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William O. Douglas, who was the longest serving Justice on the United States Supreme Court, was an Associate Justice from April 17, 1939 to November 19, 1975, and thereafter was a retired Justice until his death on January 19, 1980. During this period he employed 54 law clerks, one each Term of the Court except for the 1950, 1967 and 1970 Terms, when he employed two clerks, and thereafter, starting in the 1971 Term, he had three clerks until his retirement. Forty-two of his law clerks are still alive, including his first law clerk, David Ginsburg, who at the age of 95 remains mentally and physically active, and only recently "retired" from his law practice.
As might be expected in a career on the Supreme Court bench spanning over 35 years as an active and retired Justice, the Justice's relationships with his clerks could not be expected to be the same in every Term — and some clerks found the experience to be less satisfying than others. This may be due to a variety of factors, some personal to the Justice, including the Justice's health, marital status, advancing age, or the changing composition of the Court, and some perhaps personal to the expectations of individual clerks. Incoming clerks were often warned in advance by the former law clerks who screened applicants for the Justice or by the clerks they were replacing that the Justice's public persona as a laid-back Western outdoorsman did not accord with the no-nonsense attitude that he conveyed while using his clerks to do the Court's work. Prospective clerks were told that they would work hard.
Several attempts have been made over the years to interview the Douglas clerks, in an effort to understand and publish a description of the Justice's complicated relationship with his law clerks. Professor Melvin Urofsky interviewed nineteen of WOD's clerks, including at least three of his deceased clerks (Vern Countryman, Walt Chaffee, and Stanley Sparrowe) as well as several of his clerks who participated in preparation of this article. The results of his interviews are summarized in two articles, one entitled "William O. Douglas and His Clerks," published in Western Legal History (1990) i and the other entitled "Getting the Job Done: William O. Douglas and Collegiality in the Supreme Court," published as part of a collection edited by Stephen Wasby under the title He Shall Not Pass This Way Again in 1990. Professor Urofsky's interviews generally describe the nature of the law clerks' relationships with the Justice while doing the Court's work, but provide few details on the Justice's relationships with his clerks when they were not so engaged. Professor Urofsky has also published a selected collection of the Justice's papers deposited in the Library of Congress, which include letters touching on his relationship with his law clerks. ii
Professor David Danelski has interviewed 18 of the Justice's law clerks and talked with another dozen, both those still living and some now deceased, including Lucille Lomen (1944 Term, the first female law clerk hired at the Supreme Court), and published an article about her in the Journal of the Supreme Court History (1999).iii Professor Danelski's interview of Lomen disclosed the same dichotomy noted below by other Douglas clerks between the "all business" way Justice Douglas dealt with his clerks in chambers, and the "relaxed, warm and jovial" manner he exhibited when she was a guest at his home. The results of Professor Danelski's interviews will at some point be included in a new biography of Justice Douglas on which he has been working for over 10 years, and when completed should be the definitive work on the life of Justice Douglas.
More recently, a book authored by Bruce Allen Murphy, entitled "Wild Bill," appeared in print in 2002, which presents an unflattering portrait of the Justice, including the manner in which he allegedly treated his law clerks. Murphy asserted in his book that he or Walter Lowe interviewed 25 of the Justice's law clerks,iv and concluded (presumably based on their interviews) that, among other things, the Justice called all his law clerks by the same name "the law clerk"; that "because of their crushing workload, Douglas' clerks never had time to eat lunch with the other clerks and exchange views about the Court and its work"; and that the Justice told Justice Blackmun that "law clerks are the lowest form of human life"; and Murphy concluded that Douglas treated his clerks that way. Many of the law clerks interviewed by Murphy or Lowe have contributed to the preparation of this article. Their responses included in Appendix A and the previously published views of some Douglas law clerks,v which Murphy refers to as among his sources of information,vi portray a different and more varied picture of the Justice's relations with his law clerks.
In 2006 Stanford University Press published a book by Todd Peppers, who is on the faculty of Roanoke College, entitled Courtiers of the Marble Palace, in which Professor Peppers undertook a serious scholarly effort to document the history and significance of law clerks at the United States Supreme Court and their relationships with their Justices. In undertaking to understand the relationship between Justice Douglas and his law clerks, Peppers interviewed only three Douglas clerks and exchanged correspondence with a fourth clerk. Based on a variety of published sources, including Murphy's biography of the Justice, and previously published articles by Douglas clerks, Peppers also concluded, as did Murphy, that Justice Douglas generally treated his law clerks rather badly.vii
As a result of the Murphy and Peppers characterizations of the relationship between Justice Douglas and his law clerks, which with repetition run the risk of becoming accepted fact,viii several of Douglas's law clerks concluded that it was time to publish previously memorialized recollections of the clerks themselves of their relationships with Justice Douglas.ix These recollections had their genesis in a reunion of the Douglas law clerks held in August 2003, in San Francisco, California.
On August 6, 2003, 23 of the surviving law clerks of Justice William O. Douglas gathered for a reunion in San Francisco, California. There had been eight prior reunions of the Douglas clerks — in 1949, 1954, 1959, 1964, and 1972 with the Justice, and (following his death) in 1980, 1989, and 1998 (the last held at the U.S. Supreme Court commemorating the 100th anniversary of his birth). The 2003 reunion was prompted by the recent publication of the unflattering biography of the Justice by Bruce Murphy.
The events of August 6, 2003, commenced with a public meeting in the Ceremonial Courtroom in the Federal Courthouse in San Francisco, sponsored by the Federal Bar Association, Northern District of California Chapter, and the U.S. District Court for the Northern District of California Historical Society, where United States District Judge William Alsup and Jerome Falk, two of the Justice's law clerks during the 1971 and 1965 Terms, shared memories of the Justice and sought to correct some of the inaccuracies in the Murphy biography. Judge Alsup's remarks were later amplified and memorialized in The Federal Lawyer.x
Following the meeting at the Courthouse, the clerks and their spouses (or significant others) who accompanied them adjourned to a private dinner where they shared memories of the Justice with Cathy Douglas Stone, the Justice's widow; Mercedes Eichholz, the Justice's former wife with whom former clerk Chuck Rickershauser had kept in contact in Santa Barbara; California, and biographer David Danelski.
During the dinner, a series of questions were posed by the author of this article, which were intended to inject some levity into the proceedings and also to gain a rough sense of how far Bruce Murphy's description of the Justice's relationship with his clerks was off the mark. A show of hands, in response to these questions, combined with the clerks' individual recollections at dinner that evening, gave some sense of the clerks' collective experiences with the Justice. However, no written record was kept of the proceedings, and subsequently it was decided among several of the clerks who attended the dinner that it would be helpful to memorialize the shared recollections of the clerks. Accordingly, a written questionnaire was sent to all clerks, whether or not they had attended the dinner, with a follow-up questionnaire prior to preparation of this article. Written responses were received from 36 of the Justice's 42 surviving clerks. The responses covered a wide cross-section of the clerks, from the Justice's first clerk, David Ginsburg, to his last clerk, Montana Podva. The only significant gap covered the years 1939-1947, where all of the clerks are deceased. The clerk's descriptions of their relationships with the Justice, are included as Appendix A to this article.xi
In addition to the shared recollections of the clerks set forth in Appendix A, the author of this article offers the following observations concerning certain matters not directly dealt with in Appendix A, based on his own experiences and the experiences of other clerks. The author has discussed certain of these matters with his former partners William Alsup and Kim Seneker, and also with Warren Christopher, Bill Cohen, David Ginsburg, and Tom Klitgaard.
1. The Justice's clerks worked very hard, due to a combination of factors
First, the Justice kept only one clerk (except for the 1950 Term and 1967 Term), until he began hiring two clerks in the 1970 Term. In 1947, after the Court's budget apparently permitted the hiring of more than one clerk, and some other Justices had begun to do so, the Justice did consider hiring a second law clerk, and discussed the subject with Stanley Sparrowe, who was then his clerk and who advised him that he would prefer to be in a one-clerk office where he would have a part in everything rather than in only some parts.xii The Justice did experiment with a second clerk in the 1950 Term, but returned to one clerk in the 1951 Term (and hired an additional secretary), a practice he continued for many years thereafter. The addition of a second clerk in the 1967 Term was caused by Kim Seneker's consecutive bouts with an illness and surgery just prior to the start of the October Term that made it advisable to bring an additional clerk on board. The reason for keeping only one clerk appeared to be due to the Justice's belief that he could not keep two clerks fully occupied, and his budgeted staff allowance could be better spent by hiring two secretaries and one law clerk (which the Justice confirmed to Kim Seneker during the 1967 Term). He did begin hiring two clerks, starting in the 1970 Term, when other Justices were already hiring three clerks, and in the 1971 Term began hiring three clerks, as he did not want to be too out of step with the rest of the Court.xiii The Justice apparently felt that clerks for other Justices had too much time on their hands, when he saw them attending oral arguments (which may have contributed to the story about the "Douglas pillar" noted in endnote 11).
Second, in the 1970s when the tradition developed of law clerks for several Justices participating in a "certiorari pool," spreading the responsibility for writing cert memos on the growing number of cert petitions among several offices, the Douglas clerks did not participate in the pool. The Justice felt that one reason for a multi-judge court was to obtain a breadth of individual viewpoints that would be stifled by a practice of having one cert memo prepared for several Justices. On the other hand, the Justice did not ask his clerks to prepare bench memos on cases set down for oral argument, as some Justices required of their clerks, which relieved some burden for the Douglas clerks.
Third, the Justice felt that every petition filed with the Court deserved his scrutiny, and he asked his clerks to review all in forma pauperis petitions and, where there was potential merit, to read the record as well. These petitions were normally only reviewed by the Chief Justice's clerks and usually placed on a "dead list" that were never scheduled for review and discussion by the Court at Conference.
Why did the Justice work his clerks so hard? Cathy Douglas Stone offered the explanation at the August 6th reunion dinner that the Justice was simply trying to toughen up his clerks for the life they would face after clerkship. Whether that was the Justice's sole motivation must be left to conjecture. Perhaps, as confirmed to Kim Seneker, he felt that his office budget could be better spent on two secretaries, and that it would not hurt his law clerk to work harder for the limited time the clerk was at the Court. Whatever the explanation, his clerks did work very hard. But contrary to the impression created in the Murphy book — as the responses in endnote 11 and Appendix A make clear — many clerks had sufficient opportunity to lunch with clerks from other offices and otherwise engage in extracurricular activities including several activities with the Justice.
2. Besides expecting his clerks to work hard, how did Justice Douglas really view his law clerks?
Some clerks observed the phenomenon of starting off poorly and then having the relationship improve as the year wore on and the Justice gained confidence in the clerk's abilities. Bernie Jacob's response reflects this sort of experience, when he noted that one question left out of the questionnaire was whether the Justice ever fired a clerk (or suggested that he or she should quit or be asked if the clerk had gone to law school) during the first week of employment. Bernie said the answer for him was yes, and it meant a bad weekend. However, Bernie added that in the end he thought he had an amiable relationship with the Justice. The suggestions in the Urofsky articlexiv that clerks were regularly put through an initial month of boot camp and that the Justice's rages at his clerks were legendary seem to assume incorrectly that particular incidents with individual clerks reflected an experience shared by all clerks.xv The author of this article does not feel that he was alone in avoiding an initial month of boot camp or not encountering displays of anger by the Justice — the nearest exposure to temper occurred when he mildly suggested to the Justice that he might consider more fully explaining his reasoning in a case involving state taxation of commerce, as an aid to practicing lawyers, and was rebuffed with the retort that the Justice was in the business of writing opinions for the Court, not in writing law review articles.xvi Warren Christopher recalls that after he had mis-cited a case, the Justice caught the error and simply replied "Christopher, I rely on you to an extent you may not realize." However, as the responses in Appendix A indicate, Douglas clerks did not always experience such gentle treatment.
In assessing the Justice's relationships with his clerks, it should be remembered that the Justice did not as a matter of practice, meet or interview his clerks prior to their joining his chambers at the Court. The Justice's first opportunity to appraise a clerk's work usually would be through reading cert memos prepared by the clerks — which were to be short (preferably no more than one page), clearly analyzed and provide a thoughtful recommendation on whether and why to grant or deny cert (or grant or dismiss an appeal).xvii We do not know how many clerks hit the ground running or learned by practice on the job writing cert memos, and how that may have affected their initial relationships with the Justice. Another potential source of friction may have been an individual clerk's inability, with the help of the Justice's secretary, to decipher the Justice's cryptic and sometimes illegible handwritten notes to his clerks. The Justice often communicated with his clerks in that fashion.
Similarly, we do not know how to account for the marked difference that clerks experienced between their working relationships with the Justice across the desk — which could be stiff and "all business" — and the relationships both during and after the clerkship that did not involve the Court's work, but which, as many of the responses in Appendix A indicate, disclosed a more relaxed or even amiable social relationship. In any event, contrary to the quotation attributed to Justice Blackmun in the Murphy book, the clerks' own accounts of their experiences with the Justice do not support the view that the Justice considered his law clerks "the lowest form of human life," or, while he worked them very hard, that he viewed them in that fashion. In fact, the responses in Appendix A disclose that the Justice's relationship with his clerks (while varying from year to year and clerk to clerk) was generally to treat his clerks in a friendly, supportive manner when they were not doing the Court's work.
3. What about the infamous buzzer?
According to David Ginsburg, the Justice did not use a buzzer to summon him when David worked for him at the SEC, nor did he do so when they moved to the U.S. Supreme Court. Ginsburg recalled that the Justice would buzz his secretary, but that "WOD would generally walk into my office with a request [for] an assignment, or occasionally just for talk. On other occasions, his secretary would buzz me to say that the Justice wants to see me. In my day WOD expressed concern about lack of exercise; knowing him, I suspect that he enjoyed that short, quick race across the office. When I needed to talk with him I'd call his secretary to arrange a time." The practice of using a buzzer to summon the secretary was presumably followed by most of the other Justices as well. Gary Torre (1948 Term) recalls that the Justice did use a buzzer during that Term to summon the law clerk. We do not know when or why the Justice began using a buzzer to summon his clerks, and no clerk between Ginsburg and Torre is alive who might shed light on that question. When there were two clerks, during the 1967 Term, Kim Seneker recalls that the Justice occasionally tried to use a one buzz, two buzzes system, but generally did not differentiate between clerks when he rang for them with the buzzer. During the 1971 Term, when the number of law clerks increased to three, Dick Jacobson recalled:
WOD always buzzed once for us, no matter who he wanted, and if the wrong clerk answered the buzz, he might say "send in Reed," but usually he simply said something like ‘tell Alsup . . . .' and then he would have us convey a message which hopefully we repeated correctly. One problem we had is that Ken Reed, who flew helicopters in combat during Vietnam, had such quick reflexes that he would have answered every buzz before either Bill or I had gotten half way out of our chairs — if we let him. So, to maximize our face time with the Justice, we cut a deal, and set up a rotation system. WOD never remarked on the fact that he never got the same clerk twice in a row.
In the 1974 Term, Don Kelley recalled that the Justice would summon clerks by assigning a number of buzzes to each clerk (one, two, or three), and that the clerks might have been best known by the number of buzzes used to summon them, with their names being an after thought, although the Justice generally called them by their last names. It is possible that the Justice was the only member of the Court who used that method of summoning his clerks. In 2003, the author of this article put the question in writing to then Chief Justice William Rehnquist (who clerked for Robert Jackson during the 1951-52 Term during my clerkship and whom I had previously known at Stanford Law School), and he advised me by return letter that Justice Jackson did not use a buzzer to summon his law clerks, and he did not know of any other Justice who did so. Bill Rehnquist added (unprompted) the following anecdote about Justice Douglas that may be of interest:
He and Cathy hosted me and Nan at their place on Goose Prairie in the summer of either 1973 or 1974, and were most gracious and hospitable hosts. I do remember asking Bill one evening if I might take one of the books on his shelves to read after I went to bed; he pointed to a shelf and told me to take any book I wanted from it. Surprise! All of them were by his favorite author.
4. Was Justice Douglas careless in the preparation of his opinions?
In his 2006 book entitled The Supreme Court, Professor Jeffrey Rosen asserts that Justice Douglas often scribbled drafts of opinions while on travel, which his clerks called "plane-trip specials,"xviii and which Rosen considered slapdash efforts. There is no question that the Justice worked quickly in drafting opinions, and one clerk (Tom Klitgaard) remembers his practice of drafting while on travel, but not the phrase "plane-trip specials."xix However, the general recollection of the clerks with whom I have discussed this subject, as well as my own recollection, is that the Justice had a regular practice of carefully going over all opinion drafts with his law clerks to ensure that they were error-free, and that in many cases he spent time considering a case before starting to write. Warren Christopher recalled that his impression of Douglas's preparing opinions was seeing him working furiously in his chambers with copies of the U.S. Reports strewn throughout the chambers. Although Douglas may have made clear to his clerks that he was responsible for his opinions, he nevertheless permitted his law clerks to prepare an occasional first draft of what was usually a concurring or dissenting opinion,xx and as the years went by that practice may have increased, so that by the 1965 Term, Jerry Falk did the first draft of every per curiam, concurring and dissenting opinion issued by the Justice and by the 1971 Term William Alsup could report that he and his two co-clerks each prepared approximately one-third of the Justice's 95 concurring, dissenting and circuit opinions that Term. However, all drafts were carefully reviewed with the Justice before being issued.
One final observation that may stir memories — each of us has our own recollection of the Justice (hopefully undimmed by the passing years), including, in my case, being refreshed by notes I have kept that the Justice sent me about various matters, some related to pending cases on which we were working and some on the broader world outside the Court. Those memos — which were usually simply signed with the initials "WOD" — revealed a man who was intensely interested in the work of the Court and in making certain that the opinions for which he was responsible were properly written. That was a burden we all shared as clerks and which we knew he cared about deeply — that what finally appeared in the U.S. Reports would be accurate and not contain mistakes that would embarrass either him or us. It was a reflection of an attitude that belied the characteristics applied to Justice Douglas as "slap-dash" in his opinion writing or, as characterized in a review of the Murphy book by Judge Richard Posner, as a "bored," "disinterested," and "irresponsible" member of the Court.
SUMMARY OF THE LAW CLERKS' DESCRIPTIONS OF THEIR RELATIONSHIPS WITH WOD
William Alsup (1971 Term) noted that he occasionally had lunch with WOD on Saturdays, and went on the C&O hike reunion and socialized on other occasions, commenting that: The opportunity to clerk for Justice Douglas was a great honor in my life. We were the first year to have three clerks. Douglas was charming to the three of us on Friday afternoons in front of the fire with the scotch cart handy, recounting to us the events of the conference. He entertained us with stories that wound up in his autobiography. He gave us huge responsibility in drafting separate opinions and recommending actions on petitions. Yes, he was tough once or twice, and usually for good reason, but many more times he had us to dinner, lunch or breakfast. He and Cathy were most gracious as hosts. After I left, WOD recommended me for jobs in the government, unsolicited. I think he had genuine affection for his clerks, at least when they gave him their best, even though he rarely said it in so many words. Douglas spent his entire career, save a few early years in teaching and a short law practice, in serving his country in Washington service. He was dedicated to the betterment of the country. It pains me to see in print unflattering caricatures of the man by authors who did not know him.
Charles Ares (1952 Term) commented: "After asking me if I was caught up with my work (to which I lied) he took me on a hike along the Appalachian Trail. I got him to reminisce about FDR and the New Deal. Jean and I were invited to dinner with Mercedes, WOD and some of their friends. After the clerkship, we would see him during the February recess which he frequently spent at the guest ranch where he convalesced after the horse rolled on him. We also attended a 9th Circuit Conference with Cathy and WOD in Pasadena. The clerkship was a tough experience but a lifechanging one. In addition to a lightning quick mind and lawyering at a high level, I probably would never have gone into teaching without being pushed by WOD. He probably was not pleased when I visited at Harvard, though he never said so. Maybe the fact that Vern Countryman was there helped. To cap it all off, I had the privilege of representing the Justice. He came to my office in Tucson during February, pulled out a speeding ticket he got from a Highway Patrolman outside Yuma, Arizona, on the way back from California. All he said was, ‘He can't prove it. He was stopped, heading in the other direction giving a ticket to another driver. He flagged me down and when challenged on my speed, said that he knew I was speeding from the high whine my car was making.' I said I would talk to the JP. Here ensued a lengthy correspondence during which WOD's position on the Court was never mentioned. Finally, the JP agreed if I would admonish my client that henceforth when he was in Arizona, he must obey all the traffic laws. I reported to the Justice that he was duly admonished. His total reply was a $50 check."
Alan Austin (1974 Term) commented: "He invited us to his house for dinner, and we had lunch with him at the University Club a couple of times. Just a few days before his stroke, WOD and Cathy came to a holiday party at Don Kelley's apartment, which was a pretty modest third floor walk up on Capital Hill. It was a great scene, with the big black court car pulling up at this humble address and the Great Man walking up the stairs to hang out with his law clerks. I think he had mellowed a lot by the time we knew him, partly due to age and partly due to Cathy's influence. Of course, for the second half of our clerkship he was ill and often in the hospital. My favorite memory was the time — early in the Term — when he gave me a draft majority opinion and asked me to fill in the citations and footnotes and then send it to the printer. I worked feverishly for several days and completely reorganized the opinion. I was really proud of it because I felt that, without changing the substance, I had done an excellent editing job in addition to adding the authorities. I sent it to the printer, and before it came back a clerk from the prior year, Ira Ellman, stopped by to see how we were doing. I told him about my efforts, and he said, ‘Boy, are you in trouble.' I sweated it out for a few days, and then the Justice buzzed me in one day. He was holding the printed opinion, and he said, ‘Mr. Austin, I can see that you did a great deal of work on this.' ‘Yes sir', I replied. ‘Well', he went on, ‘if and when you are ever appointed to the Supreme Court then you can write the opinions. But in the meantime, I will write the opinions.' He wasn't angry at all. Actually he was very kind about it, but of course I had to start over and do what he had asked me to do in the first place. I still think my version was better!"
Dennis Brown (1970 Term) commented: "We were invited to his home on two occasions during the clerkship, on New Years Eve and for dinner with the ambassador from Yugoslavia. He spoke to our wives during those events, but not to me. During the 72 Term (I believe) there was a clerk's reunion which included a brunch at his house on Sunday. During that event, we spoke casually for about 10 minutes which, I believe, exceeded the total time of all our conversations during my clerkship. It was not a personally rewarding time, but who says great men have to be nice. His impact was enormous and needed."
Carol Bruch (1972 Term): In 1972 Term, WOD returned to 2 clerks (having had 3 clerks the previous year). For roughly the first half of the Term, Carol Bruch and Janet Wright clerked alone, often working 80 hours a week or more. Because the Justice did not trust the cert pool, the two had to spend the vast majority of their time preparing cert memos. The Justice voted in accord with Bruch's recommendations at a much higher rate than previous clerks had said was necessary to remain in his good graces, Bruch reports. Early in the Term, when WOD sent Bruch a note from conference saying, "I will dissent in 72-xxx," she thought it was nice of him to tell her of his plans, but had no idea that this was a signal that she should prepare a draft opinion. So, there was none when the judge later asked for it, to their mutual consternation. Nevertheless, not long thereafter, WOD asked her to prepare a per curium opinion that he used as drafted. Bruch also did some drafting of dissents. As to the workings of the office, she notes:
"Janet [Wright] was a wonderful co-clerk. For example, we had been told that the Judge (who said the rule was that the person who wrote the cert memo was the person who would stay with that case to conclusion) would sometimes begin to discuss a case with a clerk who had not written the memo. We decided to correct the Judge if he ever tried this with us (I think Janet should take credit for the thought). Indeed, Janet, to her credit, when called in (by buzzer) on one of "my" cases, said, "That's Carol's case, Mr. Justice. Would you like me to call her?" As I recall, that response wasn't needed again – we worked on the cases according to the "rule" until Peter Kreindler, who joined us as a third clerk late in the fall, arrived and went his own way." Bruch also noted that "The judge [asked] me to pay attention to the FELA cases, because he suspected the Court was inappropriately deep-sixing them."
Discussing what had been described to her by former clerks as the Judge's pattern of coming down particularly hard on married clerks, she said, "When I arrived as the Court's first single parent, I was his target. Or maybe he just picked the person he thought would be strong enough to take it." The Justice attempted some sort of apology to her for his conduct at one point, stating: "I gather you think I am not civil. There is nothing personal in what I say or do – this is the rough and tumble of the law as it is practiced in courthouses across the nation." Although Nan Burgess advised the clerks to simply work in the upstairs office for a while if they were ever "fired," none of them suffered this fate, and Bruch later learned that the Justice had written a favorable reference when she applied for a teaching position. She also noted that she had a lovely relationship with Douglas' wife, Cathy, whom Bruch considered intelligent, gracious, kind and thoughtful.
Although Justice Douglas invited each of her co-clerks to an individual event during the 1972 Term (a New Year's party for Peter Kreindler and a concert for Janet Wright) and invited them both to a joint dinner at his home while Cathy was out of town, Carol Bruch was not invited to any event outside the Court with the Justice other than a large garden party at the end of Term, which she did not attend, but her co clerks did. Douglas did have a drink once or twice with his clerks in Chambers on a Friday afternoon and responded at one of these occasions, when asked about his increasingly large number of dissents, "Lately I seem to have a lot to say."
Bruch concluded her comments by stating: "I have benefited all my professional life from this clerkship, but I have an abiding sadness that the year was so unnecessarily marred by the Judge's unkindness." (She took many of the pictures of the 2003 Law Clerks' Reunion that appear with this article.)
James Campbell (1964 Term) noted that he was invited to WOD's home for dinner after he returned to the Court from his convalescence, and commented: "I did not see any signs of the Justice's heavy drinking noted in Judge Posner's New Republic review of a biography of the Justice."
Jared Carter (1962 Term) commented: "I had a very good relation with Douglas. We had a drink after work many, many evenings–while my poor wife and kids waited in the beetle outside the court. We had lunch together many Saturdays. We went out to dinner and hiked. He never fired me or even chewed me out. The closest he ever came to that was when he threw about 10 pages I had written into the trash basket, saying, ‘I sign these opinions, I'll write them.' I forget the case, but it was one of those typical Douglas opinions that skipped large blocks of explanation necessary to explain its reasoning in a way that would be helpful to lower courts and lawyers. We talked about other judges' appointments–everyone was made for a ‘political' purpose of the President, not to make the court a better court. In short, I had a great time–worked my ass off, as one clerk, over 4000 certs, etc., 54 opinions, 1 book, 3 speeches."
"We didn't have many earth shaking issues my year–fleshing out race cases, some cases applying the bill of rights to the states, a couple of school motions–so there were not very many reasons to talk about the role of the court and judicial philosophy. But it was clear to me that the court work was low on his list of interests. One day at lunch I recounted to him a conversation I had overheard between Harlan and a couple of other Justices after they returned from summer recess. Harlan said, ‘I've been back only 3 days and it seems like I've been here for years.' Douglas said words to the effect, ‘the first 5 years were great; all the great issues came before the court and I had to decide how I felt about them and how I would vote. The second 5 years were also great, because the issues came around again, and I got to reconsider my views and decide what I really thought. After that it was boring as hell. After 15 years it was just great tedium.' I asked him why he didn't resign and do anything else while he was still young enough to do it. He said, and I will never forget it, even though I forget the retired Justice's name–former solicitor general who had an office upstairs in the court–'No one ever invites Justice P_____ to diplomatic dinners.'"
Warren Christopher (1949 Term) noted that he was invited to WOD's home for dinner after he returned to the Court from his convalescence, and commented: "As you probably recall, my own time as a clerk for Justice Douglas in the 1949 Term was unusual. On October 1, on the eve of his return to the court, he was severely injured in a riding accident and was unable to return to the court until after the winter recess. During the time he was away, I continued to write memoranda on the certs and other petitions, about 25 each week as I recall, and sent them to him wherever he was convalescing.
In addition to the certs, Justice Douglas gave me an intriguing assignment during his absence. He was beginning to work on his book, Almanac of Liberty. He asked me to try to write episodes for several days and then after I had done a few, he asked me, as I recall, to try to write an episode for each day in the month of July. I would send him drafts of four or five days at a time and they would come back to me with very extensive green ink revisions all over the drafts. His revisions were not only fascinating but contained valuable lessons in good writing. When the book finally came out, four years later, the Justice commented in the forward:
"The result is that I have preserved only a fraction of the extensive research which Mercedes H. Davidson headed, and to which Warren M. Christopher, James F. Crafts, Jr., William O. Douglas, Jr., and Rowland F. Kirks made important contributions."
Although my relationship with the Justice was far from avuncular, I did not have any of the bad experiences that other clerks are said to have had. I was very young and green, and made more than my share of mistakes. I recall on one occasion that when I had mis-cited a FTC case in some work I was doing for him on a Sherman Act opinion, he caught the error and looked up at me with those clear blue eyes and said, "Christopher, I rely on you to an extent that you may not realize." That was all.
At the end of my year's clerkship, it took me several days to screw up my courage to go into his office and ask his advice about my future. He looked right through me, then responded, "Get out into the stream of history and swim as fast as you can."
After I left the clerkship, Justice Douglas was exceedingly kind and generous to me. When I visited Washington, he invited me on several occasions to take lunch with him in his Chambers. He also wrote generous letters on my behalf without any prompting from me (see for example, the letter at page 257 of Melvin I. Urofsky, "Douglas Letters," Adler, 1987)." Michael Clutter (1973 Term) commented: "We ate dinner with WOD once in a Georgetown restaurant and once at his home during the clerkship year. I visited his Chambers once the next year with my girlfriend and we had tea with the Justice."
William Cohen (1956 Term) noted that he "had lunch with WOD, most Saturdays across the street from the Court in the Methodist Building and my wife and I were invited to the Justice's 58th birthday party soon after his return to Washington." Bill Cohen also noted that "I was fired once. The secretaries assured me that I should ignore it, and the Justice would forget it. He did. I viewed the first month or so as a rigorous trial period which, thank God, I passed."
James F. Crafts, Jr. (1953 Term) commented: "There was a fair amount of socialization with Mercedes and the Justice during the October Term 1953 but they were both aware that Pat and I had a very young son and that our socializing was somewhat limited. It was a fairly quiet Term except for the segregation cases, but I was kept in the dark about those, as were most of the clerks."
Steven Duke (1959 Term) noted that he socialized frequently with WOD, having dinners at his house, Redskin games, lunch most Saturdays at the Methodist Club, a hike on the C & O Canal. In later years, they had lunch a few times in Washington, once in New Haven, and attended several overnight C & O hikes. He commented: "I guess I had a pretty close relationship with WOD in comparison to that of many other clerks but the only thing that might pass for warmth occurred away from the Court. When he was at Court he treated me like a machine. He did try to get me some juicy jobs, graduate fellowships and the like and was largely responsible for my getting my teaching job at Yale. Still, he never expressed any interest in me or my family and never told me I did a good job on anything. I knew I was doing well when he didn't fire me. When my wife met him on social occasions at his home, he was utterly charming to her. She was very skeptical of the stories I told about his aloofness. Mercedes was very warm and supportive of both of us."
Ira Ellman (1973 Term) commented: "We [three law clerks] all arrived at the beginning of the summer, and began the ritual of sending cert petitions with our accompanying memo's to him every week in Goose Prairie. We would package them up with great care, warned by the secretaries that he would be upset if there was a single untaped edge anywhere on the box. They would come back to us stuffed helter-skelter in a large mail sack. We would extract our memos, which would rarely contain much comment by WOD, except that every week there would be some marked ‘dissent from denial'." We took this to mean that he wanted us to draft an opinion dissenting from the anticipated denial of certiorari, and so we began drafting. As the summer wore on the number of draft dissents began to mount. I don't recall now exactly, but I'm sure it was well more than 100 of them, perhaps closer to 200 that, by the end of the summer, we thought he meant us to draft. It felt like 2000. It was an extraordinarily busy summer and as WOD's anticipated fall return drew close we became nearly frantic in our drafting efforts.
I think it was the huge pile of draft opinions dissenting from denial that got us off to a good start. We will never know whether he hadn't realized how many he had asked us to write, or whether we had misunderstood, that he was just scribbling down a note of what he intended to do, and hadn't really meant us to draft an opinion. I do think he issued more opinions dissenting from denial of cert that fall than he ever had before, but not nearly as many as we had written. During the first week, he would call each of us to his office from time to time to tell us that, with respect to some particular draft dissent, he didn't disagree with anything we had written, but he thought it would probably be adequate for him to just note his dissent. The rest of the year was certainly exhausting–I've felt on vacation ever since–and often tense. But for the most part he seemed to have some confidence in us.
I was fired once. There was a Saturday on which I desperately needed to get some time to do an errand with my wife that couldn't be done on Sunday. WOD often left mid-day on Saturday, and once he left, we all could. So I had told my wife I could probably meet up with her during the afternoon. But the day continued on and he wasn't leaving. I conferred with Dick and Mike and finally decided to take my chances. Of course, not long after I left, he buzzed for me. I was, if I recall, one-buzz, but our joint hope was that it would be fine if Dick or Mike answered the one-buzz call instead. No such luck. For whatever reason, at that moment it was me he wanted, I no longer remember why, and I wasn't there. Oddly, I also no longer remember just how my firing was communicated to me, but it was. I wrote a humble apology and explanation, and assured him it would not happen again. As I recall, my note was never acknowledged, but after a bit my presence once again was, and the worst was over. I probably earned some slack with WOD over Christmas. He planned to work December 24, and it was clear to us that he would, as usual, expect others to work when he did. I was the only Jewish clerk that year, and Christmas had no special importance to me, so I volunteered to cover while Dick and Mike took time. We thought this had all been cleared with WOD ahead of time, but apparently there was some confusion. He seemed surprised when I was there on the 24th to help him with a request. "I thought," he said, "you were all going to take a Merry Christmas." I explained our arrangement and its rationale. Perhaps he was impressed.
We almost never went to oral argument because we knew the legend of his objections to clerks wasting their time that way; if we did, we made use of the Douglas pillar. We ate lunch with the other clerks in the clerks' lunch room all the time, and I have no idea how anyone got the idea that he didn't allow that. Those lunches with my fellow clerks was one of the things I loved about that year.
We did not much socialize with him outside of Chambers. He did invite us to lunch on a very occasional Saturday, and he once had us to dinner at his house, but it seemed a very formal occasion. None of us, to my knowledge, ever had the boldness to invite him. But I do remember one social occasion very fondly. I remained in Washington for the year following my clerkship, working on the Hill. I had taken the California Bar in summer after the clerkship, and was officially admitted in the late fall. I asked WOD if he would swear me into the California Bar and he agreed. That December, my parents came down to Washington from New York, and we gathered, with my wife, in his office. WOD was at his gracious best and my parents were of course thrilled. He cooperated in posing for pictures my wife took of him with my parents and myself. It was a very nice occasion and whatever I might ever have said, my parents were forever persuaded he was a very nice man indeed. Those shots of him, which I still have on my wall at home and in my office, were the last photos of him before his stroke, which he had just a few days later in December while on vacation in, if I recall correctly, the Caribbean. I brought one of them with me when I visited him at the Rusk Institute in New York where he was receiving rehabilitation months later, and he signed it for me then, with some encouragement from Cathy.
Jerry Falk (1965 Term) noted that he had quite a few lunches on Saturdays, dinners Friday nights sometimes, dinner once at his home, and a hike (and camping the night before) on the C&O Canal. After the clerkship, he saw WOD and Cathy quite often — whenever he was in Washington and a few times in San Francisco.
David Ginsburg (1938 Term) noted that he didn't socialize with WOD during the Term. Afterwards he spent most of the summer with him and his family at a summer home on a St. Lawrence River island. Years later, after OPA and the Army, he saw him often, walked with him frequently and occasionally they spoke by telephone. Those hikes were Ginsburg's first since Scouting.
Harvey Grossman (1954 Term) noted that he socialized with WOD both during and after his clerkship. While a law clerk, he was invited to dinner parties at WOD's apartment and had lunch with him at his club. Near the end of his clerkship, the Justice invited him to have some photos taken. We went out to the lawn adjoining the Court building, and he took some photos of me with the Court in the background. I kept at least one as a memento of my clerkship. After his clerkship, he saw him from time to time when he was in the L.A. area. For example he recalls WOD visiting him and his family at their home and WOD joining him and others for a hike in a forest near L.A.
Bernard Jacob (1960 Term) noted that he went on the canal hikes, several other hikes, and to WOD's house for both a couple of small dinners and for at least two parties. Jacob commented: "One question left out was whether WOD ever fired a clerk (or suggested that he or she should quit or ask if the clerk had gone to law school) during the first week of employment." Bernie said the answer for him was yes, and it meant a bad weekend. However, Bernie added that in the end, he thought he had an amiable relationship with WOD. In Urofsky's article in Western Legal History , he indicated that of the 19 clerks he interviewed, not one had personally been fired, but all assured him that Douglas had fired, and then rehired, clerks who displeased him.
Richard Jacobson (1971 Term) noted that after a "hazing period" that lasted a couple of months at most, he took us to lunch at Jimmy's on Saturday quite a few times, and invited us to dinner at his house on a number of occasions. He also invited us to join him and Cathy on the C&O canal hike, and even gave the three of us a single pint of scotch to share as we camped out the night before. After the clerkship, I saw him and Cathy a few times prior to his stroke, but I was practicing law in LA between 73 and 77 (when I returned to DC to work at the SEC), and thus did not see him often. After the stroke, Cathy invited me to the house a number of times, and I was with Cathy and WOD in the hospital when he died. Jacobson commented: "I think my year was one of the best, in Terms of the clerks' relationship with WOD, but I was still terrified, virtually every minute of every day, that I would make a fatal mistake and be fired. I wasn't afraid of WOD's gruff demeanor — I took it with a grain of salt, and actually it amused me. But I was not confident that my work product would be up to his standards, and slaved over everything I did for him. Clearly, none of his clerks ever had a tougher boss, no matter what they did in later life, and that was certainly true of me." Jacobson's account of "The Shower" follows as Appendix B.
Donald E. Kelley (1974 Term) noted that there were several very nice social occasions during the clerkship (and might have been more had WOD not suffered his stroke in mid-Term). He remembers at least one lovely dinner at the house, perhaps when Jerry Falk was in town to argue the Faretta case, and one lovely dinner at a French restaurant with Cathy, WOD, clerks and staff around the time of WOD's birthday. He thought he also took us to lunch at his "club" at least once, probably on a Saturday. They may have had a walk or two along the Potomac or the Canal, but it was certainly not a regular occurrence. He believes WOD and Cathy also put in a brief appearance at a "cookies & punch" Christmas party at his very spartan law clerk's apartment in an old brownstone on Capitol Hill SE (his roommate was very impressed). On these social occasions, he recalls WOD reminiscing at great length about his early days in Washington in the 30s, the early years on the court, favorite trips he had made (including a summer or two with Kurdish tribes in Turkey or Iraq), international relations and sundry other topics. He could be quite charming and relaxed on such occasions, in contrast to the rather formal atmosphere that prevailed in Chambers during work hours.
Since WOD's stroke occurred mid-Term and his retirement not long thereafter, there were unfortunately very few opportunities for socializing after the clerkship. Kelley also commented: "I think each of us came in for a few sharp notes or comments during the Term (I recall one note informing me that Hugo Black would be rolling over in his grave if he could see one piece of legal analysis that WOD regarded as particularly outrageous on my part), but I think it's also possible WOD had mellowed a bit by 1974 since there were occasions when he certainly could have come down on us harder than he did. For example, I recall scrambling to get an overnight package sent out to Goose Prairie while WOD was there during the break between the end of the 1973 Term and the special argument session for the Nixon Tapes case; air courier service was in its infancy, at best, and it was neither easy nor cheap to accomplish this, but I knew WOD was in a hurry to get something and I was sure the consequences would be dire if he didn't get it. I later heard that he quietly asked the secretaries, afterwards, not to let me send him any more overnight packages because it cost far too much when I did, but he never took me to task directly on the subject. We did occasionally see the twinkle that Tom Klitgaard mentioned, even in the office setting. By 1974, the clerks' office in Chambers was basically lined floor to ceiling with bookshelves and volumes of case reports. I recall once having climbed on my desk to reach a volume on the top shelf, whereupon I remained standing on the desk to review whatever case I was seeking (seemed more convenient than climbing down again to read and back up again to replace the volume). My colleagues told me, with great delight, that WOD wandered in the door, found himself staring at a pair of knees or shins, did a very slow pan up to the head (buried in a volume of US Reports), cocked an eyebrow and walked out, having apparently decided that the sight of a clerk standing on top of his desk to read was perhaps unusual but not sufficiently so to warrant a comment or reprimand."
Thomas Klitgaard (1961 Term) noted that during the clerkship, WOD took him to Washington Redskins' football games–WOD could pick Klitgaard up at the Court, go to the game, have a few hot dogs and come back to the Court. He had 50-yard-line seats next to the Army Chief of Staff. WOD invited him to his home during Christmas time with Klitgaard's wife, and they hiked along the Potomac. After the clerkship, he saw WOD on various occasions when WOD came to the Bay Area, and had WOD to his home, and had dinner out with WOD in Oakland and San Francisco, sometimes with Klitgaard's wife and sometimes alone. Klitgaard also saw WOD on a number of occasions in Washington, and he invited Klitgaard and his wife to Goose Prairie shortly after he had married Cathy. For a number of years WOD would call and ask Klitgaard and his son to come back to Washington to see the Washington Redskins/Dallas Cowboys football game, and they then would visit at WOD's home. Klitgaard also commented: "I saw a person who was kind in a quiet way and never took advantage of anyone. I saw someone who was generous to others with his time and particularly with tickets to events and who had a twinkle in his eye. I also saw someone who gave me some great comments, such as ‘beaten paths for beaten men' and that ‘anyone's biggest problem is fear. I like him because he was, in my view, a real man's man and because he knew what it was like to be under someone's heel, economically or otherwise. I saw a great deal of compassion which he showed in many ways. He never used his intellect as a bludgeon, but rather as a scalpel, and was kind to people who were honest and working hard."
Peter Kreindler (1972 Term) commented: "I had an invigorating and challenging year clerking for the Justice, and gained experience that has served me well for the 33 years that I have practiced law since the clerkship. While the Justice was all business in Chambers, I had an excellent relationship with him on a professional level, in large part because I invariably completed my work on time and always remembered that he, not I, was the Justice. The Justice never failed to hear or understand comments or suggestions of his clerks, and I never made the mistake of coming back a second time on an issue. Unlike other Chambers, all of the majority opinions penned (literally) by the Justice were his, with one exception. I drafted the final majority opinion of the year in a complex administrative law case with multiple issues arising from the Drug Efficacy Act. I also drafted a number of dissenting opinions. The majority of my time, though, was spent drafting memos to him on cert petitions. Thank God Cathy, who had just completed law school, much to the dismay of the Justice, helped with the final crush the night before Conference. I marveled at his encyclopedic knowledge of Supreme Court precedent and the alacrity with which he wrote opinions. He never suffered from writer's block, and was able to express himself clearly and succinctly, always maintaining his belief that the Court had a role to play in shaping critical policy relating to constitutional values and individual rights. A ‘strict constructionist' he was not. He truly was an intellectual giant. Unlike in Chambers, he was charming, gracious and gregarious socially, and had a great sense of humor. My wife, Alice, and I spent several evenings at his home or elsewhere with the Justice and Cathy and friends or dignitaries. The most memorable occasion was brunch at the Fortas's home on New Year's day, 1974. I maintained a relationship with him after my clerkship. Jay Wright (who practiced law with me) and I regularly had lunch with him, while on the Court and after he retired, including after his stroke. In short, clerking for the Justice was one of the most valued experiences of my life, and I was proud to serve as one of his pall bearers along with David Ginsburg.
Hans Linde (1950 Term) noted that he never had lunch with or hiked with the Justice, but that after his clerkship, Hans and his wife Helen did see him on maybe three occasions in Oregon.
Lewis Merrifield (1966 Term)
It was a dream year for me, probably attributable to the Justice's new marriage to Cathy Douglas, which was a blessing for both of them. I had heard terrible stories and my courage was screwed up to take it no matter what he could throw at me. The 1966 Term was the Term that Justice Brennan let Mike Tiger go after it "came out" that he had been active in anti-war affairs at Berkeley.
So there was already a gloom over the clerks, or at least me. (Brennan's Chambers were next door). During the summer, as was usual, the cert memos were shipped off to him by Nan and Faye. I was in the second adjoining office with Datcher his driver. (He would rather have a driver than a second law clerk – quite practical I thought and good for me in a peculiar way). When I got the word from Nan that the Justice would be coming in the next day, I got little sleep that night.
The next afternoon in he breezed with Mrs. Cathy Douglas, both all smiles and positive energy. It was that way for the rest of the Term. The only time he jumped me is when I knew I should be jumped. I was citing a case and thought I knew it cold, kind of. I thought a moment about whether it was a "See" or "cf", thought about reading the case and, without reading the case, went for the stronger form. He called me into the office and in a voice I had not heard before, and would not hear again, told me how sloppy that was. I told him I agreed. Of course he had been there when it was decided many years ago so he had a bit of an advantage. But I should have read the case, rather than counting on what was obviously my defective recollection. That was the end of it. And I learned a powerful lesson. Now that is not to say it was a party. It was all business, all business, with complete focus and concentration in Chambers, and work. He was pretty formal during the work hours. Not prone to small talk Professional. Like a large New York law firm, old style. I quickly learned his writing style, which was unique I thought and quite useful. Very conversational, like a person talking intimately to another person. Not just for opinions, but also for articles, speeches, and books. Very fast, very thorough, plowing through a lot of resources as he went. Fast, but the speed only increased the care and precision. I learned that you did not have to dawdle to be precise. I tried to duplicate the methodology and the style.
He did allow me to write quite a few first drafts. More than I had been told he would. When writing them the object was to write the way he did, in substance, and in form. And to get them out quickly, while I had the chance. He was a very fast writer. His influence taught me not to dawdle, and get a credible first draft out fast. He was clearly the Justice, the boss. On one or two occasions, regarding capital punishment, I tried to gently push to go farther, with the full knowledge that my function was not really to aid him in developing his judicial philosophy, but to aid him in executing his firmly held beliefs, and maybe testing them just a mite. I also wrote a couple of speeches, including one that unfortunately is still applicable today, "The Two Faces of the Law."
Once or twice a week we would go out to lunch, to the Methodist cafeteria next door or a place over on E street, I think Jimmy's, that had great subs. In the afternoons after five we would sometimes have a rum and coke, and he would talk about the Court years, the FDR years, some of his favorites like Justice Frankfurter (ho ho), his Wall Street years, including the SEC stint, foreign affairs, like Israel becoming a nation (when I asked him why "there" he asked me where I thought the new/old or old/new nation should be), and a variety of other topics over which he could quickly skim and then go in for the jugular at incredible depth. I was free to lunch with the other clerks but really did not have the time to do so. In a way I regret that now. Nor did I see an argument before the Court until 1976 when I went to DC with my six year old son for the Bicentennial.
The layperson remembers the Justice for his fearless defense of the individual against any untoward governmental intrusion. They usually associate that with his civil liberties positions. But he was also deeply steeped in business. Because of his Yale teaching experience, his chairmanship of the SEC, authorship of a text book on business associations, and general involvement in, and study of, important social areas, he knew a surprising amount about business. I did not fully comprehend it then because of my inexperience. But I did sense it. After a full legal and business career now I do. And, he sure knew a lot more about federal taxation than I did. His career and his influence pointed me in the direction of business, first teaching corporations, then practicing corporate and finance law, and finally CEOing a large publicly held corporation.
I remember once starting to discuss an antitrust case with him. I had been an econ major undergrad, and in law school continued to steep myself in economics and business, continuing to read a lot in those areas. So I thought I was a knowledgeable and "up to date." I started off, with the economic theory of advertising, and WOD started to ask questions and then hold forth as if he were back at law school lecturing. It was clear that, even though he had not been in academia for some time, he had a wellspring of knowledge and was pretty current.
What was it like to discuss Constitutional law with him? Really unique. By the time I clerked for him he had been on the Court for twenty-seven years. He knew the cases cold. With a lot of the cases coming up, he had helped "make" the then applicable law, and was now deciding how, if at all, it would be changed. The case would not be before the Court if all was well as is. That was a unique perspective. It gave me a huge amount of freedom later on I learned not to approach all things as "givens," but to question and probe to see if there was a better answer. Yes, precedent and stability are important, but a lack of change can lead to huge instability as the pressure on the tectonic plates increases, a pressure that is then suddenly unleashed in chaotic and uncontrollable change. Justice Douglas had the wisdom, intellect, experience, and the temperament to always be questioning whether things were right. And the prudence to know when the time for change was not ripe. My interchanges with him over the death penalty were typical. (Our only source of disagreement; although my opinion was not really important. And he listened.)
We, of course, went on the C& O canal hike (I had been told to bring hiking shoes for me and my wife), and one or two warm-ups, and went to the Justice's house for dinner a couple times. We also had he and Mrs. Douglas to our small, walk-down apartment right near the Court, and Linda cooked. It was fun and not nearly as uptight as one might expect. He called me "Merrifield." I called him "Mr. Justice" or "Justice Douglas." And Mrs. Douglas "Mrs. Douglas." My wife went on the large peace march with Mrs. Douglas, if I recall, on Cyrus Eaton's plane, which was quite a thrill for her, and for me who had been vehemently opposed to the war. I noted that he did not go. I respected whatever his reasons were. The Justice's comments on the war were interesting and very fully formed, well balanced, and firmly held, as usual. And he was also aware of the uncertainties that any future might hold.
I learned a tremendous amount from this man. How far the human intellect can go if tested; the breadth and depth of subjects that can be fathomed. I learned about writing so that people can understand – not just lawyers, but real people. This was summed up to me one afternoon when I treated myself to a shoeshine in the Court. The proprietor of the shoeshine stand had been there for many years and had seen many Justices come and go. While we were passing the time, he asked me "Do you know the difference between your judge and the others?' I responded "No." He said "I can understand his opinions."
Our Justice was frequently criticized for not being scholarly enough, for not writing opinions filled with enough cites and the like. But his opinions had a cadence, a beat, and a meter that made some of them almost like poetry that touched the heart and the soul – of people whose lives were affected. They frequently cried for justice. And they were well reasoned and well supported. They were written by a man who had an incredible range of human experiences to draw upon, experiences from his extensive travels, experiences from his wide range of associates and friends, and experience from his inveterate reading over a huge range of subject maters. WOD had a rare combination of deep intellectual ability, searching curiosity, immense energy, fully formed core values and beliefs, and the ability to bravery step out in defense of what he thought the Constitution required, frequently willing to suffer the harsh winds of popular opinion.
It seems to me that that is what you want in an Associate Justice of the United States Supreme Court, as much as a deep understanding of the "law." An exposure to that gift is clearly what I needed at that time in my business and legal career. I will always be thankful to him for it.
Charles Miller (1958 Term) commented: "During the Term I lunched regularly with the Justice (and sometimes Justice Stewart) on Saturdays, usually but not always at the Methodist Building cafeteria. He invited me to his home on holidays, and I came to know his wife Mercedes reasonably well, as she was frequently at the Court. I did not expect more, and certainly did not feel that I was being ignored. After leaving the Court (and no doubt because I remained in Washington) I saw the Justice socially from time to time, and he was invariably cordial (though never entirely easy to converse with)."
In general, I found the Justice somewhat distant most of the time and not easy to talk to. At the same time, I was able to establish a good working relationship with him. He was intensely interested in what was going on in the other Chambers and what the other Justices thought about pending matters, but was loath to engage in the kind of lobbying that Frankfurer did. By spending time with the other clerks and relaying to the Justice what I learned about their doings and thinking, I was able to establish a rapport with him that he seemed to think was worthwhile.
While the Justice did not invite reactions on the substance of his draft opinions, on those occasions when I offered them he listened without undue exasperation. I learned quickly, however, that when he responded to a point by saying "that's the argument on the other side" that it was time to shut up. Later in the Term I was asked to draft one majority opinion (in a case that had dropped through the cracks and that the Justice offered to write to help the Court clean up the docket) and one or two dissents. Needless to say, they were thoroughly revised by the Justice before being released.
I was never fired by the Justice. The most distressing moment came in connection with an assignment to draft a dissent in a case involving a civil search of private home (by a city rat inspector) without a warrant. I was finding the assignment hard going, and had made little progress in several days after receiving the assignment (though I had succeeded in gathering a number of old precedents). The Justice was obviously impatient with my lack of progress, and directed me with some asperity to bring to him the materials I had gathered. In less than two days, working with the kind of intensity that he was capable of generating, he produced one of the more brilliant dissents I have ever read. That is not just my assessment. The initial vote in the case was 8-1, but after the dissent was circulated three other Justices sent around notes saying that they were switching their votes to join the dissent, and a fourth Justice announced he was reconsidering his vote. The latter move sent the author of the majority opinion (Frankfurter) into a frenzy of lobbying that went on for some time and which drove the wavering Justice to distraction. In the end, he decided to concur in the Frankfurter opinion, though a few years later the Court revisited the issue and adopted the Douglas dissent as the majority position. As for my failure to produce anything useful, the Justice never mentioned the matter again.
I was assigned a ridiculous research project--to review and categorize every case decided under the 14th Amendment. My predecessor, Chuck Rickershauser had the duty of giving me the assignment, and he counseled me that I ought not take the request literally. In fact, though I took a brief pass at trying to organize the project I never got very far on it, and the Justice never mentioned it during the entire Term.
William Norris (1955 Term) commented: I did not expect my year clerking for Douglas to be an easy one, and it wasn't. There was little time for anything but work, which was particularly hard on my wife and three young children. That said, it was a very good year, both personally and professionally. My relationship with the Justice was much closer and warmer than I was led to believe it would be. I recall only one barbed exchange. Once while he was on the bench drafting a dissent and I was in my office working (I don't remember ever being in the courtroom during argument), I received a note instructing me to check out a point of law. In my reply note, I cautiously tried to persuade him that he was wrong by citing a treatise on evidence. His reply: "I don't take my law from Wigmore." Game over.
Otherwise, I was never discouraged from telling him what I thought. I soon learned that it was not his style to talk through problems, as I always liked to do. with my own law clerks. I noticed that he liked to edit his draft opinions by attaching what he called "riders." I said to myself, why don't I prepare riders and offer them to him one at a time. He seemed to be receptive to the idea. Either he tossed them into the waste basket without comment, stapled them to the draft opinion without comment, or, on occasion, talk about them. Once when I had what I feared was an excessive number of riders, he noticed that I began to hold back in offering them. He looked me straight in the eye and said, "You are never to hold back. I always want to hear what you have to say." That was very comforting for a still terrified young law clerk.
Stan Sparrow and other former clerks told me not to have any expectations about writing first drafts of opinions. Cert memos, yes, one for every single solitary cert petition. But never an opinion. Stan proved to be wrong, but only once that I can recall. The Justice usually lingered at my desk to give me a brief report on what happened at conference. On one occasion, he asked me to draft a dissent in a case he knew I had struggled with in writing the cert memo. I can still remember that unexpected moment. I felt that I was levitating.
The most unusual assignment he gave me was to talk to Scotty Reston, then the Washington bureau chief of The New York Times. The Justice explained that even though he knew Reston and trusted him, he did not grant interviews to any journalist. He told me to speak freely, but to use discretion and not breach any confidences. During the interview, which took place in Chambers, Reston told me that The Times' coverage of the Court was inadequate because as non-lawyers, the reporters often had difficulty penetrating the procedural and jurisdictional fog that the merits were sometimes shrouded in. Having been a paid stringer for The Times while in college, I had the temerity to suggest that he send one of his lawyers to law school for a semester. He thanked me for the idea and soon thereafter Tony Lewis was a short-Term student at Harvard Law School.
After my clerkship, the Justice would occasionally invite me to join him for lunch in Chambers when I was in Washington on business. He always was warm and gracious and seemed interested in what I was up to in Los Angeles -- especially when I ran for Attorney General of California (unsuccessfully). When the Clerk of the Court called me one day and asked if I would represent the defendant in one of the five companion Miranda cases, I had no doubt who was responsible for the appointment: the one Justice who, as usual, was busy writing something during an otherwise lively argument and the only one who did not ask me a single question.
The last time I saw Bill Douglas was in 1980 when I was in Washington for my Ninth Circuit confirmation hearing before the Senate Judiciary Committee. He was bedridden at home, but Cathy encouraged me to stop by for a visit. I went accompanied by my wife and Harrison Brown, a prominent Cal Tech scientist and friend of mine who was also an old friend of the Justice's. Cathy instructed us to go into the bedroom one at a time. When my wife went in, Harrison turned to me with a grin and said, "I'll bet she'll be in there longer than either of us." She was.
Montana Podva (1977-1980 Terms) noted that on social occasions he would introduce Monty to others as "Monty Podva, my law clerk extraordinaire." Monty escorted him to lunches at the University Club with Ernest Cuneo, Sidney Davis, Tommy "the Cork" Corcoran, or to Trader Vic's or Jenkin's Hill restaurants. They often ate together in his Chambers or went out to lunch with his secretary, then Monty's wife, Rebecca Judge. And at public gatherings he would wave to Monty with his hand and whisper in Monty's ear some witty quip he had floating through his [stream] of consciousness that was not intended for the ears of others. Monty would laugh at his clever jokes, and a big "cat-that-ate-the-canary" boyish grin would spread across his rugged face. Podva also commented: "As I was told would happen by his secretary and former clerks, the Justice did ‘fire' me on several occasions. However, he would always buzz me back into his Chambers within an hour asking for something else that I should have anticipated he would want. After several months having passed his ‘pledge' period, the Justice asked me to stay on another Term. From that point on our relationship changed from my being his subordinate to him being my mentor. We engaged in many personal, political, and philosophical discussions and I was privileged to be his last law clerk and pallbearer."
Scott Powe (1970 Term) noted that they had dinner about three times at WOD's and in addition were there for his New Year's Eve Party (lots of snow); he and Cathy were also at a dinner with them at Fay's. About a month into the clerkship I got a letter suggesting that I was not up to it and I should think about quitting. That hurt, but Nan and Fay told me to just keep working. On top of the certs that summer I had a make-work project that had nothing to do with any pending case. Our Term was probably unique because the first half was spent with Impeachment and the second half with three pacemaker operations.
William A. Reppy, Jr. (1967 Term) concurred in the comments of his co clerk, Carl "Kim" Seneker, and referred me to his book review of The Brethren in 12 North Carolina Central Law Journal 412 (1981), for his own views of his relations with WOD, which included the following:
Not long after I had been on the job, I responded to a buzz from Chambers and was handed Justice Douglas' draft opinion for the Court in a loyalty oath case, Whitehill v. Elkins. I knew that I was expected to check the statement of facts against the record on appeal for accuracy, to citecheck all authorities for accuracy, and to add a case citation to support a proposition of law where Justice Douglas had not indicated the authority on which he relied. In addition to the technical review of Justice Douglas' Whitehill opinion, I prepared a redraft of, as best as I can recall, two paragraphs, with the thought that the wording could be made more specific. I made no substantive changes, however. Also, I prepared a paragraph dealing with a Maryland loyalty oath case on which state officials had relied in part in their briefs but which the Justice's first draft had not discussed. On my own I thought of an alternative ground for resolving one point and I prepared a footnote laying out this theory. To me it was clear that the proposed additions were merely some ideas for Justice Douglas to consider. He could use them if he liked them, discard them if he did not. The package of work was placed in his "in" tray on his desk. A couple of hours later I responded to a buzzer summoning a law clerk and received a furious verbal thrashing from the Justice. I remember parts of it: It was "impertinent" of me to tamper with his opinion in Whitehill. Only someone who had been nominated by the President and confirmed by the Senate as a Justice could write Supreme Court opinions. I said only one thing: "I'll just throw this in the trash then," and I did. The conversation ended with my being told to "get out" and not to come back. Thus, after a week on the job, I thought I was fired. Although the Justice did not really intend a final discharge, I did not know that when I left his Chambers in shock. "I've been fired," I moaned to the secretaries. "Oh, don't worry," said Nan Burgess. "We get fired all the time. Just go home now and come back tomorrow." [The next day,] The Justice gave me another opinion draft (of a different case) to work on and said: "Keep giving me your ideas." My own "firing" resulted not only in what apparently were words of encouragement, but in Justice Douglas's use of some of my ideas about the loyalty oath case. Apparently he had retrieved from the wastebasket my suggestions for changes in his Whitehill opinion, because a few of them appeared in his second draft.
During my clerkship, my then wife and I had the Justice and Cathy over for dinner along with the Senekers, and the dinner was a huge success. Justice Douglas opened up and recounted story after fascinating story relating to his experiences or goings-on about the Court. I was twice invited to a party at the Douglas' home. Most memorable, however, was the invitation to both the clerks and their wives to join the Justice and Cathy for the annual C & O hike. The hike along the Potomac River on the Chesapeake & Ohio Canal was designed to direct attention to this scenic and historic strip of land and was part of the campaign to obtain its preservation as a national park. There was nothing gruff and crusty about Justice Douglas on any of these occasions. Even on the job there were occasions when the Justice was cordial. Frequently, he would invite Seneker and me to join him for a drink in Chambers late Friday afternoon. These gatherings sometimes turned into discussions of the Court's work. More frequently, however, we listened while Justice Douglas reminisced about the work habits of various Justices he had known over the years, or while he compared the Court of the early 1940s to the Court of the late 1960s.
Charles Rickershauser (1957 Term) noted that during the clerkship, he regularly had lunch with WOD on Saturday. Chuck also hiked with him and others from Great Falls back to WOD's house, having been driven by Merci. Charlie Reich was usually along. Chuck also went on the C&O Canal reunion hike, and also went to three or four Redskin games. On several occasions he was invited to cocktail parties after work where WOD was an honored guest. Chuck was usually grilled as to who he was as several were high powered. He doesn't remember any other details. His wife and he had dinner at WOD's house at least once during the Christmas season and perhaps one or two more times. After clerkship, several times he was asked to purchase specified Christmas gifts for WOD's son who was living in Los Angeles at the time. Because he was frequently in Washington on business, he went on a few C&O Canal hikes and reunions. Once he went on a several day trip with WOD, on the Appalachian Trail under the auspices of the Forest Service arranged by them to rebut some of his published criticisms. Later WOD, UCLA Law Deans, and former clerks hiked down the Arroyo Seco from the highway up the mountain to the Jet Propulsion Lab
George Rutherglen (1975 Term) noted that, unfortunately, during the 1975 Term, Justice Douglas was in extremely poor health so that his interactions with us necessarily were limited. At some considerable personal sacrifice, he invited us out to lunch and dinner on several different occasions and we also went to his home on one occasion. Through his travails, which eventually led to his retirement from the Court early in the Term, he acted with the greatest fortitude and perseverance.
Evan Schwab (1963 Term) commented: I clerked in the 1963 Term. Three major events that year shaped the experience: WOD's marriage to Joan Martin in the summer of 1963 just before or after I started working, President Kennedy's assassination in November and the 25th anniversary celebration of WOD's tenure on the Court in April, 1964.
I found WOD preoccupied with personal issues much of the year, which probably made my job easier. There was virtually no work on outside writings. Nan and Faye said he was not working as many hours as had been his custom. There were few late nights , and most Saturdays were only half days. I did, however, work at home most nights and several hours at home most Sundays.
The 25th anniversary celebration was a nice time for WOD. In addition to the law clerk reunion at David Ginsburg's lovely home in April, 1964, David arranged another dinner in May, 1964, attended by The President, The Chief Justice, Martin Agronsky, Abe Fortas, and about 40 other friends from around the country. Vern Countryman, who clerked in 1943, and was then a Harvard Law Professor, wrote a funny mock opinion which was given to WOD at the law clerk reunion: Young v. Magnolia. We had it printed in the basement just like a regular court opinion. Then we asked WOD to read it out loud at the reunion. He did and really enjoyed it. WOD shared the opinion with the court. In fact, during oral arguments the following week, the opinion was making its way from Justice to Justice along the bench.
WOD worked hard on his opinions. They were carefully done. WOD said he drafted the opinions himself because he liked to write, and one clerk could not handle the work load otherwise. I was also spared bench memos, which all the other clerks had to prepare. WOD just used the original cert memo when the case was argued.
I was asked to draft one dissent that year. WOD told me to draft it without saying why. His conference notes were of little help. After reading the briefs, the conference notes and the draft majority opinion I gave WOD a memo arguing that the majority opinion was correct. A few days later WOD buzzed me in, holding up my memo. WOD said, "I asked for a dissent , not this." "I don't want an argument from you." "You are not on the Court yet." WOD said that as a budding lawyer I needed to pay more attention to my instructions. When I pointed out that he had given me no clue about the basis for a dissent, he mumbled a few thoughts and reasons, and sent me on my way. So I did the best I could. He accepted most of what I wrote and sent it to the printer. I still think the dissent was wrong. But Justice Black joined it.
One of my interesting pieces of research was WOD's request to locate an income tax case written years earlier by Justice Whittaker. That produced a "memo to the file" (for historians) pointing out that WOD drafted the majority opinion (still bearing Whittaker's name) because Whittaker was having trouble writing it. Then WOD dissented. He wanted history to know he had written both sides of the case.
I was always called by my last name, even in letters in later years. I regularly lunched in the law clerk's dining room. It was one of the highlights of the year. It was custom to invite each Justice to one lunch with all the clerks during the Term. Most accepted. I was warned by Nan or Faye that WOD rarely attended those lunches, and would probably decline. To my surprise and theirs, he accepted. The lunch was a treat. He was charming and animated. Generally, the other clerks felt that WOD was perhaps the smartest judge on the Court.
My wife and I were invited to WOD's home once or twice, and taken to a concert. WOD and I went to several Saturday lunches at Jimmies (if I recall the name correctly). The lunches were a highlight. I went on the 15- mile C&O Canal hike, after sleeping on the ground. WOD was a different person on the hike: around his friends, outgoing, having fun, acting like a tour leader, making jokes, and talking to the press about the C&O Canal history.
I had a special seat in the courtroom, behind a pillar where WOD could not see me. I tested this once by sitting out in the open. Within minutes a page brought me a note with an obscure research assignment. But due to work loads I rarely attended oral arguments.
WOD was generally stern, business like, cool and aloof around me but always charming with visitors, although at times he appeared ill at ease with strangers. He was always courteous. He could be abrupt. One would never say he was fun to be around. Maybe around a campfire or on Friday afternoon, but nowhere else.
Occasionally I was invited in on a Friday afternoon for a drink or two at his desk. He had a massive drawer in his desk stuffed with several bottles of whiskey. The drawer was actually hard to open because so many bottles were in it. This casual time with him was a treat. I always had difficulty accepting that I was sitting having a drink with William O. Douglas. I was always struck by the size of his hands, and the way he moved them. And the way he brushed the side of his head with one hand.
It was hard to maintain much of a relationship with WOD after the clerkship. I was practicing in Seattle. But we did have a few lunches and dinners when he came through Seattle.
Bottom line: it was a wonderful experience.
Carl J. Seneker III (1967 Term) noted that Julie and I were invited to WOD's home 2 or 3 times to attend dinner parties — not just for us, but usually there were about 10-15 people there, many of whom were quite interesting (e.g., Eric Sevareid; Drew Pearson; etc.). In addition, we accompanied WOD on the annual C&O Canal; hike. He also typically would call Bill Reppy and me into his office in the late afternoons on Fridays to share a drink and talk about the disposition of cases and the likely assignment of opinion responsibilities to the various justices. Bill Reppy and I would then usually go ahead and allocate the WOD opinion work between us, although at times WOD simply assigned a particular opinion or research issue individually to one of us. Occasionally, WOD would take Bill and me out to lunch — I think that probably occurred about 4 or 5 times during our clerkship, but it could have been less often. Finally, Bill Reppy and his wife (at the time, Susan Westerberg Prager), hosted WOD and Cathy, and Julie and me, in a small dinner party at their home on Capitol Hill. I always found WOD to be engaging and friendly in these smaller social gatherings and get togethers, and it was quite a contrast given the somewhat tyrannical and intolerant demands, and sometimes rather thoughtless comments, that he made relatively frequently during working hours. Cathy also once gave Julie a ticket to attend a Joint Session of Congress honoring the President of Mexico, I believe, and she ended up sitting next to Stuart Symington's wife and just down the row from Lady Bird Johnson, so that was quite a thrill for her. Seneker also commented: "A general observation I would make is that the Judge actually could be a very sensitive person and exhibit concern about his clerks when it came to health issues. I had both a relatively difficult recovery from my Achilles tendon surgery to deal with during the first couple of months of the Court's Term as well as, at times during the Term, some halfway debilitating tension/migraine headaches. He recognized certain limits that these conditions placed on my ability to work long hours, and he tried, on occasion at least, to rework assignments to accommodate those limitations. He told me that he had suffered from very bad migraine headaches in his younger days, and was well aware of what that condition could do to a person's ability to work at a consistently torrid and pressure-filled pace. The only other halfway different memory I have about WOD was the time that he assigned me to attend a showing of one of the pornographic movies that the Court had under consideration one of the First Amendment obscenity cases. He did not want to attend himself, but wanted to know if I thought that you really do ‘know it when you see it", as Justice Stewart had ‘opined' in 1964. He wanted me to write him a memo after I saw the movie telling him whether I thought there was any standard that could rationally be applied to deTermine whether something is obscene. As it turned out, I can remember starting to write him such a memo until he chuckled, in his rather guarded way but with eyes twinkling, that he didn't want to see any such memo; rather, he just wanted me to know what it was like to be asked to judge whether something does or does not fit into a particular moral view of the world. In any event, the most interesting part of the showing was not the movie itself, but the running commentary, much of it hilarious, that Justice Thurgood Marshall had to offer throughout the film."
In most cases, I found that his opinions, particularly his dissents, were prepared very quickly and focused on rather broad general propositions rather than narrow resolutions of the issues in dispute. In fact, he did tell me on more than one occasion that he preferred to write his opinions in that fashion because he believed that, at least in certain areas of law, Supreme Court decisions should offer broad guidance and not lend themselves too readily to being distinguished out of existence because of an overly narrow treatment of the issue in dispute. Finally, I think that although Justice Douglas wrote his opinions quite rapidly (as well as expansively), that should not be viewed as a negative — he was very talented and industrious, highly intelligent, and knew what he wanted to say and how he wanted to say it.
Marshall Small (1951 Term) noted that during the clerkship social occasions were rare — once when Helen Linde "retired" as WOD's second secretary, and to celebrate his 13th anniversary on the Court, he had a small cocktail party in Chambers for his two secretaries, messenger and Small, and served martinis the way he made them for FDR (5 parts gin, 1 part dry vermouth, and lemon rubbed around the lip of the glass). Small was invited to dinner and an art gallery visit on one occasion (after which the Justice went to his Persian language lessons) and he received tickets to Chamber music concerts at the Library of Congress. WOD also gave him tickets to attend the joint session of Congress to consider legislation sponsored by President Truman following the Steel Seizure case, which Small made available to his two younger brothers, who were visiting, and they were thrilled to sit near Bess Truman. At the end of his clerkship, WOD took him to lunch at his club. After the clerkship, they corresponded when Small remembered his birthday, and WOD exhibited a particular interest in whether Small might pursue a teaching career. Small visited him at the Court when in Washington. The last time Small saw him was after his stroke when (at his secretary's suggestion) Small invited him to lunch at the Madison Hotel. Small also commented: "My general recollection of my experience during the 1951 Term was that when handling the Court's work, in dealing with the Justice it was all business, and there was no time for relaxed conversations. On the few occasions when I did have an opportunity to visit with him when not working on Court business, either during or after work, or during visits after my clerkship year, he was relaxed and talkative. My memory of those occasions was refreshed when I recently re-read letters I had written to my parents during my clerkship, which were saved and returned to me years later. On one occasion, the Justice, his secretary Edith Allen and I discussed when the cherry trees in the Tidal Basin were likely to be in bloom, as my parents were planning a visit to Washington and wanted to come at cherry blossom time. The Justice recalled that the first week in April was the best time, although it could snow even in April. My parents did come, the cherry trees were in bloom (as I recall) and the Justice made time in his busy schedule for a pleasant visit with them in his Chambers. On another occasion, when the Court was in recess and the Justice was going to be out of town, before leaving he told me to take it easy and try to take some time off — he had no compulsion to see that I was always working hard, although I also remember that he did look in on me working at my desk on one Sunday morning when he came in before going on a hike, so that he knew I was keeping busy. (I was not invited to go on the hike.) When relaxed, he could tell amusing stories, including one story he told at the small party he hosted for his secretary, his messenger and me in his Chambers to celebrate the 13th anniversary of his joining the Court. He was aware that I had grown up in Kansas City, and he recalled a speaking engagement he had in Kansas City, where he was booked to stay at the Hotel Muelbach, the best hotel in town at that time. Because he had his dog Frosty with him, the hotel refused to give him a room, and so he and Frosty stayed at a motel. When the local Chamber of Commerce learned of the incident, they sent Frosty a case of dog food. According to the Justice, Frosty liked that brand of dog food so much that he would never eat any other brand of dog food thereafter. Overall, I did not consider that I developed the close personal relationship with the Justice that some of his other law clerks enjoyed. However, I have always assumed that when he gave me an autographed picture of himself at the end of the Term, with the inscription in his bright blue-green ink that never fades with time "For Marshall Small, who helped me greatly in the 1951 Term — with admiration and affection" that he was in his own way thanking me for the assistance that I had rendered as his law clerk."
Alan Sternstein (1975 Term) noted that he socialized with WOD twice outside the work context. In contrast to his demanding style in that context, he was on both occasions very engaging, despite his stroke, which led me to believe that perhaps part of his style at work, was to teach his clerks about the legal work world, Washington, and its ways. I do not remember the sequence of the two occasions, but once he took my two co-clerks and me to lunch at, I believe, the University Club. On the second occasion, his two secretaries (Marty and Sandra), my two co-clerks and I took WOD out for dinner for his birthday. Cathy did not join us; I think she was out of town. I believe it was his 76th. WOD never got as far as Christmas 1975 on the Court. Indeed, I nearly never got as far as Christmas 1975 as a clerk. Shortly after WOD retired, in November 1975, my co-clerks and I visited the Chief Justice (Burger) in his Chambers. He informed us that clerks were line items on the Court's budget and that there was only one line for clerks for retired justices. Two of us, we were informed, would have to go. What had been a dream for this young man from Tucson seemed in danger of quickly ending, but better heads prevailed in the conference. I was asked to become Justice Brennan's fourth clerk. Sternstein also commented: "I have ambivalent feelings about WOD. He was a tough taskmaster, for most of the short time that I worked with him. WOD and Brennan were interesting studies in contrast. I sensed a very private and somewhat insecure side to WOD, and I believe it was something of a need to establish a zone of protection about himself, if you will, that also motivated much of his jurisprudence protecting the individual against the state. This was, in part, if not in predominant measure, I suspect the source of his liberalism. Brennan, on the other hand, was one of the more centered individuals I have known. He was comfortable with himself and, therefore, comfortable with, accepting of, and tolerant of nearly all comers…or so he would make it seem. It was this capacity for fearlessly embracing humanity (black, white, yellow or red; holy and profane; criminal and law abiding) that I believe was a significant source of his liberalism. The state and its citizens had less to fear than they believed they did. It is ironic and, then, again, not, that one justice, something of a recluse, and the other, truly a hale fellow well met, were each pillars of liberalism in the history of the Court."
Gary Torre (1948 Term) commented: "Yes, on two occasions I had dinner at his apartment with other guests. The first occasion I was not yet married but on the second my wife was also invited. When the Judge returned from his Middle Eastern trip in the summer I gave him two auto lifts before he went West. I also attended formal dinner party that Abe Fortas and his wife gave for Douglas's daughter in 1948."
Jay Kelly Wright (1974)
I had a rewarding year as one of the Justice's law clerks during the 1974-1975 Term. I reported in June 1974. My co-clerks, Don Kelley and Alan Austin were already there. Although the new set of law clerks had arrived, the work of the court for the 1973-1974 Term was not quite over. The Nixon Tapes case, United States v. Nixon, had been argued but not yet decided. The Justice was in Goose Prairie the day I first started work. But he had been at the Court the preceding week, and my co-clerks Don and Alan had already met him. A few days after I started work, the Justice returned to Washington for what became the final conferences before the unanimous decision in United States v. Nixon was announced.
After the final conference the day before the decision was announced, the Justice called (buzzed) all three of us into his office. Harry Datcher brought in a fairly beaten-up cardboard box containing clinking bottles, and the Justice poured drinks for all of us and told us what had happened at the conference and what would happen the following day. More about this incident is recounted in the remembrance I wrote that was published in the 1990 Yearbook of the Supreme Court Historical Society.
(By the way, I never found the buzzer system to be inappropriate or offensive. Each law clerk had a separate buzzer signal. It seemed to me a logical and efficient way of getting us to come to his office, which was separated from the law clerks' office by the office for the two secretaries.)
After the announcement of the Nixon decision, the Justice went back to Goose Prairie, where he stayed the rest of the summer. The work of the law clerks was much like what others have described — we sent him the cert petitions and our memos, and he sent us back instructions. In several cases in which he was interested, he predicted (accurately) that the Court would not grant cert and therefore wrote that I should draft a dissent from denial of cert. I drafted these, sent them back, and he made revisions.
After all the Justices returned for the conferences that precede the first Court day in October, the Justice returned from a conference one day and told me he wanted me to draft an opinion on a case where I had written the memo over the summer. WOD told me to draft a per curiam opinion summarily reversing the decision below. I did a draft, which he reviewed and did not find strong. "The Court is divided on this" he told me, "and this draft is not strong enough to be persuasive." He told me of cases I had not cited that I should read, and sent me back for another try. My second draft was much more to his liking, and after reviewing it and making his own revisions, it ultimately became a unanimous per curiam decision. United States v. Michigan National Bank, 419 U. 1 (1974).
This process was characteristic of all the other writing I did during my clerkship. He would tell me generally what he wanted, review my draft, and then edit it, usually also asking me to do more work and produce another draft. There was never any doubt about who was deciding the case (him, not me) and whatever I wrote got carefully reviewed. He was not rubber-stamping my work. Other significant opinions from the Term where he gave me a lot of drafting responsibility included the opinion for the Court in Bowman Transportation Inc. v. Arkansas-Best Freight System Inc., 419 U.S. 281 (1974) and his dissents in Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974) and Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50 (1975).
On the personal side, there were times when the Justice invited us to join him at lunch on Saturdays, and we and our spouses or significant others attended a dinner for him around his birthday at the restaurant Chez Francois in Washington.
One of the most memorable and enjoyable occasions happened fairly early in the Term, when Jerry Falk came to Washington to argue the Faretta v. California case (involving a defendant's right of self-representation). The Justice invited Jerry and his wife to the house on Hutchins Place for dinner, and the law clerks and spouses (or significant others) were also invited. I remember the evening particularly because my wife, Meredith, and I were the first to arrive. The Justice answered the door himself. I gulped. We were not well acquainted at that point, and my wife had never met him. Meredith, however, immediately admired one of the many treasures in the house he had brought back from his travels. The Justice immediately took her by the arm to show her the piece and explain its origin. The entire evening was delightful.
My clerkships was marred only the stroke the Justice suffered over the holiday period at the end of 1974. Except for a relatively brief period of hospitalization, he continued to work on Court business. But his medical treatment and rehabilitation drained some of his energy. He wrote fewer opinions, we saw him less often, and as a result I was less busy. I would not have traded that year for anything. I never considered any part of the clerkship to be "boot camp." The hours were somewhat longer than my clerkship the preceding year with Judge Harold Leventhal on the District of Columbia circuit, but not a great deal longer. Our hours as Supreme Court law clerks were about the same as law clerks for other Justices.
i Melvin I. Urofsky, "William O. Douglas and His Clerks", 3 Western Legal History, pp. 6-20 (Winter/Spring 1990).
ii Urofsky, "The Douglas Letters, Selections from the Private Papers of Justice William O. Douglas" (1987), pp. 45-54.
iii 23 Journal of Supreme Court History 43-49 (1999).
iv Bruce Allen Murphy, "Wild Bill" (2002), pp.677-680. (The following law clerks are named as having been interviewed by Murphy or an associate: Alsup, Ares, Armitage, Austin, Bruch, Carter, Chaffee, Christopher, Cohen, Countryman, Duke, Ginsburg, Kelley, King, Linde, Lomen, Norris, Podva, Powe, Reppy, Rickershauser, Schwab, Small, Soderland, Sparrowe, and Weston.)
v Personal recollections of Justice Douglas by fourteen of his former law clerks (Alsup, Ares, Falk, Jacob, Jacobson, Klitgaard, Miller, Norris, Powe, Reppy, Rutherglen, Small, Sparrowe, and Wright) appear in "Remembrances of William O. Douglas by his Friends and Associates" in a special anniversary booklet prepared in celebration of the Fiftieth Anniversary of his appointment as Associate Justice of the Supreme Court of the United States (1939-1989). Personal recollections of former law clerks Benka, Klitgaard, Reppy, Small, and Wright also appear in the 1990 Journal of Supreme Court History, pp. 104-124. See also Ares, "Mr. Justice Douglas," 11 Harvard Civil Rights-Civil Liberties L. Rev. 229 (1976); Cohen, "Justice Douglas: A Law Clerk's View," 26 U. of Chicago L. Rev. 6 (1958); Ginsburg, "Reflections of Justice Douglas' First Law Clerk," 93 Harvard L. Rev. 1403 (1980); Powe, "Mr. Justice Douglas," 55 Wash. L. Rev. 285 (1980); Reppy, "Justice Douglas and his Brethren: A Personal Recollection," 12 North Carolina Central Law Journal 412 (1981).
vi See Murphy, Op. Cit., supra, n. 4, pp. 691-692.
vii In 2006 New York University Press published a book entitled, "Sorcerers' Apprentices," by Artemus Ward and David Weiden, in which the authors also undertook a scholarly effort to analyze the role of United States Supreme Court law clerks. Unlike the Peppers book, the Ward/Weiden book did not attempt to characterize the manner in which Justice Douglas treated his law clerks. In addition, in 2006 Volume XII of the Oliver Wendell Holmes Devise History of the U.S. Supreme Court was published, covering the period 1941-1953, in which the author, William Wiecek, in providing a brief biographical history of Justice Douglas, notes his reliance on Murphy's Wild Bill and concludes without qualification that Justice Douglas was harsh and inconsiderate to his clerks. See, Wiecek, The Birth of the Modern Constitution: The United States States Supreme Court, 1941-1953 (2006), p.93."
viii A case in point is the inaccuracy of the Justice's alleged preparation of "plane-trip specials". See note 19 infra.
ix These recollections had been memorialized by me in 2004 for use by Professor Danelski in his biography of Justice Douglas.
x The Federal Lawyer, Vol. 50, No. 10, (November/December 2003) pp. 20-28.
xi In addition to the responses in Appendix A, the law clerks also responded to the questions posed at the 2003 reunion dinner. Contrary to Murphy's assertions in Wild Bill, most of the clerks were called by their last names by the Justice, and some by their initials in written memos from him. Only two clerks indicated that they were ever addressed as "law clerk." Bernie Jacob recalled that the Justice once spent half an hour explaining his style of calling friends by their last name. Most of the clerks ate lunch with the clerks from other chambers in the clerks' dining room, some frequently and others occasionally. Eleven clerks indicated that they were able to persuade the Justice to come to lunch in the clerks' dining room with clerks from other chambers. Fifteen clerks recalled hiding behind the "Douglas Pillar," but many did not. Klitgaard and Seneker recalled receiving notes from the Justice from the bench asking why they were attending oral argument, and Klitgaard recalls the Justice asking him in a note from the bench to determine the annual outflow of the Orinoco River in cubic feet, which Klitgaard promptly did through help from the Court's library. On the other hand, Alan Austin recalled that when U.S. v. Nixon was argued, the Justice stopped by the clerks' chambers on the way to the bench, and asked if they were going to hear the argument.
xii See Urofsky interview with Stanley Sparrowe, described in 3 Western Legal History at page 3.
xiii During the 1972 Term the Justice initially decided to return to a two law clerk staff that he had used in the 1970 Term, and hired two female law clerks, at a time when clerks were traditionally male. See Peppers, Courtiers of the Marble Palace, pp. 20 21, 157. However, he later hired a third clerk and continued that practice until his retirement. Although Justice Douglas sometimes expressed the view that the Court's business could be handled with fewer (or no) law clerks, the increased volume of certiorari petitions over the years WOD was on the bench no doubt accounted for the need for additional law clerks in all chambers, rising from 934 petitions in 1940 to 4,747 in 1975, the year WOD retired. See Ward and Weiden, Op. Cit., supra, Figures 1.4 and 3.1 and Tables 3.3 and 3.4 at pages 39, 117, 138, and 142; see also Casper and Posner, "A Study of the Supreme Court's Caseload," 3 The Journal of Legal Studies, pp. 339, 340 (1974).
xiv 3 Western Legal History at p.5.
xv Tom Klitgaard, and Bill Cohen, Chuck Ares and Jerry Falk, who screened applicants for Justice Douglas, all deny the statement in Professor Urofsky's article in 23 Western Legal History at page 5, footnote 17, that they would deliberately behave offensively to see how the applicants could handle themselves, and also to alert them to the type of experience they would have with Douglas.
xvi Dick Jacobson related to me a similar exchange he had with the Justice.
xvii For Justice Douglas' own view of what he expected in a cert. memo, see Urofsky, "The Douglas Letters," Op. Cit. supra, n. 34, p. 53.
xviii In response to my inquiry, Professor Rosen indicated that he relied for his information as to "plane-trip specials" on Murphy's Wild Bill (page 469), which relied on Bob Woodward & Scott Armstrong's The Brethren (page 63). No citations were given in The Brethren supporting this statement, and none of the Douglas clerks with whom I consulted or corresponded in preparing this article indicated knowledge of the term "plane-trip specials".
xix With respect to the Justice's practice in preparing opinions, Klitgaard had the following comments:
In my experiences with him during the 1961 Term, I found that he was meticulous on the facts and the law. He put great care into writing his opinions. If he traveled out of town, he would occasionally take with him the briefs on a case that had been assigned to him or on which he was thinking about writing a concurrence or dissent. He would come back with a well drafted opinion. It was handwritten and sometimes hard to read. My job was to check every fact against the record, with a citation to the record. If the Justice was drawing an inference from a fact or facts in the record, he wanted me to be sure that the record clearly supported the inference. He told me that if a petition for rehearing was filed, I had to justify every statement in the opinion and in a nice way suggested that it would be my job if there were any errors or arguable points on the facts. I got the point and meticulously checked the facts in every opinion before it was circulated to the other Justices and again before it went to the printer for the final printing.
Jerome Falk, Jr., noted, with respect to the care with which opinions were prepared in the Justice's Chambers: I never heard the phrase "plane trip specials," but there were occasions when I learned (I think from WOD) that he had written a draft opinion on an airplane trip. But the impression that this draft then went straight to the U.S. Supreme Court Reports—or at least was circulated to the Conference is nonsense; the draft went to me, and as in the case of every opinion he drafted, it was my job to make sure it was complete, accurate, and as persuasive as possible.
xx Justice Douglas himself acknowledged this practice. See Douglas, The Court Years (1980), p. 173. Occasionally, WOD did ask a law clerk to prepare the first draft of a majority opinion. Ira Ellman (1973 Term) advised me that: "Chief Justice Burger assigned WOD the majority in one 5-4 decision with an unusual alignment, and WOD began sending notes to me about the case, asking oddly obscure questions I did my best to answer despite my puzzlement. He finally called me in to say that he saw I wasn't doing anything on it. He wasn't happy. I meekly offered my apology, suggesting that perhaps I didn't understand what he had meant for me to do. He managed to get out, despite his obvious difficulty in saying the words, that he wanted me to draft the opinion, a request he never made for his opinions for the Court and which I had therefore never imagined he meant. WOD had received the assignment about a week before, and I knew that from his perspective the draft was embarrassingly late. We had this conversation on Friday in the early afternoon. Saturday was always a work day in WOD's chambers, and it was clear to me that I had to have a draft to him before we went home the next day. WOD's problem with the case, Kahn v. Shevin, was clear. He had only recently joined Brennan in the 4-3 plurality for the short-handed Court in Frontiero holding gender classifications should receive strict scrutiny under the Equal Protection Clause, and now he was voting with conservatives to deny the Equal Protection claim of a Florida man who objected to the state law allowing widows, but not widowers, a break on their property taxes. Perhaps he wasn't sure how to square the two, although he told me that, unlike Brennan, he was not so concerned with doctrine. In any event, I now had about 24 hours to draft the opinion for the Court. What I gave him on Saturday was short if not sweet, a gender discrimination claim turned into a tax case, and he took it. This is probably an example of his not being as careful with opinions as he should be, although I'm not sure that more time would have helped much. He remembered his mother's experiences as widow and didn't want to endanger the tax break that Florida gave them. That concern was more important to him than fidelity to Frontiero."
Richard L. Jacobson
There are many stories about WOD's relationships with his law clerks. It is common knowledge that clerking for him could be like 52 weeks of boot camp. It is difficult to convey, unless you went through it, the absolute terror that a Douglas clerk felt at the thought of making a mistake. My year, October Term 1971, supposedly was a "good" one. There were three of us -- me, Bill Alsup and Ken Reed. It was the first year WOD had three clerks. We turned out a lot of work, which seemed to please him. And we were deathly afraid of displeasing WOD. He was a larger than life figure to us, and we were completely in awe of him. We would have done anything to earn his respect -- or at least to show him that we weren't totally incompetent.
Despite his seeming indifference to our efforts, WOD knew exactly what effect he had on us, and loved every moment. He also wasn't above stretching the truth just a trifle if it would help him keep us terrified. My favorite story from the year I spent with WOD underscores both the spell I was under, and the terror that was never far from my thoughts. It does not involve law, though. It is about basketball.
Some say that the "highest court in the land" is not the beautiful marble courtroom on the first floor of the Supreme: Court building in Washington, but rather the basketball court on the fourth floor, directly overhead. While the ceiling is somewhat low, and the caliber of play often not much higher, the enthusiasm for the game among law clerks, at least in my day, was immense. We usually played three on three, and there were almost always enough players on Saturday to play five on five. We even had a couple of tough cookies who could give Justice White a battle under the boards.
After the game, physically exhausted but mentally refreshed, we all would return to Chambers to shower and change. Each justice, of course, had a full bathroom adjacent to his private office, which the clerks had the privilege of using for this purpose.
Well, to be absolutely precise, I should say that most of the clerks had the permission of their Justice to shower after games. WOD was a somewhat different story. We decided early on to assume we had his permission, but not formally to ask for it. Our reasoning, even now, eighteen years later, strikes me as unassailable. What if he had said "no"?
Our assumption was particularly reasonable during the first summer of our clerkship. When we first came on board in July 1971, WOD was in Goose Prairie. We talked to him on the phone from time to time, but had never met him. We sent him packages of cert. petitions; he sent us notes. His office remained empty; his shower unused. What could possibly be the harm in employing these underutilized facilities for the purpose for which they had been designed?
When WOD returned to Washington for the beginning of O.T. 1971, we decided -- since we never had the time nor the guts to play ball while he was in the office -- that there really was no reason to raise the issue. We would not begin a game until he left for home, and we would meticulously clean the bathroom after we used it. Since WOD would never know, why risk a good thing?
Hah! to think that we thought of ourselves as the best and the brightest. Idiots -- that's what we were. Our grand deception crumbled one fateful weekend in November. On Friday, WOD went home early. He was leaving town virtually at the break of dawn Saturday to give a speech at Emory University. As soon as his car pulled out of the garage, we high-tailed it to the basketball court.
Later, after showering and changing, I noticed that my clothes were getting more than a bit grubby. Since WOD would soon be safely on the way to Atlanta, I rinsed all my stuff out and left my shirt, shorts, jockstrap and socks hanging in the bathroom to dry.
A law clerk's day begins early. WOD wanted at least one clerk in the office by 7:30 a.m. In my year, he didn't care which one of us it was, so we rotated the "honor." That Saturday, I did not have to be in early. Thus it was that at 7:00 a.m., I was roused from a sound sleep by the insistent ringing of the phone. Jerry Murphy, a second-year law student at Georgetown who worked part-time in the Marshal's office and who WOD used almost exclusively as his driver (because Jerry could get him from Hutchins Place to the Court in less than ten minutes, even if he had to drive on the sidewalk to do it).
Jerry was calling me from the airport -- and he was calling about my gym clothes. Apparently, WOD had stopped by the Court on the way to the airport and used the bathroom. When he saw my stuff drying on the rack, he asked Jerry to call the F.B.I. to find out who had "broken into" his Chambers and left gym clothes all over the place. Knowing exactly who the culprit must be, Jerry called me instead.
Well, I was scared to death. I had no idea what to do other than to get down to the Court as quickly as possible and remove my stuff from the bathroom. When I arrived I asked Nan and Fay, WOD's long time secretaries, for their advice. They suggested I write a short note, explaining what happened and apologizing for it. So I did. I composed a brief paragraph, admitting the gym clothes were mine, apologizing for leaving them in the bathroom, and promising that "it would never happen again." Exactly what "it" was, however, I left ambiguous. My intent was only to promise never to get caught again. Despite this brush with disaster, I felt that with just a little more discretion, life -- and basketball -- could go on as before.
My apology was apparently accepted, for I was not fired, nor did WOD even mention the incident. No F.B.I. agent knocked on my door. My folded note was simply returned to me without comment. We continued to play ball, and to shower in WOD's bathroom. We were just more careful about his whereabouts when we did so.
Then came February. It was on a Saturday. WOD again left early. There was a hot and heavy five on five game, in which all three of us from WOD's Chambers played. After the game, I showered last. Ken and Bill were both married and wanted to get home as soon as possible, since we were all taking a rare Saturday night off. I agreed to hang around and clean up, as I was single and had no date.
I finished my shower about 6:15 p.m. My co-clerks were long gone. I decided, before getting dressed and cleaning the bathroom, to call the girl I had been dating. With nothing but a towel wrapped around me, I sat at my desk and made my call. Candy was at work, and I was well on my way to convincing her to go out with me that same night despite the appalling lack of prior notice, when the roof dropped in.
Or should I say, when WOD, in a suit and tie, sauntered through the door and went into his office. My god! It was 6:30 p.m. on Saturday. What the hell was he doing here? I quickly hung up, pulled on my pants and shirt, and pretended to work. He was in his office for about half an hour. I couldn't tell what he was doing and was afraid to go in after him to find out.
If only he doesn't go into the bathroom, I prayed silently to myself. As they say in the pulp novels, the seconds crawled by. Finally, about 7 p.m., he came out through the secretary's office (where I was feigning interest in some files), smiled at me, said "good night," and left.
I made myself wait a few minutes to make sure he was really gone. Then I slowly walked into his office. The door to the bathroom was open, as I left it. That was a good sign. But the bathroom light, which I had left on, was now off. That was bad.
Screwing up my courage, I walked to the bathroom door, flipped on the light and looked inside. I expected to see evidence of the three showers that we had recently taken. You know, water on the floor, dirty trowels on the sink, that sort of thing.
I was not prepared, however, for the sight that met my eyes. The bathroom was spotless! All the dirty towels were neatly stowed; there was not a drop of water anywhere. Clearly, WOD had gotten down on his hands and knees, in his suit, and mopped up the whole bloody room. No wonder he had been in there so long. No wonder I felt sick to my stomach.
I knew this was really the end. What could I conceivably say or do to get out of this mess? Whatever "it" was that I had promised in November would never happen again, had just happened. It seems funny now, but I was terrified. I didn't know what WOD would do. Maybe he really would fire me, for breaking my "promise." Maybe he would just ignore me for the rest of the term -- a fate which had been known to befall clerks who displeased him greatly enough.
I truly thought that my year, if not my entire career, was at stake. So, I spent the next day and a half composing yet another apology. This had to be an apology to end all apologies. Each word was carefully crafted. I solicited input from Marshall's and Stewart's clerks as well as WOD's secretaries and my co-clerks. When I finally got done, very late Sunday night, my magnum opus was about three-quarters of a page, double-spaced. It was the very best work I could do.
I got in Monday morning about 7:15 and put the note on WOD's desk. He showed up right on time, at 7:30, and went into his office. There was an oral argument scheduled that morning, so I figured that something would happen before 10, when he had to go on the bench. I was wrong; nothing did. He didn't buzz us, and he didn't send for a secretary. I was slowly going crazy, anticipating the worst.
Finally, the buzzer rang for oral argument, and WOD left without a word. I rushed into his office to see if he had written me a memo and put it in his out-box. There was nothing anywhere. Nothing in any desk drawer; nothing in the waste paper basket; nothing in the secretaries' tray. I couldn't even find my original note.
I returned to the law clerks' office feeling very nervous. I sat at my desk, unable to work, commiserating with Ken and Bill. About half an hour later, a page came in with a note for me from WOD. He would often send us notes from the bench, as a point in an oral argument would lead him to think of a research project, or a case he wanted to look at.
This note, however, had nothing to do with any case pending before the court. It was, in fact, my apology, folded' in two and addressed to me. WOD had taken it with him and had annotated it while listening to oral argument.
Each one of my carefully worded points of explanation had been shredded in an angry hand. I had started off by saying it was customary for the clerks to use their Justice's shower after basketball. He noted in the margin: "without permission?" Score one for WOD.
I had also explained that the excess water was due to the fact that all three of us had played and showered (safety in numbers!), and that I intended to clean up as soon as I finished dressing, an intent which was interrupted by his arrival. He responded: "Maybe I need new, housebroken law clerks."
I also explained that my previous apology was intended to be taken as a promise to be more careful in cleaning up rather than a commitment not to use the shower at all. I concluded by stating that, since difficulties had arisen despite our best efforts, we would not use the shower again. WOD didn't directly respond to this. He just commented at the bottom as follows: "I came down to take a shower as our water heater had broken down at home. What do I find? Dirt and water everywhere. Where the hell do you expect me to go? Rent a hotel room?"
I immediately showed the note to Nan and Fay to get their interpretation. I was personally encouraged by the fact that WOD had responded to most of my points "on the merits," had not accused me of breaking a prior promise, and had not said that he "definitely" needed new law clerks. Could this be a second -- or rather, a third -- chance? Their consensus was that I had weathered the storm, but that if it happened again, I should consider changing professions, assuming I was still alive.
WOD, of course, never once mentioned either incident -- nor did I. Some time later, I asked Cathy, as nonchalantly as I could, whether their water heater really had broken. As those who know WOD should already suspect, she told me it had been working just fine. I never did find out what brought him back to the Court that Saturday night.
Did I ever use WOD's shower again? What do you think?