Will Douglas Quit?

On Monday morning, Jan. 6, less than a week after William O. Douglas had suffered a stroke, the eight other Justices met sadly in the Supreme Court building. Personal reactions aside, they were faced with serious problems posed by Douglas' absence. The Justices decided to delay hearing arguments on five cases. Each one was picked not so much for its importance, but because without Douglas the others feared a tie vote that would render high-court consideration meaningless; it would simply leave a lower-court decision in effect.

This week the court will begin hearing four of those cases instead of waiting for the senior Justice's return. The change in plans came when Douglas' colleagues learned that, although he is now on the "satisfactory" list at Walter Reed Army Medical Center, his recovery has been slower than expected. He will be off the bench until at least March, and perhaps a great deal longer.

"It was decided to let the chips fall where they may," said a court expert. Tie votes "are not a good practice, but it's the best the court can do under the circumstances." In the past two weeks Douglas has been able to spend one to three hours a day with his secretary, working on cases that were argued before he was hospitalized and on some routine new work. But he will not participate in any new cases for the time being. Nor will he handle all the hundreds of in forma pauperis petitions that many prisoners and indigents address personally to him--now often with the request that they be forwarded to the hospital.

Doctors believe that the stroke did not affect Douglas' intellect. His vision, temporarily impaired, is now back to normal, and he reads mail his wife Cathleen, 31, brings daily. His speech is improving markedly, though there are still traces of slurring. A slight drooping of the left side of his face persists. His left arm has responded somewhat to whirlpool baths and manipulation therapy, but it is still not usable (Douglas is right-handed). Worse, his left leg shows few signs of response. TIME has learned that his physicians now think it possible that the great outdoorsman will never walk again.

Iron Will. Associates remember that in 1949, when his horse fell on him, crushing 23 of his 24 ribs, Douglas was undaunted: he was back on the bench six months later. In childhood he confounded doctors' expectations that his polio-stricken legs would forever be useless. In addition, Douglas knows that a Ford-nominated successor might well tip the court into pronounced conservativism, a result that would seem a disaster to the old liberal.

Nonetheless, the longest-sitting Justice in Supreme Court history is 76, and his physical handicaps are clearly greater than originally thought. The court is now prepared to settle in and operate without Douglas until he determines whether to return or retire. "I've known Douglas a long time," says one friend. "He's got an iron will and may never quit. But he's also very proud, and might find it difficult to carry on when he's obviously not the man he once was--when he can't walk onto the bench on his own power."

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