ERWIN N. GRISWOLD, ESQUIRE
Oral History Project
The Historical Society of the District of Columbia Circuit
Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Erwin N. Griswold, Esquire
Interview conducted by:
Victoria L. Radd, Esquire
January 13, 1992
TABLE OF CONTENTS
Preface ……………………………………………………… I
Oral History Agreements
Erwin N. Griswold, Esq. ……………………………………… ii
Victoria L. Radd, Esq. ……………………………………… iii
Erwin N. Griswold, Esq. ……………………………………… v
Victoria L. Radd, Esq. ……………………………………… vi
Oral History Transcript of Interview on January 13, 1992 …………………… 1
Index ……………………………………………………… A1
The following pages record an interview conducted on the date indicated. The interview
was electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 1997 Historical Society of the District of Columbia Circuit.
All rights reserved.
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges who sat on the U.S. Courts of the
District of Columbia Circuit, and judges’ spouses, lawyers and court staff who played
important roles in the history of the Circuit. The Project began in 1991. Most interviews
were conducted by volunteers who are members of the Bar of the District of Columbia.
Copies of the transcripts of these interviews, a copy of the transcript on 3.5″ diskette (in
WordPerfect format), and additional documents as available – some of which may have
been prepared in conjunction with the oral history – are housed in the Judges’ Library in
the United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C.
Inquiries may be made of the Circuit Librarian as to whether the transcript and diskette
are available at other locations.
Such original audio tapes of the interviews as exist as well as the original 3.5″ diskettes of
the transcripts are in the custody of the Circuit Executive of the U. S. Courts for the
District of Columbia Circuit.
INTERVIEW OF ERWIN N. GRISWOLD
This interview was conducted on January 13, 1992 at the
law offices of Jones, Day, Reavis & Pogue of Washington, D.C.
Q: Could you tell us what your full name is, sir?
A: Well, the full name is Erwin Nathaniel Griswold. My
full signature is Erwin N. Griswold. I’m called
various other things, but most frequently “The Dean.”
Q: That’s certainly the way I learned who you were. Could
you tell us the date and place of your birth?
A: I was born in East Cleveland, Ohio on July 14, 1904, at
least so I have been told by my parents.
Q: And, I gather you consider yourself a third-generation
American. Where did your ancestors come from?
A: I’m a tenth-generation American through the Griswold
line and probably eighth through the Erwin line, but my
mother’s mother was born in England in the Lake Country
and brought here at the age of eight in 1856, and
through her I am third-generation, and we still have
cousins in England with whom we keep some contact.
Q: What were your parents’ names?
A: My father was James Harlen Griswold, and my mother was
Hope Erwin Griswold.
Q: And what was your father’s line of business?
A: He was a lawyer. He and I have been tacking members of
the Bar of the State of Ohio for 91 years. He became a
member of the Ohio Bar in 1901, and lived until 1960.
I became a member of the Ohio Bar in 1929 and still am.
Q: How would you describe your family’s politics?
A: That’s a little hard to say — liberal Republican,
which in the early part of this century meant
Q: What did it mean?
A: Well, Theodore Roosevelt, the Progressive Party, was
basically Republican, and I always regarded the
Republicans as those who believed in progress but not
too fast. And my family and with me, the chief
obstacle to being a Democrat was the relation with the
solid South and with restrictions on voting throughout
the South, white primaries, and also a number of
characters who held important public office in the
South like Senator Bilbo and various others. We all
preferred to be associated with people like Charles
Evans Hughes — the first candidate I really knew
anything about. I’ve stayed a liberal Republican all
my life. There are only two of us left — the other
one is Senator Mathias who is now a partner of mine.
Q: Given your birthdate, do you recall what the impact of
World War I was on your family and your community?
A: Oh, yes, very much. I was in high school during World
War I. We were in uniform and were drilled every day.
I was the oldest son, so my family had nobody who was
actually in service. My mother’s family were Quakers
and were very much concerned about war and sought to do
everything possible to encourage peace. Many of our
neighbors had sons in the war. I remember one who was
killed on the 9th of November 1918, and I remember when
the news came and how terribly upset my mother was, my
father too, but mother — I happened to overhear her
talking on the telephone with the person who gave her
the news. But that was over in 1918 when I was 14
Q: Did any members of your family take a role in
protesting the war, given their Quaker background?
A: I didn’t have any close relatives who — well, I had a
cousin, my father’s older brother, and the older
brother had a son, Francis Griswold, who lived in
Youngstown and who was in the Navy, but I think only
from early 1918 on, and he did not see any — he was in
the Navy, but he did not get into any combat or any
Q: What was your family’s religion?
A: That’s hard to define. My father was brought up in the
Episcopal Church. I think to him it was the Church of
England. The family had come from England to
Connecticut in 1639 and had apparently always had a
connection with the Church of England which became the
Episcopal Church. My mother was a Quaker. She
strongly disbelieved in form and ceremony, and I was
never a party to any discussion. All I know is that by
the time I came along, they were members of the
Presbyterian Church. One reason could well have been
that it was just down the street from our house and
very convenient. Actually, my father was quite active
in the church. He was an elder and became a trustee of
Wooster College, which was a Presbyterian-operated
college in Ohio. They spelled it W-0-0-S-T-E-R.
Q: Different from the city.
A: And so I became a member of the Presbyterian Church. I
was baptized there. I remember my mother thought that
she ought to tell her father that I had been baptized.
The Quakers didn’t believe in baptism, and it was
reported to me that her father’s response was, “Well,
it won’t hurt him any.”
Q: And I gather you lived in Ohio for your entire
A: I expected to spend my life in Ohio.
Q: And this was in Cleveland?
A: I was in Ohio through high school and then went to
college for four years in Ohio at Oberlin College, then
went to Harvard Law School, and for practical purposes
never really lived in Ohio after 1925. My family still
did, and I came there for vacations and things like
that. But I went to a boys’ camp in New Hampshire, and
then I traveled in Europe extensively in other summers.
After I graduated from law school, I came back to
Cleveland and enrolled myself in the Cuyahoga County
(that’s C-U-Y-A-H-0-G-A) County Common Pleas Court, but
I only stayed three months because I got an offer to
join the staff of the Solicitor General’s Office, which
I thought would be good experience. I took it for two
years and stayed five, then I had an offer to join the
faculty of the Harvard Law School, and I took that for
one year to see if I would be any good at it and would
like it, and stayed 33 years. Then I was asked to be
Solicitor General and was six years in that office, and
then I was invited to be a partner in Jones, Day in
1973, and that would be 19 years next June 30.
Q: Well, let’s go back over each of them a little more
slowly. How was it that you ended up going to Oberlin
A: Both my father and my mother had gone to Oberlin. It
was 35 miles away. It was not very expensive, and
there was some talk about my going to Yale because many
Griswolds had gone to Yale. But I think I was a little
frightened of the east and the clubs, and we were a
very abstemious family. I didn’t want to get into
situations where there was heavy drinking, in
Prohibition times, which would have been the situation
at Yale. It just seemed more comfortable to go to
Oberlin where I got a very good education.
Q: What did you major in?
A: Political science and mathematics both.
Q: That’s an interesting combination. You were interested
A: Yes, I was a first-class follower in mathematics.
Q: What does that mean?
A: I could understand what other people had done, and I
wouldn’t get lost in class and in dealing with problems
in the field which had been taught, but I came to the
conclusion that I was no innovator. To be a great
mathematician, or to be an excellent mathematician, you
had to be able to come up with new solutions and new
answers, and I didn’t feel that I was first-class in
Q: Have you found that mathematical training or frame of
mind has been helpful in the law?
A: I’m pretty sure it has, or at any rate, the qualities
of mind which made me tolerably good in mathematics
were very useful in legal work — careful use of words,
precise thinking. But I don’t want to have this
printed in the newspaper, but I have a very fine wife,
but I think one of the points of friction occasionally
is that she doesn’t use words very clearly, frequently
does not use words very precisely. I try to pin her
down, and she doesn’t like to be pinned down, and the
net result is I don’t quite understand what she means
by what she says. I think people who have had legal
training are more careful in their use of words.
Q: That’s probably true of mathematical training.
A: She went to Stanford and graduated with distinction, so
she isn’t dumb by any means. I suppose — take a poet.
Most poets don’t use words very precisely.
Q: And that’s what makes their poetry good, the lack of
A: They paint pictures . . .
Q: Impressions . . .
A: So, there are various ways of doing it. I just happen
to like the precise way.
Q: How was it that you decided to go to law school?
A: I had the catalogue, of both the Harvard Astronomy
Department and the Harvard Law School on my desk
throughout my senior year. I had taken quite a bit of
physics at Oberlin and I became quite fascinated with
what is now called astrophysics, and I thought that I
might do that. On the other hand, my father was a
lawyer, and I liked the political science courses I
had. Although most of them were descriptive, American
government, European government, things like that,
although I did take one course in international law in
college where we used a casebook, and I found it quite
fascinating to study the facts of an actual case and
how they were used in decisions. I think the real
answer is that I concluded that I would probably be
able to make a living better at the law than in
astrophysics, or to put it another way, that I doubted
that I would be a really top astrophysicist for the
same reason I said about mathematics. As a matter of
fact, a man named Donald Menzel was appointed to the
Harvard faculty on the same day I was, effective
September 1, 1934 in physics, and he became a very
distinguished astrophysicist. He was, among other
things, the man who developed a system for putting a
black screen in a telescope to block out the sun’s
disk, so that you could in effect observe an eclipse
when there wasn’t an eclipse. We were very good
friends with the Menzels, and I often used to look at
him and wonder if I could have been as good as he was
and was quite satisfied that I could not. So I went to
law school. My father had graduated from Western
Reserve Law School in Cleveland, had wanted to go to
Harvard and couldn’t afford it, and he always made it
plain to me that if I wanted to go to Harvard he could
and would finance it. At that time, there was no
problem about getting in. There were no — the only
admissions requirement was that you had gone to an
approved college of which there were 250, and that you
have a check for the first half-year’s tuition and that
you sign the book.
Q: Really? There were no other admission requirements?
A: No. Except the graduation from the approved college.
Q: What year did you graduate from Harvard Law School?
Q: And you did extraordinarily well at the law school, I
A: Better than I expected to. I went with considerable
trepidation. I had done well in college and I was
fearful that I would let the old school down, that I
wouldn’t be able to compete against all these Harvard,
Yale and Princeton boys of whom there were 75 or 100 in
the first year class. But I did all right and
actually, I was second in the class my first year. The
first in the class was Nathan Jacobs who later became a
judge of the Supreme Court of New Jersey and who had
not gone to Harvard, Yale or Princeton either. I think
he went to Rutgers. And we became very good friends,
and he had a very distinguished career.
Q: And you both served on Law Review.
A: Oh, yes.
Q: What was the Law Review like back then?
A: Well, I have here the December issue — excuse me, the
January issue of the Harvard Law Review. They always
send me an advance copy because I hold them to getting
it out by the 10th of the month, and the Harvard Law
Review is the only one which always appears more or
less on time. This is the present membership of the
board of the Harvard Law Review, which I think is about
Q: It looks about that amount.
A: We had 32 or 33 in my time, and I can’t figure out
either (a) where they put all 85, or (b) what they do.
The whole law, the whole legal system, the whole
writing about law has become so vastly more complicated
than it was when I was on the Law Review that it must
be quite overwhelming in trying to deal with things.
They write very long articles about very narrow points
Q: True. With a lot of footnotes.
A: — with 300 footnotes to the article. I used to try to
regard 30 to 35 pages as the proper length for an
article and not too many footnotes, but those times
Q: Would you say that the articles were more philosophical
A: No. I think that, and this is one thing I complain
about, a very high proportion of the articles today,
not only in Harvard but elsewhere, are one professor
talking to three others, and the number of articles
which are of any use to practitioners has been much
less than it was in my day. Now, in addition to
getting this prompt copy, I always write them a letter
about each issue, and the two articles in this issue
are just wonderful from my point. They are too long
but the first one is about mootness. Well, mootness is
a question I’ve had constantly coming up and, you know,
could never figure out whether it’s moot or not. The
full title is: “Deconstitutionalizing Justiciability.”
Now those are two big words, the example of mootness.
And the argument is that this mootness ought to be
taken out of the “case or controversy” constitutional
place, and should be treated as a prudential matter and
not made constitutional law. Anybody who has mootness
is going to have a wonderful review of cases, previous
articles, and so on. It would be an excellent place
for an associate to start work on a draft of a brief in
a case involving mootness. Now the other one again had
too ponderous a title: “Discrete and Relational
Criminal Representation: The Changing vision of the
Right to Counsel.” But the question of representing
Joe Doakes or representing six defendants in an
antitrust conspiracy where they all had different roles
and the possibility of conflict within is considerable.
Yet on the other hand, if you insist on having every
one have his own counsel, you make the cost enormous,
you make the confusion intense, you add much to the
time involved, and if some way could be found out
. . . . Well, Brandeis used to call it “counsel for
the situation,” and that is talked about, and I think
that is a very practical consequence, and yet both of
these articles are scholarly, high-level and . . . .
Q: Both are a good example of what a Law Review article
A: Yes. So, I’m going to compliment those two articles in
very high terms.
Q: I’m sure they will look forward to getting your letter
on that. Do you think that during your law school
years you came to develop a legal philosophy or, at the
very least, an ideological orientation.
A: I don’t know whether it changed very much. I would say
that my philosophical orientation has long been, in
college, law school, and practice, some variety of
pragmatism. I don’t know all the philosophical
terminology. Pragmatism is undoubtedly divided into 34
subcategories, but I have a very practical outlook: can
we find some way to make this work? For example, I
think one of my complaints about the Supreme Court is
that it frequently decides cases in such a way that
extensive litigation is required as a result. I
remember a tax case where Justice Cardozo said, “Life
in all its fullness must provide the answer to the
riddle.” Well, if you’re going to have to put life in
all its fullness in every case that’s in this area . .
. . Now that particular case involved the congregation
of a church making a substantial payment to its
minister when he retired, whether that’s income or not.
It seems to me it would have been very helpful for the
Court to have said to you that it is or isn’t . . . .
Q: The answer is no.
A: Recognizing that this is on the fringes where it would
make some difference. But there was decided, almost at
the same time, a case of an automobile dealer and a man
referred a purchaser to the dealer and the dealer sold
a super-fancy Cadillac to him, and the dealer then sent
a check for $1,000.00 for the referral. The question
was whether that was income or not. Now, there had
been no agreement. It could well have been that the
lawyer, I think it was a lawyer who referred it, hoped
that the dealer would have some law business and he
might think of it and bring him in. But I don’t see
how you can really apply life in all its fullness to
that particular one. I have talked frequently with
Justice Brennan about this, because I think Brennan is
one of those who doesn’t give any particular weight to
the question whether this decision will work as a
practical matter in the law offices where the
overwhelming proportion of the decisions are actually
Q: Has he given you a response to that concern?
A: No, no, he just smiles. I know what he has in mind.
You have to be careful. You make it too specific, you
lose a vote. If you lose a vote maybe you lose a
majority, and all that. There’s this journal of
Supreme Court history I was reading over there the
other night, and it dealt with Justice Harlan and
Justice Brennan and there was a case where there were
three votes for certiorari and Brennan did not vote for
certiorari. If he had been a fourth vote they would
have granted it, and some of Harlan’s law clerks — the
article is about Harlan, that’s right — some of
Harlan’s law clerks had a luncheon that Brennan had for
all the law clerks. They asked, “Why didn’t you vote
for certiorari on that case?” And Brennan sat back in
his chair and smiled and said, “Where would I get the
Q: It only takes four to grant cert. It takes five to
. . . .
A: He then would have established a precedent against what
he wanted, and that’s the kind of thing that the
justices have to keep in mind that the outsiders don’t
always naturally think about, which is never recorded
in anything public.
Q: Right. We only see the cases as they are granted or
Q: You described two cases there, one in particular is a
tax case. Is that something you remember from your
initial days in the SG’s office after graduating from
A: No. That case was decided while I was at Harvard
Q: Let me move along in your history here. I gather
straight out of law school you went back to Cleveland?
A: I spent a fourth year at Harvard and got an S.J.D.
degree during which I was what we would now call a law
clerk to Professor Austin W. Scott who was working then
on the Restatement of Trusts which was his background
work for his treatise on trusts. That was a very
valuable year for me. The system was that I sat right
in his office while he dictated to Miss Lee and if I
thought he’d made an egregious blunder, I would speak
up or as frequently happened, he would say, what do you
think of that. And I’d say, well, it would be better
if you use this word or if you added another sentence.
A: Frequently he would send me out to the library to write
a memorandum on a point, or ask me to bring a list of
every case on this — which is not always an easy task
because sometimes you can find it in the digest, but
sometimes a case will really involve this point and for
some reason or other will never get in the digest or
treatises and things like that. I tried very hard not
only to make it complete, but to pick out passages in
the opinions which were pertinent, and that was very
excellent training for starting out as a bottom
associate in the Solicitor General’s office.
Q: And so it was only then that you went to Cleveland for,
what, a month?
A: Then I went to Cleveland. I went to Europe again in
the summer of 1929 and went to Cleveland in September,
and thought I was starting my career practicing law in
Cleveland. But in late October, I received a letter
from the Solicitor General, which, incidentally, was
the result of Austin Scott, Professor Scott. At that
time, Charles Evans Hughes, Jr., was the Solicitor
General, and he had been a student in law school when
Scott started to teach. He wrote to Scott and said do
you have in mind any promising recent graduate who
might be a good person to come to the Solicitor
General’s Office. Apparently Scott wrote a very strong
letter for me, and Hughes wrote me and asked me if I
would be interested. I thought I wouldn’t. I was
about to turn it down because I pictured the Solicitor
General’s office as a great bureaucracy, with a hundred
lawyers and I’d be just off here writing memorandums.
My father said, well you better go there and talk to
them. And I went down and found there were only six
lawyers altogether at the Solicitor General’s Office,
that I would be immediately working with the senior,
who was actually handling the case, that I would be
basically responsible for the briefs as soon as I
showed I could, and so I said I’d take it for two years
for experience. The experience got better and better,
until it got worse under the first year in the New Deal
when a nice, kindly, friendly, honest, decent man was
made Solicitor General who was utterly unqualified for
the job, by the name of J. Crawford Biggs of North
Carolina. I, still under 30, was in effect in charge
of the office and I thought that was more
responsibility than I ought to be taking. Dean Pound
called me on the telephone and asked me if I’d be
interested in coming to the Harvard Law School faculty.
I had never thought of it but I went, stayed 33 years.
Q: Let me ask you something, during those momentous years
in the midst of the Depression, you left and went into
the SG’s Office —
A: I had my salary cut by 10 percent when Roosevelt came
in, as everybody else in government employ, except
Q: And I gather that during your time there you, in fact,
argued some cases in the D.C. Circuit, some tax cases,
as I recall.
A: Yes, I argued in the D.C. Circuit.
Q: Was it usual to do arguments in the lower courts?
A: For a junior it was. What I did was — I wanted to get
some experience arguing cases. At that time, they
enforced the three-year rule for admission to the Bar
of the Supreme Court quite rigidly, so I could only
hope to argue in lower courts. I went around to the
various assistant attorneys general and said, “Look,
you may have somebody get sick sometime or you may have
somebody who gets assigned two cases on the same day in
different courts, and if you were willing to call on me
in such a case even on short notice, I would be glad to
take it.” And the result was that I got quite a
sizeable number of cases to argue in the Courts of
Appeals, some of which were in D.C.
Q: Do you have any recollections of cases in the D.C.
A: Not very much.
Q: It was a long time ago.
A: It was. I argued a case in 63 F.2d 822, Kaiwiki Sugar
Company v. Commissioner. I don’t remember what it was
about except it was a tax case. I argued Commissioner
v. South Penn Oil Company, 68 F.2d 420, and from that
point on I had a steady list of Supreme Court cases. I
argued two in the D.C. Court of Appeals in May 1934
which were New York, Chicago and St. Louis Railroad
Company v. Commissioner, 71 F.2d 956 and B.F. Shaw
Printing Company v. Commissioner, 72 F.2d 187. And
then I don’t think I was ever there again until I
argued the Pentagon Papers case in 1971, on very short
notice. Those were all tax cases. There is one other
case which I did not argue which I think might interest
you. The case is George Otis Smith v. United States, 286 U.S. 6 (1932). George Otis Smith of Pennsylvania
was nominated by President Hoover to be a member of the
Federal Trade Commission. He was confirmed by the
Senate in December and the President was notified of
the confirmation, and the President issued a commission
and Smith was sworn in. Congress had a recess from
late December to January. When they came back in
January, somebody filed a motion to reconsider in the
Senate and that was voted up, and the motion to
reconsider included a request to the President to
return the notice of confirmation. The President sent
a polite message saying that he had received the notice
from the Senate, he had acted on it, that Smith had
been appointed and that the President declined to
return the notice. The Senate got very excited about
this and they adopted a resolution directing that a
proceeding in quo warranto be filed in what was called
then the Supreme Court of the District of Columbia,
which is what we now call the United States District
Court for the District of Columbia. You remember that
for 56 years they followed here the New York
terminology under which the trial court was the Supreme
Court and the Court of Appeals was like the Court of
Appeals of New York. The Senate retained John W. Davis
to represent it. George Otis Smith retained George
Wharton Pepper of Philadelphia, who for a while was
senator from Pennsylvania. Attorney General William D.
Mitchell represented President Hoover or technically
the United States in the case. I was Mr. Mitchell’s
young man. And Charlie Poletti, a law school classmate
of mine, who for three or four weeks was actually
Governor of New York because he was elected Lieutenant
Governor, and then when, I think — not Javits,
somebody else, who was governor of New York was elected
to the Senate, he resigned three weeks before the end
of his term and Charlie became governor for three
weeks. And then a young man in Philadelphia in
Pepper’s office, who later was chancellor of the
Philadelphia Bar Association, which is the oldest bar
association in the country, was young man for Pepper,
and we three young fellows ran the case. I don’t mean
to say that we took things in our own hands, but we
built up the record. It was agreed between the seniors
that the record would be an agreed record and we made
surveys at the White House through all the old records
of nominations, any nomination that had been
reconsidered and when we found one we would go to the
department that was involved. I remember in particular
uncovering in the Treasury Department a memorandum to
the Secretary of the Treasury, written in longhand:
“We seem to be in hot water in the so-and-so matter,
let me have your views. T.R.” Which of course, was
Theodore Roosevelt. I wish I had had nerve enough to
snitch that. It was just a chit. And we prepared this
tabulation of 150 instances in history where there had
been reconsideration. And it is referred to in the
opinion of the Court. Then we all attended when the
argument was made by those of that time the giants of
the bar. The Court held that the President was right,
that the Senate could not reconsider, as I always
thought they would. Well, in the process, the Senate
became very impatient at the delays involved. Nothing
much happened in the district court, partly because we
were out compiling this record which was going to be
the record in the district court. We filed it there,
and an appeal was taken to the District of Columbia
court of appeals. The three senior lawyers, primarily
Mr. Mitchell because he was closest to the scene,
decided that this was a case that ought to be certified
to the Supreme Court, a very rarely used procedure.
Q: This was before any decision was rendered in the Court
A: That’s right. Well, the motion to certify was filed
coincidentally with the appeal. But Mr. Mitchell was
very skittish about — it was too much pressure on the
Court of Appeals to have the Attorney General, so he
assigned me, still under 30, to go down and see Chief
Judge Hitz and to present a draft of the certificate
and tell him that the Attorney General thought it would
be appropriate if the court would file the certificate
in the Supreme Court. He was very huffy, he didn’t
like it, but he was very kind to me. He recognized
that I was there under direction. He recognized the
whole picture and he sort of huffily said that we will
take it under advisement. Incidentally, I went there
without any of the other counsel.
Q: I was just going to ask.
A: Although they all knew about it. And they wanted it.
Q: They too wanted it.
A: Yes. But we sort of thought that bringing — they
agreed that bringing in — certainly bringing in the
other seniors, the two big guns, and bringing in the
juniors really didn’t add much. And about four days
later they filed a certificate in the Supreme Court and
the result was the case was argued that spring and we
got a decision before the end of the term, and that was
a very interesting experience. The only one I had, so
to speak, inside the Court of Appeals. Now, I — Billy
Hitz of course was an uncle of Harold Burton. Harold
Burton is Harold Hitz Burton. Other judges on the
Court of Appeals were D. Lawrence Groner; Martin was on
the Court of Appeals. It wasn’t very big at that time.
There may have been five judges. I came to know Groner
fairly well and things were much less formal then than
they are now and my wife and I had several times been
invited to Cardozo’s, he was a bachelor, for tea which
was quite elaborate. We finally got up our nerve to
invite him to dinner, although we knew he never
accepted Washington society social invitations.
Q: This was Justice Cardozo?
A: Justice Cardozo. And he accepted our invitation, and
so we invited Groner who was a widower at that time,
and Charlie Wyzanski — ever hear of him?
Q: I have. First Circuit?
A: Who was a young man and later became a U.S. District
Judge in Massachusetts and was not married then, and
then me and my wife was the only lady present. Cardozo
appeared to have a very nice time and he followed the
Washington routine which was de rigueur in those days,
and two or three days later there was left at our
apartment Justice Cardozo’s card. You had to leave
cards after an invitation. If you came in person when
you left the card, you bent the corner down. His card
was left by a messenger and didn’t have the corner
turned down. But we were several times invited to
receptions at the White House, and my wife after those
receptions — there was no barred gate or guards — she
used to drive our second-hand Model A Ford into the
White House driveway, up to the front door, and a
factotum would come down the steps with a silver tray
and she would put our cards with the corners turned
down. Incidentally, there were two cards for her, one
for the President and one for Mrs. Hoover and one card
for me because I only called on President Hoover, but
the corners were turned down, and then she drove out
the gate and that was the —
Q: And this was as a thank-you for the tea.
A: And that was acknowledging the invitation, and that was
the practice until World War II.
Q: That’s a lovely courtesy and gesture. When was it that
you went back to Harvard to teach?
Q: And you were there for 22 years.
A: Thirty-three years. I was Dean for 21-1/3 years. I
became Dean in 1946 and I left in 1967.
Q: How did World War II impact law school?
A: It demolished it — the buildings were taken over by
military activities of one kind or another. What we
called the Treasure Room was blacked out, that is
wooden things were installed over the windows,
everything was painted black. There was, like in a
planetarium, a projector which projected the stars
against this black and they trained naval aviators for
night flying, and they would project particularly
southern constellations because much of the Navy work
was in the southern hemisphere. They of course had
never seen that, they had to learn that. But that is
what they had to use for directions and so on for night
flying. That was not the Treasure Room then, it was
just a part of the library reading room. When the war
was over, Jim Landis, who was still Dean, got the
bright idea since it had to be redone, that it should
be made a Treasure Room and that it should have outside
the memorial tablets we have to graduates of the school
in both World War I and World War II. And that it be
used for law books published before 1800, and for
particular paintings and so on. The law school,
because of the market having gone so high, the law
school’s art collection is worth millions and became a
concern to me just seeing to it that it was protected
— not merely against being stolen but against somebody
slashing it and that sort of thing. But we have one
painted by one of the great 18th Century American
painters, a man named Feke. It is a portrait of Isaac
Royall and his family by Feke. Isaac Royall was the
donor of the first fund for the Harvard Law School, and
he gave his money — incidentally, he was a Loyalist
who left the country, but he gave his money to found a
school of law or of physics, which would mean chemistry
I think as of now, and the Harvard Corporation in 1817
voted to use it to establish a law school.
Q: In your years as Dean there, what do you think your
greatest achievement was?
A: Well, I think my first achievement was simply to get us
through the immediate post-war years — I always
regarded that as my war service — and provide an
opportunity for legal education to the men who had lost
that opportunity because of war service. In fact,
although I knew we could get the Harvard Corporation to
let us admit women, I deliberately postponed it until
1948 because I didn’t think it was decent to keep
anybody who had been in service from getting a chance
for a Harvard education. When the women — there were
lots of first-class law schools they could get into and
lots of them did. For example, Pat Wald applied the
last year we did not admit women and she jokes with me
about it once in a while, and that’s why she went to
the Yale Law School. And I maneuvered the admission of
women which took some doing at that time in late 1948,
and got the faculty’s vote which we then transmitted to
the Harvard Corporation. They approved it in the
spring of 1949, but we couldn’t actually admit women
until 1950 because that meant that applications would
be received in the fall of 1949 and they would be
treated like every other one during ‘49-’50 to come to
the school in 1950.
Q: So that was the first entering class.
A: Yes. I used to tell the young women who came through
here, patting myself on the back, that I was the Dean
who brought about the admission of women to the Harvard
Law School. But I soon learned their response was,
“Well, why didn’t you do it sooner?,” and again I say
it took some doing at the time and . . .
Q: There was still some opposition to the admission of
women at that time?
A: Yes. At our first meeting I would say one-third of the
faculty was opposed to it, and that was too big an
opposition to seek to force it through and so we laid
it on the table, not to reject it but literally to
consider it further. I brought Mark Howe into action,
and he was particularly helpful in talking with people.
I think we ended up with four negative votes of whom
Bull Warren was one — he said he would have to revise
all his notes, which some people thought was a good
Q: Well, I don’t want to skip over those years, but let’s
go to your experiences in the Solicitor General’s
A: You asked about what I did at the law school. We
greatly built up international legal studies and I
think made the law school the leading place of legal
education in the world, not just in the United States.
I traveled a great deal, I spent a lot of time visiting
other law schools, helping other law schools. For
example, we contributed a sizeable number of books to
the University of Berlin around 1949 or 1950 to replace
. . . . These were out of our duplicate collection,
people give us books, and one of the librarians’ jobs
is to keep those in order, sell them when we can, but
have them to give if there’s an appropriate place to
give. For example, when the Villanova Law School
started about 1950, I think we gave 1,500 books to
their library. Actually, I think we sold them but at
$1.00 per volume, at far less than they would have had
to pay on the market. We frequently had complete sets
of the Federal Reporter and so on which were really
important for a library. This was because graduates
would die and their executors or widows . . . they
didn’t have any lawyers in succession. If they’d been
practicing alone, the books were a nuisance to them,
they didn’t know what to do with them and we would get
letters saying, would you be willing to accept a gift
of my husband’s law library, and we always were.
Q: When was it that you were contacted about becoming
Solicitor General? Who made the initial contact?
A: It was late in September 1967.
Q: And who was it that called you?
A: Ramsey Clark, the Attorney General. Although many of
my dealings after that were with Warren Christopher,
the Deputy Attorney General.
Q: Did you say yes right away? Was it something you had
A: I told the faculty that I took 15 anxious seconds and
said yes. Yes, I had always wanted it. It was a
remarkable experience to start as a junior and to end
up as the head man in an office which I had closely
followed — which I had been in for five years and had
closely followed for 33 years after that. I knew all
the Solicitors General, I knew all the types of
business they were doing, and so on.
Q: Did you come to the office with a perceived role that
you wanted to create there?
A: I wanted to be a first-class Solicitor General.
Q: How would you describe that. What kind of
characteristics does it take to be a first-class
A: Well, I spent a lot of pages in that book dealing with
that and of course I had special problems in the Nixon
Administration. But it was always perfectly clear to
me that although my office was political and although I
could be removed by the President at any time, his
commission is up here and it says “during the pleasure
of the President” on it, I had never taken an oath to
support and defend the President of the United States.
My oath was to support and defend the Constitution of
the United States.
Q: You said you had particular problems with the Nixon
Administration. what were they?
A: Yes. Oh, well, that would take hours to go through.
I’ve dealt with it at length in my book.
Q: There were more political pressures during that
Q: Tell me about the Pentagon Papers case and what was
involved with that.
A: I have a whole chapter on that. I think we better not
Q: That’s fine. It is my understanding that you did argue
that in the D.C. Circuit.
A: Yes. Without ever having seen the inside of the papers
at all. It was a terrible mistake by both the D.C.
Circuit and the Supreme Court that they insisted on
ramming that case through, although the newspapers had
held the papers for three months before they started
out to print them and had detailed examinations and had
edited them extensively. But the actual fact was the
case which we fought before the D.C. Court of Appeals
was not the case that was actually before the D.C.
Court of Appeals in that the great bulk of the
materials of which we were legitimately concerned had
never been given to the newspapers.
Q: And I gather wasn’t even before the Court.
A: Weren’t before the Court, and this was largely because
Judge Gesell in the trial court had said, “Well, we
don’t have time to go through all these papers, we will
assume that the papers before the Court are the same as
the Pentagon Papers held in the Pentagon Building,” and
that’s the way the case proceeded. My argument turned
on certain items I felt would gravely and adversely
affect the legitimate interest of the United States. I
learned only a year ago, in April 1991, that most of
those items had never been given to the newspapers. I
learned it at a meeting put on at the Kennedy School of
Government where Ellsberg was a participant and he said
that. He said he never gave them so-and-so, moreover
he said what I learned for the first time that what he
gave to the newspapers, he had, I’ll say whitened out,
he put a blank piece of paper over all the footnotes,
and the footnotes were the things that gave time, place
Q: And you hadn’t known that?
A: I didn’t know it because I never could see them. I
tried to settle the case with The Washington Post on
the ground that there were certain items I just didn’t
think they wanted to publish and I said if you will let
me see the papers I will show you which one. “Oh, we
couldn’t do that, that would disclose our sources.”
Well at that moment I knew the source. Mr. Hoover had
told me it was Ellsberg but said there was another
person, a man named Russo that they were still trying
to locate and it was very important that I not use
Ellsberg’s name because that would tip Russo off and
they wouldn’t be able to get him. So I didn’t dare
tell Mr. Bradlee of the Post that I knew the sources,
and the result was I couldn’t see it and therefore I
never knew that though I had by this time seen the
Pentagon Papers with extensive footnotes with names,
dates and places, but what they had didn’t have this.
Q: And so the entire case . . .
A: All this is spelled out in the book.
Q: So the entire case goes up in the court system on a
hypothetical . . .
A: That is right. Now, Judge MacKinnon voted in dissent
in the D.C. Court of Appeals in which he said he
thought it was very unfortunate that this case was
pushed through the court so fast. He said that just
last evening, The Washington Post filed a paper with
the Court saying it would not print certain of the
items. Well, when that opinion came along after the
event, that was the first I ever heard of it. Now, I
don’t want to blame either The Post or its counsel for
that because in the D.C. Court of Appeals the case was
technically Mr. Mardian’s case. He was head of the
Internal Security Division and the Solicitor General
didn’t get control of the case until it came to the
Supreme Court, and it could be that that thing from The
Post was served on Mardian or some member of his staff.
I’ve never checked on it. I just never heard it. I
just never heard it.
Q: It never reached you.
A: I never heard of it until I saw it in MacKinnon’s
opinion. By that time, the Supreme Court had decided
the case and, for example, Senator Gravel of Alaska
gave all the papers to the Unitarians in Boston and
they printed the whole lot and people had said, well,
why didn’t you find it out when they printed them, and
you know, the water was all over the dam by then. I
never looked at the Beacon Press, the Unitarian edition
of it, because there was nothing I could do about that
and I had plenty of other things to do.
Q: What was your perception of the Supreme Court during
the time you were the Solicitor General?
A: I admired the Court generally and thought that the
level was very high and that there was good
diversification. There were people like Black, who was
pretty rigid-minded, there were, well you could go
right down the list. I was there under both Warren’s
and Burger’s Chief Justiceship and I had great
admiration for John Harlan, of course Justice
Frankfurter had been my teacher, Brennan was my friend.
I never liked Douglas and never trusted him, not in the
sense that he would take bribes or things like that. I
never trusted his intellectuality. Put it that way. I
knew it was great, but I thought he used it for his
purposes which I didn’t feel were quite judicial.
Q: Had you formed friendships with any of the judges of
the D.C. Circuit during this period?
A: Oh, I’ve known lots and lots of them. Carl McGowan was
a very good friend for a long time. I was never close
to Bazelon. I always thought he was a little out, if I
could put it that way. But there was a time when I
knew the Court of Appeals judges very well. Indeed, I
was on President Carter’s selection committee which
recommended four of the judges, Pat Wald, Edwards —
Q: Judge Ginsburg.
A: — Ginsburg and Mikva, all those four. I had known
Mikva before when he was in Congress and Ginsburg had
been a student of mine in Harvard Law School. Edwards
had taught at Harvard Law School.
Q: Tell me about the selection committee.
A: Well, President Carter tried to break away from the
senators really making the appointments, and he
established these committees in each circuit, maybe in
each district, I don’t know. Our committee covered
both the D.C. Court Of Appeals and the district court,
and he established excellent committees, men and women,
white and black, lay and lawyers. We had interviews
with candidates and made recommendations.
Q: Who else served on this committee?
A: The younger Tydings was chairman of it. The lady who
was superintendent of schools here in the District of
Columbia, we call them blacks, she wasn’t very black, a
very ponderous and pompous lady, but a very good
citizen. I said that we ought to be looking for people
with high ability and real strength like Judge Gesell.
Oh, she was not a lawyer. She and all the other ladies
and all the other lay people, oh they thought that was
terrible. “He has no compassion,” they said. Well,
anyhow, we didn’t get people like Judge Gesell into the
Q: What characteristics were you looking for?
A: All of us were looking for different ones, but we
actually handled it very skillfully and we were pretty
much unanimous in the whole thing in our
recommendations. We didn’t start out unanimous. There
was a black lady, very young then, on the George
Washington University Law School faculty who was a
member of the committee and it was the first time that
I really heard this. She talked with me quite a bit
because affirmative action got into it now and then,
and she talked to me in some distress because she said
that she was aware of the fact that she had got various
advances, including the appointment at George
Washington as a part of affirmative action, and that
left her in real doubt as to whether she was really
entitled to the place. I never really thought of it in
those terms. My approach had been entirely different,
which is what I call the long-range approach. My
feeling is we’ve got to get more and more blacks into
high level posts until it is taken for granted that
they will be there, and when that comes about then
blacks and whites and Armenians will be judged on their
merits. But we’re never going to get a sizeable number
of people, considering the inadequate education and the
prejudice there has been, into, I don’t necessarily
mean the pinnacle point, but into law offices, doctors,
business, unless we give them a little advantage in the
process that’s going on. I still feel that very
strongly. The young black lawyers who come into this
office — I feel there has been tremendous progress
already. I can remember the Department of Justice when
there was not a single black lawyer in the whole
department, including all the U.S. Attorneys’ offices
all over the country. The only black people in the
building were the elevator operators and the cleaning
people and the man who came around twice a week to
shine your shoes for a dime.
Q: And when was this?
A: In the early thirties. And that continued until the
sixties. Bill Hastie was the first black appointed a
judge, first in the Virgin Islands and he was appointed
governor of the Virgin Islands. He was appointed to
the Third Circuit Court of Appeals, and he was the
first black to be appointed to a constitutional — to
an Article III court, just as Florence Allen was the
first woman to be appointed to a constitutional court.
I knew her quite well because my mother had managed her
campaign for Congress and she had been elected to the
Ohio Common Pleas Court and then to the Ohio Supreme
Court. But she was appointed by President Roosevelt to
the Sixth Circuit Court of Appeals and was the first
woman there. Now we have women all over the lot and
take it for granted, but it took a good deal of
pioneering to be taken seriously in many quarters.
Q: It certainly did. And now we have Judge Wald,
A: But no woman recently in the past several appointments.
Q: Karen Henderson.
A: When was that?
Q: Last year or two I believe.
A: I don’t know. Part of my trouble, the last four or
five appointees I don’t know.
Q: And they have — a large number have been appointed in
the last several years. So many more of them.
A: That’s right. Incidentally, I had lunch today with
Malcolm Wilkey which was very interesting.
Q: Oh, how is he?
A: Well, he’s fine. He lives in Chile now.
Q: Does he really?
A: He was Ambassador to Uruguay and his wife is a Chilean,
with whom — he married her when he was General Counsel
of Kennecott Copper Company whose main operation was in
Chile. But he has been up here several times because
he was a member of an arbitration panel to fix the
damages in the Letelier case and their result was just
announced in the papers.
Q: I read it.
A: He’s finished with that now and he’s going off to
California for a week with no immediate
responsibilities. He was also one of my students. I
knew him well and thought very highly of him on the
Court of Appeals.
Q: Did you follow at all the development of different
factions on the Court of Appeals, the liberals versus
A: Oh, yes, oh, yes. Everybody knew that. In fact, I
have said in public a number of times, and this is
relevant to what you’re talking about, there was a
considerable period, most of ten years, when they did
not announce who the panel was until the curtain parted
and they walked in and you could, at that moment, tell
certainly how the case would be decided. And I always
thought that was very unfortunate and wrong, and I
understand now at least they list the panelists in
advance and that gives you a chance to know to some
extent where you must focus your argument, which is
relevant. I mean, if you know you’ve got one of the
votes, one is sure to be against you and Joe Doakes is
the one that’s really crucial if you don’t put your
foot in your mouth, then you can focus on Joe Doakes.
Well, I thought it was — it offended my sense of
justice that you could tell how the case was going to
be decided when you saw who came through the curtains.
Q: What do you think about the —
A: Let me just pick that up a little bit. In the days up
to ten or fifteen years ago when almost every case
involving a conflict and a great many cases where the
decision was egregious in some way would be reviewed by
the Supreme Court, well, that was all right. Then you
were going to get a court which, as it had 9 members
and so on, and because of its tradition was really
quite independent. But they’ve now got to the place
where they don’t review the egregious cases at all and
they do not by any means review all of the acknowledged
sphere of conflicts, and I think that is a bad way to
administer justice. I spent 40 years trying to get
established an intermediate Court of Appeals or some
other system. What I really would like to have is
several Courts of Appeals primarily established by
subject matter, Tax Court of Appeals and an economic
regulation including an Antitrust Court of Appeals. I
would keep the geographical ones for criminal cases
which would make them less attractive, but we would
eliminate most of the conflicts. Now, to me it’s
perfectly plain that a major cause of the increase of
cases in the appellate courts is the fact that no
decision of an appellate court amounts to anything
except to the parties in that case. There is no
feeling of obligation to follow it in that case,
particularly by a different panel. The courts are so
big that you’re almost sure to get a different panel,
and the result is a lawyer advising a client has to
say, well, there’s only one case on the books and it’s
against you, but it’s in the Seventh Circuit and we
might be able to get a conflict here in D.C. and maybe
then we could go to the Supreme Court. It is almost
impossible for a lawyer in a case that involves a large
sum, as they often do, to advise, well, you lost in the
district court and there’s really no hope for you, and
you better save your money. It’s almost malpractice
not to take it to the court of appeals, which is more
cases, more petitions for certiorari . . .
Q: More work for the circuit court judges.
A: — and more work for the lawyers and cost to the
Q: Do the oral arguments still serve as a function to the
A: Well, I think so. Again, in my book I list two cases,
where it’s perfectly plain that the oral argument
changed the . . . . There is one case where we now
know that it had been decided against my position.
Then that case became moot and a new case came along
involving exactly the same facts and I was brought into
it, and I presented an argument which had not been put
into it before and it was decided 6 to 3 in favor of my
position, although the opinion the other way had
actually been written before the case went moot.
Q: So it obviously made a difference.
A: So it obviously made a difference. And I just learned
of another case where it made a difference but they
decided the case against me, so I can’t —
Q: Well, for example, in the appeals court the arguments
are so short these days, they only allow you 15 minutes
. . . .
A: Well, I think it’s shocking to have these ten-minute
Q: Right, ten, fifteen minutes in some cases.
A: I sat through a session of the California state court
of appeals because I had a case, which after we got
there we found was the last of about ten they were
going to hear that day. They gave two minutes in the
typical criminal case, and finally they got to our case
and they never did come to understand it, and I thought
the whole performance was shocking, yet that’s what
everybody tells me is the practice in the California
court of appeals.
Q: You are now in private practice, for almost 20 years
A: Yes, 19 years next September — next June.
Q: How was your transition from academic and public
service to private practice?
A: It was very easy. In the first place I had always
expected to be a practicing lawyer. In the second
place, I was on the government side. I had
considerable experience in court. I had argued 30
cases before the Supreme Court when I went to Harvard
Law School. In fact, I argued all the tax cases for
the government for several years. Then I had six
arguments for private clients when I was on the faculty
of the Harvard Law School. And then I came back and
argued 80-some as Solicitor General. But I always
regarded being Solicitor General as being the head of a
law office, and I didn’t find it much different here
from what it was, except this office is much bigger
than the Solicitor General’s office, and in this office
not all the cases are in the Supreme Court. No, I had
no difficulty at all. I think I’m not as much of a gogetter for getting business and so on, as some of the
practicing lawyers are, even as some people thought I
ought to be, but that’s because I have a rather oldfashioned notion of the role that lawyers ought to
Q: Do you think that for most people that notion has
A: It is clear to me that for some people it has changed.
Q: With too much of an emphasis on getting business and
A: That’s right. And it gives me concern. Again, I’ve
dealt with that in the book.
Q: What do you think of the quality of the young graduates
you’re seeing these days?
A: I think they’re just as good as they were in my time.
I almost always have a young associate assigned to me
on any matter I am working on and I would say twothirds to three-fourths of them are first-class.
Occasionally you’ll get a real lemon, and in between
you’ll get people who do a good job but not
outstanding. But that is as high a proportion of
first-class as there was in my day.
Q: Do you think over the extraordinary number of years you
have been in legal practice that your philosophy of law
has changed and evolved, or do you think it has pretty
much stayed the same over the years with the
experiences you have had.
A: I think it’s stayed pretty much the same except that
the subject matter has enormously changed. The law
today is vastly more complex than it was when I was a
student. The Internal Revenue Code was a pamphlet and
now it has thousands of pages, it has sections that are
pages long that are impossible for me to comprehend,
and if they are impossible for me to comprehend how in
the world are students in law school and the young
lawyers going to comprehend them, I don’t know. There
are areas like ERISA where I don’t even try to keep up.
We have ERISA people and if I get a case involving it,
I simply call up somebody there and say, I have a case
for you. All the areas that are really active in law
offices today, environmental protection, clean air,
clean water just didn’t exist. The SEC, the Federal
Communications Commission in substance — there was a
Federal Radio Commission beginning in 1928 but cases
were rare and were not above and beyond the
comprehension of an ordinary practitioner.
Q: What do you think — what kind of impact has that had
an the judges who are asked to decide these cases? Do
you think that certain areas of the law have become too
complicated for the judges we go to for decisions on
A: Well, I have some feeling that way and that is one
reason I would like to have courts of appeals organized
on a subject matter basis rather than on a geographical
basis. I see no reason why a judge couldn’t be a
first-class judge in the business regulation area and
not know anything about tax law, or particularly its
intricacies. Well now it’s wonderful to say that all
judges of courts of appeals are generalists and know
everything about everything, but we can’t possibly do
it. The other great change that’s happened in the last
ten years is the capture of the law offices by
electronic equipment and that I think is going to have
an impact in the next ten years, even greater than it
has had so far. I hope it won’t mean that lawyers will
become word processing operators and punch buttons.
Q: I notice no computer in your office.
A: No, but my secretary has one and she is very good at
it. This is remnants of the manuscript of the book,
and she put it all on the word processor and then ran
off copies. To my amazement, when it came time to send
it to the publishers, she sent one disk, that’s the
whole blamed book. I can’t comprehend it. And she has
a printer on her desk. You know, I know how an
electric refrigerator works and I know how an
automobile works, I know there’s a carburetor, there
are spark plugs and a diesel engine doesn’t have them
but the pressure makes enough heat so that the gas
explodes, but I haven’t the slightest idea what happens
in that printer out there and I cannot comprehend what
it is that enables it to have the lines the right
length and stop in the middle of a word at the right
syllable point and she can put in a word and it will do
the page all over again just like that. That, of
course, is a tremendous advantage and many times in the
old days as I was reading a finished letter to sign, I
would think, oh gee, it would have been better if I had
used this word, but I wouldn’t make the change because
it involved typing the whole thing over. Well, now I
just put in the word and in 25 seconds she is back here
with the new page.
Q: So the ever-advancing technology has been a change for
the better in your view?
A: Unless it isolates the lawyers too much from their
product. The same secretary used to be terribly good
at what we called the cut-and-paste. She would make
drafts usually on just a little more than half a page
and then I would write stuff down below and put
balloons around them and put it in up there and she
would cut out the portions that weren’t changed and
then she would type in the part that I had added and
then she would follow it with something that wasn’t
changed and she could do that quite quickly and with
xerox you could make it come out so it didn’t — when
she did it carefully, it didn’t show that it wasn’t
just on one page. I think in some ways the xerox
machine has been the biggest time saver for me as a
practitioner in that I can get copies, I don’t have to
labor through the six carbon paper copies. I wish I
was going to be around for another 30 years because I
would like very much to see what the impact of all this
is going to be, and I have an idea that there will be
many new things in the next ten years after which there
may be a lull for a while.
Q: Probably things you and I cannot dream of yet. I think
that about covers what I wanted to do this afternoon.
Thank you for all of your time.
ERWIN N. GRISWOLD, ESQUIRE