Joseph Rauh Text of Interview (January 10, 1992)

This interview is being conduc!ed on behalf of ?e Oral History Project of the District of
Columbia Circuit. The interviewee is Joseph L. Rauh, Jr. The interviewer is Robert S. Peck.
The interview took place on the 10th day of January 1992.
Mr. Peck: As I said, we’re going to start with your childhood. I know you
were· born in Cincinnati and maybe you can tell us a little about your family and any memories of
Cincinnati.
Mr. Rauh: Well, my father was a German immigrant. He came from
?aumberg, Bavaria, Germany, and I think he was in his early teens when be got here – or midteens.
He was a small manufacturer. He had a small shirt factory in Cincinnati. He married my
mother who was a second-generation American, but also from German stock. We were German- .
.
Jewish stock- the German Jews rather prided themselves with that status at the expense of
.
.
Eastern Jews. I never remember any discussion of that problem; I just remember it being
accepted that German J?ws were better, which reminds me of a story. Do you want me to
interrupt myself and tell a story?
Mr. Peck: Oh, absolutely.
Mr. Rauh: It reminds me then? of the story of my- I was law clerk to [U.S.
.Supreme Court] Justice [Benjamin] Cardozo at the time, and I was proud to talce my father and
mother to call upon him I said, “Dad, look, let’s not have any of the German-Jewish stuff. After
all, Cardozo thinks of himself, as do all Shephardic Jews, as the cream of the crop. So don’t say
anything – don’t bring the subject up. We hadn’t even gotten placed in our seats, when my father
starts, “Now, we German Jews.” But Cardozo was such a beautiful figure; he put everybody at
ease in a second with some comment that I, unfortunately, can’t remember. \Ve were of German
– 1 –
descent, and my father carried an accent, I guess, until bis death. I could speak German when I
was six, which would have been in 1917. I could speak perlect German because I had a
grandmotp.er, my father’s mother, who didn’t speak English so we talked German to her. So I
could speak German. We had to stop during World War I. You didn’t talk German in your house
1?ecause people wbulQ start to say you weren’t loyal to _the c?untry so that I now have no language
other than English that I can speak. It’s just that I lost it all in the year from – well,_ it’s a couple
of years there from ’17 til then.
I had a brother and a sister. My sister was 8 1/2 years older; my brother was 6
years older. They’re both gone now. We weren’t a particularly religious family. Everything was
education in our household. Y mi hardly· got home from school and it was, “Have you done your
homework?” And, of course, you hadn’t done your horrrework. You just got home. But that was
it; our house was a very studious place.
My sister became a pediatrician and wrote some articles on pediatrics, especially
heart troubles of babies. My brother was a mathematician. He was first in his class at Harvard in
mathematics, and I’ve always thought it was sad that he couldn’t go on. He wanted to get
married, and be couldn’t go on with his studies. I think if he bad gone on, he’d have probably
been [Robert] Oppenheimer’s assistant. Oppenheimer was first in mathematics, as I understand
it, in the class ahead of my brother. I think if my brother had been there at the time as another
mathematician there, why he’d have gone on, but there wasn’t enough money in the family so he
had to go into the business. He never was very happy. It wasn’t a happy thing for him
It was very happy in my lifetime because I got to go to the law school. I was free
to accept [then professor, later Justice Felix] Frankfurter’s push to the Supreme Court and into
-2-
the New Deal. l was the beneficiary of what was a reaj.ly sad thing for my brother whose life
never reached the stage of fulfilhnent that I think it would have ifhe had gone back to Harvard
when he graduated into the graduate mathematics. He got a hundred on the final big
?thematics ex? He ?as that capable in that field. But he never complained, and he never
complained that I had a more exciting time than he did.
I think as families go, it was very close, very happy. I never heard my mother and
father argue about anything. I always think my ?other and sister were very well respected. We
had a nice house in walking distance to the school we went to.
?d my father was able to make enough- and this was the pride of his life – so he
could send both his boys t? Harvard. I don’t think people realize the degree to which the
immigrants of the kind of.this middle class considered that the ?easure of success: if you could
send your kids to the best university, and Harvard was an international institution. I think just to
hear my father tell people that his boys were at Harvard you knew that he thought that was
success. All the hard work he put into a small business was vindicated by being able to send
your boys to Harvard College and that he was able to send me to the law school. I did not have
to work going through school, which made life a lot easier and a lot more fun.
That was our background, and it was conducive to study. I think all three of us
did. I know my brother was Phi Beta Kappa, and I was too. We did have a rather happy, quite a
happy young period. We were both athletically inclined without being tembly good. Indeed,
Jimmy Wechsler in his autobiography says that I got my feelings for the underdog playing center
on the Harvard basketball team I don’t know if that’s true or not, but we all had dreams of being
athletes even if we didn’t carry them out very well.
-3-
Mr. Peck: I did read that there was one dispute in your family when your
sister announced in the 1924 election who ·she was going to be voting for.
Mr. Rauh: That’s perfectly true. My sister announced she was going to vote
for [Wisconsin Senator Robert] LaFollette. I thought my father w·as going to have a heait attack;
he was a conservative Republican. He had marched in the 1896 McK.illley gold march. If you
recall, the question was whether you had the sixteen-to-one ratio. [William] McKinley was for
the gold standard, and [William Jennmgs] Bryan was for minting silver and having a freer
currency. My father marched ill the McKinley parade. Not that I was there, but be told me.
We used to have friendly discussions, sometimes barbed. So when ill 1924, my
sister, she ?ould have been ill her mid-30’s then, {guess, she announced she was going to vote
for LaFollette [of the Progressive party], my father said she couldn’t. Quite a fight. But anyway,
if I recollect correctly; and I think I do, the compromise was she voted for John W. Davis who I
guess was just as bad as the ..:. well, I guess that would have been Coolidge. I guess there wasn’t
much difference. Well, Davis might have been a little bit better beillg a Democrat, but I doubt if
he was much better than Coolidge. Yes, that happened.
A little later ill life there were other disagreements. Our family was close enough
so that my father would say to my mother if my father had a visitor or somethillg, he would say –
well, first, ·he would damn the New Deal. Then, he would say, “Get that clippillg about Joseph”
I mean, there was pride even in disagreement in our family, and Mother was a real wife in the
sense that women were ill those days. They didn’t argue with their husbands about things. They
were quite compliant, and Mother was like that, too. Her children and her husband were alike.
Mr. Peck: You majored in economics.
-4-
Mr. Rauh:
Mr. Peck:
Mr. Rauh:
At Harvard.
And then you spent the summer after that traveling in Europe.
Yes. I spent the summer after graduation_ from college traveling in
Europe. My friend, Jimmy Plaut was quite a talented pianist, and he put together a band to play
over in the summer and back after the summer was up. They had auditions with the Lions.
. . . .
Jimmy_took a drummer with him on the audition, and they passed the auditio1;1. They were pretty
good.
Jimmy played the piano, and he had a fake drummer there. There was a violin
player, a saxophone player – there were five of them They played in the tourist – we called it
different things – second class, cabin class. The band was almost better than the one in first
class, which was an old live shipping band. We had a big crowd, but at the last ?:Ute Jimmy
called [the dfl.llTII!ler] and said that he was substituting drummers. I was that new drummer. He
had given me a couple oflessons, but, Jesus Christ,? am unmusical.- But anyway, I played in the
.band all the way over and all the way back with my dear friend.
We traveled around Europe there. Interestingly enough, this is now ’32. We spent
a month in Berlin, and that’s the summer that [Adolph] Hitler’s stre??th receded a little bit. He
was obviously number one before that, but he had never gotten to 50 percent. In the summer of
’32, there was an election, and Hitler’s strength receded a little bit.
Everybody was very happy about that. I was .. MY, frie?d, Jimmy, was later the
director of the Modern Museum in Boston and that was his interest. He was studying – he was
interested in art there. I was interested in politics, so it was quite a wonderful time. They had a –
I still remember this, and often wonder what I would have done if I had a gun. Probably nothing,
-5-
but you could wonder. I went to a Hitler rally in the summer of ’32 at a place called Wansee. I
think it is a suburb of Berlin and knew or learned enough German to be able to travel. I took a
subway train there and went to the thing. It was at a big stadium It carried 100,000 people and a
lot of what you would hear would be [?German music].
No one knew that I was Jewish I was just a lone American walking around.
People would parade in, and I have often wondered if we would ever get to that stage in this
country. The postal clerks would parade in. The railway maintenance people would parade in.
They were formed in military barracks, only they didn’t have military weapons. But they were
obviously being trained, and they would then sit together. I had this much in my mind.
But I was walking around down on the track around the Berlin train, and all of a
sudden the walls opened and in drove three cars. The first car, then Hitler in the second car, and
some storm troopers in the third car. I never thought about this at that moment, but that was the
lousiest security I had ever seen in my life. Here was a – let’s see, I’m a 21-year-old American
Jew within 10 feet of Adolf Hitler. It’s incredible that I never thought about the absolute
absurdity of the situation at that moment. I saw the guy, and they were hustling around him, but
there was a direct line of fire. To have allowed such a ridiculous thing – you would think that the
people being allowed that close would have been somehow checked. I was standing alone, and
there wasn’t a big crowd around there. It was a total accident.
I have always wondered and then when they had the later [assassination] effort at
Hitler – which didn’t seem to be great security at that time but that was a different problem
because by then the Germans were losing the war. But here, I was flabbergasted.
Anyway, we had about a month in Berlin, and I was very interested in the German
-6-
politics .. I was flabbergasted in January whe? Hindenburg appointed Hitler Prime Minister, gave
rum what he hadn’t been able to win. Everybody said the Germans elected him Well, that’s not
true. I don’t say the next election would have been a fu.rtller recession in his popularity. But, he
was appointed at a moment when in the previous election there had been a reduction in his
popularity.
Mr. Pe?k: .Someplace where you had mentioned this travel during that
swnmer, you were reported to have said th?t the problem that.the German hberals had at the time
was not proh.tbiting the Nazi drilling of troops – the collecting of guns and their use of violence.
Mr. Rauh: I guess what I was trying to always say or think was “where do you
stop?” I mean, here we are civil libertarians and certainly think they could say what they please.
I believe that very deeply. I believe that even with – I believe that on right wing, left wing talk. I
believe that for the communi?ts who I wasn’t yery fond of, and I believe tμat for – but where is
the point at which the threat takes on such military meaning that you would stop it.
I mean, people always ask you, “Well, Joe, you hotsho? First Amendment-type – –
what do you do when there’s a real danger of a takeover.” w?μ, I never ?ad to be precise about
it, and I’m not precise in my own mmd today. I know that Hitler went too far. You know what
you think you can do – talk- and you know what went too far- what Hitler was doing there,
getting weapons and drilling. Whether they were actually, I didn’t even know. Were they drilling
with weapons or – I know one day_w?en they came in there, they had various sticks and things
over their shoulder, but I didn’t see muskets there. I find that – I know that the right answer is
somewhere in there, but luckily our country has never reached that stage where you had to make
the decision that was in front of the German people.
-7-
Now, I guess if I learned anything else there that was of use later on, or at least
thought later on, it was the corrnnunists fighting the socialists which made Hitler’s line the
majority – the plurality. The communists were· so· well disciplined that they could vote for –
well, they didn’t want the socialists in power. They hated the socialists more than they did the
right wing, and I think that that was part of the lesson I suppose that J had in the back of my head
when I knew there was something wrong in this country and we started the ADA [Americans for
Democratic Action].
Strangely enough, he should be here right now when I said that. ·The guy who
really started it died this morning, Jim Loeb, who was really the thought behind the principle that
Uberals and communists had nothing in common because communists didn’t believe in free
speech, plain and simple. But I think the maneuverability of the German communists there
against the socialists who were really the majority party – pluralist party. I don’t think anything
right a:t that moment existed that you could call the.majority, but made the situation such that
Hitler was ultimately handed the country.
We had lots of talks there. The guy who owned the pawn shop where we stayed –
I talked to him in great length He was a conservative, he was a Hindenburg party guy, but he
was not for Hitler, though I guess he went along. Everybody went along when the time crune.
But, the question you asked, I guess I have often tried to formulate where do you
stop – where do you stop the trading. I know it has something to do with at what poin·t is it
militarily dangerous for the civilian government – and that is as good a formula as I could use –
when does it become dangerous to the top of the civilian government, and that is the time to stop
whether you recognize it or not or whether you come too soon or not. That’s a rather pragmatic
-8-
decision.
Mr. Peck: That tends to be the problem with making that distinction of when
it’s too soon and when it’s too late.
Mr. Rauh: Well, it was obviously too late. I mean in Germany they never
should have let Hitler go that far. So that was not too soon. In many countries .where you have
repression, it is obviously too soon there. To just hit the exact point, why, I don’.t think there’s
anybody smart enough to know the answer to that.
Mr. Peck: . After that summer, you started Harvard Law School. Why did you
decide to go into law?
Mr. Rauh: Because there was nothing else you could do. I’m perfectly honest
about it. The business was too small for two boys. It was perfectly enough to make a living for
one boy but ?ot for two. Roosevelt is elected in.the fall of ’32. I don’t think that had anything to
do with it. It was really the absence of alternatives. I’m perfectly honest about that. What would
. .
.
you do? I mean, people were having temble_ times getting jobs; that is, people in college. This is
my 60th reunion. No do?bt we will h:ave talks if I’m well enough to go in May or June, whenever
it will be.
Mr. Peck: What was your first job after you got out 60 years ago?
Mr. Rauh: Well, it was very, very hard. The people who came back to law
school, which a lot of our class did, we didn’.t know where we were going to go. And, we
certainly didn’t know then that Roosevelt was going to hire lawyers a dime a dozen. I mean that
the Frankfurter boys would be welcome and all of that. Nobody knew that. Also, Jewish lawyers
were not yet hired by Wall Street firms. Whether I would have gotten a job or not was never
-9-
tested because I never got to that point. Generally, I don’t’know of anybody from our class who
got hired by a Wall ?treet firm who was Jewish Many of them came down here in ’35 when we
graduated, but I think to have any kind of big wig – I liad intended- to do this and do that would
just be made up. This was a good place to be. It couldn’t hurt you any to know some law and it
might do you some good. I think that was really why I went to law school.
Mr. Peck: Obviously Frankfurter was a big influence on your career while
you were at Harvard also – also, of course, subsequently.
Mr. Rauh: The biggest. There is no question he is the biggest influence of
mine, other than my wife. Strangely enough, he was away my second year at law school. My
first year be was there, bui how would a freshman look at the king. I don’t know if I ever saw
him that year- the freshman year. I mean, whoa, yo”u told”me where· you went to law school, but
I forget.
Mr. Peck: NYU.
Mr. Rauh: NYU. I mean looking at the Harvard Law School in the first year,
you are instructed by people in classes of se’7eral hundred by great – the greatest scholars of the
time: Scott in contracts, Beale-in conflicts. I mean, the author of the book is your teacher.
Frankfurter wasn’t teaching freslnnen. I can’t hardly remember that I saw him Then the
sophomore year he spent at Oxford. So it was I didn’t meet him until the beginning of the third
year, which was 1934, and I took federal jurisdiction, which is a Frankfurter word for whatever
you want to teach.
There are all sorts of jokes about Frankfurter, but they all mean the same thing.
He called one course “Public Utilities” and one “Federal Jurisdiction.” Federal Jurisdiction was a
-10-
little seminar, about twenty to twenty-five people, and what you did was to read the cases in the
Supreme Court.
Well, this is 1934 when you’ve got the anti-New Deal Court. It was exciting to
have Frankfurter come and talk to you – to walk in and say “Will you recite the case that’s just
been decided?” We had ?e advance sheets – everybody had taken advance sheets and the
advance sheets was a textbook for that day. That’s not totally accurate or fair to him. He walked
in the fir?t day of Federal Jurisdiction and said, “I want everybody to read Frankfurter and
Landis.” Is that the history of the federal courts? “Read Frankfurter and Landis and come back
in 6 weeks; we’ll hav? a test and then we’ll have classes every week – we won’t skip any.’.’
That’s when he was spending so much time down here [in Washington]. So we
read it. I dop.’t t? he ever read our papers, b?t anyway, I think he graded them on the basis of
talkmg in the course. Anyway, he crone back and then he started reading, started with the cases –
we read all the cases, and he would discuss in class the cases that interested him.
Well, I was lucky. We had just a great relationship, and I think one thing that
solidified our relationship is the time I made a fool of myself. He walked in one day; he said,
. . .
.
“What do you think of the [decision in Mooney]? I didn’t know what to do.
“Well sir, you have to understand those times. I mean, things were – there was an
awful lot of feeling going on.”
There’s a deathly silence because the rest of the class knew what the hell was
going to happen to me. He said, “Goddamn it. Don’t you know where I was.” He said, “I was on
a mission from President Wilson to tell him what to do about the Mooney case because it was
causing such international trouble, and you’re trying to tell me something about the case.”
-11-
He said, “What about the case?” Well, it was so obvious I had not read the case. I
. .
made a real jackass of myself, but I think that even helped solidify affairs rather than – that was
the case Mooney against Hollahand, where they held – its one ofthe first cases where the
Fourteenth Amendment gets applied to criminal law. It was not the first case; that was the
Scottsboro case, but it was one of the first cases. What the court ruled there was that the
prosecutors’ knowing use of perjured testimony was a violation of due process. That would have
been simple enough. All I bad to do was read the case.
After that, I read them, and he was very nice. One day in winter, he hollers at me
in the corridor, “Come here.” I went back, and he said, “What are ·you going to do next year?”
I said, “Well, I have a job sir with the Paxton & Seasongood firm” That was the
top Jewish firni iii Cincinnati – at the munificent sum of a hundred doUars a month
He said, “Well, tell them you’re not coming.”
I said, “Yes, sir.” You know, you didn’t speak back really very often to Felix.
He said “Tell them you’re not coming. Tell them you’re going to Washington. 11
I said, “Gee, that’s· wonderful. II
He said, “I think we can arrange the law clerkship for Justice Cardozo, but I’m not
absolutely certain because Cardozo may want to keep his present law clerk a second year because
he told me that changing was a problem for him being older and not well. So it might be a year,
and, well, you could work for one of the New Dealers for a year, and it would probably be fine.”
So, it did develop that Cardozo did keep Bill Strop for the first year I was in
Washington and then actually I guess he was going on doing that because I stayed for two years.
But, so I worked for Ben Cohen and Tom Corcoran for the year 1935 to 1936 and then in ’36 I
-12-
became Justice Cardozo’ s law clerk.
Mr. Peck: I see. That explains somethmg that I couldn’t quite figure out –
how your government service sort of spanned your clerkships.
Mr, Rauh: Well, I spent a year in ’35 and ’36 workmg for Cohen and Corcoran
and then I went to Cardozo. Then I went for a few months to the Labor Department, the Wage
and Hour Division. Then when Frankfurter was appointed, I told Ben Cohen to volunteer for me
– that I didn’t “:’ant to volunteer because if Felix didn’t want me, I didn’t want to do it. I mean, l
had been a clerk and no sense in doing it more than once; but on the _other hand, I felt so much – I
worshiped Felix so much- and he was having trouble. See, it was mid-year and finding anybody
and especially to find SOJI!ebody who knew bis way around the Court was a great thing. So,
whe? Ben said, “That’s very nice, but_.YOl;l sure you want to do it.” I said, “I want to do it if he
wants to do it.”
Then, well, he c?ed Felix, who told him “Sure, what the hell.” After all, somewhere
he wrote that I had broken him in. Well, I did know more about the routine or something
like when you get the briefs, when you get this, and when you get that. You know, it was a little
easier to have somebody around who knew that, but then [Justice Louis] Brandeis retired, and
Butch Frazier came up from Brandeis’ chambers. I stayed for a little bit, but not too long – but
there is a kind of a back and forth shift there. First with Ben and Tom and the New Deal, then
Cardozo, then the Labor Department, and then back to Frankfurter, and then the preparation for
war, pretty much.
Mr. Peck: Well, what was it like being at the Court at that time. I mean, we
know that law clerks have a variety of duties today. What kmd of duties did law secretaries
-13-
have?
Mr. Rauh: In my opinion, there may have been judges who needed law clerks,
but I was working for one who didn’t. I would say that – you know there’s so much talk now
about, and even then they were talking about, law clerks writing the opinions. ·Why if I got a
sentence in an opinion, I thought I’ve made my life. I got very, very few. What my job was was
to read cert. petitions and write a short memorandum – and he read them afterwards; he wasn’t
taking any chances that I got it wrong.
Then, the major job that I had was, you see, they met – the conferences were on
Saturday afternoon and then [Chief Justice Charles Evans] Hughes would send around the
assignments. That came Saturday around 7:00, and I’d wait until it ca.TJ1e. He’d show it to me and
he would always say “It wasn’t exactly what I hoped for Mr. Raub, but we’ll see what we can do
with it.” And when I walked in Monday morning at 9:00, he’d say, “I found some interesting
things in the case and I’ve written it up.” He said , “I put in the New York – . ” See there was a
long hall with bookcases, and he had all the New York cases reports, all the U.S. reports, and all·
the federal reports. So, he said, “I put in the federal and the Supreme Court and New York cases
that are relevant. Could you fmd some other places like New Mexico so we don’t seem so …. ”
What was the word he used – parochial? Or,” … we don’t look so elitist” – something like that.
So my job was to go and based on the decisions he used, which was a cinch since the key . .. All
I had to do was take the key [number] and look and see what else there was under that particular
key number. Or, if you wanted to be a little innovative, you looked through related subjects too.
That was it really. The job was to make the opinions look like they weren’t just written out of
New York City.
-14-
And then he’d come in and praise you to the skies for nothing. The other thing he
did was he would take one or two -cases that were being argued at the next session and ask you
write a memorandum about those, which he would read and come in and say, “That’s brilliant,
better than the opinion of …. ” He had that habit – it’s a temble habit. It got him into all kinds of
trouble. Let me give you an example: there was a guy named George Hellman, whose son is that
.
.
guy who writes for the New Yorker, Jeffrey Hellman. And anyway, George Hellman was a – he
was a_ – just sort of wrote things inadequately. The day right after Cardozo dies, he [Hellman]
. . . .
comes in, he says he’s going to write a biography. Well, he was no more qualified to write the
Cardozo biography, and I told him so. I was a young,_ brash kid. I said, “You shouldn’t do that.
There should be somebody that knows the law.” He pulls out a picture, autographed, from
Cardozo, in some such flowery way. You could have argued that Cardozo had.chosen him as his
biographer, because it had all this flowery [junk] on his picture. Why I couldn’t say any more,
except I won’t cooperate. He thanked me, however, in the introduction for cooperation, but that’s
an old trick that people use – that’s what, what’s her name used on Mrs. Reagan.
Mr. Peck: Oh, Katie Kelly.
Mr. Rauh: Right. She thanked a lot of people who claimed she never really
got near them, but the idea was to show how thorough a job she did. So he thanked me but I
never did talk to him
At any rate, those were the things you did. You did a review memorandum on the
cases to be argued. There was research, which he reviewed very carefully. And there was “add
cases” from the not-elitist places. That’s all you did, and it never was very hard.
The only hard assignment – I mean this was long, because it was so dusty – the
-15-
really hard assignment cmne on the Social Security cases. There was some argument made that
this was an illegal head tax, and Cardozo said, “I remember reading in a book someplace that in
the colonies they had statutes on taxes, not unlike the Social Security taxes. Mr. Rauh, you see if
you can find anything out about that.” I went to the Congressional Library, and I talked to the
– the Supreme Court Library had nothing on the colonies. I think I checked that. So I went over
there, and I think I talked to the guy. He said, “Yeah, we got the statutes from the colonies.”
They took me into some room- it was so dusty- nobody had been in that room I guess for least
fifty years and said “all the statutes of the colonies are here.” And I said, “Thank you very
much” He turned around, and he lit up as much as he could. We took a rag and cleaned off the
dust that was in the room, and I found them They’re in the case – and I found some of the things
that were exactly what he wanted. I think indeed it was so. I was so worried that in copying it
I’d be hard – I’d tear the pages. We took about ten books out to him of colony statutes. We dealt
with the originals. I’d open them and show it to him, and he’d make whatever notes be wanted
about it. He was just ecstatic about the research
But he never wanted to do what Brandeis did. You know Brandeis would tell a
clerk, just no relationship like Cardozo and his clerk – they were even on different floors in their
apartments. You see, they worked at home. They didn’t work at the Court. Brandeis would say
to Willard Hearst, who was there the first year I was, “Hey, Mr. Hearst, will you please get the
law of this point in all 48 states?” Why, that’s a pile of crap to do that; he’s just showing off.
But, “oh, yes, sir.” So Willard was out looking up the law of 48 states, and I was having a good
time talking to the Justice.
I was so lucky to have a Justice like him Now we were there in the court-packing
-16-
plan. See, I got there in September of ’36, and the court-packmg plan comes in February of ’37.
. .
Well, I had the best seat in the house on the court-packing pl? because Cohen and Corcoran
were more less running it for Roosevelt, I’ll tell you. They weren’t in on sending it up, but they
worked on changing it so I would go in their office at nights and find out what the hell they were
doing and I also was on the Court – so I’ve always said “I had the best seat in the house for the
court-packing plan.”
Well, what actually is somewhat of a dispute and if you read the North Carolina
piece [Joseph L. Rauh, Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme
Court, 69 N.C. L. Rev. 213 (1990)], you’ll see it – it’s also in the Sμpreme Court Historical
Society – they took the first part of my article – the part on the court packing. But you couldn’t
take the later part because I found out the rule of the Supreme Court Historical Society: you
could slander dead judges, but don’t touch a living one.” That’s why they took the first ten pages
of my piece, but not the later forty, because it slammed the living – so I’ve now got the rule of the
Supreme Court Historical Society down pat.
Anyway, Cohen and Corcoran both told me, especially Cohen – because my
relationship was much closer with him – that they had not known until the day before the plan
went up. I don’t think I- Warner G?dner, who was_workmg for _Cummings at that time, wrote a
personal history, a memoir in which he includes a jab at me saying that, something like,
“obstreperous Joe Rauh” – I think it’s in his … no I_think ? may have even put it in my piece
because I answered it. It said, “Obstreperous Joe Rauh says that Cohen and Corcoran did not
know it.” He said that “Cummings and I spent a morning with them discussing it.” Now I can’t
believe that Ben lied, and I can’t believe Warren did. I now have what I believe to be the
-17-
resolution, which is that they knew a packing was coming. But they didn’t know that Roosevelt
was going to use that absurd theory that the old men weren’t doing their work and that that may, I
wrote, “solve th?_question whether Cohen and Corcoran were lying in a ?emo they wrote to
Brandeis.”
Brandies was qajte put out with Cohen and Corcoran for having been in on this,
and they wrote him that they hadn’t been in on it.
Now, the only explanation I think _I’ve gotten, if th?re is an explanatiC?n, maybe
somebody didn’t cause it, if as I believe there must be an explanation, I think it is they didn’t
know the rationale – they knew the packing, and that’s my guess ..
At any rate, as B_ en puts in the memo to Brandies, “We reJ,id the thing; we had two
choice_ s: one was to go along with it, one was not to. We decided to go along with it.” But they
also changed it. .They changed the rationalization from the old men aren’t doing their work to
“we need these statutes for our country, and we need them now.”. And that word “now” you’ll
find – that sentence I just gave you is out. of Cohen and Corcoran, and they also produced that
wonderful sentence: “We say the purpose was to save the Constitution frqm the Court and the
Court from itself.” They sort of took it over.
So, when I say I had the best seat, I was one whq could walk; from the courthouse
to Cohen’s office where they were working. I tell the story in this North Carolina law review,
and it was a very interesting period. You come along with the Court reversing itself on the
minimum wage, _but that had nothing to do with the court-packing plan, because [Justice Owen]
Roberts had already voted in conference to uphold and had reversed himself so it had not to do
with the plan. But Jones & Laughlin is clearly – there’s no other explanation of [NLRB v.J Jones
-18-
& Laughlin Steel Corp., 301 U.S. 1 (1937)].
On Saturdays, I would ride to the Court with the Justice, then I’d go to the library .
.He’d go to the conference. He used the suite of rooms to put his coat on his desk and go into the
conference and then the minute I heard the bell that the conference was over we’d go down and
he’d let me ride home together [with him]. We rode home together after Jones & Laughlin, and
he said, “Mr. Rauh, you won’t believe this. Roberts and [Chief Justice] Hughes vote4 to
overrule, against /Carter v.J Carter Coal Co., [298 U.S. 238 (1936)], without even mentioning it
[the case].” Oh, he was flabbergasted. I mean, he was glad he’d won and then you get Social
Security, overruling a lot of stuff. In fact, what [Justice James McReynolds] said there, I guess,
in Jones & Laughlin was q?ite true. He said, “We have voted within the last 2 years a number of
times to throw things out as a whole, as unconstitutional, things ijke we’re now upholding.” I
mean, McReynolds was right in that sentence, but that way he wasn’t right on the result.
Anyway, Cardozo was so happy and then be did the Social Security case.
Then [Justice Willis] Van Devanter comes in one day in May. I answered the
doorbell and escorted him to the jus?ice’s office. Five minutes later, the justice comes out and
tells me that Van Devanter is sending a letter to the president resigning, and the fight was over.
We’d woi;i. But the tr?gedy, if you think about it, Cardozo would have been the spiritual, liberal
leaqer of that Court. He was just about to take it over, and he dies. He would have been the
liberal leader. Brandeis was about to get off. [Justice Harlan Fiske] Stone was an excellent
judge, but no leader as his period as Chief Justice demonstrated. Tiris was going to be the
Cardozo’s final shining light, and he got sick in December. The Court met in October, he got
sick in December before there were any cases that showed the new Court, and he never returned
-19-
to the bench The real tragedy – in the [North Carolina law review] piece, I ?? the point that I
had two bosses who blew being the leaders of the Court, Cardozo by health, and Frankfurter by
your case [Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940)].
Mr. Peck: Well, lets talk a little bit about Frankfurter. Obviously, as you said
already, he relied on you to just sort of show him the ropes.
Mr. Rauh: That’s work. They were not substantive cases in any way. But I
wasn’t there really long enough to have had any great effect. But, he was easy. I mean, easier to
write in or if you had made a suggestion, he would put it in, but he could put it in his own words
easier than you could. So there is more.
Oh, on Cardozo – he got sick in December, and he had a gold clause case. I don’t
know if you remember the gold clause fight. When we went off the gold [standard] , we violated
all of the? bonds that were redeemable in gold and all that. I wasn’t on the Court then. They
upheld going off the gold standard, but Stone – didn’t dissent but he said that their theories were
all wrong and he was the only one – the rest of them all voted you could go. I don’t remember
exactly how the vote was, but I wasn’t on the Court then.
But there was a gold standard case by a suit in the Court of Claims. It was very
difficult to reconcile with the decision in ’35 allowing them to go off the gold standard, and
Cardozo was assigned the opinion. And it was damn hard, and he was having a hell of a time,
but he finally got a draft out. Then he got sick and damned if Stone wasn’t so – I can’t think of
the right word to use – Stone was so determined to have his own views accepted and to show that
. . .
he had been right that he circulated either a concurring or dissenting opini_on _- I can’t remember
which, but it’s in the books.
-20-
And, I said to the doctor [Cardozo’s doctor], “Look doctor, I’ve got this problem
We’ve got to answer Stone. May I please discuss tbjs with th? Justice.” Under no circumstances
may you talk anything, any law to the Justice, especially something where bis best colleague on
the Court has criticized something. He says “hold on, you may not.”
Well, here’s a 24, 25-year-old – not knowing what in God’s name to do. Well, I
was just beside myself. I wanted to talk to the judge, and I didn’t think it would I thought it was
alright, but oh no, he was in bed with heart trouble, and the doctor said “Absolutely not,” so the
doctor had his way.
So, when Cardoz.o asked me about the case, I said, “The acquiesces have come in
fine, sir,” lying like a trooper. I wrote two sentences that I thought handled_ Stone as best as
.
.
could. Well, what do I do with them? Do I put them in the opinion without the Justice knowing?
Finally, ! said, “Look, there’s only one thing you can do. You got to go see the Chief Justice.”
The chief said he would receive me, so I went to his house on R Street. I told him exactly what
had happened. He looked at the – something’s wrong with my memory here, I’ll show you why –
or something we have never been clear on. He said “Go ahead and put it in. Put what you have
in.” I said, “Yes, sir” and left. So I was blown out of the room He looked like God, and I wasn’t
sure he wasn’t. So, I went out, I went back, I sent it back to _the printer with the two sentences in.
I think only Andy Kaufman at Harvard – he’s a professor at Harvard, is a
biographer, and he’s been working on Cardozo’s biography 30 years. We cannot find those two
sentences. So, something is wrong in my memory. I can’t find those two sentences. On the other
hand, I think he told me to put them in. I think that I did. We are jus! beside ourselves; I’m
beside myself to find out what is the right answer to that story. Andy has been looking with me,
-21-
and most of the book is written. It’s going to be a famous book, a.real study of a Justice – it’s
going to be a great book. I never knew a guy who did so much research as Andy has done on that
book. But we’ve never found the two sentences.
. . Now, is it that I wrote a whole paragraph and there’s one in there that fits in so
well? We’re not sure. So, that’s the story, but it’s not a story with an ending that I can be sure of
– unless Andy comes across it: It’s an interesting point whether the Supreme Court or the printer
. . . . . has the earlier copies – the earlier drafts [may not be available] because the Court gets so many
drafts as they change. Indeed, Brandeis was supposed to have sent down drafts that were
elongated all the time.· And those would be very valuable in history, but we haven’t any way yet
to know that, so maybe Andy will find out. He’s been a professor at Harvard ever since he was
Frankfurter’s law clerk.
Frankfurter called one morning when I was working in the government then and
said that “Joe you have to stop Mason from writing dear Ben Cardozo’s biography.”
And I said “Well, judge, he’s planning to come see me this afternoon. What will I
tell him?”
He said, “Tell him you can’t write.”
“Well, you’ve gotta come up with a better reason than that.”
He said, “Just tell him somebody else is writing it. II
I said, “Well, he’ll ask me who the somebody else is.”
He said, and he wa:s apparently sitting there with Andy Kaufman, his law clerk,
and I could hear him over the telephone. He said, “Andy, you’re a summa cum laude from
Harvard in history. You want to write Ben Cardozo’s autobiography?” And apparently, I did not
-22-
hear Andy’s answer, but Felix said, “Andy’s gonna write it.”
So that’s how the book started, and it’s been going on for years, but it’s going to be
– I mean – it is so brilliantly researched. The guy used such innovation to find things, and it’s a
story really of a judge way back in New York in the late 19th century. It’s so marvelous – the
book is, you’ll have a c_hance -:- I’ve ?ways laughed at Andy. I said, “I’m not going to be alive to
see this work of yours.”
He said, “Oh, Joe, I’ll get it out before you die.”
I said, “You’d better hurry.”
And so we’ve been jokmg about it, but I doubt if I’ll ever see it. But I’ve read the
manuscript and two-thirds of the chapters, and it’s wonderful. It’s t?e kmd of a book that scholars . . . . – . . . . . .
are going to say, “This is scholarship unprecedented.” But we’ve never found the two sentences
that I think are there somewhere.
Mr. Peck: I wonder whether since it’s ahnost six o’clock, probably we ought
to stop?
Mr. Rauh: I was going to ask you one thing: whether you feel its part of your
help to me-
[END OF TAPE 1]