William Orville Douglas - Further Readings
William Orville Douglas, a legal educator, NEW DEAL reformer, environmental advocate, and prolific author, was an outspoken and controversial associate justice on the U.S. Supreme Court during much of the twentieth century. For over 36 years, under six presidents and five chief justices, Douglas's opinions—including an unequaled 531 dissents—touched and shaped the momentous constitutional questions and crises of the Depression, WORLD WAR II, the COLD WAR, the KOREAN WAR, the CIVIL RIGHTS MOVEMENT, the VIETNAM WAR, the rise of the WELFARE state, and the fall of RICHARD M. NIXON.
Asserting that the purpose of the Constitution is to "keep the government off the backs of the people," Douglas became a champion of civil liberties on the high court in seminal cases interpreting FREEDOM OF SPEECH, privacy, PORNOGRAPHY, TREASON, the rights of the accused, the limits of the military, the limits of Congress, and even the limits of the President of the United States. As an outspoken New Deal reformer and a popular libertarian, he was courted by the DEMOCRATIC PARTY for high political office, and likewise excoriated by leading Republicans who three times tried to impeach him. A man of enormous energy, he did not confine his public views to opinions from the U.S. Supreme Court alone, but wrote over thirty books on a variety of legal and social topics. As an engaging storyteller, vigorous outdoorsman, and blunt social critic, he was irresistible to the liberal press, under whose influence he was named Father of the Year in 1950. At his death in 1980, he was lionized as an outstanding protector of freedoms.
Since his death, however, historians have criticized both his public career and his private life. From his position on the U.S. Supreme Court, he twice flirted with a place on the presidential ticket—with FRANKLIN D. ROOSEVELT in 1944 and with HARRY S. TRUMAN in 1948—despite the clear opposition of his Court colleagues. He wrote his opinions faster, and with less scholarship or collegial cooperation, than any of his fellow justices. His lifelong stream of books, which referred to him as Associate Justice of the Supreme Court on their covers, showed a similar haste to regard primarily his own views as he exhorted the nation impatiently on foreign policy, anthropology, religion, history, law, economics, and the environment. Unprecedented for a U.S. Supreme Court justice, he advocated public issues in extralegal activities around the world, creating difficulties for both the Court and the federal government at large. He claimed that J. EDGAR HOOVER had bugged the inner conference room of the Supreme Court Building and that Hoover had had FEDERAL BUREAU OF INVESTIGATION (FBI) agents plant marijuana on his mountain retreat property in Goose Prairie, Washington; when no evidence of these activities was ever found, he refused to recant. When a stroke at age 75 left him paralyzed in a wheelchair, wracked with pain, and periodically incoherent, he nonetheless refused to resign his seat in the high court until forced to do so through the extraordinary efforts of his colleagues. And even then, he insisted on lingering in his judicial office for months, demanding attention as though he were still on the Court.
This brilliant and complex man was born October 16, 1898, in Maine, Minnesota. He grew up in small towns of rural Minnesota, California, and Washington as his family moved in search of a climate that would preserve the frail health of his father, a hardworking Presbyterian
minister of Scottish pioneer ancestry. Douglas's father died in Washington when the boy was five, leaving the family with only a meager inheritance, which a local attorney immediately squandered on a foolish investment. Douglas's widowed mother, Julia Bickford Fiske Douglas, had saved just enough to buy a house for the family in Yakima (WA), across the street from the elementary school, where she raised Douglas and his two siblings on the virtues of hard work and high ambition as preparation for success in life. All three of the children achieved success in school and in professional life, but William was brilliant: valedictorian of his high school class, Phi Beta Kappa at Whitman College, and second in his class and on the law review at Columbia Law School.
Polio had stricken Douglas when he was an infant, and the local doctor had advised the family that he would never fully recover the use of his legs and that he probably would be dead by age 40. His mother, who had favored her first-born with the name Treasure, went to work massaging the muscles of his legs vigorously in two-hour shifts around the clock for months, telling him that he would recover to run again "like the wind," the way she had as a girl. He not only recovered the use of his legs but, as an adolescent, put himself on a merciless discipline of hiking miles a day in the mountains under full pack, to strengthen his legs to the point of outstanding endurance, determined that no one would ever call him puny.
In 1920, he graduated from Whitman College, in Walla Walla, Washington, and returned home for two years to teach English, Latin, and public speaking in Yakima High School. He pursued a Rhodes Scholarship unsuccessfully, and then decided to hitchhike by rail across the country to enter Columbia Law School, although he did not yet possess the money for tuition. While in law school, in 1924, he married Mildred Riddle, with whom he had his only two children, Millie Douglas and William O. Douglas Jr. The marriage ended in DIVORCE 29 years later.
After graduating from Columbia Law School in 1925, he practiced in a Wall Street firm for one year before joining the faculty at Columbia. A year later, he went to teach at Yale, where he specialized in corporate law and finance, writing respected casebooks and gaining recognition as an expert in those fields. Desperate for a cure for the continuous headaches and stomach pains
that had plagued him since his days on Wall Street, he briefly undertook psychoanalysis at Yale.
Following the STOCK MARKET crash of 1929, Douglas did original and painstaking work with the help of sociologist Dorothy S. Thomas, interviewing failed businesses in BANKRUPTCY court to determine the causes of their loss. He was asked to head a study committee of the SECURITIES AND EXCHANGE COMMISSION (SEC) in 1934. In 1936 he became a member of the SEC, and in 1937 he was appointed chairman with the mandate from Franklin D. Roosevelt to reform practices of the stock exchange that had led to the great crash.
In 1939, Roosevelt had Douglas, then chairman of the SEC, hailed off a golf course to meet immediately with him at the White House. "I have a new job for you," the president said in the Oval Office. "It's a job you'll detest." Pausing dramatically to light up a cigarette, the president continued, "I am sending your name to the Senate as Louis Brandeis' successor." Douglas was stunned. At age 40, he was about to become the second-youngest U.S. Supreme Court justice in history.
Douglas was sworn in on April 17, 1939, and quickly helped to constitute a new majority on the Court that supported Roosevelt's New Deal laws regulating the economy. Within two years, he had opposed the Court's leading personality, FELIX FRANKFURTER, and its reigning philosophy of defending civil liberties from the BILL OF RIGHTS in cases involving religious freedom and the rights of the accused. It was the beginning of a two-decade battle with Frankfurter and his philosophy of judicial restraint. This conflict did not end amicably, but it helped to transform Douglas into a champion of civil liberties. After World War II, Douglas joined forces frequently with Justice HUGO L. BLACK and later Justice WILLIAM J. BRENNAN JR. in applying the Bill of Rights to protect individual liberties.
In 1951, when fears of COMMUNISM exacerbated by the public ravings of Senator JOSEPH R. MCCARTHY overtook the nation, Douglas's dissent in Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), defended the FIRST AMENDMENT free speech rights of Eugene Dennis and ten other members of the American Communist Party who admitted teaching the works of KARL MARX, Friedrich Engels, VLADIMIR LENIN, and JOSEPH STALIN. Douglas argued that despite current fears of communist influence in U.S. society, their speech alone presented no CLEAR AND PRESENT DANGER to the nation. Similarly, in dissent, he defended the First Amendment rights of several New York schoolteachers who had challenged the state's Feinberg law (Educ. Law N.Y.S. 3022) giving authorities the right to compile a list of subversive organizations to which a teacher could not belong. Douglas wrote that teachers need the guarantee of free expression more than anyone and that the Feinberg Law "turned the school system into a spying project" (Alder v. Board of Education of City of New York, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 ).
During this same period, he vigorously opposed the expanding use of government WIRE TAPPING enabled by the 1929 decision in OLMSTEAD V. UNITED STATES, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). Writing for the public in his book Almanac of Freedom (1954), Douglas declared that "wire tapping, wherever used, has a black record. The invasion of privacy is ominous. It is dragnet in character, recording everything that is said, by the innocent as well as by the guilty….wire tapping is a blight on the civil liberties of the citizen."
In 1953, Douglas single-handedly halted the execution of Julius and Ethel Rosenberg, the defendants in the most sensational spy trial of the cold war (Rosenberg v. United States, 346 U.S. 273, 73 S. Ct. 1173, 97 L. Ed. 1607 ). After voting four times not to hear the case, he finally ordered a stay at the last possible minute, and then headed off on vacation. Unable to reach Douglas en route, the other justices called a special session to vacate the stay, and the Rosenbergs were executed. Douglas's colleagues accused him of grandstanding. His enemies in Congress accused him of treason, and he survived three IMPEACHMENT attempts led by GERALD R. FORD. Ford, eager to be rid of Douglas, declared that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." However, Douglas was not a traitor but an adamant civil libertarian, unwilling to let the heavy hand of the government crush any individual's rights.
During the tenure of Chief Justice EARL WARREN (1953–69), Douglas found more frequent majorities for his activist philosophy. He took a leading role in reaching a majority for the 1954 Brown decision (BROWN V. BOARD OF EDUCATION OF TOPEKA, KANSAS, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 ) desegregating public schools, telling his colleagues simply that "a state can't classify by color in education." He argued in dissent in several cases that the Bill of Rights was applicable to the states through the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT, an argument that the Court finally accepted in MAPP V. OHIO, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), which held the FOURTH AMENDMENT provision prohibiting unreasonable SEARCHES AND SEIZURES applicable to the states. He supported each of the Warren Court's major decisions extending the rights of criminal suspects, including the RIGHT TO COUNSEL, in GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and the right to be advised of one's constitutional rights before being interrogated, in MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In 1965, Douglas wrote for the majority in GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, striking down a state law that prohibited the use of contraceptives. In the opinion, he argued that, taken together, the First, Fourth, Fifth, and Ninth Amendments created a constitutional right to privacy. This may have been Douglas's most influential single opinion on the Court. He argued that the government did not belong in the bedroom, which was one of the "zones of privacy" protected by "penumbras" emanating from the specific guarantees in the Bill of Rights. Criticism of the Griswold opinion was fierce. But based on this right to privacy, a majority of the Court, Douglas concurring, would vote for a woman's right to have an ABORTION in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
Douglas made no secret of his long-standing dislike for the Vietnam War. In the fall of 1967, he dissented from the Court's decision not to review several cases that might have raised the issue of the legality of the Vietnam War. On August 4, 1973, in a solitary performance reminiscent of the Rosenberg stay of execution, acting from the Yakima courthouse near his summer vacation home, Douglas reinstated a lower-court order to stop the Nixon administration's bombing of Cambodia and, in effect, bring the Vietnam War to a halt by judicial decision. Douglas wrote that only Congress could declare war, and Congress had not done so. Six hours later, eight members of the Court reversed him by the telephone polling of Justice THUR-GOOD MARSHALL.
In his most personal relationships, Douglas was a tyrant. He sternly demanded the back-breaking 16-hour days and six-day weeks from his law clerks that he loved to put in himself (when a clerk asked for time off to get married, Douglas granted him 24 hours' leave), but never allowed them significant responsibilities for his opinions. One clerk said, "It was a master/slave relationship" (Simon 1980). He married four times while serving on the Supreme Court, to successively younger women: after Riddle, Mercedes Davidson (1953), whom he met in Washington, D.C.; Joan Martin (1962), a twenty-three-year-old college student who had written her senior thesis in praise of him; and Catherine Heffermin (1965), a twenty-one-year-old college student whom he met while she was working as a waitress. Most of his wives found him distant, demanding, and faithless. The 860 pages of his two-volume autobiography (The Court Years, 1980) are filled with words of revenge upon his personal and political enemies but contain less than a page for his wife of 29 years, Riddle. He was so inept and cold as a father that his two children fled him. As his son put it, "Father was scary."
Felled by a stroke in 1974, Douglas became confined to a wheelchair pushed by an aide, wracked by constant pain, glazed by medication, and increasingly incoherent. But he would not resign. He tried to return to the Court in 1975, refusing all advice to the contrary. His presence was embarrassing to the Court and impossible to sustain. He officially resigned on November 12, 1975, but tried to hang on to an unofficial role as the Court's tenth justice. When even his clerks would not support his fantasy, he prepared a statement of farewell to be read to the justices on his behalf while he sat in his wheelchair. His farewell compared the relationship he had shared with his Court colleagues to the slow warm growth of friendships on a camping trip in the wilderness. His colleagues wept.
Douglas died on January 19, 1980, in Washington, D.C.
Douglas had shattered the popular view of the high court as a somber gathering of elderly people in black robes pondering the weighty truths of the Constitution. His irrepressible personality, extralegal activities, popular book writing, and serial marriages brought unprecedented color and controversy to the Court. A libertarian by disposition and principle, he would not easily allow the government to abridge the liberties of others, nor would he conform to the traditional role of U.S. Supreme Court justice.
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