As some of you know, I am privileged to serve as Chair of the Board of Directors of The Historical Society of the United States Courts in the Eighth Circuit. In that capacity, I receive all sorts of very interesting historical information.
Yesterday’s in-box brought me the semi-regular Jackson List and an article entitled A New Justice (1939). authored by John Q. Barret, Professor of Law, St.. John’s University, New York, NY. This offering describes Justice William O. Douglas’s first day on the bench after taking the spot previously held by Justice Brandeis.
On the day Douglas was sworn in and took the bench, eight Justices took their seats first—they were, as viewed left to right from the audience, Associate Justices Felix Frankfurter, Hugo L. Black, Harlan Fiske Stone and James C. McReynolds, Chief Justice Hughes, and Associate Justices Pierce Butler, Owen J. Roberts and Stanley Reed. At the ripe old age of 40, Douglas took the oath and his seat to Reed’s left.
We have a contemporaneous account of what Douglas thought on his first day in the form of a diary. Here, in his own words, are a portion of Douglas’ recorded recollection that I find particularly fascinating:
April 17, 1939. I took the regular oath in the conference room a few minutes before noon, the C.J. administering it. As we filed in from the conference room to the court room, I bringing up the rear as the junior[,] I could not help recalling with a smile Stone’s words of greeting when I was nominated – “Welcome to the chain gang.” Shortly after I took the oath in open court was escorted to my seat, my son, who was seated with my wife, daughter, sister brother, caused great merriment on the bench by insisting on leaving the courtroom for the very obvious purpose of going to the toilet. He had violently objected to attending the ceremonies because they would cause him to miss gym at his school. My daughter less violently objected because she would miss French at school. I told Felix that I thought each of them showed excellent judgment and revealed a sense of relevancy and importance of events.
In the presence of McReynolds none of the judges smokes. Roberts gave me a bit of advice. He said that at his first conference he light[ed] a cigar. In a moment McReynolds passed him a note saying “Tobacco smoke is personally objectionable to me.” Van de Vanter [retired Justice Willis Van Devanter], so I am told, used to move over once in awhile to a far corner of the conference room and take a puff or two on a pipe – McReynolds or no McReynolds. Apparently tobacco smoke is not the only thing McReynolds dislikes. He seems to dislike all of his colleagues, judging by his crusty manner. He thoroughly disliked Brandeis. Why even this is told which I am certain is true. During conference whenever Brandeis spoke, McReynolds would get up and leave the room and stand outside the door leaving it barely open so that he could tell when Brandeis had finished. Then he would return. He also disliked [former Associate Justice John H.] Clarke whom I never knew. He was a paramount reason for Clarke’s resignation [in 1922]. What torture he could not apply by complete disregard of Clarke’s presence he made up for by badgering. McReynolds also dislikes thoroughly the Roosevelt administration. As I was talking to him about a mutual friend, [Professor] George Bates of Harvard [Business School], he let loose some cracks about the New Deal, terming its program as nothing but “moonshine.” I said to myself, “What a great state of mind for a judge!!”
Ah, legal realism.