Sidney Zion celebrates the courage and independence of the late Supreme Court Justice William O. Douglas
There is a dream and a reality in America, and though they lie on the same bed they are never expected to kiss. The dream is Jimmy Stewart out of Frank Capra, and it says, Be True to Yourself. The reality is Sam Rayburn out of the World of Men, and it says, To Get Along, Go Along. As children we are instructed in the dream, as adults in the reality. We are never taught to forget the dream, but are asked instead to ignore the contradiction The end becomes a Rhinestone Mean: To get along with the dream, go along with the reality.
Bill Douglas treated the reality as dirt under his feet, and rode the dream straight to the top. That this made him a unique phenomenon is one of the more melancholy facts of the twentieth century. Surely nothing would have astonished and enraged the Framers more than that there was only one Bill Douglas — unless it is that there will probably never be another.
“I am really a pretty conservative fellow from the old school,” he said when FDR appointed him to the Court. The line was widely resurrected as irony when the stroke forced him to quit in 1975, after a record-breaking thirty-six years on the High Bench. Had he not, it was pointedly asked, become the most flamboyant liberal ever to sit there? It wasn’t Douglas who changed, but the meaning of words, which was distorted just as the Bill of Rights is today distorted by the Burger Court. The true meaning of conservative, the first dictionary definition, is a synonym for preservative. To conserve, to preserve, is to “keep from injury or destruction; defend from evil; protect; save.” What better way to describe William 0. Douglas’s glorious career on the Supreme Court than that it was fiercely dedicated against all the winds that blew to the conservation, the preservation, of the Constitution?
A conservative fellow from the old school. Philadelphia, class of 1776. Can’t you just see Bill there, trading ideas, swapping stories, passing the flask with Jefferson, Madison, Franklin, Sam Adams? Now picture Warren Burger, William Rehnquist and the rest ol’ that passel of statists who make up the “conservative” majority on today’s Court. Is there anyone out there who thinks they would have been allowed past the rope?
Other modern day Justices would have been more or less at home in Philadelphia–Louis Brandeis, Hugo Black, Earl Warren, William Brennan, Frank Murphy, Wiley Rutledge, Harlan Stone, John Harlan, maybe another handful. But Bill would have fit best. He could sit a horse, fish a stream, climb a mountain with any of the frontiersmen. And looked the part–perhaps more as he aged, when the weathered, ruggedly lined face added rather to the impression of strength than years. He looked so much like his pal Spencer Tracy that he was often mistaken for him; later, Casey Stengel was mistaken for him. He was a lanky six-footer, with direct, bluegray eyes that seemed always to be taking the measure of pose and pretense; in other words, a straightaway guy you could trust but better not cross.
The Founders would have been comfortable with his language: salty, to-the-jugular, often profane. Most important, they’d have loved his elegantly blunt definition of the Great Charter: “The Constitution was designed to take the government off the backs of the people.” Yet it was over that truism that the great legal war was fought during Douglas’s time on the Court. He won many battles, but at his death the result was in doubt, to say the least. Liberties thought by the Framers to have been immutably writ in the Bill of Rights are now in the hands of men who appear to believe that the essential purpose of the Supreme Court is to keep the people off the back of the government.
“His life, like his law, is free,” Yale law professor Fred Rodell wrote of Douglas. For both reasons he was often under siege. Once in the 1950s, while Douglas was fighting Harry Truman’s cold war (off the Court) and McCarthyism (on the Court), the great populist, Senator William Langer, put his arm around Bill and said: “Douglas, they have thrown several buckets of shit over you. But by God, none of it stuck. And l am proud.” They tried three times to impeach him: in 1953, when he stayed the execution of the Rosenbergs; in 1966, when he married 23-year-old Cathleen Heffernan, now his widow, and in 1970. The last was the most serious, because it followed Abe Fortas’s forced resignation from the Court and was thus part of the Nixon Gang’s furious effort to deal a quick deathblow to civil liberties. Gerald Ford, the House minority leader, led the egregious attack…and again, none of it stuck.
The academics continued to deny him the pantheon. In 1972, the Association of American Law Schools polled sixty-five people: law school deans, law professors and professors of history and political science. Asked to name the Hall of Fame of the Supreme Court, the professors came up with twelve stalwarts. Douglas wasn’t even close. Nor would he be close today. The rap is that he was “result-oriented.” A dozen years ago, I asked Douglas about it. His answer: “At the beginning of every term, I offer to bet the Brethren that I can call their votes on 98 percent of the cases. I get no takers. Once you’re here for a while it’s easy to predict how you’ll go, the issues aren’t that different. The academics call it ‘result-oriented’ when they don’t like the result. Otherwise it’s ‘scholarship.’ ”
In the event, they compliment him by their contempt. “I had my own dreams,” he once wrote, “and they were dependent solely on me, not on the whim or caprice of another.” They tell me he’s gone now. Well, as John O’Hara said when Gershwin got away, I don’t have to believe it if I don’t want to.