It is one o the tragedies of our time that William O. Douglas will not be the next President of the United States. The next President of the United States–or so every sign seems to point–will be Dwight D. Eisenhower. And the tragedy is highlighted by even a quick comparison of the political characters of the General and the Justice–of the man who will likely be President and the man who ought to be.
The military man has long worn, like Joseph, a coat of many colors. Pour years ago a group of left-of-Truman liberals wanted to draft him for the Democratic nomination; only a few months ago, a Democratic President offered him the succession on a platter; today, his Republicanism suddenly rampant, he is jubilantly backed by assorted G. O. P. stalwarts, some of whom, on domestic issues, are well to the right of Robert Taft. Indeed the General has been so cautiously noncommittal, even when he has been free to speak his political piece, that a recent series of newspaper articles, purporting to reveal his views, made headlines with such stuff as his support of democracy, free enterprise, and sound fiscal policy and his opposition to communism, corruption in government–and, presumably, the man-eating shark. An extremely able G. H. Q. administrator with a knack for negotiation and an engaging grin, Eisenhower has approached the White House with a crablike coyness as the hero whom nobody, not even Taft, hates and nobody really knows.
By striking contrast, the civilian government servant has long and courageously flaunted his political colors, hate them who will. There is no doubt where Justice Douglas stands on every important issue of our day. In his Supreme Court opinions–dishearteningly often in dissent–and increasingly in extracurricular writings and speeches, he has etched out a clear and militantly liberal political credo such as no other man high in public life can match.
Conservative and convention-bound critics of Douglas’s forthright off-the-court expressions have accused him of subtly campaigning for the Presidency from the bench. The charge is doubly absurd. Again unlike Eisenhower, Douglas not only has flatly refused to run for the office but has sharply discouraged all admirers, politically potent and amateur alike, who have asked his tacit permission to stage a campaign in which he need take no part. More significantly still, and once more in telling contrast to the amiable General, the views which Douglas has been stating so strongly–in particular, his ringing defense of civil liberties at home against the onslaughts of the proliferating witch-hunt and his castigation of a military-minded foreign policy that would try to stop communism with guns (and dollars) alone–are precisely the views that no elective office-seeker in his right mind would utter in the face of the conform-or-else anti-communist atmosphere of the times.
Yet if American liberals had to choose today the two most crucial issues on which to stand and be counted, as a matter of fighting principle and to hell with political expediency, it would be hard to get away from the’ exact pair Douglas has chosen; the decline of freedom at home and the dependence on naked power abroad. Moreover, Douglas is the only man of national stature who has spoken out boldly, officially, and ex-officio against either of these deepening dangers, much less both.
Thus, a recent darling of the down-the-line Trumanites, the clean and correct and slightly sterile Governor Stevenson, is so undeviating a devotee of the Administration’s foreign policy and is so much more concerned, on the domestic front, about inflation and Washington bureaucracy than about the Bill of Rights that he might also be called, in his orthodox internationalism-plus-efficient-conservatism, a Democratic Dewey. The coon-capped Senator Kefauver, who hopes to sidle into the White House on a record of being opposed to corruption and crime, is soft on civil liberties as befits a border-state candidate and has yet to peep in mildest protest against our might-makes-right philosophy overseas. Senator Kerr, Senator Russell, Senator Douglas, Senator X-all of them blindly follow the Truman-Acheson foreign policy or worse; not one of them has talked up for freedom of speech and thought against what justice Douglas calls “the black silence of fear” that overhangs the nation.
Next to these men with their mild, safe brands of party-line liberalism, the Justice looms up like a giant For thirteen years now, on the Supreme Court, he has teamed with Justice Black to uphold the highest Holmes-Brandeis tradition of progressive judicial statesmanship. Unlike a few of his brethren, he has not lost in the easy security of the bench his strong sense of outrage at injustice.
He is frankly sympathetic to labor, to consumers, to farmers, to small business men, to small investors, and he would read and build the law, wherever possible, in their behalf; he is frankly suspicious of powerful individuals and corporate colossi who would use the law to circumvent regulation, to escape taxes, to further in myriad ways the advantage of the economically strong over the economically weak. Like Justice Brandeis, to whose seat he succeeded-and who remarked at the time, “I wanted you to be here in my place”–Douglas has been the court’s top financial expert, unfooled by even the fanciest attempts at dollars-and-cents skulduggery. Impatient with petty legalisms and fusty generalities, his no-nonsense opinions, in majority or dissent, invariably reveal “an instinct for the jugular.”
Of late, Douglas’s judicial fire has been turned more and -more frequently and forcefully against -the narrowing, in the name of “national security,” of the First (and Fourteenth) Amendment’s freedoms. His scornful dissent in the Dennis case last term–against the Smith-act conviction of the eleven Communists whom he dubbed “miserable merchants of unwanted ideas”–ranks with the great freedom-of-speech dissents of the past. His shocked protest against the court’s recent benedictions of guilt-by-association, in upholding New York’s infamous Feinberg law, is as eloquent a defense of academic freedom as has ever been penned.
It is undoubtedly because his (and Justice Black’s) judicial battle to save our civil liberties is a losing legal cause today-thanks to the unconcern mixed with cowardice of the Trurnan-Vinson court–that Douglas has carried his fight to a wider front. Through articles and speeches he has made himself the nation’s foremost spokesman against “loyalty” laws, “loyalty” oaths, “loyalty” checks, “loyalty” programs, and all the apparatus which inevitably equates a frightened and stereotyped orthodoxy of thought with genuine loyalty. His faith in our fundamental freedoms is matched by his contempt for our native Communists, whose supposed threat to the nation he rates as absurd.
But no man in public life understands so well as Douglas the true threat of communism in other parts of the world. (“Bullets,” he has said, “stop armies but they do not kill ideas.”) His interest in Asia long predates the rather sudden concern of our policy-makers with that continent during the past decade. He was, for instance, one of the original backers of James Yen’s mass-education movement for China, and he still hopes to see it restored and spread throughout the whole of Asia, and Africa as well. He has spent his past three summers in rugged trips through the Near and Far East, getting down to the grass-roots, talking to the people as few foreigners have ever done. Out of these trips have come two books (one as yet unpublished) and articles with such titles as Why We Are Losing Asia.
Here again Douglas ha become the nation’s foremost advocate of a dynamic instead of a static foreign policy–of an approach that would actively steer the world’s underprivileged masses toward democracy, rather than resting content with attempted “containment” of communism. Almost two years before President Truman announced his Point Four plan, Douglas was publicly urging the export, throughout the world, of American technical skills and know-how, and American backing for health and education and land-reform programs–“to help other peoples to help themselves.” Today, having seen on the spot how Point Four assistance, like Marshall Plan money, is too regularly restricted to ruling cliques and rarely trickles down to the people, Douglas is strong for what he calls Point Five.
Point Five would be active United States encouragement and support of revolution by the Eastern masses against their ancient landlords. Point Five would line up the United States, in the spirit of ’76, in the camp of the peoples who are ripe and ready to throw off the economic subjugation of centuries. The seductive appeal of communism to such people, as Douglas knows first-hand, is its promise, however false, of land to own and no rent to pay and more food to eat. Such an appeal, says Douglas, can never be effectively countered by the military might, however necessary, and the dollar diplomacy, however free-handed, and the talk of democracy, however eloquent, on which the Truman-Acheson foreign policy stakes its all.
It is this sort of informed realism plus bold Idealism that sets Douglas far apart from the crowdpleasing, me-tooing Eisenhowers and Stevensons and Kefauvers, and that has given Douglas, throughout his career, the mark of greatness.
When he went to the- Supreme Court in 1939 at the age of forty–the youngest justice in more than a century–Douglas had quite a career behind him. Born in Minnesota, the son of a poor, itinerant Presbyterian preacher; reared in the state of Washington, where he helped support his widowed mother while working his way through school and college with a rag-tag succession of jobs that ranged from newsboy to berry-picker to window-washer to sheep-herder; graduated from Columbia Law School (after riding East on a freight-car to get there) number two in a class that included, much farther down in the rankings, a certain Thomas E. Dewey; rejecting the lure of a promising and lucrative Wall Street law practice to enter teaching–Douglas, aged thirty-two, his own LL.B. barely five years old, was named Sterling Professor of Law at Yale.
But Yale and teaching could not hold for long, despite Robert M. Hutchins’s description of him as “the nation’s outstanding law teacher,” the intellectual dynamo that Douglas was–and is. He was soon dividing his time between his classes and an exhaustive investigation of corporate reorganizations for the new-born SEC–two normally full-time jobs. The brilliance of his eventual report to the SEC led President Roosevelt to appoint him a Commissioner; the toughminded expertness of his work as Commissioner brought him elevation to the SEC chairmanship; the executive skill and courage he displayed as chairman, as in bringing the New York Stock Exchange to heel (he was rated by many as the New Deal’s finest administrator), was rewarded by appointment to the Supreme Court-all this within the space of less than three years.
That Douglas’s meteoric career could reach its zenith on the Supreme Court–that he would remain a justice for twenty-five or thirty years and then retire–is something that nobody who knew the man believed, with the possible exception of Douglas himself. Yet events ever since have pointed precisely, that way. When F. D. R. sounded him out for the vice-presidential nomination in 1940, Douglas made it clear he wanted to stay in his new judicial job, and Henry Wallace got the nod by default.
In 1944, a Roosevelt who may well have sensed he was close to death named Douglas first as his chosen running-mate and presumable successor in the famous note he sent to the Chicago convention; but Hannegan and Hillman and Flynn, three bosses who feared Douglas’s incorruptible independence, contrived–with the help of Douglas’s own abstention from the arena to put across F. D. R.’s second choice instead. The bosses were not afraid of Harry Truman.
In 1948 it was Truman himself, impressed by the spontaneous show of strength for Douglas at Philadelphia, who begged the justice to accept the other spot on the Democratic ticket. Nor was Douglas’s firm refusal based, as has been reported, on a why-bother feeling that Truman could not win; rather, it was founded on a conviction that he could serve both the country and the cause of liberalism better on the court than in the Throttlebottom job of presiding officer of the Senate.
Thus Justice Douglas, three times in a row, could have made himself the Democratic heir apparent had he so much as lifted an assenting finger in his own behalf. That finger remains unlifted still, even though the available prize this year is first, not second, place on the party ticket.
And if the Democratic nomination for President goes to somebody like Stevenson or Kefauver, or to some other comparatively inoffensive comparative second-rater, the Presidency will probably go to the equally inoffensive General Eisenhower. Meanwhile, the man who has never failed or hesitated to put principle above politics, who his spoken out in strong and splendid solitude on the big issues of our time, whose insight and courage and indigenous American liberalism are unmatched in public life today, will remain, for at least another four years, Mr. Justice Douglas.