Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin (1909–1996)

On January 28, 1972, more than 200 co-workers, family and friends, as well as dozens of prominent judges and government officials, arrived at the Washington Hilton Hotel for a formal dinner to mark the retirement of Bessie Margolin, Associate Solicitor of Labor. This was no ordinary retirement party for a Washington bureaucrat. Earl Warren, the retired Chief Justice of the United States, was a guest speaker; he would sing the praises of Margolin, who had argued cases in every one of the eleven circuits and twenty-eight cases in the Supreme Court, including fifteen before Warren himself. Warren and other distinguished speakers would reminisce about her thirty-three years at the Department of Labor, where she oversaw the court enforcement of the Fair Labor Standards Act (FLSA), and later the Equal Pay Act.

When it was his turn at the podium, Warren summed up her contribution to labor law: “ … I would like to thank [Margolin] tonight, because the bare bones of that Act would have been wholly inadequate without the implementation she forged in the courtrooms of our land. Hers must have been an exciting experience, because the labor laws and particularly the FLSA were anathema to many segments of our society. Miss Margolin has been largely responsible for making both of them meaningful and respectable in all quarters.” Warren also captured the essence of Margolin's significance to women: “What a satisfaction it must be for her in this day and age when women are crying out for equality, to realize that she has proved equality for them in a man's world, by prevailing in the highest courts of the land in a larger percentage of her cases than any lawyer of modern times. And all of this in the interest of the working men and women of America.”²

Margolin's distinguished career as a government lawyer was all the more impressive considering her religion, gender, and humble origins. “Becy Margolyn,” as her name originally was recorded by the neighborhood mid-wife, was born in Brooklyn, New York in 1909, the second child of recent Russian-Jewish immigrants, Harry and Rebecca Goldschmidt Margolin. Within a few years after Bessie was born, the Margolins left New York's tough and crowded conditions and made their way to Memphis, Tennessee, to join other Jewish immigrants. There, Rebecca died shortly after giving birth to a third child, Jacob, leaving Harry alone and without means to care for their three, very young children.

Harry's plight caught the attention of the Memphis Hebrew Benevolent Society, which arranged for four-year-old Bessie and her siblings to be admitted as “half-orphans” to live in the New Orleans Jewish Orphans’ Home.³ Originally founded in 1855 as the Home for Jewish Widows and Orphans, the Home in which Margolin was raised was situated prominently on St. Charles Avenue, near the stately mansions of New Orleans’ most prosperous citizens. Guided by philanthropic trustees who sought to enhance their wards' potential for success by integrating them into the city's social and economic power structure, the Home provided a nurturing environment where Margolin and her siblings grew up together with more than 100 other orphans and half-orphans from throughout the Deep South.⁴

The Home's forward-thinking benefactors had also established the nearby Isidore Newman Manual Training School, which admitted children “without discrimination because of creed … after our own wards are provided for.”⁵ One of the best preparatory schools in the South, Newman prided itself for teaching that “wealth is no evidence of worth, that the favored must make a return in proportion to their advantages, and that the only respectable aristocracy is an aristocracy of honorable achievement and personal decency.”⁶ By Margolin's time, wearing Home uniforms was no longer required, allowing Home children to mix more comfortably with Newman classmates, many of whom represented the city's most affluent families. In school, Margolin forged a lifelong friendship, and a shared interest in fashion, with Kate Polack, whose prosperous family welcomed Margolin into their gracious home.⁷

Within the Home, the volunteer “Matron” who attended to Margolin was Hanna B. Stern, wife of Home Trustee Maurice B. Stern, who made his fortune as president of the cotton brokerage firm Lehman, Stern & Co. In a letter recommending Margolin to Newcomb College, Mrs. Stern wrote:

Miss Margolin is one of my family (as we term them). [E]ach matron of Jewish Orphan's Home has charge of [a] certain number of boys and girls her duty towards them to mother them as much as possible & raise their standard in every way possible. We keep in touch with their school work. [We] have the privilege of having them in our own homes for entertainment and also take them out with us if we must and in this way [I] know Bessie very well & consider her a very splendid girl far above the average in every way. She is industrious, ambitious, appreciative, and in fact seems [of] splendid character.⁸

Margolin became another one of the Home's “typical over-achievers” who, instilled with a success ethic, learned that good citizenship, hard work, and respect for authority were a means of achieving a higher economic and social status.⁹

Table 1. Cases Argued by Bessie Margolin at the Supreme Court

	Case Name	Date(s) Argued	Opposing Counsel
*Argued as Amicus Curiae
1	Phillips v. Walling, 324 U.S. 490 (1945)	Mar. 2, 1945	Joseph B. Ely
2	10 East 40th St. Bldg v. Callus, 325 U.S. 578 (1945)*	Apr. 6, 1945	Joseph M. Proskauer
3	Borden v. Borella, 325 U.S. 679 (1945)*	Apr. 6, 1945	John A. Kelly
4	Roland Electrical Co. v. Walling, 326 U.S. 657 (1946)	Oct. 8, 1945	O.R. McGuire
5	Boutell v. Walling, 327 U.S. 463 (1946)	Oct. 9, 1945	Harry Gault
6	Rutherford Food v. McComb, 331 U.S. 722 (1947)	Apr. 9–10, 1947	E.R. Morrison
7	McComb v. Jacksonville Paper, 336 U.S. 187 (1949)	Dec. 14–15, 1948	Louis Kurz
8, 9, 10	Powell v. U.S. Cartridge; Aaron v. Ford, Bacon & Davis, Inc.; Creel v. Lone Star Defense Corp., 339 U.S. 497 (1950)*	Dec. 8–9, 1949	William L. Marbury, Robert H. McRoberts, and Otto Atchley
11	Alstate Construction v. Durkin, 345 U.S. 13 (1953)	Feb. 2–3, 1953	S.A. Schreckengaust, Jr.
12	Mitchell v. Joyce Agency Inc., 348 U.S. 945 (1955)	Feb. 4 & 7,1955	Stanford Clinton
13	Maneja v. Waialua , 349 U.S. 254 (1955)*	Mar. 30, 1955	Rufus G. Poole
14	Mitchell v. Myrtle Grove Packing Co., 350 U.S. 891 (1955)	Nov. 10, 1955	W.L. Guice
15	Steiner v. Mitchell, 350 U.S. 247 (1956)	Nov. 16, 1955	Cecil Sims
16	Mitchell v. King Packing, 350 U.S. 260 (1956)	Nov. 16–17, 1955	Willard S. Johnson
17, 18, 19	Mitchell v. Budd; Mitchell v. King Edward Tobacco Co., Mitchell v. May Tobacco Co., 350 U.S. 473 (1956)	Feb. 29–Mar. 1, 1956	Milton Denbo and Mark F. Hughes
20	Mitchell v. Bekins Van and Storage, 352 U.S. 1027 (1957)	Feb. 26–27, 1957	William French Smith
21	Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207 (1959)	Oct. 21, 1958	Alan J. Hofheimer
22	Mitchell v. Kentucky Finance, 359 U.S. 290 (1959)	Mar. 3, 1959	Harold H. Levin
	Case Name	Date(s) Argued	Opposing Counsel
23	Mitchell v. Robert DeMario Jewelry, 361 U.S. 288 (1960)	Nov. 16, 1959	R. Lamar Moore
24	Mitchell v. Oregon Frozen Foods, 361 U.S. 231 (1960)	Nov. 17, 1959	Martin P. Gallagher
25	Arnold v. Ben Kanowsky, 361 U.S. 388 (1960)*	Jan. 11, 1960	G.H. Kelsoe, Jr.
26	Mitchell v. H.B. Zachry Co., 362 U.S. 310 (1960)	Feb. 25, 1960	R. Dean Moorhead
27	Goldberg v. Whitaker House Cooperative, 366 U.S. 28 (1961)	Mar. 30, 1961	Philip S. Bird
28	Wirtz v. Steepleton General Tire Co., 383 U.S. 190 (1966)	Dec. 8, 1965	Lucius E. Burch, Jr.

Home life was structured under an innovative system of self-governance known as “The Golden City,” which emphasized the value of independence, the dignity of fair wages earned through hard work, and the notion of government as a participatory and protective institution. Thus, from her earliest years in the Home, Margolin experienced a basic legal system in which the children were divided into “families” led by an elected Big Brother or Big Sister. “They have their courts and judges and lawyers for prosecution and defense and all cases of [dereliction] and deflection from the high standards of honor and morals of the Golden City are tried and judgment pronounced” subject to the approval of the Home's Superintendent. The Golden City was designed to “mitigate the evil affects of institutional rearing” and make each child in the Home “feel that he is a human being and not merely a cog in the well-oiled machine, no matter how smoothly and systematically that machine or administration may run.”¹⁰ At the same time, the Golden City enabled Margolin and the other Home kids to earn five to twenty-five cents each week, depending on their age and the nature of the activity, in return for doing chores such as sweeping, darning, making beds, and baking bread (but no scrubbing or laundry work). They could spend a portion of their money on sweets and small toys at the Golden City's cooperative store but they were also required to open a savings account in a local bank so they could learn “the valuable lesson of thrift and economy.”¹¹

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[ Margolin graduated from the Isidore Newman Manual Training School with distinction in 1925, earning a full scholarship to Newcomb College. Above is her yearbook entry. ]

Margolin distinguished herself within the Home and at Newman with superior grades and extracurricular achievements. Years later, Margolin was unsure what made her become a lawyer but mused “I suspect that I always had something of a penchant for debating, which I recollect having enjoyed in high school.”¹² In her senior year in 1925, Margolin won a gold baseball for playing on the girls’ varsity team, sang in the glee club, edited the yearbook, was president of both the debate club and the girls’ student council, received a chemistry essay contest prize, and was chosen valedictorian of her graduating class. At Newman, Margolin's senior yearbook photograph was aptly captioned, “Knowledge is power.”¹³ She later credited the Home for providing her opportunities and the incentive to pursue them. “It may be hard to climb from some charitable homes, but this one is an exception. They pushed me and gave me my opportunities. I owe them a lot.”¹⁴

Margolin's excellent high school record earned her admission on a full scholarship to Newcomb College, where she spent her freshman and sophomore years. Her Newcomb College file contains the following entry by a faculty member:

Miss Bessie Margolin did excellent scholastic work during her two years at Newcomb. I should say that she stood among the first ten in her class. She lived during the time prior to her college course in the Jewish Orphans Home. … In answer to the questions above, I should say that she is not sensitive, she is very self-confident, she does not make friends easily. She devoted much of her time to her school work. She was a member of a Jewish fraternity here, and was interested in social activities for which she had no opportunity in previous years. She did not seem to care for athletics. I am unable to give you any information about the amount of reading she did. She took part in a number of trials for debate but failed to make any of the principal teams. She dressed rather elaborately for a person of her means, but I understand many of her clothes were given to her. She has a great deal of intellectual ability.¹⁵

After two years at Newcomb, Margolin decided to study law. Realizing that she could not afford to pay for three years of law school following college, she transferred to Tulane University to complete her undergraduate studies and begin the study of law—at the same time. The appointment of Rufus Harris as dean and the revival of the law review provided rewarding opportunities for Margolin to work closely with distinguished, part-time faculty members who were leading private practitioners.¹⁶

Although Tulane Law School had admitted women in prior years, Margolin found herself the only woman in the entire law school. She felt “very much isolated and self-conscious that first year,” but gradually adjusted. And she was grateful for the opportunity:

Tulane means something very special to me as a woman … the fullest opportunity and encouragement to fulfill myself as a human being intellectually, culturally, socially, and as a citizen with rights and responsibilities equal to those of men. As a student interested in a professional career, as well as a serious liberal arts education, I was uniquely fortunate that my home town university was one of the few in the nation at that time which not only had a tradition of serious higher education for women … exemplified by the excellent standards of Newcomb … but which welcomed women into its graduate and professional schools on a genuine non-discriminatory basis and gave them practical as well as moral support in the development of their potentialities.¹⁷

In 1930, at age twenty-one, Margolin received her bachelor's degree with a major in political science and history, as well as her law degree from Tulane University. Having served as civil law editor of the Tulane Law Review, in which she published three comments, Margolin graduated second in her law school class of twenty-three students, and was admitted to the Order of the Coif.¹⁸ It was also during her Tulane law school years that Margolin began a lifelong friendship and professional relationship with fellow Newman alumnus John Minor Wisdom, who served from 1957 until 1999 on the U.S. Court of Appeals for the Fifth Circuit, and before whom “Miss Bessie,” as he and fellow judges warmly referred to her, would regularly appear for oral argument.

Glowing recommendations from Tulane law school's dean, her brilliant law school record, combined with her ability to read French, won Margolin a coveted position at Yale Law School as a research assistant to Professor Ernest G. Lorenzen, a noted authority on comparative law. In an article heralding her Yale appointment, the New Orleans Item Tribune reported that Margolin found research appealing. “It isn't at all dull. I suppose you’d say you get curious about something and then there's the thrill of searching and the satisfaction of having found out.” She noted that she would like to “do research at Yale for the next two years, and then I should like to take my doctor's degree at Yale.” The reporter went on to say that “In a profession where feminity [sic] is a liability, she displays a cool logical mind which amazes her associates. And in the final analysis of this personality one finds a charming, unusually interesting but utterly unspoiled girl.”¹⁹

While in New Haven, Margolin continued to make news. As the first woman lawyer to join the Municipal Legal Aid Bureau, the July 10, 1932 New Haven Register reported that Margolin was to work “during the summer months while most of the Yale Law School students are away on their vacations.”

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[ After graduating from Tulane Law School, Margolin won a coveted position at Yale Law School as a research assistant to Professor Ernest G. Lorenzen, a noted authority on comparative law. Her superior grades, glowing recommendations, and ability to read French earned her the position. ]

In 1932, Margolin became the first woman to receive Yale's prestigious Sterling Fellowship. The following year, she received her doctorate of juridical science (J.S.D.), having earned the respect of Professor William O. Douglas, who had directly supervised her work in areas of corporate finance and reorgan-ization.²⁰ At her retirement dinner in 1972, she reminisced about how Douglas had been an important mentor:

Mr. Justice Douglas has played a great part in my career since student days at Yale. And he was largely responsible for encouraging me in my graduate work and I think probably responsible for securing a Sterling Fellowship for me which enabled me to start on my career. And through the years he's always been interested in showing a great support for anything that I wanted to do or to encourage me to go into some big adventures which I really didn't feel I had the capacity to take on.

Yale also introduced Margolin to fellow Southerners Henry H. “Joe” Fowler, from Roanoke, Virginia, and Abe Fortas, from Memphis, Tennessee, both of whom would play an important role in Margolin's later career. Fowler, who was also the recipient of a Sterling Fellowship, would work on the Tennessee Valley Authority with her. Abe Fortas was editor in chief when the Yale Law Journal published a comment Margolin wrote on proposed amendments to the bankruptcy laws.

For a Jewish woman, Margolin's impressive academic record, enthusiastic references, and strong background in corporate law were not enough to gain entrance to the practice of law on Wall Street, where the best job offer she received was in a firm's law library. She fared no better in securing a job teaching law. Yale Law Professor Ernest Lorenzen urged Tulane Law School's Dean Rufus Harris to hire Margolin:

We are of the opinion that Miss Margolin's logical place as a teacher of law is at Tulane. Her knowledge of Civil law and her work here in Comparative law and Conflict of Laws give her a pre-eminence in those fields that would not be easy to match. In my opinion she ranks easily within the best students we have. If this were not the case she would not have been awarded a Sterling Fellowship, for none has ever been awarded to a woman in the past and in all probability none will be awarded to another woman for years to come. There is no doubt whatsoever that by adding Miss Margolin to your faculty you will be adding a member with extraordinary mental powers, who will give great strength to it for years to come. She has a bent for research and can be relied upon to do big things, by which I mean really superior things.²¹

As a temporary measure, Margolin spent the summer of 1933 in Washington, D.C., working for Doris Stevens at the Inter-American Commission on Women. There, for $125 a month, Margolin researched legal discrimination against women in Latin-American countries. Although most of her prior experience in researching foreign law was in French, Margolin confidently assured Stevens that she could do the job. “I do not believe I should have any trouble with the Spanish, inasmuch as the Spanish and Latin American legal systems and terminology are very similar to the French.”²²

Thus Margolin was perfectly situated in Washington that summer to answer the call of a new and exciting opportunity. She applied for a position on the legal staff at the Tennessee Valley Authority (TVA), which had just been established by President Franklin D. Roosevelt's New Deal legislation to provide electricity to poor rural areas. Her former professor William O. Douglas provided a strong recommendation:

I have known Miss Margolin for the last three years, since she came to us from the Law School of Tulane University with a brilliant record. During the last year Miss Margolin has worked for substantially all her time under my direct supervision on various topics in the field of Corporate Finance and Reorganization. Thus I came to know her work very well. She is an able and conscientious person. Her work is always of the highest caliber. She has the ability to take responsibility and work upon her own quite independently from the supervision of another person.²³

Another Yale law professor, Richard Joyce Smith, wrote directly to the TVA's David Lilienthal on Margolin's behalf:

If you have a place for a woman lawyer, I would say that Miss Margolin would be one of the best that you could find. I have been familiar with her work because I was a member of the Committee of the Faculty in charge of Graduate Students. … She impressed eve-ryone in New Haven, both by her industry and her analytical ability. In addition to these qualifications, we all thought she was a very attractive person. She is, of course, particularly well-equipped in the civil law of Louisiana and has an excellent grounding in public law generally. I hope that you will give her serious consideration.²⁴

Margolin further submitted strong recommendations from Tulane Law School Dean Rufus Harris and Assistant Dean Paul Brosman. Brosman described Margolin as “a young lady of great force of character and a winning personality.” Dean Harris said, “She is an unusual woman, I mean by that, in substance, that she possesses unusual professional ability, has an unusually charming personality and has an unusually broad, balanced and progressive social outlook” making her “in sympathy with the fine purposes for which the Tennessee Valley Authority was created.”²⁵

Despite these accolades, TVA personnel director Floyd Reeves had to persuade “a reluctant Lilienthal to hire Bessie Margolin” as TVA's first woman attorney.²⁶ Hired to work for TVA General Solicitor William A. Sutherland in Washington, D.C., Margolin joined the special assemblage of legal talent that was drawn to the federal government in 1933 as much for the lure of the New Deal's opportunities to build a better nation as for the lack of job opportunities elsewhere, especially given the reluctance of old line law firms to hire Jews or women.²⁷ The young lawyers were also willing to work for the public good for a relatively low salary, which would not have attracted older, more experienced practitioners. Margolin's TVA starting salary of $2,000 per year was a significant increase over the $1,800 per year she had earned as a research assistant at Yale. Moreover, within one year, she was promoted to Associate Attorney at a salary of $3,600, and was transferred to the TVA legal offices in Knoxville, Tennessee, where she worked directly for its new General Solicitor James Lawrence Fly.

According to Margolin's former Yale classmate Henry Fowler, at TVA she became part of “an extraordinarily able, brilliant group of relatively young lawyers, who had outstanding academic records and law school achievements. Most of them had been editors of law reviews at their various institutions—Harvard, Yale, other schools—and some of them had served clerkships with justices of the Supreme Court or other outstanding justices such as Judge Mack and Learned Hand and well-known Federal judges.”²⁸ Federal government work challenged their imagination and interest, and many felt it would be a proving ground for the rapid accumulation of valuable experience in the field of public law.

A desire to reduce poverty was also a draw. One TVA staffer, Joseph Swidler, later recalled that he was “happy with the emergence of a positive program for using the resources of government to cure some of the economic and political evils of our time.”²⁹ He said that many of the young TVA workers were “thoroughly imbued with patriotic zeal. … They were out to restore vast areas of poverty stricken people, bringing them back into civilization and raise their standards of living.”³⁰ Fowler echoed this progressive sentiment: “Some of us were from … the South, and a large part of my motivation and interest in going with TVA was I thought it embodied a program for regional development of a large area of the country to which I was emotionally attached, and that it would be an opportunity to make a very positive contribution to the economic development of the area.”³¹

Margolin, like other young New Dealers, quickly assumed considerable power and responsibility. She took part in two great cases arising from challenges by private utility companies to the validity of the entire TVA project. These landmark cases overshadowed all other legal work at the TVA during her six years there. In Ashwander v. TVA,³² the Supreme Court affirmed the TVA's right to sell electric power produced by the Wilson Dam on the ground that the government could dispose of its property (even in the form of electricity) in any manner it chose. In Tennessee Electric Power Company v. TVA,³³ the Court affirmed the ruling by the three-judge panel of the District Court for the Eastern District of Tennessee that the government's powers over commerce and national security, as well as its right to dispose of property, made all aspects of the TVA constitutional.

With Ashwander, Margolin witnessed and contributed to the evolution of the case, which began when Alabama Power Company stockholders filed suit in the Circuit Court of Limestone County, Alabama seeking to restrain the company from contracting with the TVA on the ground that the TVA Act was unconstitutional. On TVA's motion, the case was removed to the Alabama federal district court where following motions and trial with extensive testimony, Judge William Grubb ruled for the stockholders and annulled the contracts. On the TVA's appeal, the Fifth Circuit reversed the trial court and the stockholders successfully petitioned for review by the Supreme Court. Margolin took part in all of these stages of the case, traveling by train and in her Hudson coupe to prepare for and attend the trial in Birmingham and the appeal in Atlanta.

Margolin would later explain her role in these cases:

While I did not take part in the courtroom presentation [of the two cases], I was a member of the staff which prepared the evidence, procedure, and substantive matters, and wrote substantial portions of the final comprehensive briefs filed in the district court, the circuit court and the Supreme Court. … In the course of the litigation of these two cases, I secured a pretty thorough practical background in Constitutional law, and in Federal trial and appellate practice.³⁴

In heartily recommending Margolin for a promotion and raise early in her TVA career, her boss, General Solicitor Fly, supported this self-assessment. Fly wrote, “Miss Margolin has done more work on the Ashwander briefs than any of the other attorneys, and her work has been of an exceptionally high caliber and thorough-going nature.”³⁵

The Ashwander case officially introduced Margolin to the Supreme Court. Margolin had traveled to Washington from Knoxville a month before the argument, as had others on the TVA legal team. Her name appeared on the TVA's December 1935 merits brief as “counsel” under the names of Attorney General Homer Cummings, Solicitor General Stanley F. Reed, Special Counsel John Lord O’Brian, General Solicitor James Lawrence Fly, Paul Freund and Henry H. Fowler. Moreover, on Thursday, December 19, 1935, on oral motion made by Solicitor General Reed, Bessie Margolin of New Orleans, Louisiana was admitted to practice before the Court.³⁶ She then heard O’Brian and Solicitor General Reed present the oral arguments in Ashwander she helped to create—for which the Court allowed five hours over two days.³⁷

Margolin's second round of involvement in litigation that would reach the Supreme Court began just three months after the Supreme Court announced its decision in Ashwander. This time, the Tennessee Electric Power Company and eighteen other privately owned electrical power companies filed a complaint in the chancery court in Knox County, Tennessee which, on the TVA's motion, was removed to the U.S. District Court for the Eastern District of Tennessee. The suit sought to enjoin the TVA's so-called “power program,” claiming that it was threatening to destroy the companies, that the TVA was acquiring electric energy by constructing and operating dams unrelated to any federal function, and that, even if it had lawfully acquired the energy, the TVA's method of disposition was unconstitutional. The district court's preliminary injunction was reversed on the TVA's appeal to the Sixth Circuit, and the case was remanded for trial. As a result of the newly enacted Judicial Reform Act, the case was tried by Fly and O’Brian before a three-judge panel consisting of Circuit Judge Florence Allen and District Judges John J. Gore and John D. Martin.

During this time, Margolin was promoted to Senior Attorney, with a raise in salary to $4,600, and was transferred to work in the TVA's Chattanooga office. As with the Ashwander case, Fly praised Margolin's contributions to the Tennessee Electric Power (TEP) case, noting that she carried a “large part of the most responsible work of the Legal Division … .”

For more than a year she has been engaged almost exclusively in work on the case of TEP, et al., v. TVA, et al., which required recommendations as to correct procedure, and drafting pleadings and briefs to be filed in the case. … At present Miss Margolin is devoting her entire time to the study and analysis of testimony previously given in the case of TEP, et al., v. TVA, et al., and in the preparation of material to be used in the examination and cross-examination of witnesses, and on the argument, at the trial of this case … .³⁸

With Fly and O’Brian as the TVA's lead counsel, the trial lasted two months with testimony taken from nearly 100 witnesses and more than 1,000 exhibits admitted into evidence. Life Magazine devoted a full-page pictorial article to the trial titled “TVA Goes on Trial for Its Life.” A smiling Margolin can be seen in one photo of the crowded courtroom, seated directly behind John Lord O’Brian and other TVA counsel. Life Magazine described the scene:

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[ Life Magazine devoted a full-page pictorial article to the landmark TVA trial; a smiling Margolin can be seen seated directly behind John Lord O’Brian and other TVA counsel. ]

In a frescoed courtroom at Chattanooga, Tenn., on Nov. 15, three Federal judges, one a woman, mounted the bench to hear one of the most far-reaching cases in U.S. constitutional history. Massed on one side were 18 Southern utility firms with assets totaling a billion dollars. Opposed were the directors of the Tennessee Valley Authority whose gigantic hydraulic program will absorb over half that sum. On the legal scales were the prestige of the U.S. Government and the question of its right to sell power in competition with private enterprise.³⁹

Judge Allen surely must have impressed Margolin. Not only was Allen the first and only woman federal appellate judge at the time (and likely the first woman judge Margolin had ever seen), but during the TEP v. TVA trial, Allen was also being seriously considered to fill Justice George Sutherland's seat on the Supreme Court.⁴⁰ (Six years later, Margolin would appear before Circuit Judge Allen to argue on behalf of the Department of Labor, and would on more than one occasion cite Allen's lone female federal appellate judgeship in support of her own candidacy for a federal judgeship.)

When the TVA submitted its merits brief in TEP to the Supreme Court in October 1938, Margolin's name appeared below Solicitor General Robert H. Jackson, Fly, O’Brian, Freund, William C. Fitts, Jr., Melvin Siegel and Fowler. O’Brian considered the TVA legal team “top-flight.”“[T]hey were young; they were fully aware of the gravity of the litigation and the implications of it. … [T]he legal staff not only worked intensely, but more or less lived together during this period. We all occupied offices in the same building; we so to speak, lived together and ate together and talked together in the day time and at night as well. The work was incessant in the preparation of all of the arguments.” O’Brian said that Margolin “had a special gift of lucidity in the writing of briefs and contributed materially to the character of all the briefs written in the case[s].” O’Brian went on to say, “She's a very singular person, and she has a legal brain, as I would express it. She's a very feminine person, and a very nice person, but she has a gift for lucid expression which is invaluable in brief writing.”⁴¹

When the Supreme Court issued its favorable ruling in the TEP case in January 1939, Margolin nonetheless complained to her colleague Herb Marks, “It was a trifle disappointing not to get some little word on the merits—don't you think?”⁴²

Aside from these two landmark cases, Margolin provided other services for TVA. She later summed up the experience:

The years at the Tennessee Valley Authority also afforded a variety of legal experience in interpretative work, drafting of legislation, negotiation and drafting of Government contracts, preparation of data for Congressional investigatory committees, extensive brief writing and trial experience. I participated in the trials of a number of more important condemnation cases instituted by the Tennessee Valley Authority and independently conducted three or four of the trials of lesser importance involving a variety of valuation and condemnation questions.⁴³

But with the validity of the TVA firmly established, Margolin set her sights on the Department of Labor, where Secretary Frances Perkins was beginning to enforce the newly enacted Fair Labor Standards Act. Margolin would have to prove her worth to Calvert Magruder, the Harvard law professor and former secretary to Justice Louis D. Brandeis who was general counsel to the Labor Department's new Wage and Hour Division. Margolin wrote to Herb Marks, “I am still negotiating for the wages and hours position. The only outstanding question is the salary.” O’Brian, former fellow Yale law student Abe Fortas (who had left the Securities and Exchange Commission to work for Interior Secretary Harold Ickes), and her former TVA boss William Sutherland “have all gone to bat for me in a big way—and wholly voluntary much to my pleasure. … Have asked for $5600 which Magruder and his assistant think is an awful lot ‘for a girl.’ Mr. O’Brian and Larry [Fly] have been trying to convince him he's dealing with a ‘seasoned attorney’ and not a mere girl. Did I hear you laugh, Herb—or are you only smiling?”⁴⁴

The negotiations with Magruder continued over the next month, with Margolin finally agreeing to accept a position in the Wage and Hour Division at $5,000 per year. “Larry [Fly] is not too happy about the salary angle but thinks it is a satisfactory move since I had a clear understanding with Magruder about the nature of my work and responsibility in the office. Personally, I am highly pleased with the result.”⁴⁵ Finally, in March 1939, Margolin transferred from the TVA to become a Senior Litigation Attorney in the Wage and Hour Division under the supervision of Magruder (who would soon be appointed to the U.S. Court of Appeals for the First Circuit).

Within her first week on the job, Margolin traveled home to New Orleans to represent the Wage and Hour Administrator in federal district court. She wrote her former TVA colleague Herb Marks:

Was put to work on a case in New Orleans my first week up here & had to go down there to argue some motions in court … . We won our two motions—1) to quash a subpoena served on [Administrator Elmer Andrews] while he was down there making a speech—on grounds of inconvenience and lack of necessity to take his oral testimony & 2) to quash a subpoena duces tecum for our investigator's records—on grounds of confidential character. … I went down with the chief of our litigation section (Irving Levy) and we each argued one motion apiece—& won both with decisions from the bench. We were quite pleased as the case has received considerable publicity.⁴⁶

• 

[ Within her first week on the job at the Wage and Hour Administration at the Department of Labor, Margolin traveled home to New Orleans to represent the government in federal district court. As a successful local “girl,” she received as much attention in the press as did the case. ]

Indeed, Margolin herself generated as much publicity as the wage and hour case. Celebrating Margolin's triumphant return to her hometown as a lawyer for the federal government, all three major New Orleans newspapers ran stories with photos: “New Orleans Girl Represents U.S. at Hearing,”“Orleans Girl with Federal Counsel,” and “‘Local Girl’ Makes Good in Big Way—Reared in Children's Home Gets Two Degrees at Once.”⁴⁷ According to one account, Margolin loved her new job. “I’m interested in labor and I’m a New Dealer. The [Fair Labor Standards] act is pretty conservative, I think, but it's a step in the right direction and I’m right with it. Incidentally, I’m not a radical.”⁴⁸

The reporter focused on Margolin's appearance and marital status as much as on her professional accomplishments. “[Margolin's] a brunette, with flashing black eyes and a stunning figure, and she looks like all the money she didn't have, she looks like more than a million dollars. … When you see a face like Miss Margolin's you almost immediately wonder what that ‘Miss’ is tacked on before for.” After initial reluctance to talk about being unmarried, Margolin finally responded to the reporter's questions, “‘I haven't had time for love.’ Then she smiled. ‘But I’m not immune, I’m just uncontaminated.’ Dr. Margolin brushed back a lock of soft black hair. ‘So far,’ she added.”⁴⁹

Although the press portrayed the glamour of the job, Margolin paid her dues as a new Wage and Hour lawyer, traveling to damp warehouses and unwelcoming factories where she reviewed invoices, payroll records, piece-work tickets, and time sheets to develop the facts for the Fair Labor Standards Act injunction cases.

Never have I been in a drearier dingier atmosphere—Boston & surrounding mill towns. If I have much of this I know I won't last long in Wages & Hours. But I guess I’m getting some helpful experience. However, I find the cases very tedious and dull—mulling over endless time cards, piece work slips, payroll records and invoices. I didn't realize what a deadly bore the trial of some cases can be. I think after this trip (which is due to last 3 weeks only 4 days of which have elapsed) I shall ask to be transferred to opinion work. Perhaps it is the damp cold weather we’ve been having—is it really springtime elsewhere? … Must get back to shoes and hats and invoices and piece work slips and time cards and foreladies and supervisors and bookkeepers—my!! What a drab world this is for mill hands—and their attorneys.⁵⁰

Over the next three years, Margolin helped organize the Labor Solicitor's regional offices and train the regional attorneys. Her hard work, good attitude, and legal acumen earned her a promotion to litigation supervisor to take charge of appellate work at the Department of Labor. This new job provided her the opportunity to argue cases in the circuit courts and work directly with the U.S. Solicitor General's office on briefs in cases headed for the Supreme Court.

One of her earliest appellate arguments (and successes) was in Janes v. Lake Wales Citrus Growers Association.⁵¹ According to Margolin, this was one of the earliest suits seeking to enjoin a local Labor Department Inspector and the local U.S. Attorney from enforcing the Fair Labor Standards Act.⁵² Another of Margolin's early appellate arguments was Cudahy Packing of Louisiana, Ltd. v. Fleming,⁵³ in which the Sixth Circuit affirmed the trial judge's order compelling the meat-packer to testify and produce documents regarding wages and hours worked. Margolin said the case “was one of the Department's early subpoena enforcement cases under the Fair Labor Standards Act (and which required briefing of almost every conceivable objection which could be raised, although this is not reflected in the court's short per curiam opinion).”⁵⁴

Margolin was particularly proud of her lead role in the Department's 1943 “test case” regarding the FLSA's provision allowing the employer's “reasonable cost” of board, lodging or other facilities to employees to be included in the statutory wage.⁵⁵ The case required a host of complicated factual, accounting and legal issues reflected in the court's forty-two-page opinion.

In another important case, Walling v. Sun Publishing,⁵⁶ Margolin was the Department's chief trial counsel and also argued the appeal at the Sixth Circuit. Sun Publishing raised First Amendment (freedom of the press) and Fifth Amendment Due Process issues, interstate commerce coverage issues, and executive and professional exemption questions. It also delved into such specifics as counting waiting time as hours worked, defining “regular rate” of pay, and the right of the Wage and Hour Administrator to maintain an injunction action without participation by the Attorney General. After the argument at the Sixth Circuit, the headline in The Cincinnati Enquirer read, “Wage Law Cannot Be Used in Newspaper Cases Is Plea of Attorney–Guarantee of Freedom of Press Is Involved in Court Argument.” It said further:

Miss Margolin replying for the government, argued that [the newspaper's counsel Elisha] Hanson's objections to application of the Fair Labor Standards Act on constitutional grounds were meritless and that the newspaper publishing business is in interstate commerce. Referring to the question of violation of freedom of press, Miss Margolin countered with “we (the Wage and Hour Division) think it is almost a frivolous issue,” adding that it is “so far removed from the intent of the First Amendment that it does not apply.”⁵⁷

The Sixth Circuit agreed with Margolin, who then wrote the brief opposing the publishers’ petition for certiorari, which the Supreme Court denied.⁵⁸

• 

[ In Walling v. Sun Publishing, Margolin was the Labor Department's chief trial counsel and also argued the appeal at the Sixth Circuit. Sun Publishing raised First Amendment (freedom of the press) and Fifth Amendment Due Process issues, interstate commerce coverage issues, and executive and professional exemption questions. It also delved into such specifics as counting waiting time as hours worked, defining “regular rate” of pay, and the right of the Wage and Hour Administrator to maintain an injunction action without participation by the Attorney General. ]

Throughout the Sun Publishing case, Margolin was quietly pursuing a more personal “fair labor” case. As she continued to assume greater trial and appellate responsibilities, both personally and in a supervisory capacity, Margolin wanted to be considered for promotion to Assistant Solicitor, a position she had seen given to men “who, so far as the objective record showed, had less qualifications than I had, in terms of educational background, length and type of experience, quality of professional work, and in length of professional service.”⁵⁹ Margolin presented her case directly to Labor Secretary Frances Perkins:

My dear Madam Secretary:

Superficially, it may appear presumptuous to request your personal consideration of this matter. However, I believe if you will read the attached memorandum, you will appreciate the propriety of presenting the matter to you personally.

Respectfully,

Bessie Margolin

In her four-page memorandum, Margolin took the opportunity to “squarely face … a more or less subconscious attitude” of discrimination that prevented her from being considered for promotion to Assistant Solicitor. Margolin wrote:

My situation, the record will show, has significance beyond the interests of one individual. Because of its implications generally for women seeking professional careers in the Government service, this special request for consideration will be found, I am sure, to be reasonable and justified.

It is apparent that there has been no lack of confidence on the part of my superiors in my capacity to perform such duties. They have given me responsible and interesting assignments and the quality of my performance has not been questioned. I have always been treated with greatest respect and consideration personally. My associations with my superiors and with other attorneys in the Department have been consistently pleasant, and for all practical purposes in the day to day work, they have accepted me as one of them.

Margolin emphasized that there had been no intentional discrimination, and that responsibility did not attach to any one individual. “It is rather a general, and I believe, a more or less subconscious attitude. A woman simply is not considered for the high ranking positions in the Solicitor's Office.”⁶⁰

Labor's Director of Personnel Robert Smith investigated Margolin's complaint and reported to Secretary Perkins, “With the possible exception of Mr. [Mortimer B.] Wolf's appointment, I can see no justifiable basis for Miss Margolin's representation that she has been discriminated against.” Smith added one final and practical note, “In view of the fact that a new Solicitor will be appointed, I would suggest that Miss Margolin's memorandum be brought to his attention” to allow him to consider her qualifications and determine whether to recommend her or some other qualified person as Assistant Solicitor.⁶¹ In October 1942, just one month after Margolin pleaded her own case to Secretary Perkins, Acting Solicitor Irving Levy recommended that Margolin be promoted to Assistant Solicitor, which Secretary Perkins promptly approved.⁶²

Margolin's high-quality work continued to earn her recognition within and beyond the Labor Department. In December 1943, Solicitor of Labor Douglas Maggs shared with Secretary Perkins the praise received from Solicitor General Charles Fahy as a result of Margolin's work in Tennessee Coal, Iron & Railroad Company v. Muscoda:

The Solicitor General will argue the T.C.I. [Tennessee Coal, Iron & Railroad Company] metal mining portal-to-portal case in the Supreme Court. In accordance with custom, my office wrote the brief for him. I was (and I think you will) be gratified to learn that it is, in his judgment, about the best brief that has ever been written for him outside the Department of Justice.

I hasten to add that I personally had very little to do with the writing of the brief. It is 99% a product of Bessie Margolin, Assistant Solicitor, In Charge of the Appellate Litigation Branch.⁶³

Margolin had argued the T.C.I metal mining case, and prevailed, in the Fifth Circuit.⁶⁴ According to Margolin, during the course of preparing Solicitor General Fahy for his argument at the Supreme Court she mentioned that she had argued cases in the federal courts of appeal, in fact, in every one of the eleven circuits. According to Margolin, “[He replied]‘There's no reason that you should not argue in the Supreme Court when another FLSA case comes up.’ He remembered, and the next case in which certiorari was granted (less than a year later) Mr. Fahy assigned the oral argument to me.”⁶⁵

• 

[ In a handwritten note, Justice Robert H. Jackson complimented Margolin in 1945 on her first argument before the Supreme Court. In Phillips v. Walling, she asserted that an FLSA exemption for employees engaged in any “retail establishment” did not include warehouse and central office employees of an interstate grocery store chain. ]

The case was Phillips v. Walling,⁶⁶ which Margolin argued in the Supreme Court on March 2, 1945. She sought affirmation of the First Circuit's decision,⁶⁷ where Archibald Cox, then Associate Solicitor of the Wage & Hour Division, had prevailed in asserting that an FLSA exemption for employees engaged in any “retail establishment” did not include warehouse and central office employees of an interstate grocery store chain. Margolin's formidable opponent in the Supreme Court was former Massachusetts Governor Joseph B. Ely who, after failing to win the Democratic presidential nomination in 1944, demonstrated his contempt for Roosevelt and his New Deal by supporting Republican Thomas Dewey. Although there is no audio recording of Margolin's first argument (or of her other arguments prior to 1955), her former law professor, William O. Douglas, by that time a sitting Supreme Court Justice, later described Margolin's style of argument, “She was crisp in her speech and penetrating in her analyses, reducing complex factual situations to simple, orderly problems.” Douglas deemed Margolin's argument in Phillips v. Walling as “[t]ypical perhaps of the worrisome but important issues which she argued” at the Supreme Court.⁶⁸

Justice Robert H. Jackson, who had proved an outstanding oral advocate when he served as Solicitor General, marked the occasion with a nice handwritten note:

Miss Margolin:

I hope you were satisfied with the way the Court argued your first case. In any event you have every reason to feel satisfied with the way you took care of yourself under fire. I’m sure there would be no dissent from the opinion that you should argue here often. One always feels low after an argument—at least I always did. But you need not.

Robert H. Jackson⁶⁹

Just three weeks later, Margolin learned that she had won the case, and in so doing established the principle that “any exemption” from the FLSA's “humanitarian and remedial legislation must … be narrowly construed.”⁷⁰ The news must have buoyed her confidence as she prepared to argue the next case assigned to her by Solicitor General Fahy, 10 East 40^th St. Bldg. v. Callus, which was set to be argued on April 6, 1945—less than two weeks away. That same confidence was tested when Margolin learned on April 6 that she would be presenting her second and third Supreme Court arguments that very day. Margolin explained the unusual circumstances of her last-minute assignment to argue Borden Co. v. Borella:

Argument had been assigned to a senior attorney in the Solicitor General's office—Chester Lane. I had worked on the brief. Lane showed up on the day of the argument with his voice lost—he could hardly whisper—[Assistant Solicitor General] Bob Stern called me at about 10:30 a.m. and said Mr. Fahy wanted me to take over since I knew more about the case than anyone else. Bob gave me the courage to go on by saying that I had nothing to lose since the Court would know the circumstances. Indeed Chester got up and explained in a hoarse whisper that I was pinch-hitting on very short notice. I made a pretty lousy argument—overwhelmed with fear and nervousness. Fortunately the Court ruled in our favor anyway (by a 7–2 decision)—so my incipient career as a Supreme Court advocate was not “nipped in the bud.” Thereafter, all of the successive Solicitor Generals assigned most of the FLSA arguments to me.⁷¹

Ironically, the Court, ruled against Margolin (by a 5–4 decision) on the case she had prepared to argue that day, 10 East 40^th St. Bldg. v. Callus.⁷² Both cases focused on whether building maintenance employees, elevator operators and watchmen were covered by the FLSA because their work was “necessary” to the production of goods in interstate commerce. This turned on the extent to which the building owner or major tenants were engaged in manufacturing of goods for shipment in interstate commerce. The difference was that in Borden, where the Court extended coverage to the building employees, the building was owned by the Borden Company. Although no manufacturing took place in the building, it was the office building of a manufacturer, occupying seventeen of twenty-four floors), whose goods were shipped across state lines. In Callus, the employees in question serviced a building occupied by renters of an unrestricted variety of offices with no manufacturing.

Justice Felix Frankfurter, writing for the majority in Callus and concurring in the result in Borden, articulated his frustration with Congress having put upon the Courts through the FLSA “the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations.” He made “abundantly clear” that he objected to involving the courts “in the empiric process of drawing lines from case to case, and inevitably nice lines” to ensure that essentially local activities, which should be left to regulation by the states, were not absorbed by adjudication. The employees in Callus, according to Frankfurter, were engaged in local business. “Renting office space in a building exclusively set aside for an unrestricted variety of office work spontaneously satisfies the common understanding of what is local business and makes the employees of such a building engaged in local business.”⁷³

Margolin returned to the Supreme Court to argue two more cases in 1945, Roland Electrical Co. v. Walling on October 8, and Boutell v. Walling the next day. She earned favorable rulings in both cases. With Roland Electrical Co., the Court adopted the view that the FLSA's coverage of Roland's employees (who repaired equipment for industrial and commercial customers) was premised on the fact that their work was necessary to the production of the commodities produced for commerce by Roland's customers, and that Roland was not entitled to the exemption for “service establishments,” which were limited to local merchants, local grocers, or filling stations whose customers buy for personal consumption.⁷⁴ In Boutell,⁷⁵ the Supreme Court affirmed the Sixth Circuit's conclusion that the mechanics of a business that serviced motor transportation equipment operated by a business engaged in interstate commerce were themselves engaged in interstate commerce, and were not exempt under the FLSA's exemptions for “retail or service establishment” or for employees under Interstate Commerce Commission regulation.

The lesson Margolin learned from being called upon at the last minute to argue Borden v. Borella—that is, a lawyer must be prepared to argue any case in which her name appears on the brief—served her well again in Boutell v. Walling, where she learned an equally important lesson about the Court's time limits:

The preceding argument before Boutell was an employee suit under FLSA involving coverage of window washers cleaning windows of industrial plants. The Government had filed a brief amicus supporting coverage, but was not participating in oral argument. When I got up to argue the Boutell case (which involved a wholly different (exemption) issue)—and was on summary docket, several Justices bombarded [me] with questions on the preceding window-washer case. These questions continued until the 5-minute warning light came on. [Assistant Solicitor General] Bob Stern, seeing my predicament, brought me a note saying he thought it would be appropriate for me to request the Chief Justice [Harlan Fiske Stone] for a little extra time to argue the case to which I was assigned. So, as deferentially as I could, I said: “Mr. Chief Justice, would it be appropriate for me to ask for some additional time inasmuch as virtually all of my time has been consumed in answering questions on the preceding case?” Whereupon, the Chief Justice promptly replied: “You have only four minutes left to complete your argument, Miss Margolin.” Mr. Justice Douglas then asked me a very difficult question, my inadequate answer to which used up the remainder of my time. Luckily for me, the majority ruled in our favor by a 5–3 split Court (Justice Douglas writing the dissenting opinion).⁷⁶

• 

[ Jackson wrote this cheerful note to Margolin when she argued her sixth case, in April 1947. They had socialized together while serving at the war trials in Nuremburg, where she drafted the original regulation under which the tribunals were constituted. ]

Justice Jackson was not present when Margolin argued these cases, having accepted President Harry S. Truman's appointment as Chief Counsel to the Nazi War Crimes Trials in Nuremberg, Germany. In May 1946, Margolin would also answer the call to assist in this national effort, which, like the New Deal in the 1930s, captured the interest and passion of hundreds of talented lawyers.⁷⁷ Margolin volunteered for a civilian tour of duty with the Army to support the prosecution of the Nazi criminals at Nuremberg. In June 1946, Margolin described her “interesting adventure” to her mentor, John Lord O’Brian.

The longer I remain in Germany—particularly the more I see and read about Nazis—and listen to them testifying in court, the more impatient I become of any leniency shown them, and the more concerned I become over the lack of interest shown by Americans in prosecuting sufficient numbers of them to insure against the revival of their shocking and nauseating doctrines and crimes. …  Mr. Justice Jackson said to me the other day that he fears that from the long term point of view, the Nazis have been victorious because 20 years from now the Germans are bound to be dominant in Europe through sheer force of numbers. They have certainly succeeded in their diabolical population-control plans. I said to Sir David, whom I met on Saturday, that while it might sound blood-thirsty, I thought we should prosecute at least five million and impose the death penalty freely on all that had any connection with the mass murders and atrocities. …

 So my first two weeks here have brought me to the conclusion that any little weight I may carry should be thrown in the direction of increasing the number of Nazis to be prosecuted for murder. The great difficulty, as you know, is securing manpower for the job of prosecution. I have taken occasion to suggest to both Justice Jackson and [U.S. General] Telford Taylor that it would be well worthwhile to bring over large numbers of Americans for three or four month periods—the educational value of it would in itself make it worthwhile. I’m convinced that the gravity of the situation is not appreciated until one gets here on the scene and personally starts to cope with it. Certainly it has been a revelation to me. …

 Don't judge from the foregoing outburst that I aspire to solving the big and basic problems over here—my assignment is quite limited—and I think it will be a very interesting one. I’m to work on proposals for the organization and procedure of courts to try the subsequent cases. The problem is one which virtually nothing has yet been done although people have been working up the evidence on many more defendants. It seems impracticable to try many more defendants before quadripartite courts. So my job will be to work out, in collaboration with other governments, and with our military government and State Department and Army representatives, plans for alternative tribunals … I’ve had some interesting social life, too. I was fortunate enough to call on Mr. Jackson on a day when he was having a dinner party at which there was room for another lady guest, and he invited me very generously. That gave me an early opportunity to get acquainted with a number of interesting characters, including the French alternate judge—Judge Falco. That party was for some French officials. Tomorrow night there is a party for some Belgian officials, to which the Justice has also invited me. Yesterday afternoon Telford Taylor and his wife had a cocktail party at which I met a number of British and Russian officials—including Sir David and General Rudenko. So you see it is quite an interesting adventure for me.⁷⁸

Margolin's major contribution was to draft the original regulation under which the tribunals were constituted. General Telford Taylor wrote to Labor Secretary Schwellenbach describing Margolin's efforts during her tour of duty. “She made a very distinct and important contribution to our work here, and in particular was primarily responsible for planning and drafting Military Government Ordinance No. 7, under which the remainder of our war crimes will be conducted. I cannot praise her professional accomplishments too highly.”⁷⁹ Even after Margolin returned to the United States, she traveled to recruit judges and lawyers to preside over the subsequent proceedings she helped to create at Nuremburg.⁸⁰

After six months away, Margolin promptly resumed her work to enforce the FLSA, directing the litigation strategies of the regional attorneys and overseeing the appellate cases. She was back at the Supreme Court in April 1947 to argue her sixth case, Rutherford Food Corporation v. McComb,⁸¹ where she sought to ensure FLSA wage and hour protections for meat boners (the workers who removed beef from the bones of slaughtered cattle), as employees of the slaughterhouse operator and not independent contractors, even though they worked under a contract, owned their own tools, and were paid collectively a certain amount per hundred weight of boned beef, which pay they divided among themselves.

Justice Jackson, who had also returned from Nuremburg, wrote her the following playful note after her argument:

Cheer up. You are in an historic case. One side or the other has often been the beneficiary of “boners” in Court but you are first in this Court's history to urge that “boners” are beneficiaries!

R.H.J.

The informal tone of this note, coupled with Margolin's description of attending social events with him in Nuremburg, suggests that they had become friends.

Just as his predecessors had done since Charles Fahy, Solicitor General Philip Perlman, appointed in 1949, continued to assign Fair Labor Standards Act cases to Margolin for argument before the Supreme Court. Arguing on behalf of the United States as amicus curiae by special leave of court, Margolin began argument in her eighth, ninth and tenth cases on Thursday, December 8, and concluded her argument on Friday, December 9, 1949. The question in all three cases was whether the Fair Labor Standards Act applies to employees of a private contractor at a government-owned munitions plant operated by the contractor under a cost-plus-a-fixed-fee contract with the United States. When she returned to the counsel table, Margolin jotted a quick note to Assistant Solicitor General Robert L. Stern, “Bob—Did I give away too much—or not enough?” He wrote on the back of the note, “I don't think anyone could have done any better or said anything different.”⁸²

Stern's positive assessment of Margolin's argument was shared by at least one other spectator. H.P. Zarky, Special Assistant to U.S. Attorney General J. Howard McGrath, sent the following note to Margolin. “Bessie, One of the private counsel appearing later on Friday asked who you were. Said it was the best argument he ever heard. Had I been there to hear it all I am sure I would agree.”⁸³ On May 8, 1950, the Supreme Court issued its opinion, reversing the judgments below as Margolin advocated.⁸⁴

As Margolin worked to protect the wages of workers across the country, she suffered from what she considered unfair treatment in her own salary at the Labor Department. In July 1953, a departmental budget cut reduced the number of Assistant Solicitors from eight to four, with Margolin downgraded from a GS-15 to a GS-14, continuing in the same duties and responsibilities but without the title of Assistant Solicitor, and placed as a formality under the general supervision of another Assistant Solicitor.⁸⁵ Although Margolin had seniority, both in length of government service and in the GS-15 position over two of the lawyers retained as Assistant Solicitors, the absolute preference given to veterans operated against her. Even after she was restored to her GS-15 salary and her Assistant Solicitor title 16 months later, she claimed the loss of time that would have been credited toward in-grade increases permanently placed her three steps lower in salary than the Assistant Solicitors who had not been downgraded.⁸⁶

Prompted as much by a desire to rectify her downgrade as to recognize her achievements, Margolin's superiors went to great efforts to secure Departmental honors and cash awards for her. In the same month that Margolin was downgraded, Acting Solicitor Jeter S. Ray nominated her for a Distinguished Service Award, which she received.

The welfare of literally millions of workers depends on the protection afforded them by the Fair Labor Standards Act and the Walsh Healy Act. The numbers of workers to whom these acts apply and the degree of protection afforded them depends in large measure on the rules of decisions as to the Acts’ interpretation which have been formulated by the Supreme Court of the United States and the several courts of appeals in the contested cases which come before them. As the Assistant Solicitor directly in charge of this work for the past eleven years, Miss Margolin's outstanding skill and tireless devotion to her duty have produced results in this most important aspect of the Department's litigation phenomenally beyond those normally to have been expected.⁸⁷

Margolin's devotion to her duty and phenomenal results continued to be the hallmark of her thirty-three year career at the Department of Labor. By the time she retired in 1972, approximately 600 Supreme Court and appellate cases (on the merits) had been prepared under her immediate direction and review. In addition, there were approximately 150 petitions for certiorari and responses to petitions denied. Most impressively, she had principally briefed and personally argued 178 cases, of which 28 were in the Supreme Court and 150 in the appellate courts in every federal circuit in the country.⁸⁸ Of the cases she argued in the Supreme Court, Margolin failed to obtain a favorable ruling in only three. After her first loss in Callus in 1945, Margolin prevailed in all the cases she argued at the Supreme Court until 1959, in Mitchell v. Oregon Frozen Foods,⁸⁹ Margolin's twenty-third such case. There, following argument, the Court dismissed the writ of certiorari as improvidently granted due to ambiguities in the record, allowing the adverse ruling of the Ninth Circuit to stand. Margolin's third and final loss followed her 1959 argument in Mitchell v. H.B. Zachry,⁹⁰ where the Court held that a construction company hired by a water supply district to build a dam was not “closely related” or “directly essential” to production for commerce and therefore the employees were not entitled to FLSA coverage. And even in that case, decided five to four, Margolin claimed victory to the extent the Supreme Court's ruling was favorable for the Department:

Although the Supreme Court affirmed the decision (by a 5 to 4 divided Court), it repudiated much of the reasoning of the Court of Appeals [Fifth Circuit] which would have had far-reaching implications on the scope of the Act's “production” coverage considerably beyond this case. The decision is also of considerable significance to many other cases because of the general criteria it suggests as guides for determining the Act's application in difficult and doubtful cases, and its emphasis on the controlling importance of pertinent legislative history, which the Court of Appeals had dismissed as unnecessary to consider.⁹¹

The 28 Supreme Court cases Margolin argued pale in comparison to the total number of circuit court arguments she presented—150. Of these 150 cases, Margolin received favorable rulings in 114, of which only 1 was later reversed by the Supreme Court (argued by someone other than Margolin). Of the 36 circuit court cases she lost, 7 were reversed by the Supreme Court—6 of which Margolin argued.⁹²

• 

[ Margolin argued twenty-eight times before the Supreme Court. In her thirty-three years at the Department of Labor she oversaw the Court's enforcement of the Fair Labor Standards Act (FLSA), and later the Equal Pay Act. ]

Her work did not go unheralded. For example, Solicitor General Simon Sobeloff wrote to Labor Secretary James P. Mitchell expressing his “deep appreciation for the outstanding work of Miss Bessie Margolin” in Supreme Court matters pertaining to the Department of Labor during the 1954 October Term:

Three very important Fair Labor Standards Act cases, which I urged the Supreme Court to consider, were briefed on the merits and argued orally at that time (_ v. _, 348 U.S. 445, _ v. _, 349 U.S. 427, _ v. _, 349 U.S. 254), and several other significant cases were dealt with in briefs in opposition or petitions for certiorari. The three cases heard by the Court were each of widespread consequence, involving one or more basic aspects of the enforcement of the Fair Labor Standards Act and affecting large numbers of workers throughout the country. …

 In simple justice to Miss Margolin, and without disparaging the work of others, I must say she was primarily responsible for the briefing of the cases. Moreover, she personally argued the _ and _ cases. Without her excellent, careful, thorough and persuasive briefs these significant cases would not have achieved the measure of success actually attained. Her distinguished and effective oral arguments—in complex and difficult cases—also played a very large role in these results and members of the Court have spoken of her to me in highest praise. I consider my Office fortunate in having a lawyer of Miss Margolin's outstanding calibre on whom to rely in this important phase of government litigation in the Supreme Court.⁹³

Margolin owed her career as an appellate advocate to Congress's decision in the FLSA to withhold general rule-making authority from the Department of Labor. As a result, the courts, including the Supreme Court, were frequently called upon to clarify the vague language of the Act unaided by any rule or decision of an administrative agency to which deference should be granted for expertise in the subject matter.⁹⁴ In only the first five years after the FLSA took effect, the Supreme Court decided thirty-one FLSA cases.⁹⁵ After the Court upheld the constitutionality of the Act in Darby and Opp Cotton Mills,⁹⁶ the litigation focused on the Act's interpretation, and Margolin served for nearly four decades as the principal architect of that litigation. Her longtime legal protégé Carin Clauss, described her strategy:

Although the FLSA withheld formal rulemaking power from the Labor Department, Bessie used two important techniques to influence the Court's interpretation of the statute. In the first instance, she worked with colleague Harold Nystrom to issue interpretations of the law that were captured in “interpretative bulletins” to which the Court gave a great deal of weight. And because he and Bessie were such good friends, she was very much involved in how the law would be interpreted. And they used to fight and argue because Harold would take a position that Bessie would say, “You can't get from the statute to there without litigation. It's too big a jump. The Court won't make that big a jump.”⁹⁷

Margolin also shaped how controversies over interpretation reached the Court through her comprehensive legal analyses. Margolin personally wrote or oversaw the writing of scholarly, thorough legal memoranda, which she distributed throughout her division at the national office and the Solicitor's regional offices. By the time she retired, Margolin had issued nearly 200 analyses that filled several loose-leaf binders. Some of these pertained to fundamental FLSA issues such as coverage or the employment relationship. Other analyses followed each new Supreme Court decision. According to Carin Clauss and Donald Shire, who worked for Margolin from the early to mid-1960s through her retirement, the analyses reviewed what had been accomplished by the Court's decision and set forth guidance to identify future cases to achieve what had not yet been accomplished. Clauss gave general examples of what Margolin wrote in the analyses, “We wanted [the Court] to address the following issues. They dumped this issue. So they gave us good language on these two issues. We want to develop this third issue. This case was too tough for them. So I’m not going to approve for litigation any case that doesn't have the following elements.”⁹⁸ Considered a “bible,” Margolin's legal analyses were crucial to the Solicitor's Office not only in writing appellate briefs but also in deciding whether regional offices “could bring a particularly tough case involving a novel issue of law.”⁹⁹

Margolin's tenure at the Department of Labor spanned five presidents, nine Secretaries of Labor (Frances Perkins 1933–1945, Lewis B. Schwellenbach 1945–1948, Maurice Tobin 1948–1953, Martin P. Durkin 1953, James P. Mitchell 1953–1961, Arthur J. Goldberg 1961–1962, W. Willard Wirtz 1962–1969, George P. Shultz 1969–1970, and James D. Hodgson 1970–1973), and eleven Solicitors of Labor (Gerard D. Reilly, Irving Levy, Douglas B. Maggs, Warner Gardner, William S. Tyson, Stuart Rothman, Charles Donohue, Harold Nystrom (Acting), Laurence H. Silberman, Peter G. Nash, and Richard Schubert). “Solicitors come and go but I’ll always be here,” Margolin once remarked. According to Clauss, Margolin “was able—by virtue of her reputation and integrity and persuasive power to push new (and ever younger and more conservative) solicitors to a more pro-worker stance, all in the name of administering and enforcing the statutes as Congress wrote them.”¹⁰⁰ New political appointees would arrive saying, “they’re going to change the Solicitor's office. And then they’d bump up against Bessie.”¹⁰¹

At Margolin's retirement dinner, Laurence Silberman described his first encounter in 1969—as a brand new, thirty-three year-old Solicitor of Labor—with Margolin, who was then Associate Solicitor for Fair Labor Standards, and had started her career as a federal government lawyer before Silberman was born.

First of all, she has, as you all know, a formidable reputation. … I was terrified because I found out that before I became solicitor there were three steps: I had to be nominated by the President, confirmed by the Senate, and interviewed by Bessie. And she made it clear at the outset that the fact that I was a Republican would not make the interview any easier. But I was perspicacious enough to find out from someone in the Solicitor's office that if I expressed undying loyalty to what somebody described as the equal pay provisions of the Fair Labor Standards Act, it didn't matter what I else I did. And so I followed their advice and the interview went very well.

Although recounted with humor, Silberman's anecdote was not far from the truth.¹⁰²

Margolin earned the deep respect of lawyers and judges across the country, including members of the Supreme Court. So much so that she was able—in appropriate circumstances—to employ humor when addressing the Justices. The audio recording of Margolin's November 16, 1955 argument in Steiner v. Mitchell¹⁰³ reveals Justice Frankfurter rapidly firing questions at Margolin, reflecting his ongoing dislike of the “line drawing” burden Congress imposed on the Court by the FLSA. Margolin deflected the frustration Justice Frankfurter frequently directed at her and used carefully measured humor to persuade the Court to interpret the FLSA's “Portal to Portal” amendments to require employers to pay workers in a wet storage battery plant, whose jobs involved contact with caustic and toxic chemicals, for the time they spent changing their clothes and showering.

Margolin: Now I grant you that that's not something that is ABC or a simple decision to make, but it's no different than many questions of statutory interpretation as to the application of a legal criterion of a statute.

J. Frankfurter: [inaudible]

Margolin: [You’ve] many times said to me the Court should leave the question for Congress, and not for the Court. But, after all, Congress has 4 or 500 people that they have to get into agreement on language, and the Court has just nine. Which is enough!

[laughter in courtroom]

J. Frankfurter: [inaudible]

Margolin: I’m sure, Mr. Justice Frankfurter, I don't need to tell you that language is not something that is easy to make clear.

Another instance of Margolin's well-timed and well-received humor occurred in her January 1960 argument as amicus in Arnold v. Ben Kanowsky.¹⁰⁴ Following up on a question posed by Chief Justice Earl Warren, another Justice asked Margolin: “May I ask just this question? Do you stand or fall in this case on your answer to the Chief Justice?” Margolin's quick response, cast in feigned bewilderment, brought on laughter from the entire courtroom, including the Justice who posed the question. “What do you mean, do I stand? As I see it, I stand. I don't fall on either.”

Margolin enjoyed telling about her attempts during her 1947 oral argument in Rutherford Food to satisfy Justice Frankfurter who was “showing (or pretending) great irritation that I could not suggest more specific standards as substitute for common law principles for determining whether an employment relationship existed” between the boners and the slaughterhouse. According to Margolin, Justice Frankfurter said to her,

“You are asking the Court to abandon common law principles but are not suggesting any tangible standards as substitute.” I repeatedly answered his questions by referring to the principle the Court had itself set forth three years earlier in Labor Board v. Hearst Publishing Co. (322 U.S. 111) (an 8–1 decision, in which Justice Frankfurter had concurred, only Justice Roberts dissenting). Justice Frankfurter was still badgering me hard when adjournment time was reached, leaving me about 10 minutes to go when Court resumed at noon the next day.

Overnight I wracked my brains—with the help of able associates—to prepare an adequate answer, in the event Justice Frankfurter should renew the pressure. Jokingly, I suggested, if pushed, I might quote one of Justice Frankfurter's own highly generalized standards from his opinion in an FLSA case I had argued about two years earlier (_ v. _, 325 U.S. 578—lost by a 5–4 split Court, with Justice Frankfurter writing the majority opinion).

 I really did not intend to use the quote, as I thought it would be impertinent. However, as soon as I got on my feet the next day, Justice Frankfurter started in immediately with the same questions—lengthening out his questions and objections to my answers, so that my 10 minutes were fast dwindling away. Finally— somewhat to my own surprise—I found myself saying: “Well, Your Honor, the only other specific test I can think of is one Your Honor suggested in another case involving a question of coverage of the Act—Your Honor suggested that the test for distinguishing between non-covered local business and covered national business was what “spontaneously satisfies the common understanding.” At which point, all of the other Justices joined in laughter, and Justice Frankfurter became and remained silent for the rest of the argument. And he laterjoined the unanimous decision infavor of the Government.¹⁰⁵

That Margolin captured Justice Frankfurter's attention is further evidenced in notes he sent from the Bench to Philip Elman, former law clerk and Assistant Solicitor General. On November 18, 1959, just one day after Margolin argued Mitchell v. Oregon Frozen Foods,¹⁰⁶ and two days after she argued Mitchell v. DeMario Jewelry,¹⁰⁷ Frankfurter penned a note “Re Bessie Margolin,” which appears to capture a conversation between two persons identified only as “F” and “X”:

After some dithyrambic praise

F “She is a very good girl and a good advocate but not a lawyer of unsettling brilliance apart from the deft use of her feminine charms.”

X–Don't you think that female charms are terribly important!!!”

FF¹⁰⁸

Another rather cryptic note from Justice Frankfurter, dated May 9, and which Elman placed in a folder labeled “Bessie Margolin,” queried, “I’ll give you one guess who is the most susceptible to MAHR's exploitation of her female talents?” The answer, or possibly Elman's guess, at the bottom of the note, is “Harlan.”¹⁰⁹

Margolin did indeed have a feminine style to accompany her “crisp” speech and “penetrating” analyses at oral argument, which were rivaled only by her “special gift of lucidity in the writing of briefs,” the product of seemingly endless wordsmithing and exhaustive research.¹¹⁰ She spoke with an engaging drawl and calm confidence that revealed her Southern heritage and the power of her knowledge. She was a striking brunette known for her elegant wardrobe and impeccable coiffure—the latter owed to regular, morning visits to the Elizabeth Arden Salon, where she often edited briefs. Whether because of her gender, her appearance, or her demeanor (or all three), Margolin turned heads as she entered courtrooms throughout the federal circuits and at the Court. “She walked with absolute assurance that a door would be opened before she got to it.”¹¹¹

At the Supreme Court, Margolin's self-assurance stemmed not only from her growing number of appearances, but also because each appearance further enhanced her unique expertise as a Supreme Court advocate with personal knowledge of the growing body of FLSA cases she cited. Margolin's preeminence in the subject matter of the FLSA enabled her to engage the Justices in bold colloquy—always tempered with a Southern grace—which would have been rejected as impertinent or foolhardy from a less experienced advocate. Take, for example, her exchange with Justice Charles Whitaker during her February 25, 1960 argument in Mitchell v. H.B. Zachry. More than a decade earlier, Margolin had argued McComb v. Jacksonville Paper Co.,¹¹² in which the Court established that the trial court had the authority to order back pay where the employer violates the court's prior judgment enjoining further violations of the Act's wage, overtime, and record-keeping requirements. However, without the injunction in the first instance, the FLSA did not otherwise authorize back pay awards. Margolin was greatly concerned about the growing number of trial judges—like the one in the case at bar—who refused to grant injunctive relief even when they found FLSA violations, thereby preventing the Department from seeking back pay for repeat violations and, in turn, encouraging employers to contest FLSA coverage while withholding wages, without financial disincentive. Margolin used half of the time allotted for her argument in H.B. Zachry to ask the Supreme Court to address this abuse of discretion. The audio recording of the oral argument reveals that Margolin did not shy away when Justice Whitaker challenged the government's position:

J. Whitaker: I’ve had citations issued against clients of mine, a number of cases by your department on just this kind of business. And I tell you it's not fair and it's not right to deny one citizen the right to live under the law of the land simply because he's had one piece of litigation with the government and let his competitors [alone] … make him live under the citation of contempt just because he's living under the law of the land.

Margolin: Again, can I just put this question to you? Is it right or fair that employees should not be paid what their rights—now this Act is 20 years old now—that their employees should lose their wages under this Act every time there is a doubt as to coverage?

J. Whitaker: Not at all. The Courts are open to them just as they are to the employers, but the weight of government shouldn't be thrown either way.

Margolin: You think that this law was intended to put them on an equal basis as to minimum wages?

J. Whitaker: The government throws its weight to one side.

Margolin: Well, I think, the government, certainly Congress intended the government to throw its weight on the side of the minimum—the substandard wage earners in this country when it passed this law. I think that is certainly clear beyond doubt, Mr. Justice Whitaker.

As masterful as she was in controlling what happened in the courtrooms where she argued, neither Margolin's intellect nor “feminine charm” protected her from harsh treatment or disappointment in other facets of her life. Being a striking, single woman, often in the company of male colleagues, may account for frequent speculation about her personal and romantic relationships. In 1943, Margolin was caught up in a particularly nasty investigation by Congressman Eugene E. Cox, who sought to discredit Federal Communications Commission Chairman Larry Fly, in part by threatening to reveal his alleged extramarital relationship with Margolin during their time together at the TVA.¹¹³ Then Congressman Lyndon B. Johnson and House Speaker Sam Rayburn stopped Cox from publicly questioning Fly about his relationship with Margolin during the House Select Committee hearings. Rayburn reportedly told Cox, “Now, Gene, there ain't going to be no sex in this investigation. You understand me, Gene. There ain't going to be no sex. There's too damn many of us that are vulnerable on that score.”¹¹⁴ Although Cox obliged, the investigative reports with TVA travel vouchers and details (or wild speculation) from Margolin's housekeepers and landlords about the company Margolin kept while at her Knoxville, Tennessee apartment or while traveling for the TVA remain to this day in Congress's files.¹¹⁵

Perhaps the biggest disappointment of Margolin's career was her unsuccessful attempt to secure nomination by President Lyndon B. Johnson for a federal judgeship in the mid 1960s, despite the persistent efforts of impressive backers such as Congressman and fellow Tulane alumnus Hale Boggs, fellow Newcomb alumnus Corinne “Lindy” Boggs, Secretary Willard Wirtz, Justice Douglas, Justice Goldberg, Treasury Secretary Henry Fowler, Assistant Labor Secretary Esther Peterson, John Lord O’Brian, and many other close and loyal supporters. In recommending Margolin to President Johnson for a judgeship, Justice Douglas wrote, “If I had to list the ten best advocates who have appeared before us in the last 25 years that I have been on the bench, I would put Bessie Margolin down as one of the ten. She is tops.”¹¹⁶

Despite stunning accomplishments and strong references, neither Margolin nor any other woman (except for Constance Baker Motley, who was appointed to the federal district court in New York) received a federal judgeship anywhere in the country between 1963 and 1967. Of the then total 395 federal judges, there were only two women—both federal district court judges, Burnita Shelton Matthews (D.C.) and Sarah Tilghman Hughes (Tex.)—and there had been no woman on the federal appellate bench since the retirement of Circuit Judge Florence Allen in 1959. As Margolin wrote in 1964 to supporter Katie Louchheim, Deputy Assistant Secretary of State for Public Affairs, “There are very few men attorneys, and I know there is no other woman attorney, with as much experience in federal appellate practice as I have been privileged to acquire.”¹¹⁷ Intent on appointing at least fifty women to high-level government positions, over several days in March 1964, President Johnson discussed Margolin as a candidate for the Court of Claims or other federal judgeships, asking his aides about her age and political assets. “What about this Jewish woman for this Court of Claims? Is she a little dangerous on that?”¹¹⁸

Margolin's name—and her excellent appellate record—would continue to be discussed within the White House for each of several vacancies on the Court of Claims and the U.S. Court of Appeals for the District of Columbia over the next three years.¹¹⁹ For whatever reasons, Margolin was passed over each time. By January 1967, John Macy, Special Assistant to the President, agreed with a staff recommendation “that her age (58) would tend to preclude her from consideration. One does not get the impression, from perusing her record, that she outshines some of the younger feminine candidates that we have.”¹²⁰ Apparently, that was her last chance.

Privately disappointed by not being chosen for a judgeship, Margolin turned her attention during her last eight years at the Labor Department to the 1963 Equal Pay Amendment to the FLSA, the 1964 Civil Rights Act (actively refuting claims that its prohibition against sex discrimination was a “fluke”), and the 1967 Age Discrimination in Employment Act. Again she oversaw the Department's national litigation strategies and personally argued the first appeals under some of those statutes.¹²¹ The Equal Pay Act cases, in particular, presented very difficult issues of law and fact and the Department's suits against employers were defended vigorously by some of the country's most prestigious law firms that specialized in labor law. One of Margolin's most significant accomplishments was in convincing the Third Circuit Court of Appeals to reverse the federal district court's decision—considered “bullet-proof” because of its extensive reliance on facts—by establishing that, when Congress enacted the Equal Pay Act requiring that women receive equal pay for equal work, it “did not require that the jobs be identical, but only that they must be substantially equal. Any other interpretation would destroy the remedial purpose of the Act.”¹²²

Laurence Silberman, who was Solicitor of Labor when the Third Circuit issued its ruling, later recounted discussing with Margolin whether to oppose the employer's petition for review by the Supreme Court.

Now you could see the light in Bessie's eyes. She had a sweeping decision in the Third Circuit and here was an opportunity to take an Equal Pay case to the Supreme Court. And Bessie suggested that maybe we should not oppose cert because it would be appropriate to have the Supreme Court see this issue. Well, I didn't think there was any way in the world we were ever going to get a decision that was better than that Third Circuit decision … But I figured a way to deal with the problem. I just sort of leaned back in my chair and I said, “Bessie, you know I’ve never argued a case in the Supreme Court.” She said, “We’ll oppose cert.”¹²³

By the time Margolin retired in 1972, she had received every award offered by the Department of Labor as well as the Federal Woman's Award.¹²⁴ She had also won millions of dollars for America's wage earners, although few if any had ever heard of her. But she was well known, highly respected and profoundly appreciated by countless attorneys and support staff—men and women alike—whose distinguished careers she had shaped and supported, by imposing on them the same remarkably high standards she set for herself. Carin Clauss, now Professor Emeritus of Labor Law at the University of Wisconsin Law School, started her legal career as a staff attorney with Margolin in 1963 and became the first woman Solicitor of Labor in 1978. As her protégé, Margolin taught Clauss that, in brief writing, the first thing a judge reads is the table of contents so every one of the argument headings must tell a complete story. As for oral arguments, a lawyer needs a thirty-second argument, a sixty-minute argument, and a compelling version of every length in between. Clauss credits Margolin—a selfless mentor who understood that people do not rise to the top on merit alone—with pushing her and others who worked for her to attain positions of responsibility, including positions that Margolin could not achieve herself.

• 

[ In 1972, more than 200 coworkers, family and friends, as well as dozens of prominent judges and government officials, arrived at the Washington Hilton Hotel for a formal dinner to mark the retirement of Margolin, Associate Solicitor of Labor. Retired Chief Justice Earl Warren, before whom she had argued fifteen times, was one of many who sang her praises. ]

For several years after her retirement in 1972, Margolin taught labor law at George Washington University Law School and served as an arbitrator in a number of private labor disputes. And, just as she had done every spring for years prior to her retirement, Margolin continued to arrange—as a highlight of the annual Civics trip from New Orleans to Washington, D.C.—for the ninth grade class of her beloved Isidore Newman School to have a private meeting with a Supreme Court Justice.

After several years of declining health, Margolin died in 1996 at age eighty-seven. In lieu of a funeral, a small group of relatives, former colleagues, and close friends gathered to share stories, express gratitude, and pay tribute to Bessie Margolin's remarkable life and career.

ENDNOTES

• 1

  The author grew up in New Orleans as a ward of the Jewish Children's Regional Service, the successor agency to the Jewish Orphan's Home (later renamed the Jewish Children's Home) in which Bessie Margolin was raised, and attended the Isidore Newman School under the mandate of its charter to educate Jewish orphans. These shared childhood experiences—a half-century apart—prompted the author to meet Margolin in 1974 and to spend time with her over the next decade. The author, who has undertaken to write Margolin's biography in tribute to her and to these two New Orleans institutions that changed both their lives, is especially grateful to Malcolm Trifon, Margolin's nephew, for sharing fond memories of “Aunt Bess” and for entrusting the author with Margolin's personal papers; to Carin A. Clauss, Anastasia T. Dunau, Eva B. Fitzgerald, LeRoy Jahn, Robert E. Nagle, Donald S. Shire, and Judge Laurence H. Silberman, among other former or current members of the Office of the Solicitor of Labor, who graciously granted interviews, in some cases lengthy and on repeated occasions; to Andrea Giampetro-Myer for her enthusiasm and advice; and to Clare Cushman for her skillful editing. Finally, the author appreciates her husband, Henry Kahn, and their children, Helene and Eli Kahn, for many things, not the least of which has been their support of this continuing endeavor.

• 2

  Phonotape recording of “Bessie Margolin Farewell Dinner” (Jan. 28, 1972), Laurence H. Silberman Papers, Hoover Institution Archives, Stanford University (hereinafter “Retirement Dinner Recording”).

• 3

  According to handwritten entries (numbers 1248 and 1249) in the registry of the Jewish Orphan's Home, Margolin and her older sister, Dora, were admitted on June 5, 1913 on the recommendation of Rabbi M. Samfield, President of the Memphis United Hebrew Relief Association and a Director of the International Order of B’Nai Brith, Region 7. These records, a copy of which are on file with the author, were made available by Ned Goldberg, Executive Director, Jewish Children's Regional Service.

• 4

  Harold Rubin, ed., Century of Progress in Child Care: Jewish Children's Home, 1855–1955, at 1–10 (New Orleans: Jewish Children's Home, 1955) (available at Howard-Tilton Memorial Library, Tulane University, Manuscripts Collection number 180, Jewish Children's Home Records) (hereinafter “Jewish Children's Home Records”); Anne Rochell Konigsmark, Isidore Newman School: 100 Years at 18–22 (New Orleans: Isidore Newman School, 2004); Wendy Besmann, “The ‘Typical Home Kid Overachievers’: Instilling a Success Ethic in the Jewish Children's Home of New Orleans,” 2005 Southern Jewish History 8, at 121–159.

• 5

  Jewish Orphans’ Home, Board Resolution, April 27, 1902, quoted in Rubin, Century of Progress,supra n. 4 at 5.

• 6

  Jewish Orphans’ Home, Golden City Messenger, July 1923, at 1 (Jewish Children's Home Records).

• 7

  Telephone Interview with Joseph Polack, brother of Katherine Polack Rittenberg (July 7, 2010). In 1948, according to her obituary, Rittenberg was named one of the New Orleans Times-Picayune's Ten Best-Dressed Women. Times-Picayune, July 7, 1998, available at http://files.usgwarchives.net/la/orleans/obits/1/r-09.txt (last visited Dec. 9, 2011).

• 8

  Statement of Reference for Bessie Margolin from Hanna B. Stern to A.E. Many, Counselor to Women, Newcomb College (April 1926) (on file with Newcomb College Center for Research on Women, Newcomb Archives, Tulane University).

• 9

  See Besmann, “The ‘Typical Home Kid Overachievers,’”supra n. 4 at 142.

• 10

  Jewish Orphans’ Home, Golden City Messenger, Oct.–Nov. 1923 (Jewish Children's Home Records).

• 11

  Id.

• 12

  Barbara Brin, et al., “Alumni Feature: Newman's Representative in Washington,”Pioneer, Isidore Newman School, May 1966, at 6, 8.

• 13

  Isidore Newman School, Pioneer, June 1925 at 39.

• 14

  Booton Herndon, “Brain Investment Pays Dividends,”New Orleans States, April 6, 1939 at 1.

• 15

  Unsigned Memorandum by Newcomb College Faculty Member Regarding Bessie Margolin (Oct. 27, 1927) (on file with Newcomb College Center for Research on Women, Newcomb Archives, Tulane University).

• 16

  Tulane University Class of 1930 Fifty Year Reunion Booklet (May 10, 1980), Margolin Papers. One leading private practitioner with whom Margolin became acquainted during her term as Civil Law Review Editor was Monte M. Lemann, Chair of Tulane Law Review's Board of Advisory Editors. Eulogized in 1959 by Justice Felix Frankfurter as “one of the country's outstanding practitioners at the bar” and “exemplar of the legal profession,” Lemann was a member of the United States Supreme Court's Advisory Committee on Rules of Civil Procedure and a member of President Hoover's so-called Wickersham Commission to study prohibition. Lemann “admired [Margolin] considerably.” E-mail from Thomas B. Lemann, Esq., son of Monte Lemann, to Leon Rittenberg, Jr. (July 9, 2010) (on file with author).

• 17

  Profile of Bessie Margolin in Tulane Alumni Publication (1967) (made available by Ellen Birerre, Director, Law Alumni Affairs, Tulane Law School, on file with author).

• 18

  Immovables by Destination, 5 Tul. L.Rev. 90 (1930–1931); “Usufruct of a Promissory Note—Perfect or Imperfect, 4 Tul. L.Rev. 104 (1929–1930); and “Vendor's Privilege,” 4 Tul. L.Rev. 239 (1929–1930). The Tulane Chapter of the Order of the Coif was established in December 1931, at which time members were elected from classes of three preceding years, including Margolin ’30 and John Minor Wisdom ’29. “Students Named for Coif Society,”The Times-Picayune, April 12, 1934 at 11.

• 19

  Mazie Adkins, “N.O. Girl Aid to Yale Savant,”Item Tribune, Aug. 21, 1931.

• 20

  While at Yale, Margolin completed two research papers. Her doctorate thesis, “Corporate Reorganization in France: A Comparative Study of French and American Practices” (May 30, 1933), is available at Yale Law School Lillian Goldman Law Library, and the other paper was published as “The Corporate Reorganization Provision in Senate Bill 3866, A Proposed Draft of a New Bankruptcy Act,” 42 Yale L.J. 387 (1933)

• 21

  Letter from Professor Ernest G. Lorenzen, Yale Law School to Dean Rufus C. Harris, Tulane Law School (March 1, 1932) (Margolin Papers, on file with author).

• 22

  Letter from Margolin to Doris Stevens, Chairman, Inter American Commission on Women (Feb. 19, 1933) (Doris Stevens Papers Box 33, Schlesinger Library, Radcliffe Institute for Advanced Study, Harvard University).

• 23

  Letter from Prof. William O. Douglas, Yale University, to Tennessee Valley Authority (June 23, 1933) (Margolin Papers, on file with author).

• 24

  Letter from Richard Joyce Smith, Esquire, Whitman, Ransom Coulson & Goetz, formerly Professor, Yale Law School, to David E. Lilienthal, Tennessee Valley Authority (July 8, 1933) (Margolin Papers, on file with author).

• 25

  Letters from Paul W. Brosman, Assistant Dean, Tulane Law School to Floyd W. Reeves, TVA (July 3, 1933) and Rufus C. Harris, Dean, Tulane Law School to Floyd W. Reeves, TVA (July 13, 1933) (Margolin Papers, on file with author).

• 26

  Steven M. Neuse, David E. Lilienthal—The Journey of an American Liberal (University of Tennessee Press: Knoxville, 1996), 115.

• 27

  Frank Friedel, “Foreward” in The Making of the New Deal—The Insiders Speak, edited by Katie Louchheim (Harvard University Press, 1983), xii–xiii.

• 28

  Interview with Henry H. Fowler by Dr. Charles W. Crawford in New York, New York (April 22, 1971) (available in Tennessee Valley Authority Oral History Collection, Memphis State University Oral History Research Office), 6.

• 29

  Interview with Joseph Swidler by Dr. Charles W. Crawford in Washington, D.C. (October 29, 1969) (available in Tennessee Valley Authority Oral History Collection, Memphis State University Oral History Research Office), 10–11.

• 30

  Id.

• 31

  Fowler Interview, supra n. 28, at 8–9.

• 32

  Ashwander v. TVA, 297 U.S. 288 (1936).

• 33

  Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939)

• 34

  Letter from Bessie Margolin to Wesley A. Sturges, Dean, Yale Law School (May 10, 1948) (Margolin Papers, on file with author).

• 35

  TVA Classification Sheet (Form 12A) and Employee Status Change (Form 78) for Bessie Margolin (Jan. 1, 1936) (Margolin TVA Personnel Records, obtained by author through FOIA request, on file with author).

• 36

  Margolin's TVA colleague and lifelong friend, Joe Swidler, was admitted the same day. 1935 U.S. Supreme Court Journal 109–110 (Dec. 19–20, 1935). Information about Margolin's Supreme Court sponsor was provided by Robert Ellis, Federal Judicial Records Archivist, National Archives and Records Administration (NARA), from Record Group 267, Records of the U.S. Supreme Court, Minutes 1935 October Term, National Archives Building, Washington, D.C. (NAB). The infrequency of women admitted to the Court is reflected by the minutes, “On motion first made to the Court in this behalf by Mr. Solicitor General Reed, it is ordered that Bessie Margolin of New Orleans, Louisiana, Be admitted to practice as an Attorney and Counselor of this Court, and he was sworn accordingly.” (Emphasis added.)

• 37

  Henry Fowler described O’Brian's argument as “masterful,” notwithstanding “hostile questions from Justice McReynolds who had a great time baiting his old friend.” Fowler said Solicitor General Reed made an equally favorable closing argument. Fowler Interview, supra n. 28, at 26–27.

• 38

  TVA Classification Sheet (Form 12A) and Employee Status Change (Form 78) for Bessie Margolin (Aug. 16, 1937) (Margolin TVA Personnel Records, obtained by author through FOIA request, on file with author).

• 39

  “TVA Goes on Trial for Its Life,”Life, Nov. 29, 1937, at 25.

• 40

  Judge Gore told Allen to smile when she entered the Courtroom while presiding over TEP v. TVA“so that the watching reporters could not impute to her a disappointment” over not receiving the nomination. Beverly Cook, “The First Woman Candidate for the Supreme Court–Florence E. Allen,” 1981 Yearbook of the Supreme Court Historical Society, 19, citing Florence Allen, To Do Justly (Ohio: Western Reserve University Press, 1965), 110.

• 41

  Interview with John Lord O’Brian, Senior Partner, Covington and Burling, by Dr. Charles Crawford in Washington, D.C. (Jan. 10, 1970) (available in Tennessee Valley Authority Oral History Collection, Memphis State University Oral History Research Office), 8–9. At his interview, O’Brian was ninety-six years old and believed he was the oldest member of the Supreme Court Bar. Asked about the number of cases he had argued at the Supreme Court, O’Brian said, “I don't know how many. I’ve been told that it is near sixty.”Id. at 14.

• 42

  Letter from Margolin to Herbert Marks (undated) (available at Franklin D. Roosevelt Presidential Library, Papers of Herbert S. Marks, “Bessie Margolin” File) (“Marks Papers”). Marks was TVA Assistant General Counsel (1934–1939), General Counsel to the Bonneville Power Administration (1939–1941), Assistant General Counsel for the Office of Production Management and the War Production Board (1941–1945), Special Assistant to the Under Secretary of State (1945–1946), and General Counsel to the Atomic Energy Commission.

• 43

  Letter from Margolin to Wesley C. Sturges, Dean, Yale Law School (May 10, 1948) (Margolin Papers, on file with author).

• 44

  Letter from Margolin to Herbert S. Marks (undated) (Marks Papers).

• 45

  Letter from Margolin to Herbert S. Marks (Feb. 19, 1939) (Marks Papers).

• 46

  Letter from Margolin to Herbert S. Marks (April 25, 1939) (Marks Papers).

• 47

  “New Orleans Girl Represents U.S. at Hearing—Move to Require Wage Hour Chief to Appear Lost,”Times-Picayune (April 6, 1939), 3; “Orleans Girl with Federal Counsel,”New Orleans States (April 5, 1939), 1; Booton Herndon, “Local Girl Makes Good in Big Way—Reared in Children's Home She Gets Two Degrees at Once,”New Orleans Item (April 6, 1939), 1.

• 48

  Booton Herndon Article, supra n. 47.

• 49

  Id.

• 50

  Letter from Margolin to Herbert S. Marks (May 22, 1939) (Marks Papers).

• 51

  Janes v. Lake Wales Citrus Growers Association, 110 F. 2d 653 (5^th Cir. 1940).

• 52

  Letter from Margolin, submitting “Answers to Personal Data Questionnaire,” to Joseph F. Dolan, Assistant Deputy Attorney General, U.S. Department of Justice (March 24, 1964) (Margolin Papers).

• 53

  Cudahy Packing of Louisiana, Ltd. v. Fleming, 109 F.2d 209 (5^th Cir. 1941).

• 54

  Id. On review by the Supreme Court, Solicitor of Labor Warner Gardner argued the case. The Court reversed on the single ground that the Wage and Hour Administrator had no authority to delegate power to sign the subpoena. Cudahy Packing Co. of Lousiana v. Holland, 315 U.S. 785 (1942).

• 55

  Walling v. Peavy Wilson, 49 F. Supp. 846 (W.D. La. 1943).

• 56

  Walling v. Sun Publishing Co., 47 F. Supp 180 (W.D. Tenn. 1942).

• 57

  “Wage Law Cannot Be Used in Newspaper Cases, Is Plea of Attorney,” The Enquirer (Cincinnati, Ohio), Dec. 1, 1943, at 24.

• 58

  Sun Publishing Co. v. Walling, 140 F.2d 445 (6^th Cir.), cert. denied, 322 U.S. 728 (1944).

• 59

  Letter from Margolin to Frances Perkins, Secretary, U.S. Department of Labor, and attached memorandum (Sept. 28, 1942) (General Records of the Department of Labor, Record Group 174 (RG 174), Box 157, National Archives at College Park, College Park, MD (NACP)). (A carbon copy of the letter and attached memorandum are also in Margolin Papers.)

• 60

  Id.

• 61

  Memorandum from Robert C. Smith, Director of Personnel, DOL, to Frances Perkins, Secretary, DOL (Oct. 14, 1942) (RG 174, Box 157, NACP).

• 62

  Personnel Recommendation Re: Promotion of Bessie Margolin from Irving J. Levy, Acting Solicitor of Labor to Robert C. Smith, Director of Personnel (Oct. 20, 1942) (Margolin Civilian Personnel Records, NARA—National Personnel Records Center, St. Louis, MO (NARA-NPRC), obtained through FOIA request, on file with author).

• 63

  Memorandum from Douglas B. Maggs, Solicitor of Labor, to Frances Perkins, Secretary of Labor (December 31, 1943) (RG 174, Box 157, NACP). (Copy in Margolin Papers.)

• 64

  Tennessee Coal, Iron & Railroad Company v. Muscoda, 135 F.2d 320 (5^th Cir. 1943).

• 65

  Margolin included this account in notes she prepared for Chief Justice Earl Warren to use in his remarks at her 1972 retirement dinner. A typed version of her notes is available at the Library of Congress, Manuscript Division, Earl Warren Papers, Box 832, and Margolin's handwritten original is in her papers, on file with the author.

• 66

  A.H. Phillips v. Walling, 324 U.S. 490 (1945).

• 67

  A.H. Phillips v. Walling, 144 F. 2d 102 (1^st Cir. 1944).

• 68

  William O. Douglas, The Court Years 1939–1975 (New York: Random House, 1980), 184–185.

• 69

  Handwritten Note from Robert H. Jackson, Associate Justice to Margolin (March 1945) (Margolin Papers, on file with author).

• 70

  A.H. Phillips v. Walling, 324 U.S. 490, 493 (1945).

• 71

  Margolin Notes for Justice Warren, supra n. 65.

• 72

  10 East 40^th St. Bldg. v. Callus, 325 U.S. 578 (1945).

• 73

  Id., 325 U.S. at 579–583.

• 74

  Roland Electrical Co. v. Walling, 326 U.S. 657 (1946).

• ⁷⁵

  Boutell v. Walling, 327 U.S. 463 (1946).

• 76

  Margolin Notes for Justice Warren, supra n. 65. The Supreme Court Journal entries for Monday, October 8, and Tuesday, October 9, 1945, reveal that the case argued after Roland Electrical Company v. Walling and immediately before Boutell v. Walling was Martino v. Michigan Window Cleaning Company, 327 U.S. 173 (1946), in which the Supreme Court ruled that the window washers were covered by the FLSA, as Margolin had urged in her unscheduled argument.

• 77

  As Justice Jackson said in his April 1945 address to the American Society of International Law in Washington, D.C., “But the dullest mind must now see that our national society cannot be so self-sufficient and so isolated that freedom, security and opportunity of our own citizens can be assured by good domestic laws alone.” Margolin kept a typed copy of Jackson's address in her personal papers.

• 78

  Letter from Margolin to John Lord O’Brian (June 2, 1946) (available at the Charles B. Sears Law Library, University of Buffalo, John Lord O’Brian Papers).

• 79

  Letter from Telford Taylor, U.S. Brigadier General, to Louis Schwellenbach, Secretary of Labor (November 2, 1946) (Margolin Papers).

• 80

  Letter from Margolin to Telford Taylor (January 20, 1947) (Margolin Papers). Reporting on the results of her “trip South for the War Department,” Margolin noted that “the Chief Justice's refusal to permit Federal judges to go to Nurnberg was something of a blow, but it seemed to me from my conferences that some very good people were interested.”

• 81

  Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947).

• 82

  Margolin Papers.

• 83

  Id.

• 84

  Powell v. U.S. Cartridge Co., 339 U.S. 497 (1950).

• 85

  Letter from Jeter S. Ray, Acting Solicitor of Labor, to Margolin regarding Reduction in Force—Notification of Personnel Action—Change to Lower Grade (May 25, 1953) (Margolin Civilian Personnel Records, NARA-NPRC).

• 86

  Confidential Questionnaire completed by Margolin for Study of Federal Executives by Cornell University and the University of Chicago (undated) (Margolin Papers).

• 87

  Memorandum from Jeter S. Ray, Acting Solicitor of Labor, Regarding Nomination of Bessie Margolin for a Distinguished or Meritorious Service Award to (July 23, 1953) (Margolin Papers).

• 88

  The figures cited in text rely primarily on Margolin's own compilation, “Supreme Court and Court of Appeals Cases Prepared by or Under Direction of Bessie Margolin as Assistant or Associate Solicitor in Charge of Labor Department's Appellate Litigation (1943 through September 1967)” (Margolin Papers), and are supplemented by the author's research on Margolin's appellate cases from September 1967 through her January 1972 retirement. The author notes, however, one 1972 summary in Margolin's papers credits her with having “personally prepared briefs and orally argued about 200 appeals” in the circuit courts, in addition to her Supreme Court cases.

• 89

  Mitchell v. Oregon Frozen Foods, 361 U.S. 231 (1959).

• 90

  Mitchell v. H.B. Zachry, 362 U.S. 310 (1960).

• 91

  Letter from Margolin, submitting “Answers to Personal Data Questionnaire,” to Joseph F. Dolan, Assistant Deputy Attorney General, U.S. Department of Justice (March 24, 1964) (Margolin Papers). As reflected in her letter, Margolin submitted the Questionnaire to the Department of Justice and the American Bar Association's Standing Committee on the Federal Judiciary to be considered for recommendation to the President for nomination to the United States Court of Claims.

• 92

  See supra n. 88.

• 93

  Letter from Simon Sobeloff, Solicitor General, to James P. Mitchell, Secretary of Labor (July 29, 1955) (Margolin Papers).

• 94

  G.W. Foster, “Jurisdiction, Rights, and Remedies for Group Wrongs under the Fair Labor Standards Act: Special Federal Questions,” 1975 Wisc. L.Rev. 295, 305 (1975). Professor Foster dedicated his article to Margolin “whose name appeared so often and for so long on the briefs that did so much to shape the ultimate effectiveness of the machinery for enforcing the national policies embodied in the Fair Labor Standards Act.”Id. at 295.

• 95

  E. Merrick Dodd, “The Supreme Court and Fair Labor Standards, 1941–1945,” 59 Harv. L. Rev. 321, 369 (1945–1946).

• 96

  United States v. Darby, 312 U.S. 100 (1941); Opp Cotton Mills v. Administrator, 312 U.S. 126 (1941).

• 97

  Interview with Carin A. Clauss, Professor Emeritus, University of Wisconsin Law School, and former Solicitor of Labor, by author in Madison, Wisconsin (June 21, 2010), at 21–23.

• 98

  Id. at 24.

• 99

  Id. at 25–26.

• 100

  Id. at 155–160.

• 101

  Id. at 160.

• 102

  Interview with Laurence H. Silberman, Judge, U.S. Court of Appeals for the D.C. Circuit by author, in Washington, D.C. (June 2005) (on file with author).

• 103

  350 U.S. 247 (1956). The author obtained audio recordings of all of Margolin's Supreme Court arguments (beginning with October Term 1955) from Special Media Archives Services, NACP.

• 104

  361 U.S. 388 (1960).

• 105

  Margolin Notes for Justice Warren, supra n. 65.

• 106

  361 U.S. 231 (1960) (cert. dism’d as improvidently granted).

• 107

  361 U.S. 288 (1960).

• 108

  Handwritten Note from Felix Frankfurter, Associate Justice, to Philip Elman, Assistant Solicitor General (Nov. 18, 1959) (Available at Harvard Law School, Papers of Philip Elman 1925–1979, Box 3, Folder 91).

• 109

  Handwritten Note from Felix Frankfurter, Associate Justice, to Philip Elman, Assistant Solicitor (“May 9”) (Elman Papers supra n. 108). Although Margolin did not argue before the Supreme Court on May 9, 1959, she argued the case of Mitchell v. Kentucky Finance on March 3, 1959 and the Court issued its opinion on April 20, 1959—authored by Justice Harlan.

• 110

  “Crisp” speech and “penetrating” analyses: William O. Douglas, The Court Years (New York: Random House, 1980), at 184–185. “Special gift, etc.”: O’Brian interview, supra n. 40 at 8–9. Endless wordsmithing, exhaustive research: Clauss Interview, supra n. 97; Author Interviews with Donald Shire in Potomac, MD (Aug. 11, 2010); with Robert Nagle, in McLean, Va. (Oct. 25, 2011); with Anastasia Dunau, in Bethesda, MD (June 12, 2010), among others.

• 111

  Clauss Interview at 5–6.

• 112

  336 U.S. 187 (1949).

• 113

  Interview with Clifford J. Durr by James Sargent in Wetumpka, Alabama (April 17, 1974) at 160–164; Interview with Clifford J. Durr by Sally Fly Connell (Sept. 17, 1967) at 7–8 (both transcripts are available at Columbia University Oral History Research Office, James Lawrence Fly Project). For an account of the Cox investigation, see Susan L. Brinson, The Red Scare, Politics, and the Federal Communications Commission, 1941–1960 (Westport CT: Praeger, 2004), at 84–85. The Cox investigation documents pertaining to Margolin are available at NAB, Center for Legislative Archives, Committee Investigations/James L. Fly, FCC Chair, Special Committee on Un-American Activities (Dies), Box 141.

• 114

  Interview with W. Ervin “Red” James by Michael L. Gillette in Houston Texas (Feb. 17, 1978) at 33, electronic copy, LBJ Library.

• 115

  The extent to which the allegations about Margolin's personal life during her time at the TVA may have affected her career is uncertain. However, similar information about Margolin's relationship with Fly resurfaced in a “Confidential Memorandum on James Lawrence Fly” apparently written in the 1950's (available at NAB, Center for Legislative Archives, Box 141, supra n. 113.

• 116

  Letter from William O. Douglas, Associate Justice, to Lyndon B. Johnson, President (April 4, 1964), “Bessie Margolin,” Office Files of John W. Macy, Box 363, LBJ Library (“Macy File”).

• 117

  Letter from Margolin to Katie Louchheim (March 4, 1964) (Margolin Papers).

• 118

  Tapes WH6403.14 (Citations #2607, 2608) and WH6403.18 (Citation #2696), Recordings of Telephone Conversations—White House Series, LBJ Library.

• 119

  Macy File.

• 120

  Memorandum from James C. Falcon to John Macy (January 9, 1967), (Macy File). Macy's file contains a copy of Falcon's memo, returned to Falcon with Macy's handwritten note, “Agree. JWM.”

• 121

  Margolin argued appeals in the first and principal Equal Pay Act cases, Shultz v. Wheaton Glass Company, 421 F.2d 259 (3rd Cir. 1970), Shultz v. American Can Co.—Dixie Products, 424 F.2d 356 (8^th Cir. 1970), Shultz v. First Victoria National Bank, 420 F. 2d 648 (5^th Cir. 1969), and Hodgson v. Square D Co., 459 F. 2d 805 (6^th Circ. 1972). Margolin also argued the first appellate Age Discrimination case, Hodgson v. First Federal Savings & Loan Association, 455 F.2d 818 (5^th Cir. 1972). With regard to Title VII, Margolin actively opposed the view that the term “sex” was included in the statute as a joke, by fluke or in an attempt to overload the legislation. “It seems fair to say, therefore, that only ignorance or thoughtless oversight of the pertinent legislative background, if not simply ‘entrenched prejudice’ rooted in a psychological downgrading of women generally, can explain the view that the inclusion of sex discrimination in Title VII was no more than a fluke not to be taken seriously.” Bessie Margolin, “Equal Pay and Equal Opportunities for Women,” N.Y.U., 19^th Conference on Labor, 1967, at 301 (Margolin Papers).

• 122

  Shultz v. Wheaton Glass Company, 421 F.2d 259, 265 (3rd Cir. 1970), cert. denied 90 S. Ct. 1696 (1970).

• 123

  Retirement Dinner Recording, supra n. 2.

• 124

  Margolin's receipt of the Federal Woman's Award in 1963 prompted a certain amount of ambivalence. “I must say that I have had some misgivings about this segregated recognition of women, but the experience was altogether a happy one. Perhaps discrimination against women has not disappeared to the extent of denying a little discriminatory recognition in favor of women (although I cannot claim to have suffered personally from any unfavorable discrimination.” Letter from Margolin to James T. O’Connell (May 22, 1963) (Margolin Papers).