The Tragedy of William O. Douglas
William O. Douglas was a judicial record-setter. He sat on the US Supreme Court for more than thirty-five years (1939-75), longer than any other Justice, and during those years he wrote some thirty books in addition to his legal opinions. Present-day commentators may frown at Justice Clarence Thomas penning an autobiography for which HarperCollins is paying him a $1.5 million advance, and at how Chief Justice William Rehnquist and Justice Sandra Day O'Connor likewise have sufficient spare time to keep publishing popular histories and memoirs, but Douglas's record for sidebar productivity is unlikely ever to be topped. Ditto for another, less commendable Douglas achievement: four marriages and three divorces, spanning the thirteen years from 1953 through 1966.
Unfortunately for Douglas, however, most legal historians now see his judicial track record as having been no better than his domestic one: a huge disappointment. Only 40 years old when President Franklin Roosevelt named him to the Supreme Court in March 1939, Douglas could very well have revolutionized constitutional protection for individual rights and liberties in a permanently expansive manner. A crusading liberal as chairman of the Securities and Exchange Commission from 1937 to 1939, and before that "the most outstanding law professor in the nation," according to University of Chicago president Robert Maynard Hutchins, Douglas demonstrated that he had both the ability and the energy to become the dominant intellect on the Supreme Court.
But it was not to be. Leadership on the Court throughout the 1940s and '50s instead devolved into an unproductive tussle between the conservative Felix Frankfurter and the simple-minded Hugo Black [see Garrow, "Doing Justice," February 27, 1995], with Douglas often following in Black's footsteps. During the 1950s, the appointments of Chief Justice Earl Warren (1953) and Justice William J. Brennan Jr. (1956) added new leadership to the Court, but only in 1962, when Arthur Goldberg succeeded the retiring Frankfurter, did a solidly liberal majority finally take shape. The following six years marked the real heyday of the Warren Court, yet it was the Chief Justice and Brennan who led the progressive charge, not Douglas or Black. Brennan remained the liberal helmsman even after Nixon nominee Warren Burger replaced Warren as Chief Justice in 1969, but Douglas, unlike the increasingly conservative Black, remained a consistently liberal vote until a disabling stroke forced his retirement in 1975.
So why did Douglas not become the Court's progressive pacesetter? How he voted as a Justice wasn't the problem. As one of his former law clerks, Lucas 'Scot' Powe, correctly observes, Douglas "stood for the individual as no other justice ever has." Indeed, "the intensity of his fear of government, with its ability to oppress individuals in body and spirit, was genuine and unmatched," Powe adds. Yet the written opinions Douglas filed in support of his usually commendable votes were so hastily written that "they are easy to ignore," Powe admits. "For those of us who think Douglas was correct in his results and instincts, this is too bad."
Most of Douglas's other clerks concur with Powe. Steven Duke, like Powe now a prominent law professor, allows that Douglas's "published opinions often read like rough drafts," which is not surprising since "many were drafted in twenty minutes" and sent to the printer without meaningful revision. The conclusion that Douglas's all-important opinions were often "superficial or just plain sloppy" was likewise articulated in the first comprehensive biography of him, James Simon's impressive Independent Journey, published in 1980. Written before the opening of the huge collection of Douglas's private papers and Court files at the Library of Congress, Simon's volume nonetheless won widespread praise. Douglas's longtime literary assistant, Dagmar Hamilton, said Independent Journey was "by far the best single book yet written about the Justice" and "probably will remain so for a long time."
Sympathetic but far from uncritical, Simon described Douglas as a "shy" and "intensely private man" whose accounts of his own life were thoroughly undependable. As one colleague subsequently related, even Justice John Marshall Harlan, the Warren Court's gentlemanly conservative, once teased Douglas by asserting that "You've told that story so often, you're beginning to believe it." Simon buttressed his portrait with some very frank interviews: Douglas's son, Bill Jr., described his father's behavior toward him and his sister Millie as so cold and hostile that at times "Dad was scary." Mercedes Douglas Eicholz, Douglas's second wife, characterized her ex-husband as "totally insecure."
But was Douglas's disappointingly deficient judicial performance the result of his personal shortcomings? The noted legal theorist Ronald Dworkin addressed that question in 1981--"How could he have been so unlikable a man? Why did he make so little impact on constitutional law?"--and answered "no." True, Douglas's opinions offer very little in the way of "a developed and general constitutional philosophy," Dworkin noted, but many of Douglas's most substantively important decisions, ranging from Skinner v. Oklahoma (1942), voiding punitive sterilization, to the famous Griswold v. Connecticut (1965), which decriminalized the use of contraceptives, were grounded in the "idea that individuals have certain moral rights against their government that are prior to all law including the Constitution." Yet Douglas "only mentioned, and never elaborated or defended, this theory of individual pre-legal rights," or what is often loosely called "natural law," Dworkin observed. Douglas's failing, Dworkin concluded, was that while he indeed believed deeply in these fundamental individual rights, he also believed that this was simply "a matter of his own emotional biases" rather than a universal truth of which he should do his utmost to convince others. Unlike both Frankfurter and Black, who proselytized their decidedly imperfect constitutional visions most energetically, Douglas felt no commitment whatsoever to advance, rather than simply live out, his own far more progressive vision. If Douglas had been willing to meet the "minimal intellectual responsibilities" of a Justice who believed in fundamental individual rights, Dworkin concluded, "he would have achieved a great deal more of lasting importance than he did."
Against this background of commentary and interpretation comes Bruce Allen Murphy's long-awaited life of Douglas, Wild Bill, a book that Murphy has worked on for almost fifteen years and that at one point in typescript, he tells his readers, reached a length of 2,700 pages. Two decades ago Murphy made his name with The Brandeis/Frankfurter Connection (1982), an account of those two Justices' off-the-bench political activities that drew wide attention, and some criticism, from their admirers. In 1988 Murphy published Fortas: The Rise and Ruin of a Supreme Court Justice, a superbly impressive study of how Justice Abe Fortas's intimate political relationship with President Lyndon Johnson, plus some amazingly unwise financial entanglements, led to his forced resignation from the Court in 1969.