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(JEARBOOK 1982 J PREME COURT HISTORICAL SOCIETY EDWARD DOUGLASS WHITE NINTH CHIEF JUSTICE, 1910-1921 !rEARBOOK 1982 UPREME COURT HISTORICAL SOCIETY OFFICERS Chief Justice Warren E. Burger, Honorary Chairman Fred Vinson, Chairman Linwood Holton, President EDITOR William F Swindler ASSOCIATE EDITOR Jeffrey B. Morris ASSISTANT EDITORS David T. Pride Kathleen Shurtleff CONTRIBUTORS Paul R. Baier was a Judicial Fellow in the Supreme Court of the United States, 1975-1976, and is an Associate Professor of Law at Louisiana State University. Michal R. Bel knap is an Assistant Professor of History at the University of Georgia. Elizabeth S. Black, a former Secretary and current Trustee of the Supreme Court Historical Society, was married to Justice Hugo L. Black from 1957 until his death in 1971. Amelia Roberts Fry was the director of the Earl Warren Oral History Project at the Bancroft Library, University of California at Berkeley, from 1969 to 1981. Barrett McGurn, who served many years as a foreign bureau chief for the New York Herald-Tribune, is currently the Public Information Officer of the Supreme Court of the United States. Jeffrey Morris is the Associate Editor of the SCHS Yearbook and an Assistant Profes­ sor of Political Science at the University of Pennsylvania. Margaret H. Potts is a former Assistant Professor of Law at the University of Tulsa in Tulsa, Oklahoma. Lewis F Powell, Jr. is an Associate Justice of the Supreme Court of the United States. Merlo J. Pusey, a former editorial writer for the Washington Post, is the author of the Pulitzer Prize winning biography of Charles Evans Hughes. Sally Jo Vasicko chairs the Department of Political Science at Ball State University in Muncie, Indiana and is an Associate Professor of Political Science at that institution. Earl Warren , Jr., son of the former Chief Justice, is ajudge in the Municipal Court in Sacramento, California. ACKNOWLEDGEMENT The Officers and Trustees of the Supreme Court Historical Society would like to thank the Charles Evans Hughes Memorial Foundation for their generous support of the publication of this Yearbook . YEARBOOK 1982 Supreme Court Historical Society My Father the Chief Justice 6 Earl Warren, Jr. The Warren Tapes: Oral History and the Supreme Court 10 Amelia Roberts Fry Of Politics and the Court 23 Lewis F Powell, Jr. Chief Justice Edward Douglass White and President Taft's COL!rt 27 Jeffrey B. Morris Justice Harlan and the Equal Protection Clause 46 Sally Jo Vasiclw Justice Murphy: A Reexamination 57 Margaret H. Potts Frankfurter and the Nazi Saboteurs 66 Michal R. Belknap Hugo Black: A Memorial Portrait 72 Elizabeth S. Black The Nomination of Charles Evans J-:lughes as Chief Justice 95 Merlo 1. Pusey De Minimis, or, Judicial Potpourri Toward 1987: Between War and Peace in 1782 101 /lVilliam F Swindler Slogans to Fit the Occasion 104 Barrett McGurn Copyright© 1982, by the Supreme Court Historical Society, 1511 K Street, N. W. Washington, D. C. 20005 The Supreme Court Historical Society BOARD OF TRUSTEES Chief Justice Warren E. Burger Honorary Chairman Fred M. Vinson, Jr. Linwood Holton Chairman President Vice Presidents Frank Gilbert Kenneth Rush David Lloyd Kreeger Whitney North Seymour Alice L. O'Donnell Virginia Warren Daly, Secretary Peter A. Knowles, Treasurer Trustees Mrs. David Acheson Earl W. Kintner Ralph E. Becker Francis R. Kirkham Griffin B. Bell Sol M. Linowitz James J. Bierbower William Barnabas McHenry Mrs. Hugo L. Black Richard A. Moore Herbert Brownell David A. Morse Vincent C. Burke, Jr. Melvin M. Payne Gwendolyn Cafritz Merlo J. Pusey William T. Coleman, Jr. Harvey T. Reid Charles T. Duncan William P. Rogers Patricia Collins Dwinnell Fred Schwengel Paul A. Freund Bernard G. Segal Erwin N. Griswold William F. Swindler Lita Annenberg Hazen Obert C. Tanner Joseph H. Hennage J. Albert Woll Bruce E. Kiernat Gary J. Aichele Executive Director In Memoriam ELIZABETH HUGHES GOSSETT 1907-1981 This volume is dedicated to the memory of Elizabeth Hughes Gossett, a founding member of the Society, its first President, and later, a Chairman of its Board of'llustees. Her article on Chief Justice Charles Evans Hughes published in the 1976 Year­ book revealed not only her deep love and respect for her distin­ guished father, bu t also her reverence for the Supreme Court and a keen understanding of its place in American life and history. Her special qualities of intellect, wisdom, and quiet yet irresisti­ ble leadership; her example of caring, of grace, and humanity, all combined to render her a dominant force for good and a noble inspiration for everyone whose life she touched. 6 My Father the ChiefJustice Earl Warren, Jr. (EdiJor's Note: Chief Justice Earl Warren pre­ would agree that no one could have finer parents. sided over the Supreme Court in what was prob­ And that to include my mother in the context of ably the most critical era of twentieth century this article is absolutely essential, for why else American history. His own Memoirsgive hints of would my father have said in the dedication of some of the stresses of the times, and Mrs. Fry's his memoirs: "To Nina, the best thing that ever summary of the taped interviews with some of his happened to me. " contemporaries, in the progress of his career to­ From the early days of our lives, my father ward the Court, whichfollows, captures the flavor was a prominent public figure-the most effec­ of some of the issues in which Warren the prose­ tive crime-busting District Attorney in the his­ cutor, attorney general and governor partici­ tory of the Nation, and Attorney General of the pated. In the present article one of his children­ same vein, a superb Governor of one of the Judge Earl Warren, Jr. of the Municipal Court of largest states in the Union, a candidate for Sacramento - balances this with a warm family Vice-President, a seeker of the Presidency itself, portJ:ait . ) then finally the Chief Justice of the United States. Yet, we were largely insulated from the As a preface to what follows, I must state that I effects of his career by both him and my mother, am simply one of the six children of my father who ran a household just as though he was en­ and am only expressing my own viewpoints. gaged in an occupation which was totally un­ However, I feel comfortable in doing so because political and uncontroversial . we are a very close family and am sure that most Ours were normal childhoods in the formative of my observations and comments would be con­ years, with no inkling of being "different," other curred in by the others. Nevertheless, I would than the knowledge that Dad held "important" not feel the least bit offended if I were to be con­ jobs. And even as to that, our knowledge of their tradicted in any respect by any of the others, for importance came almost entirely from others. each naturally has his or her own viewpoints Fortunately, the realization of his trials, disap­ which are entitled to equal weight. pointments, and successes became evident only As it is, I was asked to write this piece, and, after we had become teenagers-and then only for reasons of my own (and I believe my father's) to a limited extent. I have chosen to write it without any of the rest of I still cannot fully understand how my father the family's concurrence or revisions, or even and mother achieved this, except through the fact their knowledge that I was doing so. that we were treated the same as any non­ Also, I was assigned to discuss only personal political family by them and , in retrospect, the aspects of my father and the family, which I find fact that they somehow otherwise managed to to be a difficult task since all of us were relegated keep our family life insulated from my father's to living lives which were inextricably woven professional life . I have immense difficulty in into his public service. It is also a difficult task trying to determine how they did this, because of because we were so close and because at times all the public notoriety which accompanied his we individually lived thousands of tribulations achievements, yet they did, and we are all ex­ and elations which he probably felt even more tremely grateful. deeply. Each of us was allowed, in fact encouraged, to As a beginning, I am certain that all of us live an independent life, with friends of our own MY FATHER THE CHIEF JUSTICE 7 ~ ~ ____ l A jubilam Warren enjoys breakfast with his family after learning of his sizeable lead in the 1938 California AI/orney General's race, Pictured with the future AI/orney General and his wife are five of their six children: (from left to righJ) VlJ'ginia , Earl, Jr" Nino. , Elizabeth and Bobby, choosing, and to follow the patterns of develop­ of the" pcl'br man's" major points of entry into a ment which natura,lly ensued. There was abso­ new life - particularly during the Depression lutely no urging to confine ourselves in any way, and the advent of World War II . And since we nor even the slightest hint that we should con­ always attended public schools, the exposure to form to certain standards commensurate with his diverse cultures was intense indeed. public positions, As children, we therefore were This "separate life" aspect pertained to reli­ free to do anything we desired, as long as it was a gious activities as well. Each of us was free to moraJly acceptable course of conduct. Hence question and explore and then affiliate according each of us led a separate life - chose our own to our individual consciences and preferences.

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