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Dissent on Douglas

Instead we find a kind of theoretical schizophrenia. When Douglas self-consciously sets out his philosophy of constitutional adjudication, as in the present autobiography, he allies himself most often to Black’s textualism. He says that Frankfurter and his school, through their philosophy of a passive judiciary, rewrote the Constitution by putting their own social philosophy in place of what those who actually made the Constitution had themselves decided—which is, of course, exactly the charge that Frankfurter and the others made against Douglas. “Black and I,” Douglas tells us, “took the opposite view, and in those days we spent many long hours going through the dusty volumes of Civil War history and law trying to ascertain the meanings of the drafters of the Fourteenth Amendment.”

But in his actual judicial decisions, when he needed to justify overruling the illiberal decision of some state legislature or official, Douglas relied on a very different idea, an idea that Black repeatedly and caustically rejected. This is the old (but when Douglas began unfashionable) idea that individuals have certain moral rights against their government that are prior to all law including the Constitution, and that it is the office of the Justices to identify those rights and enforce them even against the will of the majority.

That idea was at least implicit in his influential decision that the California “Okie” law, which denied entry to the state by migrant workers, was unconstitutional because the right to travel was so basic to our country (Edwards v. California, 314 US 160 [1941]). It was explicit in his even better known decision that the Oklahoma sterilization law, which required that criminals three times convicted of certain offenses be sterilized, was unconstitutional because, “We are dealing here with legislation which involves one of the basic rights of man” (Skinner v.Oklahoma, 316 US 535 [1942]). It was the very heart of his famous concurring opinion in the Griswold case (381 US 479 [1965]), in which he held that the Connecticut law against contraception was void although not condemned by any explicit text because the rights the Bill of Rights describe have “penumbras” and “emanations” which do condemn that law, and also because the right of privacy, not mentioned in the text, was a right “older than the Bill of Rights”—a proposition that earned Black’s unstinting disdain in dissent.

But in these and other opinions he only mentioned, and never elaborated or defended, this theory of individual prelegal rights. He might have accomplished more if instead he had undertaken to defend that theory against the obvious objection made by Black and others that such rights are mere inventions by judges anxious to disguise that they are rewriting the Constitution to suit their own purposes, and from the different objection made by the Frankfurter school that the idea of such rights against the majority was inconsistent with the proper conception of democracy. But he did not do this. Nor did he undertake to explain what kind of argument he considered a good argument either in favor of some alleged individual rights, like the right to travel or the right of privacy, or against other alleged rights, like the rights to freedom of contract on which earlier judges who opposed the New Deal might have relied. Nor was he able to show, as he sometimes half-claimed, that the idea of individual rights was in fact the guiding idea of the draftsmen of the important constitutional provisions, so that the best form of textual fidelity would consist in discovering what rights people actually have even if the draftsmen themselves would not have agreed. If he had met any of these minimal intellectual responsibilities of a judge who uses the theory of individual rights to decide crucial law suits, then he would have achieved a great deal more of lasting importance than he did.

Why did Douglas never make this attempt? It is no answer to say that he did not know that he was relying on the rights theory or that he would have been philosophically ahead of his time in conceding that he was. Nor is it enough (though it is no doubt part of the answer) that he was afraid of too explicit an endorsement of an abstract theory which the most conservative of the Nine Old Men might have said they were themselves using. Douglas knew that his choice was between using the idea of individual rights as a justification for his views or having no justification at all. Otherwise the idea would not have surfaced in his opinions even in the sporadic and undefended way it did.

It is not convincing to say that Douglas would not have known how to defend the idea of rights if he had wanted to. For he several times, even in the present autobiography, indicated just where he would start. He said over and over again, in a variety of contexts, that the point of the Constitution was to get the government off the backs of the people. He took that idea from Louis Brandeis, his immediate predecessor on the Court, and though Douglas sometimes tried to disguise it, implausibly, as a piece of Blackian literalism, it was plainly, as Brandeis thought it was, the nerve of a theory of liberty that might well have served as the foundation for a theory of rights.

Nor can we say that Douglas did not develop or defend his theory because he was lazy, because his opinions were sloppy and lacked any sense of philosophical depth. He had tremendous energy and ambition, and the fact that he did not display these qualities in his opinions is not an explanation but part of what needs to be explained. He does say, as Simon reports, that he had no wish to proselytize, that his own was the only soul he wanted to save. But this is again part of what needs explaining, for Douglas was, above all, ambitious for lasting fame, and, whatever the psychological basis for (or inconsistencies in) his liberalism, he nevertheless had no doubts that it was as a liberal that he wanted fame. Why did he fail, then, to establish a distinctly liberal philosophy of constitutional law, a philosophy that at once might have organized and given coherence to the long series of his opinions, rebutted the accusation that he was interested only in the political appeal of results in particular cases, and contributed to the constitutional dialogue I mentioned earlier the one important theory that dialogue now lacks? Douglas was the natural spokesman for the old liberal principle that individuals have rights against the majority. Why did he only mumble?


Both Douglas and Simon write about the former’s judicial philosophy, and what each says often contradicts, not only the other, but what he himself says elsewhere as well. But the most important, revealing statement, I think, is the following close to the beginning of Douglas’s book. He says that at the start of his career on the Court, Charles Evans Hughes, then Chief Justice, told him something “shattering” that he later discovered to be true. “Justice Douglas,” said Hughes, “you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” Douglas then adds that he had previously thought of the law as immutable principles chiseled in granite. He had not realized, as he later did, “that the ‘gut’ reaction of a judge at the level of constitutional adjudications…was the main ingredient of his decision.” This discovery, he says, “destroyed in my mind some of the reverence for the immutable principles.”

This passage is immediately followed by some pious, hasty, and hopelessly confused remarks to the effect that in spite of their reliance on their own “gut” reactions judges are not really creative after all. These remarks simply contradict the earlier statements (and themselves as well) and may be set aside. Nor should we accept for a moment Douglas’s disingenuous claim that he was a law-chiseled-in-granite man before Hughes set him straight. Douglas taught law at the Columbia and Yale law schools in the late Twenties and Thirties, when these institutions were the seat of the only distinct legal philosophy America ever produced, which its practitioners called legal realism. One of the central theses of that philosophy, at least in its popular form, was exactly Hughes’s guts-not-reason theory of adjudication.

Douglas was not himself much of a legal philosopher in those days, but he took the realists’ side in various academic battles, particularly about law school curricula, and took his closest friends from their ranks. He had other famous realists, like Fred Rodell who taught for many years at Yale, as his most devoted students. One of Douglas’s best friends, then and later, was Jerome Frank, who published his Law and the Modern Mind, a bible of the crudest form of realism, in 1930 and who thereafter served with Douglas at Yale. The battle over legal realism was the chief excitement in legal education in those days, and Douglas was converted to that school of jurisprudence long before his allegedly shattering conversation with Hughes in 1939.

Douglas was not the only realist to serve on the Supreme Court—Holmes, for example, had contributed to the theory of the movement and was taken by some to be its father, and Hughes was in fact something of a convert—but Douglas was the only Justice fully formed in the academic environments it dominated. Indeed lawyers like Douglas whose political instincts seemed naturally inclined to favor the weak against the establishment, the poor against the rich, and accused criminals against the collective power of the state, were generally among the most ardent supporters of the realist thesis that law is, in the catch-phrase of the time that some of the realists themselves encouraged, only a matter of what the judges eat for breakfast. Why should that be so?

We might take a moment to examine the proposition that Douglas attributes to Hughes and says that he found so disturbing. The idea, that emotion and reason are competing sources of influence on a judge’s decisions, with emotion playing by far the leading role, sounds at first like a watered-down and garbled version of Hume’s famous dictum that reason is and ought to be the slave of the passions. It is very unclear what Hume meant by that, or even how the idea could be translated out of his eighteenth-century psychological vocabulary into the language of contemporary motivational psychology. But if we think of Hughes’s argument in a legal context, and of the use the legal realists made of similar arguments, the point seems less a broad claim about philosophical psychology in general and more a specifically jurisprudential claim about the kinds of arguments that Supreme Court judges are likely to have available in support of their decisions.

When the realists spoke of a decision guided by “reason” they meant a decision logically compelled by prior legal doctrine whose content all reasonable lawyers must recognize on pain of contradiction and which was, in that sense, there for reason to discover. When they spoke of a decision grounded in “emotion” or “inclination” they meant a decision not like that, but rather one that a judge must justify, if at all, by appealing to some consideration of justice or fairness or policy which was not a matter of logic and with which all competent lawyers would not in fact agree. The realists then made a point that may well have seemed both powerful and shocking early in this century (though it would not have seemed so earlier), which is that few, if any, important judicial decisions could be said to be entirely guided by reason in that sense; certainly very few decisions of the Supreme Court enforcing the broad and abstract provisions of the Bill of Rights would be so described.

Most rules of law are to some degree indeterminate in their application, and often require “interpretation” that, in this sense, depends on “emotion.” Nor does any important principle of political theory require judges to continue to enforce a rule laid down in old cases, even if it is clear and precise, when considerations of “emotion” show that the rule has lost its social point or is no longer, in changed social circumstances or against a changed social morality, fair or just. These now obvious points were often put in the form of epigrams condemning the dead hand of the law, or finding the life of the law not in logic but experience, or announcing, in Hughes’s words, that “it is a constitution we are expounding.”

Visceral references to “gut” reactions and “what judges have for breakfast” suggested an important, and in the end disastrous, claim beyond these claims. They suggested that no important distinctions needed to be drawn within the large class of reasons that judges might have for a judicial decision that clearly went beyond binding legal precedents. There was no important difference, for example, between the argument that a decision was right because it was required by some general theory about fundamental political rights that could be defended both in the abstract and as tested against hypothetical counter-examples, and the cruder argument that the decision was right because it seemed appealing either to the community as a whole or to the judge in particular. The choice of such arguments was an “emotional” one and not much more needed to be said.

That refusal to countenance obvious distinctions suggested, in turn, a particularly deadening form of moral skepticism—dark, unexamined, but carried in the vocabulary of legal realism as that apparently enlightened philosophy spread through American law schools. It was, I am afraid, left behind there, in the walls, even when later generations of law teachers and students finally and decisively rejected the less dangerous because more patently absurd idea that law is a matter of what the judge had for breakfast.

But none of this was very troubling for the first generation of realists, particularly for the large number of liberals among them, because their interest was not in exploring the dimensions of what they called emotion or predilection but in defeating the claims of what they called reason. In the private law fields in which most of the academic realists worked, like commercial law and contracts and torts and conflicts of law, doctrine consisted of rules framed in very abstract concepts which conservative judges manipulated to produce conservative decisions under the claim that these decisions were extracted from them by the simple and sole logical compulsion of these rules. The realists had no trouble showing the absurdity of their claims, and the results were no doubt both liberating and socially beneficial; for example, they showed that many of the complex doctrines protecting property holders were based on little more than the self-interest of powerful people.

In constitutional law, by the mid-Thirties, a parallel situation seemed to hold. New Deal legislation, enacted by majority will in Congress, was struck down as unconstitutional by a group of Justices who claimed they were not substituting their “emotional” judgments for those of the majority, but simply using “reason” to find out what the Constitution compelled them to do. Liberals who supported the New Deal found in crude realism a devastating reply. The Nine Old Men were not in fact deciding on grounds of reason because no judge can decide a grand constitutional case—or most other cases—purely on grounds of reason. Jurisprudence became politics, and the question whether “emotion” was too crude and undiscriminating a label for everything that was not doctrine had no place in the debate.

Douglas was, as I said, the first and perhaps the only true representative of this authentic and robust phase of American legal theory to reach the Supreme Court. If he had been the only Roosevelt appointee, if he had had to do battle with the old guard Justices to uphold New Deal legislation in the face of their arguments that they were compelled on grounds of reason to undo what Congress had done, he would have had no trouble developing and articulating a powerful theory of constitutional adjudication. It would have been legal realism brought from the commercial law classroom into the Supreme Court, a negative philosophy fit to do negative work. But Roosevelt appointed Frank-furter and Black and Stanley Reed first, the Nine Old Men were gone, and the center of action suddenly and dramatically changed.

The crisis was reached early in a series of cases that Douglas himself describes as a turning point for him. They raised the question whether a state school board could constitutionally require all schoolchildren to salute the flag, including Jehovah’s Witnesses who believed that the practice violated their religious beliefs. Suddenly legal realism, in its skepticism, recommended the result that, considered just as a result, was illiberal and authoritarian. The constitutional guarantee of freedom of religion did not provide an absolute license for any conduct required by religious belief; and “reason” could not logically compel the conclusion that a state legislature or other state institution could not require all its citizens to salute the flag. So the only genuine argument the Supreme Court could use to overturn the state’s decision was that the Justices’ emotions, their predilections, were different from those of the state officials, and that was not good enough.

Frankfurter reached that conclusion, and voted against the Jehovah’s Witnesses, on somewhat different grounds—his theory of the proper division of powers was grounded not so much in skepticism of the visceral variety but, as I said earlier, in a particular Burkean conception of democracy. In the first of the two crucial cases (Minersville School District v. Gobitis, 310 US 586 [1940]) Douglas and Black followed Frank-furter, whom they still considered the intellectual leader of the new Court, and the majority refused the Jehovah’s Witnesses’ plea.

Harlan Stone (a Coolidge appointee) was the only Justice to dissent, and Douglas may have been moved by the fact that the liberal press and institutions applauded Stone and condemned the majority decision. But it seems likely that he also sensed that, whatever realism might say, it was unjust as a matter of moral fact and not merely unappealing to him personally that small children could be forced by police power, for no very good reason at all, to do what their religious training forbade them to do. In any case, by the time the same question came before the Court again (West Virginia Board of Education v. Barnett, 319 US 624 [1943]), the Court reversed itself and Black and Douglas were on the other side. Black had begun to develop the philosophy of textual literalism I mentioned earlier. The two Justices published a joint statement relying in part on the theory that to force Jehovah’s Witnesses to salute the flag was “inconsistent with the Constitution’s plan and purposes” in order to justify their change of views.

But this was hardly a realist theory—the very idea that an abstract text written more than a century and a half earlier could compel a constitutional decision of that sort by reason alone would have earned the realists’ contempt in the halcyon days of their purity. Douglas had chosen what he took to be the liberal result at the sacrifice of the only legal philosophy he knew. He had begun the long process of deciding first and finding reasons later, a process that exchanged philosophical skepticism for philosophical cynicism. He had begun to write opinions that he knew would be described by the profession as careless, hasty, and contemptuous of the whole process of judicial reasoning. These opinions seemed almost calculated to provide a clear example of the claim he attributed to Hughes, that judges use reason only to rationalize their own predilections.

It is surely too simple to say, however, as his detractors do, that he was only a clever man bent on fooling the public and the profession into thinking that he had good reasons for his decisions when in fact he simply liked the results. If that had been his only aim, he was clever enough to have done a better job. The independent journey Simon describes is more complex and, perhaps, more neurotic than that. We must of course be careful to resist dramatic psychodynamic accounts of judicial behavior that the judge in question would have rejected. But Douglas did come to believe, I think, and believe with some intensity, in the idea of individual moral rights distinct from and often opposed to the will of the majority. No one who believes in a moral idea can honestly and consistently regard that idea as having no more independent objective validity than his tastes in food and drink. But Douglas also held, in his legal realism, that this idea, not being compelled by legal doctrine, was in fact just a matter of his own emotional biases, not really, at any philosophically respectable level, different from these visceral tastes.

It is perhaps not surprising that a proud man in this state of intellectual schizophrenia would refer to these rights offhandedly rather than speak out clearly and coherently for them. It is not all that surprising that he would write opinions that were, in the light of his own deepest moral sense, correct not only in result but in principle, and yet opinions that cried out to be labeled both sloppy and unprincipled. Nor is it surprising that he would posture, as he did, about how easy a Justice’s work really is; oppose hiring more law clerks or reducing the Court’s work load; angle repeatedly in his long career on the Court, in a job that is plainly one of the most important in the world, for a job with more executive or political power; scribble travel books while listening to oral argument on the bench; and slam his office door shut the moment the Court term ended to drive off to some wild retreat in the West. Douglas might have been a man with a guilty secret, a judge of incompatible philosophical convictions posing, mainly to himself, as a fraud.


An Exchange on William O. Douglas May 28, 1981

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