Griswold, Erwin Nathaniel
Griswold, Erwin Nathaniel
(b. 14 July 1904 in East Cleveland, Ohio; d. 19 November 1994 in Boston, Massachusetts), lawyer, government official, and law school dean who argued the case of the Pentagon Papers in the U.S. Supreme Court, published the first legal casebook on federal taxation, and served as dean of Harvard Law School for twenty-one years.
Griswold was the son of James Harlen Griswold, a lawyer, and Hope Erwin Griswold. He graduated from Cleveland’s Shaw High School in 1921 and enrolled in Oberlin College. He graduated from Oberlin in 1925, receiving both an A.B. degree in political science and an M.A. degree. Thinking that “the chances of making a living were probably better in the law” than in astrophysics, Griswold entered Harvard Law School in the fall of 1925. He served as the president of the Harvard Law Review and graduated summa cum laude with an LL.B. degree in 1928. He received an S.J.D. degree in 1929. On 30 December 1931 Griswold married Harriet Allena Ford; they had two children.
After practicing for one month at his father’s law firm in Cleveland, Griswold moved to Washington, D.C., in October 1929. He had accepted an offer to join the office of the U.S. Solicitor General, which represents the federal government before the Supreme Court. He quickly became its expert on tax law and argued more than twenty-five cases before the Court before he left to join the Harvard Law School faculty in 1934. He won so many that Chief Justice Charles Evans Hughes said that his departure would cost the government a great deal of money.
At Harvard, Griswold taught the first course on federal taxation in the country, and in 1940 he published the first casebook on the subject. Taxation remained his major scholarly interest, although he later said that conflict of laws, which concerns the law that is applied in a particular case, was “really my favorite subject.” In 1946 Griswold was named dean of the law school, the first choice of “almost all” faculty members.
As dean, Griswold revamped and upgraded the law school’s physical plant, library holdings, and financial holdings. He brought about the admission of women (1949) and a substantial increase in the number of black students. The size of the faculty was doubled and the curriculum was greatly enlarged to include specialized courses such as labor relations, family law, and copyright, and international legal studies became a major focus. Griswold also developed an extensive publications program and strongly encouraged the faculty to perform public service.
A liberal Republican, Griswold publicly opposed President Harry Truman’s 1947 executive order reviewing the “loyalty” of all federal employees. At the height of McCar-thyism in 1954, he delivered three speeches on the Fifth Amendment, describing the right against self-incrimination as “an old and good friend” and “one of the great landmarks in man’s struggle to make himself civilized.” Widely reprinted and then published as a book, The Fifth Amendment Today (1955), the speeches gave civil libertarians much needed support. In 1961 President John F. Kennedy appointed Griswold to the Civil Rights Commission, and at meetings across the country Griswold forcefully interrogated witnesses to expose lawlessness and injustice. He supported the thrust of the Supreme Court’s decisions during the 1950s and 1960s, despite vociferously disagreeing in specific areas such as tax law and school prayer.
In September 1967, after Solicitor General Thurgood Marshall was appointed to the Supreme Court, Griswold’s Harvard colleague Archibald Cox recommended him to Attorney General Ramsey Clark as Marshall’s successor. Cox, Marshall’s predecessor in the Court’sterm, made this recommendation without Griswold’s knowledge, but Cox was aware that Griswold was becoming increasingly frustrated with certain aspects of his role at Harvard. The complexities of federal tax law made teaching the subject less exhilarating, and Griswold had begun to chafe at the constant fund-raising the law school required. In an address celebrating the school’s sesquicentennial, he noted the “inadequacy of many of our premises, and the fact we are often thinking about the wrong things when we are carrying out our intellectual processes…. Even in [law] it may be true that ‘The letter killeth but the spirit giveth life.’ “Griswold felt that law schools should search for the student who “really has fire in his belly.” So when Clark asked Griswold if he would be willing to have his name submitted to the president to be solicitor general, he took “15 agonizing seconds, and said yes.” Griswold’s was the only name on the list. “It was the only job I ever really wanted,” he later admitted. Griswold retired from the Harvard deanship, and was confirmed as U.S. Solicitor General on 23 October 1967.
As an advocate before the Supreme Court, Griswold spoke forcefully and carefully. His argument style, noted the distinguished attorney John P. Frank, was “American Gothic snowpile.” He moved inexorably ahead without dazzling theoretical leaps or rhetorical flourishes. One justice said he was “like the U.S.S. Griswold. Questions from us just bounce off him harmlessly as he cruises through his speeches.” In one case that he argued as friend of the court, Griswold placed his chair squarely in the middle of courtroom in order, as he told the court, to make it apparent that he was there as a true friend of the court rather than a friend of one of the parties.
While Griswold upset some Democrats by advocating civil rights less aggressively than they wished, he also annoyed Republicans by refusing to defend federal aid to religious schools or the government’s policy of revoking draft deferments of students who demonstrated against conscription for the hostilities in Vietnam. Griswold’s most prominent case was in 1971 and involved the Pentagon Papers, a classified government study of American involvement in Vietnam that the New YorkTimes and the Washington Post published. Griswold wrote a brief defending the government’s action to prevent publication on grounds of national security and argued the case in less than twenty-four hours. “It was not my favorite case,” he later said. “I had a job to do.” The Court ruled decisively against the government, upholding the right of the press to publish the study. In 1989 Griswold wrote that he had “never seen any trace of a threat to the national security from the publication,” which was “harmless.”
In December 1972 the Nixon administration announced that Griswold would be replaced, and in July 1973, at the end of the Court’s term, he left to enter private practice with the Cleveland-based firm of Jones, Day, Reavis and Pogue. He continued arguing cases and engaged in a variety of international peace endeavors. Griswold argued 118 cases before the Supreme Court. He died after a brief illness at the age of ninety.
Griswold served as a trustee of Oberlin College from 1936 to 1980 and as a member of the Council of the American Law Institute from 1953 to 1994. His stiff, sometimes gruff manner and his shyness hid a humane and caring nature. Griswold was a reformer who pursued a philosophy of gradual yet ceaseless change while snared in unrelenting traditionalist garb.
“Built like a granite block” and “just as inflexible in his conceptions of basic rectitude” (there were no divorces on the faculty during his deanship, ran one joke, “because no one would have dared”), Griswold was forthright almost to a fault, ruthlessly plain in language and manner, and often wore a whimsical smile. His humor was generally flat-footed, although it could be understated: he kept on his office wall a plaque that said, “Babe Ruth struck out 1330 times.”
Griswold’s papers are at the Harvard Law School Library and the Harvard University Archives; the former contains a lengthy bibliography. A small collection is at the Oberlin College Archives. Records pertaining to his service as solicitor general are at the National Archives. Griswold’s autobiography, Ould Fields, New Come: The Personal Memoirs of a Twentieth-Century Lawyer (1992), is essential reading for anyone interested in his life and career. His role in the Pentagon Papers case is treated in Harrison E. Salisbury, Without Fear or Favor (1980), and Roger K. Newman, Hugo Black; A Biography (1994). Other sources include the New York Times, (14 Nov. 1960, 10 Sept. 1967, 2 Oct. 1967); Joel Seligman, The High Citadel (1978); Lincoln Caplan, The Tenth Justice (1987); “Dean Erwin Nathaniel Griswold 1904–1994,” Harvard Law Bulletin (summer 1995); tributes in Harvard Law Review (vols. 86 and 108); Ken Gormley, Archibald Cox (1997); and Charles Alan Wright, “‘A Man May Live Greatly in the Law,” Texas Law Review (vol. 70). Obituaries are in the Washington Post and Boston Globe (both 20 Nov. 1994), the New York, Times and Los Angeles Times (both 21 Nov. 1994), and the Times (London) (23 Nov. 1994). Also see “Interview with Erwin Griswold,” University of Connecticut Center for Oral History (1988).
Roger K. Newman