0:00

BIRDWHISTELL: As I said, I have a . . . some questions prepared here, and we can just keep this very conversational and informal.

MANNING: Fine.

BIRDWHISTELL: I'd like to begin by finding out a little more about your background, about where you're from and where you were . . . received your degrees from before you began working with Justice Reed.

MANNING: I was born in Oklahoma. My parents were separated, and I was taken to Washington, D.C., when I was a small child. I was raised in Washington, D.C., as a child, living with my mother and my grandparents. My mother then remarried when I was about ten. We lived 1:00in northern Virginia. We then moved to Massachusetts, and I went to high school in a not necessarily overly attractive mill town of Fall River, Massachusetts. [chuckle--Birdwhistell] And then I received a scholarship, and I went to Yale undergraduate school. I got out quite early and . . . in part because of the accelerated programs of the war.

BIRDWHISTELL: Umhmm. Right. Yeah, that was all in the works.

MANNING: I spent four years in the army as a . . . doing signal intelligence work and also working as an interpreter in Japanese. Then I went back to Yale Law School in 1946, and I came out of Yale Law 2:00School in 1949 and went to the Supreme Court as a law clerk.

BIRDWHISTELL: That's interesting. What were the circumstances surrounding your going with Justice Reed, who I . . . he was traditionally g- . . . took law clerks from the Harvard Law School, right? Or, did you say Yale or Harvard?

MANNING: I'm not quite sure that's factually accurate. A good many of his clerks came from Yale. Some came from Columbia, and . . .

BIRDWHISTELL: Columbia, that's right.

MANNING: . . . and . . . and some came from Harvard. And I believe, over time, we would also find that there was . . . he spread out further beyond that. There were some from the University of Kentucky, as I remember.

BIRDWHISTELL: Umhmm.

MANNING: Probably there were more Harvard clerks than any other, but there were a number of us from Yale. And then remember, he had gone Columbia . . .

BIRDWHISTELL: Right. Right.

MANNING: . . . for a time, and he always liked trying to find a Columbia person when he could. [chuckle--Birdwhistell]

3:00

BIRDWHISTELL: What were some of your first impressions of Justice Reed when you first met with him initially? Do you recall any of those . . .

MANNING: Oh, yes.

BIRDWHISTELL: . . . impressions?

MANNING: Very clearly. The first impression I had of Stanley Forman Reed was the second impression I had of Stanley Forman Reed, was the ultimate impression I had of Stanley Forman Reed.

[Interruption in taping]

MANNING: And it never . . . the thing's built like a Himalaya mountain, anyhow. It never did need the damn brace.

BIRDWHISTELL: That's . . .

MANNING: It's just a rock.

BIRDWHISTELL: . . . that's what I was thinking. It doesn't look . . . it looks sturdy enough without a brace. We were . . .

MANNING: Okay, sir.

BIRDWHISTELL: Yeah. We . . .

MANNING: Go . . . let's get back to work.

BIRDWHISTELL: . . . we were talking about your . . .

MANNING: Yeah, I was answering the question that my . . .

BIRDWHISTELL: Your first impression.

MANNING: . . . first impression was the same as my middle impression, was the same as my last impression. Are we going again, now?

BIRDWHISTELL: Right.

MANNING: Okay.

BIRDWHISTELL: Right.

MANNING: And what I refer to when I say that is that Stanley Reed was undoubtedly the single most serene, courtly, gracious, old-school 4:00gentleman I had ever met before that, or I have met since then.

BIRDWHISTELL: Someone said that Justice Reed seldom smiled, but he seldom became angry.

MANNING: He almost never became angry. I can hardly recall an instance. He . . . serene was the word . . .

BIRDWHISTELL: Serene.

MANNING: . . . I used before and would stay with.

BIRDWHISTELL: Right. That's . . . that's very descriptive of him, I think.

MANNING: Though I can remember his smiling, more often than would be implied by saying that he seldom smiled. He . . . Stanley Reed was more on top of his world, himself, than almost anyone I have ever 5:00known. Not always necessarily justifiably, but that's not the point for the moment. Stanley Reed was always absolutely comfortable, absolutely at ease with himself and his surroundings. He had no trace of . . . of malice. He had no trace of envy. He had no trace of the . . . the . . . the lower forms of human attitude that are born out of insecurity. The most secure, adjusted man I ever met.

BIRDWHISTELL: It almost sounds too perfect. But what . . .

MANNING: Well, I don't say it was perfect. I'm . . . and I didn't say that.

BIRDWHISTELL: Okay [chuckling].

MANNING: I'm describing an aspect of personality, which was this 6:00adjustment . . . this serenity of adjustment.

BIRDWHISTELL: This must have helped him a great deal in a position like justice of the Supreme Court, where . . . where you have to be, I guess, confident of what you're doing and unflappable, I [chuckling] suppose.

MANNING: He was certainly unflappable, and he was always supremely confident of himself and his judgment, but . . . I keep using the word serene. It did not in- . . . there was nothing arrogant about the man. Quite the reverse. It was a . . . a kind of a gracious, warm acceptance and humility, but born out of the fact that he obviously had never had any doubt at all about himself or his surroundings and assumed nobody else did. He never . . . he never felt threatened, and he never tried to threaten anybody else. He was never caught up in the effort to look good. He was never caught up in 7:00an effort to put down somebody else.

BIRDWHISTELL: Umhmm. That's interesting.

MANNING: He was a . . .

BIRDWHISTELL: But . . .

MANNING: It gave him a . . . it gave him a kind of an easy courtliness, a grace, which is rather rare in the twentieth century, I'm sorry to say.

BIRDWHISTELL: I think you're right [chuckling]. I suppose you had studied his earlier career, or his career prior to you . . . your going to work for him.

MANNING: Well, . . .

BIRDWHISTELL: What were your impressions of his work up to that time when you went as a clerk?

MANNING: Of his work?

BIRDWHISTELL: Of his work, either as . . . his work with the [Franklin D.] Roosevelt administration as Solicitor General . . .

MANNING: Yeah.

BIRDWHISTELL: . . . or in what he had done on the Court up to that time. I'm . . . I'm sure you must have familiarized yourself with his . . .

MANNING: More . . .

BIRDWHISTELL: . . . opinions.

MANNING: . . . certainly more about the Court in . . .

BIRDWHISTELL: Right.

MANNING: . . . the earlier period. I suppose it's a professional statement that I'm about to make. One does not really have a clear 8:00sense of whether, for example, when he was general counsel of the R.F.C. [Reconstruction Finance Corporation], whether he was or was not doing a good job, and I don't know how one would know . . .

BIRDWHISTELL: Right.

MANNING: . . . on the outside, except that he obviously was getting promoted [chuckle--Birdwhistell] when . . .

BIRDWHISTELL: Somebody was . . .

MANNING: . . . somebody was . . .

BIRDWHISTELL: . . . pleased with [chuckling] . . .

MANNING: . . . happy. Exactly right. But even then, I mean, of course there were all kinds of weighty political considerations in . . . in Franklin Roosevelt's selection of Stanley Reed for a variety of functions.

BIRDWHISTELL: Umhmm.

MANNING: So I really wouldn't be able to comment on that. I just don't know. By the time he was on the Court, of course, when one was a law student one was aware of Stanley Reed as a presence on the Court. He had come on, as I remember, in `38; maybe it was `39.

BIRDWHISTELL: Umhmm. `38.

MANNING: And by the time I was in law school in `46, obviously he'd been grinding out opinions for some time. So, one as a student had some 9:00perception of . . . of that. What shall I say about it? Whatever I say about it is not important [chuckle--Birdwhistell]. Trying to reconstruct what a student would have thought at that time . . .

BIRDWHISTELL: Right. I guess I was just thinking of your im- . . . your impressions of him as a justice prior to going to work for him. You know, what . . . what you thought you were getting into here. You know, not a . . . not a judgment about . . .

MANNING: Yeah.

BIRDWHISTELL: . . . cases, but a . . . just a . . . he as a . . . he as a judge.

MANNING: You know, there's a . . . I . . . I probably am avoiding that question. I don't mean to be. I'm not sure the question would ever come up.

BIRDWHISTELL: Okay.

MANNING: For a . . . as one comes out of law school, the opportunity to go clerk at . . . at the Supreme Court is so rare and so treasured 10:00that while one might have some hazy impression that he might or might not prefer to clerk with Justice X rather than Justice Y, . . .

BIRDWHISTELL: Right.

MANNING: . . . one's perception at that stage in his life, particularly, is that a Supreme Court clerkship is itself such an opportunity and . . . and such a step forward, that r- . . . other ranges of consideration about whether it's X or Y, and who is X and Y, probably would weigh a lot less.

BIRDWHISTELL: Right. I can . . . I can see it. I understand. Let me ask you this: by 1949, Justice Reed had been in Washington for twenty years, I suppose. Did he still talk about Kentucky? Did he . . .

MANNING: Oh, he'd . . .

BIRDWHISTELL: . . . [inaudible] . . .

MANNING: . . . talk about Kentucky every day.

BIRDWHISTELL: Oh, he did? [chuckle]

MANNING: Every day.

BIRDWHISTELL: I suppose he still had fond memories of it and . . . and 11:00close ties to it, in some ways. He had a farm down there in Maysville.

MANNING: Exactly. That's the point I wanted to make. The reason he talked about every day is that there was no day that I can remember- -I'm probably exaggerating this, but [chuckle--Birdwhistell] it's [chuckling] substantially right--there was no day in which there was not some interchange between him and [Gerald] Ross or between him and Mrs. Reed or some mail or something, always about the same kind of problem, which was . . . or the same kind of question, which is whether or not the alfalfa that was in the back sh- . . . ought to be put up in the front [chuckle--Birdwhistell], or whether or not they really had plowed the twenty acres that they were supposed to have plowed. The . . . the . . . the farm itself, the property itself in Maysville, lived quite [chuckle] consciously in his daily mind. I think, you know, in substantial measure precisely because he wasn't 12:00there. So there were always telephone calls. You know, "What should we do about [chuckle--Birdwhistell] the . . . there's a new foal, and what are we going to do? Should we sell it, or shall we raise it?" and . . . very minute, particularistic topics [inaudible].

BIRDWHISTELL: Yeah. It's . . .

MANNING: But if . . . the reason I answered as I did about his speaking of it every day, if you have something grander in mind, did he reflect about wishing to be back in Kentucky or think of it nostalgically, there was never any trace of that at all. It was just always very operational stuff.

BIRDWHISTELL: Yeah. It's . . . I'm finding it interesting the . . . the number of people who are . . . are . . . are commenting on this day-to-day farm business. Was it a diversion for him? I mean, it really wasn't a money-making operation, I don't believe. [chuckle].

MANNING: I don't think it was any of those things, frankly. I don't even really think it was a diversion. I just think it was there as a responsibility. It was like having a child.

13:00

BIRDWHISTELL: Oh, and he was just . . .

MANNING: I mean, it was, you know, the family place, and it was the farm, and you had . . .

BIRDWHISTELL: You had [chuckling] to take care of it.

MANNING: . . . to take care of it, you know. You . . . It's like . . . like having a child. If the kid . . .

BIRDWHISTELL: That's right.

MANNING: . . . he needs a lunch, you've got to give him some [chuckle--Birdwhistell] lunch.

BIRDWHISTELL: That's interesting. Because I asked . . . I asked someone about his hobbies or his interests outside of work, and they mentioned the Court and the farm. And that was . . .

MANNING: He used to play golf, but never very strenuously or even to the . . . I don't know whether one would call it a hobby, but I know he used to go out to Burning Tree, particularly, and . . .

BIRDWHISTELL: Right.

MANNING: . . . hit golf balls once in a while.

BIRDWHISTELL: Those Sunday morning tournaments, I think.

MANNING: That's right. But it's quite true. I . . . he also fancied himself as something of a . . . of an American historian. I don't mean that in a pompous way at all, but . . . but if one asked things he was inter- . . . about things he was interested in, what he 14:00did, he . . . he was always involved, or more or less involved, in reading about American history and studying American history.

BIRDWHISTELL: I didn't know that.

MANNING: Probably . . . it was never going to really happen, but probably he had in mind that somehow or another he was . . . someday when . . . when he was no longer a S- . . . devoted full time to the Court, that he wanted to write something or other about some aspect of American history, particularly the border states. I've always kind of thought that's what he vaguely thought about. It was never really going to happen; that's a different . . . [chuckle--Birdwhistell].

BIRDWHISTELL: That's interesting. I hadn't heard that before. By the time you came to clerk for him, Fred Vinson was chief justice. How did 15:00you see his relationship with Chief Justice Vinson.

MANNING: Stanley Reed, as far as I could tell,--and this goes back to my first comment about him--had the same relationships with everybody. Uniformly gracious, uniformly courteous, uniformly polite. Never disputatious. Always the posture of courteously listening to somebody else's views about whatever, and then doing just exactly what he wanted to do [chuckle--Birdwhistell] with a quiet smile, on the basis of the way he . . . the way he saw it. And I . . . I suppose some people would say that his relations with Vinson were closer than with some others, but I . . . you know, I . . . there's some 16:00plausibility of that . . . to that given their backgrounds, but I must say I never saw any evidence of it. You do understand, of course, that the Court in its serious work is in executive session and nobody is there, and . . . but I would be surprised if Stanley's demeanor [chuckling] in those executive sessions was any different from what it was anywhere else.

BIRDWHISTELL: It sounds like it was pretty constant and . . .

MANNING: He used to drive Felix Frankfurter absolutely up the wall. He [chuckle--Birdwhistell] . . . by precisely what I have described. Because Felix would come all hotted up and charge in to talk with Stanley Reed and to per- . . . lobby him and try to persuade him of something or other. Felix would have seventeen arguments and be talking like a machine gun and [chuckle--Birdwhistell] . . . and . . . and just brandishing his intellectuality and his citations and 17:00his . . . his European rhetoric and his [chuckle--Birdwhistell] . . . his epigrams. And it was like talking to a Buddha. [chuckle-- Birdwhistell] And I've watched this happen so often, and Felix was tiny, small, whirring around like a . . . like a . . . like a hornet or like a . . . like a bee, whirling around this . . . this sort of Buddha-like figure. Stanley Reed, you know, he was . . . physically grew smaller as he aged, as so often happens, you know. But Stanley Reed at that time was a very tall man, and he had weighed too much. He was going through a diet . . . dieting period, indeed, during 1949, and he . . . there were two physical Stanley Reeds during that . . 18:00. that very year. One of them was a great mountain of a man and it was rather awesome, and the other whom was tall and slender in a kind of a Basil Rathbone [the English actor] way. They both were there during that year [chuckling] as he fa- . . . he weighed . . . took, I don't know, sixty-five, seventy pounds off . . .

BIRDWHISTELL: Really?

MANNING: . . . or more. Maybe more than that.

BIRDWHISTELL: Wow.

MANNING: And the physical part is relevant to what I was saying only in that Felix would be jumping around like a mosquito or a [chuckle- -Birdwhistell] hummingbird and this . . . this great smiling, beneficent, benign figure watching, listening, with a kind of bemused tolerance smile. This . . . at the end of which, he would say, "Thank you very much, Felix. I appreciate your spending the time with me." [chuckle--Birdwhistell] And he would never . . . he would never, really, engage or respond to any of this and it just drove Felix crazy. As a technique for dealing with the . . . with the 19:00process of being lobbied, a process which he himself never participated in, ever. I . . . I cannot . . . I cannot, myself, recall any instance in which he ever walked down the hall to go into somebody else's office to try to persuade them to do something. His . . . his . . . his whole notion of the process--and, you see, it really is implicit in what I said at the beginning--his notion of the process was that you read the material and you listen to the argument, and then you make up your mind.

BIRDWHISTELL: And he stuck to that.

MANNING: It was not a . . . there was . . . there was nothing in the man and of the . . . anyone interested in trading off votes or 20:00even trying to persuade anybody else. It was a "You're entitled to your view; I'm entitled to my view." [chuckle--Birdwhistell] "I fully accept you as a human being, and I . . . I expect you to fully accept me. Each of us sits in his own office and does his own work."

BIRDWHISTELL: And during this time, he was . . . he was always the swing justice, I guess, or middleman. He was . . . he could change the . . . he could change the . . . the decision by his vote, in so many cases. And it happened in quite a few cases, I think, where in 5 to 4 decisions, he would first be with this group and then with that group, based on the individual case. So I'm sure somebody like Ju- . . . Justice Frankfurter would be quite frustrated sometime, I suppose, in . . . in trying to win him over.

MANNING: Well, I'm extremely dubious about everything you've just said.

21:00

BIRDWHISTELL: Oh, really? [chuckling]

MANNING: I'm well aware of the fact that it is a . . . I'm well aware that it was the . . . the conventional description of what was going on in the Court at the time, and I'm well aware of the . . . the pile of sort of popular or popularist literature that presents it that way. I'm extremely doubtful whether that's an accurate or . . .

BIRDWHISTELL: How . . .

MANNING: . . . or . . .

BIRDWHISTELL: . . . how do you see it?

MANNING: . . . insightful perception. Well, I'm afraid the difficulty of going off into that is, first, the limitations of our time and . . .

BIRDWHISTELL: Right.

MANNING: . . . secondly, that the topic would become somewhat more technical than . . . than you would be interested in. I simply want to express my own view that notions that there were two wings on the Court are terribly primitive and . . . and reflect a non- understanding of how the Court operates and, also, what the questions 22:00and the issues were. Simply to make the point . . . make one aspect of the point, one has to . . . if . . . if I ask you today in contemporary life who is a quote "liberal" quote and who is a quote "conservative," you, because you're an intelligent person, will tell me that's a stupid question because one would need to know a great deal more about what the particular issue or question is because people are complicated and, indeed, because the terms themselves have come to have no real meaning. That somebody who . . . it's perfectly . . . perfectly possible to be a s- . . . just to make up the point triv- . . . in a trivial form, it's really quite possible to be an enthusiastic member of the American Civil Liberties Union and very much of the viewpoint that a free market economy is the only way to operate econ- . . . an economy sensibly. I . . . I make the 23:00point only in a . . . only in passing. Issues that come to the Supreme Court are complicated issues. Only retrospectively do tin-pot journalists decide that the issue in the case was "X." The fact is that the problem arises usually--not always, there are exceptions--the problem emerges with a whole lot of stuff in it, and what one person sees as a critically important procedural question, someone else sees as a critically important civil rights problem, someone else sees as an issue that radi- . . . that vi- . . . deeply concerns a relationship between the federal government and the state power. Someone else doesn't believe the facts, so they don't think any of those issues are in there, etc., etc., etc. And it . . . and any 24:00one of those positions will, in fact, be an aspect of the reality of that single case. You dump that kind of a . . . of a problem into any arena of eight or nine intelligent, concerned people, and they all see different parts of the elephant. And it might well be true . . . let's assume for the moment that it is true, though I don't even really believe this, but let us assume for the moment that if you and I are on the Court and if we could agree that this is a civil rights issue, that maybe you would be on one side of that question and maybe I'd be on the other. Now remember, I don't agree with that, either.

BIRDWHISTELL: Right.

MANNING: But even if I agreed to that, . . .

BIRDWHISTELL: Right.

MANNING: . . . a great deal of the time, the reality is that what 25:00I think is a civil rights question, you think is a question involving whether the case came up in a procedural form where the decision can be able to be made. And therefore, we . . . if . . . if you're sophisticated, and if you care, and if you know anything about the reality of the process, you really go read, and you really look at the records of the cases as they came up. Yes, it could very well be because when you finally get to the bottom of counting, the case has to come out somewhere. The case comes out somewhere 4-5 or 3-2 only because of the bipolar character of the way issues are put. You either have to . . . you either have to send the case back, or you ha- . . . in some form of sending it back, and where there are a number of variations of it, or you have to affirm it. When you finally get to the end, you're forced to a bipolar answer. Well, a 4-5 decision 26:00doesn't tell you anything necessari- . . . the f- . . . the fact that something was a 4-5 decision doesn't necessarily tell you anything . . . anything about what the issues were, what the questions were, what the real divisions were. All they tell you is at the end of the line, the . . . the Court could not come out in a more splintered way than 4-5, because that's the ultimate reduction of the numbers. You've got to finally . . .

BIRDWHISTELL: That's [chuckle] . . .

MANNING: . . . come out somewhere, and if it's 4-5, that means . . .

BIRDWHISTELL: That's . . . that's what you . . .

MANNING: . . . you don't . . . now, I've gone much farther into that than I intended, but not nearly as far as one can go into it. I simply say the notion that somehow there's a team of four and another team of four, and they were clomping around, and they all . . . when they would grapple with a particular kind of an issue, they were four 27:00who'd go one way and four would go the other, and then he [Reed] would jump back and forth, I believe, has relatively little relationship to reality. There were . . . now, you know. Let me . . . having said all that, it is quite clear that there were . . . that if you broke it down by issues, and if we refined this discussion and you set them aside and said, "Let's now take only free-speech cases . . . only free-speech cases," it is quite clear that . . . and it was announced. I mean, it . . . page after page after page in the U.S. Reports, it's quite clear that Justice [Hugo] Black and Justice [William] Douglas, and to some extent others from time to time, 28:00developed a . . . an . . . an absolutist viewpoint about the First Amendment. There's hardly anything surprising about that. Hugo Black gave that speech once a week [chuckle--Birdwhistell] in this or that case. And it's also clear that there were other members of the Court who, on that issue, didn't agree with him. And [inaudible] the free-speech cases would wobble. He would . . . his position . . . he was immensely persuasive of . . . immensely persuasive about it, a brilliant man, lovely man, great man. His . . . I can hear the voice so clearly in its . . . in its lovely, quiet, southern accent, "But Counselor, I don't entirely understand what you're telling me. I have the Constitution here and I'm looking at the First Amendment. It says . . . can I read this to you? It says, 'Congress 29:00shall pass no law.'" [chuckling] "Now, I understand your position is that that means Congress can only pass some laws, is that what you say?" [chuckle--Birdwhistell] "Right here. See, I want to show you. 'Congress shall pass no law.'" It's quite clear that on . . . if you narrow it down to particular propositions, of course there were all kinds of differences of viewpoints and not just 4 and 4 and 1, but, you know. And then there were infinite . . . oh, as there always are, there was nothing unusual about it. There were the gradations of the intensity of commitment to a particular view. "Yes, I'm in favor of X, but don't . . ." You know, the only real issues that come up always involve tradeoffs or balances between something you're in favor of and something else you're in favor of. That's why you have 30:00a case. [chuckle--Birdwhistell] If . . . if that were not true, it would not be in the Court. And so the mix, "Yes, I feel very strongly about First Amendment questions, but I also feel very strongly about preservation of the federal-state relationship," and now a case comes up that intersects these, but that's what the exercise is all about. That's what the Supreme Court does. That's what judgment is made of. That's . . . that's what . . . that's its stuff. And of course those chemistries vary. If you held . . . if one held an absolutist position as Hugo Black did on First Amendment cases, then it was easy to predict his vote. And, indeed, it was easy, although I can show you examples where he would flip because . . . no- . . . not flip, that's unfair, [but] where he would come out in a way you wouldn't expect because something else in the case was even more important in his perception, which is true of all of us. All of us. Everybody. 31:00That's the way the human mind works.

BIRDWHISTELL: Well, . . .

MANNING: If you . . . and if you started with an absolute position as he did on that issue, then it was relatively easy to predict. If . . . if you were of the view that . . . that, "Well, I know that's what it says, but that's crazy. It produces insane results and they were not crazy people at the Constitutional convention. That's just not what it meant." [chuckle--Birdwhistell] And you have to look . . . you have to look at it in a context of some reasonable balance of circumstances, and you would always then quote [Oliver W.] Holmes' statement about, "It . . . it is really not part of First Amendment freedom to be authorized to shout 'Fire!' in a crowded theater." That's a typical Holmesian flair. And that obviously has to be right, and . . . and if that is right, there've got to be some limits, and 32:00therefore we need to talk about the totality of the context and what the considerations were on one side or the other. If that's your general view then, of course, it gets to be much more difficult to predict how the individual is going to react in a particular case. It's easy to tell where Black would come out but very hard to tell where a Stanley Reed would come out because, indeed, that was Stanley's view. And very hard to tell where the Court would come out. And . . . and that then is again, would be perceived when the civil ri- . . . when a First Amendment case would come up, the [Hugo] Black component of the Court . . . the . . . the component of which Black--what I meant by that is he was just the most articulate spokesman for this general view--were generally fairly predictable. The other five were not. The other five were not. Sometimes they'd come out 9-0, and sometimes 33:00they'd come out 5-4 the other way, and then everybody would say, "Well, Stanley Reed was a swing man." [chuckle--Birdwhistell]

BIRDWHISTELL: That's interesting. That's . . . that's really interesting. I guess what I've been thinking about with what you're saying is in . . . in doing an . . . an interview like this on a Supreme Court justice, can you . . . is it fair at all, from what you're saying, to try to group together his record on civil liberties or civil rights and s- . . . come up with anything . . . come up with any knowledge of the man himself and his philosophy as . . . where does the . . . where does the justice's personal philosophy, with a person like Stanley Reed, who you are saying weighs these . . . each case as it comes up and all the different factors involved? Where does his personal outlook on society come into that? You . . . 34:00you see what . . . is that . . .

MANNING: I . . . I . . .

BIRDWHISTELL: . . . is that . . .

MANNING: . . . probably am not fully getting your question, because I th- . . . I think the reason for it is that I . . . I suspect that I have a different sense of how the human mind works.

BIRDWHISTELL: Well, I guess, I'm trying . . . what I'm trying . . .

MANNING: If . . . may I just . . . just add a sentence?

BIRDWHISTELL: . . . oh, I'm sorry.

MANNING: No, that's all right. My suspicion is that the human mind cannot work any other way. That there is no way in which Mr. Birdwhistell's judgmental capacity can operate in any way that is divorced from the aggregate personality experience, worldview, philosophy, value system, aesthetic reactions, analytic capacity that make up your totality of your personality. I do not believe that 35:00there is any difference. And so . . . and therefore, I want to answer your question, "Sure." [chuckle--Birdwhistell] Of course one's personality is involved and reflected, just because their . . . everybody's is [chuckle--Birdwhistell] all the time, right?

BIRDWHISTELL: I guess what I'm . . . I'm finding interesting about Justice Reed's career is that the criticism of the "nine old men" on the Court before the so-called "Roosevelt Court." Okay, Roosevelt appoints these people with a different view of society or what government should do, or how it should respond to problems, and then in Justice Reed's career, it seems like things kept moving away from him again, and he was caught up in this criticism of . . . he wasn't . . . he wasn't adjusting to the changing times, I suppose, is . . . as these cases following World War II were coming up, [such as] 36:00the un-American activities things, the civil liberties cases, and then eventually into the civil rights cases, although he . . . there are many cases where he would be on the so-called "right" side of that issue, there were some [chuckling] where he was on, some would say, the "wrong" side of it.

MANNING: Precisely. And therefore, what? I mean, the . . . you're . . . you're exactly making my point.

BIRDWHISTELL: I [chuckling] think so. I think you're right.

MANNING: I mean, setting aside the question as to whether you know which is the "right" side of it or not, . . .

BIRDWHISTELL: Right.

MANNING: . . . Stanley Reed was calling these shots; whatever you think of the outcomes, Stanley is voting. And everybody can have his own opinion. You know, that's useless to discuss, you know?

37:00

BIRDWHISTELL: Right.

MANNING: Whatever you think of the outcome, Stanley was almost a . . . a . . . a model of . . . of the decisional process, at least in my . . . in my perception. He did it the way you're supposed to do it. [chuckle]. He [chuckling] read all the material, he listened to all the argument, he listened to everybody else, he went and consulted his innards, and he made a decision. And of course that's a highly, intensely personal, intellectual and personality event. But that's what all judges do. Some of them do it sloppily. [chuckle-- Birdwhistell] Some of . . . no, some of it do it without reading the material well enough. Some of them do it without reflection. Some of them say, "Pow, [snaps finger] I've . . ." you know, instant reflex. You know, an instant decision of, "Well, I know what I think about that." Some of them do it lazily. Some of them . . . some of 38:00them shirk. Some of them, for psychological reasons which I can well understand, some of them really don't want to make that decision. It's a terrible responsibility. Terrible responsibility. People's lives hanging on a little thing. It's a grueling, grinding, psychologically draining experience. In those respects, I don't see how anyone could ever fault . . . could ever say other than that Stanley [chuckle] Reed was a first-class performer. And then when he came up with the answer, you may think it was a terrible answer, [chuckle--Birdwhistell] but that's a different question.

BIRDWHISTELL: Yeah, that's right. And the . . . probably people don't divide those things . . . separate those enough, those two . . . you know, he . . . well, I . . . I know one law clerk talking about having lunch with the other law clerks, you know, and having to defend Justice Reed. You know, he was . . .

MANNING: Yeah, but that's ideology.

39:00

BIRDWHISTELL: That's ideology, not . . .

MANNING: Oh, yeah.

BIRDWHISTELL: . . . not . . .

MANNING: Law clerks. Yeah, that's trivial. [chuckle--Birdwhistell] It really is trivial. You know, the law clerks had lunch together every day and everybody . . . everybody's very young and everybody's very sure of all kinds of things and everybody in that particular environment on that particular day was particularly caught up in enthusiasms about First Amendment cases particularly, and civil rights cases. Those two primary issues. And they found themselves inevitably with justices who were of a d- . . . who were a). older, b). more experienced, c). plugged into the political environment of the country, etc., etc., etc. Yeah.

BIRDWHISTELL: One thing I haven't asked you about yet is what it was like working with Justice Reed as a clerk. Apparently the justices on 40:00the Supreme Court used their clerks in different ways.

MANNING: Certainly.

BIRDWHISTELL: What . . . what were the ground rules for your being a clerk? What . . . what were you responsible for, and how much, you know, responsibility did . . . did you have?

MANNING: I always found this a delicate topic. I'm not going to avoid your question, but I just wanted to, by way of introduction, say I . . . I find this a delicate topic, and if . . . I want you to know that if . . . as it happens, I'm going to answer the question fully, but I could imagine circumstances in which I would not. Because I happen to feel, myself, outraged at what I consider the unwarranted and unacceptable garrulousness and . . . and violation of what I see as essentially a confidential working relationship. It happens that 41:00. . . now, I wanted to get that in as a statement of principle. It happens in that Stanley Reed's case it's wholly unnecessary, you know. [chuckle]. It . . . I really am complaining about some of the things that some people have said with regard to other justices, which I find outrageous and infuriating and . . . and worse. It happens in . . . in Stanley Reed's case it . . . I don't really care, because there really isn't anything to say.

[End of Tape 1, Side 1]

[Beginning of Tape 1, Side 2]

MANNING: . . . how . . . how . . . what is it like working with Stanley Reed? If . . . if you were a justice or I were a justice, of course, every . . . everybody works differently with his own 42:00secretary, everyone works differently with his law associates, with his law clerk. It's entirely a question of what . . . what kind of work you want to get done, and how . . . what your own working style is. So, you know, it . . . they're in- . . . they're inevitably highly personal and personalized. In Stanley Reed's case--I'm trying to break it into short form without being technical about it--it . . . you probably know what applications for certiorari are: applications to the Court arguing, for one reason or another, that this is a case which the Court ought to take. They're big monster things. Part of my job as a law clerk was to read all of those as they came in--they're tons of them--and to write a memorandum with regard to each one of them 43:00that I read as to, you know, what the argument was . . . a summary memorandum of what the argument was about, what the pros and the cons were, kind of a summation. And then usually--not always--usually to say it doesn't seem . . . some sort of a recommendatory sentence at the end that says, "It doesn't seem to me this is a new issue at all, or doesn't seem to me that . . . The argument is that there's a conflict in the judgments between Circuit A and Circuit B, but I've read the two cases, and [chuckle] they don't seem to me to be in conflict." Those were sort of a rapid entry for the justice. He then read them himself and he made the judgments on them. And obviously, you know, sometimes they came out where my own recommendation had come out, sometimes they didn't. It was a . . . it was a stepladder to speed along this crushing process of at least hundreds and hundreds 44:00of these. Every day they'd come piling in on a cart. You've no idea, really, what . . . the depression that they generated. Somebody would hand you another four feet [chuckle--Birdwhistell] of . . . of new . . . new material that's just tremendous.

BIRDWHISTELL: It was growing every year, at . . .

MANNING: Growing every year.

BIRDWHISTELL: . . . at that time.

MANNING: And it's much greater now than it was then. So one could be of some help in the kind of a pre-screening process. Sometimes--less often--sometimes one would write for him, also, a so-called "bench memorandum." Some justices used them a great deal. I remember that Justice [Harold] Burton did, for example. Others not so much. It was a kind of a fact-sheet reference tool for the judge sitting on the bench. Questions that he wanted to raise, references to pages in the record where he can say, "Excuse me, I don't understand this part of 45:00it here," addressing questions to the counsel. So sometimes turn those out, particularly complicated cases or cases with large records, cases in which he was interested. Not so often. Once in a while. As far as the opinion-writing process was concerned, Stanley Reed wrote his own opinions. It was just that simple. Once in a while, some of the time, you know, someone might write a draft of a part of something, someone might write a draft of a . . . take a point that needs to be addressed, that's . . . go write something about that and turn it in, and he would stitch it in somewhere in his own opinion if he thought he'd generally agree with it. Far more often than not, he'd look at it and say, "No, that's not what I want to say," [chuckling] and it would go in the wastebasket. But any- . . . anybody who . . . I don't know, maybe there have been clerks . . . maybe 46:00there have been some clerks for some justices who in fact, as in the popular vision, were significantly writing Supreme Court opinions. I can only report that that was never my experience at all. And we also helped him in all kinds of obvious ways. I mean, the obvious ways. A question would come up, "Could you go find out something about it?" So you'd go to the library and go try to find out something about it. Sometimes quite technical kinds of things. "What I'd like to say is this. Would you assemble the citation material to the, you know, extent that you can and . . . and do . . . help provide the footnote support for . . . for this proposition, if . . . if, in fact, it is properly supportable?" Obvious ways you would use a young 47:00. . . [chuckle] a young law clerk [chuckle--Birdwhistell]. But that's why I say there's no . . . the report in his case, at least from . . . with my experience, maybe other clerks had a different experience, but the report of my case would be there's nothing really to report. You know, [chuckle] you do all kinds of odds and ends that help the fellow get his . . .

BIRDWHISTELL: You'd do just what . . .

MANNING: . . . work done.

BIRDWHISTELL: . . . you were paid for, right?

MANNING: Paid for, exactly right. One thing, perhaps, one should say [is] one likes to think that he had some influence on the course of history once in awhile. Maybe we did, but it's at a very abstract and very amorphous level. He was always completely open to . . . in the same way that he was to Felix. I mean, . . .

BIRDWHISTELL: You [chuckling] could go in and . . .

MANNING: . . . exactly. Exactly right. As I [inaudible], "This is terrible! This is just awful! You just can't do this." "Well, sit down." I . . . "By all means." He would stand and rise, and the . . . the courtly grace. "By all means. I'd like to hear your views on 48:00the matter." And I'd sit and demonstrate, I thought most shatteringly, effective logic [chuckle--Birdwhistell] exactly what he ought to do. And he would smile at the end and say, "Well, Bayless, I [chuckle] thank you very much but, you know, the president of the United States and the Congress asked me to decide this question." [laughter] "And I just plain don't agree with you, and I've very sorry, but I'm very grateful, and thank you. And I want you to know whenever you have these viewpoints, I want to come in and . . . and present them and argue the point to me."

BIRDWHISTELL: Yes, that's a . . .

MANNING: "Thank you." [chuckle]

BIRDWHISTELL: Oh, me. That's interesting. So you felt like you got know him as a person, though. It wasn't all . . .

MANNING: Oh, . . .

BIRDWHISTELL: . . . very formal.

MANNING: . . . knew him . . .

BIRDWHISTELL: . . . was it?

MANNING: . . . very well.

BIRDWHISTELL: You got know him very well.

MANNING: Oh, I think so. I think so. Saw him all the time in . . . 49:00in his office, twenty times a day or whatever. And see him socially and in his home. We were very close.

BIRDWHISTELL: Well, I've certainly enjoyed talking with you this morning, and I know you have a . . . a very . . .

MANNING: I do . . .

BIRDWHISTELL: . . . busy day, and . . .

MANNING: . . . I do have some other chores to cope with, I'm afraid.

BIRDWHISTELL: . . . and I think with that we'll probably just close here, unless you have something more . . . more to add.

MANNING: Oh, I suppose one always has more to add. When the . . . when the reel is turned on and you start playing this tape, in the mind that . . . something you hadn't thought about for a long time.

BIRDWHISTELL: Right.

MANNING: There's a lot of things to say. [chuckle--Birdwhistell] Stanley Reed . . . Stanley Reed was an extraordinary human being, really. You know, his . . . he was . . . he was extraordinarily well educated in a formal sense, at a time when that was very unusual. 50:00And if you stop and think about the background that he'd had, having studied in Europe and studied at Columbia and . . .

BIRDWHISTELL: Virginia.

MANNING: . . . Virginia and all that, he was a nineteenth-century figure in . . . in every regard, except somehow or another he'd been cosmopolitanized at a . . . at a young . . . young age. That had something to do with his sense of kind of being on top of the whole situation. And . . . and by on top, I just mean secure, serene. I don't mean arrogant. It was not a . . . he was the most humble man in the world, in a way. [chuckle--Birdwhistell] He . . . he was not a powerful intellect. He was not at all a . . . a jurisprudential 51:00giant, and . . . and all the things that I have said about him are . . . have to do with his personality . . .

BIRDWHISTELL: Right.

MANNING: . . . and his manner of work and his process. He . . . he saw . . . and . . . and he saw that about himself. That is to say, he did not see himself as a . . . as an analytic, scholarly person. He saw himself as a man of immense goodwill, which he was, who loved his fellow man, which he did, who was at home with anybody, which he was, and whose judgment, as he would see it, was balanced and moderate and sensible and progressive at what he perceived as the rate 52:00at which society is capable of moving. He was always . . . he . . . he . . . he was always fond of quoting Talleyrand's statement about p- . . . "pas trop de zele"--not . . . not too much zeal. Yes, you are right, yes, that's where it's going, yes, we'll move that way, but, you know, one step at a time. Not too quick, because . . . not because he was fighting against it, but because he saw it as ineffective or producing counter-results that you were not going to want or getting out ahead of what the situation could accommodate to. In . . . in that sense, he always saw himself . . . he . . . he . . . he always saw himself as part of the moving, advancing, 53:00progressive, socially altering element of the Court. Always. He really was a very different person from what he perceived the . . . the pre-Roosevelt Court as being. I think he always thought that the most important thing he ever did in his life was to argue and win the gold cases, which were very radical indeed. He always thought that was the right decision, he always thought it was the right political thing to do, he always thought it was an illustration of how the society had to accommodate the changing circumstances, and that he himself was the person who was in . . . happened to be positioned where he could be 54:00in the vanguard of that kind of change. He felt very strongly . . . it's perfectly clear in his opinions, he felt very strongly about the importance of black people in the South being e- . . . being able to vote. They're citizens, they should vote, they should be able to vote. And if any demonstration can be made that anybody's keeping them from voting, they should be severely punished. Crystal clear, and . . . and uncomplicated. I mean, extremely uncomplicated. He had never had any other view about [chuckle--Birdwhistell] that, and I'm sure that would have been true when he was living in Maysville, when he was in, you know, in 1905, 1910. He'd have been perfectly clear about that. Of course! [chuckle] How could . . . he was not . . . not a great, 55:00deep thinker, not a great analyst, not a great prose craftsman, either, heavens no. Unbelievably decent man and a fine human being and . . . and I never . . . you may . . . I would be extremely interested in--I've done all the talking, I guess, I'm supposed to in this case- -I'd be very interested if you ever find any dissent from that. If you ever . . . I have never seen anyone who [chuckling] who knew Stanley Reed, male, female, black, white, young, old, Left, Right. I've never known anybody who knew Stanley Reed who had any other view of that man.

BIRDWHISTELL: Yeah. I've yet to find one [chuckle], too.

MANNING: Lovely guy.

56:00

BIRDWHISTELL: Well, thank you very much.

MANNING: Okay?

[End of Interview]

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