BRIAN LAMB, HOST: Dennis Hutchinson, co-editor of "The Forgotten Memoir of John Knox," who was he?
DENNIS HUTCHINSON, CO-EDITOR, "THE FORGOTTEN MEMOIR OF JOHN KNOX": John Knox was a law clerk to Justice James McReynolds during the 1936-37 term of the Supreme Court of the United States. And late in life, he decided to write a memoir of that term because, as it turned out, it was really the high point of his life. So he spent 11 years writing up that one year, and when he was done, he had 978 manuscript pages. And he tried for years and years to get it published, in whole or in part, and he failed. And when he died in 1997, he left behind multiple copies of the manuscript. I came across several chapters of the manuscript in our law school library at the University of Chicago, where I work, and that made me curious as to where the rest of it was because this is basically a unique artifact. Law clerks don't write memoirs about working for the Supreme Court.
And then I discovered that David Garrow at the Emory Law School had a complete set of the manuscript, which he discovered while he was working on his book on Roe versus Wade. So I called him up and said, "Do you want to do a joint edition, see if we can convince somebody to publish it?" And he thought it was a great idea because Knox's surviving cousin, who was the legatee of the literary rights to the book, had been pushing David to get it in print. He had other projects. I was fresh off of a book, so that's what I started doing three summers ago.
LAMB: Why should somebody read something like this?
HUTCHINSON: It gives an insight into how the Court operated between the wars. It gives an insight into what Washington society was like between the wars, which was very formal, very Southern. And it humanizes an institution that we usually see only in sound bites or artists' sketches.
LAMB: You tell us James C. McReynolds, Justice of the Supreme Court, had been the attorney general appointed by Woodrow Wilson?
HUTCHINSON: Woodrow Wilson.
LAMB: Why did he send him to the Court?
HUTCHINSON: Well, the rumor always was that McReynolds was so difficult to deal with in cabinet meetings that once there was an opening on the Court, Wilson was glad to be rid of him. I think that's true, in part, if not completely. But Wilson admired his work as a trust buster. McReynolds, indeed, had come to Washington as an assistant attorney general under the Theodore Roosevelt administration. That's how he came to Wilson's attention. McReynolds served on the Supreme Court from 1914 to 1941.
LAMB: What was he like?
HUTCHINSON: Nasty, racist, anti-Semitic, gratuitously cruel, fixed in his ways and lazy.
LAMB: How do you know that?
HUTCHINSON: From a combination of what Knox has written and from almost every other account you can find, including a half dozen unpublished Ph.D. theses about the man, based on interviews with people who knew him.
LAMB: And where was he from originally?
HUTCHINSON: He was from Elkton, Kentucky, border-area Kentucky/Tennessee. And he grew up in a very strict household, Disciples of Christ, the Campbellite wing. His father was known as "the pope," not for his Catholicism but for his infallibility, at least in the community. He was a very severe man. And his anti-Semitism was notorious. For example, there's no photograph of the Court in 1924 because he would have had to sit, as protocol required, next to Justice Louis Brandeis, who was a Jew, and he wouldn't do it.
When Justice Cardozo, Benjamin Cardozo, was being sworn in, Justice McReynolds was reading a copy of the "Washington Herald" on the bench.
LAMB: You do have a photograph here. It doesn't say what year it is, I don't believe. Do you know?
HUTCHINSON: It's the year that John Knox clerked at the Court, the October term, 1936.
LAMB: I don't know whether we can get any closer or not, but I want our audience to see the photographs. If you look in that picture, all the way over to the left is Louis Brandeis.
HUTCHINSON: That's correct.
LAMB: In the back, all the way over to the right, is Benjamin Cardozo.
LAMB: And McReynolds, Justice, right there in the front row, second from the right.
HUTCHINSON: Second from the right. That's correct. So he's standing more or less in front of Cardozo, but at least he doesn't have to sit next to him.
LAMB: Who else is in this picture from the -- what year again? I didn't hear...
HUTCHINSON: From 1936, 1937. The front row is Justice Brandeis, next to him is Justice Willis Van Devanter. In the center is the Chief Justice of the United States, Charles Evans Hughes, then McReynolds, then Justice George Sutherland. Back row, Justice Owen Roberts, Justice Pierce Butler...
HUTCHINSON: Harland Fiske Stone and Cardozo.
LAMB: So a lot of little things. The Court at that time sat where?
HUTCHINSON: It had just moved into the new building at 1 First Street NE, that we think of as being the Supreme Court and always been there, but it had only opened in 1935, after being on the drawing board for a long time. So this was only the second year of the building's operation. The Justices, though, were very set in their ways, on the whole and by and large, and they tended still to work out of their homes. Indeed, only two members of the Court actually used the new building. That was Chief Justice Hughes and Justice Roberts. The rest of them had law libraries in their homes. They had one staff member, usually. A couple of them had two. Knox served as effectively both a law clerk and as a social secretary. Part of his job was to answer invitations to social functions for the Justice, as well as to assist in doing research on Court work.
LAMB: One of the things I thought when I was reading the diary -- that there were a lot more cases, oral arguments, heard then than there are now. Like, last session here, there were 75. How many were heard back then, do you know?
HUTCHINSON: Well, that's -- that has varied from time to time. It was -- really, it was about the same, but there were far fewer petitions for certiorari -- that is, threshold applications for the Court to hear cases. They numbered in the hundreds then. They number about 7,000 now.
LAMB: What was the political make-up of the Court in 1936?
HUTCHINSON: Well, putting to one side parties, because McReynolds was a Democrat appointee from Woodrow Wilson, but he was very conservative. The so-called "Four Horsemen," as they were epithetically called -- Justice Sutherland, Justice Van Devanter, Justice Butler and Justice McReynolds -- were just rock-ribbed conservatives who thought that the New Deal was straight out of hell, as well as being unconstitutional, was a recipe for socialism, and they were going to stand in the way at every point along the way.
On the other side of the spectrum, you have Justice Cardozo, whom we mentioned, Justice Stone and Justice Brandeis, who were more liberal by common denomination and more willing to let the government try to deal with the horrors of the Depression -- massive unemployment, problems with wages, prices, and the like.
And then there were two figures in the middle, Chief Justice Charles Evans Hughes and Justice Owen Roberts. And depending on where those two Justices go -- and Roberts is really the linchpin. He's the one who changes during this term. Either the New Deal is going to be constitutional and is going to run, or it's going to face one roadblock after another. And up until the spring of this term, Roberts had stuck with the "Four Horsemen," and he switched in the spring. And that's the so-called "switch in time that saved nine," because at that point, President Roosevelt had proposed making the judiciary more efficient by being able to appoint one Justice for any Justice 70 years of age or older. That would have increased the size of the Court to 15.
LAMB: Is that actually where that saying came from?
LAMB: "A switch in time"...
HUTCHINSON: "That saved nine."
LAMB: ... "saved nine."
HUTCHINSON: That's right. Kept the Court at nine.
LAMB: Now, in 1936, Franklin Roosevelt was president. What was the world like then?
HUTCHINSON: Well, Roosevelt had just finished his first term. And as the first term wore on, the Supreme Court was striking down various aspects of the New Deal, such as the Agricultural Adjustment Act, the National Industrial Recovery Act, the Bituminous Coal Conservation Act of 1935, on grounds that either Congress lacked the power because it wasn't interstate commerce or that the states had the power under the 10th Amendment to regulate these affairs and the federal government did. And it was driving Roosevelt crazy, and he thought that it was an affront to his political authority, and it was a poor reading of the Constitution, but he couldn't do anything about it during his first term because there were no vacancies on the Court. Like Jimmy Carter, he went through a full term without being able to appoint anybody to the Court.
LAMB: Nine Justices. How many of them were over 70?
HUTCHINSON: Six were 70 years of age or older.
LAMB: And go back to the FDR proposal on the Court-packing?
HUTCHINSON: Anybody -- any Justice 70 years of age or older who does not retire can have -- essentially, a new seat will join him on the Court.
LAMB: John Knox was his secretary, his clerk during this very...
LAMB: ... strident year.
HUTCHINSON: That's exactly right.
LAMB: Here's a photograph of him when he was 7. Where was he when he was 7 years old?
HUTCHINSON: Oak Park, Illinois. He grew up in the near western suburbs of Chicago. His father wrote and published how-to books for traveling salesmen.
LAMB: Where did he go to school?
HUTCHINSON: John Knox himself? He went to the College of the University of Chicago. He went to the Northwestern University Law School in Chicago, where he took his initial law degree, and then he did two years of a graduate degree at Harvard Law School.
LAMB: And where did you get these photographs for the book?
HUTCHINSON: I was able to trace down his last caregivers, neighbors when he was decrepit and 90, who had stored material for him. And this is the classic archival historian's adventure, crawling around in the basement of a house and having somebody say, "Here's a box of material. You might want to take a look at this."
LAMB: Where are these groups of photos here with the hat on?
HUTCHINSON: With the hat on is when Knox was serving as a guide during the World's Fair of 1933, which also became the World's Fair of 1934, it was so successful. And he's a young guide, and he's basically just out of law school. And then the photograph next to the ones in the hat are Knox's graduation photo from the Northwestern Law School.
LAMB: What was he like, best you can tell?
HUTCHINSON: As best I can tell -- he started writing celebrities when he was a teenager. I think he was -- I read 2,000 pages of his diary.
HUTCHINSON: Typewritten. Typewritten. Starts out from hand-written notes, and then is reduced to typing.
LAMB: Is this -- this...
HUTCHINSON: That's his diary for 1938, and that's stage one of his recollections. On a day-by-day basis, he would make notes of what happened, of conversations, and the like. And then in the evening or on the weekends, he would elaborate them in typewritten form.
LAMB: Now, is this what the diary looked like for '36?
HUTCHINSON: The diary for '36 has been lost. All we have is fragments of typewriting for that period.
LAMB: Did he keep a daily diary?
HUTCHINSON: He kept a daily diary I think until 1939, as best as I can tell.
LAMB: You have these photographs with Oliver Wendell Holmes. Who's in them?
HUTCHINSON: The photograph on the left is Holmes and Knox. It's the summer of 1930. As I was saying, even as a teenager, before he went to college, he'd write away to celebrities, particularly those who had served in the Civil War. He was fascinated by romance and valor of fighting. And Holmes, of course, was a Civil War veteran, had been wounded three times during the Civil War. And Knox was thinking of going to law school, so Oliver Wendell Holmes was a two-fer. So he wrote Justice Holmes and volunteered to drive to Beverly Farms, Massachusetts, from Chicago to visit him. And Holmes apparently couldn't think of a good reason to say no, so he let him come and had lunch and talked about the Civil War, though not very extensively, to Knox's regret.
The other photograph there on the right is of Holmes and his law clerk for that year, Alger Hiss.
LAMB: Were you surprised to find this?
HUTCHINSON: I was astonished to find it.
HUTCHINSON: Usually, when archival historians root around in basements looking for long-lost treasures, they don't find anything. It's either been carefully taken care of or it's lost forever.
LAMB: Was there a relationship ever between John Knox and Alger Hiss?
HUTCHINSON: There was a social relationship during the year that Knox clerked at the Court. It wasn't very extensive. I think Knox was very lonely by his admitted account in the memoir the year that he served in Washington. He chafed under working for McReynolds, who he found cold and distant and very arbitrary. And he kind of refired his acquaintanceship with Alger and Priscilla Hiss. But as far as I can tell from his account, they didn't see each other more than two or three times.
LAMB: One odd thing that I thought was interesting was that he got to know G. Mennen Williams, the former governor of Michigan.
HUTCHINSON: Exactly right.
LAMB: What was he doing then?
HUTCHINSON: Well, there are lots of bright young folks who came to Washington during the New Deal, and Williams was in the circle that Knox kind of stumbled into unwittingly, and then got very nervous about because they were all New Dealers. And they centered around Quigg Newton, who later became president of the University of Colorado, mayor of Denver, and at that time was working for William O. Douglas at the Securities and Exchange Commission.
LAMB: Why was he nervous? Why couldn't he be with the New Dealers?
HUTCHINSON: Because he was working for the most arch-conservative on the Supreme Court, and the Supreme Court at -- so you know, socially, you know, you're out. You're not one of the boys. And at the time that he's attending these so-called "club meetings," as they called them, there were cases pending before the Supreme Court from the agencies that some of these young men were working for.
LAMB: Where's this photo from?
HUTCHINSON: That photo is from the reunion of the Grand Army of the Republic that took place in the fall of 1936, and to Knox, this was Disneyland.
LAMB: How tall is he, by the way? He looks like he's taller, compared to the guy he's standing next to.
HUTCHINSON: Well, yeah, but the guy standing next to him is 94 years old and had fought in the war and was somebody that Knox had corresponded with. As far as I can tell, Knox was five-nine or five-ten, something like that.
LAMB: And you have some calling cards. There's one on the cover and there's one here, and you've actually brought a couple along with you.
HUTCHINSON: I have indeed. This was a great surprise to Knox. Even though he had had a fairly active social life, certainly, in Cambridge, when he came to Washington, he was immediately told by Justice McReynolds's messenger, Harry Parker, that he had to get calling cards -- engraved. Those are the printed cards there. One is his professional card that identifies him as law clerk to Justice McReynolds, and then the other is his own personal calling card that just gives the address of his residence.
And Knox discovered very quickly that one of his chief functions -- he says at one point in the memoir that it was second only in importance to opinion work at the Court, was dealing with social invitations that McReynolds received during the year and dealing with the question of calling cards because apparently during this period, in Washington there was a very strict protocol about how you dealt with calling cards.
And that is if you dropped off a personal calling card at someone's place, and you were, say, Justice McReynolds, you turned up the right-hand corner to indicate that you had done it and not your chauffeur. If you just had your chauffeur or your law clerk or somebody do it, you just left the card flat. And correspondingly, when cards came into the McReynolds residents that had an upturned corner, they got high-priority attention because the protocol again was that you had 24 hours after receiving a card to either acknowledge it or not acknowledge it. If you acknowledged it, then you were in that social circle.
LAMB: Now, am I right that he was born in 1900 and died in 1997?
HUTCHINSON: In 1907.
LAMB: Oh, I'm sorry, 1907.
HUTCHINSON: That's right.
LAMB: OK. That would make him 90. That's right. So in 1936, he would have been...
HUTCHINSON: He was 29, turning 30 at the -- just after the term ended.
LAMB: How did he get his job as the clerk or the secretary to Justice James McReynolds?
HUTCHINSON: The short way of putting it, Brian, is he talked his way into it. He developed a pen pal relationship with Justice Willis Van Devanter. And Van Devanter was someone who had tangential associations with the Civil War, just a relative who'd fought in it. But Van Devanter's great attraction to Knox, I think, is that he responded extensively to letters that Knox wrote to him out of the blue.
HUTCHINSON: I have no idea. At one point, I say in the introduction that he was either beguiled or bored, you know, by this sycophantish, constant letter writing -- "Can you give me professional advice? Is it appropriate to refuse alcohol at professional parties? Should a young lawyer get married immediately upon beginning his career, or should he delay it?" questions no one would ask today out of the blue, and certainly not to a Supreme Court Justice.
LAMB: Did he just write out of the blue to him?
HUTCHINSON: Out of the blue. Absolutely out of the blue.
LAMB: And so then how did he get the job?
HUTCHINSON: Well, he -- gradually, as the correspondence builds up over a period of three or four years, he asks Justice Van Devanter if Van Devanter will serve as a reference for him. Never met the man. After he had met him, he felt more comfortable in asking for a reference, and finally Van Devanter says, "Oh, I really can't do that, but if you're interested in clerking at the Court, perhaps something could happen." And then nothing happens.
And then six months later, Van Devanter writes him fairly formally -- this is right near the end of Knox's second year at the Harvard Law School -- saying, "There might be an opening. Would you be interested? Are you married? What are," you know, "your formal credentials?" And on the day that Knox takes his LLM from the Harvard Law School, he gets a letter from Justice McReynolds -- not Van Devanter, McReynolds -- saying, "I understand you're interested in a clerkship. I have some questions for you, and could you meet me in Washington on a certain date?"
HUTCHINSON: So he turns a pen pal relationship with McReynolds into an -- with Van Devanter into an interview with McReynolds. And McReynolds hires him.
LAMB: You mentioned this earlier, but how many people worked for justices back then?
HUTCHINSON: Usually, only one, although a couple of the Justices had a second clerk. Cardozo, for example, used a second person who really was a social secretary, but he had a law degree. And Chief Justice Hughes had two. But the rest of them worked with one.
LAMB: So you got that big Supreme Court building, and very few of the Justices, you say, worked out of their offices. Did Justice McReynolds ever go to his office?
HUTCHINSON: Maybe once or twice during the course of the entire term.
LAMB: What's this?
HUTCHINSON: That's where Justice McReynolds lived. It's 2400 North 16th Street. It's now called The Envoy, still standing, still an apartment house. At the time that McReynolds lived there, cabinet secretaries, members of Congress lived there. It's right across from Meridian Hill Park.
LAMB: And if you stand on the hill -- I actually went over to look at the place -- you can see the White House.
LAMB: Right? At 1600 Pennsylvania Avenue...
LAMB: ... and 16th Street.
HUTCHINSON: Feeling of great confidence, I think, to anybody who lived there. It got run down, apparently, during World War II and after World War II and then was refurbished about 20 years ago.
LAMB: And then you have a picture of not the actual apartment but one that looks like it. How'd you get that?
HUTCHINSON: Those are available in the Library of Congress. You can actually view them on line.
LAMB: How many rooms did Justice McReynolds have?
HUTCHINSON: Thirteen. It was a huge apartment complex. It's now been chopped up in the refurbishment, I understand, you know, into, you know, much smaller ones. But he had 13 entire rooms.
LAMB: Was he married?
HUTCHINSON: No. Never married.
LAMB: Had he ever married?
HUTCHINSON: Never married.
LAMB: Did he have many friends?
HUTCHINSON: Well, that's hard to say.
LAMB: I'm talking about McReynolds now.
HUTCHINSON: No, no. That's hard to say about McReynolds. One of the interesting features to me of the memoir is Knox's frustration at not being able to get close to McReynolds. He wants a mentoring relationship. He gets a little bit of that when he calls on Justice Cardozo. He doesn't get it from Van Devanter, who as soon as Knox comes to work for McReynolds, says, "I can't talk to you anymore because it would be inappropriate for me to give advice to someone who's working for another member of the Court."
The most that one can tell, particularly from the memoir, is that Justice McReynolds viewed himself as quite a ladies' man and had a number of wealthy widows that he socialized with, played golf with at the Chevy Chase Club and spent a fair amount of time with.
LAMB: So John Knox gets to meet Justice McReynolds when and how? And what was that first meeting like?
HUTCHINSON: The first meeting is in June of 1936, and McReynolds interviews him, decides that he's appropriate for the job. He's a graduate of Harvard. Van Devanter has said well of him. He's single, and he doesn't smoke. And those are the critical criteria, as far as McReynolds is concerned. And I think Knox is disappointed with the interview. He gets none of the raconteurship that he enjoyed with Van Devanter, none of the warmth and outreach that he had seen from Justice Cardozo, who, of course, he had also called on in the previous few years.
LAMB: What did they pay in those days? What did Justice McReynolds pay him?
HUTCHINSON: Well, there was a fair amount of discretion on the part of the Justices because, as we point out in the foreword, a lot of clerks stayed on for multiple years. The chief clerk to Chief Justice Hughes was the one who had clerked for Chief Justice Taft. So he'd been around for eight or nine years. Knox was paid $2,400 by McReynolds. And Harry Parker, the messenger, told Knox that he just wasn't going to be able to afford to live in Washington at $2,400 -- on $2,400.
LAMB: Now, you mention Harry Parker. Who was he?
HUTCHINSON: Harry Parker was technically the messenger to Justice McReynolds, paid by the Court. He also acted as chauffeur. He cooked the Justice's lunch. He did all his marketing. He did a fair amount of the evening cooking. And as one of the justice's lady friend's said, he did everything but breathe for the justice.
LAMB: And Mary?
HUTCHINSON: Mary Diggs...
LAMB: No picture.
HUTCHINSON: No picture. We scoured high and low and couldn't find one. She was maid and part-time cook. And we say in the introduction that one of the, I think, many values of this memoir is it recaptures not only a social Washington in the '30s but African-American Washington. Harry Parker's mother served as a cook in the McKinley administration. He himself was a well-known caterer. There are families who worked in the African-American community in Washington for years for the government, giving fabulous service, but who were all but invisible because of the staff positions they had.
LAMB: This is off the subject, but why did you stick this photograph in here?
HUTCHINSON: Just to show the unbroken links between past and present.
LAMB: Who's in this picture?
HUTCHINSON: On the left is George Niebank, who was a law clerk to Justice Jackson in 1952. Harry Parker's in the center. And George Niebank's co-clerk is on the right, William Rehnquist.
LAMB: Who clerked for?
HUTCHINSON: Justice Jackson, 1952-53.
LAMB: And you say Harry Parker eventually went to work for Justice Jackson.
HUTCHINSON: That's right. As soon as McReynolds left the court, Harry Parker went to work for Justice Jackson.
LAMB: Who is Pussywillow?
HUTCHINSON: Pussywillow was the name that Harry and Mary had for Justice McReynolds?
HUTCHINSON: Because they wanted to be able to talk about the justice and his lady friends and their social schedules and not have the justice suddenly overhear and be concerned about what was being said so they had nicknames for the justice. The justice was Pussywillow. John Knox was Shoefenicks.
LAMB: Where did these names come from?
HUTCHINSON: I have no idea.
HUTCHINSON: Shoefenicks. I have absolutely no idea.
LAMB: Then there was Madam Queen?
HUTCHINSON: Madam Queen was apparently the number one girlfriend at that point.
LAMB: Mary Savage?
HUTCHINSON: Yes, Mrs. Savage.
LAMB: Well, paint the picture. I mean he's hired for the job $2,400 a year. Where does John Knox work?
HUTCHINSON: He works in the justice's apartment at 2400 in a small cubicle.
LAMB: Where does he live?
HUTCHINSON: He lives downstairs at 2400 at least for the first several months but it's extremely expensive. He feels totally isolated and he's living in a pretty rare social atmosphere in the building and he eventually moves out to a place at 2700 Connecticut Avenue.
The problems that Knox had going from this busy social life that he had in Cambridge to Washington is that he felt isolated living in the building. He didn't know many people and those that he was most immediately exposed to were within McReynold's circle and he turned out to be fairly charming with these widows that McReynolds socialized with, and Harry Parker warned him. He said: "If the justice finds out about you socializing with his lady friends, he's going to fire you on the spot."
LAMB: That creates kind of a drama.
HUTCHINSON: It does.
LAMB: In the book about he keeps warning him all the time.
LAMB: And of course, as you know, eventually something happens.
HUTCHINSON: That's right the roof falls in. Well and there's even one beautifully dramatic moment in which Knox is really tacking into the wind and is attending one tea or dinner. This happens to be a tea in Mrs. Savage's apartment, which is one floor above McReynolds' apartment, and the justice rolls up on a Sunday afternoon unannounced and gets...
LAMB: The only time it happened?
HUTCHINSON: Only time it happened that's recorded and fortunately Mrs. Savage's maid sees him, knows the (UNINTELLIGIBLE) that's occurred and gets Mrs. Savage to scoot Knox and his friend out of the apartment before the Justice McReynolds sees them.
LAMB: Well, as he paints the scene, he's not sure that Justice McReynolds might have seen him.
HUTCHINSON: He's not sure but as time goes on, he doesn't think that McReynolds did.
LAMB: Now one of the things that also pops up in the memoir is a famous name in jurisprudence. Felix Frankfurter and why is it that that name keeps coming up?
HUTCHINSON: Well, this is the New Deal and Felix Frankfurter was all over the New Deal in many respects. He was a professor of law at Harvard Law School at the time the book covers, and his immediate contact with Knox is in a course of 200 students called Public Utilities and Knox gets his lowest grade in law school from Felix Frankfurter.
But he nonetheless manages to arrange the Supreme Court clerkship or secretary-ship with Justice McReynolds and that's astonishing. It certainly astonished Justice Brandeis when Knox calls on him as he did with almost all of the justices and Brandeis says you came from Harvard Law School and you weren't sent by Professor Frankfurter?
Because Frankfurter was essentially recommending clerks to at least two if not three of the justices. He was sending clerks on an annual basis to Justice Brandeis as he had with Justice Holmes. He recommended Alger Hiss to Justice Holmes for example.
And at this time, he was also sending clerks to Justice Cardozo when Cardozo had so many friends he operated on kind of on a rotor basis: Harvard, Yale, Columbia.
LAMB: Now, what year was Felix Frankfurter appointed to the court?
LAMB: And did he take Justice Brandeis's place?
HUTCHINSON: No. Justice Douglas took Brandeis's place.
LAMB: And what year did he leave, do you remember?
HUTCHINSON: It all happens at once. Black comes on in '37, Reed about the same time, and then Douglas and Frankfurter in '39, and it all happens in a whoosh basically after this term ends.
LAMB: Of all the things that's in this memoir, what did you personally get the biggest kick out of?
HUTCHINSON: Well, it wasn't one particular incident. It was watching this -- I worked at the Supreme Court as a law clerk in the mid 1970s -- different relationships.
HUTCHINSON: Justice Byron White. Everybody worked in the building. There were three clerks for each justice, and I was fascinated to see how self-absorbed Knox was and how much he was leaning on any of the justices but particularly his own justice for a mentoring relationship and that wasn't an expectation I had when I went to work at the Supreme Court. Maybe some people do, I suppose.
LAMB: While you're on that point, though, explain how many times John Knox, 29 years old, clerk to Justice McReynolds, anti-Semite and racist, met with other justices just for tea?
HUTCHINSON: Well, he did. As far as I can tell from the memoir and everything else that I've been able to dig up, Justice Butler and Justice Sutherland were the only justices that he didn't see during the year. And again, Harry Parker tells him, what are you doing going over to see Brandeis? What are you doing going over to see Cardozo? You shouldn't do that.
LAMB: They're both Jewish.
HUTCHINSON: They're both Jewish. McReynolds is going to find out about that. He will fire you on the spot. But, this is how Knox got the job in the first place and it's what he saw the payoff as being.
LAMB: Now, Justice Cardozo, who was he and there's a picture of him? What year did he die?
HUTCHINSON: 1938. He didn't live much longer than the period that the book covers.
LAMB: What was his claim to fame?
HUTCHINSON: Well, he was more famous, frankly, as a state court judge. He was chief judge in the Court of Appeals throughout the 1920s, named to the Supreme Court by Herbert Hoover in 1932 to replace Justice Holmes and served from '32 to '38. But his real claim to fame is for opinions that helped to revolutionize the law of contracts, the law of torts, especially personally injury torts sorts of things.
He was most famous for that, and he wrote a few important opinions as a Supreme Court Justice, but he wasn't around long enough to have much of an impact, and he was in the minority for much of the time he was on the court. He writes two important opinions in this term involving the constitutionality of the Social Security Act.
LAMB: You say that Justice McReynolds told John Knox when he was in the house, no smoking, no lady friends.
LAMB: No green eye shade?
HUTCHINSON: That's right. In the 1930s, and this apparently persisted into the 1940s, because when I was doing my book on Byron White I discovered that he wore a green eye shade when he was at Yale Law School in the early 1940s.
Apparently this was something that was done in those days and Knox continues to do that as a way of keeping the glare off and McReynolds sees it on one of the first days on the job and says "What on earth is that?" and Knox tells him and McReynolds says I never want to see it again. Get rid of it. So there were little crutches and little habits that Knox brought to the job were kind of extinguished one by one by the justice.
LAMB: I got to read this incident on page 89 of this diary. This is John Knox writing. "A few moments later, Harry formally conveyed this request to me, though I had already overheard the justices' conversation. Then with a grimace and pointing silently toward the bathroom with his finger, Harry walked back into the dining room.
I knew what he meant so I tiptoed silently past the open door of McReynold's bathroom before going downstairs to the garage. I could scarcely believe what I saw. Water seemed to be a quarter of an inch deep on the floor and it was all over the walls too. Bath towels were tossed carelessly on the side of the tub instead of being hung up in their proper places. Everything, in fact, seemed to be a complete wreck as if a tornado had just passed through the room." There's a lot of detail before that, but what is he talking about?
HUTCHINSON: Justice McReynolds apparently was a very sloppy bather. I was astonished when I came across that part of the manuscript, I must say. This is Knox arriving very early one morning. I think it was probably the opening day of the court and he hears noises emanating from the bathroom, sloshing, all that sort of thing going on, and then he surveys the wreckage afterward.
LAMB: So Justice McReynolds lived alone but dined alone.
HUTCHINSON: Lived alone and dined alone.
LAMB: And what were the steps of the circumstances of how the whole dining thing worked?
HUTCHINSON: Well, he had a large dining room. I mean these were large rooms and well fixed apartments and he had a formal dining room table that he used for Sunday brunches and the like, and occasionally when he would have dinners in the evening.
But his normal dinners were at a small table in the dining room where he ate alone and where he was served by Harry Parker, who stood a few feet away from him and cleared the dishes as each course was completed.
LAMB: The phone call - "Is the justice in?", came a sweet sounding feminine voice over the wire -- that story.
HUTCHINSON: And Knox totally blows it. Oh, is this Mrs. X and it turns out to be Mrs. Y, and Mrs. X is absolutely furious. And when Knox admits to McReynolds that he's made the mistake, McReynolds can't believe it. He can't believe that anybody could be so stupid and presumptuous at the same time.
LAMB: But the scene on a day-to-day basis, what did the justice require of John Knox in the way of coming to work and what his responsibility was while he was at work?
HUTCHINSON: Arrive by nine o'clock in the morning and no later, be there all day, so if I call and I need you, you can do whatever needs to be done. Leave by six o'clock unless I let you go early or I need you later.
And the first order of business was to pick up the mail from downstairs in the lobby of 2400, to bring it to him, answer all social invitations immediately, according to the justice's direction, and then proceed to whatever court work was imperative.
LAMB: And what kind of rules were there about who answers the telephone?
HUTCHINSON: Well, they had two telephones. They had one that was a private line that went straight to the justice's study, and then there was the public line. It was the public line that this telephone call came in on I believe.
LAMB: What's the story of the March of Time filming?
HUTCHINSON: Well, as the president's court packing plan is getting more publicity because it essentially fractures the New Deal, it splits the coalition. Some support it some don't, so it's getting a lot of attention.
So the March of Time, which was the principal newsreel of the day, wants photo footage of all the justices, and Chief Justice Hughes knows that McReynolds will be the problem because he's the one least sympathetic to journalism. So, the arrangement is if everyone else can be photographed, they will go to McReynolds and McReynolds said he would consider being photographed if everyone else was photographed first.
Well, the problem was that McReynolds never gave a firm commitment to be photographed and Knox let the March of Time into 2400 where they set up with lots of lights and cables and reflectors and that sort of thing, and McReynolds arrived home and wasn't prepared for it and essentially threw a fit and this is recounted in the Pierce and Allen book "The Nine Old Men" as an example of McReynolds testing us and bad manners.
LAMB: Another letter that you republish in here, page 99, what's the circumstance?
HUTCHINSON: You have to refresh my memory. I don't know.
LAMB: It's a letter from one of his lady friends in society. "Go on and read it. We can now always hear his key turning in the door if he should come home but he ain't going to be getting here soon." In other words, John Knox, this letter he's picking up to read it. "But I shouldn't read his letter, Mary, unless he wants me to. Is this one that I'm supposed to answer?" "What difference will it make? He'll never know now will he? And besides, he left it sitting right here on the top of the desk where I'd be dusting anyway." He didn't read it. Do you remember this yet?
LAMB: I'll read the letter.
HUTCHINSON: It's an example of the corners that Harry, Mary, and Knox were constantly cutting in dealing with the justice. I think the justice is basically on to them. He knows if he leaves something on top of the desk it's going to get read by the entire staff. Mary's letters will, which he left out on the desk which she talks about, letters like that. There's a little private game that seems to be going on between McReynolds and the house staff on almost a constant basis.
LAMB: I'll read the letter in a second but how old would you say Mary was at the time?
HUTCHINSON: My best guess is 40 through her 50s.
LAMB: She's a Black maid.
HUTCHINSON: Black woman, right.
LAMB: And Harry is a Black messenger.
HUTCHINSON: Messenger is the technical title.
LAMB: And I say Black because it's clearly important in McReynolds' life and John Knox would be, as we said 29. "Dear Mr. Justice" is what this letter, they open it up.
HUTCHINSON: All right.
LAMB: "How very nice it was to hear from you, especially since it was so lonely to be laid up in the hospital but I'm feeling quite fit again and hope to go home soon. The head doctor on the floor must have sensed my loneliness as he has been in a number of times to talk with me on one pretext or another. But, he is a Jew. It's obvious. Imagine. I really did not know what to make of him at first, but I was, of course, repelled. He even touched me with his hand. What length these Jews will go to in order to make a conquest, and I certainly never expected one of them to turn up here in this hospital."
HUTCHINSON: A number of his lady friends shared his biases.
LAMB: I mean that's the way he felt? I mean is there more evidence that he felt that way?
HUTCHINSON: Well not other than the stories I recounted to you today. He was just, he was blatant about it.
LAMB: So what - how did he - he wouldn't have his picture taken with Louis Brandeis?
LAMB: And everybody knew he was anti-Semitic. Did anybody ever ask him why or has that ever…?
HUTCHINSON: No, people didn't want to confront him. There's a story, which I've never been able to verify, that Chief Justice Hughes said something to him after the incident at Justice Cardozo's swearing in when he was reading a newspaper, to which McReynolds supposedly replied, "I don't work for you. You know there's the sense that a Chief Justice of the United States simply presides (UNINTELLIGIBLE) in name only, that each one of those people, life tenure, only answers to himself.
LAMB: Again, Justice McReynolds was on the court from 1914 to what?
HUTCHINSON: '41, died in '46.
LAMB: Was from Kentucky?
LAMB: Where did he go to law school?
HUTCHINSON: The University of Virginia, which he did their law course in 14 months.
LAMB: Fourteen months?
HUTCHINSON: Just blew through it.
LAMB: And you say as a footnote in there, you suggest that even though he was really seriously opposed to the court packing thing that he had originally suggested this whole idea of packing courts in 1913.
HUTCHINSON: Well, he actually made a suggestion to President Wilson focusing more on the lower courts than on the Supreme Court, that incentives be generated to get judges to retire and that if they wouldn't retire that something like this be implemented.
LAMB: What do you think of John Knox? I mean what amounted to his -- the rest of his life?
HUTCHINSON: Well, he writes in his diary, resumes his diary in the 1960s, and he writes in 1963 that I'm a pathetic failure at this point.
LAMB: Did he ever marry?
HUTCHINSON: Never married.
LAMB: Lived where for the rest of his life?
HUTCHINSON: Well, he moved back to Chicago. He worked as a lawyer. He flunked the bar several times before he was admitted to practice. He worked in New York for a while during World War II. Then he moved back to Chicago, actually back to his family's residence in Oak Park after the war to take over his father's business which was beginning to flounder, and he ran that business as well as he could, even rewrote some of his father's little salesmen chat books for a while but the business went belly-up in the early '70s. So, he became an insurance adjuster for Allstate.
LAMB: The duck hunting and what Harry had to do during the duck hunting of Justice McReynolds.
HUTCHINSON: Harry had to be the dog. Twice there's a reference, an account, to McReynolds going out to the eastern shore to hunt ducks in the fall and taking Harry with him, and Harry's job was to retrieve the kill, to wade through icy waters and bring back the ducks. And, there was a very poignant moment at which Harry says, "I'm getting too old to do this. I'm going to get pneumonia. I wish you wouldn't do that."
It's just the most demeaning image and Knox is totally affected by it. He's really offended. It's one thing to talk about the bigotry and anti-Semitism in a public or direct sense, but doing this to a staff member, it obviously curdled Knox' stomach.
LAMB: Another thing that plays out through the entire diary is that during that year Harry kept telling him, you better never - you better be here every time the justice calls.
HUTCHINSON: Absolutely right.
HUTCHINSON: Well, the justice was notorious for having bad labor relations with his secretary. They tended not to last for very long. He was very moody. He could be preemptory. He could be arbitrary, and Harry tries to explain that to Knox and says, you know, he wants you here and if you're not here, he'll fire you on the spot and he says that several times.
Harry is worried all year that Knox is going to get fired, either for socializing with the justice's lady friends of being absent from the apartment where he should be to answer the telephone if there's an official call or if the justice himself calls.
And, as the year wears on, particularly as the bar examination gets closer and closer, Knox is spending more time away from the apartment studying for the bar in the air-conditioned corridors of the new Supreme Court Building, and Harry warns him again. He says "you better be around here."
LAMB: Today, the court meets at ten o'clock in the morning, has oral argument, but in those days when did it meet?
HUTCHINSON: They tended to meet at noon.
LAMB: And how many arguments did they hear a day?
HUTCHINSON: Two or three.
LAMB: Because they had a break there for lunch. That's when Knox could go out knowing that if he was back at what time usually?
HUTCHINSON: Just before they start the session. You know whenever it happened to be, depending on how many arguments they had that day.
LAMB: But you have a scenario in here also about an opinion that he dictated to John Knox, which prevented him from going to a White House reception. What's that story?
HUTCHINSON: Well, there are a couple examples in the memoir of kind of gratuitous cruelty. One is on a fairly low level where he assigns Knox an opinion to write and Knox writes four drafts of it, spent the entire weekend doing it, takes up a Sunday doing it, and Harry tells him, you're wasting your time. The justice ain't going to use it. He's just trying to keep you busy and Knox is trying to prove himself or maybe to reassure the justice that he can do the job. And sure enough, when the justice gets back, he takes the opinion, tosses it in the wastebasket.
The other time, the reference that you brought up, is the justice goes on and on working on an opinion, dictating, so that Knox will be hard pressed to attend a reception at the White House. That's the annual reception for the judiciary, and Knox has gone to lengths to get his tuxedo cleaned and pressed and is very eager to do it. But by the time McReynolds finishes dictating the opinion, it's just too late, and Knox is sure that McReynolds staged it that way.
LAMB: When FDR announced the court packing bill, it was his 342nd press conference, February 5, 1937.
LAMB: John Knox was still there?
LAMB: Justice McReynolds is on the court and then strange things happen. I mean can you paint the - the court reacted very strangely to that.
HUTCHINSON: Well, the court did react strangely to it. I think one of the actual historical facts that the memoir contributes is the sense that several members of the court had a foreboding that the president was going to do something after the election.
Knox recounts in his memoir: I've discovered carbon copies of letters he wrote to the family saying the justice, and this is before February 5th: "The justice is very nervous. He's afraid something is going to happen. He's been talking to a stock brokerage and talking to advisers in New York. He's afraid he's going to be forced off the court."
And then, the court packing plan is announced on the 5th, and the court's response is twofold. The Chief Justice of the United States agrees to provide a letter to Senator Burton Wheeler on the Senate Judiciary Committee that essentially takes the president head on in saying we're up to date in our business. We don't need more people. The court is fully (UNINTELLIGIBLE) of its work.
The other thing the court does is slow down and Justice McReynolds inspires that. They just don't issue any significant opinions for a period of about two and a half months because they have the power to issue the opinions whenever they want to.
LAMB: One thing that's hard to believe is there's only one real, you know, substantive person working for him in the clerkship, that he never, ever talked to him about any of these cases. And you say in here, the memoir says that Justice McReynolds never talked to John Knox about the court packing bill.
HUTCHINSON: He never talked about the court packing bill, never talked about the most controversial New Deal cases, the constitutionality of the National Labor Relations Acts, you know, was the huge case, a set of cases in fact, never discussed it. And, Knox is obviously hurt by that. I think that's one of the reasons he recounts it in the memoir.
But to McReynolds, you know, why should he talk to a staff member about that. He knew what he thought. One of the things that's interesting, Brian, as you kind of compare the court's workload and output, as we were talking about earlier, is they wrote a lot shorter opinions in those days.
You'll notice Knox will recount from time to time the opinion takes up five pages he reports, 14 pages he reports. Well, the school vouchers opinions this term are more than 100 pages by the time you get everybody's opinion factored in.
LAMB: But he says basically, I get the impression John Knox never, ever wrote an opinion.
HUTCHINSON: I think that's accurate. As far as I can tell, it's accurate.
LAMB: Different than today?
HUTCHINSON: Much different from today.
LAMB: Did you used to write opinions?
HUTCHINSON: I worked on opinions, absolutely, wrote drafts and the justice would revise them. Chief Justice Rehnquist had talked about that in his confirmation hearings and in his book. I give my clerks ten days to write an opinion.
LAMB: One of the things that John Knox says really started to lower his opinion of Justice McReynolds was the king's abdication speech on the radio. Now what king?
HUTCHINSON: Well, this is King Edward who was abdicating his throne for the woman I love, Wallis Warfield Simpson, and the abdication speech at the time was the most listened to radio address in history, and Knox was sure that the justice would allow Harry, Mary, and him to listen to it on the radio, and they were all getting ready to do it, and when they finally ask permission, the justice said no, it won't be heard tonight, no.
LAMB: And then John Knox one day finds himself invited to lunch by Harry and Mary and what happens?
HUTCHINSON: Well, this is as the term has worn on, about halfway through the term, and they obviously get along very well; again, this is Knox' account. It's a memoir. I can't verify every single word of it by any means but it rings true. And, Harry and Mary said to him "why don't you join us for lunch?" Mary says, "I'll throw an extra pork chop on the fire."
He says, "oh, that would be wonderful." He was very lonely at this point, and so the meal was cooked and two tables were set up in the kitchen, one for Harry and Mary and one for Knox, and Knox sees the two tables and can't believe it. This is how far segregation operates in Washington and in this household. He's like I can't do that, I'll sit with you and Mary is kind of thrown by that, but eventually the three of them sit down at the table together.
LAMB: There's a trip to West Point?
HUTCHINSON: Early, very early in the term, Knox goes on a driving trip with Justice McReynolds to West Point and on their way back, this is the Gettysburg Battlefield. The interest in that trip to me was that it - there is an actual photograph in the book that Knox took during that trip of the justice lounging in an armchair.
The interest in that trip to me, other than just a glimpse of McReynolds out of his habitat, is that for the first time the justice's tenderness toward children comes through. He sees a woman and her child and said it would make a lovely picture. Would you mind if my secretary took the picture, and Knox knew at that time since he always traveled with him and took a lot of pictures, and when they were developed, they were satisfactory is the word that Knox uses, and the justice sent copies to the woman.
LAMB: A couple of funerals happened. Was it Justice Cardozo that died and McReynolds did not go to the funeral or was it Justice Brandeis, I can't remember?
HUTCHINSON: It was Justice Cardozo.
LAMB: He just didn't go?
HUTCHINSON: Didn't go.
LAMB: But when he died, what happened?
HUTCHINSON: When he died, the only representative of the court was the marshal, Thomas Wageman (ph). No justice attended the funeral.
LAMB: Did he have any friends attend the funeral?
HUTCHINSON: He had friends from Elton, Kentucky who attended the funeral. Six businessmen from Elton were pallbearers but the only representative of the Supreme Court of the United States was the marshal.
LAMB: Do you have any idea what happened to John Knox when he died in 1997?
HUTCHINSON: I know a little bit about the funeral as we recount in the afterward. It was attended by David and Julia Bliss who had been his caregivers and one of the Bliss children, and a couple people in Oak Park, and an African-American minister provided even though there was a confederate flag draped over the coffin.
LAMB: Dennis Hutchinson works where?
HUTCHINSON: At the University of Chicago.
LAMB: What do you do there?
HUTCHINSON: I teach in the college and in the law school. I teach Constitutional Law and Legal History.
LAMB: How long have you been there?
HUTCHINSON: This is my 21st year.
LAMB: How long did it take you to get this book published by the University of Chicago?
HUTCHINSON: Well, once we had what we were satisfied was the final manuscript, they got it out in very short order, less than a year.
LAMB: Do you know what year this picture of John Knox was taken?
HUTCHINSON: I think it's 1952 or 1953. I'm not sure. There's a reason we published it. Well, it was twofold. One is that it's about the time he started writing the memoir, and the other is as a bookend to the child of promise '87 that you showed earlier.
LAMB: You said that you've clerked for Justice Byron White. What year?
HUTCHINSON: '75, '76.
LAMB: Where did you get your law degree?
HUTCHINSON: I have two, but no JD, and it's sad and an interesting story. I did one year at the University of Chicago Law School. Then I went to England for three years and got an English law degree at Oxford, and then came back and did an LLM at the University of Texas at Austin.
LAMB: Where did you get your undergraduate?
HUTCHINSON: Boden College.
LAMB: In Maine?
LAMB: And where are you from originally?
LAMB: Where in Colorado?
LAMB: Are you writing another book?
HUTCHINSON: I'm trying to get to one. I've got too many little projects but I want to return to a project I started a long time ago on Justice Jackson on his unpublished opinion.
LAMB: Robert Jackson. We're out of time. Editor of this, co-editor of this book was David Garrow, and here's what the cover looks like. It's "The Forgotten Memoir of John Knox," 1936. Thank you very much.
HUTCHINSON: Thank you.
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