ORALHISTORY OF ROBERT KOPP
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Judy Feigin, and the interviewee
is Robert Kopp. The interview took place at the home of Robert Kopp in Bethesda, Maryland,
on Tuesday, April 1, 2014. This is the fifth interview.
MS. FEIGIN: Good morning.
MR. KOPP: Good morning.
MS. FEIGIN: Before we continue with a discussion of some of the cases that you handled, we
talked a little bit last time about Judge Chambers in the Ninth Circuit, and there
was another story that you wanted to add to that.
MR. KOPP: Judge Chambers was for me a character from a different era. We had – this was
in the mid-1970s – a case where one of our attorneys was going out to argue in
the Ninth Circuit. He was an Orthodox Jew, which meant that he couldn’t travel
on Saturdays. He got a notice of oral argument, and the oral argument was set for
a Friday in the Ninth Circuit. I think it was San Francisco, and that meant that
after the argument, he would have to be traveling on the Sabbath.
MS. FEIGIN: We should say that Sabbath for a Jew begins after sundown on Friday.
MR. KOPP: Right. So the attorney contacted the Clerk’s office in the Ninth Circuit and asked
whether it was possible to move the argument date. Apparently the judge got
extremely upset and wrote a short little opinion, a paragraph or two, where he
denied the request and said some unpleasant things about a Mr. K – the attorney
involved. Like me, he had a last name that begins with K. It’s the type of thing
that today hardly any judge would think was at all within judicial ethics to do
something like that, but this was in the mid-1970s, and it was a different era, but I
think it was out of order even for that period.
MS. FEIGIN: Was that order published?
MR. KOPP: It was a written order, and I’m told that it was set to be published but that the
Attorney General requested that the Ninth Circuit not publish it.
MS. FEIGIN: That West not publish it?
MR. KOPP: That West not publish it. It would have been a huge embarrassment. If people
would have found out what was behind it, it would have become a very big deal,
I’m sure, at some point in time.
MS. FEIGIN: From what you’re saying, and I’ve read the order myself, is it fair to say that it
MR. KOPP: Some might construe it that way. It certainly, in modern eyes, would seem to be a
violation of basic respect for religious rights.
MS. FEIGIN: Back to your cases. Do you want to continue on with the next series of cases that
you think were significant to your career?
MR. KOPP: Yes. The cases that we handled in our office typically were cases that were of
broad significance, but sometimes we handled cases on behalf of individuals
where Congress had given them rights under the veterans’ statute, and the cases
by governmental standards were very small. But we regarded them as very
important cases because we were representing veterans, and Congress had
determined that the United States should be assuring that veterans get their
reemployment rights after they came back from military service.
MS. FEIGIN: We should say for historical context that the mid-1970s, which is when I think
you’re talking about, was a time when the whole issue of veterans was very
emotional. Vietnam was happening and there was a lot of anger against veterans
in general by the anti-war movement. Is that fair to say?
MR. KOPP: That’s correct. I believe that the actual statutes here were a reaction to
World War II and meant that an employer couldn’t deprive a veteran of seniority
rights just because he had been in military service. So in our office we had a good
number of these cases, and although the stakes were not typically large, they were
the type of case where, at least I certainly liked handling them, because we were
representing plaintiffs who had significant grievances against their employers in
terms of rights that Congress had said they were entitled to and the employers
weren’t giving them.
The case that I remember most was one of that series that didn’t work out
terribly well. It was an unreported case that was in the Tenth Circuit. I was
representing a veteran who was suing his employer to obtain some seniority
credits for the time that he had been in military service, but the dollar amount of
the suit could be measured in the hundreds of dollars. So it was a very tiny case,
certainly by government standards and even by private practice standards. I went
out to the Tenth Circuit to argue the case, and I felt that we had a very strong
argument, but when I got up to argue, I got a lecture by the presiding judge, Judge
Breitenstein, who basically said, “Don’t you ever come to this court with such a
tiny case. We are a very, very busy court, and the small sums that are at stake in
this case are really not the type of thing that we should be bothering with.” I tried
to say that there’s a statutory scheme and Congress had intended the United States
represent the veteran and the United States should do it even though there are
small amounts at stake, and he just wouldn’t listen to me. It was just a very
unpleasant argument, and we lost the case.
MS. FEIGIN: So he convinced another judge?
MR. KOPP: So he convinced another judge. They just didn’t get the point that this was a
scheme that Congress had intended.
On the other hand, I had some great times in terms of arguing some of
these veteran cases. The Tenth Circuit case that I just discussed was one that we
lost, but normally we did win these cases. One case in particular was a case in the
and it presented an issue that was fairly tricky. We had lost the
case in the District Court, and I was assigned the case to do an appeal
memorandum, recommending for or against appeal. I tried very hard to figure out
a theory on which to appeal the case because the veteran’s situation seemed quite
sympathetic, but I just couldn’t figure out how to do it. So I reluctantly
recommended against appeal. The Division accepted that recommendation and
forwarded it to the Solicitor General’s Office.
When the recommendation got to the Solicitor General’s Office, the
Solicitor General, as is their practice, assigned it to a staff attorney to prepare a
recommendation. I remember we had a conference with the SG attorney and his
supervisor, and we worked out a theory that sounded arguable as we discussed the
case. So the SG’s staff persuaded the Solicitor General, who I think was Erwin
Griswold at the time, to determine in favor of appeal, and appeal was authorized.
I then went forward and briefed the case, and as I briefed the case, I began to feel
more comfortable with our position, and I went down to the Third Circuit and
7 Hoffman v. Bethlehem Steel, 477 F.2d 860 (3d Cir., 1973).
argued the case, and we won.
I felt very good about that result and also about the procedural process at
the Department of Justice. Not only had the rights of a deserving veteran been
preserved, but the process by which we would do written recommendations to the
SG, and then the Solicitor General’s Office would look at the recommendations
and come up with their own recommendations, had worked. The process had
flushed out conflicting views and permitted discussion. It was a good example of
the process working, and through the contributions of everybody involved, the
theory that was worked out proved to be a successful theory. This is the way over
the years that the process worked, and I think it’s one of the great advantages that
the federal government has in terms of its litigation practice that determines
whether to appeal after a very studied and exhaustive process that often works out
theories that may not be self-evident when you first look at a case.
MS. FEIGIN: You mentioned the Solicitor General being Erwin Griswold. Can you give us a
sense of him and maybe other solicitors general during your tenure and how
changes in the solicitors general changed things or not.
MR. KOPP: Griswold was very interesting because I actually dealt with him at very different
stages in my career. The first time I dealt with him was as a student at Harvard
when I took his tax course. His style of teaching was mostly a lecture style.
There wasn’t that much give-and-take with students, and since there wasn’t giveand-take and he was talking about tax law which didn’t inherently interest me at
the time, I didn’t find it a terribly exciting course. I didn’t do very well in the
course either (laughter). So my first impression of Griswold was not terribly
positive. Then he became Solicitor General. He was a Johnson appointee and
was extended over into the Nixon administration for quite a while until eventually
I think after three or four years there Nixon decided that he had to get rid of him
because Griswold had a mind of his own.
I dealt with him a few times as a Solicitor General and he always seemed
to me to be very intelligent. I also saw a couple of his arguments in the Supreme
Court. His arguments were much more structured than most oral arguments are
today. I think the best oral advocates today invite questions and the Court is
active in addressing questions. When Griswold was arguing, he had this
structured style, and the Court at that time was not normally terribly active in
terms of its questioning. So his arguments, at least the few that I saw, bore some
resemblance to the lectures from him when he had been a professor. Now that
may be not true more generally because I saw only a few of his arguments, but
that was my impression of the arguments that I saw.
Then I had contacts with Griswold much later on because I was at several
judicial conferences where he attended. By that point he was retired and he had
this wonderful wife that came with him who was a very lovely person. At that
stage in his life, he was opening up. He was charming and witty. When I was a
student at law school, he was the kind of person I’d be scared of, but he turned out
to be a warm and friendly person, and a great person to sit next to at a dinner table
and listen to his fascinating discussions and stories. So I really in my lifetime got
three views of him, and I’m happy that the latest view was just terrifically positive
MS. FEIGIN: For anyone who wants to hear about the end of his time as Solicitor General, they
can look at Alan Rosenthal’s oral history. He refers to certain events that he
believes led to the end of Griswold’s tenure as Solicitor General.
MR. KOPP: I read Alan’s history on that. Griswold was somebody who had a lot of backbone,
and when he decided something was right and something was wrong, he stuck to
MS. FEIGIN: Do you think that is unusual in a Solicitor General?
MR. KOPP: No. I think that’s the way the system is supposed to be. The Solicitor General is
in charge essentially of the government’s litigation, and therefore normally has a
client that is a governmental agency and, ultimately, in a sense, the President.
There’s always the question of how much weight do you give to the views of your
client in terms of developing a position, and what do you do if you think your
client is wrong, and how wrong becomes so wrong that it’s just unethical and
inappropriate to do what the client wants you to do. I think different Solicitors
General drew lines in somewhat different fashion on that. I will probably never
know exactly whether people made some really wrong decisions, but at least my
impression was that the Solicitors General that I dealt with were very
conscientious and viewed as part of their job at some point that they had to say no
to their clients.
MS. FEIGIN: Do you remember an example when you thought a Solicitor General did not show
the strength that you think should be shown?
MR. KOPP: It’s hard to say. I do remember when Charles Fried was Solicitor General. He
was a Harvard Law professor whom I indirectly knew of at Harvard. At Harvard
he was regarded as a very distinguished professor with a very strong personality,
but as Solicitor General he conveyed the impression of being a person under a lot
of pressure. At least when I saw him he didn’t seem to be enjoying his job. I
began to suspect that in practice he had less independent authority than did his
predecessors. I don’t know for sure, since in that era I rarely saw a complete
picture of the decision-making.
MS. FEIGIN: What administration was that?
MR. KOPP: This was in the Reagan administration.
MS. FEIGIN: Can you think of one or more examples of any Solicitor General who really stood
up under pressure in the way that you admire?
MR. KOPP: As I said, we are learning things about Erwin Griswold where he said no to
President Nixon. But most of those types of incidents did not become known to
the career staff. The insulation of the career staff from the White House and also
pressures from the White House became more significant after Watergate as the
system adjusted to insulate us more. I mentioned earlier about how
David Kreeger when he was head of my office in World War II was sitting at his
desk and President Roosevelt called. That could never happen today for no other
reason than there are directives all over the place that say the White House
doesn’t deal directly with career people. You have to go through a process of
getting authorization and also the government has political appointees who are
there to be consulted by the White House. So there usually isn’t any need for
White House people to talk directly to the career staff. The career staff on the
whole is much better insulated from the political pressures, at least coming
directly from the White House, than they used to be when the government was
smaller and more informal.
MS. FEIGIN: So back to you and your life. What was going on in your life? It was the mid1970s. Where were you personally?
MR. KOPP: Personally, it was about the time when I started dating the woman who became
my wife. I think I mentioned earlier that my mother had gone to Wellesley, and
Wellesley has a very active alumni club in various cities, and the Washington
Wellesley Club was one of the most active. One year in the early 1960s my
mother hosted an annual Wellesley Club party which the club had each year for
both alumni and Wellesley students. My mother agreed to host the party at her
house, and the co-hostess was Barbara Kornblith who also had been to Wellesley
and who lived in nearby Maryland. So my mother and Barbara Kornblith were
hosting this party, and Barbara’s daughter, Nancy, who was I think a sophomore
at Wellesley at the time, came to the party. My mother introduced me to her, and
she struck me as a nice person, but I didn’t really pay much attention to her
because it was sort of a signal for me that if my mother was introducing me to
somebody, it was probably somebody I wouldn’t be that interested in (laughter).
However, I didn’t forget her, and I guess it was three or four years later, I started
dating her and one thing led to another, and in 1968 Nancy and I got engaged.
We got married in May of 1969 and we settled down to live in Montgomery
I don’t want to go off and talk much about her life because if I did it
would dominate this whole discussion, so I really just want to mention a few basic
things. When Nancy had been a student at Wellesley, she had participated in
Wellesley’s Washington summer program and had obtained through the program
an internship working for Representative Edith Green of Oregon. Edith Green’s
chief of staff was Wesley Barthelmes. After Nancy married me, she maintained
her interest in politics and got a job as a staffer working for the Montgomery
County Council where she was working for the whole County Council. One day
in 1974, she came home from work and told me that she had heard that there was
a vacancy in the state legislature for somebody from our district. It would be an
open seat in the election, and she said, “I’m probably not going to end up running,
but I’m starting to think maybe I should consider that and maybe I’ll go talk to
Wesley Barthelmes and see what he thinks of it, but it sounds like a long shot and
I probably won’t do it.” The way she said it, I didn’t think too much about it
because it certainly sounded to me like it was something that was a long shot and
she would decide not to do. But a few days later she came back and she said she
had had an interesting discussion with Barthelmes and he had encouraged her to
run. So she decided to do that and she ran and she won and that started her
legislative career. She ended up being in the Maryland House of Delegates for
27 years and served in a significant leadership position. She also had what I think
of as a very remarkable place in history, although I don’t know whether there are
records to prove this, but it’s my understanding that she was the first female
legislator in the country in 1976 to have had a baby while she was in office.
In 2002, there was a vacancy for the position of State Treasurer for the
State of Maryland. That’s a position in Maryland that is elected by the legislature,
and so she decided to put her hat in the ring for that position and the legislature
elected her as State Treasurer and she has been reelected since then four times,
and at least as of this discussion, which is in 2014, she has been there 12 straight
years. I’m not going to get more into her career if for no other reason than it will
probably be a lot more interesting than this oral history, so she can deal with that
MS. FEIGIN: It is an astonishing career. Let me just ask something about that career that
intersects with yours in a way that I think is significant. When she served in the
legislature, the legislature is in Annapolis, and I believe there was a period of time
that you actually commuted from Annapolis. Is that right?
MR. KOPP: That’s right. In those days, a lot of members of the legislature during the
legislative session, which was 90 days, would rent apartments in Annapolis. We
got a very good babysitter who actually ended up staying with us for more than
ten years. While Emily, our first child, was a baby, Nancy and I and the baby
moved to Annapolis and our babysitter came with us and also lived in Annapolis,
and things worked out very well. Eventually, after several years, life got too
complicated so I didn’t any longer commute from Annapolis. I stayed here at
home. But there were about three or four years, when Emily was young, that I
was basically operating out of Annapolis. At that time, they had bus service from
Annapolis to downtown Washington so it wasn’t as hard to commute as it is
MS. FEIGIN: I bring it up because there is a sense that that experience may have shaped some
of the decisions you made as head of the Appellate Section. In particular, I’m
talking about how supportive you were in many instances of alternative work
schedules and things that accommodated dual career families. I wonder if, it’s a
little tangential, but this is a good point to mention it, if you could discuss your
view on that and how you handled that within the office.
MR. KOPP: Some of my reactions to the role of women and family members in the
government workplace were just that I thought there should be room for everyone
to work. But much of my reaction was also just practical. We did a very good
job of attracting some really wonderful people to the office. The salary scale of
the government meant that it paid its lawyers a lot less compared to what those
same lawyers could get in private practice. So we had an office where just about
anybody in the office, if they found the workplace an unattractive place, could get
up and leave and double their salary and do even better in the long run. As
somebody who wanted to keep our attorneys for as long a time as we could, I
realized that part of my job was to do what we could do other than pay them more
money – which we couldn’t do – to keep them in the workplace so that they
would want to stay. They would find that it had attractive advantages for them
that they couldn’t get in private practice. Now, one of the advantages that we did
have is we did a lot of absolutely fascinating work, of the type that most private
law firms don’t regularly do, so we did have the advantage of really attractive and
significant work. But I also thought we had to do what could be done so that
working parents could feel comfortable working in a place like ours. Fortunately
this was at a time when people higher up in the Justice Department had already
started figuring this out and there were efforts at government-run daycare
MS. FEIGIN: What administration are we talking about when this happened?
MR. KOPP: I don’t remember whether this was under the Ford administration or the Reagan
administration. I think it happened before the Clinton administration. Just Us
Kids was the key daycare center. I know it became very important to people
working in the Justice Department and the only complaint I think people ever had
about it is it became too popular. At the time I left, that was a real problem, the
lack of adequate daycare downtown.
We would permit people to take leave when they had child issues. A lot
of our work, if you came in at 10:00 instead of 9:00, it didn’t matter, so people
could make some adjustments in their hours on a day-to-day basis if that was
necessary. So our office had more flexibility in terms of running the workplace
than some of the other offices in the Department.
MS. FEIGIN: I don’t know if you were the first, maybe you would know, but you were early on
in letting people do telecommuting.
MR. KOPP: Yes. Telecommuting was something that we permitted. We weren’t the first, but
we did permit telecommuting fairly early on compared to most offices. I
remember what was sort of a big development in terms of telecommunicating for
us was when there was a huge rainstorm, I think it was at some point in the 1990s.
The Main Justice building flooded and was declared unusable for about six
months, so we all had to move out. We were moved into quarters at the building
that the Justice Department was leasing at 11th and L, I think it was called the
L Street Building at the time. The only problem was there wasn’t enough room
for everybody. Only about half the office could be present at any one time. So
suddenly telecommuting became something that had to be done because there was
no place for people. By that point, the technology had gotten to a point where
telecommuting had become feasible. So for about six months, we were in that
situation, and once Main Justice was cleaned up and we moved back in,
telecommuting really had become a permanent part of our work environment.
MS. FEIGIN: I understand, and I believe this is under your tenure, that some people actually
were not even in D.C. People moved to points far away and were allowed to
remain part of the Section. Is that true?
MR. KOPP: I don’t think it’s quite fair to say it was my idea. It was the type of thing that
every now and then there’d be somebody who wanted or needed to leave the
office because maybe a spouse had a job elsewhere and it occurred to a couple of
them to ask for the ability to work from a different location and periodically come
down to Washington at their expense. Those requests, I actually had somewhat
mixed feelings about them, particularly the initial ones, but we raised that with
our administrative office and we got approval to go ahead and do that. At first we
did have a mixed experience with that type of situation. Not all of it was good.
But eventually it became something that there were often one or two people who
were doing that and that did seem to work out.
MS. FEIGIN: What changed? What made it go from not-so-good to okay?
MR. KOPP: I don’t know. I think the people who wanted to do that, it requires the person’s
willingness to be flexible, to come down to Washington when you need to, and I
think the first people who did that, it was a little, everyone was sort of figuring out
their way and what they had to do to make it work. As I say, at the beginning, it
didn’t actually work that well, but I think everybody began to understand the
flexibility that it took, particularly the flexibility of the person who was working
outside the office. Also the technology was improving.
When we first started, the technology, use of emails and things like that,
weren’t what they are today in terms of ease of use, and as the technology
improved, it became a lot easier to work offsite. I know after I left, the office
went through this period when they were in this long hiring freeze and there were
people in the office who, because of their own situation, just couldn’t stay in the
Washington area. They had to leave and I think by that time there had been
enough experience with people working offsite in the Division that they were able
to get authorization to have a number of people work offsite. I think that helped
the Division very much get through things like an extended hiring freeze. Again,
I should add that there were other components of the Division that probably in
terms of permitting people to work offsite were a step ahead of us. Federal
Programs and maybe the Office of Immigration Law, I think, experimented more
with it earlier than we did.
MS. FEIGIN: So back to your cases. There’s Nancy in a political position. Did that impact you
MR. KOPP: Actually that was sort of interesting because one of the areas that I had had cases
in involved the Hatch Act which is a statute which restricts government
employees from participating in political activities. At the time, it was
significantly more restrictive than the laws are today. Before Nancy indicated her
interest in politics, I had worked on some cases involving the Hatch Act and had
been defending the Hatch Act against constitutional challenges. One of our cases
went to the Supreme Court, and in a 1973 decision, the Supreme Court reaffirmed
the constitutionality of the Hatch Act.
So I had some experience in knowing
where the line was for what government employees could and could not do in
terms of political activity. I knew that when Nancy went into a political career
there were severe limits on what I could do. But I thought that was actually quite
fine. She could be the one in our family who was the politician and engaged in
politics, and I could be the spouse who was barred by law from participating in
politics, and I thought that was fine (laughter).
MS. FEIGIN: You didn’t have to do fundraisers.
MR. KOPP: I didn’t have to do fundraisers, and there were all sorts of things I could beg off
having to go to, so I thought it was a good resolution (laughter). And it made it
very easy to just draw a clear line down the middle in our family.
MS. FEIGIN: Moving along in time, are there any other cases that developed for you that you
think are worth discussing now?
MR. KOPP: Yes. I think in this particular period that we’re talking about, which is the early
1970s, it was a time when I began to notice that my assignments in the office
were becoming more and more of consequence. I mentioned the Hatch Act
litigation and the fact that we had been defending the Hatch Act in the Court of
Appeals and the Supreme Court, but there were other significant cases that just
seemed to come more frequently.
8 Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 538 (1973).
One day I had just returned from a period of leave, and I found a new
assignment on my desk. This was in the middle of the time period of the war in
Vietnam, and of course the war was a hugely divisive issue in the country. There
on my desk was this case called Commonwealth of Massachusetts v. Laird where
the Commonwealth of Massachusetts was seeking to get the Supreme Court to
decide that the war in Vietnam was unconstitutional because there hadn’t been the
proper declaration of war. When I saw this case, and again it was in the early
1970s, it just seemed to me about the most important case I had ever heard of. As
I said, the Commonwealth had done the unusual thing of bringing its suit in the
first instance in the Supreme Court. They did that by filing a motion to file a bill
of complaint because it was permissive whether the Court would permit them to
proceed. The case was assigned to the Civil Division and our office so we could
prepare the initial draft of what the Solicitor General would file in the Supreme
I was assigned the job of drafting our filing, and I got deeply into the
issues and quickly learned that there really were significant hurdles for
Massachusetts. One is that they were suing the United States on behalf of their
citizens, but the citizens of Massachusetts were also citizens of the United States,
and there was a doctrine called parens patriae which basically meant that you
couldn’t have both the State and the United States suing on behalf of its citizens at
the same time, that if citizens of the state were also citizens of the United States
and if the United States was involved, the United States was the dominant player
and the state couldn’t sue on behalf of its citizens. At least there were some
relatively old Supreme Court decisions that said so. So I developed the argument
based on parens patriae that Massachusetts could not sue on behalf of its citizens
in this context.
Then there also was a very significant political question argument
presented, that this was the type of issue that was inappropriate for the courts to
decide. Thus, we argued in the draft brief that I wrote that the suit couldn’t be
maintained because Massachusetts couldn’t bring the suit on behalf of its citizens
and because the case presented a political question that was beyond the capacity
of the courts. I put a lot of effort into that draft brief, and Bob Zener, my
reviewer, put a lot of effort into it, and when we sent that draft to the Solicitor
General’s Office, I felt it was the best legal document I had ever done.
When it got to the Solicitor General’s Office, it was assigned to a staff
attorney there who was Bradford Reynolds. I knew that he would be getting
heavily into editing the brief because it was obviously an extraordinarily
important brief, but I didn’t have that much experience in terms of working with
the Solicitor General’s Office on major Supreme Court cases so I didn’t have a
sense of how deeply they would get into the case and how freely they felt they
could just take a draft that came from the Division and rewrite the whole thing
from the very beginning. So when I saw Reynolds’s revision of the brief, which
had basically used our draft more as a thought piece (laughter) rather than as
something that you edit, I was shocked and at the time I’ll admit I was not totally
convinced that the changes were improvements. However, Solicitor General
Griswold approved the brief and filed it and the Supreme Court did what it asked,
which was that Massachusetts be denied leave to file the complaint. The vote was
6 to 3, and Justice Douglas wrote an opinion in dissent.9
As a footnote, I should note that Brad Reynolds, during the Reagan
administration, became the head of the Civil Rights Division and had a very
controversial tenure there. One of the interesting things about working with the
Solicitor General’s Office was that it was such a professionally run office in terms
of everybody there viewing themselves as government lawyers with a particular
job of looking at cases as litigation lawyers look at them. Like us in the Civil
Division, the Solicitor General’s staff normally wouldn’t be involved themselves
in making policy. Thus, when you work with people in the SG’s office, you don’t
necessarily have any idea how they would be in a policy position. From my
working with Reynolds, I knew that he was a very good lawyer. I wished he
hadn’t edited my work as much as he did (laughter), but I did know he was a very
good lawyer. But I had no idea that he would in a different position become such
a controversial figure. The Solicitor General’s Office, in my entire experience,
has been such a very professional office.
MS. FEIGIN: Someone reading this who doesn’t know who he is will be curious, so maybe we
should give a sense of what the controversy was about him when he went to the
Civil Rights Division.
MR. KOPP: When he went to Civil Rights in the Reagan administration, the Civil Rights
Division since the early 1960s had viewed its mission as the expansion of civil
rights, particularly for minorities, but had also begun to think of expanding civil
rights more generally. Today the Civil Rights Division deals with disability rights
9 Commonwealth of Massachusetts v. Laird, 400 U.S. 886 (1970).
and there’s been homosexual rights, so with time, historically, the mission of the
Civil Rights Division has been expanding. When Reynolds was head of Civil
Rights, I think he felt that in some areas the expansion had gone too far and he
began to adjust some of the positions of the Division in a way that was cutting
back on positions that the preceding administrations had taken, and this caused a
lot of turmoil, both in the Division and more broadly. There was a lot of
controversy connected with Reynolds’s changes. I was watching this from afar so
I can’t really give you specifics at this point, but I know that this generated an
awful lot of controversy, and in the Clinton years I think there was significant
undoing of what Reynolds had tried to do.
MS. FEIGIN: So back to you and the cases that you were doing. Now you’re in the thick of the
biggest political issue there is, the war. Were there other cases of similar stature
coming your way?
MR. KOPP: Not necessarily cases of similar stature. It’s interesting because Commonwealth
of Massachusetts v. Laird did not produce a Supreme Court opinion. As I said,
Douglas wrote a dissent but it actually didn’t produce a Supreme Court opinion,
so it’s one of those tremendously important cases that is largely lost to history
because there’s no opinion. But if the dissenters, the three justices that would
have voted to permit the complaint to proceed, had had two more votes, it would
have been one of the really major, major decisions in our history. None of the
other cases that I handled in this era I think were in this league, but some of them
were of considerable significance.
One case that I handled in the early 1970s was a case called
Ralph Nader v. FAA.
I don’t know if it was the first but it was one of the first
cases involving a challenge with respect to smoking on airlines. Nader’s theory
was that smoking on airlines was so dangerous to people’s health that it
constituted an emergency.
MS. FEIGIN: Second-hand smoke?
MR. KOPP: Yes, this is second-hand smoke. Because you’re in a confined area on a plane and
the air conditioning system, of course, isn’t adequate to sweep up all the smoke
that a smoker may generate, so Nader’s theory in this case was that smoking was
such a threat to health that it constituted an emergency and the FAA should issue
an immediate ban. The case was assigned to me and I defended the FAA’s
position that an emergency wasn’t presented and that the relief for Nader should
be denied, and the panel of the D.C. Circuit, which consisted of Judge Leventhal
and Judge Robinson and a visiting judge, didn’t have any problem with our
At the time I thought the case wasn’t that difficult a case for us because
Nader’s suit was based on the theory that there was an emergency and the
Agency’s position was that it had acted reasonably in not declaring an emergency,
and I thought that was a fairly easy position to defend. Of course today I think
Nader’s position was the opening gun in the litigation and administrative battles
with respect to smoking on airplanes. We now know that Nader was right in
terms of his evaluation of smoking, and eventually the government came around
to agree with him and in much more recent years, the government has been on the
side opposing tobacco companies in various types of litigation, and our office has
10 440 F.2d 292 (D.C. Cir. 1971).
been involved in litigation against the tobacco companies. So as you look at the
passage of time, it’s interesting to see how the policy side of some of the cases
that we were involved in totally shifts to the opposite side of the policy spectrum.
MS. FEIGIN: As happened with gay rights.
MR. KOPP: That’s right. There was also another case at the time, in the early 1970s, that I
didn’t think was that difficult a case, but looking back at it from the viewpoint of
history and the development of the law, it’s a case that I’m sure would be
enormously controversial today and probably might have a very different result in
the courts today. This was a case called Two v. U.S.,
11 and it was a case that we
had in the Ninth Circuit. There was a statute with respect to the military that
required the honorable discharge of female lieutenants who are not promoted
within thirteen years, and the statute did not apply to men. There were different
rules that applied to men. We filed a brief which argued that if the Navy
concluded that it needed disproportionately more male than female officers at the
next-higher rank, that that was the kind of military judgment that was
constitutionally within its discretion.
You can imagine what controversy would happen if that was the
government’s position today in the courts. However, our brief also presented the
less conceptually based argument that the plaintiff had not shown that the rule for
women in practice was more adverse to the plaintiff than the counterpart rule for
male officers, and since even accepting her position she hadn’t therefor been able
to show discrimination, that she should lose on that basis. That was the argument
11 Two v. U.S., 471 F.2d 287 (9th Cir. 1972).
that the Court of Appeals accepted. So once again another one of the areas where
in history you see that over the years things change significantly.
MS. FEIGIN: I think we have time for one more case, so pick among your many.
MR. KOPP: There’s another case that I handled in this era which was one of significance,
particularly when you think what might have happened if it had come out the
other way, a case called Holmes v. Laird12 in the D.C. Circuit. There were two
American soldiers who were stationed in Germany, and there were Status of
Forces agreements between the United States and Germany and there were
treaties which permitted German courts to try certain types of cases against
American servicemen, and this was that type of case. While the German
proceedings were going on, determining whether the two American soldiers
should be criminally convicted, they left Germany without authorization and
returned to the United States. The Army, in an effort to comply with the
United States’ obligations under treaty and the Status of Forces Agreement,
attempted to return the servicemen to Germany, which at the time was
West Germany. The soldiers brought an action in the District of Columbia to
enjoin their return, and when the case got to the Court of Appeals, I briefed and
argued the case. In an opinion that was written by Judge Spottswood Robinson,
the Court held that the Constitution does not bar the United States from
surrendering an American serviceman to a foreign country pursuant to
international agreements between the United States and that country, even if the
country does not provide all the criminal law safeguards that are afforded by the
U.S. Constitution. The court also ruled that American courts have no power to
12 Holmes v. Laird, 459 F.2d 1211 (D.C. Cir. 1972).
review the fairness of the German proceedings. And at least in that context, the
case is a very significant precedent.
MS. FEIGIN: It is.
Well thank you very much. An amazing array of cases, and next time I’m sure
there will be more. We have discussed some of the Solicitors General. Maybe
next time we can discuss some of the Assistant Attorneys General, because you
worked with a lot of people in that position. Thank you very much.
MR. KOPP: Thank you. It’s a real pleasure.