Court to be Stanley Reed's law clerk. In the case of Phil Graham it was the same. Felix Frankfurter had known Phil very well at law school. Phil was the president of our Law Review. I'm sure he made the recommendation to Stanley Reed that he take Phil right out of law school, which is what happened. And in my case, Felix Frankfurter recommended to Stanley Reed that he take me from Judge Learned Hand and that's how I got there. Now, I was pleased to find that Stanley Reed was a little more cautious than the Hands were. They did not take their law clerks sight un- . . . he . . . he did not take his law clerks sight unseen. He asked me to come 00:05:00down and meet him sometime in the spring of that year, which I did. I remember coming down for a weekend and meeting him. And he was at least satisfied with me and I was delighted at the chance to come work with him. And, therefore, when the term was over in New York, we fin-. . . well, I got married on July 3rd of that year because my judge, Learned Hand, had to go up to Albany to set on a three judge court case and that gave me a few days off [chuckle--Gilson]. But, at any rate, I came down here, I guess, in August of 1940 to begin work on the accumulated pile of certs [certiorari] that builds up during the summer. There's no question that it builds up. I mean, even in those days, when the statistics were far smaller and more moderate as to how 00:06:00many cases were docketed at the Court, there was an awfully big pile of summer certs that would come along and that's where one would begin his work as a fresh law clerk.

GILSON: Yeah. Well, I guess . . . that . . . that's interesting that Frankfurter was the prime mover along all those lines. He assigned . . .

BOSKEY: Yes. Now, I think later on as time went on, he had much less to do with the process of the selection of the justices' law clerks. Probably by a few years after me, his influence on that may have become invisible and almost nonexistent.

GILSON: Perhaps.

BOSKEY: But at the beginning, he happened to know personally some of the people in this sequence. The justice was glad, I think, to get some suggestions, and that's what happened.

GILSON: Umhmm. What were your initial impressions of Stanley Reed? You say you were in the class of `39, so he had . . . would barely have 00:07:00been appointed to the Court . . .

BOSKEY: Well, . . .

GILSON: . . . by then.

BOSKEY: . . . no, he . . . he had . . . yes, but I didn't come down until the summer of 1940.

GILSON: Right.

BOSKEY: That means he had had three law clerks before me: Harold Leventhal for half a term, John Sapienza for a full term and the . . . Phil Graham for a full term. I think, apart from the meeting that I had with him in April of 1940 so that he could look me over, I think the next time I actually saw him was sometime probably in late July, maybe early August, of that summer, 1940, at a big wedding in Long Island. A classmate of mine named John Ferguson, who is now deceased, that spent a long time ultimately in the State Department and was our 00:08:00ambassador to, I think, Morocco. My recollection may be faulty on one . . . but in any event, he was marrying the daughter of Arthur Ballantine of the Root Clark . . . the then Root Clark firm in New York, and had a large country wedding at a country club in Long Island. I remember seeing the justice there. And then we . . . took up the kind of daily contact that a new law clerk has with a justice not long thereafter. I don't remember exactly when. Initially, he . . . he certainly seem genial. I suppose a justice always wonders just what his new law clerk is going to be like, and I'm sure the law clerk wonders what it's going to be like working with a new justice. 00:09:00I had come from the environment of the Second Circuit in New York, which in many respects is quite, quite different. It's a court that sits in panels of three. It sits on somewhat different types of cases, although some, of course, are the same. It's a very different atmosphere. But at least I had some experience with how judges worked and how courts worked. But I had no real direct knowledge of the inside workings of the Supreme Court and that's something you just begin to learn as you . . . as you work at it.

GILSON: Well, . . .

BOSKEY: There were other law clerks of other justices around by the time I arrived, and Edwin McElwain, who is Chief Justice [Charles] Hughes' law clerk, had been there the year before and . . . so there were 00:10:00other law clerks to talk to and to learn some things from as we all sort of began to prepare for a hard year's work.

GILSON: Yeah. Did your . . . did your impressions of him change? I mean, you said he was genial at the beginning of the year?

BOSKEY: No. He was always . . .

GILSON: [inaudible] . . .

BOSKEY: . . . very genial, and I . . . I think one of the outstanding aspects of his whole character and personality was that he was a kindly, gentlemanly person. And he was quite fond of his law clerks and genuinely interested in them as people and, I think, knew how to encourage them to do good work and get the best out of them. And he always was so appreciative and generous to his law clerks in characterizing the way in which they were helping him and had been 00:11:00helping him. So that, I think, that all his law clerks, in due course, found this to be the case.

GILSON: Okay. Well, you talked a little bit about certs before. Could you describe the year as . . . as a Stanley Reed law clerk, what you would do?

BOSKEY: Well, there isn't any one single thing you would do. The cert load varied from week to week. Normally, the . . . whoever was his law clerk would--at least this was true in my time, and I think in his case it never ceased to be true--would take a preliminary look at the petitions for certiorari that the clerk's office would circulate, together with a conference list, and would write, hopefully, short memoranda for the justice. I don't think that long ones were encouraged by him. He . . . that does not mean he didn't look at 00:12:00the petitions for certiorari himself; of course he did. But he liked to do it having to go with it some short memorandum that he could read first that would sort of sum up how the case got there, what the claim question was, whether the law clerk had found anything in it that brought it was within the Court's rather special criteria of cases deserving discretionary review, and things of that sort. Now, it is true that there were other justices who, from time to time, have not used their law clerks in connection with the petitions for certiorari. I have come to the conclusion that they can do them after a little bit of experience, they can do them fast enough themselves and make up their own minds sufficiently quickly that they'd rather not have their law clerks' time invested in doing the certs. In my 00:13:00day, I think that was not true of any of the justices. Let's see, Justice [William] Brennan, who developed that habit, was not on the Court when I was a law clerk either the year I was with Justice Reed or the two later years I was with Chief Justice [Harlan] Stone. But . . . and, actually, there were interludes when I was there when Justice Frankfurter would say to his law clerk, "Don't you do any certs this week. I'm going to just do them all myself. I want you to be working on this or that opinion. Don't interrupt what you're doing." So, it . . . it . . . there . . . there was some variation. But normally in those times, the justice would look to his law clerk to do a preliminary analysis of the case on a petition for certiorari, or on an appeal as of right on the jurisdictional statement, write a little memorandum and, presumably, at the bottom of the memorandum 00:14:00have a recommendation that would say either "Grant" or "Deny," or "Hold for some other case," or something like that. That would be the normal event on the preliminary go-rounds on the cases. Now, along about that time, there began to be a substantial increase in the number of in forma pauperis cases filed with the Court. Primarily criminal cases. Not exclusively, there were some few civil cases, but basically they were criminal cases. And in those days, it was normal that only one copy of a petition for certiorari would be filed in an in forma pauperis case, and the practice then, which was somewhat different from what has later evolved, was that it would first go to the chief justice. And the chief justice, if he thought it was entirely a frivolous case and that nobody would disagree with him on this point, 00:15:00he would then not circulate it. He would report the case to the conference and, of course, on his report, if anybody said, "I'd like to look at that one," of course, he would circulate it. But there would be quite a number not circulated in those days, and it's . . . the chief justice's report would be what they would have. On the other hand, if anything beyond a frivolous point might be involved, even though the chief justice, who that year was still Chief Justice Hughes would c- . . . even though he thought that there was no chance that certiorari might be granted, he nevertheless might circulate the case for the other justices to look at. And it would circulate from one justice to another in turn, so that the handling of the in forma pauperis cases took a while sometimes. Those would therefore . . . a fair share of them, they would be coming around to Justice Reed's chambers and, again, his law clerk would look through those and write 00:16:00a preliminary memorandum on them. So those were the things we did as a preliminary function.

GILSON: Did you have . . . or let me put it this way. What . . . what part did you have in researching the opinions?

BOSKEY: Well, that would vary . . .

GILSON: Did you have to do it all, or . . . ?

BOSKEY: . . . that would vary a great deal from case to case. In some cases you had very good briefs on the merits; in other cases the briefs were extremely poor. The level of advocacy and brief writing among the members of the bar at the Court was a big variable, and a great deal of . . . even in cases where the briefs were quite good, a great deal of independent research would be done within the Court, particularly 00:17:00by whoever was writing the opinion. Now, in Stanley Reed's case, I think it . . . it was a shared task. He loved to pore through the statutes books and the cases himself, but he expected his law clerk to do the same thing. And it . . . from case to case it might vary as to who would do what or how much duplication might occur. But he was not one who just relied on a law clerk to dish out a memorandum based on a lot of research, and then he would accept the memorandum. That just wasn't his way of working. He liked to feel he had gone back and checked things out and done a little, maybe, independent searching for cases that maybe his law clerk had missed and things of that sort. He was a terribly hardworking justice all the time I knew him. And from my conversations with other law clerks later, I think that attribute 00:18:00followed him throughout his judicial career.

GILSON: Yeah. What . . . what kind of a writer was . . . was Reed? Was he . . .

BOSKEY: Well, I don't . . .

GILSON: . . . did it flow or . . .

BOSKEY: . . . know how much you have read of his opinions. He did not have the easy, facile writing style that I have observed in some other jurists. For an example, Judge Learned Hand probably, in my experience, found it easier to write. I'm not now talking only of the result and of the stylistic wonders of his results. I'm talking about the process of writing. Judge Learned Hand would sit down with a yellow pad and write out in longhand what would turn out to be, maybe, a fifteen or twenty typed page opinion without . . . almost without hesitating, when he made up his mind what he wanted to write about. And it would come out . . . then he would carefully work 00:19:00it over after it was typed up. I don't mean that first products were last products, but he just had that facility for composition that was wonderful to behold. Justice [Robert] Jackson, who was on the Court during the period that I was a law clerk, had an almost similar facility. He found it very easy to sit down and go from A to B at great length, and it would come out the way he wanted it. He would then work it over again, but he found it easy . . . very easy to write. I think Justice Reed found it was more of a struggle to write what he wanted. And one consequence of that was that when he got things down on his yellow pad, which was what he frequently used to write on, and he then had it typed up because he had gotten . . . he had struggled through the process of composition to get what he thought 00:20:00he wanted. He was a little less amenable to suggestions for change sometimes [chuckle--Gilson] than some other people who found it easier to write would be. But he . . . on the whole, he understood clarity and style very well. And he would work hard to make things clear and to avoid ambiguities and to prevent opinions from saying two things to two people. That . . . he had a very good understanding of that, and worked very hard as it . . . at it. You know, his style has to speak for itself to anybody who reads it. It was on the whole, I think, very clear, not unduly Germanic or otherwise unduly complex in the sentence structure, but not with the great literary flourishes 00:21:00we've come to expect from a few great writers in the law.

GILSON: Right. Did you . . . what . . . well, I want to get back . . . what . . . what role did you have in . . . in the opinion writing? Would he . . . would he talk to his clerks, or in this case his clerk, and . . .

BOSKEY: Well, he would always talk to his clerk about . . . he would tell you briefly. The Court in those days had its conference on Saturday. That's something that long since has changed. It no longer meets on Saturdays except in emergencies. But in those days the normal conference day was Saturday, and he would . . . the . . . the Court would take its vote on cases on Saturdays and the assignments would come out either from the chief justice who, in the Supreme Court, as you probably know, has the power of assignment if he's in the majority in a case. And if he isn't, then the senior associate justice in the minority has the power . . . in the majority, has the power 00:22:00of assignment. But the assignments would come out either Saturday night or Monday morning, as the case may be, and he would talk to his law clerks some about what had happened at conference, how the vote had gone. And when he would get his assignment sheet, when the assignment came out, it had some sort of a preliminary discussion about what he wanted the opinion to embrace. And he might ask the law clerk to do a rough draft of certain portions of the opinion. He was . . . he did more of his own first drafts than many other justices have from time to time. That was just part of the way he worked. I don't say that he was always the author of the first draft, but in . . . certainly, in my 00:23:00experience, much more often than not. I can really remember only one opinion which . . . in my year, which it could be said I had done the first draft from start to finish. It was a terribly short opinion. I think it was the shortest opinion he wrote that year. [chuckle-- Gilson] I did a draft for him because he was working on another opinion that week and he liked it. So, he . . . he used most of it. It was a little case called Best against Maxwell [Best Company, Inc. v. Maxwell], which resolved the d- . . . a tax on drummers under the Commerce Clause. And the Court unanimously held that the state tax violated the Commerce Clause. To have managed . . . achieved a result and gotten out an opinion that Justice [Hugo] Black and [William O.] Douglas would go along with on that kind of a question, because it was put solely on the ground of discrimination. That it was a 00:24:00discrimination against interstate commerce, not that it was a burden.

GILSON: Oh.

BOSKEY: It was a discrimination. And they went along with it. It was a unanimous opinion. It was terribly short and he . . . he didn't take it exactly as my draft had it, but I could recognize in the final product a little more of my draft than was usual. But basically, he did a great deal of his own first drafts.

GILSON: Okay. Well, we . . . we touched on some of the other members of the Court. I'm interested . . . well, Hughes was chief justice when . . .

BOSKEY: Umhmm.

GILSON: . . . you were working for Reed.

BOSKEY: Umhmm.

GILSON: What was Hughes like? There's always the . . .

BOSKEY: Well, . . .

GILSON: . . . I mean . . .

BOSKEY: . . . I'll have to tell you an anecdote about him . . .

GILSON: Okay.

BOSKEY: . . . because . . . and maybe it will tell you more about me, although Stanley Reed will be sort of in the middle of the anecdote. But this was the last year that Hughes on the Court. He didn't tell anybody that he was going to retire at the end of year, but he . . . as I recall--I looked up the date the other night--it was early 00:25:00in June of that term of 1941 that he wrote his letter to the president saying that he was retiring at the end of the term, and I don't believe he said a word to anybody else on the Court until that point. And it was not assumed that he was going to do that, although he was 7- . . . must have been about 78 at that time. And as a matter of fact, I think I remember McElwain telling . . . his law clerk telling me after this happened and he had sent in his letter of resignation, he had said to McElwain, "McElwain, I just can't face another summer of certs." [chuckle] But apart from that, the . . . he was a man who budgeted his time very carefully. He was quite busy. He was perhaps the most efficient chief justice the Court ever had. He was not easily 00:26:00available to people whom he didn't need to see. And the result was that the other justices' law clerks really never got to see him. The only time I really got to meet him was on a very special occasion. I think it was during January of that year . . . January of 1941. President [Franklin D.] and Mrs. [Eleanor] Roosevelt had a reception for the judiciary at the White House. It was the last such reception before the war called off all such receptions. And the law clerks were among those invited, and their wives. And so we went, shook hands with President and Mrs. Roosevelt, and we were standing around at some point, my wife and I, and Stanley Reed said to me, "Would you like to meet the chief justice?" And I knew I . . . he knew I'd never met him before and he . . . I said, "Of course we would." And 00:27:00he said, "Well, come over with me, and I'll introduce you to the chief justice," and he did. And we got into some slightly pleasant kind of conversation, the . . . the type you get into at a . . .

GILSON: At a reception.

BOSKEY: . . . large reception. And Chief Justice Hughes said what a wonderful opportunity it was for a young man to be a law clerk. He said, "I always wished that when I was a young man I had had such an opportunity." And my wife looked him right in the eye and she said to him, "Think how far you might have gone." [laughter] And he laughed. But that is really the only time I . . . apart from passing him in the hall and things of that sort, that I really had a conversation with Chief Justice Hughes. And I think that the same would be true of the other justices' law clerks, that they just didn't have the opportunity 00:28:00to see him. Now, we heard a great deal about him from our justice or from some other justice reporting on how he conducted the conferences, and he was wonderful at them. He conducted them in a very efficient manner. Maybe once in a while a justice felt he had been cut off a little bit in . . . but not much and he ju- . . . just was a marvelous presiding officer at the conferences of the Court. The same thing was true at a . . . as a . . . his manner . . . with respect to his manner of conducting the oral arguments in court. He . . . he just was phenomenally good at it. He kept people more or less to the scheduled time for oral argument. McElwain, in a little article he wrote about Chief Justice Hughes in the Harvard Law Review, repeated the story that he watched the time so carefully he had once 00:29:00had cut off a lawyer in the middle of the word "if." [chuckle--Gilson] And he . . . he just had a gift of both running the Court on schedule, and in connection with oral argument, if he found a lawyer was floundering around, which often happened, he would restate the lawyer's case in about thirty seconds far better than the lawyer had, and said, "Isn't . . . is this the point you're making?"

GILSON: Yeah.

BOSKEY: And he . . . and would concentrate attention on what the true issue in the case was. He was just a man with wonderful capacities.

GILSON: That's interesting. I know, wa- . . . was he a better jurist than he would have been--I mean this is speculation on everybody's part--had he won the presidency?

BOSKEY: Who knows?

GILSON: Yeah, true.

BOSKEY: Who knows?

GILSON: That's speculation.

BOSKEY: Who knows?

GILSON: Leave it alone.

BOSKEY: Pusey's book . . . biography on him, if you've ever . . 00:30:00. never read it, has . . . it's a two-volume biography that was auth- . . . an authorized biography and he had some conversations with Hughes, and he had a lot of notes from Hughes, and it has a lot of interesting personal material about Hughes in it in addition to the official material.

GILSON: Yeah. How many of the "[Nine] Old Men" were still on there, from the nine infamous . . . Let me see if there's a . . .

BOSKEY: Well, . . .

GILSON: . . . picture.

BOSKEY: . . . Hughes was the . . . it depends on who you're referring to as the "Nine Old Men."

GILSON: Yeah.

BOSKEY: Hu- . . . Hughes had presided over the Court that was so referred to. Justice [James] McReynolds, whom you'll see in that picture . . .

GILSON: Yeah.

BOSKEY: . . . on the wall over there, . . .

GILSON: Just the left.

BOSKEY: . . . sitting next to Hughes, he was on the Court this term that I was with Justice Reed for about half the year. And he was a very strange man in . . . in some ways. He had passed into a time 00:31:00of life when he was more than usually difficult for some people to get along with. For example, I think that in the brief time he was there that term, he . . . I think he had four law clerks in succession. One he fired for smoking. I forget what led to one falling-out after another, but he was . . . had become somewhat peremptory and crusty. Now, he was not always that way. Dean Acheson once made an address at the annual dinner of the American Law Institute describing what the Court was like when he, Dean Acheson, had been law clerk to, I guess, Justice [Louis] Brandeis, or H-. . . no, I think it was Brandeis. And during the period he was there, which was a much earlier period, he . . . he found that there was a certain charm about McReynolds 00:32:00that is not evident in some of his later actions. But . . . so, he was there. Now, the next senior justice was Justice [Owen] Roberts. Well, excuse me.

GILSON: Probably it . . .

BOSKEY: [Harlan] Stone . . . Stone was . . .

GILSON: . . . would had to have been Stone.

BOSKEY: . . . Stone was senior to Roberts, and then Roberts, and then [Hugo] Black, the first of the appointments that President Roosevelt had made. But McReynolds was only there half of that year . . . term. It was always said about him that he was very kind to children. Well, I'm sure that was a nice side of his character. [chuckle--Gilson]

GILSON: Then there's the . . . the Black-Douglas liberal block. That . . . that wasn't so much of a liberal block than the whole . . . all the Roosevelt appointees, I guess, in your term were the new 00:33:00liberals, although Reed and . . .

BOSKEY: Well, these labels "liberal" or "conservative," they get thrown around awfully loosely and people who try to apply them across the board find it very hard to fit people into the categories or the pigeonholes. It just doesn't work. But, I suppose over the course of years, you could pick out some issues on which you would say, well, certain of the Justices tended always to vote together and you can predict that they might be on a particular side, and some of the others on another side, and some, unpredictably, in the middle. And as you probably know over later periods--not this early, but over later periods--Justice Reed began to be referred to in some of the popular literature as a "swingman" on the Court.

GILSON: Oh, yeah. "Inevitable swingman." How did he get along with Frankfurter at this time?

BOSKEY: Very well.

GILSON: Very well?

BOSKEY: Yeah. But, you know, this business about justices not getting along with each other is grossly exaggerated. They certainly disagree with each other on many, many things. But you . . . I think if you talked to enough people who have been around the Court and seeing them functioning together, there's a personal rapport between them most of the time. And I think that is lost sight of in this recent book The Brethren, which tends to emphasize a kind of personal animosity 00:35:00that just . . . I . . . I can't truly say that it's wholly non- existent, but it just doesn't figure very largely in . . . in . . . in the normal life of the justices with each other. There had been times when there have been such cases. If you go back to about 1920, for example, there was a Justice [John] Clarke, spelled C-l-a-r-k-e, from California who was on the Court, who resigned after a few years on the Court, and it was widely said that the reason he had resigned was that he couldn't stand Justice McReynolds.

GILSON: Oh!

BOSKEY: And I ne- . . . never knew for sure how the trouble between them had aris- . . . arisen. But it . . . I, at one point, ho- . . . heard a story, which may or may not be apocryphal, that 00:36:00at the end of the term once, Justice Clarke had had an . . . a train to catch on the last day of the term and he left the bench at a time when McReynolds was delivering an oral opinion. And McOr- . . . McReynolds took a personal affront to this. Well, I don't know if that's true or not, but the fact is that there have been a few situations on the Court when people didn't get along. And as you probably have heard, it is said that McReynolds didn't speak to Brandeis, and it's said that he barely spoke to [Benjamin] Cardozo and things of that sort. But basically, the justices really, as human beings, do get along pretty well together on a long-term basis.

GILSON: Yeah. What kind of . . . I have . . . I have a list of cases here. What kind of . . . were these mainly New Deal 00:37:00legislation?

BOSKEY: Which cases?

GILSON: Well, of course, they're not all, but this is pre-war time, and I'm . . . I'm wondering . . .

BOSKEY: Are you talking about the year I was law clerk?

GILSON: . . . the year you were a law clerk. I have a . . .

BOSKEY: Let me have a look at your list and see.

GILSON: Okay.

BOSKEY: Most of them were not really what I would call New Deal legislation. I mean, let me take the first of the important ones on your list, it's third on your list, U.S. against Appalachian Electric Power [United States v. Appalachian Electric Power Co.].

GILSON: Yeah.

BOSKEY: That was the case involving the question of whether the New River, which is a terribly rocky place--at least it has terribly rocky stretches in Virginia and West Virginia--was navigable and hence came within the federal controls rather than within the state controls with tha- . . . with respect to the . . . a dam site. And it was a very important issue on the reach of the Thomas Clause and the Federal 00:38:00Waterpower Act, and depending on how you answered that question a great deal of power would go into the federal government or a great deal of it would stay in the states. It wasn't just a little old dam. It had many, many consequences for the distribution of power between the federal government and the states. Well, that wasn't really exactly a New Deal case, I suppose. It may be that the fact that the position was being asserted by the government that it came under federal controls. Perhaps, in the days of Calvin Coolidge, nobody would have asserted that. But I wouldn't regard it as a New Deal case in any other sense. Now, it fits in with the New Deal cases, the . . . the great group of them, on the reach of the Commerce Clause in the Constitution, 00:39:00things that came up in the . . . with respect to the Wagner Act and that came up with respect to all of the New Deal legislation. But this one had sort of a separate, almost isolated, history under much older legislation, the Federal Waterpower Act. What the opinion did was to reassess or, as the justice perhaps would have thought of it, clarify what the criteria ought to be for navigability. And those who did not agree with the opinion thought that the standard of navigability was being reduced to something pretty trivial, that almost anything would be navigable. Now, it happened in the case of the New River that these rocky, barren stretches of the river that existed at the time the case was decided had been navigated by barges during the Civil War. In other words, there was an earlier history of real navigation on that 00:40:00river. So it's a little bit different from a river that had never been the subject of navigation, and this was a factor in the opinion. Not necessarily "once navigable always navigable," but "once navigable, hard to lose your navigability." On the other hand, I recall . . . I think Justice Frankfurter said that Justice Roberts had said that . . . who--Justice Roberts was dissenting in the case--and I think Justice Roberts made a remark to the effect that under the test of the majority opinion, "If you can flush it, it's navigable." [chuckle]

GILSON: A rather cynical remark. I mean, it's . . .

BOSKEY: Well, he felt . . .

GILSON: Yeah.

BOSKEY: . . . that the standards were being misapplied, and that there wasn't any occasion in the case where the two courts below had both held the river not navigable for the Court to go into it. I'm 00:41:00sure if he said it, as I think he did, it was a good-natured jest. Now, what are the others that . . . on this list did you wonder? Most of these are not really New Deal cases . . . big New Deal cases in the classical sense. They're . . . they do . . . several of them do involve Labor Board matters and, of course, that couldn't have arisen without the New Deal legislation, the Wagner Act and its amendments. But the particular cases that he was writing that year were not big New Deal cases. They involved a wide variety of subject matter: some tax cases, some questions as to the rule of law to be applied in diversity of jurisdiction cases in the federal courts. Klaxon and Stentor [Klaxon Co. v. Stentor Electric Manufacturing Co., Inc.] and Griffin against McCoach [Griffin v. McCoach] go 00:42:00particularly to that question in connection with conflict of laws, rules in the decision of the Court, which on this point was unanimous. But Erie against Tompkins [Erie Railroad Co. v. Tompkins] applied to conflict of law situations as well. Some . . . a few criminal cases are mixed in here, such as . . . including the Earl Browder case [Browder v. United States] which involved the conviction of Earl Browder, who was the . . . he was then the head or one of the heads of the Communist party in the United States--for misuse of a passport on re-entering the country, which is a fam-. . . re-entry of the country was not a matter that required the use of a passport, but he in fact had used the passport to identify himself. The Court clai- . . . the Court concluded that that stated an offense within the meaning of the statue. There are a couple of things that are . . . might 00:43:00look like routine, almost, negligence cases that got up during the batch that the justice had that year. There are some things related to bankruptcy matters. It . . . it's a pretty spread-out group of opinions he had that year, and I suppose if you were to say which ones had the most lasting impact, it may be that this New River case would qualify for that or these cases on the [inaudible].

[End of Tape 1, Side 1]

[Beginning of Tape 1, Side 2]

GILSON: It's going right . . . right well. Let me . . .

BOSKEY: The justice of course--are we on?

GILSON: Yeah. We're . . . we're . . . we're working now.

BOSKEY: All right. The justice, of course, would had a l- . . . have a lot of conversations with his law clerk then as later, about cases where he wasn't writing the opinion.

GILSON: Oh, yeah?

BOSKEY: And . . . you know, about how . . . what he thought about the case and how he was going to vote in the case. And he'd try out ideas about that. We were at the beginning . . . the very beginning of some of the race relationship cases in the Court. For example, you'll see in those volumes of the United States Reports, a . . . an opinion by Chief Justice Hughes in a case called Mitchell against the United States [Mitchell v. United States]. That case involved a congressman who was a negro congressman from, I think Chicago, named Mitchell, who had tried to take a ride in a first-class Pullman 00:45:00and when he got to a certain state where that . . . the state law prohibited him from doing it, he was moved to another car. And a suit was brought under the Constitution and under the Interstate Commerce Act for the violation of his rights. And as a unanimous opinion by Chief Justice Hughes, saying that this was a violation of the Interstate Commerce Act. That it was a discrimination against it. It didn't rest on Constitution- . . . the opinion doesn't rest on Constitutional grounds. And I remember Justice Reed and I had some discussions of that case. He came from a part of the country where this sort of discrimination was not unknown, to put it mildly. And as a result, he found the factors involved in these cases maybe a little 00:46:00bit more complicated than some of his colleagues on the Court. The question of how far the Court should push some of the states from what had been their social customs as a federal matter. I think, in this particular case, he never for a moment doubted how he was going to vote in the case; he was going to vote just the way the case came out. But it . . . the relationship between the courts and the rest of society in these matters, I think, troubled him and he liked to talk about it some. He would like to point out how easy this was. He . . . I think I recall he once said to me that, "This is awfully easy for a man like Hughes who was brought up in abolitionist territory." [laughter] As I say, he never for a moment had any doubt as to how he would come out because . . . but it was the beginning of a kind of 00:47:00education that he was giving himself in . . . in the n-. . . what I would call the national point of view. And, as you probably know from having talked to some other people or having read about it, when the grade-school desegregation cases came up in Brown against the Board of Education [Brown v. Board of Education of Topeka], he seriously considered voting the other way in that case, and he was the last one finally to . . . of the justices finally to come to the conclusion that he would go along with the courts and with [inaudible] then make it a unanimous decision of the Court.

GILSON: I had . . . I had . . .

BOSKEY: And when you talk to George Mickum this afternoon--George is one of the law clerks who was there during that period. I'm sure he can fill you in on some of the details, but you've probably seen Kluger's book on this subject. It was a two-volume book that a man named 00:48:00Kluger wrote on these cases. And he got a great deal of material from the national . . . from the Library of Congress or the [National] Archives, I forget which, including some internal Court papers of some of the justices, among them [Harold] Burton, who was on the Court at that time. It's an interesting book. Whether it's right in every detail is another point, but it has a lot of interesting material in it.

GILSON: Okay. Well, let's . . . let's see if we can hit another aspect . . .

BOSKEY: Sure.

GILSON: . . . of Stanley Reed. Well, people have . . . or somebody once said--that I studied--in his book . . . I forgot. It doesn't really matter, but he said that Stanley Reed very seldom smiled, but even more seldom became angry.

BOSKEY: He never that I can remember became angry. But I would not 00:49:00think it was apt to say he seldom smiled. I . . . he smiled plenty of times. [laughter] I mean, he . . . he just . . . as . . . as you'd see all the justices who sat with him and who knew him as a judge, always have referred to his great gentlemanliness. And it is true he didn't get angry at anything. He . . . it isn't because he didn't have strong convictions about some of these matters, but he didn't believe that a display of anger was the way to manifest it. But I . . . I must say, I never heard anybody before s-. . . maybe Bill Douglas says it in a chapter of his book I haven't read yet, but I don't remember ever hearing anyone say he didn't smile much.

GILSON: Umhmm. What was his social life like? Who did he . . . let's see, did . . . were you . . . were you privy at any of that at all?

BOSKEY: Well, yes and no. I mean, I'm sure I knew at the time, you know, 00:50:00where they were going to . . . the Reeds were going to dinner or who they were having. During the whole time that he lived in Washington, he had an apartment at the Mayflower, you've probably heard, so he had a rather fixed site. It was a nice comfortable apartment and he went out to dinner a modest amount. Not too much but some. I . . . I just can't, at this distance in time, enlighten . . .

GILSON: Yeah.

BOSKEY: . . . you much on the particular places he went. He would go to certain kinds of receptions or parties from time to time, if they were places that he thought he would like to go and could go to. But . . . and he maintained a lot of his friendships, as he could, from Kentucky, and he had some relatively old friends from Washington who . . . who . . . who kept up with him and he kept up with them during the years. But I can't give you really a line diagram of his 00:51:00social activity. [chuckle]

GILSON: Yeah. Well, . . .

BOSKEY: He'd go back to Maysville in the summer, as you probably know, . . .

GILSON: Umhmm.

BOSKEY: . . . and . . .

GILSON: Yeah.

BOSKEY: . . . see all the people back there.

GILSON: Umhmm. Of course, he . . . he had those annual law clerk dinners eventually.

BOSKEY: Yes.

GILSON: Did . . . did he ever socialize with the . . . with the clerks, other than at those dinners and . . .

BOSKEY: Well, I don't know what you mean by socialize. There would be functions we'd see him at or we would drop in to see him from time to time. The law clerk functions really were in two parts, on . . . mainly. On Saturday nights we would have a . . . the law clerks would have a dinner with him, and until the last couple of them, they were stag. That is, no spouses or no other persons accompanying. 00:52:00In the last couple of years we changed the procedure and it worked out fine. But in any event, on the Sunday of these functions, the justice and Mrs. Reed would invite us with spouses or other persons accompanying, to his apartment in the Mayflower. And they would have drinks and lunch, you know, a kind of elaborate, pleasant brunch and he might have one or two of his other . . . the other justices from the Court would come. Essentially no outsiders other than that kind. Yes, he would see his law clerks during the year as time would permit.

GILSON: How did the other clerks of the Court . . . how did they consider Reed? That's a difficult question but, how would a clerk for . 00:53:00. . for Douglas or somebody have . . .

BOSKEY: Well, I just don't know. I mean, that's going back a long time . . .

GILSON: Yeah.

BOSKEY: . . . and I would have to sp-. . . think in terms of the particular other clerks that I knew rather than those who may have come along later. And it would . . . I'm sure it would vary. They did not see as much of him as they would of their own justice. I don't know, some of them would perhaps say they saw very little of him. He was perfectly friendly toward other justices' law clerks, but there wouldn't have been much occasion to see . . . to see them very much. I don't really know how to fill in the answer to that question . . .

GILSON: Yeah, that's . . .

BOSKEY: . . . in a way that would do you . . . give you much information. The two years that I was around after my term with him, 00:54:00when I was with . . . the senior law clerk to Chief Justice Stone, I did see him a good deal. But, of course, that was because we had become good friends, his office was still just down the hall, and I knew his re- . . . his respective law clerks those years very well. One of them, John Maclay, had been in law school in the class after me and the second, David Schwartz, had been in my class and actually a . . . was a roommate of mine in law school for part of the time. So that it was a very friendly group and as you can see by counting numbers, we had a lot fewer law clerks in those days then there are now.

GILSON: Oh, yeah.

BOSKEY: So it was more cohesive group. The law clerks really were all 00:55:00personally quite friendly with each other and would see a great deal of each other, go around to each other's houses and things like that.

GILSON: This is a question I'm asking everybody and I don't know if it's entirely fair. Did Stanley Reed start out liberal and then grow conservative? Once again, we're using those across-the-board terms.

BOSKEY: Yeah, that's . . .

GILSON: That's . . .

BOSKEY: . . . it's a perfectly reasonable question to ask, but if you get in an atmosphere of people who find these labels difficult to affix, it doesn't seem to me terribly meaningful. There are certain cases one can look at . . . in the First Amendment cases where he sometimes did what other members of the Court would say voted against the First Amendment. I think that's not a fair description of what happened, but he . . . his views on that were more in the middle 00:56:00than the views, say of, Black and Douglas. There's no question about that. On the other hand, if you've ever looked at Justice Black's votes in the Fourth Amendment cases on search and seizure, you will discover that he was pretty niggardly in the scope that he would give to the Fourth Amendment. He came . . . he had different views about that. Now, did that indicate that he wasn't a liberal? I . . . I don't know. But you have to be awfully careful in identifying the subject matter you're talking about. Another place where I've heard these kin- . . . this type of question raised about Justice Reed over the years had to do with his votes in criminal cases. The Court, in my time as a law clerk, was suddenly getting a rash of confession cases both from the state and the federal courts. And in the McNabb 00:57:00case [McNabb v. United States], from the federal courts, where he voted not to overturn the conviction although the majority voted the other way. In some of the state court cases, which were close cases often, there'd be a division of opinion, and he might sometimes be voting to affirm the state court conviction when a majority would vote to reverse it. That indicated his views on what the applicable standards were, were not identical with some other people's views. Does that make one a liberal or a conservative?

GILSON: Yeah.

BOSKEY: I'm not sure. You would hardly expect in the close cases, on a court of nine, to have people with identical views or even with people whose views from year to year would seem identical for themselves.

GILSON: True, there are really too many variables in the cases themselves to . . .

BOSKEY: But we did beg- . . . have the beginnings of a lot of these cases on the . . . the effect of . . . of the Constitution on state criminal proceedings, much more than there had been in maybe the five or ten years before.

GILSON: Umhmm. Well, I think that's all I have to . . . to talk with you about.

BOSKEY: All right.

GILSON: If there's anything you would like to . . . to state further . . .

BOSKEY: No. I'm always at your service, if you have any other things that occur to you. But I'm sure you'll get some sort of a mosaic that you can put together by talking to some of the other law clerks. We all enjoyed his company. We liked him tremendously, and we were always conscious of how much he liked us, and in this respect he was the 00:59:00most generous of people. And he was generous in his views about his brethren on the Court. He always ascribed to them--"always" may be a strong word--but he always ascribed to them the highest of motives even when he thought they were absolutely wrong, [chuckle] which sometimes was the case.

GILSON: Umhmm. Okay, well, . . .

BOSKEY: Fine.

GILSON: . . . I thank you very much.

[End of Interview]