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

Tyrone Brown THE LAW CLERKS OF CHIEF JUSTICE EARL WARREN: TYRONE BROWN

Interviews conducted by Laura McCreery in 2005

Copyright © 2014 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 Tyrone Brown dated August 2, 2005. 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:

Tyrone Brown “The Law Clerks of Chief Justice Earl Warren: Tyrone Brown” conducted by Laura McCreery in 2005, Regional Oral History Office, The Bancroft Library, University of California, Berkeley, 2014.

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Table of Contents—Tyrone Brown

Interview 1: August 2, 2005

Audio File 1 1

Family Background — Early schooling in New Jersey — Choosing a career — Undergraduate at Hamilton College — Well-rounded high school student — Deciding on a career in law — Representing black people in college — Attending Cornell University — Dean and faculty at Cornell — Civil rights cases — Cornell Law School unaware of the happenings in undergraduate campuses during mind- 60s — The Vietnam War — Appointment as clerk on the Supreme Court — Settling in Washington — The Southwest case — Poor, but rich — Starting the clerkship — Handling the in forma pauperis docket — Responsibilities divided among the clerks — Relationship with other clerks — Changing homes during childhood — Thurgood Marshall swearing him in as commissioner at the FCC— Clerking for Earl Warren — Saturdays at the University Club with Warren — The year of 1967 — Richard Nixon’s election — Relationship between Warren and President Johnson — Mrs. McHugh overseeing the clerks — Annual dinner — Johnson’s appearance at the annual dinner — Personal relationship with Chief Justice Earl Warren — Martin Luther King Jr. and Robert Kennedy and Warren

Audio File 2 19

Raiford State prison case — Warren’s political skills — The language of the decisions — Working with Warren on a written opinion — United States v. O’Brien — Clerks helping Warren develop his thoughts on a case — Stare decisis — Lunch with the judges and justices — “The Constitution: That Delicate Balance,” a television series— Fred Friendly — Episode concerning affirmative action — Larry [Laurence] Tribe — Lunch with Judge Bazelon and Judge Leventhal — Relationship with Justice Marshall — Attending oral arguments — Warren assigning opinions — Court personalities in the conferences — Warren and Brown’s mother — Warren as an ordinary person — Robert Kennedy’s assassination — Aftermath from Martin Luther King Jr.’s murder — Warren’s stubbornness — Barenblatt v. Sweezy — Warren as his mother’s hero — “Impeach Earl Warren” sign — Lessons learned from Warren — Warren’s moral convictions — Warren starting to waver — Defining Warren’s jurisprudence — Announcing his retirement to the clerks before announced publicly

Audio File 3 38

Warren’s views about the Constitution — Working for Edward Muskie and Jimmy Carter — Warren’s influence on narrator’s career decisions and outlook — Going into public service — Start-up communications projects — Working at the v

Washington Post — Admiration for Warren passed down by his mother — Reflection on clerkship

[End of Interview]

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Interview #1 August 2, 2005 [Begin Audio File 1]

01-00:00:00 McCreery: This is tape number one on August 2, 2005. This is Laura McCreery speaking and on this tape I’m interviewing Tyrone Brown at his law office at Wiley Rein & Fielding in Washington, DC and we’re talking today in connection with the oral history project Law Clerks of Chief Justice Earl Warren. Let’s start with a little of your own background, beginning with your date of birth and a few words about where you were born.

01-00:01:01 Brown: Okay. Well, I was born in Norfolk, Virginia, on November 5, 1942. To place a time, it was during the month that the United States invaded North Africa during the Second World War. My parents had grown up in country areas outside of Norfolk, Virginia, both of them, and my dad had a heart murmur and was ineligible to go into the Army during the War and so he worked at the Navy base in Portsmouth and that’s how I came to be born in Norfolk. My family left the Tidewater area of Virginia probably in 1946, something like that, and I grew up in New Jersey.

01-00:01:53 McCreery: Tell me a little bit about your early schooling in New Jersey, if you would.

01-00:01:59 Brown: We were poor. Not as poor as I sometimes think we were. Because my parents actually were able to have us grow up as though we were middle class children, although my dad, who was a “hod” carrier, a ditch digger, a union ditch digger, if he’d ever missed a week of work we probably wouldn’t have eaten that week. He just never did. And I and my five brothers and one sister went to public schools in Newark, New Jersey. It was then called the Roseville section of Newark, New Jersey. Very mixed community. I remember the elementary school that we went to that looked like an apartment building. Had been built in the 1880s. Had really no playground but it had a group of very strict, mostly German, teachers. And we were taught well there. We learned.

01-00:03:03 McCreery: How did you like school as a youngster?

01-00:03:05 Brown: Oh, I loved it. It was an outlet for me. It came easy for me. I sometimes like to say I never met a standardized exam I didn’t like. It seems to be genetic somehow. My kids are that way, too. But I really liked school. I looked forward to it and I did well all the way through elementary school, really through college and law school.

01-00:03:29 McCreery: And where were you in the order of your siblings?

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01-00:03:31 Brown: I was third.

01-00:03:32 McCreery: Third.

01-00:03:32 Brown: I have two brothers older. One of my brothers died when he was nineteen but I was third. And then the sister is in the middle and then three more boys.

01-00:03:42 McCreery: Okay. Now, when you were going up through school and through high school, what were you thinking about for yourself in terms of what to do next? Do you remember?

01-00:03:55 Brown: Well, I remember my mother, like all black mothers back then if their kids were doing well in school, thought I was going to grow up to be a doctor. But I never really had that kind of drive. For a while I wanted to be a minister, actually, and it wasn’t until college that I decided to go to law school. Certainly I had two heroes during my years in high school and they were Thurgood Marshall and Earl Warren, largely because of the way they had come together in that very important decision in Brown v. Board of Education. But they were kind of legendary for me, and so you can imagine how it felt to actually work in the same building as the two of them.

01-00:04:51 McCreery: Okay. And was that also part of your family life? Learning about them and—

01-00:04:56 Brown: Well, it was. My parents, neither one of them graduated from high school but they were both bound and determined that their children would get solid educations. And I’m proud of the fact that with my dad working as a laborer, my mom as a nurse’s aide part time, that one, two, three, four of their seven children attended and three graduated from college. So they’re my heroes. In college my interests were really in literature more so than anything else. It was really toward the middle of my junior year that I decided that law school was the right place for me.

01-00:05:40 McCreery: Okay. Now, you went to Hamilton College, I noticed—

01-00:05:42 Brown: That’s correct.

01-00:05:43 McCreery: —as an undergraduate. What did you actually study there? Was that a literature—

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01-00:05:49 Brown: Well, I majored in philosophy and religion. As I said, I thought at one point about becoming a minister and I took a lot of philosophy and religion courses. I took a lot of literature courses, played football and ran track. It was a boys’ school. I say boys because most boys are boys until they’re forty, as I see it, but certainly in college they are. And it was a good place. I got a good education.

01-00:06:19 McCreery: How did it come about that you went to Hamilton?

01-00:06:23 Brown: I went to Hamilton because the gentleman who was my high school JV football coach, advisor for my—and it was a large high school, large urban high school—advisor for my class, student council advisor when I was president of the student council, math teacher—this was a school of 1800 students and we just kept bumping into each other. He started taking me to Hamilton College during the spring of my freshman year and we went there once a year. And it was a long ride. We’d go and stay overnight once a year for three years. And so when it came time to apply to college, Hamilton was really the only place that I knew about other than Rutgers State University in New Jersey. So it was kind of foreordained.

01-00:07:18 McCreery: Now, you mentioned president of the student council. So you had some, shall we call them political interests, as well, or event person?

01-00:07:28 Brown: No. I was a high-school Harry, kind of did everything. Editor of the newspaper, president of the student council , member of the boys’ court, the president of the band. Maybe I was a little manic or something—just kind of did everything and played sports, except in my fourth year. And I kept my grades up. I don’t know where I got all the energy. Gees, when I think back about it.

01-00:07:58 McCreery: Now, you said that sometime during college then you began to think about law school. Do you recall where that idea came from or where you influenced by others in thinking of it?

01-00:08:08 Brown: I knew quite well a guy who went off to the Yale Law School who was one of the few blacks at Hamilton—I was the only black in my class at Hamilton. And this guy, Drew Days, was one of two, I think, in his class and he went on to the Yale Law School and that kind of made me think about it. He was a year ahead of me. I had also taken a number of government courses, public policy kinds of courses and I seemed to have an aptitude for dealing with those kinds of issues so I thought it might be fun, interesting. I read a book.

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The book was called Gideon’s Trumpet. It was written by Abe Fortas, oddly enough.

01-00:09:03 McCreery: Anthony Lewis.

01-00:09:03 Brown: I’m sorry. It was written by Anthony Lewis, you’re absolutely right. But it was about Abe Fortas and his law firm’s representation of indigent Gideon. Gideon v. Wainwright is the case that established the constitutional right to defense counsel in criminal cases. And I had read that in my senior year in college, maybe in my junior year. But I read the book. And I’ve told Anthony this since then. That decided me to really want to go to law school. I wanted to do that. Seldom do we get to do the chance to have an impact, but I was moved by the power of the law as exemplified in that book.

01-00:09:42 McCreery: Now, you mentioned that there were no other black students in your class in college. So already at that early stage you were there as an individual but also perhaps as a symbol for others. What were your thoughts at the time or what did you think about?

01-00:10:03 Brown: I didn’t see it that way. At various times I saw myself as a representative of my family but I really didn’t see myself as somehow a representative of black people. I carried other burdens. That burden I didn’t carry with me to college. Carried more a class burden because then Hamilton was maybe 60 percent prep school and I came from an urban, very mixed, some would say tough, public school. And so that was a large jump, more so than the racial one, as far as I was concerned, at least. I may have looked strange to people around there but that would have been their problem.

01-00:10:52 McCreery: Well, thanks for that distinction. Now, how were your experiences there among that student body?

01-00:10:59 Brown: Really wonderful. I recognized later in life that I kind of parked part of my emotional self at the front door when I entered the place. But that was my problem. That wasn’t their problem. People treated me very well. I did whatever I wanted to do and I wanted to do a lot. Made some very good friends there and got a fine education. But in terms of emotional growth, didn’t do a lot of that. But, as I say, that wasn’t their problem, that was my problem.

01-00:11:45 McCreery: Well, talk a little bit about your thoughts of going on to law school and how you approached the matter of where to go and whether you had any assistance with that.

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01-00:11:58 Brown: Well, one thing I did. I think I only drank too much twice maybe during my entire life. Both of them were in college. One was at the end of my freshman year when I had one more exam to go. Kept me off the high honor roll that year. Got a D in a French exam. And the other was the night before the LSATs. Yes. But I did very well still, so it didn’t hurt. I don’t suppose it hurt. And, again, how did that work this way? One of my professor friends at the college was very close to the dean of admissions at Cornell and I met the dean of admissions at Cornell at this professor’s home one Saturday afternoon after a home football game, where I did not play very well. And he said, “Come on, take a look at Cornell.” So I came down and liked it. The other place that I interviewed was Columbia University Law School. And I liked the school but decided I didn’t want to be poor in New York City and so I went to Cornell. And both gave me very, very generous scholarships or I wouldn’t have been able to go.

01-00:13:32 McCreery: Well, what did you find at Cornell when you arrived?

01-00:13:35 Brown: I found a wife. I found that the law did come pretty easy to me. And I found that I really enjoyed the study. I really, really enjoyed it. And I seemed to be pretty good at it. First term I did nothing but study and I hadn’t done that in many years. And I had gone out with this woman kind of long distance. Hamilton’s fifty miles from Cornell and she was an undergraduate at Cornell and nobody had cars. And I remember telling her that we had to only see each other on one day during the week during that first year of law school because I was working so hard. Silly me. And then at the end of the first semester I was fiftieth in the class. I just couldn’t believe it. I was absolutely flabbergasted. Devastated. Absolutely devastated and I remember seeing the dean of admissions. And he was saying, “Well, you did okay. You’re just about in the top quarter.” And I was livid. I said, “I didn’t come here to be in the top quarter,” and walked away. Then in the second term I was first in the class for the semester. I had relaxed, didn’t work as hard. I think I worked smarter maybe. Oh, I’ll never forget that.

01-00:15:30 McCreery: But the law made sense to you? It was a good match?

01-00:15:31 Brown: Oh, yes. Yes, yes. Intellectually. I like the chess part of it. And I did enjoy that. Mostly I’ve become a business transactional kind of lawyer, closer to being a businessman at this stage than being a lawyer. But when I get into the law, I am at home. I like the finer points of argument, never been a court lawyer though.

01-00:16:05 McCreery: Well, talk a little about the dean and faculty. Was there anyone you especially connected with at Cornell?

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01-00:16:11 Brown: Oh, yes. Professor Holden, who taught commercial transactions. Professor Oberer, who taught labor law. Professor Gray Thuron, taught procedure. He was kind of a jack of all trades. And he was the guy who wrote a letter to Earl Warren at the beginning of my third year in law school, and I didn’t even know about it, recommending me, and I think he got some other professors to sign it and that’s how I wound up getting my interview for the clerkship.

01-00:16:53 McCreery: And how did you learn that this had happened? When they called you for an interview?

01-00:17:00 Brown: Mm-hmm.

01-00:17:02 McCreery: Okay.

01-00:17:03 Brown: And then he told me.

01-00:17:03 McCreery: Oh, okay, all right. Well, we’ll come back to that in a moment. You were managing editor of the law review at Cornell.

01-00:17:12 Brown: Right.

01-00:17:13 McCreery: Now, what sort of a publication was it when you and your fellow students took it over?

01-00:17:18 Brown: As a matter of fact, it was kind of a transformation. We were elected to the law review based on class standing at the end of the first year. Until that point, in 1965, it was called the Cornell Law Quarterly because it was published four times a year and it was behind by maybe a year, close to it. And the group of editors the year ahead of us basically put out two years of the law review. They brought it up to date and we turned it into the law review and we published it six times a year. But they really get the credit for it. We did the work. They pushed us like crazy but they basically got the doggone thing out and on schedule. It focused more so than many on state law and state law issues, as did the Cornell Law School. Cornell basically trained people to go into practice either in Albany or Poughkeepsie or Buffalo or Wall Street, New York City. And so it was very heavily oriented toward business law and to New York State practice. As a matter of fact, I only took one constitutional law course and one federal jurisdiction course in law school. But it was a good place. The class was 190 students. I was the only black in the law school for one or two of those years, the only black in my class. I treated people like people, they treated me like people. I loved it.

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01-00:19:40 McCreery: So with the law review and in other regards, how much was writing emphasized in that program? Being it had such a business and state government emphasis.

01-00:19:49 Brown: Oh, yes, but still you had to write as a law review novice. You were elected to be what they called a competitor. Law reviews were very different than they became a few years after that. We were still in the phase when law review work was almost like an Army hazing in a way, but intellectually. You worked your tail off all the time. During my sophomore year I managed to get two “Notes” published. Most people got one published. I managed to get two out because the first one I did was completed pretty quickly, so that gave me an opportunity to do a second one. And I probably could have been the editor- in-chief, I was supported for that position by many, but I turned it down. I wouldn’t run for editor-in-chief, thought another student was better qualified. I wanted to be managing editor. I knew what I wanted to do.

01-00:20:59 McCreery: More hands on. Why was that?

01-00:21:04 Brown: I felt like that’s what I was meant for. I don’t know.

01-00:21:12 McCreery: Before we started taping we touched on the fact that—

01-00:21:15 Brown: And I was right because when I edit other people’s work I have a tendency to rewrite it completely and you can’t do that. The editor-in-chief was ultimately responsible for editing the work of outside publishers and, boy, if I put my hands on—

01-00:21:30 McCreery: Still true today, huh?

01-00:21:33 Brown: No, I’ve gotten better about that. I’ve gotten better about it. Yes.

01-00:21:37 McCreery: Okay. I was just saying that before we started taping we mentioned the fact that you’ve written a very thoughtful essay which was published in an anthology in the nineties having to do with the Warren Court. In that you talk about being in law school and the mention of this book, Gideon’s Trumpet, which you spoke of a moment ago. That your professor had a different view of the whole thing. Can you tell me a little bit about that?

01-00:22:09 Brown: Oh. Oh, yes. Oh, gosh. He was the dean of the law school. He was a southern gentleman, a real gentleman and was always very good and supportive toward

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me. But his view of the constitution was that the Warren Court was too activist. That they were engaged in social engineering. And they were to some extent, certainly, as is the Court today, just in the opposite direction. And he was a constitutional law professor, Ray Forrester. He taught me Con law and he was kind of a literalist in terms of interpreting the Constitution. So that he would see cases in which the Court basically incorporated the Fourth Amendment, the Fifth Amendment, the Bill of Rights into the due process clause of the Constitution as somehow being judicial legislating.

01-00:23:29 McCreery: Yes, they were doing a lot of that by then.

01-00:23:31 Brown: And they were doing a lot of it. I went to law school in 1964 and so a lot of the battles in the criminal procedure area and in the civil rights area were fresh and hot on everybody’s mind. Heart of Atlanta [Motel v. United States], a major civil rights decision by the Court dealing with discrimination in interstate commerce, places of public accommodation, I think was decided in ’64, maybe ’65. Of course, the Voting Rights Act was adopted in ’65. The ’64 Civil Rights Act. It goes on and on. So it was the heart of that time. And it was also the throes of the time, when the Chief was a lightning rod, as he very much was, although I didn’t have an appropriate sense of that because I hadn’t spent time in the South since I was three years old except for one very short period of about nine months when I was eleven or twelve. And so I didn’t really have the sense of that that I grew to have later in life. And all of us who lived during that period, came to young adulthood during that period, you look back on it and it was just the way it was. You didn’t see yourself as going through really a special time.

01-00:25:25 McCreery: Didn’t know any different.

01-00:25:26 Brown: Yes, yes.

01-00:25:27 McCreery: Well, to what extent was the law school itself changing because of these goings on not only in the Supreme Court but in the world at large around you?

01-00:25:37 Brown: Well, what was changing very quickly, and I got some inkling of it because my wife was an undergraduate and then a graduate student at Cornell during the period that I was in the law school, was the campus was going—what shall I say? They were becoming flower children. And we in the law school kind of looked back and said, “What’s going on there?” because I would say somewhere around ’64, ’65, ’66 there was a generational cleavage and if you were on one side of that cleavage it was like you were in Mars and the other people were on Venus or something. It really was that different. And it was a couple of years difference. So that I would say that generally at the Cornell

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Law School the students were out of sync with what was going on on undergraduate campuses around the country then.

01-00:26:48 McCreery: And, of course, the Vietnam War was very much an issue, particularly as you went through school and afterwards. How much was that infringing on your experience?

01-00:26:58 Brown: Well, the critical year was maybe ’67 or ’68 because it seemed that, as I went through college and then law school and then my clerkship, that I would complete a deferment from military service and they would eliminate that deferment from military service that year and I’d move on to another deferment. And I just—

01-00:27:26 McCreery: Barely.

01-00:27:27 Brown: That’s what happened to us if we stayed in school. And I just barely did it. And, as a matter of fact, my draft board, which had kept deferring me— basically I wrote them a letter and begged them to let me do the clerkship. And they wrote back and said, “Okay, we’re going to let you do the clerkship but don’t write us anymore. Just show up at the end of the clerkship for your induction.” And then I had a baby so that was that. But yes. And that was another way in which, as I look back on it now, that generational cleavage took place because we were able to complete our educations and move on with our lives. People just two years younger had to deal very seriously with the issue of the war and what they were going to do about it and how they felt about it.

01-00:28:27 McCreery: And the war itself changed as it went on, too.

01-00:28:30 Brown: Oh, sure. Yes, yes.

01-00:28:34 McCreery: Well, you described having a letter written in your behalf regarding the clerkship and then subsequently finding out that you’d been accepted.

01-00:28:46 Brown: Well, what happened was I got a letter. I believe the letter came from one of two gentlemen. Maybe it came from the Chief. I think it came from one of two gentlemen. What Warren did was he would refer people who were recommended to him to two gentlemen here in Washington. I think there were two of them only. Murray Bring, who was a clerk for the Chief in the fifties, and—I can see him.

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01-00:29:25 McCreery: Mr. Dempsey?

01-00:29:25 Brown: Bill Dempsey. Both were partners at prestigious firms in D.C. Oh, yes. And they interviewed me. I came down on the bus from Cornell because it was really kind of the only way to get here. And it was in Bill Dempsey’s office over on Fifteenth Street. Had a haircut at Wall’s Barbershop, a black barber on the same street. We spent, I don’t know, an hour and a half together. I went back to school and at some point a few weeks later a letter arrived from the Chief arrived and that was it. I couldn’t believe it. Just couldn’t believe it. As a matter of fact, I had decided that I did want to clerk and had applied with a couple of court of appeals judges in New York City, Second Circuit judges. For one thing, it never dawned on me that I might clerk on the Supreme Court. But beyond that, it was generally understood that you didn’t clerk at the Supreme Court fresh out of law school. Unless you clerked for the Chief. And he took his clerks fresh out of law school. But most of them did not.

01-00:30:51 McCreery: Well, what were the next steps, then, in coming to Washington and getting yourself set up for this adventure?

01-00:31:00 Brown: I finished law school, studied for the bar in upstate New York. Stayed up there because that was the easiest way to do it. About halfway through the summer I came to Washington looking for an apartment. Didn’t find anything. I think after I finished the bar my wife and I came down for a weekend and we found an apartment down in what was then called the New Southwest, which oddly enough, ironically, had been the subject of a major Supreme Court decision in the eminent domain area, over removal of a pre-existing slum.

01-00:31:54 McCreery: Oh, really?

01-00:31:55 Brown: Possibly the last great eminent domain case by the Court before the most recent one written—

01-00:31:59 McCreery: Recent one, yes.

01-00:32:00 Brown: —by Justice Souter. The D.C. case had to do with urban removal in the Southwest section of the city, where they built a number of developments, condominium type developments and leveled the slum down there. And we found a place there close to the Court. It made sense. And then I went back and took the bar. July 17th was when I arrived at the Court.

01-00:32:33 McCreery: Do you remember that day?

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01-00:32:36 Brown: The day itself, yes. I certainly remember other days as well. On that day what I found out when I got there, the first most important thing I found out, was that I had arrived midway through pay period. Back then in the federal government, if you started on the wrong day you’d go three weeks without getting paid because you were paid every two weeks and they were a week behind. We were poor. I remember the last weekend before my first check came we, Carolyn and I, had $2.50 to get us through Tuesday. We laughed about it. We were poor but we were rich. So it didn’t matter. I had never driven because my dad had one car. He had six sons. And it was clear that we were not going to drive his car if he was going to have it to do what he had to do so we never asked. And I didn’t have a car through college or law school. But we bought a 1963 Beetle bug, packed our books or as many things as we could get into the Beetle, all around us, and drove to Washington and that’s how we moved. And our parents brought stuff down later. But that was it. But, as I say, we were poor but we were rich. Yes, yes. In Ithaca, no television. Who needed a television? No telephone. Who needed a telephone? So it was a different—

01-00:34:11 McCreery: It’s not that long ago but how much things have changed.

01-00:34:11 Brown: Yes, it was a different time. Yes, it was a different time.

01-00:34:14 McCreery: Yes, very much so. Well, say just a little bit then about starting off at the Court. What do you remember about the very beginnings? Of showing up there.

01-00:34:24 Brown: The Chief’s way of doing it was to have one clerk holdover to kind of orient the new clerks to their positions. The person who had that role for us was Benno Schmidt, who taught at Columbia, ultimately became president of Yale University. Actually, I think he was president of Yale when both of my sons were there, so I know what he did. But that’s how I got to know Benno. It was his job just to orient us to clerking. And I think maybe that lasted for a week or two and then we were on our own. What happened then? Over the summer there’s a large buildup of cert petitions, petitions for review by the Supreme Court, and our job was to dig into that pile of cert petitions and get them caught up and that’s how you got introduced to this stuff. And you pounded it out.

01-00:35:38 McCreery: Yes. The volume was very great, from what I understand.

01-00:35:42 Brown: Yes, yes. Well, we had the extra added joy of handling the in forma pauperis docket, the unpaid docket, which was largely petitions from people in prisons.

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It was made very clear to us that since we were the only ones who were looking at that stuff, the Chief wanted us to look at it very carefully. And we did. And so that was the reason why he had an additional clerk, but it was also the reason why you had the help of the Reed clerk and the Tom Clark clerk, too, who were clerks for retired justices and were effectively part of the Chief’s working “family”. And that basically doubled the output of our office. The appellate docket then was something under 2,000 petitions to look at. And the unpaid docket was seventeen, eighteen hundred to look at and make recommendations and move them along.

01-00:36:53 McCreery: Well, say a few words about your co-clerks, if you would. You were a larger group that year. Earl Dudley, who’d gone to the University of Virginia, Larry Simon from Yale.

01-00:37:06 Brown: Charlie Wilson, Berkeley.

01-00:37:07 McCreery: Charlie Wilson from Berkeley, my institution. And then Larry Nichols—

01-00:37:12 Brown: Larry Nichols, yes. Right.

01-00:37:13 McCreery: —from Michigan. He, of course, was technically clerking for Justice Clark, as Mr. Dudley was clerking for Mr. Reed.

01-00:37:20 Brown: I think all of us were given, including the Reed and the Clark clerk, were given responsibility for taking the laboring oar and the researching and blocking out full opinions for the Court. The three of us who were specifically assigned to the Chief may have gotten two or three opinions to concentrate on and Earl and Larry may have gotten one or two or something like that. But everybody had that responsibility. We shared equal the responsibility for doing what we called bench memos, which were cases that the Court had decided to hear full argument in. We would have the responsibility of putting together a research paper in summary form for the Chief as a memo for him to review before the case was argued. And we shared that responsibility and we shared equally the responsibility of making recommendations on petitioner cases.

All very nice people, all very smart, hardworking people. We got to know each other very well at a kind of working level because we worked together all the time. We didn’t have much of a social life. We’d go to each other’s homes on weekends. Sundays, excuse me, not weekends because Sunday was the weekend. But we just worked very hard together. We argued cases among ourselves, of course, and we did with the other clerks. Charlie, I felt, was the best prepared among us in terms of formal education in constitutional law. I

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thought Larry was the smartest, the quickest. Earl was very, very solid, very, very well grounded. And Larry was a good man to have around and he worked very hard. And I don’t know what I did, just tried to get my work done. It was kind of a frightening experience for me. As I look back on it, I’m not surprised. I had come a very long way in a very short time and hadn’t stopped to take a breath. If I had, I might have collapsed or something. But come a long, long way. I’m glad I did it but it was a strange environment.

01-00:40:19 McCreery: And there’s no question that your experience had to differ somewhat from those of the other clerks.

01-00:40:25 Brown: Yes. In 1954, I think it was in ’54, I told you we lived in Virginia for about nine months. I think that was 1954. Yes. Would have been ’53, ’54. My parents just had gotten to the point where they found it very hard to live in New Jersey and try to raise seven kids, six boys, and keep them out of trouble and that kind of thing. And so they just picked up and moved back to the Virginia Tidewater area where they had grown up. And we lived outside of Portsmouth, Virginia for a year and went to an absolutely spanking brand new school. Very ironic, that had been built as the State was trying to address the problem of separate but not equal by making the infrastructure more equal. And it was fine by me. My oldest brother ran away from home. He was found back in New Jersey, and my father also went back to New Jersey where he was “Brownie” and not “Boy,” and where the former was not “Captain.” So my parents moved us back to New Jersey. We couldn’t stay there. But I’ll never forget that that school was spanking new. But that was the year that Marshall argued and the Warren Court decided that case, Brown v. Board. Well, actually, they argued it the year before and it was decided—

01-00:41:56 McCreery: Carried over.

01-00:41:57 Brown: Yes. Thurgood Marshall, his first term at the Court was the year that I clerked.

01-00:42:07 McCreery: Yes, he had just arrived.

01-00:42:08 Brown: So he just arrived, yes.

01-00:42:10 McCreery: Yes. And so here was someone that you’d known of and your family—

01-00:42:16 Brown: I idolized him. Years later, as a matter of fact, he swore me in as a commissioner at the FCC. So I have pictures of him from that event. But, yes, he was a very smart and courageous man. And I know he could have avoided dealing with a lot of issues that he dealt with to the benefit of all of us.

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01-00:42:44 McCreery: Well, I’m just thinking about the fact that these two men have been held up as heroes, Earl Warren and Thurgood Marshall, and there you were at the Court with both of them.

01-00:42:59 Brown: Yes.

01-00:43:00 McCreery: What did that mean to you personally?

01-00:43:03 Brown: I wish now that I had been more able to appreciate them as human beings and not as heroes. They were heroes for me. Even though I’d worked for him for a full year, Earl Warren, the day I left was a hero for me. I remember, and I mentioned it in the article for the Warren retrospective, going into his office one day to meet his wife and walking “out” into his restroom instead of out of the office because I was so flabbergasted. And he was a dear man. He had a large family of children and he liked young people. I think he loved the idea of having his clerks kind of untainted by anybody else. That’s why he took them fresh out of law school. The one time that we got to spend with him in a relaxed way was in—and I’m sure you’ve heard about these—the Saturdays at the University Club over here on Sixteenth Street. The lady who was the receptionist in the restaurant, who was there in 1968, is still there working. [laughter]

01-00:44:24 McCreery: My goodness.

01-00:44:25 Brown: Funny. First of all, of course, the University Club didn’t admit blacks. They had no black members and you couldn’t eat there if you were black in 1968. And Earl Warren loved taking me in for lunch. What were they going to do? And so we’d sit with the other clerks and we’d spend the afternoon talking. Maybe we’d watch a baseball game or something. And then we would go back to work. He’d pick us up at noon, we’d go and have lunch, we’d sit and talk, and by six o’clock we were back in the office working. But this lady, really weird this woman. We’d come in and we’d sit down. He had a seat. It was a corner seat. And every week, without fail, she would walk over to me and take my napkin off the table before I could get to it and drop it in my lap and then she’d ask people what they wanted for drinks. I guess it was her way of saying, “Well, you’re not cultured enough to know, to figure it out.” Funny. Are you ready? I hadn’t been in the University Club in probably twenty years. At least twenty years. And I had lunch there maybe three months ago with somebody who’s a member there and that’s how I know she’s still there. And you know what she did? She picked my towel up and dropped it in my lap. [laughter] And I said, “I remember you.” I said, “Do you remember when Earl Warren used to come here every Saturday?” And she said, “Oh, I remember you.” I said, “I know you do.” [laughter]

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01-00:46:08 McCreery: Really?

01-00:46:09 Brown: Yes.

01-00:46:10 McCreery: That’s astounding.

01-00:46:11 Brown: No, it’s not. Why is it astounding?

01-00:46:13 McCreery: Well, first of all, it’s almost forty years ago.

01-00:46:15 Brown: Well, she’s still there. She is still there, yes.

01-00:46:20 McCreery: And still—

01-00:46:20 Brown: And she wasn’t young then. She didn’t strike me as being young then. Let’s see. You’re right. It was ’67. Yes, thirty-eight years ago. Yes. So there are ironies. It was a sad, turbulent year and I’m sure the other guys have talked about it. It was really a very strange year because of Martin Luther King’s assassination and Bobby Kennedy’s assassination. And from my vantage point in my office at the Court I could look out the window and see the smoke rising up from downtown when the riots occurred that year. It was the year of the Tet Offensive. It was the year of Lyndon Johnson’s abdication.

01-00:47:10 McCreery: Early on pretty much.

01-00:47:13 Brown: Yes. And Richard Nixon’s election. It all happened during that year so it was a strange time in the city.

01-00:47:22 McCreery: What effect did these events have on the Chief Justice?

01-00:47:25 Brown: I thought they had a major impact. He didn’t do a lot of talking about it. But I thought they had a major impact on him. I felt personally—and I say this because he never said it—but I feel personally that he resigned that year as a result of, I think, the Robert Kennedy and the Martin Luther King assassinations. I know that there are those that feel that he did it because he didn’t want Richard Nixon to appoint a successor but I don’t think it was that. I think he was really affected by those two events. And I think he felt that the country was probably moving in a direction that he couldn’t understand. Whether it was to the right or to the left, it was beyond him. That’s my

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feeling, or the sense that I had. But he didn’t talk in that way. At least not with us, he wasn’t the kind of person who talked that way. He was very deeply moved by both the King death and the Robert Kennedy death. And he liked Lyndon Johnson.

01-00:49:02 McCreery: Yes. They’d become friends, from what I understand.

01-00:49:04 Brown: He liked Lyndon Johnson. You could see it when you saw them together. He really liked the man.

01-00:49:10 McCreery: When did you see them together? Do you remember?

01-00:49:13 Brown: Yes. Oh, boy, do I remember. Huh. The Chief told us that he was going to resign before he told the public. He’d probably told the President. But nobody else knew except us. And this was shortly after Robert Kennedy was assassinated and that’s one reason why I feel that he reached that decision at that point. So I’m going to say that was maybe early May. I’m trying to think of when that was. Maybe May. Because Robert Kennedy had done something that very few people would have done. The Sunday after King was killed and the city was burning, Robert Kennedy walked with black ministers right through the heart of the area that had been basically bombed out. And that was Easter Sunday and so it was after that that he—what a year.

We attended the court session on his last day as Chief. He generally didn’t like us to go and listen to oral arguments. He wanted us working. So we seldom went to oral arguments. And they were taped. We could listen to the tapes. Well, we don’t know whether he didn’t want us to go or not. Mrs. McHugh said that he didn’t want us to go, so we tended not to go to arguments.

01-00:50:46 McCreery: So she was the instigator in this case.

01-00:50:48 Brown: Yes. He never said that to us. Yes. And he may have never said it to her. She saw it as her job in life to keep herd over this group of young men and she was very good at it. What a lady.

01-00:51:00 McCreery: How did you get on with her, by the way?

01-00:51:02 Brown: Fine. She reminded me of my mother. My mother is a tough domineering woman so I understood where Mrs. McHugh was coming from. But the last day of argument, and we were basically finished at that point. The last day that they were handing down decisions, in June of that year, we all went

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because we thought he was going to make an announcement. And he didn’t. But he had told us that he was going to resign. But he didn’t make a public announcement then, which, thinking about it, the Court’s business is the Court’s business and he was going to keep the two separate. He was very ritualistic in that way.

And we’re now in mid-June and what occurred in mid-June in those years was the Court would finish the term and within a week or two there would be the Chief’s annual dinner when all of his clerks and former clerks and their wives would come to Washington and spend the weekend with the Chief and Mrs. Warren and their family. And we would have a stag, a black tie dinner, at one of the clubs here downtown. Lawyers Club of some sort. And then we would have a brunch with spouses at the Congressional Country Club on Sunday morning. And both events, of course, were very well attended. And that year in particular I think all the clerks showed up, including one who had to take the equivalent of a redeye from someplace in eastern Europe, because we all knew that he was resigning. And Lyndon Johnson showed up at that event. It had never happened before. It was always the Chief and his clerks, nobody else ever came to that event. But Gunther, John Gunther—

01-00:53:15 McCreery: Oh, what’s his first name? Yes.

01-00:53:18 Brown: One of the clerks was in the administration.

01-00:53:21 McCreery: Yes. He’s deceased but yes.

01-00:53:21 Brown: Is he? Oh. I remember him so well. And he came with President Johnson. And the President came as a mark of honor, really, to the Chief Justice. And you could see then and there that they really liked each other as human beings. Forget about Johnson in Vietnam, because that was a different part of Johnson and it wasn’t really—I never particularly liked Johnson but, still, that was not the real Johnson. He found himself stuck with the War and didn’t know how to get out of it. The real Johnson was an old fashioned progressive. The real Earl Warren was an old fashioned progressive and I think they really had empathy for each other within that context. And both of them thought that the individual could make a major, major difference in terms of making our society more equitable and they both embarked on doing that, Johnson as President with his Great Society programs and Earl Warren as governor and then as Chief Justice of the United States.

01-00:54:59 McCreery: It’s a powerful idea, isn’t it?

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01-00:55:00 Brown: Yes, very. I’ve been in this town for thirty-seven years. I’ve been in rooms, of course, with all the presidents. I’ve met a lot of important people. Earl Warren and Thurgood Marshall I idolized and so some part of me was unable to relate to them as a human being the way we do with our heroes. President Carter interviewed me for the job as FCC commissioner. I have sat at dinner with President Clinton. But there was only one person who left me awestruck, and that was Lyndon Johnson. I have never in my life experienced as powerful a personality, and I’ve experienced some very powerful personalities, as Lyndon Johnson walking into that room that night. It was like lights went on. And they didn’t. It was weird. I’ve met with Jimmy Carter many times. I met with Bill Clinton many times. Haven’t met with Bush. Met with Richard Nixon. And I was young and impressionable. All of that is true. But still, the man had a kind of animal magnetism that I’ve not seen in anyone other than an NFL football player or somebody like that maybe. It was strange. Yes.

01-00:56:31 McCreery: Certainly his powers of persuasion were legendary.

01-00:56:33 Brown: Oh, yes. How could you say no? Gee.

01-00:56:36 McCreery: Yes. Persuading Justice Goldberg to leave for the UN.

01-00:56:40 Brown: Yes, right.

01-00:56:44 McCreery: And those are just Court examples. Yes. Okay, well, thank you. I am thinking about the fact that as you say you were there at the Court working with these two heroes, that is a little daunting to any young person. But what can you tell me about what kind of personal relationship you had with the Chief Justice? How did you interact with him?

01-00:57:09 Brown: Mostly on Saturdays and on Fridays. On Fridays he would read the Orders from the regular Conference of the Justices to the clerk of the Court. And we would sit in his chambers with him and the clerk as he read the orders from the conference in terms of dispositions of cases. And there’d be some back and forth on some of those cases as he was doing that. Mostly it was on Saturdays when we’d just kind of sit and talk about the cases. Earl Warren, I think more than being judicially oriented, was a consummate politician and he had a hale, well met kind of approach to dealing with people that was very attractive and very disarming and I think it also was a mask. I think it was a mask. I think there was a person on the other side of that mask that very few people got to know. I really believe that about him. I always have.

01-00:58:45 McCreery: Did you have any chance to see beyond the mask?

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01-00:58:47 Brown: Yes, I felt in those occasions at the end of the term that we got to see some of the inner person. Remember, all of this happened between April and June, 1968.

01-00:59:01 McCreery: Yes, with those assassinations.

01-00:59:01 Brown: The Martin King thing and the Robert Kennedy, Johnson announced that he was not going to run again maybe in early April, something like that. And those events were obviously having an impact on him and we were getting some real, what I felt was comments from the core of the man. Also, I felt that I came to understand him a little better when I worked on a little case which I felt was the most important thing I did that year, and it was an unpaid case. And I did a little draft of a denial. The Court was denying the cert petition and the Chief was dissenting from the denial, which he almost never did.

01-01:00:03 McCreery: May I pause just here and change tapes so that I don’t have to interrupt you midstream? Sorry about that.

[End Audio File 1]

[Begin Audio File 2]

02-00:00:32 McCreery: Okay. Here’s tape number two on August 2, 2005. This is Laura McCreery continuing the interview with Tyrone Brown. You were just leading into the story of this set of cases that you compiled.

02-00:00:49 Brown: Well, what had happened was in a state prison in Florida, I think it was called Raiford State Prison, there had been a prison riot and once they settled it down. The authorities within the prison, apparently they had taken a large group of black men who presumably were involved in the rioting, put them in cells where they were crowded body to body for days naked. The description that came out of—I’ll come back to the petitions—that came out of these petitions was that they got a bowl of gruel once a day. They defecated into a hole in the center of the cell and they were there naked and after a few days they were brought out with dogs. Kind of reminds you of Abu Ghraib, right? We won’t talk about that. With dogs biting at their legs and the prisoners told to sign confessions and they signed confessions. The prison authorities only made one mistake. They then took them out to the civil courts and had their terms extended. So obviously they were coerced confessions.

One of the Court’s rules back then, and probably now, is that for the most part they will not get involved in internal prison disciplinary matters. But I and my co-clerks, because—it was as though it had been a writing campaign—we

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kept running across these letters written on envelopes or whatever, describing this event. And they all described it the same. And so after a while, when you’ve got about fifteen of these things and they’re basically describing them the same way, you say, “Well, maybe something happened here really.” And so I recommended to the Chief that we ask the state to explain what happened. And the state didn’t respond, which is what Florida sometimes did then. Just didn’t respond. And they wrote another letter asking the state attorney general to respond to all of these letters, and they still didn’t respond.

And then it was inside our office because, as I said earlier, the Chief’s office basically briefed these in forma pauperis cases for the entire Court. So I briefed it and basically said, “There are a bunch of them and the State won’t respond and I think the Court ought to grant cert.” And the Court didn’t grant cert, I think because they saw it as internal prison discipline and they didn’t get involved in that kind of case. And I kept saying, “But they convicted them of crimes in a civil court and they extended their sentence with coerced confessions.”

And so the Chief decided to do a dissent from the denial of certiorari and I did the research because I had all these letter petitions. The other clerks in the office would give them to me when they came in and it was really a pile. And I drafted up something for him to work with and he said, “This isn’t it. You haven’t done it, Brown.” First time ever. “You haven’t done it, Brown.” And I said, “Oh.” Because what I’d done was I’d sanitized it and made it nice and lily white, as it were. He said, “You haven’t done it.” So I went back and I reworked it some, brought it back. He said, “You still haven’t done it.” And he stood up, banged on his desk, and said, “Doggone it, you tell them that they took these guys, stripped them naked, had them defecate in a hole, held them for days in a cell.” I said, “Okay.” So that’s what I did. And he worked on it and shipped it around the Court. And gradually, over a period of about two weeks, the other justices joined the dissent. First one, then another, then another, and then finally, at Conference one Friday, he says, “Well, everybody’s joined the dissent. What are we going to do?” And one of the justices said, “Well, okay, I guess we’re going to grant cert. But we’re going to reverse without hearing argument,” and that’s what they did.

But he just became thunderous in his rage about what had happened to these people, what these prison guards or policemen had done, and he wanted a change. And at one point he looked at me and he said, “Doggone it, say it exactly the way it happened and we’ll put it in those books,” pointing to the U.S. Reports, “and we’ll let posterity decide who was right.” And so that’s what we did.

02-00:06:15 McCreery: Do you know the process by which those other justices came around to join?

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02-00:06:22 Brown: And I believe this is still the case with the Court. The way that the justices communicate with each other is they write and they write drafts of opinions and drafts of this. And what we had was a draft of a dissent and basically the other offices are sitting there saying, “Do we really want this thing to go out of here without our names on it?” I was hearing from Mrs. McHugh what was going on but I don’t want to get into the details of that.

02-00:06:52 McCreery: Okay. And I don’t know if you have any window on whether the Chief Justice might have spoken to them individually or—

02-00:07:01 Brown: I do not. I do not. I know of one but I don’t feel comfortable talking about that.

02-00:07:06 McCreery: Okay, that’s fine.

02-00:07:07 Brown: He told me of the reaction of one justice, but I don’t want to get into that.

02-00:07:13 McCreery: Yes, that’s fine. Now, you had just mentioned earlier his great political skill.

02-00:07:17 Brown: Oh, yes.

02-00:07:18 McCreery: I wondered how he would—

02-00:07:20 Brown: Well, I think what he did here basically was just lay it out in all of its raw ugliness and said, “Okay, now I dare you guys not to join it.” That’s basically what happened.

02-00:07:33 McCreery: It stood on its own because of those facts that you—

02-00:07:34 Brown: Yes, right.

02-00:07:35 McCreery: He made you put in there. Well, just in general terms—

02-00:07:46 Brown: I’ve read a lot of the history of his Court and it’s clear that he was a consummate politician. To pull off what he did with Brown v. Board.

02-00:07:54 McCreery: Yes, when he was brand new.

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02-00:07:56 Brown: Yes. It took a major, major politician. The Court wanted to move. It didn’t know how to move. Even Vinson, who preceded him as Chief, wanted to move. He just didn’t know how to get there. And not just there. Some of these things have moved in opposite directions since then but the Miranda decision is all Earl Warren, basically, because he was a former prosecutor. He felt he understood how police operated. He felt he understood what they needed and what they didn’t need.

02-00:08:40 McCreery: And having the language right in the decision.

02-00:08:44 Brown: Yes, right.

02-00:08:44 McCreery: The Miranda language.

02-00:08:47 Brown: I’m sure that came out of his history, his experience in law enforcement before he became California Governor. But maybe not. Maybe not. The one person, one vote decisions. Major. Absolutely major.

02-00:09:04 McCreery: That was important to him, from what I understand.

02-00:09:06 Brown: Yes. I think this was the ’63 term. But yes. Very important. I can see him saying, “Congressmen represent people, they don’t represent cows. And legislatures represent people, they don’t represent cows and acres,” and stuff. Quintessential Warren.

02-00:09:33 McCreery: Is it?

02-00:09:34 Brown: Oh, yes.

02-00:09:36 McCreery: Well, talk a little bit more about the process of working with him on a written opinion. You gave this very rather unusual example but how—

02-00:09:48 Brown: Well, that one turned out to be atypical. Maybe atypical because it was the only time that he ever said to me, “You don’t have it.” I labored long and hard. I was a perfectionist. It took me many years to get past being a perfectionist and I labored long and hard on the things that I worked on for him to try to give him a good draft to work with. And on the other occasions, we had perfunctory discussions about them because I’d managed to capture what he was looking for and what he felt he needed.

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02-00:10:34 McCreery: How much did he tell you what he was looking for as you were starting out on writing something?

02-00:10:40 Brown: He would always. I’m not so sure he did on that denial of cert, because that didn’t start out as an opinion draft. That was just a way the Court was going to take the case or not, which is one of the 3,600 preliminary decisions that get made. But on all of the others, the case has been briefed first on the decision to take cert. Then the case has been argued and it’s been briefed at that stage, too, in terms of the bench brief for the justice. So that when you get to the point that he’s assigned it to himself for the opinion, you pretty much know, and we pretty much knew, where he was going, what rationale he wanted to take, that kind of thing. And if I recall correctly, I spent about forty minutes with him on each of the two that I worked closely with him on before anything got written, listening to him talk about the case and the way he saw it and the way he thought the Court saw it. Okay. And what problems he felt were going to be difficult that had to be dealt with. And then you’d go off and try to give him what he needed.

02-00:12:33 McCreery: Now, in those discussions was there much give and take or were you ever disagreeing or even suggesting other options or anything?

02-00:12:45 Brown: It turned out that the two things that I worked most closely with him on were—one was extremely technical, okay, and I consider it to be one of my— not a major achievement because it didn’t amount to a hill of beans. But in terms of the chess aspect of the law, I consider it to be an accomplishment because we managed to get a unanimous court in a situation where I’m not sure that everybody really understood what was going on in the case. It was just very technical. And I think they made the right decision but it kind of, “Oh, you got us there.” That kind of thing. And the other was a criminal procedure case. There was going to be a split, I don’t remember whether it was seven to two, six-three, but it was going to be a split. I kind of breathed a sigh of relief about that one, when one of the clerks of the one of the dissenting justices said, “Man, you guys really did a tour de force. If you’re going to go that way, that’s the way to do it.” So I said, “Fine.” But neither was a major departure in terms of the law, of the two matters that I worked very closely with him on. One was a slight extension of existing criminal law and one was an attempt to try to do something about an aspect of antitrust law.

But there were some very important decisions written by the Chief’s office during that term and on those matters we all would sit at lunch and argue about them and we’d talk about them at lunch. The person who had the major writing responsibility in those cases, he was living it. He was arguing it all the time and we’d talk about it. Let’s see, one of them was a major, major, major departure, and so was the second one. Yes. The two cases that I’m thinking of.

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02-00:15:34 McCreery: Yes. Some that I have listed for that year: US v. Robel, Terry v. Ohio.

02-00:15:39 Brown: Well, I had in mind specifically Terry v. Ohio.

02-00:15:41 McCreery: Okay, yes, and the second one was—

02-00:15:43 Brown: Which I considered had been a major departure. And the other one I considered that had been a major departure was the O’Brien case. Draft card burning case.

02-00:15:56 McCreery: Oh, Street v. New York?

02-00:16:02 Brown: It may have been United States v. O’Brien. Something like that. Oh, it’s a very, very important case. If it’s not on your list, it should be on your list. It was a case in which the Court upheld a statute which banned the burning of draft cards. See, the [Vietnam] War, of course, was coming into the Court and it was a difficult—but it was a major departure because of the approach that the Court took to the case.

02-00:16:36 McCreery: Yes, my mistake. The Street case—

02-00:16:39 Brown: I think it’s United States—

02-00:16:39 McCreery: —was a flag burning, so it’s a different—

02-00:16:40 Brown: Yes, yes. I think it’s United States v. O’Brien. I think that’s it. Yes.

02-00:16:48 McCreery: Well, I’m just trying to get a handle on how the Chief Justice would interact with his clerks.

02-00:16:54 Brown: Sure, I understand.

02-00:16:56 McCreery: How would he use you to develop his thoughts?

02-00:16:58 Brown: He’d give you points to research. He would tell you how he thought it needed to go. You could argue with him and say, “Well, you’re not going to get there that way,” or “You’re not going to be able to get Justice X because we know he won’t buy into that and you need him.” That kind of thing. So there’d be

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that kind of give and take, certainly. And he would dictate a draft. We would do the first writing. But the more important part of it was that we would work on the rationale.

02-00:17:44 McCreery: Now, what did he do if he needed to bring Justice X along? Do you have any knowledge of how he would—

02-00:17:52 Brown: I think that he would talk to them. I believe he was that kind of person. But you also, as I said, you did it in drafts. You’d go back and forth. And the Court does much more of that today than they did. They write much longer opinions today than they did back then.

02-00:18:12 McCreery: Why is that, I wonder?

02-00:18:12 Brown: I don’t know. But I know that he would talk with all of them. I know that because every now and then he would mention that he’d discussed a case with one of the justices.

02-00:18:32 McCreery: And after the Friday court conferences, when you would meet with him and hear about interactions?

02-00:18:36 Brown: They got along.

02-00:18:37 McCreery: Did they?

02-00:18:39 Brown: The most conservative member of that Court was John Harlan. The second John Harlan. And today he would be—I was about to say he would be Sandra Day O’Connor in terms of a place but he wasn’t as conservative as she is and he believed strongly in stare decisis. He didn’t want to take the social engineering too far. He’d rather say, for example, that he found that some act of a state authority violated the due process clause directly because it was offensive to the notion, of an ordered society, an ordered liberty, rather than say it violated the Fourth Amendment or the Fifth or the Sixth or that kind of thing. He believed the Bill of Rights, for the most part, applied only to the federal government. But they got along fine. They liked each other. There was not a partisan divide that I could sense. We didn’t spend that much time with the other justices. I spent a lot of time in Brennan’s office, in part because— well, I particularly liked his clerks. He and the Chief were very close philosophically. Many times Brennan provided a philosophical rationale for an approach that that side of the Court wanted to take. So I had the impression that the two of them were very close. I felt that he and Stewart really liked each other as human beings. And maybe there isn’t that attachment now. I

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don’t know. Maybe the intellectual divide is much greater than the personal divide. I wouldn’t know that.

02-00:21:01 McCreery: But others have mentioned this personal harmony at the time that you were there.

02-00:21:05 Brown: Justice White, we played basketball with him.

02-00:21:11 McCreery: Oh, did you? Tell a little about—

02-00:21:11 Brown: Yes. Yes. He was a rough basketball player. I’m sure you’ve heard. He was an All-American Football Player, I think, and he was still an athlete and he was still competitive and you might get an elbow. So yes. We had lunch with all of the justices, so that we got to at least meet all of them. Marshall liked to tell war stories and he had some great war stories.

02-00:21:48 McCreery: Did he? At this luncheon, for example, or just any time?

02-00:21:50 Brown: Or whenever. Whenever. Yes, he would sit down and tell war stories from his civil rights movement days and some of the scary situations that he had been in. And he’d laugh about them.

02-00:22:03 McCreery: Would he?

02-00:22:05 Brown: Yes, yes. Oh, yes. Yes. Years later I did something for public television service. The Annenberg Foundation had made a grant to the Corporation for Public Broadcasting to support production of a group of shows on perennial never-going-away issues under the Constitution. And I and Benno Schmidt and Charlie Nesson and the guy who spends more time on television as a lawyer than anyone else, who’s a professor at Harvard. I can’t think of his name right now. We did a series of thirteen shows called “The Constitution; That Delicate Balance.” The issues I did were money and elections and affirmative action. And there was the press and First Amendment versus government. There were criminal procedure issues. And they really made a good series. I did the program on Affirmative Action maybe in 1982, hah! I’d get calls from people as late as 2002 saying they’d seen me on television. PBS never took it off the air. I should have insisted on royalties.

02-00:23:52 McCreery: Royalties, yes.

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02-00:23:54 Brown: It was embarrassing because here’s this guy with no gray hair. “Haven’t I seen you?”

02-00:23:59 McCreery: They still remembered. Yes.

02-00:24:01 Brown: Well, the reason I brought it up is that Fred Friendly, who was running a program at Columbia on journalism and the law, produced this series of shows and they really were quite good and quite well done. We did them at Independence Hall in Philadelphia. Is that what it is? And Fred brought in on both sides of the issue the ideal cast of characters. The group that had to be there. For Affirmative Action, I don’t remember whether Anthony Lewis was there or not. Yes, he was. He was there for the affirmative action one. Well, Potter Stewart was my last witness at that particular one. I moved up through the panel from district court judge. The fact pattern that we dealt with was a university that has only one tenured position to give out in this particular year, in this particular department. And there are three people that the committee is actively considering. A woman, a black, and a “plain vanilla” male, a white male. We just build a fact pattern. They are all perfectly qualified. Basically, in terms of the criterion, one’s a great teacher, adequate writer. One’s a great writer, adequate teacher. That kind of thing. And we spend three hours going through these issues. And right at the end of it, I turn to Potter Stewart, I knew what his answer was going to be, and ask him, “What would you do here?” But I had the Secretary of Education and Court of Appeals judges and university presidents on the panel. It was fun. And he got into it and loved it. He really enjoyed it. Yes.

02-00:26:37 McCreery: And what did he say in answer to that?

02-00:26:38 Brown: Well, what I pushed him on was the point that I knew that he would— basically I knew what everybody was going to say and that’s how I’d put it together with help from Fred Friendly and a longtime colleague of mine, Neal Goldberg. Every now and then somebody would surprise you but Justice Stewart basically said, “The Constitution is colorblind.” This was a reverse discrimination case. The Constitution is colorblind. I’m sorry, I just believe it’s colorblind, Mr. Brown.”

02-00:27:03 McCreery: And may I ask how you would answer that yourself?

02-00:27:07 Brown: On that one, it was close but I basically had it setup so that the black guy was going to get the job. Well, it wasn’t Bill Raspberry, who writes for the Washington Post. But Bill Raspberry, who’s a friend of mine, was on the panel and so somehow he kind of adopted the role of the black college

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professor trying to get the job. At one point he says, “Oh, well, I guess it’s back to the post office for me,” that kind of thing. So it was fun. But Stewart really did enjoy it and he really got into it. I always liked him. Now, that year one of his clerks was Larry Tribe, now a Harvard Law School professor, who may well be the smartest person I’ve ever met. And they did some very important stuff in that office. Probably all of it has been reversed at this point. Stewart was in the middle, though. He wasn’t—

02-00:28:12 McCreery: Yes. He was kind of an interesting figure in this group, wasn’t he?

02-00:28:13 Brown: Right, yes. He could kind of swing either way.

02-00:28:22 McCreery: Did you get to know him at the time at all?

02-00:28:23 Brown: Just to sit and chat with him a little bit because I spent a lot of time in his office, too. I got to know him better later. I think that what happened was I probably got invited out to his house. I know I had a meal with him after we did this thing. I’ve been very fortunate in Washington. I was telling some friends, I don’t know how I got into it, recently—when I was at the FCC— that would have been the late seventies, early eighties.

02-00:28:57 McCreery: You got appointed by President Carter.

02-00:28:59 Brown: Right. At one point, much of what we were doing was being reversed by the Court of Appeals for the DC Circuit. And some of it should have been reversed. Even looking at it today, it should have been reversed. But some of it seemed like, to me, they were usurping our position as the agency with the responsibility to regulate in the area within the confines of the statute and they were kind of regulating. And so I gave a speech to the federal communications bar here in Washington one day and it got reported in the New York Times and Washington Post. And lo and behold, never in a million years would I expect this, I got telephone calls from Judge Bazelon, who was then Chief Judge of the Court of Appeals, from Judge Skelly Wright and from Judge Leventhal. Again, they were idols of mine in the law because I’d read their opinions when I was in law school. And inviting me to come up and have lunch with them. Independently. It was separate. I went up and I had lunch with Chief Judge Bazelon, and later with Judge Skelly Wright and later with Judge Leventhal, who were lions of that court. And they all dealt with it in different ways. Skelly Wright sat and talked with me philosophically about the FCC and its role and the court’s oversight role and how would I do it. I couldn’t believe it. Leventhal actually got down the books and decisions and started going through stuff. “What do you think about this one?” Literally. I couldn’t believe this. Bazelon just took me off to lunch, okay. Well, we go off to lunch.

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He’s the Chief Judge. I know we went in a chauffeur driven limousine. We go to lunch.

I’m telling you something about Washington of thirty years ago that few people know about. We go to lunch and we drive into the warehouse district in downtown Washington, to a large warehouse building. We go into this building. It’s a warehouse for liquor. And the guy who owns it is the liquor baron of Washington, DC. He’s the distributor of liquor in Washington, DC, and he has this huge warehouse over near Union Station. And we walk through this warehouse and at the back of the warehouse is a kitchen and a little dining area. The dining area has red and white oilcloth, like straight out of the fifties, or a “Godfather” movie, on the tables. And these people are bringing out this absolutely fresh fish, like it was caught that morning. And who’s there? Brennan, Marshall, from the Supreme Court, other judges from the Court of Appeals. They’re all sitting there having lunch. I just told you something. Yes. It was Milton Kronheim’s. And he’s a historical figure in Washington, going back two generations. And it was his warehouse and they went there for lunch. A few people know about it but very few actually got to go there.

02-00:33:22 McCreery: Do you recall what the conversation was on that occasion?

02-00:33:31 Brown: It had nothing to do with the courts. They just sat. They liked each other and they sat and chatted and joked with each other. Had nothing to do with the courts.

02-00:33:43 McCreery: Well, you’ve touched a couple of times on the subject of Justice Marshall and I wonder how well you were able to get to know him in a personal way.

02-00:33:54 Brown: During that year not well at all. I think he felt like he was the new kid on the block. He had a lot of learning to do.

02-00:34:08 McCreery: Yes, he was. Brand new.

02-00:34:11 Brown: And I found him a little standoffish. But that may have been me. It may not have been him. I did see him walking in my neighborhood one evening, said hello. Made him nervous, understandably. I was in sweats; he did not recognize me. But I really didn’t get to know him. I got to know his clerks very well and they were really nice guys and we’re still friends.

02-00:34:30 McCreery: But you mentioned that he was quite a storyteller and—

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02-00:34:33 Brown: Oh, yes. Very much so. When I’d see that part of him, it was in a group. Like maybe we had lunch with him a couple of times or maybe I was in his office with his guys and he’d sit down and start telling a story or something.

02-00:34:52 McCreery: Yes. And as you say, he had a lot going on himself, getting started and—

02-00:34:55 Brown: Absolutely, absolutely.

02-00:34:56 McCreery: Yes. Did you have much view of how he was getting started in that group of justices?

02-00:35:04 Brown: No, not really. Only that it was clear that he was going to be on the Warren side of that Court, although if you contrast the Warren Court with today’s court, everybody would be there. No, I really didn’t. I didn’t get a sense. I didn’t get a sense of him during the year as a judge.

02-00:35:33 McCreery: And you’ve mentioned that Mrs. McHugh directed you not to go to oral argument, at least not very often. Did you get to see the justices in action together?

02-00:35:44 Brown: You mean on the bench?

02-00:35:45 McCreery: Yes.

02-00:35:46 Brown: No.

02-00:35:47 McCreery: Not really.

02-00:35:47 Brown: No. Maybe a couple of times during the year. There was one, I’m trying to remember. I think it was one of the Penn Central cases. So long ago. Huge bankruptcy that the Court was deciding. Every major law firm in America was involved in the case and I think maybe I went to listen to that one. But not very often. No, no.

02-00:36:09 McCreery: Okay. Now, you’ve mentioned that you would be present when the Chief Justice would meet with the clerk of the Court after the weekly conferences and discuss the assigning of opinions and so on. Now, do you have much sense of how the Chief used that power to assign opinions?

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02-00:36:32 Brown: I had a sense at the time that he used it very judiciously. Sometimes, if a case looked like it was going to go five-four or six-three, I had the sense that he might assign it to the person who was most wavering among the five or the six, because that would be a way of—I would do that. Anyone. I would think anybody would—

02-00:37:10 McCreery: Commit to one side or another here.

02-00:37:11 Brown: Yes, yes. I think that he had to keep in mind what were the philosophical bents of the other justices because it wasn’t just a matter of the case being decided a certain way in terms of the result but also in terms of rationale and might that divide the Court or pull the Court together. So you had to have those kinds of things. Now, if he was in dissent in a matter, then he turned that responsibility over to the senior justice who voted with the majority. That’s the way they did it and I’ll bet that’s the way they still do it. So that if he was a dissenting justice, then he didn’t participate in that assignment process.

02-00:38:06 McCreery: And did he talk to you clerks much about the personalities in those Court conferences and how they went back and forth?

02-00:38:14 Brown: That could not not happen. But there wasn’t a lot of it. He might make a little joke every now and then about one justice this or one justice that, that kind of thing. But nothing significant. I don’t think he had a petty bone in his body. And maybe this is one reason why the Court held together so well during those years. He had an ability to accept people as they presented themselves and to accept human foibles. He wasn’t a judgmental person about people, at least not on the surface. What was going on underneath I don’t know.

02-00:39:23 McCreery: And I wonder, thinking back, how close were you to the Chief Justice?

02-00:39:29 Brown: I didn’t feel I was particularly close to him. I wish now, and I wished the day I left the Court, that I had somehow gotten closer. But I was, I don’t want to say awestruck, because I don’t think that’s quite it, but it was something like that. I do remember saying to him—I guess it was at lunch. I was talking about my mother and I said at lunch one day, “She’d really like to meet you.” And he said, “Well, have her come down.” And I said to myself, “Isn’t that nice? But, of course, he doesn’t have time for my mom.” Three weeks or so before the term ends, Mrs. McHugh calls me. Because we were upstairs because there were three of us and so we had three offices upstairs. The other clerks were in offices on either side of their justices. And she called and said, “The Chief says you never got your mom down here. When you going to get your mom down here?” I said, “What?” She says, “Yes, he wants to meet your mom. He

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told you that.” And so the next day she hopped on a train and came down and I took her in and he said, “Bye,” and they talked for forty minutes or so.

02-00:41:04 McCreery: You were excused.

02-00:41:05 Brown: I was excused.

02-00:41:06 McCreery: They had a conversation.

02-00:41:06 Brown: And they had a conversation, yes.

02-00:41:09 McCreery: What did they talk about?

02-00:41:10 Brown: Well, I asked my mother and she said, “That’s between him and me.” But finally about, maybe five years ago, I asked her again. She said, “Oh, we just talked about our kids.” And she got back on the train and went back to East Orange, New Jersey. But isn’t that something? Not only that but he told McHugh, because I didn’t tell her.

02-00:41:34 McCreery: That you had mentioned it or that the two of you had talked about it.

02-00:41:38 Brown: Yes.

02-00:41:39 McCreery: He didn’t forget.

02-00:41:40 Brown: And he didn’t forget. She literally called and said, “Well, why don’t you get her down here.”

02-00:41:45 McCreery: Yes. What does that say about him?

02-00:41:51 Brown: I wish I had gotten really to know him as a human being because I think what it says about him is that he really was not filled up with himself. I think he was salt of the earth. I think he was the son of immigrants who grew up in the Midwest. I think he was one generation removed from a farm boy who made it big in the Wild, Wild West of settling California in the early part of the last century. I think he was a father who took his responsibilities very seriously in terms of his family and his wife. I think that he, as governor, saw in some weird unaccountable way that his responsibility was to the citizens and the voters of the State and not to the business interests. Not that he was opposed

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to business interests unless they were opposed to the interests of the people of the State as he saw it then. And it’s why he was able to get a majority of the votes from both parties, from conservatives and liberals. I believe he was just a very solid human being, and I think it was that solidity that made him so difficult to get around within the confines of the Court. He wasn’t pushing a favorite theory. He was pushing what he saw as expanding the opportunities within this Republic.

I remember, and I wish I had taken more of it in at the time. This was after King had been assassinated. Warren mumbled something about, “What all these people are looking for is the same opportunity that everybody else had. They see our society changing so fast and they’re being left behind and why shouldn’t we try to do something to help them?” Sure, it was paternalistic in a way and, sure, it was kind of noblesse oblige in a way. But it also was just a heartfelt assertion this is what America is about. There are basically two visions of what America is about. There’s a Texas cowboy vision and then there’s the immigrant vision. He was part of that immigrant vision.

02-00:45:07 McCreery: Well, and in terms of getting to know him, we have to remember that it was a different time. There was perhaps a formality between the justices and the clerks that we don’t remember—

02-00:45:20 Brown: Oh, you mean in that sense.

02-00:45:22 McCreery: —today.

02-00:45:23 Brown: But I don’t know if that was true or not.

02-00:45:26 McCreery: I wonder.

02-00:45:26 Brown: There was one justice whose clerks had a real difficult time with him and everybody knew it and it was always that way. But it was just one. See, I don’t think I did my part in terms of the human part of it. I was just there working and trying to get my job done and worried that I wasn’t going to get my job done because I felt ill prepared. I hadn’t taken enough constitutional law courses and I hadn’t clerked on a court before. And so I felt like I was always coming from behind and I worked twenty hours a day. I worked all the time that I could stay awake. So that part of it was me. Yes. But I wish I had really gotten to know the man better.

02-00:46:22 McCreery: But what an intense year, not only for you personally, but, as you say, all the changes in the country.

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02-00:46:28 Brown: Yes. Incredibly, incredibly intense. My gosh, I’ll never forget. When Robert Kennedy was assassinated the funeral was in New York and then the train was scheduled to bring them to Washington and on the way to Washington the train, because there were crowds all up and down that line, a child fell onto the tracks and was killed by the train. And the train had to stop and the train got to Washington about three hours later than it was planned. So people were standing along the route from mid-afternoon into dusk waiting for his cortege to go by. And it was dusk. It was going into dark when they finally came out of Union Station and it was kind of Kafkaesque. It was an eerie event. It just was an eerie event. Part of the reason it was eerie was because Johnson was on the train and his group of limousines went tearing down Constitution Avenue ahead of Kennedy and then the Kennedy cortege came and it was just strange. But it was a strange spring. You have to remember that that spring, the weekend after Martin Luther King was killed, there were troops in battle gear on every corner in the downtown area of Washington and there was a curfew. And a lot of people had been arrested and a call went out for lawyers to stand up with people who were being arraigned after having been arrested in the riots. And so on Friday, Saturday, and Sunday, I went over to the local court to stand up with people. And at every corner after dark, I’d get stopped, my little VW. And some soldier, a young, scared soldier, would point a rifle at me while the another one looked at my bar card and my driver’s license. And I said, “I’m going to the Court.” Yes. That was Washington. So it was strange. Yes, it was a strange year in many ways.

I felt he was a great man, obviously, when I went in. I felt I understood more about his greatness as I came out and I feel that a large part of his greatness was his—there’s a play called Plain and Fancy. I think that’s the name of the play. It’s a musical about city slickers stuck in Amish country in the early fifties. And in the sense of that play, he was a plain man. That’s all I can say. Just very, very solid. And stubborn.

02-00:50:07 McCreery: Was he?

02-00:50:08 Brown: When he saw what he thought was right, he could be very stubborn about it.

02-00:50:15 McCreery: Do you have an example of that?

02-00:50:18 Brown: Yes, I have an example of that but not from my term. This case is called Barenblatt v. Sweezy. And believe it or not, we were still dealing with these cases in 1968, these kind of cases in 1968, although this was not from ’68. It probably was a House on American Activities Committee case.

02-00:50:53 McCreery: One of the Communist cases or Smith Act?

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02-00:50:56 Brown: Yes, yes. And this case involved, I believe, a New Hampshire high school teacher.

02-00:51:10 McCreery: Sweezy v. New Hampshire.

02-00:51:12 Brown: I want to say Barenblatt. Maybe that’s a companion case.

02-00:51:15 McCreery: Maybe, yes.

02-00:51:15 Brown: But yes. Okay. And it was New Hampshire because part of the case had to do with the State having its own un-American activities organization, okay, that would conduct its hearings. And part of that decision is we don’t need the State to do this. We’ve got the feds doing it. We don’t need the states to do it. Yes, he wrote for the majority in that case. The decision is fine. The most remarkable thing about it, and only Earl Warren would think to do this. Underneath the text of the opinion, for maybe five or six pages, is a long quotation from Mr. Sweezy testifying before the committee and why he refused to do what they asked him to do. And I can see Earl Warren saying, “Damn it, that’s as lovely a statement of what America’s about as I’ve ever seen and we’re going to put it in the U.S. Reports.” And he put it in the U.S. Reports. Read the decision. It’s beautiful.

02-00:52:37 McCreery: And it goes on for pages.

02-00:52:38 Brown: Yes. But it’s under the text. Yes.

02-00:52:41 McCreery: That was an example.

02-00:52:42 Brown: Yes.

02-00:52:43 McCreery: I wonder how much of what the public saw and knew of Earl Warren differed from the man that you got to know.

02-00:52:56 Brown: Well, he was my mother’s hero, as was Thurgood Marshall. But very much my mother’s hero because he had—I don’t know how many children he had. Six or seven.

02-00:53:06 McCreery: Six.

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02-00:53:07 Brown: Yes. Well, she had seven so they had that in common. And she knew everything about him. Governor of California, she knew the kids names. She did. Until he became Supreme Court Chief Justice, there was that Earl Warren who was kind of a figure as a family man and a progressive governor in the country, and I think that a lot of people who were not on the top of the pile were aware of who he was and what he seemed to stand for. So I think he was probably known by a lot of people. I never understood the impeach Earl Warren stuff. I just didn’t understand it, so I couldn’t get into the mindset of the people who felt that strongly about him. I’m beginning to now when I realize that it was a major revolution that the country was going through. Absolutely massive revolution that the country went through over a fifteen year period, from the Montgomery boycotts to the amendments outlawing discrimination against women in the job place. That’s what it was. And he was right at the vanguard of that revolution. And doggone it, I don’t think he saw it that way. I don’t think he saw it that way. He thought he was doing what needed to be done. I don’t think he saw it as some major revolution that he was embarked on. I think he realized in 1968 that that’s what had happened. I do believe that.

02-00:55:16 McCreery: And you were there, as you say, towards the end of his time.

02-00:55:19 Brown: Yes, yes. I think he realized then that it really had been unsettling for a lot of people.

02-00:55:30 McCreery: What did you learn from this man?

02-00:55:36 Brown: I think that more than anything else, that it is difficult to beat a position that is based on a moral position, a just position. You can shout it down but you really can’t beat it. I think that in the grand swing of things, Earl Warren will come to be viewed as one of our truly great Chief Justices. I think we’re going through a period now when he doesn’t get the credit that he’s entitled to. But I think there is a movement in American history and I think he’s part of that movement. Sure it’s a pendulum, but also when it swings toward a more equitable society it seems to swing a little further each time, and I think he’s part of that movement. I think he’s a major part of that movement. He’s kind of an everyman. I don’t think he was a judicial genius. He was very pragmatic. And he seemed to get along with everybody. Now, I know he didn’t like Richard Nixon at all. I know he didn’t like Richard Nixon. From what I can tell, he had good reason not to like Richard Nixon. I don’t think I ever heard him say anything bad about the man. I don’t think I ever heard him say anything bad about the man.

02-00:57:54 McCreery: That’s telling, isn’t it?

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02-00:57:56 Brown: Yes.

02-00:57:58 McCreery: Well, you’ve touched on his moral convictions that he brought to this work. Did he ever waver? Did he know where he was going?

02-00:58:11 Brown: I happen to be personally of the view that he authored two bad decisions during that year. One was Terry v. Ohio and the other was this O’Brien case. I don’t know that I felt that way at the time. They were very difficult. Both of them were very difficult cases. And they used to love to say that difficult cases make hard law, or hard cases make bad law. And I felt the Court made bad law in both of those cases. And as I look back, not at the time, but as I look back I feel that they may represent some sign that Earl Warren was starting to trim his sails a little bit. But on that issue you need to talk to some of the Court scholars and I’m not one. But that’s my view of it. Both of them have been used to do some pretty bad things that Earl Warren would not like to have seen happen. Even though he was very much a pragmatist, I would say that they were not within the same train as the bulk of his jurisprudence and that’s something that you may want to explore with some of the people who clerked with him who have become legal scholars. Some of your colleagues at Berkeley. But that’s my view of those two cases.

02-01:00:12 McCreery: Yes, okay, thank you. And I’m wondering if he addressed openly his idea that he was getting ready to retire before he announced it. Did you have any sense that he was coming to the end of his—

02-01:00:32 Brown: Well, as I said, he told us before he told the public.

02-01:00:35 McCreery: That spring.

02-01:00:35 Brown: But before that we had no sense of it, before he told us.

02-01:00:40 McCreery: Or just kind of reviewing all that he had done in his whole time on the Court.

02-01:00:45 Brown: No. During the term he didn’t sound like a man who was in his last year at the Court. He didn’t sound that way during the year until he actually told us. We knew that he was very much affected by what was going on outside the Court. We knew that. I don’t recall whether we speculated that maybe he might resign or not. I just don’t know. But he certainly wasn’t acting like a man who was going to resign.

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02-01:01:24 McCreery: Okay. You touched on the fact that he himself was not a scholar and his writing was sometimes criticized. How do you answer that, just from what you observed and experienced there?

02-01:01:43 Brown: Okay. His opinions were his, very much so, because he wouldn’t let them go until they said what he wanted them to say. So they were his. He was a pragmatist in the sense that, in a particular case, he might be more result oriented than some of the other justices. Try to get a majority for a position. Less concerned about the rationale than some of the others. His lodestar was just this thing about fairness. It really was. Was it fair? And that’s where he started and that—

[End Audio File 2]

[Begin Audio File 3]

03-00:00:28 McCreery: Okay, here’s tape number three on August 2, 2005. Laura McCreery continuing the interview with Tyrone Brown. You were just making some general comments about Warren’s jurisprudence.

03-00:00:39 Brown: Well, you had asked what seemed to define his jurisprudence, and really it came down to, “Is this fair?” You look at the criminal procedure cases, you look at the one man, one vote cases. You look at Brown v. Board. And clearly you were dealing with unfairness. For him, that was, in a sense, the beginning and the end of the inquiry. Why did we need to say, “No, it’s not fair but.” It’s not fair, let’s change it. And that’s what he went about doing.

03-00:01:31 McCreery: And in his view the Constitution was there—

03-00:01:32 Brown: The Constitution permitted you to do it because the Constitution was—well, two things about the Constitution. One, it was an ideal, a goal. It’s not part of the Constitution but we believe that all men are created equal except we’ve got these slaves down there. Either they are or they aren’t as far as Earl Warren is concerned. And so the high purpose of the Constitution was in some cases more important to him than vague words. That certainly is true. And he also, I think, although he may never have said it, would subscribe to the notion that the Constitution is a living document and it is meant to be interpreted by each succeeding generation in a way that’s consistent with its high goals but not ironbound to circumstances that existed 200 years ago. And so he would give himself that kind of flexibility, which most judges would not today. But he and Brennan and Marshall, I would say that they would subscribe to that notion.

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I’ve been very lucky in my career here in Washington. I worked for him. Shortly after that I worked for a guy named Ed Muskie, who was a senator from Maine and who ran for president. And he was a dear, well centered public servant who really, really cared about getting things done for people. And then I worked for Jimmy Carter. I would say that all three of these people, and there are many more, but these three people, they represent a type that really is rare in public life anywhere and I’ve considered myself very fortunate to have worked with them for short periods of time. And he is at the top of that list. I may not ever have gotten to really know the man. I think I have some hints about him. But he clearly is one of those people.

03-00:04:18 McCreery: And I wonder, as you think about the things that you’ve done since, what effect has that experience with him had on your career in terms of choices or viewpoints?

03-00:04:38 Brown: It certainly had one direct impact and that was that I was practicing law as a young associate at one of Washington’s premier law firms. The War was going on and getting uglier and uglier and I just decided I couldn’t do that, that I had to do something that would get me involved publicly and that’s when I went to work for Ed Muskie on the Hill. And so that was a very direct reaction to wanting to be more publicly involved instead of doing what for me would have been hiding away in the law firm.

03-00:05:21 McCreery: But more of the natural path after a clerkship.

03-00:05:24 Brown: Oh, sure, sure. Yes. And going into public service again was partly that. I have never approached lawyering in an opportunistic way. I don’t think it’s me. I don’t think I would have been able to do it. But certainly after knowing him and people like that I’ve never been able to do it. And it’s done very well by me. So I’m okay on that.

03-00:05:55 McCreery: And then partly through being appointed by President Carter to the Federal Communications Commission you’ve developed quite a specialty in communications—

03-00:06:03 Brown: Well, I did, yes.

03-00:06:05 McCreery: —over the years.

03-00:06:06 Brown: Although I haven’t billed an hour in a couple of years. Now what I do mostly is invest in start-up communications projects and help see them through. But yes, that became my specialty. After Ed Muskie didn’t get the nomination I

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went to work for the Washington Post as general counsel of their broadcast operations. They had a number of television and radio stations on the East Coast, and that’s how I got into communications. And was at the Post during the Watergate days and during the period when Mr. Mitchell was telling Mr. Nixon that they could get Katharine Graham by putting her television licenses under a cloud. But that’s how I got into the communications area.

03-00:07:01 McCreery: Well, maybe we could finish a little bit where we started, with your family. I’m just so interested that your mother had instilled in you such a strong appreciation for Earl Warren before you ever knew that you would work so closely with him. Just tell a little bit about what you and your mother might have talked about.

03-00:07:23 Brown: There are ways in which we can never understand our parents. We take that as a given. I don’t understand what motivated them because their whole lives were devoted to getting the kinds of opportunities for us that they didn’t have and that’s why they moved north, that’s why we moved around, trying to find the best possible schools for us. And when the Supreme Court and Earl Warren issued Brown v. Board of Education, as far as she was concerned, he could be canonized at that point. So yes, that was a very important part. That became a very important part of who I was. I became an overachiever. My mother lives with me now. She’s not that mobile. As a matter of fact, I sold my house recently and moved into an apartment so that she could move around the apartment. I have a large deck. And I understand her better now than I did back then. But I’ve never really understood. They just did nothing but raise us and try to get the best they possibly could for us. And we know today that that’s not the healthiest thing in the world because all of your identity goes into your children and all that stuff. But, still, they were amazing. I would love to have been like looking through the glass wall while the two of them were sitting there talking that day. It must have been pretty amazing. It must have been pretty amazing.

03-00:09:26 McCreery: And you’ve mentioned that your own kids have enjoyed the next generation of this success?

03-00:09:35 Brown: Well, they’re poor academics. They’re both PhDs. But they’re doing well and they’re happy. That’s the important thing.

03-00:09:48 McCreery: Well, you traveled quite a road and I wonder is there anything else that I should have asked you about your experience and how it stands out?

03-00:09:59 Brown: No. If I could have gotten the clerkship and clerked the year before on the Court of Appeals I would have had a better experience that year. I know that.

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Of course, you get what you get. You don’t get to choose what you get. Because I would have been better prepared for it and I would have felt more comfortable about it.

03-00:10:23 McCreery: Well, other former clerks have said the same.

03-00:10:26 Brown: Really?

03-00:10:26 McCreery: Were fresh out of law school and it was—

03-00:10:28 Brown: Scary.

03-00:10:29 McCreery: —quite a thing to show up there.

03-00:10:30 Brown: It was scary, yes.

03-00:10:32 McCreery: Yes. Is there anything else that you’d like to add to this very compelling story?

03-00:10:40 Brown: No, no.

03-00:10:41 McCreery: Well, thank you so much.

03-00:10:43 Brown: Good.

[End of Interview]