Letter to the Editor

Abstract

Letter to the Editor The Journal has recently published two competing articles relating to the claim made by Justice Douglas thirty-five years ago that he wrote both the majority and minority opinions in Meyer v. United States, 364 U.S. 410(1960), a decision that the official reports show Justice Whittaker writing for the majority with Douglas in dissent. Professor Craig Alan Smith concluded in his 2014 article in this Journal that Douglas’s claim was “pure fabrication.” Professor David J. Danelski undertook to rebut Professor Smith in a 2015 Journal article. Those who accepted the Douglas claim saw it as testimony to Douglas’s skills, an indication of Whittaker’s inadequacy, or both. As a former Whittaker clerk, I believe the correct answer is none of the abcve, because the Danelski rebuttal only partially succeeds in hitting its target. Surprisingly, Professor Danelski makes no serious attempt to defend the claim that Douglas literally wrote both opinions in the case. Instead, he suggests that a proper interpretation of Douglas’s claim is that “Douglas had written a draft that was the basis ofthe opinion Whittaker handed down.” Danelski further suggests that “Whittaker revised the language but not the substance of Douglas’s draft before he circulated his majority opinion.” But not even those modi­ fied observations are fully supported by Danelski’s own analysis. Meyer was a federal estate tax case from the Second Circuit, heard by the Court because of a conflict with the Third Circuit. The case was argued on October 12, 1960. The original vote was 5-4 for reversal in favor of the petitioners. Douglas was assigned the majority opinion and circulated a draft on November 2. Whittaker circulated a short, two-paragraph dissent on November 3. Justice Frankfurter, then Justice Harlan, switched their votes. Ultimately, the lineup went from 5-4 Douglas to 6-3 Whittaker. As a result of the vote switches, the majority opinion in Meyer was officially assigned to Whittaker on November 15. Douglas visited Whittaker that day and found Whittaker quite upset because he was unable to start writing his majority opinion. Douglas offered to provide a draft and Whittaker accepted the offer. According to Douglas, the draft was in Whittaker’s office within an hour. As Professor Danelski notes, however, both Frankfurter and Harlan had also provided material for Whittaker to consider, with Harlan focusing on the legislative history of 124 JOURNAL OF SUPREME COURT HISTORY the statute involved. Whittaker circulated his majority opinion on November 17, two days after the Douglas visit. Professor Danelski views this short turnaround as significant because of his view that “Whittaker, unlike Douglas, did not write quickly or easily.” Although Danelski correctly notes that Whittaker did not use his clerks to draft opinions assigned to him, Whittaker actually had been quite productive in the October-November time frame. Aside from his dissent in Meyer, he had in that same period also circulated majority opinions in McPhaid v. United States and Aro Mfg. Co. v. Convertible Top Replacement Co., as well as a dissent in United States v. Hoitgham. That level of activity seems to contradict any suggestion that Whittaker was slow in producing opinions at that time. The final Whittaker opinion in Meyer was handed down on November 21. It consisted of only eight paragraphs. Although Professor Danelski apparently could not locate a copy of the November 15 Douglas draft, he shows that the first paragraph of the Whittaker opinion is attributable to Douglas by referencing Douglas’s earlier November 2 majority draft recirculated on November 4. Danelski then contends that paragraphs two through five of the Whittaker opinion are a mix of Douglas and Whittaker. None of the first five para­ graphs is consequential. They merely set out the history of the case, the undisputed facts, and the petitioners’ arguments. Professor Danelski then acknowledges that paragraphs seven and eight are “almost identical” to the two paragraphs that com­ prised Whittaker’s original dissent, with two additional sentences. These two substantive paragraphs are central to the opinion. They address and refute the petitioners’ main argument and explain how the majority interpreted the relevant statute to refute the petitioners’ statutory argument. Notwithstanding his discovery...