I first saw Henry W. Sawyer, III in action in 1973 when I served as his junior associate in an unfair competition case that had been transmuted into a Sherman Act section I claim. The defendants retained Henry after suffering what was for them a catastrophic verdict at the hands of a jury in a Philadelphia federal court. When I came into Henry's office, he explained to me that the five individual defendants were facing personal ruin as a result of the verdict and, more immediately, from execution on the seven-figure treble damage award.
Our urgent task was to stay execution on the judgment, while the plaintiff corporation, through its able counsel, was insisting that the individuals post their houses as security for the stay under Rule 62(d) of the Federal Rules of Civil Procedure. Since all five of these men were married, this meant that their wives' interests were at stake and, as one would expect, they were horrified at the prospect of losing their homes. We therefore filed a motion on behalf of the wives (as well as their husbands) for relief from this Draconian condition, and shortly thereafter, I for the first time, saw Henry Sawyer as an advocate, pressing our motion before my now-colleague, Judge Raymond Broderick.
What immediately struck me as I heard Henry arguing our motion was what a terrific, impressive voice he had. If memory serves correctly, we were seated in Judge Broderick's chambers at the old Federal Courthouse at Ninth and Market Streets in Philadelphia. Seemingly without raising the volume, Henry Sawyer's rich bass voice nevertheless filled the room and kept everyone--most importantly, Judge Broderick--in rapt attention. I still can hear the sound of that voice saying to Judge Broderick, at a time when the women's movement was still largely a gleam in feminists' eyes, "Your Honor, women are people. They have an existence and interests separate and apart from their husbands. These women had nothing in any way, shape, or form to do with what the plaintiff claims in this case."
To my amazement, and before my very eyes, the voice worked its magic. At least to the extent that we were given the opportunity to provide substitute security--as it turned out, for less than the full amount of the verdict--the marital homes were never again in danger. Indeed, the case ultimately settled on appeal,(1) on terms that brought our clients back from the brink of bankruptcy and enabled them to put their energies and talents to rather rewarding business successes in later years. As one might imagine, they were convinced that Henry W. Sawyer, III had saved their business and personal lives. They were right.
I thereafter had the great good fortune of working closely with Henry Sawyer in other commercial litigation, most notably Outboard Marine Corp. v. Pezetel.(2) In that case, we represented the then-state-owned Polish entities who made golf carts that sold so successfully in this country that the domestic manufacturers of those vehicles became rather upset.(3) In Pezetel and in other cases, I heard that unforgettable voice, witnessed its crafty modulations, and beheld what it could do to many tribunals and gatherings of lawyers.
Indeed, over the course of the more than fifty years that Henry Sawyer practiced after his graduation from this law school in 1947, he used that highly sophisticated voice in many cases in courts around this country.(4) As successful as Henry Sawyer was in tuning that voice to advance the interests of his paying clients, he always in my years of practice with him saw those cases, however zealously he argued them, as a means to a larger end. Successful as he was in these private, and largely commercial, cases,(5) the reason this Law Review has gathered these tributes is because of Henry Sawyer's contribution in public interest litigation. And it was in that litigation that one always found Henry Sawyer's heart and, above all, his voice in its most resonant and powerful pitch.
Henry Sawyer usually is identified with his successes in two of the century's most important Establishment Clause cases, School District of Abington Township v. Schempp(6) and Lemon v. Kurtzman.(7) There is no question that both cases constitute major legal landmarks in First Amendment jurisprudence, as well as in the everyday life of any American who has ever set foot in a public or sectarian school. Given the lopsided votes in the Supreme Court, however--eight-to-one in Schempp and seven-to-one in Lemon(8)--a detractor might contend that Henry Sawyer was just lucky enough to be in the right place at the right time and won two cases that really did not depend on the power and sound of that great voice. Although I would argue to the contrary--particularly given the reality that Henry lost before the Lemon three-judge court(9)--it seems to me hard to dispose of such detraction, at least directly.
Another Supreme Court case, however, provides conclusive evidence that Henry Sawyer's voice indeed made a decisive difference, not only in those two Establishment Clause cases, but also for the cause of liberty in this country.
I refer to the case of Deutch v. United States.(10) At the time young Bernhard Deutch came to Henry Sawyer's office, the nation was consumed in what we now call the McCarthy Era. The facts of Bernhard Deutch's case demonstrate how far the Zeitgeist had taken our political and legal life from its constitutional moorings--as well as from the common "decency" to which Joseph Welch referred in his famous colloquy with Senator McCarthy.(11)
Two months before Welch's rhetorical questions about Senator McCarthy's "decency," Bernhard Deutch was working in the...