YEARBOOK ·· 1981 SUPREME COURT HISTORICAL SOCIETY MELVILLE W. FULLER Eighth Chief Justice, 1888-1910 YEARBOOK 1981 SUPREME COURT HISTORICAL SOCIETY OFFICERS Chief Justice Warren E. Burger, Honora/}l Chairman Elizabeth Hughes Gossett, Chairman Linwood Holton, President EDITOR William F. Swindler ASSOCIATE EDITOR Jeffrey B. Morris EDITORIAL ASSISTANTS David T. Pride Kathleen Shurtleff '.~ .. The Officers and Trustees of the Supreme Court Historical Society would like to thank the folJowi·ng for their generous support of the publication of this Yearbook: The Charles Evans Hughes Memorial Foundation Patrick and Anna M . Cudahy Fund Lita Annenberg Hazen Charitable nust YEARBOOK 1981 Supreme Court Historical Society In Memoriam William 0, Douglas: the Man 7 Cathleen H, Douglas Stanley F. Reed II Warren £ , Burger Mr.Chisholm and the Eleventh Amendment 14 William F Swindler The First Woman Candidate for the Supreme Court 19 Beverly B. Cook The Era of Melville Weston Fuller 37 Jeffrey B, Morris The Defense of General Yamashita 52 George F Guy Court Nominations and Presidential Cronyism 68 Merlo J , Pusey Charles Evans Hughes: The Eleventh Chief Justice Chief Justice Hughes - a Recollection 75 William T Gossett Justice Hughes' Appointment - The Cotton Story Re-examined 78 Frederick Bernays Wiener A Note on the "Joe Cottpn Story" 92 James M , Buchana . Hughes Exhibit Catalogue 95 Gail Galloway Susanne Owens De Minimis, or, judicial Potpourri The Justice and the Lady: A Postscript 114 Alfred J. Schweppe Toward 1987 - Two Milestones of 1781 117 William F Swindler Contributors 121 Acknowledgements 122 Copyright © 1981, by the Supreme Court Historical Society, 1511 K Street, N. W. Washington, D. C. 20005 The Supreme Court Historical Society BOARD OF TR USTEES Chief Justice Warren E. Burger Honorary Chairman Elizabeth Hughes Gossett Linwood Holton Chairman President VIce Presidellls Earl W. Kintner Whitney North Seymour Alice L. 0' Donnell Fred M. Vinson, Jr. WLiliam P. Rogers Mrs. Hugo L. Black, Secre/Q/y Vincent C. Burke, Jr. Treasurer Mrs. David Acheson William Barnabas McHenry Ralph E. Becker Richard A. Moore James 1. Bierbower David A. Morse Herbert Brownell Melvin M. Payne Gwendolyn Cafritz Merlo]. Pusey William T. Coleman, Jr. Harvey T. Reid Charles T. Duncan Fred Schwengel Patricia Collins Dwinnell Bernard G. Segal Newell W. Ellison Margaret Chase Smith Paul A. Freund Robert T. Stevens Erwin N. Griswold Lauson H. Stone Lita Annenberg Hazen Willian F Swindler Joseph H. Hennage Obert C. Tanner Francis R. Kirkham ' Hobart Taylor, Jr. David Lloyd Kreeger 1. Albert Woll Sol M. Linowitz Gary]. Aichele Executive Direc/or In Memoriam WILLIAM O. DOUGLAS 1898-1980 STANLEY F. ~EED 1884-1980 William O. Dauglas: The Man Cathleen H. Douglas I have always been amazed by how much Bill east to New York City. He enrolled in Jaw school Douglas drew from his own personal experi­ at Columbia, working odd jobs to pay for his ences. Most people are affected by the life events tuition. Although he was employed in one of the that have touched them, but some are more most prestigious law firms in the nation upon his deeply affected than others. Charles Evans graduation from law school at the top of his Hughes, we are told, was greatly influenced by class Bill was never able to forget the early the devoutly religious environment of his home experiences of his life, and rather than trying, he and the sermons of his father, a Baptist minister. turned to them repeatedly for inspiration and a Felix Frankfurter's views on race were, in all sense of renewal. likelihood, at least partially shaped by his early While teaching law at Columbia, and later at experiences of religious discrimination . Bill Yale, Bill became impatient with the static for­ Douglas is certainly not a unique example of a malism 'of the law as it was then being taught. jurist who drew upon his own experiences in Together with several other "young turks," he forming his legal philosophy; but he may per­ demanded that law be taught, not in a vacuum, haps be best remembered for the way in which he but within the framework of real life. An outspo­ incorporated the experiences of his own life into ken advocate of the so-calfed "new sociological the fabric of the law and his work on the Court. jurisprudence," BilI agreed with Holmes that the In the beginning I'm sure that Bill's tendency life of the law has not been logic, but experience. to draw on his own experience was rather uncer­ Searching for new teaching materials to use in his tain and done unconsciously. All of us have fam­ classes, and finding none available, Bill set out ily and friends who have affected our develop­ with several collaborators to publish a new series ment, and have had experience hat have shaped of books. Characteristically, Bill's approach was our growth. Bill had no control over his origin, vastly different from the traditional and the con­ and, like most of us, little control over the open­ ventional; he sought, first and last, to find the ing chapters of his life's story. Born the eldest realities of legal problems and to assess their son of a Presbyterian minister who died when social impact. Seeking the facts, he pursued real­ Bill was only five, he knew poverty first-hand, ity-a reality tested against his own experience. and from a very early age struggled merely to When Bill became Chairman of the Securities survive. He observed as a child the difference in and Exchange Commission in 1937, he had been treatment accorded to the children of the rich and out of law school only twelve years. His" Vesu­ the children of the poor in the small Washington vian" reaction to the failure of the New York town of Yakima where he grew up. Although he Stock Exchange to prosecute several prominent worked to help support his family from the time individuals for embezzling ~)Ver a million dollars he was six, he graduated as the valedictorian of from the Exchange's Trust Fund was, as he con­ his high school, an honor which gained for him a fided in me years later, kindled by his memory of scholarship to Whitman College. Bill rode a Yakima injustices. He wrote in a draft report: bicycle from Yakima to Walla Walla where When persons of outstanding wealth are involved, the Whitman is located; after graduating from Exchange cannot be trusted to do its own house­ Whitman, he jumped a freight train and rode it cleaning. Unhappily, 'lie are forced to conclude that 8 YEARBOOK 1981 discipline by the Exchange authorities of its own mem­ with time to think and reflect. An idea which Bill bers will be exerted only if the offending person is of relatively little importance; that there is, so far as the mentioned frequently during the Summer of 1972 Exchange is concerned, one law for the very powerful was the importance of trying to comprehend the and wealthy and · another for those of little wealth or lessons taught by nature. Surrounded by the trees influence. and sparkling rivers, the wild elk and bear, and From our many talks, I know that his concur­ the beauty of untended wildflowers, Bill was ring opinion in Edwards v. People of the Slate of often moved to consider the true relationship of California, 314 U.S. 160 (1949), was based in the law to life. part upon his experience with migrant workers One sunny afternoon, we were standing in on the wheat and fruit farms of eastern Washing­ front of the house, when a doe, fleeing in panic ton. The case arose from California's attempt to from unseen pursuers, sped across the lawn. She block the migration of "Okies" looking for work stopped hesitantly near Bill, as if seeking his during the middle of the Depression. Bill argued help. Sensing that the deer was trying desper­ in his opinion that the "right to travel" was a ately to escape some evil, Bill walked toward the guarantee of federal citizenship under the Four­ river, motioning quietly for the deer to follow. At teenth Amendment's privileges and immunities first cautiously, and then with more assurance, clause - a view not adopted by the Court until she did . As she ffect toward safety, a pack of wild 1969 in Shapiro v. Thompson, 394 U.S. 618. dogs broke from the woods, but stopped short In his civil rights decisions, the impact of when they saw us. Bill's travels on his legal analysis is also clearly I'm sure that Bill thought of this experience visible. Everywhere he went, he sought to dis­ the following term as he wrote his dissent in cover how local minorities were treated. What Sierra Club v. Morlon, 406 U. S. 727, 741 kinds of jobs did they perform? Were they al­ (1972). The question of how the values repre­ lowed to vote? What laws were enacted that sented by still pristine lakes in the State of Wash­ limited their horizons and burdened their paths? ington would be treated by government agencies He studied the plight of the overseas Chioese in and protected by the courts became an important Thailand, the Muslims in India, the tribal people jurisprudential question for Bill, one which ul­ in Iran, the Jews in North Africa. The stark timately led to a dissenting opinion that would realities of the treatment of minorities abroad have given standing to sue to the inanimate ele­ made more vivid for him, I think, the inequalities ments of nature. Drawing on an analogy to the and injustices of his own country. legal personality of ships and corporations My life with Bill Douglas leads me to believe created by legal fictions, he refined his inarticu­ that in addition to his reliance on his early ex­ late philosophical sensitivities into a technical periences, he came increasingly to seek out new rule of law.