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CHAPTER 7 The Ear and Pen of Clerks for Life Barnette, THE SECOND FLAG SALUTE CASE, marked the end of my "judicial career," spent as a clerk for Judge Magruder and Justice Frankfurter. But I continued to serve as Mr. Justice Frankfurter's law clerk for life. He regarded law clerks, present and past and no matter where they were, as still his law clerks. We were his boys, his family. And he made no attempt to disguise his views in talking to me or to the other former law clerks. He had a banquet, or we gave him a banquet , every year around the thirtieth of January , his judicial anniversary. It would go on until the early hours of morning, and he was invariably the last one to want to go home. We'd talk about everything at the Frankfurter banquets; he kept nothing back. That explained his candor in discussing colleagues and things at the Court with me over the years, even though I was in the Solicitor General's Office, a lawyer for the principal litigant before the Court. When he was talking to me, he was talking to his law clerk, his intimate, his confidant. He wasn't talking to an assistant to the solicitor general. I respected his confidence as much as if I were a priest. I never passed on to anyone what he told me until this conversation . Judge Magruder told me a story about his efforts to hold a banquet for Justice Brandeis. He and other Brandeis law clerks wanted to Ret up a dinner in his honor on his twentyfifth anniversary. "Mrs. Brandeis squelched the idea." She said the justice wouldn't like it, wouldn't want us to s1)cnd our money that way, and would much prefer it if each of us would sit down and write the justice a letter telling him what we had been doing for the advancement ofmankind. "Since most of us," Magruder said, "couldn't think ofanything we had done for mankind, the suggestion fell through!" ]27 128 With All Deliberate Speed During the years that I was in the SG's office, I would often be in [the Supreme] Court listening to arguments or the reading of opinions, and something would occur to the justice that he wanted to tell me, and so he would send me a note from the bench. I threw almost all them away until the late 1950S, when I realized they were too good to be discarded. Now I have a small carton of these notes. I've pulled a few out, to give you the flavor of the man: irrepressible, happy, funny, sometimes perverse , catty, into everything, missing nothing, no matter how petty, et cetera. Another thing: he loved to express himself in Yiddish, which I understood and appreciated. For example, here's a note, May I, 1961, when Chiefjustice Warren was making some Rotarian remarks to a large group of lawyers being admitted to the bar of the Court: "My mother used to say 'Er red vie! wenn der Tag ist lang,'" which means, "He talks a lot when the day is long." Another note, on June 5, 1957, during the reading of opinions: "My over-all feeling is Oi-Wei!!" [What a mess!!]. When Warren seemed to him to be badgering a lawyer unfairly in Thompson v. Louisville on January 12, 1959, I got this sarcastic note: "If you'll stick around here long enough, you can perhaps rub off enough of the great art of skillful cross-examination-delicate and subtle." During Justice Whittaker's reading of every word of his long, dull opinion in Parsons v. Smith, April 6, 1959, Frankfurter sent me this note: "I think the opulent reader is still in the lawyer's habit of charging his clients by the hour." In the same case I got a note from Tony Lewis, who was then the New York Times Supreme Court correspondent: "Shortly after Whittaker came on, Al Sacks [Frankfurter's law clerk] asked FF what he thought. FF responded: 'He's going to bore me to death.' A fair forecast." Most of the notes I got from him during oral arguments contained comments, usually unfavorable, about the lawyers. He was a captive audience and sometimes found listening to these arguments a great bore. During the argument of a tax case, he sent me this note (November 12, 1954): "I'm not saying I earn my salary-but don't...

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