Anything is possible in a court of law, and the Supreme Court is no exception. David recounted arguing his first case there:
Chief Justice Stone stopped me in the course of my argument. I had said that the attorney general in the 1920s at the time had ruled one way, and that the courts had reversed his position. Chief Justice Stone said, “Mr. Kreeger, forgive the interruption, but I was the attorney general at that time.” Of course, I had known that, since the attorney general had been identified in the case. “I remember quite the contrary,” Chief Justice Stone continued. “I had ruled the opposite from the way you say I ruled, and the courts upheld me. They did not overrule me.” Well, this was one of my early cases and I had worked like a dog on every aspect of it. I’d read every opinion once and sometimes twice; I had briefed them. I had my notes all arranged, and I had the case so beautifully analyzed that I remembered almost every detail. Nonetheless, I had the temerity to say to the Chief Justice of the United States, “I beg your pardon, but my recollection is directly contrary to yours. The courts reversed you.” “I don’t agree,” he insisted, “but don’t let me stop you. Continue with your argument.” He asked his clerk for the volume containing the case while I went on with my argument. My heart sank, and I wondered, could I have been wrong on this? After a few minutes, Chief Justice Stone finished reading. He turned to me and said, “I want to interrupt you again, Mr. Kreeger, just to apologize. You were right and I was wrong.” That was very heartening. He was a fine, fair man, Chief Justice Harlan Fiske Stone. I really enjoyed arguing before him.
David had another Supreme Court story about Justice Felix Frankfurter that took place in 1941:
When I was Chief of the Supreme Court Section, I was very busy reviewing the work of others. We handled everything except the specialties. Taxation matters, lands division, criminal law and anti-trust cases didn’t come to us, but everything else did. These included claims and injunction suits by and against the government and special regulatory litigation, appeals from the Court of Claims and so on. I had about fifteen or twenty lawyers in my section, and a good portion of my work was reviewing their work. When I decided to argue a particular case in the Supreme Court, I didn’t have much time to read every single case that could be cited either for or against the issues I was going to argue. I didn’t have time to do complete original research. I left it to a very bright young man in my office, and he gave me a beautifully well-thought-out memorandum citing all of the cases that I would have to meet head-on. I wrote the brief based on that memorandum, but I did not read the cases that he didn’t cite because they were distinguishable or irrelevant. During my argument, Justice Frankfurter stopped me and asked, “You haven’t cited the Floyd Acceptances in your brief.” I said, “No, we did not.” “Why not?” he asked. Grasping at what I was sure was the only reason it wasn’t cited, I said, “Well, Your Honor, it’s distinguishable from our case.” He said, “Then kindly distinguish it.” Now I recalled nothing about that case. I hadn’t read it in years. The last time I had anything to do with it was ten years earlier in law school! I was really taking a flier! I knew that the man who had prepared this memorandum was a very good lawyer, and that if there had been any relevance to our case, pro or con, he would have cited it. I decided honesty was the best policy. “Mr. Justice Frankfurter,” I said, “I confess that I’ve forgotten the facts in that case, but if you would be so kind as to refresh my recollection, I think I could distinguish the case for you.” The members of the Court covered their mouths to hide their smiles. Fortunately, Justice Frankfurter smiled too, and gave me the facts. I quickly recalled the case and proceeded to distinguish it as requested. Justice Frankfurter nodded. I believe he was satisfied, but what an ordeal!
David spent six years with the Department of Justice. Near the end of that time, he edited a three-volume work on the patent system and the right of the government to control patents on inventions that were designed by federal employees and financed with government funds. He concluded that the government must own patents whenever it sponsors, finances, or instigates the development of an invention or device made by an employee or a contractor. The inventor should receive a share of any royalties or a bonus, but the employee and the corporation should not have sole ownership of the patent. David also wrote two Law Review articles based on this study.
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