The Tragedy of William O. Douglas
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April 14, 2003 The Nation. 25 B OOKS & THE ARTS The Tragedy of William O. Douglas DAVID J. GARROW tellect on the Supreme Court. WILD BILL: The Legend and Life of But it was not to be. Leadership on the William O. Douglas. Court throughout the 1940s and ’50s in- By Bruce Allen Murphy. stead devolved into an unproductive tussle Random House. 716 pp. $35. between the conservative Felix Frankfurter and the simple-minded Hugo Black [see illiam O. Douglas was a judicial record- Garrow, “Doing Justice,” February 27, setter. He sat on the US Supreme 1995], with Douglas often following in Court for more than thirty-five years Black’s footsteps. During the 1950s, the (1939–75), longer than any other Jus- appointments of Chief Justice Earl Warren W tice, and during those years he wrote (1953) and Justice William J. Brennan Jr. some thirty books in addition to his legal (1956) added new leadership to the Court, opinions. Present-day commentators may but only in 1962, when Arthur Goldberg frown at Justice Clarence Thomas penning succeeded the retiring Frankfurter, did a an autobiography for which HarperCollins solidly liberal majority finally take shape. is paying him a $1.5 million advance, and at The following six years marked the real how Chief Justice William Rehnquist and Justice Sandra Day O’Connor likewise have Douglas’s intense ‘fear of government, with sufficient spare time to keep publishing pop- ular histories and memoirs, but Douglas’s its ability to oppress individuals in body record for sidebar productivity is unlikely ever to be topped. Ditto for another, less and spirit, was genuine and unmatched.’ commendable Douglas achievement: four heyday of the Warren Court, yet it was the marriages and three divorces, spanning the Chief Justice and Brennan who led the pro- thirteen years from 1953 through 1966. gressive charge, not Douglas or Black. Unfortunately for Douglas, however, Brennan remained the liberal helmsman most legal historians now see his judicial even after Nixon nominee Warren Burger track record as having been no better than replaced Warren as Chief Justice in 1969, his domestic one: a huge disappointment. but Douglas, unlike the increasingly con- Only 40 years old when President Frank- servative Black, remained a consistently lin Roosevelt named him to the Supreme liberal vote until a disabling stroke forced Court in March 1939, Douglas could very his retirement in 1975. well have revolutionized constitutional So why did Douglas not become the protection for individual rights and liber- Court’s progressive pacesetter? How he ties in a permanently expansive manner. A voted as a Justice wasn’t the problem. As crusading liberal as chairman of the Se- one of his former law clerks, Lucas ‘Scot’ curities and Exchange Commission from Powe, correctly observes, Douglas “stood 1937 to 1939, and before that “the most for the individual as no other justice ever outstanding law professor in the nation,” has.” Indeed, “the intensity of his fear of according to University of Chicago presi- government, with its ability to oppress in- dent Robert Maynard Hutchins, Douglas dividuals in body and spirit, was genuine demonstrated that he had both the ability and unmatched,” Powe adds. Yet the written and the energy to become the dominant in- opinions Douglas filed in support of his usually commendable votes were so hastily David J. Garrow, the author of Liberty and written that “they are easy to ignore,” Powe Sexuality: The Right to Privacy and the Mak- admits. “For those of us who think Douglas ing of Roe v. Wade (California), won a 1987 was correct in his results and instincts, this Pulitzer Prize for his biography of Martin Luther is too bad.” King Jr., Bearing the Cross (Morrow). Most of Douglas’s other clerks concur 26 The Nation. April 14, 2003 with Powe. Steven Duke, like Powe now a fundamental individual rights, he also be- prominent law professor, allows that Doug- lieved that this was simply “a matter of his las’s “published opinions often read like own emotional biases” rather than a univer- rough drafts,” which is not surprising since sal truth of which he should do his utmost “many were drafted in twenty minutes” and to convince others. Unlike both Frankfurter sent to the printer without meaningful revi- and Black, who proselytized their decided- sion. The conclusion that Douglas’s all- ly imperfect constitutional visions most important opinions were often “superficial energetically, Douglas felt no commitment or just plain sloppy” was likewise articulat- whatsoever to advance, rather than simply ed in the first comprehensive biography of live out, his own far more progressive vi- him, James Simon’s impressive Indepen- sion. If Douglas had been willing to meet dent Journey, published in 1980. Written the “minimal intellectual responsibilities” before the opening of the huge collection of of a Justice who believed in fundamental Douglas’s private papers and Court files at individual rights, Dworkin concluded, “he the Library of Congress, Simon’s volume would have achieved a great deal more of nonetheless won widespread praise. Doug- lasting importance than he did.” las’s longtime literary assistant, Dagmar Hamilton, said Independent Journey was gainst this background of commentary “by far the best single book yet written and interpretation comes Bruce Allen about the Justice” and “probably will re- Murphy’s long-awaited life of Douglas, main so for a long time.” Wild Bill, a book that Murphy has Sympathetic but far from uncritical, A worked on for almost fifteen years and Simon described Douglas as a “shy” and that at one point in typescript, he tells his “intensely private man” whose accounts of readers, reached a length of 2,700 pages. his own life were thoroughly undepend- Two decades ago Murphy made his name able. As one colleague subsequently relat- with The Brandeis/Frankfurter Connection ed, even Justice John Marshall Harlan, the (1982), an account of those two Justices’ Warren Court’s gentlemanly conservative, off-the-bench political activities that drew once teased Douglas by asserting that wide attention, and some criticism, from “You’ve told that story so often, you’re be- their admirers. In 1988 Murphy published ginning to believe it.” Simon buttressed his Fortas: The Rise and Ruin of a Supreme portrait with some very frank interviews: Court Justice, a superbly impressive study Douglas’s son, Bill Jr., described his father’s of how Justice Abe Fortas’s intimate politi- behavior toward him and his sister Millie cal relationship with President Lyndon as so cold and hostile that at times “Dad Johnson, plus some amazingly unwise was scary.” Mercedes Douglas Eicholz, financial entanglements, led to his forced Douglas’s second wife, characterized her resignation from the Court in 1969. ex-husband as “totally insecure.” Dagmar Hamilton noted in a 1990 re- But was Douglas’s disappointingly defi- view that Murphy’s Fortas was “much more cient judicial performance the result of his political than judicial” in its focus, with “a personal shortcomings? The noted legal great deal more on his extra-judicial activi- theorist Ronald Dworkin addressed that ties” than on Fortas’s Court work as a Jus- question in 1981—“How could he have tice. Wild Bill merits a similar characteri- been so unlikable a man? Why did he make zation. Murphy offers a comprehensive so little impact on constitutional law?”— account of Douglas’s early life, a highly and answered “no.” True, Douglas’s opin- detailed description of his incessant career- ions offer very little in the way of “a de- ism as a young law professor and four full veloped and general constitutional phi- chapters on Douglas’s work at the SEC. losophy,” Dworkin noted, but many of Even after Douglas ascends to the High Douglas’s most substantively important Court, Murphy’s most extensive treatments decisions, ranging from Skinner v. Okla- concern Douglas’s unsuccessful effort to homa (1942), voiding punitive sterilization, become FDR’s 1944 vice-presidential to the famous Griswold v. Connecticut running mate and Douglas’s 1948 rejection (1965), which decriminalized the use of of the vice-presidential nomination from contraceptives, were grounded in the “idea the man who had joined Roosevelt’s 1944 that individuals have certain moral rights ticket, President Harry Truman. against their government that are prior to all To anyone who refreshes an acquain- law including the Constitution.” Yet Doug- tance with Simon’s Independent Journey, las “only mentioned, and never elaborated there are fewer surprises in Wild Bill than or defended, this theory of individual pre- Murphy’s publicists would like to acknowl- legal rights,” or what is often loosely called edge. Murphy does add substantially to “natural law,” Dworkin observed. Doug- Simon’s account of just how many out-and- las’s failing, Dworkin concluded, was that out falsehoods mar Douglas’s own accounts while he indeed believed deeply in these of his early life. (Douglas published one April 14, 2003 The Nation. 27 autobiography in 1950, and the first volume of a second one in 1974.) Douglas did not suffer from polio as a child, nor did he live in a tent while an undergraduate at Whitman College in Washington State. While Wild Bill contends that Douglas’s ten weeks of service in the Students’ Army Training Corps at Whitman in late 1918 did not actually make him a “Private, U.S. Army,” as is recorded on his Arlington National Cemetery tombstone, the Washington Post, citing more extensive documentation than that used by Murphy, has recently (Febru- ary 14) challenged Murphy’s presentation. ouglas graduated from Columbia Law School in 1925 and became a junior pro- fessor there two years later, after several unsuccessful attempts at practicing law.