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Published online by Cambridge University Press: 28 October 2011
Recalling his years as a student at the Columbia Law School, William O. Douglas (1898–1980) wrote that one of his teachers, Thomas Reed Powell (1880–1955), was “then an iconoclast. He was the offbeat intellectual who could cut the Supreme Court into ribbons in any field of constitutional law.” Although the two men later drifted apart, they remained good friends for more than two decades, and their correspondence is a remarkable window not only into their agile and creative minds, but into the constitutional and academic issues of their times as well.
1. Douglas, W. O., Go East, Young Man 147 (1974)Google Scholar.
2. Frankfurter, F., Thomas Reed Powell, 69 Harv. L. Rev. 797 (1956)Google Scholar.
3. Felix Frankfurter Reminisces 293–94 (H. Phillips ed. 1960).
4. W. O. Douglas, supra note 1.
5. Kalman, L., Legal Realism at Yale, 1927–1960 (1986)Google Scholar.
6. Simon, J. F., Independent Journey: The Life of William O. Douglas ch. 9 (1980)Google Scholar.
7. Douglas recalled that “in finance, we wanted to teach the anatomy of finance as well as the rules of law. In criminal law, we wanted psychiatry as well as the criminal code…. The teaching of law in other fields was largely unrelated to the sociological, economic, or financial data with which that branch of law dealt.’ W. O. Douglas, supra note 1, at 160.
8. Freund, P. A., Thomas Reed Powell, 69 Harv. L. Rev. 800 (1956)Google Scholar.
9. Id.
10. The letters have been taken from two manuscript sources. Those marked “[Douglas Mss]” are in the William O. Douglas Papers in the Manuscript Division of the Library of Congress. Those marked “[Powell Mss]” are in the Thomas Reed Powell Papers in the Library of the Harvard Law School. The entire correspondence dates back to May 1929, when Douglas was in his first year of teaching at Yale Law School.
11. L. Kalman, supra note 5, at 61.
12. Id. at 157.
13. Letter from Paul A. Freund to author, July 9, 1987; Thomas Reed Powell, Jr., to author, Dec. 28, 1987; telephone conversation with Peter R. Teachout, who is currently at work on a biography of Powell, Jan. 4, 1988.
14. W. O. Douglas, supra note 1.
15. On Monday mornings the Court handed down its opinions, but the decisions and negotiating took place in the then traditional Saturday morning conferences.
16. Felix Frankfurter (1882–1965) was arguably one of the most influential law professors in the country during his stint at Harvard during the 1920s and 1930s. In 1938 he was appointed to the Supreme Court, where he served until illness forced him to retire in 1962. Originally Douglas had been a friend and admirer of Frankfurter, but after he joined the Court, differences in personality and philosophy drove the two apart. See The Douglas Letters ch. 4 (M.I. Urofsky ed. 1987).
17. Graves v. New York ex. rel. O'Keefe, 306 U.S. 466 (1939). By a 7–2 vote, the Court upheld a state income tax on federal employees. Frankfurter, concurring at 487, had lamented that the crowded condition of the Court's docket no longer allowed all judges an opportunity to announce their individual opinions.
18. No copy of this verse has been found in the Douglass MSS, the Powell Papers, or the Felix Frankfurter collections in either the Library of Congress or the Harvard Law School.
19. Philip Caryl Jessup (b. 1897) taught international law at Columbia University for many years and also served the State Department in a number of diplomatic assignments.
20. Ralph Jackson Baker (1888–1966), after practicing law in Pennsylvania for several years, joined the Harvard Law School faculty in 1932.
21. The petition, by Baker through Powell, his friend and attorney, humbly moved “that the Honorable James Clark McReynolds, a member of the Bench of this Court, be cited to appear before the Bar thereof and show cause, if any, why he should not have his name removed from the roll of attorneys for failure to reply to communications from the Clerk of said Court or to inform the said Clerk where he might be reached to secure his approval or disapproval of opinions of his colleagues in cases in which he had participated to the point when votes were taken and the writing of opinions duly assigned.” McReynolds (1862–1946), perhaps the most conservative person to sit on the Court in this century, had been appointed by Wilson in 1914. By 1940 he was ailing, and he resigned from the Court in 1941.
22. Philip L. Graham (1915–63), after graduating from Harvard Law School, clerked for Frankfurter in the October 1940 term, served in the government during World War II, and then became publisher of the Washington Post.
23. An annual vaudeville show parodying various legal matters and persons.
24. On October 2, 1939, Douglas had not only invited Graham to join the “Powell C Club” but to become its president as well. He then gave an official “history” of the club:
Perhaps you do not know of the Powell C Club. It was formed at Columbia in 1925 as a reprisal against a professor who taught:
“Law's not imperishably writ in ink
It turns upon what judges think
And by and large you'll find they ….”
(My class notes are blurred at this point)
This creed was not new to him in 1925. He had followed it ever since it started giving him a living years before. But it was new and startling to the unsophisticated lads who sat at his feet. Those who reserved decision or substituted “occasionally” for “by and large” did not make out so well. Yet he was by nature a kindly man and tolerant. And instead of flunking those students he adopted the policy of giving them all C's—perhaps as a concession to the role of dissenting opinions. As a result, by the time I got my Powell C in 1925 the ranks of that group had so swollen that we feared the mere weight of numbers would leave the false impression that mediocrity was our outstanding distinction. So we formed the Powell C Club. It was exclusive—one must have a C to join. It was militant— the dissenting opinions of yesterday must be the majority opinions of today. It was fraternal—we were bound together for the purpose of keeping alive the memories of the mistaken judgments of our former master.
25. A parody on the series begun by Frankfurter on “The Business of the Supreme Court,” which appeared annually in the Harvard Law Review.
26. Supra June 10, 1939, letter.
27. In Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77 (1938), a 7–1 Court had ruled unconstitutional under the Fourteenth Amendment's due process clause a California tax on the out-of-state property and gross receipts of a foreign corporation doing business within the state.
28. In Osborn v. Ozlin, 310 U.S. 53 (1940), decided the day before, a unanimous Court speaking through Justice Frankfurter upheld the validity of a Virginia statute prohibiting the writing of insurance on risks within Virginia except through resident agents required to retain not less than one-half of the customary commissions.
29. Fidelity & Deposit Co. of Maryland v. Tafoya, 270 U.S. 426 (1926), held that a state could not use its power to exclude a foreign corporation from local business as a means to accomplish that which would normally be forbidden, such as regulating the conduct of that business in another jurisdiction.
30. In Thornhill v. Alabama, 310 U.S. 88 (1940), an 8–1 Court ruled picketing was protected under the First Amendment as applied to the states through the Fourteenth Amendment.
31. McCarroll v. Dixie Greyhound Lines, 309 U.S. 176 (1940). By a 6–3 vote, the Court struck down, as burdening interstate commerce, an Arkansas tax on all gasoline in excess of twenty gallons in the fuel tanks of motor vehicles. Justices Black, Frankfurter, and Douglas dissented at 183, arguing that the legislature had legitimate grounds to impose the tax and that the Court should defer to the legislative judgment.
32. In an undated note to Douglas, Frankfurter had written, “I'm broad-minded, so don't object, or at least don't resent, that T.R.P. hasn't selected me as the petitioner.”
33. Illinois Cent. R.R. v. Minnesota, 309 U.S. 157 (1940). The Court, speaking through Douglas, upheld a state lien tax on railroads.
34. The Burlington formula was a means to assess taxes against that portion of an interstate railroad system's track and revenues derived within a single state's borders. For an explanation of the formula, see the Minnesota Supreme Court opinion in an earlier iteration of this case, State v. Illinois Central Railroad Co., 274 N.W. 828, 831–32 (1937).
35. Supra note 31. The religious reference is to Frank Murphy (1890–1949), whose well-known and deeply felt Catholicism led some critics to charge that he often allowed his personal moral views to intrude into his opinions. When Murphy had been appointed to the Court, Powell had written to Harlan Stone on January 15, 1940, that the number of justices would be increased to twelve, since Murphy would “bring with him as colleagues Father, Son, and Holy Ghost. With those Three and the Constitution itself as mentors, we ought to get some fine constitutional law in the future.” Fine, S., Frank Murphy: The Washington Years 138 (1984)Google Scholar.
36. Ford Motor Co. v. Beauchamp, 308 U.S. 331 (1939), saw the Court, by an 8–1 vote, uphold a Texas tax on foreign corporations. Justice Reed ruled that the state was legitimately taxing the right to do business within its borders and was not imposing a burden on interstate commerce. McReynolds noted his dissent from the ruling but did not file a written opinion.
37. Hugo LaFayette Black (1886–1971) was a populist Democratic senator from Alabama when named to the Supreme Court in 1937. He and Douglas became the chief advocates for an activist jurisprudence, especially for the preferred position of First Amendment rights.
38. See T. Powell, The Current Current of the Commerce Clause and State Taxation (1940), pamphlet reprinting speech delivered at thirty-third National Tax Conference.
39. Douglas wrote a note in the margin here: “See Puerto Rico v. Rubert Co., 309 U.S. 543, 549.” On 549 Frankfurter's majority opinion noted that the meaning of a word often depends on its context.
40. James McCauley Landis (1899–1964), after clerking for Justice Brandeis in the October 1925 term, had joined the Harvard Law faculty. He was one of the original members of the Securities and Exchange Commission; he chaired the agency from 1935 to 1937, when Douglas was also a member. Landis then returned to Harvard as dean of the law school.
41. Douglas's first wife, Mildred Riddle Douglas (d. 1969).
42. Powell's wife, Mary Lee Hale Powell (1880–1951).
43. Robert Maynard Hutchins (1899–1977), president of the University of Chicago; as dean of the Yale Law School, he had brought Douglas there and encouraged the ferment of the Legal Realists. He later headed the Center for the Study of Democratic Institutions.
44. After 125 members of the University of Chicago faculty expressed their support for the lend-lease measure then pending in Congress, Hutchins, a member of the isolationist America First Committee, came out in opposition to the bill on a national radio hookup the evening of Jan. 23. Following the speech, 101 Chicago faculty announced their opposition to the bill, but an additional 83 joined the supporters. New York Times, Jan. 24, 1941, at 5, col. 1.
45. Manley Ottmer Hudson (1886–1960), longtime professor of international law at the Harvard Law School, served as a member of the Permanent Court for International Justice from 1936 to 1946.
46. In Nye v. United States, 313 U.S. 33 (1941), Douglas spoke for the Court in reversing a contempt conviction for obstruction of justice. The case involved a statutory construction of the 1831 federal criminal code and overruled Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918). Douglas adopted the dissenting view of Holmes and Brandeis in that case that criminal contempt did require indictment and a trial. Stone, joined by Hughes and Roberts, dissented, arguing that if a long-standing practice is to be changed, it should be done by Congress and not by the courts.
47. Probably a reference to two cases handed down the previous Monday, Nelson v. Sears, Roebuck & Co., 312 U.S. 359 (1941), and Nelson v. Montgomery, Ward & Co., 312 U.S. 372 (1941). In both cases Douglas upheld state requirements that foreign corporations doing business within the state act as agents for the state in collecting a use tax on goods sold through their mail-order departments to local buyers, even if the mail-order outlets were located in other states.
48. Supra note 31.
49. Id. at 183: “Congress, sole constitutional legislative repository of power over that [interstate] commerce, has enacted no regulation prohibiting Arkansas from levying [such] a tax.”
50. In id. the majority had ruled that a state could require all those who used its roads to pay a reasonable compensation for that privilege.
51. The efforts of states to use taxes as a regulatory device had been discussed earlier by Powell, in New Light on Gross Receipts Taxes — The Berwind-White Case, 53 Harv. L. Rev. 909 (1940)CrossRefGoogle Scholar.
52. In United States v. Hutcheson, 312 U.S. 219 (1941), Frankfurter spoke for a 7–2 Court in holding that the Norris-LaGuardia Act, forbidding injunctions in labor disputes, did not apply to jurisdictional strikes, but only to direct employer-employee relations.
53. Possibly a reference to F. Frankfurter & N. Greene, The Labor Injunction (1930).
54. F. Frankfurter & J. Landis, The Business of the Supreme Court (1928).
55. Supra note 31.
56. Most likely a reference to Frankfurter, who had a hand in drafting a number of New Deal measures during the thirties, and whom Douglas suspected of continuing political activism. See B.A. Murphy, The Brandeis/Frankfurter Connection chs. 6–8 (1982).
57. In a case decided the previous week, Frankfurter had ruled for a 6–3 majority that an intelligent layman in a federal case could waive his right to a jury trial without benefit of counsel. Adams v. United States ex rel. McCann, 317 U.S. 269 (1942). This quote and subsequent quotes are all from the majority opinion. Douglas, joined by Black and Murphy, dissented at 281, claiming that a layman unadvised by an attorney was unlikely to understand the limited nature of the defenses available under the mail fraud statute involved. Murphy entered a separate dissent at 286, denying that the right to a jury trial could be waived in federal criminal proceedings. Douglas, but not Black, joined in Murphy's dissent.
58. Powell enclosed a clipping from the New York Times, May 4, 1943, listing decisions handed down by the Court. The opinion in Barringer & Co. v. United States, 319 U.S. 1 (1943), had been handed down by “Chief Justice Douglas,” joined by Black and Reed. In fact, Chief Justice Stone delivered the majority opinion; Douglas dissented, joined by Roberts, as well as Black and Reed.
59. Douglas enclosed a parody entitled “An Honest Confession May Be Good for the Soul, but Not for the F.B.I.,” in which a hillbilly tried to confess to a murder to an FBI agent, who refused to take it until all sorts of conditions had been met. “The Supreme Court has held,” the agent said, “that confessions by men who had not passed the 4th grade were no good. You've got to be educated to confess.” The parody referred to several recent cases on criminal procedure, including McCann, supra note 57; Betts v. Brady, 316 U.S. 455 (1942); and Johnson v. United States, 318 U.S. 189 (1943).
60. Robert Houghwout Jackson (1892–1954) had been one of the ablest Solicitor Generals when named to the Supreme Court in 1941.
61. The Court did deal with the treason issue, but not until after the war, in Cramer v. United States, 325 U.S. 1 (1945), with Douglas dissenting, and in Haupt v. United States, 330 U.S. 631 (1947).
62. Marquis William Childs (b. 1903), the noted columnist and author.
63. Powell had written a two-page poem, “Since Frankie Spanked the Court,” the gist of which was that since Franklin Roosevelt had attempted to “pack” the Court and succeeded in naming eight of its then current members, the Roosevelt appointees voted very carefully and always supported the New Deal.
64. Supra note 17. In a parody of Frankfurter's concurrence, Powell wrote, in part, the following:
The judicial history of this doctrine of immunity is a striking illustration of an occasional tendency to encrust unwarranted interpretations upon the Constitution and thereafter to consider merely what has been judicially said about the Constitution, rather than to be primarily controlled by a fair conception of the Constitution. Judicial exegesis is unavoidable with reference to an organic act like our Constitution, drawn in many particulars with purposed vagueness so as to leave room for the unfolding future. But the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it. [Powell Mss]
65. In Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661 (1944), Douglas had spoken for a 5–4 majority in ruling that a patent could not be used to secure a monopoly in a market involving related but nonpatented items. Contributory infringement arises when one person intentionally aids another to make or sell a patented device in an illegal manner, often by manufacturing or selling a part of the device.
66. Frankfurter had described the doctrine of contributory infringement as “an expression both of law and morals.” Black, in a concurrence joined by Murphy, chastised Frankfurter for expressing “his personal views on morals and ethics…. For judges to rest their interpretation of statutes on nothing but their own conceptions of ‘morals’ and ‘ethics’ is, to say the least, dangerous business.” Black also criticized Frankfurter's “talking about the judicial doctrine of ‘contributory negligence’ as though it were entitled to the same respect as universally recognized moral truth.” Id. at 672–74, 676–78.
67. Powell had written up a constitutional law question, addressed to Justices Frankfurter, Douglas, and Jackson, in which congressional powers regarding patent rights and the imposition of liability on stockholders in national banks were interwoven with common-law and statutory questions regarding relief in federal courts. See infra n. 88.
68. Edmund Morris Morgan, Jr. (1878–1966) taught at the Harvard Law School from 1925 to 1950, twice serving as acting dean.
69. Tot v. United States, 319 U.S. 463 (1943). The Court, speaking through Roberts, struck down a part of the Federal Firearms Act that held that possession of a firearm by a person previously convicted of a crime would be presumptive evidence that the person had received the weapon through interstate or foreign commerce. Black, joined by Douglas, entered a short concurrence.
70. Brown v. Gerdes, 321 U.S. 178 (1944). Douglas spoke for a unanimous Court (with Roberts, Frankfurter, and Jackson concurring) in affirming a New York decision that federal bankruptcy courts, and not state tribunals, had the exclusive power to set attorney fees in bankruptcy proceedings.
71. Matter of Heinsheimer, 214 N.Y. 361 (1915), restricted the power of an attorney to enforce a lien for an unpaid balance due to him on an annual retainer. The case was cited without explanation by Frankfurter in his concurrence in Brown at 188.
72. In re Brown, 290 N.Y. 468 (1943), was the original hearing of Brown v. Gerdes. Frankfurter quoted the lower court when it said that “as a matter of fact, the retainer of these attorneys was subject to the condition that the amount of any fees would be fixed by the United States District Court.” In the lower court opinion, the phrase was appended to a statement acknowledging the jurisdiction of the federal court, which could not and did not waive this power.
73. Edward Ridley Finch (1873–1965), a New York attorney, sat on the court of appeals from 1934 to 1943.
74. The discord that had been building within the Court for several months broke out at this time. Frankfurter, Jackson, and Roberts had emerged as the “conservative” wing of the Court, devoted to a strict adherence to judicial restraint and bitter at the growing activism of what Frankfurter called the “Axis”—Black, Douglas, and Murphy. On Jan. 3, 1944, this fragmentation manifested itself in twenty-nine separate opinions in the fourteen decisions handed down; only two cases had neither a dissent nor a concurrence. In Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944), Douglas spoke for a six-man majority in upholding provisions of the Natural Gas Act of 1938 and the power of the Commission to set rates. Jackson entered a lengthy dissent, with which Frankfurter concurred. Douglas, upset over some comments Frankfurter made, got Black and Murphy to write a concurrence that was, in effect, a counterdissent. See S. Fine, supra note 35, at 263–64. A few days later, one of the most distinguished members of the New York and Supreme Court bars, the venerable Charles C. Burlingham, published a letter in the Jan. 10, 1944, issue of the New York Herald Tribune criticizing the “breach of judicial propriety” by Black and Murphy in attacking “the approach and attitude if not the character” of a fellow justice.
75. Federal Power Comm'n v. Natural Gas Pipeline Co., 315 U.S. 575 (1942). Chief Justice Stone had upheld the commission's rate-making power under the 1938 statute. Black, Douglas, and Murphy concurred in the result (at 599), and Frankfurter entered a separate concurrence at 609. The concurrences differed from Stone in rejecting his implication that courts might have an active role to play in reviewing rates; the four argued that courts should stay out of the rate-making process.
76. In Driscoll v. Edison Light & Power Co., 307 U.S. 104 (1939), the Court ruled that a three-man federal court could review state power regulation in the absence of a clear state remedy for agency error or abuse. Frankfurter concurred at 122 but implied that courts should not get too involved.
77. Supra note 75, at 609.
78. Black, joined by Douglas and Murphy, concurred at 599. Black differed from Frankfurter in interpreting the proper historic role of the courts in reviewing ratemaking decisions.
79. Supra note 33.
80. Munn v. Illinois, 94 U.S. 113 (1877).
81. Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). The Court, speaking through Chief Justice Stone, dismissed the fellow-servant rule as it applied to seamen and held the shipowner responsible for providing a seaworthy vessel regardless of negligence on the part of officers. Toward the end of his dissent, at 112 Justice Roberts wrote, “The evil resulting from overruling earlier considered decisions must be evident…. The law becomes not a chart to govern conduct but a game of chance.” Frankfurter joined Roberts in the opinion.
82. Frankfurter, however, claimed that he had joined the dissent “with much sadness.” He told Chief Justice Stone that he had done so only because the Court was overruling a unanimous decision that had affirmed a ruling by “two of the ablest admiralty judges” of their time. He also criticized “a too eager tendency” by some members of the Court “not merely to bring the law in[to] conformity to our present needs but gloatingly to show up the unwisdom, if not injustice, of our predecessors.” Frankfurter to Stone, Dec. 28, 1943, quoted in S. Fine, supra note 35, at 266.
83. Henry Morganthau, Jr. (1891–1967) was Secretary of the Treasury from 1934 to 1945.
84. In Our High Court Analyzed, New York Times Magazine 17 (June 18, 1944), Powell said the Supreme Court had split into two main blocs. Justices Black, Douglas, and Murphy had clearly become the liberal, activist group on the bench, while Frankfurter, Stone, and Reed had become the conservative bloc.
85. In Anderson v. Abbott, 321 U.S. 349 (1944), Douglas spoke for a 5–4 majority (including Hugo Black) in ruling that in bankruptcy cases the liability of shareholders in related holding companies had to be decided by federal and not state law. See infra note 101. Powell dealt with the opinion in Use of Common-Law Techniques and Remedies in Statutory Enforcement: A Study in Judicial Behavior, 57 HARV. L. REV. 900, 903 (1944)Google Scholar.
86. Supra note 67.
87. Roger S. Foster, after graduating from Harvard Law in 1924, had taught there and at Yale before going to the legal staff of the Securities and Exchange Commission. At this time he was solicitor for the SEC.
88. Lillian E. Smith's Strange Fruit (1944) was the highly praised novel about love between an educated black woman and a white man in the South, and the resulting murder and lynching.
89. Curtice Hitchcock (1892–1946) was the cofounder of the publishing house of Reynal & Hitchcock.
90. Richard F. Fuller (1887–1957) was the owner of the Old Corner Book Store in Boston.
91. The test case arose when author and critic Bernard de Voto purchased a book. Both he and the bookseller were arrested, and on April 26, 1944, local judge Arthur F. Stone adjudged the book to be “obscene tending to corrupt the morals of youth.” He fined the bookseller $200, but he dismissed the charges against de Voto since the law dealt only with the seller, and not the purchaser, of obscene materials.
92. The novelist Henry Miller (1891–1980) often faced censorship because of his controversial subject matter. In Another Open Letter, 109 New Republic 813 (Dec. 6, 1943)Google Scholar, Miller had complained that he was not only being deprived of his right to publish because leading publishing houses would not take his material, but that he was also being denied success and its rewards. Powell's verse, delivered on Jan. 5, 1944, read in part:
But sad it is to hear him tell
That though he rates his gifts so well
They cannot see the light of day
Since Watch and Warders bar the way
Because they think him over lax on
Using words from Anglo Saxon….
Poor Henry Miller can't get into print
In this land of the brave and the free
For the reason absurd that the words that he heard
In his lofty ivory tower
Are banned in this age from the pure printed page
Because of the Publisher's power….
93. Thomas Reed Powell, Jr. (b. 1920), after completing his military service, became an insurance and real estate broker in Connecticut.
94. Supra note 85.
95. Illegible word.
96. Illegible word.
97. “Of the same type.”
98. Powell, supra note 84.
99. Supra note 65.
100. Supra note 85.
101. In his article on common-law techniques, supra note 85, Powell attacked the concurring opinion written by Justice Black, 320 U.S. 661, 672, which was joined by Justice Murphy.
102. Powell, supra note 84.
103. United States v. Allegheny County, Pa., 322 U.S. 174 (1944), reversing Appeal of Mesta Machine Co., 347 Pa. 191 (1943). The Court invalidated a county tax on machinery held and used by the company but owned by the federal government.
104. Powell, The Remnant of Intergovernmental Tax Immunities, 58 Harv. L. Rev. 757 (1945).
105. Powell, supra note 85.
106. Randolph Evernghim Paul (1890–1956), a New York lawyer, served the federal government in several positions related to tax and finance matters.
107. Paul, , Dobson v. Commissioner: The Strange Ways of Law and Fact, 57 Harv. L. Rev. 753 (1944)CrossRefGoogle Scholar, attacked Jackson's opinion for a unanimous Court in Dobson v. Commissioner of Internal Revenue, 320 U.S. 489 (1943). The case dealt with the tax liability imposed on recovery of a previously claimed loss.
108. Anderson v. Abbott, supra note 85. In his dissent at 383, Jackson wrote that “this decision is made harsh by the element of surprise,” and in a footnote at this point cited Douglas, & Shanks, , Insulation from Liability Through Subsidiary Corporations, 39 Yale L. J. 193 (1929)CrossRefGoogle Scholar, to support his view.
109. The Court ruled that insurance business conducted across state lines came within the regulatory power of commerce in United States v. South-Eastern Underwriters Assn., 322 U.S. 533 (1944). Powell critiqued the decision in Insurance as Commerce in Constitution and Statute, 57 Harv. L. Rev. 937 (1944)CrossRefGoogle Scholar.
110. Motensen v. United States, 322 U.S. 369 (1944). The defendants operated a brothel in Grand Island, Nebraska, and took two of their prostitutes on a trip to Salt Lake City. The women continued to work as prostitutes on the trip, but Justice Murphy ruled that the evidence was insufficient to prove that the defendants had taken the women along for the purpose of prostitution, and therefore reversed their convictions under the White Slave Traffic Act. Chief Justice Stone, joined by Black, Reed, and Douglas, dissented.
111. Powell, supra note 85, at 129.
112. A reference to Felix Frankfurter's practice while at the Harvard Law School of assigning his name to articles that students had researched and drafted under his direction, which he then revised and polished.
113. Hudson, , World's Peace Plan—International Law of the Future, 67 N.J.L.J. 232 (1944)Google Scholar.
114. In the insurance case, supra note 109, Douglas had voted with the majority in a 4–3 decision upholding the antitrust convictions of five insurance companies.
115. Marion Denman Frankfurter (1891–1975).
116. Paul, supra note 107.
117. Powell, supra note 85.
118. Powell, , Sales and Use Taxes: Collection from Absentee Vendors, 57 Harv. L. Rev. 1086 (1944)Google Scholar, criticized as inconsistent two majority opinions by Frankfurter in McLeod v. J.E. Dilworth Co., 322 U.S. 327 (1944), and General Trading Co. v. State Tax Commission of Iowa, 322 U.S. 335 (1944).
119. Powell, , Northwest Airlines v. Minnesota: State Taxation of Airplanes—Herein Also of Stamps and Sealing Wax and Railroad Cars, 57 Harv. L. Rev. 1097 (1944)Google Scholar, attacked Frankfurter's opinion for a 5–4 Court in Northwest Airlines v. Minnesota, 322 U.S. 292 (1944).
120. Supra note 109.
121. Powell, , State Inheritance Taxes on Indians: A Critique of Oklahoma Tax Commission v. United States, 44 Colum. L. Rev. 836 (1944)CrossRefGoogle Scholar.
122. Powell had written a sarcastic and caustic review of James M. Beck, The Constitution of the United States, Yesterday, Today—And Tomorrow (1924), which had been circulated in manuscript to his friends.
123. See text accompanying n. 114.
124. Powell, supra note 109.
125. Fred Rodell (1907–1980) began his long tenure at Yale Law School two years after Douglas arrived there; he wrote widely on the Supreme Court and its business. A strong advocate of Douglas, Rodell became a bitter opponent of the Harvard Law School in general and of Frankfurter and his disciples in particular. Powell may be referring to a laudatory article Rodell had recently published, Justice Hugo Black, 59 American Mercury 135 (Aug. 1944)Google Scholar.
126. Walton Hale Hamilton (1881–1958) had both a doctorate in economics and a law degree; he taught at Yale from 1928 to 1948 and was also associated with a Washington law firm. The article is The Supreme Court Today, 159 Nation 179, 207 (Aug. 12, 19, 1944)Google Scholar.
127. Jaffe, , The Supreme Court Today, 174 Atlantic 76 (Dec. 1944)Google Scholar.
128. The House Committee on Interstate Commerce was examining the problem of taxation of airlines by numerous jurisdictions. Powell's work for the Committee is reported in Multiple Taxation of Air Commerce, House Document No. 141, 79th Cong., 1st Sess. 154–58(1945).
129. Supra note 109.
130. Supra note 109.
131. Powell, supra note 121.
132. Thomas v. Collins, 323 U.S. 516 (1945), overturned the conviction of a union organizer for violating an ex parte Texas court order designed to prevent solicitation of workers for union membership. Justice Rutledge, in delivering the opinion of the Court, said the court order violated freedom of speech.
Douglas, in a brief concurrence at 543 (joined by Black and Murphy), said that the principle of free speech should apply to employer as well as employee. “But the emphasis of such cases as National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469,… and Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533,… to prove that discrimination exists moves one to add these words.”
133. Wiley Blount Rutledge (1894–1949) was professor and dean of the University of Iowa Law School before Roosevelt named him first to the Circuit Court of Appeals for the District of Columbia, and then in 1943 to the Supreme Court.
134. Owen Josephus Roberts (1875–1955) was one of the two special prosecutors investigating the Teapot Dome oil scandals in the 1920s. President Hoover named him to the Supreme Court in 1930, and he served until his retirement in 1945; he later was dean of the University of Pennsylvania Law School. He entered a lengthier concurrence, supra note 132, at 331.
135. Jackson, in a lengthy concurrence at 329, explained that the Virginia Power cases cited by Douglas proved that employers did not enjoy the same guarantees of freedom of speech that employees did. Supra note 132.
136. Powell worked on the amicus brief for the Association of American Railroads in Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945).
137. Harold Hitz Burton (1888–1964), a Republican from Ohio, was appointed to the Court by President Truman, taking his seat on Oct. 1, 1945; he retired in 1958. Burton took his LL.B. at Harvard Law School in 1922.
138. Eugene Wambaugh (1856–1940) taught at the Harvard Law School from 1892 to 1925.
139. Powell, , And Repent at Leisure, an Inquiry into the Unhappy Lot of Those Whom Nevada Hath Joined Together and North Carolina Hath Put Asunder, 58 Harv. L. Rev. 930 (1945)CrossRefGoogle Scholar, a critique of Williams v. North Carolina, 317 U.S. 287 (1942), in which Douglas had spoken for the majority in upholding the validity of Nevada divorces in other states under the Full Faith and Credit clause.
140. This may be a reference to the very long opinion Douglas wrote in Nebraska v. Wyoming, 325 U.S. 589 (1945), which ran sixty-six pages in U.S. Reports, but which may have run longer in slip sheets.
141. International Shoe Co. v. Washington, 326 U.S. 310 (1945), upheld a state longarm law in regard to jurisdiction over both persons and corporations having minimal contact with the state. Only Justice Black dissented.
142. Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945), affirmed the sole power of Congress to tax imports. The pages cited by Powell include portions of the majority and dissenting opinions, portions regarding whether the Philippines was a “foreign” country, that appeared to him to go beyond the decision necessary for the case.
143. Harry Shulman (1903–1955), a student of Frankfurter's at Harvard, remained at Yale, where he had taught since 1930.
144. Paul Abraham Freund (b. 1908) clerked for Brandeis during the October 1932 term, then held positions in several government agencies. He joined the Harvard faculty in 1939 but reentered government service during the war.
145. David Farquhar Cavers (b. 1902), a 1926 graduate of Harvard Law, taught in the Duke University Law School from 1931 until 1945; he then joined the Harvard Law faculty and remained there until his retirement in 1969.
146. Deo volente, “God willing.”
147. Mark De Wolfe Howe (1906–1967) was professor and then dean of the University of Buffalo Law School; he then joined the faculty at Harvard. Howe is best known for his scholarly work on Oliver Wendell Holmes.
148. Archibald Cox (b. 1912) joined the Harvard Law faculty in 1945 and remained there for the rest of his career, with occasional stints in public service, including one as the first special prosecutor in the Watergate case.
149. Robert Richardson Bowie (b. 1909), a 1934 Harvard Law graduate, served during the war with the Judge Advocate General's office. He taught at Harvard Law from 1946 to 1955, then reentered government service in the State Department.
150. East New York Savings Bank v. Hahn, 326 U.S. 230 (1945), dealt with a New York mortgage foreclosure law and its remedies for redemption. The headnotes at 66 S. Ct. 69 were rather vague. For example, the first one read as follows:
When a widely diffused public interest has become enmeshed in a network of multitudinous private arrangements, the authority of the state to safeguard vital interests of its people is not to be denied by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment.
151. The enclosure was not found in the Douglas files.
152. Bridges v. California, 314 U.S. 252 (1941). By a 5–4 vote, the Court reversed the contempt conviction of a California union leader for comments made outside the courtroom on pending litigation. Frankfurter, joined by Stone, Roberts, and Byrnes, entered a lengthy dissent at 279.
153. Rodell, , Bill Douglas, American, 61 American Mercury 656 (Dec. 1945)Google Scholar.
154. Philip B. Kurland (b. 1921), a protégé of Felix Frankfurter, clerked for Frankfurter during the October 1945 term. He has taught at the University of Chicago Law School since 1953.
155. Kurland had evidently sent drafts of the opinions in New York v. United States, 326 U.S. 572 (1946). In a fragmented decision, Frankfurter ruled that New York State, in selling bottled mineral water from Saratoga Springs, which the state owned, was not immune from a nondiscriminatory federal excise tax on soft drinks. Rutledge concurred at 315; Stone, joined by Reed, Murphy, and Burton, entered a separate concurrence at 586; and Douglas, joined by Black, dissented at 590; Jackson took no part in the decision.
156. Ballard v. United States, 329 U.S. 187 (1946). Douglas, for a 5–4 majority, reversed a conviction because women had been excluded from federal juries in California. State law permitted women to serve on juries, and federal courts were supposed to follow state law on this matter. At 193 he wrote, “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables.”
157. Douglas sent Powell a copy of Webster's Collegiate Dictionary (5th ed. 1946), signed by Douglas, Robert Jackson, Stanley Reed, Wiley Rutledge, and Felix Frankfurter, who signed “with restrictive endorsements.”
158. Merle Fainsod (1907–1972) was longtime professor of government at Harvard and also director of the university libraries.
159. Stewart, The Honorable Justice from Yakima, PM, Sunday Magazine Section, Dec. 15, 1946, 6–9. The lead article touted Douglas (who was featured on the magazine cover) as a possible 1948 presidential candidate.
160. The article reprinted a few verses from the June 10, 1939, letter.
161. Lon Luvois Fuller (1902–1978) joined the Harvard Law School faculty in 1940 and wrote widely on ethical questions in the law.
162. Walter Barton Leach (1900–1971) taught law at Harvard from 1929 to 1969 and coauthored a widely used text on property law.
163. Eugene Victor Rostow (b. 1913) taught at the Yale Law School from 1938 until his retirement in 1984, with occasional stints in government service, including an appointment as undersecretary of state from 1966 to 1969.
164. Myres Smith McDougal (b. 1906) taught at the Yale Law School from 1935 until his retirement forty years later; he specialized in property and international law.
165. In another version of this event, Charles Alan Wright wrote, “The appointed time came and a packed auditorium awaited the festivities. Leach and Lon Fuller spoke for Harvard, while Myres McDougal and Gene Rostow presented the Yale position. The truth is that the debate was rather dull. The speakers vied in courteous compliments to the others and their school. The fun did not begin until the question period, when Rodell arose in the first row of the balcony…. ‘I feel like Juliet,’ he said, ‘but I expect there are those who think I am more like Banquo's ghost.’ He plunged into his usual denunciation of Harvard and all its works, and this brought forth a vigorous response from Leach and Fuller.” Wright, Goodbye to Fred Rodell, 89 YALE L.J. 1456–57 (1980).
166. Freeman v. Hewit, 329 U.S. 249 (1946). Frankfurter, for a 6–3 Court, struck down an Indiana gross receipts tax on sale of securities by a resident owner through a nonresident broker as an infringement on the federal interstate commerce power. Douglas, Murphy, and Black dissented.
167. Powell's thoughts on the case were in a two-part article Gross Receipts Taxes—More Ado About, 60 Harv. L. Rev. 501, 710 (1947).CrossRefGoogle Scholar
168. On 259, following the majority opinion, the notation “Mr. Justice BLACK dissents” appeared, followed by the long concurring opinion of Justice Rutledge. At the end of that opinion came Douglas's dissent.
169. The dates of appointment to the bench for the four men were Black, August 17, 1937; Douglas, April 4, 1939; Murphy, January 18, 1940; and Rutledge, February 11, 1943.
170. A number of portraits and cartoons accompanied Arthur M. Schlesinger, Jr., The Supreme Court: 1947, at 35 FORTUNE 73 (Jan. 1947).
171. Edward Samuel Corwin (1878–1963) taught jurisprudence at Princeton during his academic career and was widely recognized as one of his generation's leading constitutional scholars.
172. First published in 1934, The Twilight of the Supreme Court went through several editions, but always under the same title.
173. Silver v. Ladd (1868) dealt with statutory interpretation of an 1850 law, the Donation Act, designed to promote settlement in Oregon. The Court ruled that an act with a beneficent purpose should be interpreted liberally, so although the statute said single or married “man,” Congress had obviously meant “settler or occupant.” At 226, the Court ruled that this could also mean “woman.”
174. William Howard Taft (1857–1930), after leaving the White House in 1913, served as Kent Professor of Law at Yale before Warren Harding named him Chief Justice in 1921. Taft weighed over 300 pounds.
175. Panter-Downs, , Letter from London, 22 New Yorker 52 (Jan. 18, 1947)Google Scholar, commented on several contemporary social events in England.