Regional Oral History Office University of California The Bancroft Library Berkeley, California

Carl D. Lawson THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: CARL D. LAWSON

Interviews conducted by Laura McCreery in 2004

Copyright © 2015 by The Regents of the University of California Since 1954 the Regional Oral History Office has been interviewing leading participants in or well-placed witnesses to major events in the development of Northern California, the West, and the nation. Oral History is a method of collecting historical information through tape-recorded interviews between a narrator with firsthand knowledge of historically significant events and a well-informed interviewer, with the goal of preserving substantive additions to the historical record. The tape recording is transcribed, lightly edited for continuity and clarity, and reviewed by the interviewee. The corrected manuscript is bound with photographs and illustrative materials and placed in The Bancroft Library at the University of California, Berkeley, and in other research collections for scholarly use. Because it is primary material, oral history is not intended to present the final, verified, or complete narrative of events. It is a spoken account, offered by the interviewee in response to questioning, and as such it is reflective, partisan, deeply involved, and irreplaceable.

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All uses of this manuscript are covered by a legal agreement between The Regents of the University of California and Carl D. Lawson dated December 17, 2004. The manuscript is thereby made available for research purposes. All literary rights in the manuscript, including the right to publish, are reserved to The Bancroft Library of the University of California, Berkeley. Excerpts up to 1000 words from this interview may be quoted for publication without seeking permission as long as the use is non-commercial and properly cited.

Requests for permission to quote for publication should be addressed to The Bancroft Library, Head of Public Services, Mail Code 6000, University of California, Berkeley, 94720-6000, and should follow instructions available online at http://bancroft.berkeley.edu/ROHO/collections/cite.html

It is recommended that this oral history be cited as follows:

Carl D. Lawson “THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: CARL D. LAWSON” conducted by Laura McCreery in 2004 Regional Oral History Office, The Bancroft Library, University of California, Berkeley, 2015.

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Table of Contents—Carl D. Lawson

Interview 1: December 17, 2004

Audio File 1 1

Family Background — Early Education —Attending Harvard College — Attending Stanford Law School — Early Interest in Antitrust Law— Selected for clerkship at the Supreme Court — Clerking for Justice Stanley Forman Reed — Clerking for the Chief Justice — Relationships with other clerks — Recommendation of cert — The Chief Justice as a leadership figure — The Civil Rights Act and the Escobedo Case — The Chief Justice and California — The Miranda decision — Justice Thomas Campbell Clark — Relationship with other justices — Confidentiality — The Von’s Grocery Case — Oral arguments — Memos, opinions, and the Chief — Mrs. Margaret McHugh — Saturday lunches: Sports and politics — Personality of the Chief Justice — Role of the Supreme Court — Judicial activism — Later careers: antitrust law and the FCC — Relationship with the Chief Justice in later years

[End of Interview] 1

Interview 1: December 17, 2004 Begin Audio File 1

McCreery: Tape one, on December 17, 2004. This is Laura McCreery speaking, and on this tape I’m interviewing Carl D. Lawson, at his home in Washington, D.C. We’re going to be talking today, for the oral history project Law Clerks of Chief Justice Earl Warren. Mr. Lawson, would you start us off by stating your date of birth and talking a little about where you were born?

01-00:00:37 Lawson: July 20, 1938. I was born in Boise, Idaho.

McCreery: Could you say a little about your family circumstance at that time, in the waning Depression years?

01-00:00:49 Lawson: Well, I think the circumstance was that they didn’t have much money. I was the sixth of six. My mother was forty when I was born. My oldest siblings were teenagers. One daughter had died before I was born, and then there was a nine-year-old, and then this huge gap. Since the older siblings had married early, in some ways it was like being an only child; but then in other ways, not.

McCreery: Say a little about your early schooling, if you would.

01-00:01:33 Lawson: Ah. Well, I went to the public schools in Boise, from first grade through high school. At that time, they didn’t have a public kindergarten. I don’t think they had it until the seventies. Even then, it was controversial. Some people considered it sort of a frill.

McCreery: Okay. Well, I wonder, what were your own interests as a youngster?

01-00:01:56 Lawson: I had a great interest in history. Politics. I followed elections and all that sort of thing from—. Well, I certainly have very vivid memories of [Dwight D.] Eisenhower’s election. So I was very interested in history and politics, and not that interested in the math-science end of things.

McCreery: Okay. Well, I see from your bio that you left Idaho and went off to Harvard College. Tell me how that came about.

01-00:02:38 Lawson: Well, I applied and got a scholarship. I think Harvard sent somebody out to Boise to recruit, which most of the Eastern schools would not have been doing at that point. Harvard had a lot more scholarship money than most schools. They’ve always had a big emphasis on geographic diversity. Or at least I think since the 1920s or so. So they were actively trying to get people from distant places, and Idaho was pretty distant.

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McCreery: That must’ve been quite a change for you.

01-00:03:23 Lawson: Yes. Yes, it was, in some ways, like a foreign exchange. Massachusetts was a very different place from Idaho, and probably still is.

McCreery: What did you study at Harvard?

01-00:03:37 Lawson: Government.

McCreery: Did you have a particular thing in mind that you wanted to do? Were you interested in the law yet, at that time?

01-00:03:47 Lawson: No, I think when I started college, I thought I wanted to be a journalist. I’d been the editor of the school paper. At some point along the line, I decided maybe going to law school was—. Well, it seemed like everybody was going—if not immediately, later—to graduate school of some kind; that it was just sort of expected. I don’t think that would’ve been my expectation when I started. Well, in some ways, it was sort of a prep school for graduate schools. That it was just an expected thing, that you would do something. A lot of people did academic—. I think at that point, colleges were expanding rapidly and there were jobs in the academic world. So I think there were a lot of people scattered around in various universities, teaching various things.

McCreery: Well, I note that you crossed the country again, to attend Stanford Law School.

01-00:04:53 Lawson: Yes. I got the acceptance after a March blizzard in Cambridge. I thought, why not?

McCreery: Sounded pretty good, at that time of year.

01-00:05:03 Lawson: Yes, yes. Most law schools had these very dignified brochures with a great cover or something; but Stanford would have pictures of the campus and the sunshine and the tile roofs.

McCreery: Perhaps the sun was their main recruiting tool.

01-00:05:23 Lawson: Yes, yes. They were not subtle about it.

McCreery: Well, what did you find when you got to Stanford? How was it?

01-00:05:29 Lawson: I liked law school a great deal. Probably more than I enjoyed practicing law.

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McCreery: Was that a surprise to you?

01-00:05:38 Lawson: Somewhat, yes. I think you don’t really know until you’re into it, what it’s like. Yes, I found it much more stimulating than I had expected. I had been on the debate team in college. Debate is a good preparation for law school, because the thought processes are similar, I think.

McCreery: Yeah. Could you say something about the faculty at that time, and who might’ve been influential to you there, if anyone?

01-00:06:17 Lawson: Well, I don’t know if anyone was more influential than others. I think Ed [Edwin] Zimmerman had probably a great deal to do with my getting the clerkship. He was teaching antitrust and securities regulation. A short time later, he was a Deputy Assistant Attorney General for antitrust, and then went with Covington [Covington and Burling]; he didn’t go back to teaching. Let’s see. Phil Neal was teaching the first half of constitutional law, before he became dean at Chicago. He was very interesting.

McCreery: How so?

01-00:07:02 Lawson: Well, his manner. You only knew that if he was smiling, that the answer was probably wrong. It was very difficult to figure out what he was really conveying.

McCreery: Well, I wonder if you developed particular interests in the law while you were still a student.

01-00:07:34 Lawson: Well, antitrust, I think, was always an interest, yes.

McCreery: You did, of course, continue to work in that area.

01-00:07:40 Lawson: I did a seminar in that, and then I did some antitrust work in private practice, and then I worked for the Antitrust Division [of the Justice Department] for about five and a half years, in the seventies.

McCreery: Well, you mentioned that one of the faculty members there may have been instrumental in hooking you up with the Supreme Court clerkship. But tell me what you first heard about it, and when.

01-00:08:10 Lawson: Well, I had been recommended when I was in law school. I think I was recommended to [William O.] Douglas or recommended to somebody; I didn’t get it. I was out in private practice—I’d been out for a year or so— when I got a call from Professor Zimmerman, asking if I was still interested. I

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don’t know why they would’ve gone to somebody from a prior year, instead of recommending somebody from the current class. But I’m sure there was some reason. I think it was Bayless Manning who was the new dean, who had clerked for [Stanley Forman] Reed, who—. Usually, I think the law clerks were recommended by some prior clerk, who was at law school somewhere.

McCreery: Yes. Yeah, we know that Chief Justice Warren had people around the country who made recommendations for him. Do you recall having an interview ahead of time?

01-00:09:16 Lawson: I don’t think so. I can recall when I was clerking, that he interviewed some people for the next year. But I suppose since I was in California at the time—. Those were the days before frequent fliers and airfares were very expensive, so I was not required to come back for an interview. So I was sort of taken sight unseen.

McCreery: Yeah. But it was Justice Reed who was recruiting you for that?

01-00:09:43 Lawson: Yes, yes. Yes, yes, Justice Reed selected his clerks through whatever process he used, which I think was primarily through prior clerks. But not always.

McCreery: Yeah. It may’ve been similar to what Chief Justice Warren did, but I’m not certain.

01-00:09:59 Lawson: Yeah, I’m not really quite [sure]. But my recollection is that somehow or other, Manning, as the new dean there and a former Reed clerk, had an in. I guess other faculty members must’ve recommended me, because I think Manning came after I left. I didn’t know him until—.

McCreery: Okay. As an aside, you said you were in private practice for a short time, before this came up. Where were you practicing?

01-00:10:32 Lawson: At Gibson, Dunn & Crutcher, in Los Angeles. Then I went back there for a while, after I clerked.

McCreery: Okay. Well, once it was arranged that you would go to the Supreme Court as a clerk for the 1965 term, what happened next? Again, you were crossing the country and getting yourself set up to live here in Washington.

01-00:10:57 Lawson: Oh, I think I packed up some stuff, and probably dropped off some extra stuff in Idaho, and then drove across the country, which took five days, I think. Stayed with some friends for two or three days in Washington, while I looked for an apartment. Found an apartment in Alexandria, or beyond Alexandria, and stayed there for the next eleven months, I guess.

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McCreery: Okay. Now, when you began your job, was it both Justices Reed and [Harold Hitz] Burton you were working with?

01-00:11:42 Lawson: No, Justice Burton had died.

McCreery: Oh, had he? Okay.

01-00:11:47 Lawson: Not too long before. So I was originally a Reed-Burton clerk, and then when Justice Burton died, became the Reed clerk.

McCreery: Okay. Well, when did you first meet Justice Reed? Do you recall that?

01-00:12:01 Lawson: I think when he came back after the summer. I arrived there in the summer, so neither Chief Justice Warren or Justice Reed were there at the time.

McCreery: Okay. Well, how did Justice Reed make use of your talents as his clerk? I know he was retired.

01-00:12:22 Lawson: He was a retiree. He was sitting on the Court of Claims once in a while, so he had at least one opinion and he sat a few times. I think he had some other little projects from time to time, but I think I probably spent 75 percent of my time working for the Chief Justice.

McCreery: Yeah. Now, to what extent did you know ahead of time that so much of your effort would be devoted to the Chief Justice? Was that all laid out to you before the fact?

01-00:13:01 Lawson: I think so. I don’t remember anything being a surprise, so yes, I must’ve known that that was how it worked.

McCreery: Okay. All right. Well, for the time you did spend with the Chief Justice, tell me just a little bit about how that worked and how you fit in with his other three clerks that year, in terms of the workload and so on.

01-00:13:26 Lawson: Well, we were physically separated, because I had a little office next to Justice Reed’s chambers. He was at the front of the building. Whereas for the active justices, there were some gates that the tourists were not supposed to go beyond. He was actually in the front corner, I think, near the clerk’s office, and there were tourists wandering around through the halls all the time. Sometimes they’d open the door and look in.

McCreery: That’s a reminder that the outside world is there, when you’re cloistered away.

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01-00:14:00 Lawson: The outside world was very much there, yes. I guess the security must’ve been more lax than it would be now.

McCreery: Yeah, no doubt.

01-00:14:10 Lawson: So we were physically separated. Unlike the other clerks, his clerks were off on the second floor; they weren’t in an adjacent office. So they were separated from him, and they were also separated from where I was. I would go up there; I don’t know whether it was several times a day. With the cert petitions, the way we worked it, you’d just take three or four off the pile and do those, and then you’d come back and take some more. So I was up there frequently. But I wasn’t actually physically in the same place.

McCreery: Okay. Now, the other Warren clerks that year were Kenneth Ziffren, Michael Smith and James Hale; does that sound right?

01-00:15:08 Lawson: That’s right. That’s right.

McCreery: Okay. Tell me a little bit about interactions with them about the cases themselves, if any.

01-00:15:20 Lawson: Well, I think there was quite a bit of discussion among the law clerks about cases. And I think there was a fair amount of discussion with clerks from other offices. Somebody would call you from time to time and say, “What do you think about this? Do you think this one is worth recommending cert?” or whatever. Just sort of general discussion about what was going on, and about various cases and so forth.

McCreery: Okay. Did the Chief Justice give you any particular instruction?

01-00:16:08 Lawson: Only if you were working on an opinion that you’d been assigned. But no. You just recommended whatever you thought. I don’t think it had much influence what recommendation you put at the bottom, but it made you feel good. But by that point, he’d been there for twelve years. He knew, on most issues, where he wanted to go. There was no problem with making the wrong recommendations. I don’t think it was a big factor, that you had a recommendation at the bottom. Well, it was more a factor in whether you grant cert or not. But as far as an argued case, which way the law clerk recommended it should go was, I don’t think, not a very significant factor.

McCreery: Now, how would the Chief Justice share with you what happened in the weekly court conferences?

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01-00:17:14 Lawson: We went in after the conference, because he had to tell the Clerk or a Deputy Clerk of the Court. Somebody from the Clerk of the Court’s Office came in and we had to tell them, in each case, what was decided, because there’s nobody in the conference except the justices. In the course of that, he would sometimes fill us in somewhat on what was said or why something was decided the way it was. That was our main source of information. Also, at least when he was there, he usually took the clerks to lunch on Saturday, usually at the University Club. He would recount various things then. But apart from after the Friday conference and the Saturday lunch, you usually didn’t see him. But we submitted all these memos in writing and there might be discussion, but usually there wasn’t that much discussion. He didn’t call and say, why did you say this or that. I suppose after twelve years, you sort of look at the thing and you know whether you want it or not.

McCreery: Yes. Presumably, he had established himself very well by that time.

01-00:18:57 Lawson: Yes, yes.

McCreery: Now, when he shared with you, though, the events in the Court conferences, to what extent were you privy to his strategies, shall we say, or his thinking about how to work with the other justices to woo them to a particular point of view or that sort of thing?

01-00:19:22 Lawson: I really don’t remember that much discussion of—. There was some discussion of who was for what or whatever, but in terms of what he was doing, I’m not sure that he did that much, although there was sort of a force of personality there. He was a leadership figure.

McCreery: Yeah. Well, how did he exert that leadership? Again, just from your point of view as a clerk.

01-00:19:57 Lawson: Well, I think he made great efforts to maintain a cordial atmosphere, which was not always easy. There were lots of rumors about feuds from the past, but at least at the time I was there, you had the feeling that people got along and that even if they had very different views on some of the issues, that it was not personal. He seemed to have a very close relationship with Harlan [John Marshall Harlan II]. So I think he was trying very hard to maintain a cordial, congenial, collegial atmosphere. But as far as what he did in specific cases, to bring people to his point of view, I don’t recall much discussion of that.

McCreery: What about the process of assigning opinions, which is a great power of the Chief Justiceship? Were you privy to his thinking on that?

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01-00:21:24 Lawson: As to why he would’ve assigned something to a particular person? No. I think there were certain things he wanted to do himself, Mirada [Miranda versus Arizona] being the significant one that term. Also there was the 1965 Civil Rights Act. That one, he took himself, which was a fairly controversial thing at the time.

McCreery: Yeah. Well, let’s talk a little bit about the Civil Rights Act. Just tell me what you remember about how that came through the process and what he might’ve said to you about it.

01-00:22:08 Lawson: I can’t recall whether it was a unanimous decision or not; it may have been. The objections were not frivolous. It was a big thing, at the time. This was the Voting Rights Act, not the ’64 act, which was the prior term, probably.

McCreery: Yeah.

01-00:22:37 Lawson: But there were measures that seemed fairly drastic. But I guess the feeling was that they were justified. Even though I think unanimous decision, I don’t think they viewed the objections as frivolous; that there were fairly drastic steps there that were being taken to get compliance in the South.

McCreery: And of course, Chief Justice Warren had already established quite a record on voting rights earlier in the sixties, in terms of his viewpoint. Baker versus Carr, Reynolds versus Sims. Okay. Do you recall to what extent you yourself worked on the voting rights matter?

01-00:23:26 Lawson: I didn’t. I think Mike Smith worked on that one. I think Jim Hale and Kenneth Ziffren worked on Miranda, and Mike worked on a companion case.

McCreery: Okay. Now, what do you recall about Miranda and just sort of the atmosphere surrounding that case?

01-00:24:07 Lawson: Well, it was obvious from the beginning. There had been a decision, I think probably a couple years before, called Escobedo [Escobedo versus Illinois].

McCreery: That’s it.

01-00:24:20 Lawson: Which I think the fellow had been demanding to see a lawyer and wasn’t allowed to, and they had reversed. I think it was Justice [Arthur] Goldberg had written the opinion, in a way that hinted that they might require that people be told they were entitled to a lawyer. At least enough of a hint that it produced a flood of petitions. Every defendant who had had a confession, oh, yes, he had an Escobedo problem, too. So it was, at that point, sort of a foregone

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conclusion that they had to do something. I don’t recall whether that was just for the Warren clerks or—. Probably. Trying to decide, out of this huge batch, which cases should be the test case. I think we’d selected things with a variety of fact patterns, trying to guess, well, they might cut it off here or there or something. Well, in the end, none of those things mattered. They didn’t limit it. But I don’t know, we’d been sifting through these things, trying to figure out which cases should—.

McCreery: Might be candidates to go forward?

01-00:25:59 Lawson: Yeah, might be candidates.

McCreery: So that sounds like something that you all had some hand in—

01-00:26:05 Lawson: Yeah, yeah.

McCreery: —just keeping the eye out for the right sort of thing?

01-00:26:08 Lawson: Well, or at the point where they were ready to take something, which ones, of these large quantity of cases, should they take as the test case? I recall now, at one of the lunches—well, that may have been after it was argued; probably after it was argued—somebody asking Chief Justice Warren what he thought the reaction would be. He said, “Oh, every police department in the country will be up in arms.” He sort of took all of that in stride. Partly him, I suppose; partly the advantages of having a life term. A very different outlook than I experienced with other people in government, later on, who did not take everything in stride.

McCreery: Yes. That’s very well put. Well, talk a little bit about Earl Warren’s experience in California. Did you have a view of how that context had some bearing on what he was doing on the court?

01-00:27:26 Lawson: Well, I think the fact that he’d been a prosecutor. He had big interest in criminal procedure. Now, his experience as governor, how that—. Well, he was very suspicious of legislatures of all kinds. But that part, I think right after the First World War, he had a job for a year or so with the California legislature. I guess the process was pretty raw, at that time. So that sort of colored his view of legislators, generally.

McCreery: The Chief Justice did bring an interesting background, having been a district attorney, attorney general, governor and so on.

01-00:28:34 Lawson: Oh, yes, yes.

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McCreery: I just wondered if you might recall his relating that at all to this very serious matter of due process. The Miranda decision, some say, was the most controversial major decision of his tenure. Did he talk about the context, in terms of his own experience?

01-00:29:09 Lawson: I don’t recall that. He talked from time to time about his experiences and stuff, as a prosecuting attorney, but I don’t recall anything specific in relation to particular cases.

McCreery: Okay. But you’re saying he was very matter of fact about the way this decision would affect police departments, they’d all be up in arms?

01-00:29:41 Lawson: Yeah, that he expected the reaction. But then I suppose he expected that it wouldn’t have as much of an impact as they thought, which is probably the case. I don’t know what studies have been done, as to whether there were fewer confessions and fewer convictions. But I’m sure that the actual real- world impact was less than whatever people thought it would be, at the time it was announced. But I also remember on one occasion, somebody asking what he thought about all the impeach Warren billboards. He said, “Well, I wish they wouldn’t do that. It upsets Mrs. Warren.”

McCreery: Interesting answer.

01-00:30:28 Lawson: I’ve thought of that frequently, in later years, when dealing with people who were less inclined to take things in stride. But that was an attitude that—. Well, I think it’s partly just the difference of having a life term. And especially being the Chief Justice, there’s no place to go. Some associate justices might still think, well, maybe if I do things right, I might be considered for chief, or get the right opinions or whatever, but—.

McCreery: He didn’t need to bother with that.

01-00:31:09 Lawson: He didn’t need to bother with that, and he certainly didn’t.

McCreery: Okay. Well, just to finish about the Miranda case, you described the fact that a couple of the other clerks were the ones to do much of the assistance to the Chief on that. But once a suitable case was found, do you have much memory of kind of how the process played out, leading up to the opinion?

01-00:31:40 Lawson: Well, I recall that Justice [Tom C.] Clark switched. They take a tentative vote after an argument, and then when the opinion’s done, they circulate it and people do or don’t sign on; and frequently, there are changes from what the tentative vote was. I think that Justice Clark tentatively was going to go with it, and then decided not to. So it turned from six-three to five-four. I think

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[William J.] Brennan may have had some input. But you’d really have to ask Ziffren or Hale about the details, because I wasn’t involved in drafting the opinion.

McCreery: Well, as you sort of referred to, Justice Clark often found himself in or near the middle, with this Court’s configuration.

01-00:32:51 Lawson: Yes, I think he was frequently in the middle.

McCreery: Yeah. Did you have much view of the Chief Justice’s relationship with him?

01-00:33:01 Lawson: Well, I think he was annoyed that Clark had switched. I think he had a good relationship with the justices, generally. I think the fact that he was annoyed that Clark switched, I imagine by the next fall, that was history.

McCreery: And he still had the votes.

01-00:33:29 Lawson: He still had the votes, yes, yes.

McCreery: Okay. I wonder if you had any opportunity to get to know the other justices.

01-00:33:38 Lawson: Not much. I guess at some time during the year, they’d [the law clerks] invite each justice to have lunch with the law clerks. But apart from that, we had quite a bit of contact with the other law clerks, but not communicating with the other justices directly, no.

McCreery: Okay. Well, that leads me to ask, what did the Chief Justice say to you clerks about the matter of confidentiality?

01-00:34:18 Lawson: If he had his way, everything would be confidential forever. I think some ex- clerk had written something about the court that he thought shouldn’t have been done.

McCreery: Did he express any concern, even about your interactions with clerks from other chambers?

01-00:34:50 Lawson: No, I don’t think that happened. No.

McCreery: It was more the outside world?

01-00:34:57 Lawson: The outside world.

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McCreery: Well, to turn that around, I wonder to what extent was the outside world encroaching on—? Or to what extent were you aware of the effect that court decisions were having on the outside world?

01-00:35:20 Lawson: Well, I was certainly aware of the controversies. But I’m sure there were no leaks of—.

McCreery: Do you happen to remember when the Miranda decision was announced?

01-00:35:36 Lawson: It was probably relatively late in the term.

McCreery: No, I just mean, we know that it was in June of ’66, but do you kind of remember the atmosphere out in the country, upon hearing that decision?

01-00:35:52 Lawson: Expected lots of controversy and there was. There was plenty of great mail.

McCreery: Was there?

01-00:35:59 Lawson: Oh, yeah.

McCreery: Did you see any of that?

01-00:36:02 Lawson: A few, a little of it, yeah. I don’t think the Chief Justice saw it. Or maybe his secretary went through things and if there was something from a law school dean or something in the pile, [she’d] pull it out and show it to him. I’m sure he was aware of it, but he didn’t—.

McCreery: Okay. Well, you indicated, also that the Von’s Grocery [United States v. Von’s Grocery Co.] case came up the year you were there. The merger case.

01-00:36:41 Lawson: Yes. Von’s, and Pabst [United States v. Pabst Brewing Co.], I think was the companion case. I think Justice [Hugo] Black wrote the opinions. Well, I think it was in connection with Pabst that Warren said something about being tired of pulling their chestnuts out of the fire; that he thought the Justice Department was not doing a very good job of trying the cases, and was sort of annoyed by that. Somehow or other, the Justice Department kept losing in the lower courts and they kept reversing. But they were annoyed that they thought Justice should be trying a little harder. I think it was particularly the Pabst case that—. I don’t remember the details, but apparently, it was not very well tried; or at least that was the impression.

McCreery: And perhaps there was enough of a pattern to be noticeable to the Chief.

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01-00:37:53 Lawson: Enough of a pattern to be noticeable, yeah.

McCreery: Yeah. Okay. I wonder how often you were able to attend oral argument, and what you got out of that.

01-00:38:07 Lawson: I think fairly often. Or at least when something was being argued that I’d written a memo on, or that was particularly interesting. Certainly, we didn’t have time to attend all of them, but I think quite a few. I guess it wasn’t clear just how much impact it had. Probably by the time of the oral argument, most of the justices had at least a tentative idea where they were going. I think people were more likely to blow a case in oral argument than to pull it out.

McCreery: Do you have particular memories of how the justices would interact in oral argument?

01-00:39:13 Lawson: [Byron] White was very, very active, asked very probing questions. I think Justice Douglas rarely asked a question. So there certainly were differences, in terms of how active people were. I think they were less likely to give their positions away than Court of Appeals judges tend to be.

McCreery: How did the Chief Justice conduct himself on those occasions? How did he treat counsel, for example?

01-00:39:57 Lawson: Oh, very courteously. But I don’t really recall just how active he was in questioning. I sort of recall that White was more active than most people, and Douglas less so.

McCreery: Okay. I wonder if I could ask you about the in forma pauperis cases and how that separate docket might’ve had an effect on your workload.

01-00:40:26 Lawson: Oh, I think the Chief’s clerks were responsible for preparing memos for everybody on those, so that was a significant part of the workload.

McCreery: Were those handed out the same way as the regular docket? Did you work on them yourself?

01-00:40:48 Lawson: Oh, yes. Yeah. Yeah, I think we just took things off the pile, for the most part. Yeah, we took a few things, and then came back and took a few more. Although I think one of the clerks was inclined to pull out the obscenity cases. So I don’t know whether I worked on any obscenity cases or not. Don’t recall any.

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McCreery: Okay. Well, a moment ago, you mentioned those occasions when you would write a bench memo. I wonder what you can recall about the actual writing process, and then how you would interact with the Chief Justice, if such a thing went forward to become an opinion.

01-00:41:36 Lawson: Well, if he were doing the opinion, then you had more interaction. It would seem long, without the other clerks in to discuss how it should be written and what should be changed and so forth. But as far as the bench memos, I don’t recall much discussion, or that there was any more discussion than on cert memos. They’d just send in the piece of paper and he read them and they voted. But I don’t think he would often call you up and say, why did you—? Or ask for more details or something.

McCreery: Okay. But as you say, you would interact with him a bit more over an opinion. How would that work? What was his writing style?

01-00:42:44 Lawson: Mostly, he would discuss it and we’d draft something, and then discuss it again. He didn’t do that much writing himself.

McCreery: He would sort of discuss with you the changes that he might desire?

01-00:43:02 Lawson: Yeah, yeah. Where he wanted to go, whether one should or shouldn’t overrule some precedent to get there.

McCreery: Were there any surprises to you, in that process of working on opinions?

01-00:43:24 Lawson: I don’t think so, no.

McCreery: I wonder what you can tell me about Mrs. [Margaret Krueger] McHugh.

01-00:43:39 Lawson: Well, she guarded very carefully who got in to see him, because once somebody got in, it might go on forever. He was not one to stick strictly to his schedule. So she was a very firm gatekeeper, but he needed a firm gatekeeper. She issued instructions to the law clerks and you weren’t quite sure whether he’d actually said that or not. But she was extremely valuable, in terms of making things run. She had a very key role there.

McCreery: I know she was something of a gatekeeper, and authorized to speak for him; but it’s always interesting to hear people’s recollections of how that actually worked. She’s quite an interesting figure in all this.

01-00:44:53 Lawson: Yes, yes. Well, I think I said to one of the other clerks, “I think when she says, ‘The Chief Justice gave me specific instructions that you’re not to do that,’ he

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probably did; but she says it in such a way that you think that it was her fault, not his.”

McCreery: Okay. All right. Well, returning to the occasions of the Saturday lunches, since that was one of the few times that you could regularly talk informally with the Chief Justice, I wonder if you can tell me more about what sorts of things you would discuss with him and what his interests were.

01-00:45:48 Lawson: Discussed cases. Of course, we probably discussed some sports. Or at least he did.

McCreery: Very important.

01-00:45:57 Lawson: Yes, yes. Yes, he might have a better recollection of something that happened with the Rose Bowl ten years ago than a case that was decided ten years ago. Talked, I think, probably some about the court and probably some of his reminiscences about California politics and so forth. Just sort of wide-ranging discussion.

McCreery: I wonder, as you’re thinking back on your time with him, do you see any difference between the Chief Justice Warren who was presented to the public, the former politician, the Chief Justice, and the real man that you knew in a more close connection?

01-00:46:53 Lawson: No, I don’t think so. I think he was generally perceived as being this very genial person. No, I don’t think he was different from whatever the—. Well, of course, he was extremely controversial. Well, now, maybe that isn’t quite true. I think maybe he was more of a force than you would’ve thought, listening to law professors or whatever. He was definitely a force on the court, but—.

McCreery: But you’re saying perhaps a bit more so than people would know?

01-00:47:53 Lawson: I think just his personality and his integrity—. He had leadership qualities.

McCreery: Yeah. Yeah, what was his personality, as you recall it?

01-00:48:22 Lawson: He was very genial. Very anxious for people to get along. He didn’t get upset if there was some mistake. He sort of took everything in stride. Very confident. [Had] a sense of where he wanted to go.

McCreery: Well, as you say, qualities of a leader, certainly. What about as a jurist? What’s your own view of Earl Warren as jurist?

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01-00:49:10 Lawson: Well, his sense of what was fair or what wasn’t was the guiding principle. I suppose I would’ve been more inclined to think that there ought to be some more objective standards. That there ought to be something more to it, other than what strikes five justices as fair or unfair. He was certainly well aware of that sort of criticism. But it didn’t affect him. Miranda is sort of the—. Certainly, I don’t think there was any existing requirement that was precisely the same as what the Court said people had to be told. Whereas the right-to- counsel case, by the time that was decided by the Supreme Court, there were only—I don’t know whether it was fifteen or eighteen or—a minority of the states that did not provide counsel, so that you could say that this was a departure from law as it was when cert was granted. Whereas with something like Miranda, the court was very much establishing a new norm.

McCreery: Yeah, that’s an important distinction, isn’t it? And he had established quite a record of going into new territory, on some issues.

01-00:50:56 Lawson: Oh, yes. Yes. Yes, it didn’t bother him. And it didn’t bother him that there people out there saying, that isn’t the way jurisprudence should work. As far as he was concerned, is it fair or is it not fair?

McCreery: Was that criticism of him justified, in your own view?

01-00:51:23 Lawson: Well, it depends on what role you think the Court should have. I suppose that’s the ultimate question, is just how big a role should the Court play? I suppose the downside is if they have too big a role, it sort of isn’t democratic, with a small d.

McCreery: Right.

01-00:51:49 Lawson: That the things are being decreed from above and there’s not much you can do about it.

McCreery: I wonder if the Chief Justice ever spoke with you clerks about the role of the court or sort of a judicial philosophy. He certainly had a record establishing his judicial philosophy by then, but do you recall conversation at that level?

01-00:52:21 Lawson: I sort of recall after he was retired, [his] saying something about Roe versus Wade, that they had always criticized his Court for making law. This went beyond anything they thought of doing. So he was aware of the criticism, but it didn’t disturb him.

McCreery: Okay. Did you have any knowledge of his relationship with President [Lyndon B.] Johnson?

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01-00:53:10 Lawson: Not really, no.

McCreery: Who had, of course, just been reelected fairly recently, when you were at the Court.

01-00:53:22 Lawson: No. If there was contact, I don’t think we were aware of it.

McCreery: Okay. We hear a lot nowadays about this idea of judicial activism, this term that people love to use. I wonder, without putting words in your mouth, to what extent would you apply that term to Chief Justice Warren, if at all?

01-00:54:00 Lawson: Well, certainly, it’s creating a new Criminal Procedure Code. I think most of the activism, or what might be called activism, was directed toward criminal procedures and search and seizure, confessions and various things. But it varies what they’re active about, from time to time.

McCreery: Yeah. And of course, the country’s views were evolving over this time, too. There’s always the question of what’s the cause and what’s the effect?

01-00:54:47 Lawson: Well, I think, certainly, in the criminal procedure area, that it wasn’t forced upon them, that this was—. Well, it was forced upon them, in the sense that if they hinted they might consider something, they’d get lots of petitions. But I don’t think it was a movement in the country that they reflected; I think it was their thing.

McCreery: I wonder what you learned from having clerked for the Chief Justice.

01-00:55:24 Lawson: Well, it provided a lot of insight into how the process worked, I suppose. I guess in later years, I’ve appreciated more and more the leadership qualities that he had that some people didn’t, that there really was higher level.

McCreery: Yeah. You said you went on to have government service.

01-00:55:55 Lawson: Yes, yes.

McCreery: First of all, in the Antitrust Division?

01-00:55:57 Lawson: In the Antitrust Division, and then with the Federal Communications Commission.

McCreery: Who hired you at Antitrust?

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01-00:56:09 Lawson: Somebody had forwarded my résumé to the Solicitor General, and he sent it on to the Appellate Section Chief at the Antitrust. The Assistant Section Chief had just become chief of some other section, so he was looking for somebody; and I guess the people who were there were fairly junior. So I think it was really, he looked at the résumé and decided, yes, I think I’d like to talk to this fellow. So I interviewed with him and other people there, I think when I came back to Washington for a Reed law clerks party. Then I got an offer.

McCreery: How did you like that work?

01-00:57:07 Lawson: A great deal. I liked the appellate work. Worked on some Supreme Court briefs and so forth. But then later on, when I was more involved in policy making type things at the FCC, I didn’t necessarily—. You move on. But it was fun, too, to be involved in the decision-making process. Well, I guess antitrust, to some extent, the litigation is the decision-making process. The courts are making the law, and you’re telling them what you think they should be doing. Whereas when I did appellate work at the FCC, well, it was more a matter of—. The decisions had been made; we were just there to defend whatever the Commission had done. And might be defending something that was decided two years before, under a different chairman, that nobody cared about anymore.

McCreery: [audio file stops, re-starts] We were talking about your time at the FCC. I gather you were in the General Counsel’s Office?

01-00:58:30 Lawson: Part of the time.

McCreery: Part of the time?

01-00:58:31 Lawson: And part of the time in the Common Carrier Bureau. In the Common Carrier Bureau, I worked on lots of rule-making.

McCreery: Okay. Well, I wonder to what extent you stayed in touch with the Chief Justice, in later years.

01-00:58:52 Lawson: Well, they had the law clerks dinner once a year, and then he would have a brunch the next day and invite the clerks and their wives. But of course, I was in California part of that time, so I didn’t attend all of them. Then once we were back here, well, he died a couple of years later, I think. I went to something in Berkeley once. They dedicated something to him; I’ve forgotten what. But I remember going up from Los Angeles to attend this ceremony at the law school there.

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McCreery: Well, is there anything else you’d like to say about the Chief Justice or your time with him?

01-00:59:49 Lawson: Not particularly. It was a very enjoyable time and a very educational experience, something that I appreciate very much.

McCreery: Is there anything else I should’ve asked you?

01-01:00:14 Lawson: Not that I recall.

McCreery: Okay. Well, thank you very much for sharing your recollections.

01-01:00:19 Lawson: Well, thank you.

McCreery: Okay. I’ll turn this off.

[End of Interview]