William H. Jeffress, Jr. Second Interview: August 9, 2011

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Oral History of William H. Jeffress, Jr.
Second Interview – August 9, 2011
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewee is William H. Jeffress, Jr. The
interviewer is Professor Angela J. Campbell. The interview took at Georgetown Law.
PROF. CAMPBELL: All right we’re recording and today is August 9, 2011. Bill, I
thought I would see if there is anything you wanted to add from our last session?
MR. JEFFRESS: No, I don’t think I want to add anything about that period of my life. If
I think of something, I’ll throw it in.
PROF. CAMPBELL: Did you want to talk about the Dionne Warwick incident?
MR. JEFFRESS: I was talking to you about when I was at W&L [Washington and
Lee]—this was 1964—Dionne Warwick was, of course, a very famous Motown singer. She
came to campus to perform at a campus-wide concert and then performed in a fraternity house
later. There was no hotel in Lexington where she could stay. She had to drive all the way to
Roanoke to find a place that would accept a black person to stay over. That was kind of an eyeopener to me. Shows how far things have changed in my lifetime.
PROF. CAMPBELL: I had one other question I wanted to ask you. We had talked a
little bit about how religion was an important part of your upbringing. I was wondering about
politics. You mentioned at one point you were a Republican, and I believe you’re a Democrat, is
that correct?
MR. JEFFRESS: I am. I’m a Democrat. My family was not terribly political. I had two
parents and three brothers, and we pretty much split in every election three to three. (laughs)
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When I was either in high school or perhaps in college, Virginia had one of the first
Republican governors they had ever had, Linwood Holton, who I thought was a really good
governor and a good face for the Republican Party. We also had Nelson Rockefeller. They were
progressives, I would say. There was a lot wrong with the Democratic Party in Virginia,
including massive resistance to school desegregation and so forth. So that’s why I became
interested in Republican candidates. I worked for Rockefeller actually in the summer of ’68.
PROF. CAMPBELL: You worked on his campaign?
MR. JEFFRESS: In the primary. But of course Nixon was nominated. I voted for the
Democrat and became a Democrat thereafter, and have always been.
PROF. CAMPBELL: Okay. So when we were talking last time, you had just arrived in
Washington with your wife and your daughter and a new baby and were starting a clerkship with
Judge Gesell. Tell me what it was like at that time.
MR. JEFFRESS: Well, that was rather an eventful period in American history, including
in Washington. We had the riots in ’68. Fourteenth Street, lower Pennsylvania Avenue, were
still block-after-block burnt out buildings. Demonstrations against the Vietnam War had become
violent in many cases. The Nixon administration chose to be highly confrontational against the
demonstrations. There was a lot going on in federal court at that time, with the government
seeking injunctions against demonstrators, challenges to various aspects of the war policy.
It was tense in Washington. While I was clerking for Judge Gesell on May Day 1971, the
anti-war groups announced a May Day event at which they would shut down the federal
government. They did things like drive old clunkers into tunnels in Washington and stopped
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them and disabled them. I was riding my bicycle to court at that time. I remember riding that
morning—I lived in Burleith [a Washington, DC neighborhood]—and rode down past the
Memorial Bridge which was lined with National Guard troops. As I went through Georgetown,
there was a strong odor of tear gas. But I got down to the mall and got to work that day. It was a
very tense time. There was a lot going on.
PROF. CAMPBELL: You were working in the federal courthouse here on Constitution
[Avenue]?
MR. JEFFRESS: Right.
PROF. CAMPBELL: When you first started clerking, were you his only clerk or did he
have another clerk?
MR. JEFFRESS: Judge Gesell always had only one law clerk.
PROF. CAMPBELL: How would you describe your relationship with Judge Gesell?
MR. JEFFRESS: It was very, very close. He became my very good friend and mentor
throughout my legal career until he died. If I had anything I wanted to talk about, I’d go down to
see Judge Gesell, and he was very happy to talk to me.
But it was a special experience because he had only one clerk. The clerk did
everything—sat in the court when he was trying cases. He would come to work at 7:00 in the
morning and write out in longhand some opinion he was working on. He would hand it to Doris
[Brown, his secretary] who would type it up and hand it to me. I would have to work in some
law and cites and so forth for the opinion.
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When we came off the bench after a session in court, he would discuss the lawyers’
performance and the witnesses and other things that had happened in court. It was a unique
learning experience. I can’t think of anything that contributed more to my upbringing as a trial
lawyer than that year with Judge Gesell.
PROF. CAMPBELL: Learning in terms of what was an effective presentation at trial or
effective techniques at trial?
MR. JEFFRESS: That and I’ve got to admit one other aspect of it. It was a confidence
builder. When you come out of law school you don’t have much basis to know whether you’ll
be an effective trial lawyer, or whether you’ll like it. Sitting in court for that year watching
lawyers, including lawyers with great reputations come in and out of court, I said no question in
my mind, I’m as good as half these people anyway. I will not embarrass myself. (laughter) And
I watched some very fine trial lawyers do things that have taught me a lot.
PROF. CAMPBELL: Anything stand out in your mind that you want to talk about?
MR. JEFFRESS: I saw some good lawyers that year. One that sticks out is Ken Mundy,
who I’m sure you know of. Ken was trying a murder case—I think it was murder, might have
been attempted murder—but it took place at an after-hours place over in Shaw, which was then a
slum, on the second floor of a townhouse on P Street. His client had left the poker game in a
dispute and had come back to the poker game according to the witnesses and shot one of the
players. So Ken represented the defendant. One of the government witnesses, who was a guy at
the poker game, had testified that after the shooting he had left and gone back to his house. He
then came back and the police had already arrived when he returned. There wasn’t much
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discovery in those days, and I don’t know that Ken really knew anything about it, but he smelled
a rat. (Jeffress chuckles) About ten minutes into the cross-examination, the witness was clearly
very nervous about Ken’s questions about going back to his house. The judge excused the jury
and asked him, “Look, do you want to consult a lawyer?” He said “Yeah.” The judge found
somebody to come in and advise him and he then took the Fifth on any further questions. And I
think Ken knew that he didn’t leave the scene for no reason. He went back to his house to stash
his gun. He had a gun there, went back to hide the gun, and then came back.
That whole performance by Ken, which I thought was brilliant, made me excited about
being a criminal defense lawyer. I knew this is what I’d like to do. Ken just listened and used
his experience to know something is wrong here and to not let it go, keep probing and probing.
And it won the case for him. I think it was a mistrial, and his client later pled to some lesser
offense as I recall. But I thought that was brilliant.
There were some very fine prosecutors in Judge Gesell’s court at the time. Jim Sharp is
one that I remember tried an awful lot of cases in his court. After the case was over, often the
judge would have the prosecutor or public defender, or for that matter private lawyer if he
wanted to, come back to chambers and he would give him a critique of his performance. I would
sit there and listen, and that was a learning experience too.
PROF. CAMPBELL: I’ll bet. So what percentage of the cases that he heard were
criminal cases? Was that a large part of the docket?
MR. JEFFRESS: That was sort of a watershed year—1970. What had happened, they
had just reformed what used to be the Court of General Sessions, which was now the Superior
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Court. Jurisdiction over many cases that had been exclusively in the District Court was now in
the Superior Court. That had happened I think a year or two earlier.
But in 1970 the District Court went to the individual calendar system, which Judge Gesell
was very much a proponent of. So instead of having a bunch of cases over there being heard by
whatever judge was available on the date, every case was individually assigned to a judge. The
result of that was that Judge Gesell got, I think, 320 civil cases, many of which had been
languishing in the court without any attention from a judge for years and years.
We also had a large criminal docket, but it was the civil cases that went to the individual
calendar system and something had to be done. He devised a plan. He said I want to notice
every one of these cases for a status conference and bring these lawyers in. I think by instinct he
knew that if he did that, a third of them would settle or be dismissed. So he assigned me to do
that.
Doris Brown—by the way, who is very active in the D.C. Circuit Historical Society and
was his secretary at the time, also a close friend of mine—she had been thrown from a horse and
suffered a fractured skull just about the time I started my clerkship. So I had to function as a
secretary and a law clerk. I always told Doris, her job was a lot harder than mine. (both
chuckle)
But we scheduled those cases. I scheduled four of them every half-hour for I think two
solid weeks. I didn’t want to schedule all of them for nine in the morning and make people sit
around. So we did four every half-hour. Well it wound up, three of them settled or dismissed
before they ever came in, and the other one would take ten minutes, so we had a lot of down
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time. If I had to do it over again, I would have scheduled 20 of them an hour. But he cleaned
out his docket faster than any judge on the bench, I believe, after the individual assignment
system.
We tried some civil cases. He had an interesting case by the beneficiaries of the United
Mine Workers’ Pension Fund against Tony Boyle and the Union, which put the money of the
Pension Fund in what was then called I believe National Bank of Washington, which was owned
by the Union. Put it in there at no interest, so there was a breach of fiduciary suit against Tony
Boyle and other trustees of the Pension Fund. That was an interesting case. It was tried to him
as a judge. He wrote a lengthy opinion after hearing the evidence. Harry Huge represented the
plaintiffs, and the defendants were represented by Paul Connolly, Edward Bennett Williams’
partner. So it was a well-tried case and an interesting case. [Blankenship v. Boyle, 329 F. Supp.
1089 (D.D.C. 1971)]
We had a number of other civil trials, but the criminal trials—he would probably try a
case a week, or at least a case every two weeks. Some of those cases took a day or two to try.
He was on the bench a lot—a lot more than I think is required today with the caseload that they
have.
PROF. CAMPBELL: So what are some of the most memorable cases from your year of
clerking?
MR. JEFFRESS: Well, two of them had to do with the Vietnam War. One was a case
called Hentoff v. Ichord. Congressman Ichord was head of what used to be the House UnAmerican Activities Committee and by this time was called the House Internal Security
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Committee. They were upset that college campuses were inviting people to speak who were
against the war. They were prepared to issue a report which would list the speakers that they
disapproved of and the campuses that had invited them to speak, and which would question the
patriotism of the colleges.
And somebody—Nat Hentoff was I believe a journalist—brought a suit for a TRO and
injunction against the issuance of this report, saying it violated the First Amendment and
exceeded Congress’ power. Judge Gesell found that he could not enjoin a congressman who was
engaged in an official act under the speech or debate clause. But he found he could enjoin the
public printer, who was simply a functionary. He could enjoin him from printing the report and
that is what he did.
There is a published opinion on that. [Hentoff v. Ichord, 318 F.Supp. 1175 (1970)]. I
think the administration went nuts—well, Congress went nuts. Congressman Ichord went nuts.
It was one of those instances where Congress and the administration were finding, not just in that
instance but others, that the courts were standing up to them. They couldn’t try to suppress
dissent without getting pushback from the courts. So that was one.
The other one was by far the most famous case that Judge Gesell had when I was there,
which was the Pentagon Papers case. You recall that Daniel Ellsberg had pirated a copy of the
Pentagon Papers and given it to the New York Times. The Times published excerpts. The
administration sought a TRO, which was granted by Murray Gurfein in New York. [United
States v. New York Times Co., 328 F. Supp. 324 (S.D.N.Y. 1971)] But then, the Washington
Post published the next day some excerpts, and the government came in to seek to enjoin the
Washington Post as well.
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It was 4:30 I think on a Friday afternoon when they came in. Under the random
assignment, the case was assigned to Judge Gesell. The bar exam was the following week, and I
had intended to leave work Friday and take off the next week and study Saturday, Sunday,
Monday, and Tuesday. The bar exam was Wednesday, Thursday and Friday. But the case came
in, was assigned to Judge Gesell, I said the heck with the bar exam. We worked furiously that
night, Saturday, Sunday, all day Monday. Judge Gesell denied the TRO. And it’s funny. When
it was assigned to Judge Gesell, I think the government was disappointed probably because he
was an activist judge. But the truth of the matter is, he was by no means a dove. He was a hawk
on the war. He was a strong supporter of the military. We used to have lots of conversations
about the war, and I disagreed with him.
But that didn’t affect him in this case. He had a strong view of the First Amendment and
felt that the government was well beyond its powers in seeking to suppress dissent. At the same
time, had he thought, or had he found, that there was something that was about to be published
that revealed troop movements or endangered the military in the field, he probably would have
had a different view. But there was nothing convincing in the TRO papers that said that, and so
he denied the TRO.
The Court of Appeals, that night, reversed him and entered its own TRO. It said he
should proceed to a preliminary injunction hearing, which he set for Monday. We had the parties
in over the weekend. A lot of disputes, including the government insisting that the reporters and
management of the Post could not be present for the hearing. Judge Gesell said, “That’s not
going to happen in my courtroom,” and they relented. He felt that having Katharine Graham and
Chalmers Roberts and some of the people at the Post who were working on the story in the
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courtroom, would be a help; that if the evidence showed that there was something that would
really damage the national interest, that the Post would act responsibly and not publish it.
Interesting idea. I’m not sure I agreed with it at the time.
But anyway, the case went forward with the Post reporters and Katharine Graham in the
courtroom. The judge told them: “Look, we’ve got a short time to consider this matter. I want
the government to tell me the three most damaging things that are in these papers—things that
they contend, if published, would be like shouting fire in a movie theater,” or something like
that.
He told them pick three. They put on a witness whose name I now forget, but all this is
now public. He started testifying that the papers revealed that a Canadian diplomat had behind
the scenes assisted the government with intelligence and provided support. They contended the
people of Canada didn’t know about this, the world didn’t know, and if something like this was
published it would impair the country’s ability to get cooperation from our allies.
I was sitting there in the courtroom, and I could see Chalmers Roberts flipping through
books and getting another book and flipping it through and handing it to his counsel. It turned
out on cross-examination, this whole story had already been published in a book, memoirs, I
believe, of this diplomat. (chuckles) Serious embarrassment to the government.
The other two instances were not really convincing at all. The judge felt that there is
damage to a country when it gets a reputation that it can’t keep secrets, I mean there is
diplomatic damage. But there is no imminent threat to military, to the conduct of the war, to
troops. So he denied the preliminary injunction at the end of the day Monday. The government
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asked him to stay that, and he said “No, the court of appeals is right upstairs. If there’s going to
be any stay, you’ll have to go to them.”
The Court of Appeals did stay his ruling. Then, I think two days later, or maybe just a
day later, the Court of Appeals affirmed Judge Gesell. [United States v. Washington Post Co.,
446 F.2d 1327 (D.C. Cir. 1971)] It said no preliminary injunction should issue. But the Second
Circuit had affirmed Judge Gurfein that an injunction should issue. [United States v. New York
Times Co., 444 F.2d 544 (2d Cir. 1971)] So naturally, it was in the Supreme Court within
twenty-four hours. [New York Times Co. v. United States, 403 U.S. 713 (1971)] The Court
decided, Judge Gesell liked to say, “They decided that I was the only judge that got it right from
the beginning, and I never enjoined them for ten minutes.” (both laugh)
So that was a fascinating case. It showed a lot of the strengths that Judge Gesell had as a
judge, just in getting to the bottom of the case and wanting to know what the merits were, and to
be able to get to it in a 48-hour time frame. It was quite a performance.
PROF. CAMPBELL: So how did you feel when the Supreme Court upheld his ruling?
MR. JEFFRESS: I felt good about it. It was something we had worked hard on.
PROF. CAMPBELL: Did you attend the argument at the Supreme Court?
MR. JEFFRESS: I didn’t. I was taking the bar exam. Even though I hadn’t been able to
study and hadn’t taken a bar review course, I decided well, I paid my admission fee and may as
well just go take it and see what happens. It turns out I passed anyway, so I never wasted any
time on a bar review course. (both laugh)
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So those were probably the three most notable cases, but we had everything from
environmental cases involving complicated issues of standing; we had libel cases; we had run-ofthe-mill Social Security cases; and contract cases. A complicated case went to a jury. A
building was built and something went wrong. The owner is suing the builder; the builder is
suing the architect and the structural engineer. It was one of these complex civil cases that took
a lot of time to figure out. What are the jury instructions on the claim? How do you write a
verdict form? And that’s just invaluable. There is no way anybody learns that in law school.
And to be able to learn it from a master, Judge Gesell, again, has made me a much more
knowledgeable trial lawyer.
PROF. CAMPBELL: So how many of the trials were bench trials versus jury trials?
MR. JEFFRESS: Civil, about half and half. Criminal, almost all of them jury trials.
PROF. CAMPBELL: Did you have any impressions about the jury system and how well
that works or doesn’t work?
MR. JEFFRESS: I thought it worked well. And Judge Gesell did too. He said there
have been times when he disagreed with a jury, but never times when he didn’t see some reason
why a juror could legitimately conclude as they did. And I had great faith in the jury system,
gave me great faith in the jury system. I felt that they got to the bottom of things pretty well.
I was surprised at the skepticism that jurors showed toward witnesses, not particularly
police officers, but including police officers and FBI agents. Looking back on it, that’s healthy.
I just helped an associate in my firm try an attempted murder case out in Frederick County,
Maryland. They had police officers testify, and it was obvious to me that they were saying
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things to make themselves look better, not because it happened. I think the jury system provides
a dose of skepticism about testimony of both sides. That’s healthy. That is what a jury trial is all
about.
PROF. CAMPBELL: So were there any other Watergate-related cases when you were
with Judge Gesell?
MR. JEFFRESS: Well remember, Watergate didn’t happen until ’72. So I wasn’t there.
He, of course, did wind up having the Ehrlichman case, the Ellsberg break-in case. He had a
number of Watergate-related cases. Wound up having also Iran-Contra. He had the Oliver
North case, but I wasn’t his law clerk. I would stop by chambers and talk to him many times
about it. But by the time I left, the Watergate break-in had not occurred.
PROF. CAMPBELL: Right. Okay. In the Pentagon Papers case, who represented the
government?
MR. JEFFRESS: The Justice Department. They were assisted by the State Department.
There was a lawyer named Fred Buzhardt, who I think was Assistant General Counsel at the
Defense Department. So it was a number of different agencies. Joe Hannon, who later became a
superior court judge, was head of the Civil Division of the U.S. Attorney’s Office. He actually
came to file the complaint. But they were all government lawyers. I’m trying to think who
represented the Post. Rogers and Wells? It’s all public now, but I can’t remember the names of
the lawyers. But they did a good job in forty-eight hours.
There was an incident I remember at Judge Gesell’s home. The courthouse cooling
system was being renovated and so we couldn’t go to the courthouse. So he had all the lawyers
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at his home on Sunday morning. He had asked that the government show him portions of the
papers that they felt were most highly sensitive. So they brought an envelope which was triple
sealed and top secret, SCI, and all this sort of thing. He said, “Just leave it here and I’ll read it.
It will be ready tomorrow.” “ Well, we can’t leave that here, you can’t keep that, that’s top
secret” and so forth. He said, “Well, I’m going to put it under the sofa. That’s the safest place in
Washington for one of these things.” And they backed off and let him keep it. (both chuckle) I
never got to read it. I didn’t have a security clearance.
PROF. CAMPBELL: Okay, that was going to be my next question. That’s a great story.
So your next experience was clerking for Justice Potter Stewart. How did you get that clerkship?
MR. JEFFRESS: Well, I had been editor-in-chief of the Yale Law Journal. Potter
Stewart normally picked at least one, and many times two, of his clerks from Yale. I don’t know
how frankly he had—I don’t think I even applied. No, I think I had applied. I think I applied to
him and Justice White and Justice Marshall. But anyway, he called up Judge Gesell to ask about
me, and Judge Gesell gave a—. This was like September, so I hadn’t been there long. But he
asked me over to interview the next day. I went over and interviewed and he offered me the job
on the spot, and I took it. While I was interviewing with him, Justice White had called Judge
Gesell and he said, well I think he’s already taken. (both chuckle)
PROF. CAMPBELL: Now who were your co-clerks?
MR. JEFFRESS: Ben Heineman, who was also from Yale, who I knew very well. Went
on to become general counsel of General Electric. A very good person. Richard Parker went on
to become a professor of criminal law at Harvard Law School. At that time, we only had three,
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although there were people who clerked for senior justices who would come help out from time
to time.
PROF. CAMPBELL: How was the responsibility divided up within chambers? What
was your role as a law clerk?
MR. JEFFRESS: At that time, Justice Stewart had his law clerks review every single cert
petition.
PROF. CAMPBELL: There was no pool then?
MR. JEFFRESS: No, there was no pool. Or if there was a pool, it was only like three
justices who participated in it. But Justice Stewart had his law clerks review every single
petition. There were at that time maybe 3,000 or 4,000 petitions a year. I thought it was a really
good system. You got to the point where, you know, two-thirds of them are frivolous. All
Justice Stewart expected was a memo saying criminal case, search issue, fact question, deny.
That would be enough for him, okay. And you got to know what he wanted and what he thought
was interesting or certworthy. Maybe I would spend twenty minutes on a cert petition like that.
There would be others that I might spend a whole day on, that really were complex. And
also, when you had six to nine chambers, each one doing an independent review, there were
petitions—handwritten petitions, IFP [in forma pauperis] petitions—that some clerk got
interested in and started reading the record and said, “you know, this guy’s got a point.” There
were a handful, maybe four to six cases, that either got granted or got summarily reversed just
based on the cert petition, where the court below had failed to read the record or made some
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finding which was directly contradicted by the record, or something like that. So I thought that
was a really healthy system.
That’s the cert petitions. And then, when the argument calendar came out— they would
have an argument calendar come out for two weeks, ten to twelve cases each week for two weeks
running. They heard a lot more cases back then than they hear today. When the argument
calendar came out, Richard and Ben and I would hold a draft to see who took responsibility for
each case. What we would do is draw straws, and one of us would get first choice, one get
second choice, and one would get third choice. And then the guy that had third choice would get
fourth and so on. You selected the cases that you wanted. By the time you got to the end you
had Port of Portland v. United States [408 U.S. 811 (1972)], which was a direct appeal to the
Supreme Court from some decision about allocation of rail lines in the port of Portland. All of
us felt, gosh I hope Justice Stewart doesn’t get assigned this opinion. (laughter) We would have
to write it. We weren’t sure how it would come out, but it was clear it was going to be nine to
nothing because nobody was going to write a concurring or dissenting opinion.
Clerking at the Supreme Court has a lot of things that are educational and interesting.
One part of it is reading through all those cert petitions. By the time you leave, you have a good
idea of what the cutting issues are in every area of the law, whether it’s patent law, antitrust,
criminal law, jurisdiction, and what have you. It’s invaluable. I’m sure you could go do that
yourself, but I probably wouldn’t have the self-discipline to do it if I hadn’t had that job.
PROF. CAMPBELL: So what about Justice Stewart? What was your relationship like
with him?
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MR. JEFFRESS: It was excellent. He was a very fine lawyer. He said one time to me,
“Look, I don’t want to be known for having any particular ideology. I want it to be known that I
was a first-class lawyer.” And he was, he really was. He wrote some of his own opinions. I
remember he had one opinion, I won’t mention the case, but there was an opinion on a criminal
procedure issue where he knew all his law clerks disagreed with his position. He said I’m going
to write this myself and he did. It was an excellent opinion.
When his law clerks wrote opinions, he often heavily edited them. He was a good
craftsman and a very smart guy and a fundamentally nice person. I remember he had three law
clerks a year. He was on the bench from 1958, and here I was in 1972. He would have reunions
of law clerks that were well-attended. But he would forbid his clerks and secretaries who
organized the event from preparing name tags. He was very proud of the fact that he not only
remembered all his law clerks, he remembered their spouses, called them all by name,
remembered their children and what they were doing. He was a very, very nice person and good
person to work for.
PROF. CAMPBELL: Did you ever have any interactions with him outside the office
setting?
MR. JEFFRESS. I would stop in every now and then just to say hi. We talked about
some issues. We had the annual law clerks reunion. I would see him there. I had interaction
with Justice Powell. I had known Justice Powell from Richmond where I grew up. He grew up
in Richmond, and he was a trustee of Washington and Lee where I went to college. So I knew
him, and he was appointed to the Court my year, I think January, maybe February, that he took
his seat.
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He was a friend. I had a lot of interaction with Justice Powell in later years. He got me
to represent his bailiff, who had a little problem with a drunken driving charge; two or three
other cases. I represented a seamstress at the Supreme Court in a claim that we settled. I used to
stop by and talk to him as well. He was also a very, very nice man, an excellent justice I
thought.
One thing about that year at the Supreme Court that made it particularly interesting was
over the summer, both Justice Black and Justice Harlan died. In replacing Justice Fortas a year
earlier, President Nixon set out to find nominees who were Republicans, who were under sixty,
and there just weren’t that many of them, and who were judges—a Republican judge under sixty
years old. And the first person he landed on was the Fourth Circuit—
PROF. CAMPBELL: Carswell?
MR. JEFFRESS: No, Carswell was second. I’ll come to him. Haynsworth, Clement
Haynsworth. Clement Haynsworth, for reasons that I can’t fully recall, proved unacceptable. It
was obvious that he was not going to be confirmed in the Senate. And I think Nixon was
really—people thought when the Haynsworth nomination had to be withdrawn, that he just out
of pique nominated Harrold Carswell, who was about the least qualified person ever nominated
for the Supreme Court. But other people said no, it wasn’t really pique. If you make your
qualifications a Republican judge under 60, there were only a handful of them. Carswell was
one. That, of course, went down in flames very quickly. Finally he found Harry Blackmun.
So in 1971, [President Nixon] appointed two very well-qualified people, [William]
Rehnquist and Lewis Powell. Rehnquist did not meet his criteria of being a judge, and Powell
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didn’t meet his criteria of being under sixty. But at least he found some very well-qualified
people. They passed the Senate in no time and they took office in, I think it was January.
What had happened was that in the fall, the Court had heard argument in the abortion
case [Roe v. Wade, 410 U.S. 113 (1973)] to a seven-person court. Probably Chief Justice Burger
thought this case will be unanimous, not going to be a big problem, no reason to wait until we
have nine justices. But it turned out, they took a vote in chambers, and that’s not the way it was
at all. And when they got to the end of the term, everybody, I think, and Justice Stewart agreed
with this, felt that this is a case where if it’s going to be close, much less invalidate the abortion
laws, it ought to be a nine-person court. So they re-listed it for argument the next year, and it
was decided the following year. So that was one big case.
PROF. CAMPBELL: So you were there the first time it was argued but not the second
time?
MR. JEFFRESS: Right. Wasn’t decided my term. It was decided the next term. The
death penalty cases—when I became a law clerk, the Supreme Court had stayed all death
sentences since I believe 1967 or ’68, for a case that was decided having to do with equal
protection. They decided the death penalty was not invalid as a denial of equal protection. At
the time they decided that, there were probably three hundred or more people scheduled to die on
Death Row.
But there was another cert petition—the first one was Aikens v. California—that raised
the due process Eighth Amendment cruel and unusual punishment issue. They decided to grant
cert on that and continue the stay of the executions. So when you had a backlog of almost four
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hundred people scheduled to be slaughtered if the Court upholds the death penalty, that puts
some pressure on the Court to knock it down. And sure enough, they did.
That case, Aikens v. California, [406 U.S. 813 (1972)] was dismissed because I think
Aiken either died or had his sentence commuted, I forget which. And Furman v. Georgia [408
U.S. 238 (1972)] became the lead case. The Court waited and argued that case when they had
nine members. It was argued right after Rehnquist and Powell came, and the Court decided, as
you know, to invalidate all death sentences as imposed, but not to find that it was per se cruel
and unusual. So, that avoided the execution of all these people on Death Row. I thought at the
time, wrongly, that that would put an end to the death penalty. I didn’t think it had the popular
support that it turns out it did have. To my surprise, most legislatures went on to pass revised
statutes providing standards, and those survived muster.
PROF. CAMPBELL: Now did Justice Stewart write the opinion or a concurrence in that
case?
MR. JEFFRESS: No, there was one short per curiam for the Court, and then each
justice—two of them may have joined together in some opinions—but as I recall, there were at
least five or six opinions, separate opinions, and maybe nine. No, there wasn’t nine; nine was
Pentagon Papers. I forget how many opinions, but there were a lot of separate opinions and one
short per curiam.
PROF. CAMPBELL: Okay. He wrote a concurrence. So there were a number of cases
that were re-argued. Do you remember any others?
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MR. JEFFRESS: The abortion case is the only one I remember being re-argued.
Because others they had held if they knew they were controversial. They didn’t’ argue them
until they had a full court.
PROF. CAMPBELL: Are there any other cases that were particularly memorable from
that term that you worked on?
MR. JEFFRESS: There was a case in which Justice Stewart wrote a—did it wind up
being a dissenting opinion or a concurring opinion [it was a dissenting opinion]—but it was the
reporter’s privilege case, Branzburg v. Hayes, [408 U.S. 665 (1972)]. I think Caldwell was the
name of the reporter. But anyway, Justice Stewart was a very strong supporter of the First
Amendment. He used to say, if it was one of these right-to-know type of cases, he would
uniformly be in favor of the government. He said the First Amendment is not a Freedom of
Information Act. But when faced with a question of freedom of speech, he would uniformly
come down on the side of the freedom. And the reporter’s privilege was sort of a combination of
those. He wrote a pretty well-received, reasoned separate opinion in Branzburg v. Hayes. That
was an interesting case decided that term.
PROF. CAMPBELL: Would he have written his own dissent or would that be something
that—
MR. JEFFRESS: Ben Heineman worked with him, but they worked together on it. If
there was an opinion over his name, it definitely represented his thinking and not his law clerks.
PROF. CAMPBELL: Did he encourage you to present your own views and then debate
them?
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MR. JEFFRESS: Oh absolutely. We would in advance of every argument—I told you
how the law clerks would divide up the cases—and we would all meet with the Justice and talk
about each case. He would ask questions and we would give opinions. They were great
discussions because there was nothing you couldn’t say to him. I mean, even if you knew he
disagreed, I would tell him that I disagreed.
PROF. CAMPBELL: Did you write bench memos for the cases that were going to be
argued?
MR. JEFFRESS: He didn’t want bench memos. He wanted you to study the briefs and
everything and take notes, and he wanted to sit down and talk about it. And we would spend at
least a full afternoon, sometimes a full day, before the argument session, talking about the cases.
Then after the arguments sometimes, we would talk about them again before conference.
PROF. CAMPBELL: When you say the full session, you’re talking about the twoweek—
MR. JEFFRESS: Two-week arguments.
PROF. CAMPBELL: So you would talk about all of them at the beginning or you would
talk about it the day before the case would be argued?
MR. JEFFRESS: I know we would talk about more than two or three cases at a time. So
I think we did it before. We might have done it twice. There were two weeks of arguments. We
might have done it for the first week’s cases and then again for the second week’s cases. Ben or
Richard might remember better than me. All I know is, when we would go back and talk to him,
there would be a number of cases that we would talk about.
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PROF. CAMPBELL: And did he tend to know how he was leaning before the argument
or did he wait to see—?
MR. JEFFRESS: In at least half to two-thirds of the cases. He had been there a long
time; he had seen similar cases; he had taken positions on issues in the law. When you had a
case like that, you would look at how he had ruled, and you would try to see whether what he
had said or positions he had taken applied or might not apply to the facts of this particular case.
He was a guy who believed in—what’s the word—consistency, I guess is the best word,
in the court. Even though he had dissented in most of the Warren-era’s criminal procedure cases,
he was not about to overrule Miranda [v. Arizona, 348 U.S. 436 (1966)] or overrule Wade or any
of these cases that the Warren Court had decided because he felt like the Court should not reflect
the election returns, and changes of personnel should not lead to tremendous changes in the law
of the Supreme Court. So, even though he dissented in the original cases, he would uniformly
apply those cases when later issues came up to sustain the precedent.
PROF. CAMPBELL: I took a quick look at the term. Sierra Club v. Morton, [405 U.S.
727 (1972)] were you working on that?
MR. JEFFRESS: I did. I worked on that opinion actually. That was a standing issue;
lots of controversy among the law clerks. Justice Stewart felt, look, you shouldn’t be able to sit
in front of the television, see something you don’t like, and file a law suit to change it. Law suits
are about something more concrete than that. And Sierra Club, if they had chosen to assert
personal interests of their members, I think he would have said they do have standing.
Somebody that’s visited the Tuolumne Valley, somebody that regularly fishes or camps there, or
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even hikes there, who would say that this is interfering with my enjoyment of the environment.
He would have said, I’m confident, that there is standing. But the Sierra Club, for one reason or
another, just decided no, we’re going to put this thing to rest. The Sierra Club, as an
organization, has standing just because these are issues that we believe in, lobby for, promote
and so forth. He said, “I’m sorry but that’s not standing.” So, that’s why the case came out as it
did. And I thought his opinion was correct. It did not curtail those law suits; it just meant that
people had to come in with real plaintiffs.
PROF. CAMPBELL: Would you go to hear the oral arguments?
MR. JEFFRESS: Yes. Well, many times. Not every single one. But if I had a case
assigned to me, I normally would go.
PROF. CAMPBELL: And then they would have the conference at the end of the two
weeks?
MR. JEFFRESS: At the end of the two weeks.
PROF. CAMPBELL: And then that’s when the assignments would be made as to—
MR. JEFFRESS: As to who was going to write the opinion.
PROF. CAMPBELL: Would he talk to you about how the vote came out so that—
MR. JEFFRESS: Oh yeah.
PROF. CAMPBELL: And did you try to write opinions that you thought might get a
majority or to get as many votes as possible? I’m just wondering how that dynamic shaped the
writing of the opinions.
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MR. JEFFRESS: Very much. You know, some Justices didn’t do it as much. Justice
Douglas was famous; he could care less what anybody else thought. But Justice Stewart very
much wanted to build a consensus. Sometimes, if he got an opinion that was written by some
other Justice that he thought was just poor, or that said some things that he couldn’t say, he
would circulate a concurrence. And if the Justice modified the opinion, he would withdraw the
concurrence.
He was a consensus builder. Putting aside possibly Justice Douglas, I think he got along
with all the justices; certainly Brennan and White; and became fast friends with Rehnquist and
Powell, when they came on the Court. So there was a lot of consensus building. Sometimes
rather than write a concurrence or something, he just sent a note. Other justices would send
notes. Get a note from Justice Brennan—“I read your very fine opinion.”—it was always very
fine opinion (laughter)—“draft and such and such. I wonder if you would consider—.” It was
all very polite and professional. There was a lot of consensus building that went on.
Chief Justice Burger was not a great consensus builder. When I came to the Court, he
and Blackmun were known as the “Minnesota Twins.” Blackmun always voted with Chief
Justice Burger. That changed with the abortion case. Even though Burger concurred with
Blackmun’s opinion in that case, he didn’t really believe it. I think from that time on, there was
a real split between those two. But Chief Justice Burger, I didn’t think was the kind of consensus
builder that Warren was or, for that matter, that Rehnquist was later.
There were other people on the Court who were. Brennan was. I remember Brennan
talked to the law clerks one time. He said when he was first on the Court, if there was a decision
that he strongly disagreed with, he would write a dissent that talked about how awful the
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majority opinion was. He said he learned after a few years that all he was doing was making it
worse. Lower court judges read the opinion; they see he is casting the majority opinion in the
worst light; and that it has a sweeping ill effect. He said he then began to write his dissents
pointing out the narrowness of the holding. (chuckles). Instead of talking in apocalyptic terms
about how bad it was, he would just talk about how narrow it was.
PROF. CAMPBELL: I’ve seen some of those opinions; that’s interesting. Now were the
obscenity cases argued when you were there? Miller [v. California, 413 U.S. 15 (1973)] and
those cases?
MR. JEFFRESS: No, Miller had already been decided—no, I’m sorry, Redrup had been
decided. Miller was not agued my term. There was a case—I mean, this is just a ludicrous
period of Supreme Court history—but there was a case called Redrup v. New York, [386 U.S.
767 (1967)]. Redrup v. New York said that in any obscenity case, the Supreme Court would
review de novo whether the materials were obscene under the First Amendment. Crazy case.
What that led to is, at least the law clerks, and quite often the justices, would go down to this
room in the basement of the Supreme Court and look at these dirty movies in order to make their
judgment under Redrup. And our cert memo would be—I would say: obscenity question, I’ve
looked at the movie, doesn’t fit your standards, Redrup. And what the Court would do is per
curiam, it’s reversed and remanded under Redrup v. New York.
And some of the Justices went. Stewart went occasionally, if we would tell him it’s a
close question. I remember one time Justice Powell, who is just the world’s most elegant
gentleman, came down. I looked over at him, and I thought he was turning purple. (laughter) I
think that was the last one he thought of going to. (laughter) But that was the state of obscenity
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law at that time. I think Miller— it wasn’t decided my term—I think it may have been decided
the next term. Finally they got rid of Redrup, and I forget exactly when.
PROF. CAMPBELL: Any memorable films that you saw?
MR. JEFFRESS: Oh Lord. Put them out of my mind.
PROF. CAMPBELL: I wanted to go back. We were talking about how the Justices
would send notes to each other and try to build consensus. Did the clerks also play a role in that?
Were you like sort-of messengers?
MR. JEFFRESS: Yeah. Paul Gewirtz was Justice Marshall’s clerk and he found this IFP
[in forma pauperis] petition, and he said there is something wrong with this case. He would go
talk to other law clerks. The case wound up, I think being summarily reversed. And the law
clerks did. We would argue vociferously about issues and opinions. I don’t know that any of it
ever had any effect on any Justice’s vote, but it certainly was an exciting time for the law clerks.
PROF. CAMPBELL: There is one case I have some personal curiosity about. I think it
was argued your term, and you may or may not remember it. The Midwest Video case involving
the FCC and cable television rules?
MR. JEFFRESS: I don’t remember it.
AC: Okay.
MR. JEFFRESS: I remember Curt Flood [Flood v. Kuhn, 407 U.S. 258 (1972)] was
argued my term. It was sort of a funny case, but just upheld baseball’s antitrust exemption.
PROF. CAMPBELL: How much time do you have?
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MR. JEFFRESS: Maybe another fifteen minutes.
PROF. CAMPBELL: I know you have other things to do. So is there anything else that
you want to mention about your clerkship, or either of your clerkships for that matter?
MR. JEFFRESS: No, I think nothing else at the moment. I will tell you that being a
Supreme Court law clerk has a lot of advantages. One of them is what I mentioned—by the time
you finish you know what all the cutting issues are in every area of the law. And another is it
gives you a feeling of confidence. You don’t mind, you’re not terrified to go up and argue a
case. I will mention, I’m getting ahead of myself I’m sure, but it wasn’t that long after I left the
Court, 1977 or ’78, that I argued my first and only case in the United States Supreme Court.
PROF. CAMPBELL: Oh, that was your only one?
MR. JEFFRESS: That was on behalf of Richard Nixon. Edward Bennett Williams was
on the other side. I had a great time. I thoroughly enjoyed it. But I remember I had all my
family in the audience. Since I was the petitioner, I gave the first argument. I started out with
something about the facts and procedural history. I was about a minute into my argument when
Justice Stewart interrupted and asked a question. It was a question that I knew the answer to, and
more important, it was a question that he knew I knew the answer to. It was just to break the ice,
you know. (chuckles)
PROF. CAMPBELL: Well, that was nice.
MR. JEFFRESS: And then, sometime during the argument, Justice White, who I knew
pretty well when I was at the Court— he was famous in oral argument for sort of grilling
counsel—and he with a smile was asking me some questions. At one point he leaned back and
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said, “I don’t think you’ve answered the question counsel.” And Justice Stewart leaned forward
and said, “Yes he has.” (laughter) I thought: Let’s take a poll. Who did this fella clerk for. But
it was an exciting time. Like I say, I felt perfectly comfortable there. I’m sure had I not clerked
at the Supreme Court, the opposite would have been true. I was what, thirty-two years old,
something like that.
PROF. CAMPBELL: Well do you want to talk more about that case now or would you
like to talk about when you started at law firm at Miller and Cassidy?
MR. JEFFRESS: Actually maybe we ought to break. Then I’ll start with the Miller
Cassidy era. There are a lot of things I want to say about the firm and about the practice back in
those days. So maybe we’ll do that next time.
PROF. CAMPBELL: Okay great, that’s fabulous. [END RECORDING]