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The following pages consist of a portion of an interview with Howard
Westwood conducted by his partner, Theodore Garrett, on May 31, 1979. The purpose of
the interview was to prepare materials for use in a history of Covington & Burling which
Howard later wrote in 1984.
This portion of the interview provides an active participant’s recollection of
the Steel Seizure case, one of the most important cases decided by the courts of the D.C.
Circuit. Accordingly, it should be included in Westwood’s contribution to the Oral
History Project.
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‘ The Steel Seizure Cas a
During the Korean War (this was in 1952) there had
been a significant amount of iaflation which created wage
demands by labor unions and there was a particularly dramatic
situation in the steel industry. The steel industry’s contracts
with the labor unions came to an end at the end of 1951.
Negotiations for new contracts had begun quite late in 1951,
maybe not until around the 1st of December, they went on
beyond the termination date, and ultimately there was a wage
stabilization board recommendation as to how the dispute ought
to be resolved.
as a part of the governmental activity in the field designed
to help curb the inflationary trends.
made on the 20th of March of 1952 but the steel companies
rejected it.
Early in April, I think the date was April 3rd, after the
rejection by the steel companies, the steel union announced
that there would be a strike to begin at 12:Ol a.m. on April
This wage stabilization board had been created
Its recommendation was
Apparently, labor was willing to go along on it.
I have forgotten what day of the week April 9 was.
The Taft-Hartley Act, of course, had been adopted
sometime before.
an emergency if there were a threatened strike, and then for a
so – called cooling off period there was to be no strike.
It gave the President the power to declare
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government could enforce the no-strike provision during that
period by bringing suit against the labor unions to enjoin a
strike. During that cooling off period the idea was that the
President would designate a fact-finding commission, etc. It
woule make a report before the end of the cooling off period.
It was the theory that public opinion then would require the
parties to the dispute to abide by the report or if it were a
situation which involved a great national emergency, then
presumably Congress would have an opportunity to step in and
The Taft-Hartley Act had created a great deal of
opposition on the part of the unions. Anything that curbed
their right to strike was, of course, regarded by the unions
as very bad.
Taft-Hartley Act.
the steel dispute that he was not going to resort to the
procedures set up under the Taft-Hartley Act. So here was a
threatened strike, one that was very critical to the economy
and to the nation and theoretically, at least, or at least
allegedly, would have an impact on our national military
posture in connection with the Korean War.
panies, probably thinking that because of the impact on our
military strength of a strike, felt that their bargaining
position would be strengthened if there were a threatened
strike, that that would result in public opinion being marshalled
against the position of the labor unions. Obviously, from the
President Truman was very much opposed to the
It was fairly evident from the beginning of
The steel com-
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very beginning ad then all through the litigation, the thing
that was uppermost in the minds of the steel companies, and no
doubt in the minds of the labor unions, was sheer tactics io
their wage dispute — what would most conduce to strengthening
the position of one side or the other in the eyes of the
general public.
When the strike was called, the steel companies
decided that they would seek somehow or another to protect
themselves by litigation. There had been a feeling all along,
and some indication all along, that the President would actually
seize the steel companies, take them over in the event there
were a strike, and would not follow the Taft-Hartley Act. He
would just resort to some kind of alleged inherent power on
the part of the President as Commander-in-Chief of the Armed
Forces to take over an industxy and then forbid a strike if
our national defense posture were seriously threatened. It
was also reasonably clear that if the President seized the
steel companies, the labor unions would not strike – not
necessarily that they agreed that the President had the power
to take over, but rather because they felt reasonably sure
that, if the President did take over the steel companies, he
or his agents then would make a wage deal with the steel
unions that would be rather to their liking. That then would
improve their bargaining position in the future because whatever
the President had done would be a floor from which they could
further bargain with the steel companies. The threat that
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that sort of thing might occur was, of course, .from the steel
companies’ standpoint, very serious because it meant that
their bargaining position for the future would be correspondingly weakened if the President took over and raised
ready for litigation.
So the steel companies had their lawyers begin getting
We were not in on the matter. We were not the
lawyers for any of the steel companies and we had heard nothing
about this whole controversy except that any member of the
public reading the newspapers would know something about it.
Davis Polk represented U.S. Steel. U.S. Steel, of
course, was the lead steel company.
happy relationships with Davis Polk for many, many years.
This was the result to a considerable extent of Judge Covington.
We would use Davis Polk in New York, and Davis Polk would use
us in Washington.
branches down here by and large.
litigation in the District of Columbia, they had to have local
counsel They came to us without any real advance warning.
Obviously it was their thought that we would be local counsel,
and that they would be doing all the briefing and arguing and
all the work. I am not sure whom they originally approached.
I think maybe the top management in U.S. Steel may have called
Tommy Austern.
on the papers as local counsel. Mr. O’BrianIs reputation was,
of course, glittering. He was unquestionably the dean of the
Our firm had had very
In those days New York firms didn’t have
For Davis Polk to conduct a
What they had in mind was getting Mr. OfBrian
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American Bar, arid to have him on the papers as local counsel
would be very good.
Mr. O’Brian might be available and Austern indicated that he
probably would be.
I think they called Austsrn to see if
The end of it was that a meeting was set up for, I
think, the 8th of April, the day before the strike was actually
to begin. That’s my best recollection, although it is possible
it was a little earlier than that. Mr. OIBrian, of course,
would need some help, and I was asked to help him. Mr. O’Brian
and I met with the Davis Polk lawyers on that first day. I am
pretty sure that I had already decided that it would be necessary to have a lot of help and I had Paul Warnke and Stan
Temko and another one of our then associates, a chap named
Chuck Barber, sit in on the meeting.
We never did in our firm take to the idea of being
local counsel in a matter and although it was reasonably
apparent that the Davis Polk people thought we would just be
putting our names on papers, we made it clear to them that, if
we were going to be on the case, we were really going to be in
we were going to be actively involved in working out the
strategy, the theory of the case, the papers, and so forth. I
must say that the Davis Polk people were very good about it.
There was no effort to put us on the shelf and keep us in a
subordinate position at all.
That didn’t mean that we would supersede Davis Polk but
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What we did at that first meeting was to recognize
that a hell of a lot of work had to be done in a very great
hurry, because with the strike about to occur the President’s
seizure was imminent. So it was quite apparent that litigation
would be essential.
President. As soon as he entered his executive order taking
over the steel plants, the labor unions let it be known that
they wouldn’t strike.
And of course there was a seizure by the
In his order taking over the plants, the President
designated his Secretary of Commerce, Mr. Sawyer, as the
person who would be running the show.
all intents and purposes nominal. The management of the steel
companies was not superseded. In fact, the take over merely
amounted to an order saying that they were taken over by the
United States but provided that all of the people in the steel
companies’ staff, management and labor, would stay on the job
subject to such orders as Mr. Sawyer, on behalf of the President,
might issue.
affecting wages and hours. As a matter of fact, there were
statements by Sawyer that indicated that he had no immediate
intention of affecting wages and hours, and it was the idea
that there would continue to be negotiations between management
and union on the wagehour issues with Sawyer sitting on the
sidelines hoping that somehow everything would work out.
The take over was to
At the beginning, there was no order at all
However, the taking over by the President made it
unrealistic to expect that there would be any voluntary agreement.
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On the one hand; the labor unions wanted to get the benefit of
Sawyer’s intervention aud to force his hand so ”hat he would
have to take some wage and hour action which would be to their
agreement. On the other hand, the steel companies weren’t
about to enter into an agreement with the compulsion of the
President of the United States.
the beginning figured that what they really faced was not only
a take over =- which didn’t do anyone any particular damage =-
but in the very near future a very damaging action by Sawyer,
that is increasing the wages and in effect acceding to various
of the Union demands.
So the labor unions did cot want to enter into an
So the steel companies from
It was obvious that I would have to take the lead in
the work that we did at Covington & Burling.
well along in years and couldn’t be expected to devote the
time and energy to the basic work of research and drafting of
the papers and so on. What I did was to divide the work that
would have to be done among the three guys I mentioned.
Warnke was to proceed with the necessary research and brainwork
and legwork and muscle work on the procedural aspects of the
problem; Temko was assigned the substantive aspects; and Chuck
Barber was given quite a number of missions having to do with
liaison with the Davis Polk lawyers and so forth.
Mr. O’Brian was
We didn’t start our work from a clean slate by any
means because the Davis Polk people had done some very excellent
research work and had some drafts of papers.
of further work had to be done very, very promptly.
But an awful lot
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In the meantime, other of the steel companies had
been busy and as soon as the seizure occurred a couple of them
went into action – but not U.S. Steel.
papers ready and we didn’t want to be out in front.
we wanted to try to be sure of how the case ought to be presented before we filed anything. But a couple of the companies
very immediately went at night to Judge Bastian of the District
Court to seek a restraining order against the seizure. One
was Youngstown, represented by John Wilson of our Bar here.
The other was Republic, represented by Bruce Bromley of the
New York Bar.
act that night.
next day = Holtzoff was sitting in Motions Court.
We didn’t have our
They went to Judge Bastian, but he refused to
They were told to go to Judge Holtzoff the
They did go to Holtzoff and sought a temporary
restraining order.
denied the temporary restraining order.
memorandum opinion or make any findings in his order of denial
but there was significant colloquy in the argument before him.
What he said was, IILook here, the mere seizure of the plants
is not immediately injurious because nothing is happening.
You are operating just the way you always have -= the same
wages, hours and everything else == and I don’t see that there
is any occasion for a temporary restraining order unless some
kind of injury is threatened, so no temporary restraining
order. If
After quite a lot of argument, Holtzoff
He didn’t write a
Nonetheless, of course, bills of complaint were
filed seeking preliminary injunctions and we had our complaint
ready to file fairly soon after Holtzoff’s order. I have
forgotten now how many complaints were filed, but every steel
company was involved.
that began to be filed in the District Court.
assigned to Judge Pine.
about the old PWA cases I referred both to Holtzoff, who was
then in the Department of Justice, and to Pine, who was then
in the Office of United States Attorney.
cant to the Steel Case; it is just interesting that I had had
rather intimate contacts with both those gentlemen early on.
The case was assigned to Judge Pine. There was
It was an enormous bundle of papers
The case got
You might remember that in my talking
That is not signifistill real uncertainty about how to present the matter with
any hope of getting immediate injunctive relief as long as
Sawyer was not taking any action. As I have said, Sawyer was
saying things that indicated that he didn’t contemplate taking
any action, that he was going to rely on a continuation of the
bargaining between management and labor.
shop were very worried that in that posture there was not a
prayer of getting a preliminary injunction.
And we here in the
I must say that at that point nobody among the steel
companies’ lawyers had any remote idea that anything would be
faced up to by Pine except the matter of preliminary injunction.
action in the District Court either at that stage or in the
Nobody had any idea that there would be any final
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near future. The whole question was — are we going to
preliminary injunction or not? We wanted a preliminary
tion pending a trial on the merits, in order to protect
get a
We figured that a trial on the merits, while it would be
expedited, certainly would not occur for a number of weeks.
But the government committed a tactical blunder.
They could have waited for a substantial period under the
rules before filing any responsive pleading.
almost immediately filed a motion to dismiss.
and the other steel companies were assuming that the only real
issue would be that of a preliminary injunction, the filing of
this motion to dismiss at least set the stage — although we
couldn’t believe that this would really happen == for ruling
on the motion to dismiss and in effect finally deciding the
case. Well, I think it was on Sunday, which would be about
April 20, Sawyer finally began making statements that indicated
that he was going to make a change of some kind in wages.
that point, the matter of an injunction became of critical
importance and we figured, as did the other lawyers, that the
point made by Holtzoff could be got around because now there
was threatened (on the basis of Sawyer’s statement) an immediate injury, that is an increase in wages and otherwise taking
action injurious to the management. well, argument was set
for Thursday, April 24th.
Thursday, April 24th, and Friday, April 25th.
Instead they
So whereas we
Actually the argument ran both on
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I haven’t double checked this, and my memory is
fuzzy, but I think that tec.hnically the only thing before
Pine, even though a Motion to Dismiss had been filed, the only
thing technically before him wss the Motion for Preliminary
Injunction. The government, however, made a mistake; they
filed a great long brief.
the argument.
taking over the case; it wasn’t left to the local U.S. attorney –
had dug out papers that had been used during World War I1 in
connection with the Montgomery Ward seizure, which was a very
dramatic event and at that time there had been a lot of briefing
of the power of the President to take over a plant. They had
all that learning and all those papers in their files and I
guess they couldn’t resist the temptation to file a deathless
document that would assert the unlimited inherent power of the
Executive as the Commander-in-Chief to do whatever he wanted
to do.
the preliminary injunction issue fairly thoroughly in one
part, its burden was on the merits of the case, that is, is
there or is there not inherent power in the Executive to take
They filed it several days before
The Department of Justice lawyers – they were
So the paper they filed, although it was addressed to
Thus we had the benefit of the government having
filed their brief and we got busy.
working like hell on this thing all along. We got busy with
their brief in hand and were able to put our brief on behalf
of U.S. Steel in final shape with the benefit of the government’s
Of course we had been
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by all odds the most thorough, both on the preliminary injunction issue and on the nerits responsive to the government’s
prepared in so short a time. The credit for it is due very
largely to the extraordinary ability of Stan Temko and Paul
I said, Davis Polk had done some excellent work.
closely with the Davis Polk people in putting this brief
together, but it was a Temko-Warnke job in the main that
produced our document.
Bruce Bromley on down == Bruce Bromley was a very distin –
guished lawyer =- recognized the merit of our document and, in
the argument that did occur before Pine, it was our document
that was referred to not only by us but by other lawyers as
the definitive statement of the position of the steel companies.
All the steel companies filed briefs but ours was
It was a pretty doggone good job for having to be
They aren’t entitled to all of the credit because, as
We worked
The other lawyers in the case from
Before the argument we had a strategy session. We
in Covington were not to participate in the argument for U.S.
the important Davis Polk partners and very much involved in
the work on the case.
lawyers for all the steel companies.
the chairmanship of such a meeting, and gradually I sort of
assumed that position.
John Wilson, who represented Youngstown and who is a very able
lawyer and was highly regarded and respected by the other
The person arguing would be Ted Kiendl, who was one of
We had a strategy session with the
Somebody has to assume
I had very good relationships with
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lawyers. The lawyers from New York, Pittsburgh and elsewhere
would sort of defer to the local lawyer anyway. So, it was
kind of a natural thing that in sessions among the lawyers to
discuss how things would be worked out, a local lawyer would
become a facto chairman of the meeting and I was it. I
don’t want to exaggerate that. That doesn’t mean that I was
deciding things at all; it was simply to have things done in
an orderly way.
It was decided that the lead-off argument would be
by Ted Kiendl for U.S. Steel and then the other lawyers would
follow along with Bruce Bromley, obviously, taking an important
part, and John Wilson taking an important part. John Wilson’s
important position in the matter was recognized because Wilson
and Pine knew each other well. Wilson at one time had been in
the U.S. Attorney’s Office and we all knew that there was a
high mutual regard between those two people.
I think every single one of the steel companies that
had filed suit appeared at the argument before Pine.
course, there was a desire on the part of everybody to get
into the act but Ted Kiendl it was agreed would lead- off.
Pine was a very diligent judge; and it was quite
apparent, when the argument began, that he had read the papers
that had been filed, despite their voluminous nature, and had
read them rather carefully — even including the U.S. Steel
paper, which had been filed at the last minute.
One point in the strategy session ahead of time that
had been agreed to by all the lawyers was that what we were
really after was a preliminary injunction not enjoining the
seizure but enjoining any alteration in labor conditions.
Holtzoff’s position had influenced us and in any event it
seemed as a matter of solid legal analysis that,
extraordinary remedy of a preliminary injunction, the best we
could hope for would be a hold up on a change in labor conditions.
We couldn’t get a preliminary injunction against the seizure
itself because that was the whole case.
any of us at the strategy session that Judge Pine on such
short notice would walk up to ruling on the Motion to Dismiss
or in any event would entertain an argument in support of a
preliminary injunction of the seizure itself.
argument, when he took off, was couched in terms of seeking
only an injunction against a change in labor conditions.
Although our papers had sought a preliminary injunction against
the seizure, Kiendl went so far, on being questioned by Pine,
as in effect to amend our papers so that our prayer would be
limited to a preliminary injunction only against a change in
labor conditions.
for the
It never occurred to
So Kiendl’s
Almost immediately Judge Pine reacted very negatively
to that position.
you are not seeking a preliminary injunction against the
seizure, that you are perfectly content to let the government
hold on to the steel companies because you know that there
He said, in effect, “DO I understand that
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will be no strike? The labor unions won’t strike against the
government. You want to get the benefit of the government’s
holding the steel companies because then you know that there
will be no strike.
government from giving any benefits to the labor unions by
making a change in labor conditions. Is that what you are
saying?I1 And Kiendl, of course, said, I1Yes.” Well, it was
very apparent that Pine didn’t like that one bit.
All you want to do is to prevent the
It was also apparent that Pine was not very happy
about the argument of the government that there was some kind
of inherent power in the Executive to seize property — particu –
larly in view of the fact that in the Taft-Hartley Act Congress
had sought to make provision for dealing with a labor dispute
that involved a national emergency.
Even though early on, the judge during Kiendlls own
argument had telegraphed the fact that he was disposed to walk
right up to the basic merits of the case, he, Kiendl, didn’t
retreat from his position. He was very firm. However, when
Kiendl finished and the other lawyers began arguing — and
particularly this was true in the case of John Wilson — they
got the point.
case and working hard on what they sensed to be Judge Pine’s
disposition not only to go to the merits but to go to the
merits in a way favorable to the position of the steel companies.
That doesn’t mean that they repudiated Kiendl’s position but
none of them would take the position that they, were amending
They really began leaping to the merits of the
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their papers so as to pray only for the kind of injunction
that Kiendl prayed for in his oral amendment.
It was particulariy clear during John Wilson’s
argument what the bent. of Pine’s mind was. Wilson knew Pine
like his own brother. I don’t mean that Pine favored Wilson
in any sense, but when Wilson was before him, there obviously
was a rapprochement and an understanding on both sides of the
bar as to what it was all about.
ment’s turn arrived it was pretty clear to everybody in the
courtroom that Pine was disposed to go to the basic merits of
So by the time the governthe case and to rule on the motion to dismiss.
then came along and walked right up to the merits.
obviously very confident. I don’t know why because everything
that had happened up to that point did not such suggest that
the government was going to win before Pine.
The government
They were
The argument was concluded on Friday and Pine took
the matter under advisement. He indicated that he was going
to decide very promptly but he didn’t decide it from the
bench. In the meantime, we were nemous as could be, of
course, as to what Sawyer might do. We thought any minute
that Sawyer would be hauling off with some kind of order
changing the labor conditions. But he didn’t. I don’t know
exactly why he didn’t.
about the Steel Case =- a superb book -0 really does not
explain why Sawyer didn’t immediately take action. I can only
guess, that Sawyer was never really happy about this seizure.
The book written a year or so ago
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I think he felt – that it was not particularly good government
for the President to be seizing plants without regard to any
statutory authority and in defiance of the procedure set up in
the Taft-Hartley Act. I think he was dragging his feet and
the White House was reluctant to give him peremptory orders.
In any event, there was no change in the labor conditions over
that weekend.
On Tuesday, Pine issued his decision. A memorandum
opinion was passed out. It overruled the
government’s motion to dismiss and issued a preliminary injunction as I recall it. I’d have to go back and check the papers
for just exactly what it was, but I think he overruled the
motion to dismiss and issued a preliminary injunction against
the seizure.
papers orally, they weren’t going to get any injunction because
it would be stultifying to let U.S. Steel have the benefit of
a government seizure which meant no strike, practically speaking,
and at the same time, keep the government from taking any
action benefiting the employees. But Pine said, “If you want
to amend your papers, 1’11 issue an injunction for you, also.”
By that time, of course, I was the guy representing U.S.
Steel, because Kiendl and company were in New York and all of
this had happened on very short notice.
sweet secretaries, AM Steel, with the typewriter in the
Courthouse corridor down there, I did an amendment of our
papers, withdrawing the oral amendment which Kiendl had made
during his argument. So we got an injunction, also.
We read it quickly.
He said that since U.S. Steel had amended its
So with one of our
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Then the government made its next blunder. They
decided that they would 50 directly to the Supreme Court and
skip the Court of Appeals.
Appeals, you can petition directly to the Supreme Court, if
you want.
power to grant it. So on Wednesday morning, the government
first asked Pine for a stay of the injunction pending their
appeal to the Court of Appeals, and indicated that, as soon as
they filed their appeal, they would petition for certiorari.
Pine, of course, denied the stay. By that afternoon, we were
in the Court of Appeals. Argument occurred that afternoon in
the Court of Appeals on the government’s motion for a stay
pending a petition for certiorari.
all night and had papers filed, as did the other steel companies,
opposing a stay.
of a stay, the government was still overconfident.
forgotten now whether the Solicitor General, Mr. Perlman, was
present at that argument. I think he was. Yes, I think the
argument that afternoon, the principal argument, was made by
Mr. Baldridge of the Department of Justice, and I think Perlman
made a reply argument after the argument by the steel company
That was a blunder of the first
As you know, once the record is filed in the Court of
They don’t have to grant it, but they have the
Of course, we had worked
In the argument that afternoon on the matter
I have
Things were happening so fast Mr. OIBrian couldn’t
possibly have kept up with it. So I was the guy. But we had
had another strategy session of the lawyers on Tuesday night,
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knowing that this is what the government was going to do.
First I should say that before Pine the only local lawyer who
had been really involved significantly in the actual argument
was John Wilson.
and I think some lawyers from other cities.
session that Tuesday night when we were deciding how things
were to be handled on Wednesday in the Court of Appeals, which
we knew would be coming, I moved in very firmly and I just
laid down the law to such New York lawyers as then were there,
and Bruce Bromley was there, and, Cod bless him, he was great.
I laid down the law and said, the guy who is to take the lead
and make the principal argument in our Court of Appeals should
be John Wilson. John Wilson is highly regarded; he is a local
lawyer, and we don’t want you foreigners in here screwing
things up.
There were all of these New York lawyers,
At the strategy
Everybody took that in good spirit and it was agreed
that John Wilson would lead- off.
Bromley would not be involved.
the argument in the Court of Appeals, and some of the other
lawyers were, too.
argument went pretty well.
only in some of the colloquy. I just got in the act a little
bit on some of the questions and answers back and forth between
the bench and the lawyers.
I didn’t mean that Bruce
He was importantly involved in
But John Wilson took the lead and the
I participated in the argument
The argument went pretty well and it really looked
good. Chief Judge Stevens, it seemed, was with us. Judge
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Edgerton, everyone knew, would be against us. But it looked
5s though we were going to get a majority.
doing, gf course, was to argue against a stay; and the burden
of the argument was if there werz a stay, then immediately
Sawyer would change labor conditions, the fat would be in the
fire, and we would be irreparably injured and we couldn’t
possibly ever cure that injury.
Wnat we were
The Court took the matter under advisement and was
out for some little time. I think the argument went on until
about 6:OO and then, I think, the court came back around 7:00,
or something of the sort. I have forgotten the exact times of
that if there were a stay issued, it should be on condition
that there be no change in the labor conditions.
made that point all the way through, but the burden of argument
was against issuing any stay as had been agreed among all the
lawyers. 1 may say, one of the lawyers then prominently
involved in the argument was another highly respected local
lawyer; that was Nubble Jones, of Hogan & Hartson. We were
getting a local flavor in the Court of Appeals, except for
Bruce Bromley. There was very little in the way of alien
lawyers being involved.
both of whom were very highly regarded; their prestige much
greater than mine.
strategy session, and it was agreed that, if the unthinkable
happened and a stay were issued with no condition, I was to
In the course of the argument, the point had been made
John Wilson
It was John Wilson and Nubble Jones,
But while the Court was out, we had another
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speak up immediately and press hard the question of having a
condition attached to the stay.
The Court let it be known that they were ready to
announce their decisicn, and so the Court came in, all nine of
them. The lawyers were sitting at the desks in front of the
Court. I think it was 7:OO or 7:30 by this time. Very preemptorily Stevens said that Judge Edgerton would announce the
decision of the Court since he, Stevens, was in the minority.
And Judge Edgerton simply announced that a stay would issue,
and right away Stevens adjourned the session. Of course, on
adjournment, the lawyers stand. I will never forget. I was
standing next to Nubbie Jones, and Nubbie Jones, out of the
corner of his mouth, growled, Why don’t you speak up?” I was
paralyzed. All I could do was sort of gurgle. It was stagefright; it was something; it was paralysis; and I didn’t do
what I was supposed to do. However, fortunately Stevens, the
Chief Judge, didn’t leave the bench immediately, as all the
other judges did. The other judges literally ran out. It was
as though someone had a gun at their heads. The decision had
been 5 to 4 against us. We had lost Prettyman. Prettyman was
the swing guy. Stevens didn’t go quite so fast and in a
moment I was able to recover from the paralysis. So then I
began to say to Stevens, now, wait a minute, there is another
point here which apparently the Court has not addressed, and
that is the matter of attaching a condition to the stay.
about that? Stevens then sent for Judge Edgerton and Judge
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Edgerton came back, and here were Stevens and Edgerton on the
bench and all the lawyers.
Then we had quite a little discussion. I was saying,
then in effect, damn it, we had asked that, if there were a
stay, there be a condition, and the Court hadn’t addressed
question. They said nothing about it in Edgerton’s announcement
from the bench. It was quite obvious they had forgotten all
about it in their in camera discussions. They just ignored
It was apparent that the Court had not addressed that
it. There was considerable discussion. Perlman, of course,
was eager to get away, he was all ready to run right out of
the courtroom, because if you win, you don’t hang around. But
he couldn’t quite get away.
The net of it was that Stevens finally said, with
Edgerton agreeing, that, if we wanted to, we could, at 9:00 in
the morning or 9:30, I have forgotten, file an application for
a condition to be attached to the stay. So off we went and
worked all night on the papers for a condition to the stay.
By that time we at C&B were really in the saddle; you couldn’t
fool around with other lawyers. There wasn’t time. So it was
Temko, Warnke, and Westwood working right through the night on
an application for a condition to be attached to the stay. We
filed the papers then by 9:30 in the morning.
The Court, however, did not convene at 9:30. I
don’t think they came in until about 10:30. Obviously they
had been studying the papers that were filed. I have forgotten
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whether the government filed papers in opposition.
have, because they were working hard,
and the session began at 10:30.
on the condition for a stay.
lead in the argument, because I was the only one, obviously,
thoroughly prepared on this thing.
argument Prettyman pressed Perlman for an agreement that there
would be no change in the labor conditions until the Supreme
Court had an opportunity to really pass on the question.
Perlman resisted.
this point we will get Prettyman and it will be 5 to 4 in our
They may
too. The court came in
We had a full scala argummt
By this time I was taking the
In the course of that
That led us to think that, by golly, on
Of course, in the beginning all that we had wanted
was to prevent a change in labor conditions, the position that
Kiendl initially had taken. So if we could get that, hell, we
would have won the case.
argument on this matter of a condition went pretty well.
Finally, right at the tail end, Perlman grudgingly agreed that
there would be no change in labor conditions until his petition
for certiorari was filed.
condition that a petition for certiorari be filed by Friday,
which by then was the next day.
that he could file a petition for cert. the next morning at
9:00 and change labor conditions at 9:30, so we were still
mighty scared. We didn’t feel that met Prettyman’s point,
it didn’t. So we still felt pretty confident when the Court,
And we were pretty confident; the
The court’s stay had been-issued on
But Perlman’s agreement neant
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at the end of that argument, took the matter under advisement.
We figured we would get Prettyman. However, the Court came
back in due course, 5 to 4 against us on the matter of attaching
the condition we requested.
So we had another night’s work. We had decided the
steel companies would get on file immediately their petitions
for certiorari, and we figured we would beat the government to
it even though we were the prevailing party in the District
Court. We could, of course, petition the Supreme Court for
certiorari. So we worked like the devil. I don’t remember
whether there was just a single set of papers filed on the
petition for cert. just for U.S. Steel, and other companies
filed their own, or whether several companies joined in the
single paper. I would have to go back and look at the files
on that.
Anyway first thing Friday morning our petition for
certiorari was filed. The government was surprised. They
never dreamed we would do that.
dramatize our interest, and we wanted to get this matter of a
condition before the Supreme Court in a hurry so that the
Justices would begin thinking about this point, which was the
key point as far as we were concerned.
in our papers was the need for the attachment of some kind of
a condition that would prevent a change in labor conditions
until the Supreme Court had time to review Pine’s decision.
The reason we did that was to
Very strongly emphasized
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The rules of the Supreme Court at that time, incidentally, provided that if both parties petitioned for cert. the
plaintiff in the lower court would have the opening argument.
I mention that as kind of amusing, because Perlman was very
much upset about that. Ultimately, when cert. was granted he
wrote to the Chief Justice urging that the real moving party
was the government. We were defending the action below, he
said, and the government ought to have the opening and closing.
But the Court’s rules were clear. Actually, there had been
another case in the fairly recent past where the situation had
been reversed, where the government had won below, had been a
petitioner, and it had had the lead-off argument. That case
was referred to by the Chief Justice in refusing Perlman’s
request. The rule in the Supreme Court, by the way, since
then has been changed.
In any event, our petition for cert. was filed. The
government’s petition for cert. was filed quite a bit later.
On Friday we again worked all night on a reply to the government’s
petition and had our reply on file first thing Saturday morning.
In those days, the Court heard argument on Friday and had
conference on Saturday.
When Pine issued the injunction, the labor union
called a strike. The injunction, of course, was an injunction
against the seizure itself.
its stay, the labor union called off the strike. Someone
approached them; I don’t know who; the White House, somebody;
When the Court of Appeals issued
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they called offthe strike.
called toge”cher the steel companies management and the labor
union and really put the heat on them to try to come to an
agreement on labor conditions.
was just about to be made.
on them. But that afternoon, the Supreme Court announced its
decision to grant cert. and issued an order that there should
be no change in labor conditions pending its review. Immediately, negotiations at the white House came to an end, because
all of a sudden the steel companies proved not to be willing
to resolve the matter by agreement.
Then on Saturday the White House
It looked as though an agreement
Truman was really putting the heat
The Supreme Court specified that the case would be
argued a week from the following Monday. This was Saturday.
That meant that the case had to be briefed, the record had to
be filed, everything, in real short order. It had been agreed
that in the Supreme Court John W. Davis would argue on behalf
of all the steel companies, except that Charles Tuttle (who
was the father of my first wife) insisted on participating in
the argument, also. I have forgotten now which steel company
he represented. And Tuttle separately briefed the case. I
don’t now remember whether the brief on behalf of U.S. Steel
was joined in by the other companies or not.
memory is so vague. But certainly U.S. Steel’s brief was to
be the most important one, particularly since Mr. Davis was to
have the principal argument. The question was how to get all
this done. The record had to be printed, and briefs had to be
prepared and printed, all this in a week.
I’m sorry my
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Obvicusly, we had tc be involved, although the Davis
Polk people had done a iot of work. We had been very close to
this thing. The net of it was that I, with Stan Temko and
Paul Warnke, went to New Xork right away to work with Mr. Davis
and with one of the other partners in Davis Polk, 2orter
Chandler, a very, very able guy. We just moved up to the
Davis Polk shop in New York to work with Mr. Davis and to
prepare the brief with Porter Chandler. Chuck Barber, in the
meantime, would stay down here. He was an enormous help in
all the mechanics, because all kinds of mechanics had to be
worked out during that week.
That was, for me, a very interesting experience. I
regarded Mr. Davis as the minion of the capitalist class. He
had been the presidential nominee of the Democratic Party in
1924 after the famous Madison Square Convention, which was the
longest convention in all history. The great struggle that
. had occurred between McAdoo and A1 Smith at that Convention
was finally terminated with the nomination of John W. Davis as
a dark horse.
Virginia. His nomination had meant the triumph of the conservative forces in the Democratic Party and, in my view in later
years, the nomination of Mr. Davis had represented the ascendency
in our society of the forces of reaction. Here the Democrats
had nominated Davis, Republicans had nominated Coolidge, and
it had been left to insurgents to form the Progressive Party,
the nominees of which were, for President, Bob LaFollette and
Davis had been a lawyer at that time in West
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for Vice President, Burt Wheeler. Up to that week in New York
I had thought of Mr. Davis as kind of a stuffed animal, simply
the puppet of the capitalist class.
I came to have a very different feeling about Mr. Davis
during that week. He was absolutely magnificent. He was
quite old by that time. We, Stan Temko and Paul Warnke and I,
would work like the devil there in the Davis Polk library.
Their library wasn’t as good as ours, but we worked like the
devil in their library. And each day, and maybe more than
once each day, we would meet with Mr. Davis to talk out how
best to frame the arguments, and so on. Davis couldn’t have
been more magnificent. Here were the three of us from Covington
who were relatively kids, but he treated us as equals. His
entire manner and approach were absolutely magnificent. It
was, for me, a very stimulating experience, and I may say, a
very enlightening experience, to find that the person I had
regarded as the minion of the capitalist class was really
quite a guy. This was a great experience for me, and I came
to have enormous admiration for the man, which was confirmed
later when I heard him argue this case in the Supreme Court.
Somehow or another, we got it all done, and the
brief was filed, and the case was argued on the following
Monday. As you know, the case was decided on the second of
June, which was exactly one month after the petitions for
cert. had been filed, and was less than eight weeks after the
litigation began. The case was decided by the Supreme Court
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in favor of the steel companies, holdicg that – well, it is
not quite clear what the holding was.
don’t know what the case stands for as a precedent today.
Every Justice wrote an
There was not a real agreement in the reasoning; I
Although even scholars tend to cite the case in support of the’
broad proposition that the Commander-in-Chief has no inherent
power of the sort asserted, I am not sure that that was what
was decided by the majority of the Justices. It may be that
most of them decided simply that, in view of the Taft-Hartley
Act, such inherent power as the Chief Executive had had been
A couple of years ago there was a superb book on the
Steel Case that was written by a gal named Marcus, I think the
name was. I did a review of that’book, which is in the University of Chicago Law Review, in which I brought out quite a
number of things which I have just touched on here today, and
also corrected two or three omissions or mistakes in that
that I did not know about, because Mrs. Marcus had access to a
lot of papers such as diaries of Justices and judges, and so
on. As I remember that book it indicated that when certiorari
was granted Mr. Justice Burton, in his diary, said that he
thought that what should have been done by Pine was not to
decide the matter on the merits but to do exactly what Kiendl
had asked, and that is, simply issue a preliminary injunction
against change in labor conditions.
But a couple of things were brought out in that book
A very interesting obser-
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vation, I don’t’think that there is any question but that, as
a legal matter, our instincts at the beginning had been right.
But, as a matter of human psychology with Pine, we were wrong.
In any event Burton’s reaction when this whole matter came
before the Supreme Court is a confirmation of our original
decision, and in a way of Kiendl’s stubbornly adhering to that
The government made a fatal mistake in seeking cert.
immediately, rather than going to the Court of Appeals. Look
at what happened. The Court of Appeals refused the condition.
I have very little doubt but that our Court of Appeals at that
time would have decided that the President had inherent power
to do what he did, and in any event, they would not have
decided that for some time.
Supreme Court did. It would have been expedited, no doubt,
but 1’11 bet they would have sat on that case. Two, three,
four months would have gone by before they finally disposed of
it. In the meantime, with the government having changed the
labor conditions, it is my judgment that the steel companies
would have had to give way; they weren’t going to sit around
forever and let the government run the plants. They would
have had to come to terms, and I don’t think the case would
have ever reached the Supreme Court. The case would have
become mooted, I think, in the end.
They’wouldn’t have done what the
Mr. Baldridge, who was the lawyer for the Department
of Justice and running the show for the government until they
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got into the Court of Appeals with Pezlman, was severely
criticized by a 1st cf people for his tactics before Pine and
for having a motion to dismiss and emphasizing the merits, and
so on; but I think the criticism of Baldridge himself is
unwarranted. I think that there was a naive overconfidence in
the White House. I think they were calling the shots, and
that’s rather confirmed in Mrs. Marcusf book.
without really comprehending the matter as a legal problem,
the White House was just overconfident and took the view,
“Damn it, we are going to assert the moon,” and gave Baldridge
to understand from the beginning that matts the way it was to
I think that,
So much for the steel case.