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

Arthur I. Rosett THE LAW CLERKS OF CHIEF JUSTICE : ARTHUR I. ROSETT

Interviews conducted by Laura McCreery in 2004

Copyright © 2013 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 Arthur I. Rosett dated August 3, 2004. The manuscript is thereby made available for research purposes. All literary rights in the manuscript, including the right to publish, are reserved to The Bancroft Library of the University of California, Berkeley. Excerpts up to 1000 words from this interview may be quoted for publication without seeking permission as long as the use is non-commercial and properly cited.

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

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

Arthur I. Rosett “The Law Clerks of Chief Justice Earl Warren: Arthur I. Rosett” conducted by Laura McCreery in 2004, Regional Oral History Office, The Bancroft Library, University of California, Berkeley, 2013.

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Table of Contents—Arthur I. Rosett

Interview 1: August 3, 2004

Audio File 1 1

Birth and upbringing in New York City— Bronx High School of Science — Columbia College — Exposure to spiritual traditions in college — Martin Buber — A Living Tree — Starting Columbia University Law School after just three years in college — Active duty in the Navy and a return to law school as a family man — Law school faculty and classmates — Assisting Professor Herbert Wechsler — Mrs. Margaret McHugh — Clerking at the Supreme Court — Justice Reed and Justice Burton — Learning about the New Deal — Fraternizing with other clerks, maintaining confidentiality —Chief Justice Earl Warren’s priority: substantive justice — “Is it fair?” — The ’s more conservative beginnings — Search-and-seizure cases, civil rights, key decisions — Bill [William] Dempsey, Chief Clerk — Personal relationships and accommodations among justices — The Warrens at the Shoreham — Justice — Fellow clerks — Saturday luncheons — Discursive — Discursive — Discursive — Discursive — Discursive — Warren’s dislike of Richard Nixon

Audio File 2 16

Warren’s political background and skills — Mrs. McHugh: “Mrs. No” — Warren’s temperament —Justice Frankfurter — Warren’s vision and priorities — Warren and the Japanese-American internment — Supreme Court clerks at oral arguments — Justice Whittaker and the Cannelton Pipe case — Cars, parking, and status at the Supreme Court — Warren’s relationship with President Eisenhower — Comparing Warren to his predecessors and successors — Warren’s judicial philosophy and activism — The Supreme Court since Warren: “A long nap after a heavy mean” — Learning about California politics from Warren — Warren’s approach to civil liberties — The Supreme Court now: “More clerks, fewer cases, less new law” — Justice Souter and Bush v. Gore— The Warren Court’s service to the American people — — The limits of diversity among clerks in an earlier era

[End of Interview] 1

Interview #1 August 3, 2004 [Begin Audio File 1]

01-00:00:00 McCreery: Okay, we’re taping. This is tape one on August 3, 2004. This is Laura McCreery speaking and on this tape I’ll be interviewing Arthur I. Rosett, professor emeritus of law at UCLA, and we’re in his office today. We’re collaborating together on the project The Law Clerks of Chief Justice Earl Warren. Professor Rosett, let’s start with a little background. Could you state your date of birth and talk a little about where you were born?

01-00:01:03 Rosett: I was born on July 5, 1934 on 76th Street on the West Side of Manhattan.

01-00:01:12 McCreery: Okay. And what was your family situation in those Depression years?

01-00:01:17 Rosett: My parents had my wife’s mother living with us and I had an older brother and we had household help, as people before the Second World War did have. My father was a dentist. My mother had worked until she married and then became a homemaker and then returned to become my father’s assistant after I grew up, went to college.

01-00:01:51 McCreery: Okay. I noted on your bio form that you attended the Bronx High School of Science. How did that come to pass?

01-00:01:57 Rosett: Well, Bronx Science is one of—at that time I think there were three, now there are four special high schools in New York City, admission to which is by examination. And the local high school, the neighborhood high school, High School of Commerce, was in Hell’s Kitchen and was not a very good school. And so most of the upwardly mobile members of my age cohort took the Bronx Science exam. You could either take Bronx Science or Stuyvesant but you couldn’t take both of them. And you could take Brooklyn Tech and I wasn’t qualified for music and art. So I took the exam and that put me in line to spend a lot of time on the subway going up to the Bronx, to what was still a very nice neighborhood in the Bronx to high school. Very challenging environment, Bronx High School of Science. We had at one time four members of this faculty who all went to Science and others who went to Music and Art and et cetera. But it really produced a tremendous pool of talent and in many ways, as I look back on my academic experiences over the years, I think it was probably the most challenging four years I spent in my life, including Columbia Law School and Columbia College, et cetera. It really was a mind stretcher.

01-00:03:33 McCreery: What were your own interests at that age?

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01-00:03:39 Rosett: All I can tell you is that my father, for as long as I can remember, probably age five or six, always called me professor. It never occurred to me that I wouldn’t teach. And I used to argue with my uncles. My mother was one of nine children, and since their mother lived with us, my uncles came around a lot. And they were landlords in Brooklyn and they would get into big fights with me about socialism and the bosses and the poor tenants, et cetera. And so while I never really experienced deprivation I argued eloquently on behalf of [the deprived]. And I think everybody always assumed I would be a lawyer. I know I did. I don’t remember ever really thinking I wouldn’t be a lawyer in some way, just as I always thought I’d be a teacher.

01-00:04:42 McCreery: Okay. Well, what led you to attend Columbia College?

01-00:04:47 Rosett: Well, in those days New York State didn’t really have SUNY yet and they had a state scholarship system which, as I remember, I probably have the numbers a little bit off. But as I remember it, the total tuition for a year at an Ivy League college was about $300 a year. And I think they paid more than two and then you got a Cornell scholarship on top. You got a little more if you went to Cornell. And so I lived at home and I assumed that I would live at home. I don’t remember really thinking about going away to college. So every morning I’d get up and get on the bus now, not the subway, and ride fifteen minutes to Columbia. Had a wonderful life there.

01-00:05:40 McCreery: What did you study?

01-00:05:42 Rosett: Well, they didn’t have majors then. They had a mandatory curriculum, which is still offered. The contemporary civilization in humanities. And a lot of specialized courses. What Columbia did, for which I’m always in their debt, is they bought off senior faculty to teach undergraduates, particularly lower division undergraduates, what we would call lower division. So that in my freshmen year I had Moses Hadas, I had Gilbert Hyatt. In my second year I had Mark Van Doren. I had F.W. Dupee. My brother, who was my mentor and was four years ahead of me, five years ahead of me, always said you pick the teacher, not the time and not the course. It doesn’t matter what they’re teaching, you take a course from these guys. So I had a Nobel prizewinner for physics, for poets, and I just had a wonderful education.

And among other things I did there, which may come up in other contexts later in this interview, I got exposed to Oriental humanities. In those days Suzuki was at Morningside Heights. Zen was just becoming a word which people would recognize. Merton, the Trappist monk, had undergone his conversion with Father Ford at Columbia. Reinhold Niebuhr was at Union Theological Seminary and Martin Buber was at Jewish Theological Seminary

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with Heschel and Mordecai Kaplan and it was a very yeasty period where everybody was there and there were opportunities to study with these people and also just to hear them. I remember one lunch hearing the wise guys from the Jewish Theological Seminary baiting Martin Buber. They were really teasing him. They were baiting him about his rejection of Jewish law, to be precise. And he said, “Well, I’m sorry. I just can’t keep as a commandment that which I don’t believe was commanded.” And that’s a very profound statement. I’ve been playing with it for over fifty years and I still have it in my mind and I know just where I heard it. And not everybody gets that opportunity.

I studied with a lot of younger brothers and children of that circle and so I got to know—my classmates were college freshmen who were conversant with biblical anthropology and biblical archeology and text criticism and all kinds of things that you don’t get. I got a great education and had a wonderful time. After coming out of Bronx Science it was like taking off a tight pair of shoes. I worked very well hard at Science. I think I made the top 10 percent or 20 percent, whatever it was. But I wasn’t the smartest boy in the class by any means. I really had to work at everything.

When I got to college I kind of hit my own. Went to work on Columbia Spectator and was there three years. My editors were Max Frankel. He taught me how to write headlines. We used to go down to the printer every day. The daily expectorator we called it. The Columbia Daily Spectator. And we’d go on another set of subways down to Lower Eastside where the printer was and worked on the stone until 3:00 in the morning kind of things. Just a wonderful education.

01-00:09:35 McCreery: Well, you mentioned religion, and as an aside, how prominent was religion in your own upbringing?

01-00:09:44 Rosett: Well, it was very prominent. My family were observant but they weren’t from where most of the Jews in New York came from. Most people came from the hills. But my mother’s family were largely Rhenish Jews, Hesse, Darmstadt in Germany. They weren’t city Jews, although those towns through the Fulda pass and the like have had Jewish communities for 1,200 years, until Hitler came along. And they still have streets, I’ve been through there, that identify where the ghettos were. And my religion was very much a concern, although it wasn’t a preoccupation as it was with people who came from further east and north. My mother’s family, my grandmother, was some kind of a rabbi but I’ve been trying to track it down. I think he got ordination from some other rabbi in Pittsburgh but he was a man who had children in every city in America. My mother was born in Chicago but by the time she was eight she had lived in Chicago, Detroit, Los Angeles, Seattle, and then my grandfather died and my grandmother, who was left with nine children, came back to her

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family and protection of his family. But I think the other side of the tale I just told is that my grandfather had trouble holding onto jobs. He was a congregational rabbi, I believe, but as was then customary, he sold raincoats, rubber goods. And I was much more interested in that than my brother was and it was a link to my father, who was not formally well educated religiously but had a real feel for it. And when I became a teenager, going back to Morningside Heights, they started a program at the Jewish Theological Seminary that used to meet on Sunday nights, which theologians and think philosophers met with teenagers. And I heard a lot of these great minds, Heschel and others then, and I brought my father along and that continued after, later in life when I moved to Los Angeles and became active studying. I had a parallel experience here in Los Angeles where my life was very much influenced by contacts with various rabbis. This is quite a center of rabbinic thought, Los Angeles. Maybe you ought to look into that someday. I think people will look back on this era and this place, just as I was painting the picture of Morningside Heights in the fifties as a place where people from different traditions gathered and you could learn about Zen, you could learn about being a Trappist monk, you could learn about Abraham Joshua Heschel’s philosophy. Anyhow, when my folks moved out here in the sixties I continued to take my father on Sunday night for groups that—now faculty groups that talked about various Jewish subjects.

I don’t want to tell this unless you really want to hear this. When I got to UCLA, after a couple of years, as a result of the Eldridge Cleaver rule—I don’t know whether you remember the Eldridge Cleaver rule—as a result of the Eldridge Cleaver rule, the regents would allow guest lecturers more than one class meeting only if a member of the academic senate was present in the room. And at that time, at this law school, we were very active working with Neighborhood Legal Services, and there was one group, which is now known as Bet Tzedek in the Fairfax community, and we had a placement there working with mostly landlord tenant problems. And we were approached by students who said that they noticed that most of the clientele was Jewish and they wondered what Jewish law had to say about the legal problems of these people’s lives. And they wanted to get three rabbis from the University of Judaism, the West Coast branch of the Jewish Theological Seminary, to give them some basic introduction. And to do that, to comply with Eldridge Cleaver rule, they had to find a front, a shill, and they came to me and I agreed to do it. And we taught it, the three of us, for a couple of years and gradually, as is inevitable in those situations, two of us really glommed onto each other and Elliot Dorff and I wrote a book which has been published by the Jewish Theological Seminary and the student press and which is still selling, available at your local bookstore.

01-00:15:48 McCreery: A Living Tree, it’s called.

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01-00:15:50 Rosett: A Living Tree. And we are dear friends and continue to teach together to this year. I’ll be teaching in the spring.

01-00:16:00 McCreery: Okay. Well, it’s a nice thread in your life certainly.

01-00:16:02 Rosett: Yeah, it’s really been a thread. So I think over the course of the last forty years I’ve accumulated a fair amount of information about Jewish law but I never received a classical education. I’m not a rabbi. I can deal with Talmudic text but I am not really expert in it. Most rabbis aren’t these days anyhow. And I never claim any expertise of that sort. I’m just the skeptical. I like to listen but I usually don’t sign up at the end of the hour.

01-00:16:45 McCreery: Okay. Thank you for that summary. Well, let’s talk about how you began law school and what actually was the process that you followed to start at Columbia. There you were.

01-00:16:59 Rosett: There I was, a college junior. And in those days Columbia had a program called professional option. And juniors could enroll for a first year at a professional school. I took the LSAT, which was a relatively new exam then and did very well. And Columbia admitted me. And, of course, if I were advising myself today I would say, “Take another year. Stick with Mark Van Doren again. Spend another year doing what you’re doing. Become an editor of the Spectator.” But it seemed irresistible. And so I started law school after three years of college and got my BA after my first year of law school.

And the other thing that was going on at that time, of course, was the war. This was pretty tough times and on my brother’s advice in my sophomore year I enrolled in the NROTC to avoid being pulled out to go to Korea and also because it seemed a better idea to be in the Navy than in the infantry. And they had a two-year commission and all kinds of things. I won’t bore you with that long story. There’s a long story there. But the point is that, as a result of a bunch of accidents—it’s always accidents, isn’t it—I ended up being pulled out of law school in my third year and went on to active duty in the Navy for two years. And when I returned I was in a very different situation. I was married, I was a father. It affected my whole perspective. I also was a little bit riper. I think it’s safe to say that I was a pretty brash wise guy. Green wood. Good green wood, as we say in law school when we look at the faculty appointments.

01-00:19:24 McCreery: Okay. Well, recognizing that your experience at Columbia was broken up by this Navy service, talk a little bit about your program there and the faculty at that time?

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01-00:19:34 Rosett: Well, the faculty there, they all seemed like giants to me and some of them I’ve continued to know. In the first year I was in Herbert Wechsler’s criminal law course and that was a formative experience. The contact with Wechsler the man, with his commitments to ideas. He believed in neutral principles. And that first year, Glanville Williams came over from Oxford and gave the Carpentier lectures and I attended all those and ate them up with a spoon and loved it. And when I completed the first year I was offered a position on law review and as part of my law review responsibilities we used to have a—I don’t know what they call them. Spirit duplicators. Purples. It was a machine with purple ink that you—

01-00:20:53 McCreery: A mimeograph?

01-00:20:54 Rosett: It was a kind of mimeograph but it wasn’t quite a mimeograph.

01-00:20:55 McCreery: An earlier—

01-00:20:56 Rosett: So some kind of a process. This is before Xeroxes and everything, of course. And they had purple outlines of the professors because, of course, law review editors were much too busy to go to class. And each of the second year students was assigned to a class to take notes. Some of these outlines were fantastic. I remember the outline for Professor Handler’s antitrust course. They had every old joke. He told the same jokes every year and they had them all in the outline, in the purple, and they even had stage directions. Handler stops, put his forefinger on his cheek, turns slowly toward the student and says, “What do you think of that?” To get to the point, because there is a point here, I was assigned to go back to Professor Wechsler, and this time take federal courts from him, for which I had to get special permission. He once said I sandbagged him to let me do it because I hadn’t had constitutional law yet. So I took federal courts. And, of course, Hart and Wechsler on federal courts—this is the first edition. You don’t know what I’m talking about. It was one of the great intellectual monuments of a generation. And I just ate it up with a spoon. All of which has a point because when I came back in the third year I had not had constitutional law yet, so I took constitutional law again with Wechsler. And one of my classmates was Charles Fried, who also switched. He was out of kilter. In fact, that class, there were several people who were older, either going into service or moot. And so one was me, one was Charles Fried, and one was Ruth Bader Ginsburg, who was a classmate. I had commercial law with her with Allan Farnsworth. We were late together. We both had babies, we both were parents, and working out a schedule with our spouses, who were also studying. And so that it was common that Ruth and I were both late and it was a funny room. I won’t describe the room but it

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was a funny room and so you had to kind of sneak in around the side and we sat together a lot.

But in any event, all this comes to bear because when I came back to Columbia Law School for my third year I couldn’t go back to Law Review. I had to make some money to support my child. And my wife was in school, too. So I went to Professor Wechsler and I asked him whether he would take me on as a research assistant.

01-00:24:13 McCreery: That was your idea?

01-00:24:15 Rosett: That was my idea. And he did. And the project was the Holmes Lecture, neutral principles, which he never let me see. I did the footnotes. He told me what the footnote was and I had to find it. So I read the whole record in Brown v. Board of Education. He also had things that would come to mind from thirty years earlier and he would say, “Somewhere there was a speech before,” and he’d tell you who spoke and where and I was supposed to find the remarks. And so I read old New York Times’ from ’33 and mid-thirties. Amazing times. When Roosevelt was coming in and when Hitler was coming in and people were going out the windows. And that was another hell of an education. And finally about two days before he was to deliver the lecture, he was up in Harvard, he showed me the text and later in the day I saw Gerry Gunther, who was at that time a young faculty member, somewhat protégé of Wechsler’s at Columbia. I asked Gerry what he thought of it and he said, “I don’t know.” And I said, “I don’t know either.” And that’s been my attitude to the present. [laughter] But make a long story short, when I, again as a result of a bunch of strange accidents, I found myself without a job close to graduation and then was available for this new strange clerkship that was proposed with Justice Reed, I went for it and Herbert Wechsler’s letter, I’m sure, was very important.

01-00:26:12 McCreery: Okay. Now, this was the first year of that Reed Burton clerkship. Is that correct?

01-00:26:16 Rosett: That’s right. Yeah. It was one year. I clerked for one year. I was a law clerk to Mr. Justice Reed and Mr. Justice Burton. Nobody knew what that meant. And as in every good bureaucratic institution, who you are and what your status is turns on certain external indicia which have to be consciously decided. So to my knowledge I’m the only human being who’s ever walked the earth whose parking space was a subject on the weekly calendar, weekly conference of the Supreme Court of the United States, because in the shorthand of the Supreme Court as an institution, where you park indicates who you are in the grand order of things. And it was decided that I would park in the basement of the building, which was wonderful. And then the next issue that came up was do I

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get a set of US Reporters. That is each clerk had his own set of law reports. And the question is does the Reed/Burton clerk get law reports and the answer was yes. And then the question was do I attend Saturday morning meetings with the Chief? That is if I was a law clerk among the law clerks I would. If I was some kind of a changeling creature I would not. And that they changed over time. All of this was orchestrated. I’m sure that the Chief Justice knew about it or probably in the conference he must have said it. But I was told at the time the conference decided that I would park in the basement and I would get a set of law reports and that meant that I was one of the boys. And that, of course, was not because of my virtue but because of Maggie McHugh.

01-00:28:17 McCreery: How so?

01-00:28:19 Rosett: She ran the whole damned institution. She was one of these Washington women of that era who effectively was the power. She ran the judicial branch of the United States to the best I could tell, and certainly the Chief did what she told him to do. He wasn’t about to cross that lady. If you ever saw her in high dander you’d know why you wouldn’t want to cross that lady. But I very fortunately must have tickled the right spot on her and she was very nice to me. And the Reed/Burton clerk became what it silently always had been. It was a way to get an additional budget line for a clerk. The Chief in that time had three clerks and had a growing tremendous amount of work for the Court as Chief Justice and it was not possible to—in time they treated me as a regular clerk and I even took drafting opinions in rotation with the other clerks. But—

01-00:29:35 McCreery: Now, to start off though, coming in under the Reed/Burton label, shall we call it, in practice how did that work? How were your assignments made and how much did you do for each of the justices?

01-00:29:48 Rosett: It was never defined. I’m a fellow who likes to keep busy and I always said yes. As a result I had this wonderful education from Justice Reed. I had this wonderful exposure to Justice Burton and I got a PhD from Earl Warren on what it was like to be governor of California and district attorney of Alameda County before that.

01-00:30:19 McCreery: Well, tell me briefly about Justice Reed and then Justice Burton, just to get an idea of how they operated and how they may have differed from one another.

01-00:30:28 Rosett: Well, one thing to mention is that both of them were very conservative and Justice Burton was a Republican altogether, named to the Court by Harry Truman. Harry Truman was not a lawyer, was not a law type person. And the justices he named had certain common characteristics. They were, by and

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large, strong souls. Tom Clark may be more questionable, but they were men of their time and men of rich experience.

Bu Harold Burton had been mayor of Cleveland. He was Unitarian. He had a wife who was a feminist even then and he was a very quiet man. He had the condition I have, too. He had Parkinson’s by the time I knew him. And he was a very shy man. He created legislation that is just what we need again now, the Hill-Burton Act. The hospitals of America were built with federal money in return for a promise to take care of the poor. And, of course, that’s just what we need right now. But that’s the kind of issue on which, in the forties, he would be out front on.

Stanley Reed came to Washington in the twenties really, the late twenties. He came to work in the Reconstruction Finance Corporation. He was selected to do that because he had experience with agricultural cooperatives in Kentucky, the Burley Tobacco Cooperative, and he was a part of the Hoover Administration. And when Roosevelt came in he moved up. He was a man who picked young men. You look at the list of Reed clerks, it’s really amazing. The people he was associated with in the solicitor general’s office. Tommy the Cork and Alger Hiss, to name two. Ben Cohen. He was a very interesting picker of people to work with him. Personally he was a patrician son of Kentucky. I think I told this story to the Kentucky interview. He was a man who was aware who would be king of America if George Washington had agreed to become king instead of president. In other words, he had worked through the rules of primogeniture and everything and knew who the local heir to the crown would have been.

01-00:33:41 McCreery: All this time later.

01-00:33:41 Rosett: He was a member of the Sons of Cincinnati. I had never heard of a hereditary patriotic organization. There’s stuff that’s been written on him and Frankfurter, where the contrast between their experiences growing up in police state Vienna versus growing up in Maysville, Kentucky, and its impact. But he was a man who had a very different experience. But he was also a man who really was genuinely curious. My education came because he had me set—right, and I was in his clerks, that suite we were in. I don’t know whether it was a clerk’s office or what it was. But I was through the door to his personal chambers. After lunch, about 2:30, the buzzer would buzz and I would go to respond and the justice would hand me something or ask me something and it was clear that what he wanted to do was talk. And so I heard about the New Deal. What I know about the New Deal I learned from Stanley Reed, which is a very unusual perspective. But he was there. It was on his typewriter, it was on his secretary Ellen Gaylord’s typewriter, that the Social Security Act of 1936 was typed by Ben Cohen one Sunday afternoon. She liked to tell the tale and the Justice liked to tell the tale.

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And he had lots of tales. He was already emeritus. He still sat on original jurisdiction cases. He resolved a two-hundred-year old dispute over oyster wars in the Chesapeake Bay between and Virginia by inviting the governor of the Commonwealth of Virginia and the State of Maryland to come have breakfast with him at the Mayflower Hotel in Washington. The three of them pasted something together to resolve a dispute that went back to Tudor times, the original land grants of Virginia. He was a hell of a lawyer. He had a good heart. He was a very interesting man. He was genuinely interested in the people around him and he liked to tell tales. It was wonderful. What can you do? What can you say?

I carpooled to work with Frankfurter’s clerks. An accident of where we happened to live. And they used to pick up their justice often. And I think that created a little resentment on the Chief’s part. I don’t think he wanted me fraternizing. He didn’t want word getting back to Felix about what he said. But I never heard any suggestion of anything but acceptance and trust of Stanley Reed from the Chief.

01-00:37:11 McCreery: Okay. How did you handle that, spending so much time with Justice Frankfurter?

01-00:37:18 Rosett: I loved it.

01-00:37:17 McCreery: And keeping the confidence of the Warren operation?

01-00:37:24 Rosett: Well, I don’t think I was a hundred percent successful. See, I was wearing so many hats. We were sitting down in the court of claims a day or so a month. Well, there were both Admiral Rickover’s copyright case and Indian claims. I remember the Indian claims. This was before it was stylish. And was on one end. William Douglas and Hugo Black on one end. And Stanley Reed was way over on the other. He saw the Indians as conquered people. He didn’t think we owed them anything. He was a child of his birth and his background. He developed his views in very interesting ways, I think. Hugo Black obviously had the strong end of the argument. White men speak with forked tongue was really true. There were treaties and we didn’t keep those treaties.

I’ve gotten off track. Where I was going was I had enough different heads, which I had to do, and I got a quota every week. I’d go up when they wheeled that cart in and handed out the cert petitions to the clerks to review. I’d take a rotation on that. And I’d take, of course, whatever Justice Burton and Reed wanted got priority. But they had just about as much of me as they wanted. This still left time for me.

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When I’m sitting here, Laura, and trying to get straight in my mind over the years, it’s what’s foggy on me now, is how long it took before I began to work on opinions. That was certainly a big—and the opinions I worked on were not the killers. But I did read and discuss with my fellow clerks what they were working on and also Saturdays, that was when I saw the Chief.

01-00:40:11 McCreery: Well, you mentioned that he incorporated you and welcomed you fully into his operations.

01-00:40:16 Rosett: Yes.

01-00:40:16 McCreery: So expand on that a little bit.

01-00:40:19 Rosett: Earl Warren, he talked to me several times when he did things affecting me. But not as to who I was and what I was to do. But by and large he dealt with me through Bill Dempsey, the chief clerk, and I know, I can’t tell you exactly why I knew it, but I knew it, that it was Maggie McHugh who was really making these decisions. And the Chief didn’t like disagreement. He was the opposite of Stanley Reed that way. Stanley Reed used to like to have knockdown dragouts with his clerk. That’s why his opinions end up sounding like a dialogue. If he didn’t like what you said on something in a draft, Stanley Reed would write another paragraph and tack it onto your paragraph. And so the opinions kind of go like that. They’re a dialogue. And it’s never clear exactly who won in the end. The Chief wasn’t really as comfortable with that. I think he felt more intellectually limited than he should have felt. He was smarter than he gave himself credit for. But he didn’t take great pride of authorship. If an opinion was okay with his colleagues it was okay with him, by and large. He wanted the case to come out.

01-00:42:02 McCreery: But you’re saying the writing itself or the composing of phrases wasn’t the important thing to him, who did that.

01-00:42:08 Rosett: No.

01-00:42:09 McCreery: What was important to him then?

01-00:42:11 Rosett: How it came out I think. Substantive justice. Is it fair? Is it where we want to go? So he would assign a clerk an opinion, not just me, but others, and if he didn’t like it, something would happen and it would be assigned to somebody else. But he wouldn’t call you in and say this paragraph doesn’t wash, or something like that. He wouldn’t confront you on that level. He kept pretty clear notes on what his colleagues wanted in an opinion, what he’d need to get

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the fifth vote. But I’d be curious to know if my friends, if Ken or Jim Adler or Murray Bring—you’ve seen Murray?

01-00:43:33 McCreery: I have not yet but I will, yes.

01-00:43:35 Rosett: Or Bill Dempsey. I’d be curious to know how they remember—he drafted himself, the Chief, sometimes. But he also was perfectly capable of kissing off an opinion. I drafted one wage-hour act or some—not a case of constitutional dimension that appeared in US Reporters with one word change. Idiosyncratic.

01-00:44:13 McCreery: You mentioned that to me. Okay. Idiosyncratic.

01-00:44:17 Rosett: Idiosyncratic was not an Earl Warren word.

01-00:44:20 McCreery: And do you recall his discussion of that change?

01-00:44:26 Rosett: No. I think he just changed it. But that was the only thing he changed.

01-00:44:33 McCreery: Not an Earl Warren word.

01-00:44:36 Rosett: Not an Earl Warren word. In those days I was very conservative. I’d come out of Herbert Wechsler: it’s a matter of principle. And it’s only later that I began to feel more comfortable with the kinds of jurisprudence that that Court was creating. See, because I was really before the big waves. I was before the search-and-seizure cases. I was still a child of Gideon v. Wainwright. I was before Gideon v. Wainwright, Betts v. Brady. The Court was much more conservative than we remember, and when it began to shift the Chief was, I think, more responsible for that than history—oh, they call it the Warren Court but it was a monument to his perception of where the nation needed to go. And he was right.

01-00:45:59 McCreery: Looking back now do you see the seeds of that shift being sown in your year, in the term 1959 to ’60?

01-00:46:02 Rosett: Yes. That was the year that they were first dealing with Posse Comitatus and the Coopers and Aaron and the achieving compliance with racial desegregation [of schools]. It was a time when I think there was probably already a clear majority on the court that thought that Betts v. Brady had to go, that the right to counsel—Gideon v. Wainwright was being cooked. I don’t

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remember anything that would have prepared me for one man, one vote. If idiosyncratic is not an Earl Warren word or a phrase, “One man, one vote, trees don’t vote,” those kinds of phrases that very much resonated for him. Am I blathering on too much?

01-00:47:29 McCreery: No, thank you. Now he had, of course, been on the Court for a number of years by the time you got there.

01-00:47:37 Rosett: Five or six.

01-00:47:37 McCreery: But as you say it wasn’t yet what we now consider the Warren Court.

01-00:47:42 Rosett: Right.

01-00:47:43 McCreery: And the key decisions. So in this process of opinion writing or other work on the cases, what kind of instruction did he give to the clerks?

01-00:47:57 Rosett: I don’t remember getting very much instruction. I know that there was a case that I was asked to draft and he didn’t like it and he went another way. It’s funny. I’ve never quite sorted out the pieces this way before. But when I compare Earl Warren to Stanley Reed or Harold Burton, they had very different approaches to that. I’m not sure I’m remembering it right over fifty, forty odd years.

01-00:48:59 McCreery: I understand.

01-00:49:01 Rosett: But I would guess that a lot of those changes took place in meetings with Bill Dempsey, the chief clerk, who was a wonderfully diplomatically and circumspect, mature fellow. And I don’t think the ideological lines had hardened yet that we associate with the Warren Court. I think it was still in the process of formation and those links would be interesting to investigate. But I don’t remember it well. If he didn’t think it was important how it was written, whether he wrote it broadly or narrowly, it seems to me I could have done whichever I wanted. If Felix complained or Hugo Black complained or Tom Clark complained, he would back off. “Tell me what you want.”

01-00:50:13 McCreery: Yeah. Did you have much of a sense of how he operated behind the scenes with the other justices and figuring out what it would take to get their votes?

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01-00:50:21 Rosett: I think there was a level of personal relationships there that were very important, some of which centered around lunch, some of which centered around walking to work, and they were strange bedfellows, to mix the metaphor. They were strange walk fellows. In the old days, before the year I was there, Felix Frankfurter was beginning to fade a little bit. He wasn’t feeling well. But my understanding is that Justice Frankfurter was the furthest out in Georgetown and he would either have his driver drive him to someplace near Connecticut Avenue and meet up. He would come and join this gathering crowd. I’ve forgotten where Tom Clark lived. But he was a walker with them. They would pick up Tom Clark and they would pick up Stanley Reed, who was in the Mayflower, and Earl Warren, who was in the Shoreham. Neither Stanley Reed nor Earl Warren—one thing they had in common is that their wives never unpacked the china. They moved to Washington temporarily. “We’re going to go back home, don’t worry, Winnie, we’ll go back home.” And proof of that was they lived in a hotel suite for forty years.

01-00:52:03 McCreery: For years.

01-00:52:04 Rosett: And Earl Warren lived his whole tenure in a hotel room and never unpacked the china. But anyhow, I’m trying to paste together in my memory, and it’s not going to work, who picked up whom when. But as they progressed along the flats leading to Capitol Hill, there would be Tom Clark, Earl Warren, Frankfurter. I’m leaving somebody out.

01-00:52:47 McCreery: Well, Justice Brennan was known to be a walker, but I’m not certain he fits in with the group you’re describing.

01-00:52:58 Rosett: I don’t remember the period. But in any event, the point I’m trying to make is that the justices met daily and there was banter. There also were wounds and insults. Felix Frankfurter treated Earl Warren badly when he first arrived at the Court. He treated him as a student and gave him the business. And by the time I was a clerk the Chief was suspicious and resentful of Felix Frankfurter. The Chief over time warmed a lot to Hugo Black. Hugo Black and William O. Douglas had animosity that went back. Long stories. I’m afraid I can’t pull it back reliably in much more detail than that.

01-00:54:11 McCreery: Okay. Talk a little about the other Warren clerks and how you interacted and worked together?

01-00:54:20 Rosett: Well, it was Bill Dempsey, Ralph Moore, Stanley Bring, and me.

01-00:54:27 McCreery: Murray Bring.

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01-00:54:31 Rosett: Murray Bring stayed over another year or two after that year, as well. It was when he began to do a multiyear thing. They were wonderful guys. I stand in great admiration of Bill Dempsey. He’s always seemed to me to be a wise man. I was brash and shot my mouth off and got overextended in various ways. And Bill Dempsey was a very admirable guy. He was almost adopted by Frank Shea of Shea & Gardner, the lawyer who became Shea & Gardner. Frank She didn’t have children and Bill and her name escapes me, she was a lovely—they lived in the slave quarters behind Frank Shea’s house in Alexandria. Well, I think I’ve said it.

Murray was more difficult for me to figure. He went to NYU Law School and was very ambitious. And when he went into practice he got into the tobacco business on the wrong side and became some very high official in Philip Morris, the general counsel, and was very much involved in some of the stuff about misleading the public about the dangers of smoking. Fighting attempts to control smoking. And in later years I didn’t have a lot to do with him. Which was very disappointing because Murray was a very broad gauged, extraordinarily talented, political creature. And why he decided to invest his one ticket through representing that side of that issue I don’t know. But he never, to my knowledge—maybe he did things that I’ve never heard of. But he never became one of those, which he could well have become, one of those universally respected Washington lawyers whom every president calls upon for dirty work.

Ralph Moore is much more—I almost said ordinary but that might be seen more as implying something critical when I’m not critical. He’s a simple ordinary guy and has been practicing law in Washington for forty years. I’m sure he’s a good lawyer. If he had political ambitions, I’ve never heard of them. But we socialized a lot, the four of us.

01-00:57:35 McCreery: Did you outside of the Court?

01-00:57:36 Rosett: Yeah. Our families. The Dempseys, he couldn’t have been very much older than I was, but he was more mature. And Murray in those days was single. Murray Bring was single and we didn’t socialize as much with him. With the Moores, my wife became quite friendly with him and her and we saw them.

01-00:58:08 McCreery: And what about the Chief outside of the Saturday lunches? Was there any socializing in your year?

01-00:58:13 Rosett: Well, there was the clerks weekend, with all of the accoutrements. You know, the Stanley Reed’s clerk parties were amazing and the Earl Warren parties started off much smaller. I was within five years or six years of his being on

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the Court. He didn’t have that many clerks when I came along. But he liked to go to games with us. He liked Saturdays. He and Holland, there weren’t many restaurants open on Capitol Hill, so we either had to go to the Methodist cafeteria or we’d go downtown to the University Club and sit around in the bar, watch a little television, and drink, and he’d talk politics.

01-00:59:20 McCreery: What did you talk about? What did you ask him on those occasions?

01-00:59:22 Rosett: Mostly about Richard Nixon. It was a subject he liked to really—he didn’t like Richard Nixon. Never forgave him for the Helen Gahagan Douglas campaign. Thought he was a liar. He was a monument already and even in my naiveté at that time I realized I was hearing the history of a society that grew in his life. He was the son of a railroad worker and got driven out of Los Angeles. Father was blacklisted. Ended up in Bakersfield. There was one high school in Kern County. When you look at the size of Kern County on the map, it’s a big county. And so, of course, they had to board to go to high school. To go to public high school you had to board someplace. Then that whole experience in Alameda County for so many years, and then becoming attorney general of the state—being elected as both parties’ candidate. He had oodles of stories. And, of course, with some people, seems to me in later years, I’d hear stories through Ken Ziffren. I’m getting disorganized.

01-01:01:00 McCreery: Okay. Well, while you’re thinking, let me interrupt and stop this to change tapes.

01-01:01:04 Rosett: Okay.

[End Audio File 1]

[Begin Audio File 2]

02-00:00:35 McCreery: Okay, here’s tape number two. It’s still August 3rd—

02-00:00:39 Rosett: Third.

02-00:00:39 McCreery: —2004. I’m Laura McCreery, continuing the interview with Professor Arthur I. Rosett. You were talking a little bit about the Saturday lunches with Chief Justice Warren and kind of reminding me of some of his own background in politics and so on. What kinds of political skills did he bring and have available to him on the Supreme Court? Much view about at the time?

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02-00:01:10 Rosett: Well, it’s hard for me to answer that. On the one hand, he had run what was, for its time and place, a big law office as district attorney and then as attorney general and then as governor. He headed what I think was—at that time he went on the Court I think it was the second largest governmental bureaucracy in America. And he ended up on the Supreme Court where the whole institution was run by one woman.

02-00:01:48 McCreery: Now, you’ve got to explain that a little bit, if I may interrupt you. Because you keep saying Mrs. McHugh was running things. I know appointments had to go through her and so on and so forth. But what do you mean by that exactly?

02-00:02:04 Rosett: Well, one thing I mean by it is that one of Earl Warren’s political skills was that he always was Mr. Yes. “Well, well, well, well, well, well, wonderful to see you, Arthur. How are you?” And he always played that role. He never played the angry or censorious father. He could not bear the thought of being critical. And I think that is hinted at in what I was saying about the opinion drafting process. He really liked people and wanted people to think well of him. And as the world knows, every great man who wants to be a Mr. Yes has to have a Mrs. No in the background. For Dwight Eisenhower it was Walter Bedell Smith and Sherman Adams. I was twenty-two, twenty-three years old, for Pete’s sake. It could be that I believed the Oz machine and that really Mrs. McHugh was an inflatable dolly that you could buy on the net for 19.95 and that she just was blown up and sat in the corner, go “Waaaa.” But if you were in that time and place you would have a very dramatic impression that strings were being pulled and that decisions were being made and that the Chief was not personally involved in it at all and that the person who—[you know] the way a third grade teacher looks to a little kid? But I’d like to hear that from somebody. I bet you that’s not the tale you get from most of the clerks. At least if it’s an illusion, they share that illusion that she really was the boss.

02-00:04:21 McCreery: Well, thank you. And you were trying to talk about Warren’s political skill.

02-00:04:28 Rosett: Yeah. Well, I think that is a skill, to find such a person and it enabled him, empowered him to be avuncular, generous, pleasant, agreeable. And those were all things he wanted very much to be.

02-00:04:54 McCreery: Did you ever see him otherwise?

02-00:04:56 Rosett: Yeah. I’ve seen him angry. I can’t exactly remember what the context was. I think his relationship with Mrs. Warren had some of those same elements. He liked the situation which it looked like she was really running the show and he was just the big bear of a man. “Well, well, well, well, well.” And he played

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that role. I mentioned Eisenhower before. These were the Eisenhower years. This was a man who ran his running mate with—no, I guess he didn’t run with Eisenhower. He gave the California votes to Eisenhower.

02-00:05:50 McCreery: Eisenhower.

02-00:05:51 Rosett: But the link was there. Eisenhower had that same quality. He talked nonsense. A couple of weeks ago I was in Hyannis Port, Massachusetts. There’s a little museum there obviously to the Kennedys in which they have a tape deck that plays presidential press conferences, which I stood there for an hour and a half listening to. It was just so wonderful to listen to that man and how he handled a press conference. And that was not Earl Warren and that was not Dwight Eisenhower. They talked gobbledy-gook. I think to some extent it’s a game that keeps them from getting caught. They keep their own counsel. I hope I didn’t give the impression that I thought that the Chief didn’t have anything to do with the opinions. He had everything to do with the opinions. Opinion writing between judge and clerk is an academic exercise. It’s a matter of sharpening intellectual points. That wasn’t what Earl Warren wanted to do. He had another context, another sense of what was important about these decisions and his judgment on it was superb. And he was right and I was a callow youth.

Felix Frankfurter had a dinner toward the end of each year to which he invited other justices clerks, something which I think the Chief did not like. I attended one such dinner. I don’t think I would go again. Felix Frankfurter went around the table and asked each of us what we thought was the best and the worst decision of the year, as if we were curving it, as if we were grading it. And I remember my choice, which was on the spur of the moment, was some cockamamie case that involved the position of senior judges in the court of appeals and the connections between Article III and Article VI. As I look back on it, it’s with horror that that was my set of values. That there was a structure here and that there were rules and there was a right way and a wrong way. I thought that was very important, that case was very important to me. I was a rigid, crazy, twenty-three year old, immature child. Earl Warren would never make that mistake. Felix Frankfurter would be amused by me. In fact, I can almost hear him saying, “He’s just like Herbert Wechsler. Rigid. They see the world in a mustard seed. Doesn’t have his eye on the ball.” Earl Warren had his eye on the ball and I have only come to appreciate it later.

In that Hastings article I told the tale of the Chief Justice arriving in the Court on that Sunday after Vinson died. And his staff were these messengers, these law clerks whom Justice Vinson had never seen and he had never seen and Mrs. McHugh. And to go from being governor of California to that [kind of environment] overnight was a cold shower. But somewhere in there he learned a hell of a lot running around the track a few times. And by the time, six years

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later, I don’t have any doubt that he had a sense of where he was going, although he hadn’t yet gone there.

02-00:10:43 McCreery: Okay, thank you. Now, in discussing his experiences in California, of which there were many, do you recall him ever speaking with you personally about the internment of the Japanese Americans during the war?

02-00:10:58 Rosett: No. I think he had a distorted memory of what happened. There were two situations that were sensitive to him in terms of his role in California. One was the Japanese [American] internment, the other was Edwards v. California, the Okie case. And I probably don’t have it perfectly right but my recollection is that Felix Frankfurter used to turn the knife a little bit on that. I think Frankfurter claimed that Earl Warren argued Edwards v. California for the state and I think the Chief denied that and I think the record indicates that Frankfurter wasn’t making it up. I think the Chief’s memory of some of that stuff was not fully consistent with some of the official record of who did what in those cases. But I’m rusty on the details of it. I haven’t thought about Edwards v. California in many decades. I heard Martin Buber say that he couldn’t keep as a commandment that which he didn’t believe was commanded. And I also heard Thurman Arnold say as he grows older he’s discovered that some of the things he remembers best never happened.

02-00:12:48 McCreery: Okay. Well, that’s the nature of memory for all of us certainly.

02-00:12:51 Rosett: Yeah. I can’t reconstruct it any longer. I thought one time when I went through some of this stuff that the Chief’s memory wasn’t perfect on those matters.

02-00:13:12 McCreery: Okay. What opportunities did you have to see the justices interact with one another in the Court? In other words, official Court time, Court business?

02-00:13:24 Rosett: Well, during oral argument the clerks would go and hide and listen.

02-00:13:27 McCreery: Yeah. Did you go very often?

02-00:13:28 Rosett: Yeah. See, I could do it. I heard argue the steel case. I heard some great arguments.

02-00:13:35 McCreery: Oh, that was your year, wasn’t it? The steelworkers.

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02-00:13:37 Rosett: Yeah, yeah. I heard some great oral arguments, and some awful ones. Poor Charles Evans Whittaker. I heard Erwin Griswold. Whittaker asked a question. It’s funny. Why do I remember this? It was Cannelton Pipe. I remember the name of the case. I haven’t thought about it in many, many, many years. Erwin Griswold was arguing Cannelton Pipe for the taxpayer. This was a depletion case, a very, very technical issue of tax law. And Mr. Justice Whittaker asked a stupid question, which he was capable of doing. And Dean Griswold turned and said, “Well, Mr. Justice Whittaker, as any C student in economics could tell you, blah, blah, blah, blah.” And my recollection is that Earl Warren, talk about anger, that he sucked in his breath and shut Erwin Griswold up. Because Charles Evans Whittaker could ask stupid questions but Charles Evans Whittaker was a good soul. He was not a bad man. He was not as clever as some. Do we have time for a C story?

Years later, in the mid-sixties, I was associate director of the National Crime Commission, and I used to commute on Thursdays up to New York to teach at Columbia just to keep me busy. And that late flight back to Washington was a who’s who. It was the era of the Electra, before they had jets. The jet prop, whatever it was, the thing that crashed a lot. And they had a funny seating arrangement in the back of the plane. It was kind of cool. It was kind of like a living room back there. And one night I got on the plane to go back to Washington and I sat with Bill Rogers, who was a member of the Crime Commission, was secretary of state. And I don’t know, was he attorney general, too? I think so. But who was a person of this sort. Of course he was attorney general, otherwise the story doesn’t make any sense. How stupid of me. And we somehow got on the subject of Mr. Justice Whittaker and he told me the story. I heard it from a rabbi who got it from the Tanakh, who has it from Mount Sinai. I really heard this in the back of an airplane at 30,000 feet ten years later. One day he’s a justice and the phone rings and a secretary says, “Mr. Justice Whittaker wants to speak to you.” And Whittaker gets on and says, “Mr. Attorney General, I’d like to come see you.” And the attorney general says, “Oh, no, Sir, I’ll come see you.” And Whittaker says, “No, I don’t want you to come see me. You’ve got a private entrance there somewhere in the Justice Department. Tell me how to do it. I want to come see you.”

And Justice Whittaker came to see the attorney general and Whittaker said, “Mr. Attorney General, make me a district judge again. I liked being a district judge. I was a good district judge. I understood being a district judge. I don’t understand this stuff. I can’t deal with Felix Frankfurter and Hugo Black. I’m not that kind of a mind and I don’t dig it.” He didn’t say that. “Put me back where I belong.” It’s the Peter Principle kind of idea. “Make me a district judge again.” And Bill Rogers said to him, “I can’t do that. There’s no way to do that. You’re a justice of the Supreme Court of the United States.” And so, of course, Charles Evans Whittaker resigned and got a very high paying job for the automobile companies handling consumer complaint arbitrations,

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which is just what he was good at. This is all back to the Erwin Griswold story. Charles Evans Whittaker may not have been a great justice of the Supreme Court but he was not a bad man and deserved better treatment then he got.

I have a visual memory of walking down the hall. Justice Whittaker kept his door open and he was pacing. Lipson was the clerk’s name. And the justice was pacing literally like this, with his hand covering his eyes and trying to think through some proposition. And obviously struggling. I have no idea what it was he was—it’s just the visual image. That was him.

02-00:19:45 McCreery: Okay, thank you. We’ll pause here so you can see your student.

02-00:19:46 Rosett: Okay.

02-00:19:48 McCreery: Okay. We’ve completed our little break and you’ve thought of an Earl Warren story you wanted to tell.

02-00:19:52 Rosett: Back to parking and cars, because at that time, as I experienced it, your status on the Court was very much reflected by where you parked and there were justices and there were clerks and there was staff and there were messengers. There was also the solicitor general. And the solicitor general’s office, which then included people like Rick {Vidali?} as I remember it, used to show up in these beautiful—this is the late fifties, I tell you. In these 1958 Oldsmobile 88 hotshot cars with heavy duty springs and a big, big engine, which, of course, that got to the solicitor general’s office by seizures from moonshiners in the South. These were moonshiner cars that they used to outrun police cars in the South. And they were in a special category all themselves.

And I think it must have been particularly galling to the Chief because the whole business of a car—he didn’t have a car. He didn’t have a personal car. They came out here by train. They came to Washington by train from California and he didn’t rate a car because of Congressman Rooney from Brooklyn, who was the head of the appropriations committee that dealt with the Court and who cracked the whip over Earl Warren and kept him down, disapproved of things that the Chief decided. And therefore would not put in a line item in the budget for there to be a car for the Chief Justice of the United States, head one of the three coordinate branches of government. I don’t think it’s just in my mind. I think the Chief was aware of the solicitor general’s stable of cars. It wasn’t there wasn’t cars available. The United States government had cars in those days. Specifically the institution, the courthouse, had these super-duper cars which he never could get access to.

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And so it used to gall the Warrens that when they went to the White House, when they were invited to official functions in the White House, they had to take a taxicab. And that really used to piss him off, I think rightly so. It was really petty vindictiveness, and highly improper on the part of the congressman to deny the Court an appropriation because he didn’t like some decision he made. But that business of finally getting a car and getting Gene, the messenger who used to drive him mostly. I think it happened after my time on the Court. I’m trying to remember how the Chief was driving around in the year I was there. I don’t remember. I don’t associate him with a car at all. He may not have had a car.

But it was the contract between Rick {Vidali?}. Have you come across that name at all? Well, he’s another wise guy Jew from New York in the solicitor general’s office in my year. Maybe a couple of years older than I am. He may have been as much as twenty-five years old. And the contrast between the Chief Justice driving around in a taxicab and Rick {Vidali?} driving around in this Oldsmobile 88 souped up with some kind of iridescent finish on it, designed for outracing police cars on the back roads of Tennessee, just sticks in my mind as typical of the political life of the Court on a very basic level.

02-00:24:24 McCreery: Okay. Well, speaking of trips to the White House. Did you have much chance to observe or hear about Chief Justice Warren’s interactions with President Eisenhower and what kind of relationship they had?

02-00:24:38 Rosett: Oh, I think it was correct but not warm. Eisenhower had made a promise. He got his consideration, as we lawyers say. It was delivered. And he got to be President of the United States. And he promised Earl Warren the first slot that came along, and if it be the chief justiceship, so be it. But that was what Earl Warren wanted and he asked for and that’s what—

[skip in tape]— published as a collection. He resisted that, in part because, I think if you read them, it’s clear they have many authors. Every year the voice changed.

02-00:25:29 McCreery: And you owe that to the role of the clerks in writing?

02-00:25:31 Rosett: Yes, yes. I don’t think anybody would deny that. He had no pride of authorship. But he did think his job was very important. And you have to say, “Well, what was important about it?” And that’s the statement that I’m looking for and I don’t think I’ve read it yet. I should have it up here, it was about five years ago, what’s his name, he interviewed me, too. But he had no lawyers—

[skip in tape]

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02-00:26:06 McCreery: Are you talking about Mr. Cray’s book?

02-00:26:08 Rosett: Yes, yes. That was more a political biography than judicial. Can you think of anybody who’s written anything?

02-00:26:21 McCreery: Not that pieces it all together, no.

02-00:26:24 Rosett: If it does piece together at all.

02-00:26:26 McCreery: Yeah. That’s a question.

02-00:26:27 Rosett: I think as I get older I think more it does piece together. And I think the thing I said just a minute ago would be a very good exam question. [laughter] Compare Earl Warren to his three predecessors and his two successors.

02-00:26:50 McCreery: Yeah, that would be an important piece of it, wouldn’t it?

02-00:26:52 Rosett: Yeah.

02-00:26:52 McCreery: Those who came after him.

02-00:26:53 Rosett: Is there a clear systematic pattern here? Yes, there clearly is. Earl Warren is not Warren Burger. He’s not . What was Earl Warren’s judicial philosophy? I don’t know anybody who’s ever stated it. But—

02-00:27:12 McCreery: Do you recall if you had much sense at the time of him viewing the Court as an instrument of social change, even though, as we’ve said, many of those key decisions of the sixties had not come to pass yet?

02-00:27:31 Rosett: Yes. I have a suspicion, I can’t tell you where it’s coming from, that he saw himself as going somewhere and he saw the Court as going somewhere. He saw America as going somewhere. That I think is the key. If you talk about reapportionment, anti-discrimination, both racial and other suspect categories, and criminal justice, just those, pick three, it’s clear the Warren Court made a tremendous difference in America and even can’t repeal it. And I think it seems to me I should be able to write something lucid. Capture the man and his mind and the institution he dreamed about but I can’t do it.

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02-00:28:45 McCreery: What about this term we hear batted around? Judicial activism? Would you apply that term to him and, if so, why?

02-00:28:55 Rosett: Oh, he clearly didn’t. He didn’t think it was a good reason to do anything, to say, “That’s the way we do it around here. That’s the only reason.” But in that he’s in a great American tradition. I can name a half a dozen justices and chief justices who believed that. Yeah, of course it’s an activist thing. It’s the institution that’s designed to provide the highest level of decision on values. That’s interesting. I would have to talk to some of my colleagues who are more historically oriented than I am about what’s been written about Earl Warren. You would know.

02-00:29:50 McCreery: Well—

02-00:29:50 Rosett: You must read the literature. I’m not here to interview you. Don’t worry about it, Laura. But it’s remarkable what I just said because you can read Alpheus Mason on Stone. You can read, what’s his name, Gossett, on Hughes. And they’ll come through with a song that scans, a poem that scans. And I don’t know that you can do that with Earl Warren. Sure can do it with William Rehnquist.

02-00:30:30 McCreery: Well, let’s talk a little bit about what’s happened since the Warren Court. I don’t know how much of a Court watcher you’ve been.

02-00:30:38 Rosett: I used to watch.

02-00:30:41 McCreery: You just said a moment ago even William Rehnquist can’t change it.

02-00:30:53 McCreery: How do you summarize in brief what’s happened since the Warren Court in terms of those fundamental areas that you just described?

02-00:31:06 Rosett: To some extent it’s been a long nap after a heavy meal. What did happen when I was there was the Court confronting the inherent limits on their capacity to be activist. With Eisenhower it wasn’t clear that the President of the United States was going to order the Army into Little Rock. It wasn’t clear. When push came to shove, Eisenhower did the right thing. But it was not a foregone conclusion as I remember that summer. So that maybe Earl Warren moved the President along a little bit. He certainly wasn’t as impressed with why we can’t do that and he certainly wasn’t impressed with things like Felix’s business about it’s a political question and therefore the Court doesn’t answer it, which I must say didn’t make any sense to me at the

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time. As a great lover of Hart and Wechsler and federal courts theory, that’s just baloney. But there’s an area where I think the Chief’s attitude was intellectually more powerful than some of his intellectual critics. But it’s interesting. You really are confronting me, as I’ve never been confronted before, with some attempt to deal with what it all means. I do know what it all means. I think America’s in a much better place on each of those three major areas and I probably could name six more if I sat long enough. Let’s see. Who would have gotten the job? It would have been a totally free choice once Vinson died and Eisenhower hadn’t made the promise he made. Would he have named Herbert Brownell? Who would he have named to the Court? In any event, I think it’s safe to suggest that he probably wouldn’t have been a person who would have had the impact on American life that Earl Warren has had. And on the viability of legal institutions, the importance, centrality of legal institutions to the quality of life. Phfew. Now Professor Rosett’s said enough.

02-00:34:09 McCreery: Okay. While we’re kind of in a mode to summarize here, what do you think you learned from Earl Warren?

02-00:34:20 Rosett: I learned how you got ahead in California politics. “Well, well, well.” See, he knew where the hell he was going. One really must ask why, when the genie said you get one wish, why did he say, “Make me a chief justice of the United States.” He is a man who was not an appellate lawyer. He is a man who was not a constitutionalist. He was a man who was a prosecutor much more than he was a defense lawyer. I don’t think he ever really was a defense lawyer. He was a man who had no compunctions about gassing people who killed their wives. This was a man whose role in some of the human rights issues of his time was probably not sterling. I don’t know whose memory is right on Edwards v. California or the Japanese [American] relocation or other issues we could mention. But he wasn’t the golden boy of the ACLU most of his life. But when he got on the Court he landed, he turned around three times when he jumped out of the plane, and pulled his ripcord and found Felix Frankfurter first and had the sense to reject Felix Frankfurter. And never formed an obvious intimate association with the justices around him, although he was, I think, a good friend for them. They liked to talk to each other. They did walk together. And he carried the Court. He was one vote, after all. And we didn’t become radical. There isn’t a lot that in the thirty years since the Warren Court is over that has been erased. There weren’t a lot of really bad choices made. And there was some super choices made. There was some choices made that the intellectual tools that I was brought up to revere don’t get you to.

02-00:37:01 McCreery: Perhaps it’s been less changed than one might expect.

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02-00:37:06 Rosett: Well, the country has been conservative for a generation now. It’s funny. I always seem to be moving in the wrong direction.

02-00:37:15 McCreery: Because you’ve described yourself as becoming substantially more liberal in your own views as time went on.

02-00:37:25 Rosett: Yeah.

02-00:37:29 McCreery: Well, how do you evaluate your experience as a law clerk on the Supreme Court and the effect it had on your own career?

02-00:37:35 Rosett: I thought it was a great gift from God. It was a winning lottery ticket and so was the Bronx High School of Science, so was Columbia College. But it’s the little boy who gets the banana split for his birthday and you start by eating the maraschino cherry and you slowly work down through the whipped cream to the ice cream below. But it’s all wonderful, tastes great, but there’s nothing like that first taste of maraschino cherry. I started at the top and worked down. That’s a strange thing to say but that’s the way I feel.

02-00:38:23 McCreery: Okay. Well, is there anything else that you’d like to add about your experiences on the Court?

02-00:38:34 Rosett: No. I’d be interested to explore with some of my younger colleagues who’ve had the same experience but in a much more bureaucratized Court, because certainly the mark of both the Burger and Rehnquist Courts has been depersonalization, building of a bigger institution. I don’t know how many clerks they have now. I’d be curious to know how that fits in with the quality of what they’re turning out.

02-00:39:07 McCreery: More clerks and fewer cases certainly.

02-00:39:08 Rosett: More clerks, fewer cases, less new law. Although this year they seem to be coming back. I’m going to tell the tale for your tape. I heard a tale just certainly from a source who will remain anonymous but it’s a person who deals with one of the justices of the Supreme Court on some affairs. Mr. Justice Souter. And my informant told me that he saw Souter this spring and Souter went on and on about how he feels the Court betrayed the American people and didn’t serve their best interest with Bush v. Gore.

02-00:40:01 McCreery: Really?

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02-00:40:02 Rosett: And that he still feels that that was a kind of an institutional turning point where the Court lost its nerve and blinked. And that it was a big decision that was made in a very unworthy way and that left the American people not able to look to the Court for leadership or guidance in a moment of crisis. And that Justice Souter is reported to have felt that a number of his colleagues feel the same way. That the institution was on the wrong side, not necessarily in the outcome but in how the whole thing was dealt with and that they missed an opportunity to serve the American people.

Well, if we go back and look at the Court that was just forming direction clearly when I clerked there thirty, forty years ago, there’s no question in my mind that the Warren Court did serve the American people, just as the had served the American people with the New Deal decisions. And they brought a new rhetoric, they brought a new way of explaining ideas, they drew a new commitment to what the role of judges is and should be and America is clearly better off because of the Hughes Court, just as it’s clearly better off because of the Warren Court. And I wish I was more articulate and I could capture that, the content of it, but I’m still struck that I can’t do that.

02-00:42:04 McCreery: Well, perhaps all these interviews taken together will shed some light on the question.

02-00:42:11 Rosett: That would be nice.

02-00:42:12 McCreery: Yes. Thank you for the story about Justice Souter. And that reminds me, you talked earlier about going to law school with Ruth Bader Ginsburg and I wonder to what extent did you keep in touch with now Justice Ginsburg over the years and, of course, watch her rise to her current position?

02-00:42:35 Rosett: I’m sure she knows who I am. I really haven’t had five minutes of conversation with Ruth Bader in the last forty years. We were New York lawyers together. Pat Wald I knew better. I worked with him when I was on the Crime Commission. I haven’t got much to say about Ruth Bader Ginsburg. I don’t know her very well. I admire her deeply. She’s not a warm person. That’d be another good one in the set. Her husband is a wonderfully funny man with a wry acid sense of humor. And they look like an odd couple. I remember them from when they were much younger. But I just don’t know her well.

02-00:43:55 McCreery: One of the other former clerks pointed out to me that had the Supreme Court taken women clerks at the time she might very likely have been among you.

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02-00:44:07 Rosett: Really?

02-00:44:09 McCreery: On the Supreme Court or that she might have had the chance.

02-00:44:16 Rosett: She would have had to overcome the institutional prejudices of Harvard Law School. It had been a number of years between me and the previous last Supreme Court clerk from Columbia. Harvard really had a stranglehold on that and Douglas went through people in the Bay Area. But I do think very highly of the institution of law clerks on the Supreme Court. But the way that Harvard Law School and Yale Law School have used the resources that have been theirs I think is really not a very pretty story and I think the justices do reach more broadly now. We manage to get people on with some regularity. And I think that institution is better as a result. But honestly, I don’t know very much about how the Court operates today. The Brethren is, what, twenty years old now? This has been a useful interview for me. I really have to ask some of my friends on a long quiet winter night how you would sum up Earl Warren. Seems to me somebody should have tried to do that by now.

02-00:46:13 McCreery: Well, when you figure it out, let us know, will you? Okay, thank you so much. We’ll end it there.

[End of Interview]