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.”