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Dissent on Douglas

Independent Journey: The Life of William O.Douglas

by James F. Simon
Harper and Row, 503 pp., $16.95

The Court Years, 1939 to 1975: The Autobiography of William O. Douglas

by William O. Douglas
Random House, 434 pp., $16.95

I

Mr.Justice William O. Douglas served in the United States Supreme Court for the extraordinary term of thirty-six years—from 1939 until 1975—and he was probably more often on the right side than anyone else has been. His record in civil rights cases of all different sorts was particularly admirable. He wrote a great many important opinions and, unlike many other Justices, did almost all the writing himself. He also did much more writing off the bench than any other Justice—thirty books and dozens of speeches and articles, many about social and political justice. His enemies were the right enemies for a crusading liberal to have: he was hated by President Nixon, pursued, to the point of threatened impeachment, by Congressman Ford, and condemned on the bumper stickers of Birchers everywhere. And yet when we look back on his long and interesting career on the Court, aided by his own memoirs of those years, and by Professor Simon’s excellent, judicious, and admiring biography, we find not great distinction, but two puzzles. How could he have been so unlikable a man? Why did he make so little impact on constitutional law?

Simon does not intend to draw an unattractive portrait of his subject. He ends his book with an overall flattering assessment. But I doubt many readers of Simon’s evidence will share that opinion. Douglas did, it is true, have immense self-discipline and energy. He drove himself enormously hard, from his beginning as a poor and sickly boy in a tiny Washington town, into robustness and education, then into Columbia Law School and one of the most prominent law firms on Wall Street. As a rising young law-school professor, he soon came into prominence and the favor of Roosevelt and other New Dealers, into the chairmanship of the SEC, into the Supreme Court, and then—almost but not quite—into a vice-presidential nomination, in place of Truman, that would have made him president. But always fame was the spur, and the conclusion is tempting, suggested by well over a dozen incidents, that his final and long alliance with civil liberty and the cause of the poor was based at the start not on any moral conviction or natural sympathy, but on a much cooler assessment of where, on the day, the action was.

He was, in fact, insensitive, even indifferent, to other people. Simon’s appalling description of how he treated his subordinates, particularly his law clerks, stops just short of saying that most of them hated him, and contrasts instructively with the affection and fun and colleagueship that subordinates had in Felix Frankfurter’s company. Douglas’s relationships with women, particularly with the four women he married, make especially painful reading. Even his close friendships were sometimes, so it seems, alliances with those who would join in his coarse diatribes, loaded with obscenity, against those he thought were out to get him, chiefly Frankfurter and the “Harvard cabal,” as he called them, of Frankfurter acolytes. Or sometimes with those who would feed the paranoia that led him to complain that the conference room at the Court was probably bugged, that the manuscript of his autobiography might be stolen, or that his life was in danger. He did have an attractive and continuing love of travel and of the wild. But even this sometimes seemed not so much a matter of aesthetic and physical joy but of grim satisfaction that this hard life was better than the life of the weakling urban sophisticates he despised.

Simon catches Douglas out in a variety of self-flattering but mostly unimportant fibs about his own career. But Douglas’s extraordinary behavior in the Rosenberg case is much more serious than these. Douglas himself reports only his own dramatic action the day before the Rosenbergs were executed for espionage in June of 1953. The Court had already adjourned for the summer, and Douglas was about to leave for his vacation retreat in the Northwest. Before he left he issued, as a single judge acting alone, a stay against execution. But the then Chief Justice, Fred Vinson, hastily convened a session of the Court the next day (Douglas discovered this only from listening to his car radio in front of a motel in Pittsburgh, and turned around to attend) which vacated the stay by a six-to-three vote. The Rosenbergs were electrocuted the same night. Douglas allows himself, at the end of this account, a paragraph describing how “the people of this country experienced a thrill” seeing the horrible photograph of Ethel Rosenberg’s moment of death in the chair. He reports that “many people in the nation felt a glow of sadistic satisfaction in viewing this picture.”

But Simon reveals the astounding fact that, in the long prior history of the Court’s concern with the Rosenberg case, which Douglas does not mention, he had five times voted against the Rosenbergs’ requests that the Court hear arguments against their conviction. On some of these occasions his vote was decisive. Of course, as Simon observes, the Rosenbergs might still have been executed had Douglas voted otherwise, because the Court, after argument, might have affirmed their conviction. And Douglas apparently believed that the new arguments on which he based his sudden, last-moment change of heart, the day before execution, were better arguments than had been used before. “What is troubling about the Douglas record, however,” Simon points out, “is that his earlier negative votes seemed so inconsistent with his whole judicial approach and philosophy. His reputation as a result-oriented libertarian justice was well documented. He had rarely based his judicial decisions on technical procedural grounds—when such grounds cut against the interests of individual defendants. And yet in the Rosenberg case, in vote after vote, Douglas seemed content to let the Rosenbergs go to their execution without even hearing a variety of legal arguments put to the Court by the Rosenberg attorneys.”

Why? A cynic might argue that Douglas liked to take unpopular liberal stands only when the lion’s share of the credit would go to him. In much of the earlier procedural maneuvering about the Rosenberg case, other Justices immediately assumed the lead in the battle for review, particularly the hated Frankfurter, so that Douglas, had he gone along, would have been a soldier not the general. Only at the end, in a dramatic last-minute stay before driving off into the West, could Douglas make the cause of due process distinctly his cause. This view may be too cynical. But it would be hard to prove that it is wrong.

Douglas’s failure of character might help to explain the second puzzle I mentioned. Perhaps he would have had a more profound impact on constitutional law than he did if he had not been so concerned with his immediate position in petty, pseudo battles against Frankfurther and the others on his enemy list, or in the public’s imagination about the crusading liberal Justice. The other leading figures on the Court during Douglas’s long tenure achieved much more of structural and lasting importance. Frankfurter reconstructed an old philosophy of judicial restraint in constitutional adjudication, and gave it new and more coherent foundations in a Burkean social and political theory. He attracted brilliant and inventive interpreters in leading law schools, like Alexander Bickel at Yale and Paul Freund at Harvard, and so achieved a new and powerful orthodoxy about what the Supreme Court should do and why. Many of Frankfurter’s hardest battles within the Court, over particular cases, were lost to Douglas’s side, and most of even Frankfurter’s victories about particular points of doctrine were shortlived. But his impact on the theory and practice of the Court was nevertheless very great.

Hugo Black, who was Douglas’s ally in the cause of civil rights and activism until late in Black’s career, built a cruder yet more elusive philosophy of constitutional law, which was literalism, the lawyer’s faith in the lawyer’s craft of fidelity to the constitutional text. Once again this was an old idea, rooted in the positivistic jurisprudence of Bentham and Austin. Black gave it new and contemporary importance. He argued that textual interpretation of the Constitution must interpret the Constitution as a whole, as a scheme of government, and not line by line, as a series of unconnected statutes. He argued for example, successfully in the end, that the constraints on state government latent in the Fourteenth Amendment provision that states must accord due process of the law “incorporated” the much more specific constraints on the federal government provided in the original first ten amendments (like the First Amendment constraint against Congress abridging freedom of speech or religion). It did not make sense to suppose, Black argued, that the authors of the Fourteenth Amendment meant to allow state governments greater license to restrict individual freedom than the federal government itself had.

Black tried to show, at least until late in his career, that the philosophy of “strict construction” he advocated is not, as it is often said to be, an engine of conservatism, of narrow and jealous protection of state power, but rather a liberating doctrine full of promise for individual freedom because the document in question, the text to be strictly construed, was historically meant to be a wall against tyranny. Many of Black’s other campaigns for literalism failed in specific cases, but his style, his conception of constitutional adjudication, remains an important part of the dialogue about what the Constitution is.

Earl Warren contributed something further to that dialogue, which was moral passion and what turned out to be a wholly realistic sense, unburdened by much political theory of checks and balances, of how great a force the Supreme Court could be in American politics—of how much, against all the orthodox warnings about damaging its own authority, the Court could in fact do. These two qualities were fused, because Warren’s on the whole accurate sense of the actual limits of the Court’s power was based simply on his unexamined populist assumption that his own moral convictions were a mirror of what was best and therefore strongest in popular political culture—were in fact a heightened, distilled form of that culture, purified of selfishness and fear and regional prejudice, but representative nevertheless. That unreflective sense of speaking for the best in everyone shines even in his sometimes otherwise undistinguished opinions.

It also explains, I think, what many take to be his lapses from liberal purity, like his aggressive distaste for pornography and his ambition to find some constitutional theory of free speech and privacy that would leave the states free to forbid it. Warren exercised his powers as Chief Justice scrupulously, but shrewdly nevertheless, to find the best balance between truth and acceptance that he could. To the dialogue I described he added the idea of constitutional law as democratic moral statesmanship.

Douglas was certainly Warren’s intellectual master, and he was at least the equal, I think, of Black and Frankfurter as well. Nothing any of these greater judges did on or off the bench matches, in analytical power, some of Douglas’s essays in commercial and corporate law or finance. But though several of his opinions were important as precedents for a time, they have grown less important, as all discrete opinions do, and we find very little in these opinions by way of a developed and general constitutional philosophy of the sort that Frankfurter and Black developed, or even of the inspiration that Warren achieved both in his opinions and in his administration.

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