In response to:
Dissent on Douglas from the February 19, 1981 issue
To the Editors:
I have heard a number of people remark that Professor Dworkin’s article “Dissent on Douglas [NYR, February 19] was unnecessarily personal. It would be unfortunate if that criticism distracted us from the tragedy Dworkin reports—a tragedy that makes Douglas, as Dworkin reports him, a more sympathetic character than I had seen before. Dworkin tells us that the character defects that affected Douglas’s judicial work were the consequence of a tragic flaw. Douglas was unable to transcend the philosophy called legal realism. The realist philosophy did not attribute any objectivity to moral claims. They were idiosyncratic preferences, expressions of emotion having nothing to do with the truth such as positive science produces. There was Douglas, shaken by intense moral sensitivities but unable, because he was persuaded by realism, to report these sensitivities as serious claimants to public attention.
If I would fault Professor Dworkin’s review, it is that he fails to emphasize how widespread has been the inability to escape Douglas’s dilemma, not only in law but everywhere in our society. Douglas as a tragic figure was an archetype for the age, a man of great power, reduced to fraudulence by the necessity of deciding cases in a manner he did not really believe he had any intellectual right to do.
Professor Dworkin believes that by taking rights seriously, we can find such a firm foundation for judicial decision-making as Douglas failed to discover. He may be right. But he underestimates the difficulty of the task and the corrosiveness of the problem if he presents Douglas to us as an isolated figure.
The leading law schools of the country are turning out now a third generation of lawyers radically influenced by realism. The leaders of legal educational method are building into law a separation between skills and content. We say we teach people to think like lawyers. We say we teach them legal skills. We certainly teach them the policy, which for many realists was an attractive alternative to emotion as a source for sound deciding. The one thing—interestingly—that nobody claims to teach or plans for is the law. It is infra dig. through a significant part of law today to take seriously the substance of law itself. It would be hard, I suspect, to get through an American law school today without getting the impression that the law is merely an excuse for policy. The law is how policy is mystified. That kind of cynicism is only the latest version of Douglas’s, the latest of the bad consequences of realism.
The growth of Marxism in law schools is another logical outgrowth of realism. Realism told us that all legal arguments and ideas were only rationalizations—for the judge’s response to his breakfast. Marxist social science tells us that the way the judge responded to his breakfast was a matter of social class. What was in the realists’ eyes a simple delusion—that legal ideas are meaningful—became sinister under Marxist analysis: a plot to make law and the policy with which it was concerned inaccessible to the masses.
That is where, in significant part, legal education is today. It is not a good place. The voices, including Dworkin’s, that ask us to take rights and right seriously may be the wave of the future. I sincerely hope so. But the battle is hardly won. It is hardly begun. The presumptions of legal realism and Marxist revisionism pervade the practical, day-to-day teaching of law, thinking about law, and thinking about teaching law. They cannot help but continue to influence the bar and the judiciary. Pace Dicey.
University of Wisconsin Law School
To the Editors:
Ronald Dworkin’s review essay, “Dissent on Douglas,” takes too narrow a view of Douglas’s work. In the first place, Dworkin’s question, “Why did he make so little impact on constitutional law?” assumes a totally erroneous premise, reflecting perhaps the perspective of an academic specialist in jurisprudence rather than a working attorney or even a constitutional law specialist.
As a matter of fact, Douglas developed and articulated into case law a series of leading contributions to constitutional adjudication which, while perhaps not integrated into a “general constitutional philosophy,” continue to have profound impact on constitutional law.
In the area of the First Amendment, Douglas stoutly maintained and expanded the realistic Holmes-Brandeis imminent-danger doctrine of free speech (dissenting opinion in Dennis v. United States), which ultimately became the Court’s doctrine in Brandenburg v. Ohio, whereas Black’s absolutism was a failure.
On the frontier of privacy, Douglas’s opinion for the Court in Griswold v. Connecticut (not a concurring opinion, an odd mistake by Dworkin) ventured cautiously and to a limited extent into the area of individual rights not specified in consitutional provisions. Dworkin recognizes Douglas’s concern that if he went too far in that direction, he would be open to the argument (both from Frankfurter’s followers and the highly respected Black) that this was but the old roving judicial conservatism of freedom-of-contract days writ differently. This fear does not merely partially, but, I suspect, very substantially account for Douglas’s restraint. He felt safe with marital privacy (or earlier, the right to procreation in Skinner v. Oklahoma), a far cry from general jurisprudential theory.
Furthermore, Douglas sought to hang even this small intrusion into the unknown on specific constitutional provisions—the “penumbra” theory of “emanations” from the Bill of Rights. The penumbra doctrine has been enormously criticized by academics, but it still exists in the law, and may ultimately show renewed vitality as a sensitive middle road between a self-abjuring literalism and a roving license to add and subtract.
It was Douglas who fashioned in Skinner the powerful doctrine of strict scrutiny under the Equal Protection Clause of laws which impinged on fundamental rights and had a potential for invidious discrimination. That doctrine may have afforded more succor to minorities than perhaps any other judge-made formula, unless it be Stone’s “discrete and insular minorities” suggestion in his famous Carolene Products footnote.
Douglas, of course, did lasting work in many other areas. His contributions to the role of environment in civic planning (Berman v. Parker) and to the resurrection of the dormant Reconstruction civil rights statutes (Screws v. United States, Monroe v. Pape) have become formidable and indispensable tools for lawyers. (To be sure, Douglas also nodded, as in Village of Belle Terre, where he let a presumed environmentalism overcome concern for discrimination against non-family association.) There are few significant fields of constitutional law untouched by Douglas’s insight and creativity. A practicing lawyer comes upon them again and again.
Dworkin offers an ingenious theory that Douglas’s apparent unwillingness to develop a full-fledged constituional law of rights, as well as his frequently short, allegedly “sloppy” opinions, both reflect the guilty conscience of a 1930s “judicial realist.” Douglas, says Dworkin, was a man who sensed in his gut the existence of fundamental moral rights of a preconstitutional or ultra-constitutional nature, but for that very reason felt trapped by the traditional realist view that labeled such feelings as but a judge’s personal predilections. Dworkin’s view is penetrating and perceptive, but nevertheless inadequate.
For Dworkin fails to take sufficient stock of the tremendous impact that the New Deal struggle with the Old Court had upon men like Douglas, Black, Frankfurter, and Jackson—all loyal to Roosevelt, all not yet on the Court, all terribly bitter at the judicial arrogance of the old conservatives. Frankfurter’s federalism and self-restraint were obviously related to his experience of the Thirties—he certainly said so many times (see his opinions in the Flag Salute cases). Black’s literalism is surely traceable in large measure to that same impact. Douglas dared to move beyond—here and there—no doubt building on the legal realism of the Thirties (that a judge ultimately does what he has to do), but always with caution, and abjuring some full-fledged alternative that might smack of discredited natural-rights theories. Recall how Douglas strenuously denied in Griswold that the Court was legislating—“we decline that invitation” (go back to Lockner v. New York)—whereas Black, more accurately, said, yes you are legislating. In Griswold, Douglas let Goldberg’s concurrence bring forth the Ninth Amendment as a potentially endless reservoir of nonarticulated rights—and let Harlan use substantive due process, a judicial technique which to Douglas would be forever linked with the abuses of the Old Court.
As for Douglas’s contempt toward legalism and lawyers—including most academic scholars—surely Douglas’s own activist, physically vigorous personality, which scorned the purely intellectual, offers much of the explanation. (Douglas harks back extraordinarily in some respects to Theodore Roosevelt.) But here again, we must not overlook the scaring experience of the Thirties. The organized bar, in concert with a narrow pedantic legalism, had tied up social reform for decades, and threatened in the crisis of the mid-Thirties to strangle it. William O. Douglas, like Thurman Arnold, Robert K. Hutchins, and other New Dealish critics of the existing order, had little respect for the prevailing institutionalization of law: it was but another structure of power used to obfuscate the people and bind their elected protagonists.
Nor would Douglas, with his quick impatience (often merging into arrogance), cater to those academics who cared more for process than results, and whose heroes were inevitably Frankfurter, Jackson, and Harlan.
Today we are older and sadder, if not wiser. We no longer have that ultimate faith in the people’s righteousness that underlay the philosophy of Douglas, Black, Frankfurter, and Warren (though all four often reached different conclusions on the judge’s role). Today we prefer to have every legal protection for rights tied up in as intricate a package as possible—the harder for the Burgers and the Rehnquists, with their populist constituencies, to unravel.
The lesson from Bill Douglas (ironically from his own career as well as his teachings of the Thirties) is that in the end the Justices of the Supreme Court will do that which their attitudes and philosophy impel them to do. They got the power, h’aint they? When the pendulum truly swings, all that constitutional law offers is a delaying action. Douglas was a man in a hurry, driven by the past and increasingly disturbed by the negative forces of his own times—and who can say he was wrong to be so?
Arnold Milton Paul
Whittier College School of Law
Los Angeles, California
To the Editors:
Ronald Dworkin’s perceptive review of The Court Years, 1939 to 1975: The Autobiography of William O. Douglas, and James F. Simon’s Independent Journey: The Life of William O. Douglas, nicely summarizes the late justice’s curious role in the Rosenberg case—and his even more curious and selective memory of that role.
Yet I believe Mr. Dworkin has overlooked an even more bizarre twist to Douglas’s memory. “Douglas allows himself a paragraph,” Dworkin writes, “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.’ ”
In fact, this never happened—there was no such picture—at least none that a quick survey of news agencies, magazines and newspapers can come up with. Perhaps Douglas confused the Ethel Rosenberg execution with that of Ruth Snyder a quarter of a century earlier. Her electrocution—for the murder of her husband, Albert Snyder—did produce a ghastly (and illicitly snapped) photograph and a memorable front page for the New York Daily News on January 13, 1928.
Geoffrey C. Ward
American Heritage Publishing Co., Inc.
New York, New York
Ronald Dworkin replies:
I am sorry to learn that many people think my article was unduly personal. I was reviewing an intimate biography of Douglas and his autobiography, both of which discussed his personal life more than his decisions or legal philosophy. It would have been irresponsible not to have reported and considered the questions about his character these books raise, and I did not go beyond incidents or events described in one or the other of them. If it is important that the lives and personalities of Supreme Court justices be understood, and therefore that books like Douglas’s and Simon’s be available, then discussion of these books should not observe some limit of decorum that places character out of bounds.
In any case my argument, as Professor Lehman recognizes, was meant to defend Douglas from the cruel personal attack that is popular among his law school critics, which is that defects of character were responsible for his inadequate judicial performance. I agree with Lehman that Douglas was not alone, either among judges or lawyers or law teachers, in accepting legal realism as a faith. But perhaps Douglas was unusually sensitive to the demands of political morality that were inconsistent with that faith, and it was the tension this inconsistency produced, I believe, that made his judicial career the paradox it became.
I also agree with Professor Paul that a judge’s opinions may be important for practicing lawyers even though they are unimpressive to academic critics—because they are terse and crisply stated, for example, or summarize existing law in a useful way, or speak decisively to some narrow set of issues that arise frequently in litigation. Perhaps Douglas’s opinions were unusually useful to Paul and other practitioners in some such way. Nor did I mean to say that Douglas wrote no or even very few opinions that had more general doctrinal importance. I was puzzled by the fact that so brilliant a lawyer, so clear in his sense of individual injustice, contributed so little to the general theory of constitutional rights, and it was that fact (which Paul does not seem to contest) I tried to explain.
I am not persuaded, however, by Paul’s list of cases in which Douglas’s opinions proved to have doctrinal importance. Griswold seems to me the worst example. Douglas’s idea that the constitutional provisions have “penumbras” and “emanations” is criticized and has had so little influence precisely because it offers metaphors in place of analysis, and so offers no barrier to the judicial discretion Paul says Douglas was anxious to avoid. The case provided Douglas with an important opportunity to develop a theory of individual rights by explaining why laws outlawing contraception violated such rights while laws outlawing sweatshops did not. He declined that opportunity in favor of figures of speech that he knew would be scorned.
I am grateful to Paul, however, for pointing out my silly mistake: Douglas’s opinion in that case was indeed the opinion of the court. I also misattributed Marshall’s famous statement, about expounding a constitution, to Hughes.
May 28, 1981