The Tragedy of William O. Douglas

The Tragedy of William O. Douglas

William O. Douglas was a judicial record-setter.


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.

Dagmar Hamilton noted in a 1990 review that Murphy’s Fortas was “much more political than judicial” in its focus, with “a great deal more on his extra-judicial activities” than on Fortas’s Court work as a Justice. Wild Bill merits a similar characterization. Murphy offers a comprehensive account of Douglas’s early life, a highly detailed description of his incessant careerism as a young law professor and four full chapters on Douglas’s work at the SEC. Even after Douglas ascends to the High Court, Murphy’s most extensive treatments concern Douglas’s unsuccessful effort to become FDR’s 1944 vice-presidential running mate and Douglas’s 1948 rejection of the vice-presidential nomination from the man who had joined Roosevelt’s 1944 ticket, President Harry Truman.

To anyone who refreshes an acquaintance with Simon’s Independent Journey, there are fewer surprises in Wild Bill than Murphy’s publicists would like to acknowledge. Murphy does add substantially to Simon’s account of just how many out-and-out falsehoods mar Douglas’s own accounts of his early life. (Douglas published one autobiography in 1950, and the first volume of a second one in 1974.) Douglas did not suffer from polio as a child, nor did he live in a tent while an undergraduate at Whitman College in Washington State. While Wild Bill contends that Douglas’s ten weeks of service in the Students’ Army Training Corps at Whitman in late 1918 did not actually make him a “Private, U.S. Army,” as is recorded on his Arlington National Cemetery tombstone, the Washington Post, citing more extensive documentation than that used by Murphy, has recently (February 14) challenged Murphy’s presentation.

Douglas graduated from Columbia Law School in 1925 and became a junior professor there two years later, after several unsuccessful attempts at practicing law. He moved to Yale Law School in 1928 and remained there until he joined the SEC in 1934. His selection by FDR as the successor to retiring Justice Louis Brandeis owed as much to Douglas’s western roots as to his public visibility as SEC chairman, but Supreme Court nominations were decidedly simpler affairs in 1939 than they are today. The Senate Judiciary Committee’s hearing on Douglas took place just four days after the President’s announcement, and the session itself lasted a grand total of five minutes.

Murphy’s view that Douglas from the very outset of his judicial service was less interested in the work of the Supreme Court than in his own future political prospects goes a long way toward explaining, and justifying, Wild Bill‘s far more detailed treatment of Douglas’s presidential and vice-presidential flirtations than of the Court’s annual roster of important cases. To Murphy, Douglas’s narrow failure to be named as Roosevelt’s 1944 running mate was a defining experience and “helps to explain the rest of his life.”

Roosevelt himself was exceptionally coy, even with his closest political advisers, as to precisely whom he preferred as a 1944 running mate to replace outgoing Vice President Henry Wallace. Yet shortly before the decisive Democratic National Convention FDR gave the party chairman, an avid booster of Senator Harry Truman, a handwritten letter saying he would welcome the selection of either Truman or Douglas. Much mystery surrounded Roosevelt’s note, both at the time and for years thereafter, with some Douglas partisans suggesting that the letter had been doctored to show Roosevelt listing Truman first, rather than Douglas. Murphy concludes, after a painstaking examination, that no sleight of hand took place and that Roosevelt had indeed put Truman before Douglas; nonetheless, “Douglas lived the rest of his life believing that the names on this letter had been switched.” Douglas thus thought that not only had he, rather than Truman, been FDR’s first choice but also that were it not for the convention chicanery, he would have become President of the United States upon Roosevelt’s death in April 1945.

Murphy contends that Douglas “never got over” that 1944 experience, and that Douglas’s frustrated presidential ambitions contributed mightily to his less than half-hearted job performance on the Supreme Court in the years thereafter. Douglas and Truman’s mutual confidant, Washington lawyer Clark Clifford, endorsed Murphy’s view, explaining that such a narrow miss at the presidency “sort of takes some of the shine, I think, off the rest of your life.”

But Clifford also addressed the fundamental enigma of Douglas as well as anyone Murphy interviewed: “To me it seemed as if he was searching for something–something more–all of his life. But he never found it, and I never really knew what it was. I’m not sure even he knew what it was.”

Murphy’s own answer to that enigma is decisive: Once Douglas’s dream of the presidency dissipated (after the indecisive Justice refused to give up the financial security of his Supreme Court seat to accept Truman’s offer of the vice-presidential nomination in 1948), the pursuit of women younger and more attractive than his first wife, who was six years Douglas’s senior, became the recurring focus of his life.

Murphy stresses that “Douglas had always treated his family badly,” but that his behavior became progressively worse during the 1940s. His daughter, Millie, told Murphy that her father “never talked to us like [we were] people” and that “when he got angry at us, which was often over the slightest things, he would simply not speak to us for days on end.” Millie also added that “I didn’t like him very much because of the way he treated my mother,” and by early 1951 Douglas was in serious and open pursuit of Mercedes Davidson, a social acquaintance whom he wed in 1954.

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.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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