Justice Frank Murphy and American labor law.

• Author: St. Antoine, Theodore J.

INTRODUCTION

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ... that his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce." (1) In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review some of the major labor and employment decisions analyzed by Professor Cox and assess their continuing impact on American law.

1. THE MAN, THE UNIVERSITY YEARS, AND THE POLITICAL CAREER

   Frank Murphy was a study in contrasts. He was born in 1890 and grew up in a small town in the rural "thumb" area of Michigan, enjoying a fun-filled, Tom Sawyer-like boyhood. (2) Harbor Beach was always "home," the one place where he could return to find peace. (3) Yet from an early age Murphy aspired to the social cachet of the best metropolitan clubs, and he became a masterly big-city politician, one of the great, if not the greatest, of Detroit mayors. (4) He was known as a ladies' man, attracted by, and attractive to, a bevy of rich socialites, but he never married. True to one Irish-Catholic stereotype, as biographer Sidney Fine put it, Murphy's pious and loving but demanding mother remained the "darling" of his life. (5) And, probably in reaction to his father's alcoholism, Murphy never drank. Lastly, for all his middle-class upbringing and ambition to rise in the world, Murphy as a youngster learned political activism on behalf of the oppressed from his lawyer father (primarily, to be sure, the oppressed in Ireland), as well as racial and religious tolerance from his mother. (6)

   Murphy was an indifferent student at the University of Michigan, which he entered in 1908. Nonetheless, he described his life in Ann Arbor as "simply one grand thing after another." (7) He declined an invitation from a college fraternity that denied membership to a Jewish friend but wound up as head of the Sigma Chi chapter. He was a leader in a wide variety of extracurricular activities, became renowned as a campus orator, and was elected to several college honorary societies. For a sociology course, Murphy wrote a paper on "Politics and the Laborer," reflecting his progressive views and presaging his future advocacy of workers' causes. All students with less than stellar academic records, however, should take heart from his performance in the Law Department. In his senior year, Murphy had two B's, eight C's, a D, and an E (failure). He managed to receive his law degree on time in 1914 only because the faculty, the day before graduation, granted his petition for two additional credit hours (with a D grade), retroactively, in a first-year property course. (8) A demonstrative man, Murphy later wrote his mother about the University, "I love and worship the place." (9)

   Following graduation, Murphy spent three highly successful years as a trial lawyer in a substantial Detroit firm. On the side, he taught night school in a poor immigrant neighborhood, an experience that was one of the "shaping influences" of his life. (10) In 1917, Murphy became an Army officer, thanks to an intensive ROTC program. He arrived at the French front the day Armistice was declared, apparently upset that "Fate" had "called off the war" and prevented him from leading troops in combat. (11) Murphy returned to Detroit to become First Assistant U.S. Attorney in 1919. (12) Thus began a career in public service that, with little interruption, would last a lifetime.

   In 1923, Murphy became the youngest person ever elected to the bench in Detroit's Recorder's (Criminal) Court. (13) He emerged as a hero for the city's African Americans when he presided over the famous Sweet trials, in which Clarence Darrow, helped by Murphy's evidentiary rulings and jury instructions, secured the acquittal of a black householder who had fired on a white mob outside his home. (14) A combination of blacks and white ethnics elected Murphy as mayor of Detroit in 1929. (15) Detroit was one of the hardest hit economically of American cities during the Great Depression, but Murphy was credited with considerable success in confronting the intertwined problems of welfare benefits and city finance. (16) He was overwhelmingly reelected in 1931. (17) Then President Roosevelt, mindful of the importance of the Catholic vote to the Democrats, stepped in and appointed Murphy, first, as governor-general and, later, as high commissioner of the Philippines. He served from 1933 to 1936, when the exigencies of Michigan politics and Roosevelt's reelection hopes called for Murphy's return to run for governor. (18) He won in a close race, riding Roosevelt's coattails rather than the other way around. (19)

   The governorship made Murphy a major national figure. The most dramatic event was the great sit-down strike at General Motors ("GM") in 1936-37. Workers at several Flint plants, seeking to organize on behalf of the United Automobile Workers ("UAW"), occupied the buildings and refused to leave. Murphy regarded the action as an illegal trespass and he called out the National Guard to maintain order. But the Governor was opposed to bloodshed and refused to use the Guard or State Police to eject the strikers forcibly. (20) Instead, Murphy personally intervened as mediator between GM and the UAW. He proved adept in the role, and the strike was eventually settled, with GM recognizing the UAW as the bargaining representative for its members. (21) A close observer declared the result "the high point in Frank Murphy's entire career," and Time talked about "Murphy for President in 1940." (22)

   Despite the plaudits immediately accorded Murphy for his success in handling the Flint situation, other sit-down strikes continued to plague Michigan, and the state remained predominantly Republican. Murphy was defeated handily in his bid for reelection in 1938. (23) Shortly thereafter President Roosevelt appointed him Attorney General. (24) Murphy took on his new duties with gusto. He played significant roles in the appointment of several distinguished members of the Supreme Court and the courts of appeals; helped expand antitrust enforcement, not only against corporations but also against professional organizations and labor unions; and relentlessly pursued tax evaders, underworld kingpins, and entrenched political bosses of both parties. (25) His short tenure as Attorney General has been authoritatively described as "one of the most remarkable years of service in the history of the Justice Department." (26)

   In November 1939, Roosevelt told Murphy he was the President's choice to fill the Supreme Court vacancy left by the death of Pierce Butler, another Catholic from the Midwest. Murphy resisted. He felt he was being kicked upstairs, away from the active life he prized, and he still harbored visions of the presidency. Moreover, this was also one of the few times this notoriously ambitious man seemed genuinely humble. He regarded the Supreme Court as "beyond his grasp" and "fear[ed] that my work will be mediocre up there." (27) When the formal announcement of Murphy's nomination was made in January, however, there was "almost universal praise." (28) Murphy's admirers realized he was no legal scholar but believed his familiarity with government, political savvy, and big heart more than offset any deficiency.

2. MURPHY AS SUPREME COURT JUSTICE

   Because of illness, (29) Murphy did not take his judicial oath of office until early February 1940 and did not fully enter upon his duties at the Court until the end of the month. (30) By then the Court was in the middle of its annual term, and Murphy accepted as his first law clerk a young man who had clerked for a year on the Second Circuit and was recommended by Felix Frankfurter. Subsequently, Murphy concluded that this person was a Frankfurter "plant" within his chambers, and thereafter he chose no one as clerks except high-ranking graduates of the Michigan Law School. Even there, he tried to narrow his selection to a known group. His first three Michigan clerks all came from the class of 1940: John J. Adams, John H. Pickering, and Eugene Gressman. Adams served one year, Pickering two years, and Gressman five years, all one at a time in sequence. Murphy had two clerks during his last year, 1948-49, John R. Dykema, class of 1947, and Thomas L. Tolan, class of 1948. (31)

   There seems no doubt that Murphy made the final decisions in cases before the Court, both on petitions for certiorari and on the merits. But he relied heavily on his clerks for summarizing petitions and drafting opinions, and he was even prepared to listen to their advice on how to vote, especially on certiorari petitions. (32) The Justice was concerned with style as well as substance. John Pickering related that after Murphy satisfied himself about the technical aspects of a draft, he might gently admonish a clerk in a case that had particular appeal to him, "It needs a little poetry!" (33) Murphy was well aware of the power of a resounding, quotable phrase to enhance the persuasiveness of a decision. He also stressed that he wanted opinions that were short, simple, and readable, so that they could be "understandable to every American." (34)

   During his short nine years as a Justice, Murphy expressed himself, in concurrences and dissents as well as in opinions for the Court, in a number of significant decisions dealing with civil liberties, civil rights, and labor and employment law generally. I now turn to some of the most memorable and influential of those cases.

3. PICKETING AS FREE SPEECH: THORNHILL

   New Justices are traditionally allowed to select their initial writing assignment, and Murphy could not have asked for anything more fitting than...