The Tragedy of William O. Douglas
Wild Bill details how increasingly heavy drinking went hand-in-hand with Douglas's sour disposition and nonstop marital escapades. Murphy's constant theme is that Douglas "was just plain bored as a Justice," that he felt "trapped forever" on the Supreme Court rather than occupying the Oval Office where he "rightfully belonged." Yet Wild Bill also makes indisputably clear that Douglas year in and year out worked fearsome hours in his office, even if a good portion of his time was devoted to churning out off-the-bench books rather than thoughtfully polished judicial opinions. His law clerks, like his children, found him to be a cold and standoffish man, and his two secretaries struggled to keep up with Douglas's pace. "If you hadn't stopped working, you wouldn't be tired," he once told an exhausted Fay Aull. "Work is energizing."
But Murphy, just as in his Fortas book, devotes surprisingly little attention to the High Court's actual case decisions. Brown v. Board of Education (1954), in which Douglas wanted to void school segregation from the very start of the Court's extended, two-year consideration of the issue, passes almost unmentioned. Even when Murphy does offer extended quotations from those Douglas opinions that merit attention, the seriatim presentation is so short on context that many readers may find themselves skimming over them like block quotes in a textbook. Anyone hungry for a rich, thorough and thoughtful survey of the important rulings of those years should turn to Lucas Powe's The Warren Court and American Politics (2000), a superb and highly readable book.
Douglas's behavior throughout the 1950s did not change in the 1960s, as reflected in Murphy's portrait. In 1961 Douglas began pursuing a young Allegheny College student, Joan Martin, who was writing her senior thesis on him, and once Martin moved to Washington the affair became public. "Other Justices at the time had mistresses," Douglas's utterly loyal Court messenger, Harry Datcher, told Murphy, "but they would employ them as secretaries or keep them away from the Court building. Douglas, though, did what he did in the open. He didn't give a damn what people thought of him."
A 1962-63 law clerk recalled Joan Martin once hiding in an office closet to avoid Mercedes, but the following summer the 64-year-old Douglas divorced Mercedes and married 23-year-old Joan. But Douglas's behavior toward women did not improve. One old Douglas friend remembered how Joan "just sat down and cried all night because he never paid any attention to her," and more than once Joan complained to a former Douglas clerk that "he beats me up all the time." Less than two years later Douglas dismissed Joan from his life, took up with an old Washington State girlfriend, Elena Leonardo, and then met a 22-year-old Oregon waitress, Cathleen Heffernan, who became his fourth wife in mid-1966.
Griswold v. Connecticut (1965), Douglas's "most famous opinion," with its oft-quoted paean to how marriage is "intimate to the degree of being sacred," was handed down just a few weeks before its author ditched young Joan. But Griswold reflected more than just personal dissonance, it also highlighted the imprecise and incomplete constitutional analysis that so many Douglas opinions featured. Douglas's result was inarguably correct; Hugo Black's contrary insistence that a state legislature could outlaw the use of all contraceptives if it so chose was just as foolishly contradictory of any constitutional guarantee of personal liberty in 1965 as it is today. But Douglas's assertion that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," was less an articulation of a nontextual right to privacy, a word the Constitution fails to cite, than an invitation to scholarly complaint and derision. Press reports assert that a warning sign mocking Douglas's Griswold language--"Please don't emanate in the penumbras"--hangs today in the Supreme Court chambers of Justice Clarence Thomas.
Douglas's final ten years on the bench were true to form. Justice Brennan later complained about "the slovenliness" of Douglas's writing "and the mistakes that he constantly made." Thurgood Marshall, who joined the Court in 1967, called Douglas "about as independent a cuss as I knew," and a 1968-69 law clerk described his boss as "a very unhappy man," someone who "wanted to be something other than what he was." When Douglas's first wife died in 1969 after a long illness, some time went by before he was even informed. "Neither my brother nor I felt the slightest inclination to tell him that Mother had died," his daughter Millie told Murphy.
Reviewing Wild Bill in The New Republic a few weeks ago, Circuit Court Judge Richard Posner splenetically denounced Douglas as "one of the most unwholesome figures in modern American political history." Offended by Douglas's abuse of both alcohol and women, Posner reproached Murphy for excusing "Douglas's flaws of character" and for an "uncritical" treatment of his "slipshod and slapdash" judicial performance. Posing much the same question that Ronald Dworkin addressed two decades ago about whether Douglas's professional deficiency was indeed the product of his personal shortcomings, Posner, unlike Dworkin, answered "yes." Did Douglas's substantive views preclude him from being a dedicated constitutional crusader, as Dworkin suggested? No, said Posner, it was simply "for reasons of temperament" that Douglas "could not buckle down and commit himself wholeheartedly to the Court."
Put this way, Dworkin's analysis of Douglas's judicial failing transcends Posner's emphasis on Douglas's personal imperfections. One of Douglas's longtime champions, former Yale professor Charles Reich, once conceded that his hero "had egregious personal flaws, but so what--he was a great man." But no, William O. Douglas was not a great man. He was a man of great ideals, but his career on the Supreme Court unfortunately represented only a witness to those ideals, rather than their actual attainment or realization. As Lucas Powe stated in 1990, Douglas, as "a man of action, not reflection," was "miscast in the judiciary." Yet notwithstanding the disappointing caliber of Douglas's Supreme Court career, he nonetheless remains a poignant archetype of how "even in the worst of times judges can actually stand up and demand we adhere to our ideals." If more present-day Justices and judges embraced William O. Douglas's ideals, constitutional liberties would be far safer than they are.