A Landmark Career in Law
John H. Pickering argued his very first case before the U.S. Supreme Court—a rare loss followed by many precedent-setting victories in the public interest
Our interview offers only a snapshot of John Pickering's career. Other defining cases the native of Harrisburg, Illinois, worked on have covered issues such as the checks and balances between the branches of the government (in Powell v. McCormack), physician-assisted suicide (in Vacco and Glucksberg), and elder care for which he has testified on behalf of the American Bar Association before the Subcommittee on Social Security, House Committee on Ways and Means.
One could easily say that he has been involved in many of the most important cases of the 20th century and continues to be involved since he is still practicing at 88 years old. That is among the reasons American Lawyer magazine placed him in its first group of a dozen Lifetime Achievement Award honorees, who were announced this May. The magazine cited Pickering and his partner Lloyd Cutler as "distinguished lawyers who had built great private practices and firms" and had "made important contributions to public life."
For more than 60 years, John H. Pickering '38, '40 JD, has been involved in litigation that has shaped the basic laws of the land. He started at the top, arguing his very first case before the Supreme Court of the United States, and has stayed there. He has participated in cases that have limited the powers of the president of the United States. He defended the NAACP in a situation that could have bankrupted it. And along with his partners at Wilmer, Cutler and Pickering, he was at the forefront of providing pro bono legal services for those who otherwise could not afford them.
After law school, Pickering had the same goals as almost all his Depression-era fellow graduates, to get a job and start earning money. He started out with a prominent New York City corporate law firm, but his career quickly and unexpectedly changed course and he wound up in Washington, D.C., where he built a career distinguished by landmark public-interest cases. Nancy Marshall, an information officer at the Law School, interviewed Pickering about his career for Michigan Today.
Michigan Today: What in your personal or educational background led you to shift from corporate law to the public-interest area?
John H. Pickering: It grew out of my clerkship for U.S. Supreme Court Justice Frank Murphy, who was also both a University of Michigan  and Law School graduate . Justice Murphy believed in protecting the rights of the individual and the minority against the majority.
I was in Law School during the Great Depression, the time of the Flint sit-down strikes [by auto workers seeking to strengthen their unionMT] in 1936-37, when Murphy was governor of Michigan. Governor Murphy resisted sending in the troops and worked out a compromise between the unions and management. His handling of the situation was eventually universally praised, but at that time I was probably with the law and order people who criticized Murphy's refusal to use force to break the strike. However, my years with Murphy changed my attitude.
How did you wind up arguing before the Supreme Court?
I had just gotten out of the Navy after World War II and was working with a small firm in Washington. I got a call from the Supreme Court deputy clerk in 1946. The Court wanted me to represent a poor defendant. This was the system before there were public defendersthe Court clerk would call past judicial clerks for the Court. You didn't say noand who would want to? I worked hard on the briefit was the first time I appeared in any court, not just the Supreme Court.
Prior to his case getting to the Supreme Court, my client had made an argument that was wrongly based. I tried to make a decent defense, and of course all of the justices knew me and had fun asking me questions. But I lost the case. Justice Murphy later told me he was sorry he had to go against me, but he had to do the right thing.
Did you intend to take the sorts of cases you became well known for, or did they just start coming to you after a while because of the previous cases you had been involved in?
You can't determine the future, so I took cases as they came, but I was interested in Supreme Court cases with a public interest component. Take, for example, Youngstown Co. v. Sawyer, the 1952 litigation challenging President Truman when he seized the nation's steel mills. The New York firm I'd worked for briefly had represented Bethlehem Steel and the lawyer in charge had confidence in me as someone who knew his way around the Supreme Court. The case ultimately limited the powers of the president. President Truman had chosen not to use the Taft-Hartley Act, by which he could have imposed an 80-day cooling off period based on the threat of a strike. He also bypassed the Congress by not requesting special legislation to avert the situation, which would have been the other appropriate action. The steel companies' suit argued that the Congress should have proceeded against them, not the president. The Court agreed.
What was the case in which you perhaps saved the NAACP?
That case came to our firm because of the work we had done for the Lawyers' Committee for Civil Rights under Law, an organization that was started in 1963 as a result of a White House meeting called by Atty. Gen. Robert Kennedy. The Committee was an organization of private lawyers and law firms committed to working on civil rights matters. A group of prominent lawyers including my partner, Lloyd Cutler, was asked to provide legal help to the civil rights movement, which included providing legal services to the NAACP. In 1966, the NAACP organized a boycott of merchants in Claiborne County, Mississippi, because the merchants wouldn't hire black store clerks.
We handled that case, NAACP v. Claiborne Hardware Co., in the Supreme Court of Mississippi, where we lost seven to nothing. The court let our partner James Robertson argue without asking a single question, so he knew he had lost the case. We sought U.S. Supreme Court review, which was granted in 1982. I was on the brief and my partner Lloyd Cutler argued the case. It was an important case because the treble damages that had been assessed by the Mississippi Supreme Court would have put the NAACP out of business. We won nine to zero in the Supreme Court. We argued that the boycott was a form of protected political protest similar to the Boston Tea Party where Boston merchants threw tea overboard rather than pay taxes imposed without consent. The NAACP case was one of which I am very pleased to have had a part.
The NAACP case began during a time of tremendous discord. Did you ever feel that you were in danger because you were helping?
No, I was safe in Washington, but others in Mississippi experienced threats. Years later I got to know Justice Thurgood Marshall. The stories he had to tell were quite something. He liked to sleep by a window so he could get out quickly if need be.
My present wife is the widow of Skelly Wright, who served as a judge on the U.S. District Court for the Eastern District of Louisiana in New Orleans during the time of Brown v. Board of Education (1954). After Brown, it became the job of the lower courts to implement desegregation. The Wrights had a cross burned on their lawn and received threatening phone calls. They had a very difficult time, and it was not only a well-deserved promotion when Judge Wright was appointed to the U.S. Court of Appeals in Washington, but it was also a relief from the bitterness and strife produced by the desegregation cases.
There were a lot of courageous private lawyers who took some real chances. And it wasn't just the threat of violence in the Southit was the fact of two different societies. James Robertson, who was a partner with our firm, went to head up the Mississippi office of the Leadership Conference on Civil Rights. The first day he was there he bumped into one of his Princeton classmates. After exchanging pleasantries, James told him he was opening an office for the LCCR, and the classmate cut him off as if they had never known each other.
How did you get involved in the University's affirmative action cases?
In 1997 Jeffrey S. Lehman, then dean of the Law School, called me and said he thought that the University was about to be sued because it used race as one of many factors in deciding admission to the University and the Law School. He wanted to know if my firm and I would be available to defend them if that happened. I said we would be pleased and honored to do so, and we did. John Payton was our lead attorney, and I was in charge of the overall development of the case. I got the team together and worked with the University counsel and co-counsel from the Detroit firm of Butzel Long. In my role I was able to guide the points that were put forward. The argument in the Supreme Court was divided between our firm, represented by John Payton, and Latham & Watkins, represented by Maureen Mahoney. We worked closely and easily together for a successful result.
When you started the firm Wilmer, Cutler and Pickering and developed the goal of devoting at least 10 percent of your time to public service and pro bono representation, how common was that practice among law firms?
Our policy was relatively unusual when we started our firm. We were all veterans of World War II and we had the idea to devote 10 percent of our firm effort to pro bono work in the public interest. Our law firm was the first to sign on to the ABA [American Bar Association] pro bono commitment. Major companies have also started their own pro bono programs. The auto industry is a prime example. In choosing firms from around the country to handle their business, they want to know what percentage of the firm's business is pro bono. You could say that the result of our policy was to do well by doing good.
Also, many major corporations played a principal role in the survival of the federal Legal Services Corporation (LSC), which funds legal services for the poor. When Ronald Reagan was governor of California, he and some of his advisers didn't like the help that legal services gave to the farm workers. Later, when Reagan became president, his administration did what it could to water down or kill the LSC, but many major corporations stepped in and defended the LSC programs because the system helped their employees.