Mr. Justice Douglas has never suffered from what Mr. Justice Frankfurter once called “judicial lockjaw.” Since 1950, Douglas has written twenty books and dozens of articles. Whether we see this list as confirming or as refuting the widespread belief that Supreme Court Justices do not have enough time to think, it is clear that Douglas rejects the austerity and detachment traditionally imposed upon a judge. Indeed, he has come to think of himself as no mere judge, but a moralist, a political visionary, a universal philosopher. The results are appalling.
These two latest books are worth noticing only because they were written by a Supreme Court Justice and because they tell us something about current thought in the law. Douglas sees them as setting forth the general ideas behind politics and world affairs, or something of the sort: one cannot say for certain. The style wavers from junior high school civics text (“The executive power is vested in the President who has a term of four years”) to commencement address (“The American political creed has as its main ingredient the sovereignty of goodwill”), from travelogue (“This I saw with my own eyes as I roamed Macedonia”) to Deep Thoughts (“A goodly part of life is the arousal of sexual desires”). Passage after passage sounds like H. G. Wells gone mad: “We Aryans seem to have a special capacity for aggression. When we moved down into the subcontinent of India (about 2000 B.C.) we destroyed the great civilization of Mohenjenaro…. We also produced Hitler. After him came Trujillo.” Banality can be found at some places in most writers, but it dominates these shrill and humorless books. One soon braces oneself for sentences like “Ideas are more dangerous than armies,” or “Ideas have immortality” (not all of them, thank God) or “Outer space is a specialty of vast proportions.”
These banalities are not accidental; they are part of Douglas’s relentless effort to simplify our understanding of the world. In pursuit of this doubtful end, he reduces the most complex political and legal difficulties to a few abstract moral principles, and the sharpest antagonisms to a flabby and homogeneous togetherness. Politics, in particular, disappears in the larger truth of neighborliness. “It is easy to find disagreeable qualities in one’s neighbor—let alone in the Russian and the Chinese…. We and the Russians (not to mention the Chinese) …. are in the same fragile boat and desperately interdependent.”
Some recent conservative writers have constructed what amounts to a caricature of the simple-minded liberal, a portrait so overdrawn that one can scarcely take it seriously. Douglas, however, provides an actual example of a searcher for what Michael Oakeshott has called a “short cut to heaven”; he maintains today the kind of shallow and undiscriminating radicalism attributed perhaps unfairly, to Populism. (“Banish the mysticism of inequality,” Douglas quotes approvingly, “and you banish almost all the evils attendant on human nature.”) Whereas genuine Utopian thought can reveal unprecedented aspects of a new situation, new possibilities rather than traditionally acknowledged limits, Douglas’s radicalism consists in simply refusing to acknowledge any obstacles to an end he desires. He merely invokes the classical villain, notably the arms industry and the press. For example, “A press can create a national mood and each has done so, with the result that every community the world over is now filled with suspicion” (my italics). Such an explanation obscures the complexity, and therefore the seriousness, of these problems. It also betrays the superficiality of the writer’s specific charge by failing to discuss the major question it raises, namely whether “the press” or “the military” can in fact manipulate a society unless it is structurally flawed. Douglas is altogether too comfortable with unattributed symptoms.
When he emphasizes that political disputes should be settled through international law, Douglas displays the same tone of chatty confidence:
An International Rule of Law Year should be launched. The inventive genius of scholars in the West, in Eastern Europe, in Soviet Russia, and on the other continents, is so great that even in troubled areas like Berlin the achievements of an International Rule of Law Year may equal those of the International Geophysical Year.
Douglas seems magnetically drawn to such superficial solutions. It is easy for him to assume that men can simply shuck their primal national loyalties. “Each of us is a citizen of the world,” he says, and “the nation-state is obsolete.” Only the blind do not see this patent truth; only the perverse prefer political conflict to universal harmony.
The tools with which the nations of the world can evolve a Rule of Law into a more mature system are at hand. Only the will to use them is lacking. Why do nations hold back? Why are they not willing to inaugurate a truly golden age for international law?
When Douglas turns from international law to American Constitutional Law, which he helps to make, he displays the same unwillingness to acknowledge conflict, the same tendency to simplification, and the same universalism. (“Laws vary greatly, but the concept of Justice remains bright in every land.”) Since he does not relate legal systems to the development of particular traditions and institutions, he sees only differences in the speed with which each system perceives and implements what Justice Douglas considers obvious. This approach yields some odd juxtapositions:
The guarantees expressed in the Bill of Rights are no monopoly of the West…their roots are deep in Eastern philosophy…. One can trace them to the teachings of the Koran, to the moral precepts of the Bible, to the words of Buddha, to the philosophy of the Hindus. [Indictment by a Grand Jury? No quartering of troops?]
It is not surprising that this syncretism completely distorts the nature of constitutional interpretation. As presented by Douglas, not a single case is hard enough to perplex a right-thinking man; a case does not present a tangle of competing principles, but a single transcendent principle—for instance, free speech or religious freedom—which need only be identified for the solution to be plain. In this way, he avoids the task, so basic to legal analysis, of reconciling competing principles. Instead, he substitutes simple labels and lines: “the abuse of speech can be punished but the right itself cannot be.” Unfortunately, few cases are so simple. Thus Douglas writes of free speech, “speaking [is] beyond the reach of laws.” Does he then oppose laws that limit the amount of sound or of traffic obstruction caused by a speaker? Well, no. For he writes in another place “[The] state may regulate the use of its streets and parks.” Or again, in Douglas’s view, “the First Amendment has a broad reach and includes the exotic forms of religion.” Including “exotic” religions like Mormonism? Not exactly. For “religion cannot be used to justify immoral acts and practices,” and thus “the Court held that polygamy was offensive to the American community.”But is offensiveness to the community a sufficient justification for repression? At a time when Communism was clearly “offensive to the American community,” Douglas, often to his credit, dissented from many Court decisions that upheld laws and regulations directed at men thought to be Communists. One might expect condemnation of the polygamy ruling from someone who tries to “trace” the Bill of Rights to “the teachings of the Koran.”
Donglas’s homogenizing tendencies carry him beyond facile optimism and inconsistency to outright inaccuracy. It is startling, for instance, to see a reference to a law that was never enacted, and a decision that was never made.
The Court also struck down a state law which reduced the vote of Negroes, Catholics, or Jews so that each got only one-tenth of a vote.
What does one say when a Supreme Court Justice makes up a case?
More to the point, how can such a man, trained in the law, with its scruples and its insistence on detail, become so careless? The answer lies, apparently, in indifference to the texture of legal analysis, which arises from an exclusively political conception of the judicial role. Someone who reacts only to “underlying” political choices frees himself from the restrictions not only of legal detail, but also of truth to the extent that truth inheres in detail. The lawyer never comes through in these books. As I suggested earlier, it is here that they raise significant questions. For although Douglas may be an extreme case, his political view of judicial decision is widely shared. Douglas’s carelessness and simplification should be seen not only as a product of his idiosyncracies,* but also as an extreme example of the risks inherent in an “unmasking” movement that has shaped contemporary thinking about law.
Let me sketch that movement of thought, which exemplifies Whitehead’s remark that each intellectual generation criticizes the unconscious assumptions made by its parents. Douglas is reacting against the conservative judges who set the tone of late-nineteenth-century law, and, in particular, of the Supreme Court from about 1890 to 1937. (The Supreme Court has often represented, as it does today, what was taught in the law schools a generation earlier.) Today those conservative judges would be called “formalistic” because they exaggerated the degree to which legal forms—concepts and precedents—confine a judge’s discretion. They found obvious answers in the law, and remind one of the historian Fustel de Coulanges, who said, “It is not I who speak but history who speaks through me.” They assumed their narrow view to be the only absolute and objective one; they saw themselves applying rules as impersonal and rational as the laws of economics.
Then an unmasking reaction set in that emphasized the aspects of reality neglected by the nineteenth century. It was characteristically “modern”to believe that “true” meaning was often latent, to “see through” appearances, theories, and justifications. Thus, modern legal thought depreciated the importance of arguments, the constraints of legal doctrine, the goal of neutrality, and the distinctive resources of legal institutions; it stressed instead motives, political choice, the inevitability of bias, and the ways in which a judicial decision. resembled a legislative decision. And in the law, as elsewhere, increased insight into the roots of thought could turn into skepticism about the possibility of valid thought.
Reducing law to its underlying political “reality” risks losing sight of the old truth in one’s fascination with the new. Explanations that go beneath the surface do not necessarily render the surface itself insubstantial: just as uncovering the psychological roots of an illness does not make the pain less real, so uncovering the ideological roots of a decision does not make the reasoning of a judicial opinion a ritual dance. Today there is a widespread counter-reaction against reductionism; writers as divergent as Wittgenstein and Lévi-Strauss have emphasized the truth in Bishop Butler’s dictum that everything is what it is, and not another thing. Further, we now see that the ideas of reductionism and inevitable bias are especially troublesome when they affect legal decisions, which are predicated upon the possibility of a judgment that is, in some sense, disinterested, and upon forms of legal reasoning which are in some sense controlling. We have learned that judging cannot be hard and fast, but it is disastrous to conclude that it must therefore be fast and loose.
Douglas is a reductionist. He seems to think that Supreme Court Justices should answer legal questions by directly applying their beliefs about the overall needs of the country, or even the world. But liberal democracies are pledged to respond more to what is generally wanted than to what is thought by a few to be needed. Even if some men must, or should, be allowed to decide what is good for us, it is hard to see why it should be those nine men. It is different when each judge mediates his political preferences through a limiting system of technical law, which creates not only the risk of concealing a personal point of view (of formalism), but also the possibility of partially transcending it. “In his fetters,” it has been well said, “the judge finds liberation.” The work of the Supreme Court is extraordinarily hard precisely because it is neither “purely legal” nor “purely political,” and making that work look easy is a certain sign of pretending that it is one or the other.
The proper exercise of judicial intelligence in any court is much more complex than Douglas suggests. Judges make difficult analogical comparisons to decide what similarities among cases (i.e., precedents) seem important. In this way they try to reconcile both the desire to apply the same law to all persons and the need to reflect changes in what seems important to society. They then try to present reasons general enough to go beyond the particular dispute and yet not so general, and not so novel, as to set in motion a great deal of unanticipated, and perhaps unwarranted change elsewhere in the law. To most conscientious judges, judging is like trying to readjust one part of a mobile without moving the rest. To Douglas it is more like distinguishing left from right. He accordingly tells us, to paraphrase Paul Freund, not about the strains of judging but only about the complacencies of voting.
October 22, 1964
To a lesser extent, the same kind of carelessness characterizes Douglas’s work on the court. True, many of his decisions have been courageous and admirable. But at issue is the texture of legal reasoning; not the similarities in what Douglas and Mr. Justice Black decide, but the difference in how they decide. ↩