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date: 18 October 2019

Douglas, William O.free

(16 October 1898–19 January 1980)
  • L. A. Powe Jr.

William O. Douglas.

Courtesy of the Library of Congress (LC-USZ62-103906).

Douglas, William O. (16 October 1898–19 January 1980), U.S. Supreme Court justice, New Deal administrator, and environmentalist, was born William Orville Douglas in Maine, Minnesota, near the North Dakota border, the son of Julia Fisk and William Douglas, a Presbyterian minister. The family moved to southern California in 1901 and then to eastern Washington, near Yakima, a year later.

When Orville, as the family called him before he became the adult Bill, was six, his father died. Thereafter the family lived in various stages of poverty with the children working as best they could to bring additional money home. His father’s death was the second searing experience for the young Douglas. While still living in Minnesota he had contracted polio. Initially it was feared he would die; that was upgraded to losing the use of his legs. His mother spent hour after hour massaging his legs, saving their use. Always weaker than his childhood peers because of the effects of polio, Douglas turned to hiking to strengthen himself. “This period is when I became a loner. Throughout my life I have enjoyed company but seldom sought it out. I preferred to eat lunch alone. I preferred to walk or exercise alone. I became a very lonely, introspective person.” Indeed, he would have few close friendships as an adult. Instead he indentified with society’s outcasts and misfits: the Wobblies, hobos, and racial minorities he traveled with as a youth.

With hard work he conquered the aftereffects of polio. With hard work he would conquer any obstacle. One of his driving qualities was a belief in the Protestant ethic; before his father’s death the latter had instilled in the youth the lasting lesson of the importance of “self-reliance and hard work.” As an adult he would never ask another to do what he would not do, but neither would he tolerate those around him who did less than he did. In part this accounts for his biting assessment of so many of his contemporaries.

Because he brought extraordinary intelligence with his work ethic, he excelled at all academic endeavors, though the need for employment always meant that he never gave full attention to his studies. He was valedictorian of his Yakima High School class (with the yearbook predicting he would become president of the United States); at Whitman College in Walla Walla he held three jobs simultaneously so that he could send money back to his mother; despite a lucrative tutoring business, working on the prestigious law review, and serving as a research assistant to a professor, he graduated number two in his law school class at Columbia. The ability to do several different tasks simultaneously would assist his meteoric rise during the New Deal but plague him on the Supreme Court. Probably no justice since the legendary John Marshall so awed his brethren with his intellect; yet Douglas infuriated them by his seemingly cavalier treatment of the Court’s opinion writing function.

He went to Whitman College because it offered him a scholarship. After his sophomore year, in the summer of 1918 he attempted to enlist in the navy, but failed because of color blindness. He then tricked his way into an army ROTC program, but World War I ended before he left the West Coast. The patriotic fervor that impelled his enlistment never flagged; one side of his tombstone in Arlington Cemetery says simply: “William O. Douglas Private United States Army.”

Doulgas graduated from Whitman in 1920 and returned to Yakima as a high school teacher. During that two-year period, he met Mildred Riddle, an Oregonion also teaching at Yakima High School, and he married her in 1924 while he was a student at Columbia Law School.

Following graduation from Columbia, he accepted a job with the prestigious Wall Street law firm of Cravath, deGersdorff, Swaine, and Wood. There he practiced corporate law, especially railroad reorganizations, for two years; he also taught part-time at Columbia Law School. An attempt to return to Yakima to practice small-town law lasted but a few months, ending in 1928 when Columbia offered him a full-time position as an assistant professor. This allowed him, in his words, “to reenter one of the mainstreams of American life.”

Columbia was one of the nation’s leading law schools, on the cutting edge of the development of legal realism, a profound jurisprudential movement that shook the underpinnings of American law as no other movement has. Legal realism severely questioned whether judicial opinions did anything beyond masking the real (presumably extralegal) reasons why judges decided cases as they did. Columbia’s president, Nicholas Murray Butler, was sufficiently worried about legal realism—or “sociological jurisprudence” as it was often called during the 1920s—that he appointed a law school dean who opposed it. The appointment came without faculty consultation and resulted in an exodus of some of the major faculty members, including Douglas, who was recruited to the Yale Law School by its boy-wonder dean Robert Maynard Hutchins.

Douglas’s academic status was quickly established. In 1930 Hutchins became the president of the University of Chicago and offered Douglas the astronomical salary of $20,000 per year to follow him. Douglas accepted, delayed his move, and then reversed himself by accepting Yale’s promotion to the prestigious Sterling Professor of Law, leapfrogging his colleagues. Thus Douglas remained at Yale during the time it was the most exciting place in American legal education, indeed probably in the history of American legal education, and he contributed fully to its intellectual life. The early 1930s were productive years for Douglas. As a corporate law expert, he produced seven casebooks, all from the realist perspective, on various aspects of corporate and partnership law. It was this period when his only two children were born. Douglas, however, was largely an absentee father, preferring work and its resultant status to time with his children. “I doubt if I rated high as a father” may have been an understatement.

Douglas’s reputation as a bankruptcy whiz brought him some consulting opportunities under the secretary of commerce at the end of the Herbert Hoover administration. But in 1934 Douglas took a one-semester leave of absence from Yale to work on a study for the newly created Securities and Exchange Commission dealing with bankruptcy reorganizations. The semester leave extended for a lifetime.

The chairman of the SEC was Joseph P. Kennedy. His no-nonsense attitude toward the agency’s business found a match in Douglas, who became a lifelong family friend. Unlike later, Kennedy was then on excellent terms with the president, who bowed to Kennedy’s entreaties first, in January 1936, to appoint Douglas to a seat on the SEC and then, in the summer of 1937, elevate him to the chairmanship. Douglas would now have his own entrée to Franklin D. Roosevelt.

The SEC was the New Deal’s showcase agency. As the regulatory policeman of Wall Street, it was responsible for enforcing the Securities Acts of 1933 and 1934 and overseeing the “death sentence” provisions of the Public Utilities Holding Company Act of 1935. Douglas’s two most public actions as chairman were refusing the demands of the New York Stock Exchange to close the exchange during a steep sell-off in early September 1937 and then taking over the exchange in the wake of disclosures that former exchange president Richard Whitney had misappropriated funds. In the former case he acidly noted his view that he always assumed markets could go down as well as up. In the latter he commented, “It’s goddamned lonely in the front line trenches these days.” But his most important contribution was his tireless energy and administrative ability, plus consistent sixteen-hour days, in organizing and structuring the SEC to be a viable regulatory agency despite an incomplete statutory scheme. In an era that produced excellent administrators, he was the best.

Doulgas became an unofficial economic adviser to FDR in addition to his SEC duties. Business was often mixed with pleasure, and Douglas became a regular at the president’s poker games and eventually “perfected” the dry martini, becoming FDR’s favorite bartender.

Douglas expected to return to Yale and told the president so. In 1937 the chairmanship of the SEC forestalled his projected return, but in early 1939 Douglas was selected as the next dean of the Yale Law School, and he told the president of his intent to return. Douglas reports FDR as replying “we’ll see.” On 13 February 1939 Justice Louis Brandeis retired. Roosevelt, having already made three appointments to the Court, had previously publicly indicated that the next appointment would go to the West Coast, which had not had a Supreme Court justice since 1925. Douglas, in the political campaign of his life, first had to reestablish his bona fides as a westerner, and second, become the westerner ahead of the likely nominee, Washington senator Lewis Schwellenbach. With the help of Washington’s other democratic senator, Homer Bone, Douglas established his bona fides with support from the chief justice of the state supreme court, the Washington State Bar Association, and most important, Idaho senator William Borah. In the meantime Douglas worked to line up his support in the capital, from the ubiquitous “Tommy the Cork” Corcoran, to Attorney General Frank Murphy, to newspaperman Arthur Krock. Douglas also shored up his own liberal credentials with a well-timed speech condemning the financial community and supporting regulation. On 19 March FDR nominated him; on 4 April the Senate confirmed the nomination 62–4 (the dissenters arguing that Douglas was but a tool of Wall Street!); and on 17 April he took his seat, the second youngest Supreme Court justice in history, bested only by Joseph Story 128 years earlier.

The Supreme Court Douglas joined only two years after FDR’s failed court-packing plan was firmly in the control of New Dealers and Douglas fit right in. Their first and foremost belief was that governments had to have the authority to regulate business as they saw fit. The use of the due process clause of the Fifth and Fourteenth Amendments to protect business from regulations, exemplified by Lochner v. New York (1905) and its invalidation of a sixty-hour work week meant for the welfare of bakery employees, had to be wholly repudiated. Douglas and Hugo Black favored denying that corporations were “persons” within the meaning of the Constitution, but no one else agreed. As an alternative, in Olsen v. Nebraska (1941), Douglas wrote for the Court in a way that reached a similar conclusion indirectly: issues of “wisdom, need, or appropriateness” of legislation were exclusively a legislative function. Notions of public policy about economic and social legislation were not found in the Constitution and therefore could not serve as a guide to interpreting the Constitution.

His two other major opinions of his early years also involved business regulation. United States v. Socony Vacuum Oil Co. (1941) held that a combination to fix prices was a per se violation of the Sherman Antitrust Act and therefore no further inquiry into the reasonableness of the behavior was appropriate. And in Federal Power Commission v. Hope Natural Gas (1944) he freed rate-setting agencies from any specific formula in determining a reasonable rate of return to a regulated corporation.

Although Douglas became known as a “liberal absolutist” in regard to the First Amendment and otherwise a staunch protector of civil liberties, that was not his view when he joined the Court. Like other New Dealers he was sympathetic to claims of racial or religious injustice, but he was also willing to support state regulation of expression when prejudice was not the animating reason for the state’s policy. Thus in Minersville School District v. Gobitis (1940) he joined with the other New Dealers in an opinion by Felix Frankfurter ruling that school children could be expelled if they did not participate in a compulsory flag salute, even if nonparticipation was impelled by religious scruples. Gobitis set off a wave of liberal denunciation of the Court as well as a number of simultaneous attacks on the Jehovah’s Witnesses. Two years later Douglas, along with Black and Frank Murphy, recanted in Jones v. Opelika (1942), and a year later in West Virginia v. Barnette (1943) the Court overruled Gobitis.

Barnette must be contrasted with the federal government’s decision to remove all persons of Japanese dissent from the West Coast, a policy supported by then California attorney general Earl Warren as well as President Roosevelt and a majority of Supreme Court justices. Like those of the majority, Douglas’s views of civil liberties stopped where the war powers began. He voted to sustain the Japanese Relocation program, with its forced internment of American citizens of Japanese descent in both Hirabayashi (curfew) (1943) and Korematsu (duty to report to relocation centers) (1944). He wrestled with his position and even drafted a dissent, but when the time to vote came he joined the majority in the single greatest blot on twentieth-century civil liberties. Additionally Douglas dissented in Cramer v. United States (1945), in which a majority, reversing a treason conviction of a naturalized German, interpreted the Treason Clause restrictively. He saw ample evidence to justify conviction in the case. His voting was hardly different from the record, sustaining government when it was important, civil liberties when to do so was nearly cost free. As the Court’s resident expert on corporate law, he believed that corporations had the power to submerge the individual. He did not yet believe that government, especially one headed by a man he respected, carried a like power.

Douglas’s contacts with Roosevelt did not end with his appointment to the Court. FDR considered moving Douglas from the Court to a position of domestic czar during the war, but ultimately did not. Then as the 1944 Democratic Convention was approaching and the decision to drop Vice President Henry Wallace from the ticket was finalized, FDR had to choose a running mate. Douglas and Harry Truman were his choices. The latter was the choice of the party bosses, the former of the remaining New Deal liberals. Emulating the 1916 example of Justice Charles Evans Hughes, whom he greatly admired, Douglas remained aloof—in the Wallowa Mountains of Oregon—and waited for a draft that never materialized. When asked later what would have been different if he had succeeded FDR, he responded that he would not have dropped the atom bombs on Japan. In 1948 while Douglas was again in the Wallowas, Truman would offer him the vice presidency, but Douglas, believing Truman would be defeated, spurned the opportunity: “I won’t be a number two man to a number two man.” Never again would Douglas be considered for elective office.

Prior to 1949 Douglas had never left the country. But throughout the next decade he used the Court’s summer recess to travel extensively in Asia. Douglas was a cold war liberal who believed that in the ideological fight with communism the best weapon of the United States was its commitment to individual freedom. During this period he began writing a book a year. The books, which often chronicled his travels, carried three messages: innate human dignity, the degradation of the environment and the need to protect it, and the supreme importance of liberty and freedom.

These ideas were also central to his voting on the Court. Travel, the passing of his presidential ambitions, and the new understanding, thrust to the fore by the federal government’s domestic security program, that government could suppress individual liberty, changed Douglas’s judicial philosophy. The mainstream New Dealer of the 1940s vanished and in its place emerged a “liberal absolutist” and the new phrase “Black and Douglas dissenting.” Seemingly alone amid the hysteria of the early 1950s, Black and Douglas explained the hysteria, drew parallels with communist behavior, and documented the Court’s abandonmment of the Bill of Rights. To the argument that judges should not presume to substitute their views for those of the other branches, Black and Douglas responded that the Constitution controlled those views, and so long as judicial review existed it was the judicial duty to enforce the Constitution even when to do so was unpopular. Together they were laying the groundwork for the Warren Court revolution of the 1960s. In the 1960s, however, they split over issues involved in the mass demonstrations and sit-ins of the civil rights movement. Black ultimately prevailed in arguing that property, whether private or public, could be declared off limits to protest, while Douglas wrote possibly his most powerful dissent on behalf of free speech rights, Adderly v. Florida (1966).

Douglas’s best-known religion opinion is Zorach v. Clauson (1952), in which he sustained a release-time program and wrote that “we are a religious people whose institutions presuppose a Supreme Being.” Yet Zorach was an aberration, a throwback to his 1940s views. Subsequently his Establishment Clause views hardened to where he was the sole dissenter against tax exemptions for church property in Walz v. Tax Commission (1969). His free-exercise opinions, like his speech opinions, also moved to absolutism as his career continued.

During Douglas’s tenure the Court dismantled the South’s policy of segregation, and Douglas was always with or a step ahead of the Court in the process. He was one of the four justices ready to overrule the separate but equal principle after the first oral argument in Brown v. Board of Education (1954); his expansive views of state action in Bell v. Maryland (1964) would have prohibited racial discrimination by private businesses without the need for the Civil Rights Act of 1964; he eventually rejected, in Keyes v. Denver School District No. 1 (1973), the de facto–de jure distinction in public education and believed that all racially isolated schools, no matter what their cause, should be legally desegregated.

Douglas was also at the forefront of the Warren Court’s criminal procedure changes. Not until Clarence Thomas would another twentieth-century justice have the direct experiences with poverty that Douglas had, and Douglas, especially from the 1950s on, was keenly aware of the willingness of governments to impose law on the less fortunate. He tried to equalize the law as best as possible. In the 1940s he supported Black’s position that the Fourteenth Amendment “incorporated” the entire Bill of Rights; see Adamson v. California (1949). In the 1960s he saw that position become law with respect to all the significant guarantees. Unlike some of his brethren, he refused to water down provisions of the Bill of Rights, such as the requirement of unanimous juries, once they became applicable to the states, as in Apodaca v. Oregon (1972).

One could argue that Douglas’s liberal absolutism was a matter of degree apart from the views of his Warren Court brethren. But his views of the relation of humans to the environment were of a whole different order. From his vision of Mount Adams at his father’s funeral to hiking in the Cascades to conquer polio and fears, the mountains became a sacred place for him. He could take only so many months in urban America without needing to flee to the wilderness to replenish himself. It saved him; he would save it. In 1954 he organized a hike along the Chesapeake and Ohio Canal towpath to create publicity against a proposed parkway. He succeeded, and today the C&O, controlled by the National Park Service, is officially dedicated to William O. Douglas.

The C&O hike was the first of many to protect places of solitude, beaches, forests, white water rivers. Years before environmentalism became fashionable Douglas was developing strategies to protect the wilderness. In his books, passages describing nature have an unmistakable spiritual quality. Civilization is artificial; the wilderness is real. Civilization brings out the worst in humans; wilderness the best: equality, self-reliance, respect, community. In his attempts to protect nature as best he could, Douglas also tried to craft relevant legal doctrine. In Sierra Club v. Morton (1972), he argued that any natural site should have “standing” in its own right and that any person should be able to sue to protect such a site. In Udall v. Federal Power Commission (1967), he maintained that an expert agency like the FPC is not owed deference by the courts if it proceeds with an action based on an inadequate examination of the facts and a failure to consult significant interested parties (in this instance, the secretary of the interior, who sought to block a dam on the Snake River). And he drew upon the National Environmental Policy Act of 1970 to require additional studies before actions affecting natural sites could be pursued.

Douglas advocated a Wilderness Bill of Rights because he felt the existing protections were insufficient. He knew that clean water and clean air were not inexhaustible; he also understood that neither was liberty. As he entered his third decade of service, he began looking for ways to refocus the Constitution to better protect the needs of late twentieth-century Americans. From a man initially concerned with corporate power came the view that the function of the Bill of Rights was to take government off the backs of the people. Ironically, this required him to revisit and distinguish his participation in the Court’s eradication of Lochner because what he believed must be done required substituting judicial views of wise policy for those of legislatures. In Griswold v. Connecticut (1965), which laid the foundations for Roe v. Wade (1973), he found a right of marital privacy in “penumbras, formed from emanations,” of the specific guarantees of the Constitution. To many, including Black, the constitutional right to use contraceptives looked like the rejected natural law philosophy of Lochner. Similarly in Harper v. Virginia Board of Elections (1966) he found state poll taxes unconstitutional because, despite their long lineage, times change. Then in Papachristou v. City of Jacksonville (1972), concerning a challenge to a vagrancy law, Douglas enshrined a right to wander and loaf because such conduct can promote independence, creativity, and self-confidence.

Papachristou extolled the “honored right to be a nonconformist and the right to deny submissiveness.” These were rights Douglas personally embodied. He stated that “the only soul I have to save is my own” and acted on that. He was never a good father or, until his fourth marriage, a good husband. In 1953 he was divorced from his first wife Mildred; a year later he was remarried, to Mercedes Davidson. They were divorced in 1963. Douglas had already lined up his third wife, Joan Martin, some forty years his junior, whom he married the same year. That marriage lasted but two years, and before its end Douglas was eying Cathleen Heffernan, also some forty years his junior, whom he wed in 1966.

His latter two marriages were public scandals in Washington, D.C., and the two young brides, especially Cathy, were socially ostracized. Douglas was becoming an icon; to a generation in college that believed that no one over thirty could be trusted, Douglas was a hero. An outspoken critic of Vietnam and other Johnson policies, his 1969 book, Points of Rebellion, was a direct and unsophisticated appeal to the nation’s youth to seek new paths. Its reference to the “establishment” as the “new George III” and to the time-honored right of revolution were unjudicial and inflamatory in the opinion of the new Republican administration. In the spring of 1970, in the confluence of the demise of the Warren Court, the forced resignation of Justice Abe Fortas, and the failed nominations of Clement Haynsworth and G. Harrold Carswell, President Richard Nixon had House Republican leader Gerald Ford spearhead an effort to impeach Douglas. The goal was to remove the premier liberal from the Court and add yet another vacancy for Nixon to fill, therby speeding its transformation into conservative dominance. Ironically, Douglas, bored with the Court and having the ability to seek other outlets, had been planning to retire. But it was never in his nature to succumb to pressure. Although Ford offered some specific charges against Douglas, the real reason for the impeachment effort was the belief that Douglas was radically out of step with the nation and therefore unfit for the Court. Like all previous attacks on the independence of the judiciary, this one ended in failure. In December 1970 a subcommittee of the House Judiciary Committee ruled there were no grounds for impeachment, and the matter died.

On 31 December 1974 Douglas suffered a stroke. Partially paralyzed, he never recovered his full faculties, though he lingered on the Court until November 1975, when he retired, having served thirty-six and a half years, the longest tenure in the Court’s history. He died in Washington, D.C.

It is difficult to evaluate Douglas because the normal criteria do not measure the man. From the traditional doctrinal perspective, he left little legacy besides sloppiness. His commitment to legal realism and his disdain for Frankfurter and his academic disciples resulted in Douglas’s belief that judicial opinions were little more than “Harvard fly paper.” The legal community has cast a strong dissent to that position. Yet as a jurist, when everyone else was cowering from hysteria, he stood tall. This is an unappreciated trait despite a generally held professional belief in an independent judiciary. Furthermore, unlike most late-twentieth-century justices, Douglas had a life both before and during his tenure. Although he was appointed at an exceptionally early age, he was already an important figure and would have been so without judicial service. Again, unlike other justices, he managed a second career, environmentalism, for which he might be significant without judicial service. Yet traditional criteria see this as incompatible with judicial norms. Only time will give perspective on this extraordinary individual; he broke the mold.

Bibliography

Douglas’s voluminous papers are collected in the Library of Congress. Vern Countryman, The Douglas Opinions (1977), provides an edited selection of his judicial productivity, while Melvin Urofsky and Philip E. Urofsky do the same for his voluminous correspondence in The Douglas Letters (1987). Douglas wrote two volumes of autobiography, Go, East Young Man (1974) and The Court Years (1980). The latter volume is highly unreliable. The best single volume biography is James Simon, Independent Journey (1980), and the best analyses of his career are in Stephen Wasby, ed., “He Shall Not Pass This Way Again” (1990), which also contains a superb bibliography and a list of all of Douglas’s opinions.