Justice Douglas and his first day on the job

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.




11 responses

  1. Judge Kopf,
    Love it! I wish I could say they don’t make ’em like that anymore, but I really doubt that’s the case. I especially like the “welcome to the chain gang” comment. Is there a feeling like that in the judiciary today?

  2. Legal historians dislike McReynolds intensely. He came to the court from having been A.G. And was placed on the bench to get rid of him. No member of the court attended his funeral.

  3. Jim,

    As you know, he was also a virulent antisemite.

    All the best.


    PS to other readers: Jim, my correspondent, is a distinguished legal historian, with a Ph.d, and a former practicing lawyer who, if I remember correctly testified before the Senate for the ABA’s Standing Committee on the Federal Judiciary regarding Judge Robert Bork. He is one of the most articulate lawyers I have ever known, and he an all ’round good guy.

  4. Justice McReynolds was not only disliked by legal historians. Many of his fellow justices despised him. Although none attended his funeral, it is reported that five or six, including the Chief Justice, attended the funeral of his aged messenger. Per custom, AG Tom Clark delivered a memorial to the late Justice McReynolds during the Supreme Court. How not to speak ill of the dead? Reading between lines of the memorial is hilarious. Here it is:

    Click to access 03-31-1948a.pdf

  5. TYPO ALERT: Sorry.

    Per custom, AG Tom Clark delivered a memorial to the late Justice McReynolds during the Supreme Court TERM FOLLOWING HIS DEATH.

  6. SLS,

    At least in our little court, there is a strong feeling of camaraderie that is expressed in a variety of ways when a new judge joins us. For example, when John Gerrard replaced me, I moved out my former office. I left a note in the desk for John expressing my friendship and commitment to be of whatever help I could be during our time together on the bench.

    All the best.


  7. For all his weaknesses and outright failures, McReynolds wasn’t far wrong about FDR and that administration.

    In real time.

    Back to OP: you get some neat stuff, Judge. Can I be a judge, too?

    Eric Hines

  8. That was really a turning point in the court’s history: There in the room were McReynolds. Butler and Roberts, holdovers from the “old” court, the court that had struck down one after the other of the New Deal’s reforms (until Roberts saw the light in Parrish v. West Coast Hotel), with Frankfurter and Black, who with Douglans were heralds of the new age in the Court’s history (although Frankfurter grew more “conservative” [whatever that means on the bench] with age. Stone was more of a transitional figure and Hughes a justice who, though perhaps not great, transcended judicial trends. What a moment!

  9. Fortunately, the American people disagreed. (Interesting note: All of FDR’s opponents put together did not amass enough electoral votes to elect a president.)

  10. E,

    You would make a good judge, but our guild does not share the spoils with engineers and other well trained professionals such as yourself. You are right. We do get neat stuff, and I feel luck to be the recipient of such things. Sometime, I pinch myself at my good fortune.

    All the best.


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