The Evergreen Liberal

William O. Douglas: 1898-1980

William Orville Douglas liked to say that he could easily do his job as a Justice of the U.S. Supreme Court in four days a week. That sounds arrogant, and Douglas was, but he was also brilliant, and he did not waste time making up his mind. The purpose of the U.S. Constitution, he stated with characteristic bluntness, "is to keep the Government off the backs of the people." Widely criticized for trying to impose his own liberal political views on the law, he often found himself in dissent during his nearly 37 years on the court, the longest term ever served by a Justice. Some saw him as a radical who threatened to wreck the system. He was in fact an evergreen liberal devoted to preserving the system by making it more humane. When he died last week at 81, he left a bold legacy of uncompromising devotion to the rights of individuals.

Pornographic movies, political protest, the Pentagon papers--in his view, they were all protected by the First Amendment. Dissenting in 1951 from the conviction of Communist Party leaders for advocating the overthrow of the Government, Douglas wrote: "Free speech--the glory of our system of Government--should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent."

Douglas was suspicious of the coercive power of Government. He anticipated the Miranda decision of 1966 by arguing, usually in dissent, that the criminally accused should have immediate access to a lawyer and the right to remain silent after arrest. He voted against letting the state use evidence obtained by "unreasonable search and seizure." Privacy was almost an obsession with him; in 1973 he said he was "morally certain" that the court's conference room had been bugged. In a famous 1965 decision striking down a Connecticut law that banned the use of contraceptives, Douglas stated that whether or not one uses contraceptives is a private matter and that a right to privacy is implicit in the Constitution. No friend of the IRS, he consistently used the Bill of Rights to curtail the reach of the taxman by protecting private financial records from Government scrutiny.

By keeping the Government off the backs of the people, Douglas did not mean the people who run Big Business. He was a classic New Deal liberal. As chairman of the SEC from 1937 to 1939, he responded with a resounding "Hooey!" to stock-market leaders who insisted they could regulate themselves. Appointed to the Supreme Court in 1939 by President Franklin Roosevelt, Douglas brought with him a thorough knowledge of corporate finance that he later used to shape many little-known but far-reaching decisions affecting the Government's power to regulate the economy.

Douglas had a way of cutting straight through legalisms to tackle practical problems. In decisions like those in the desegregation and one-man, one-vote cases, Douglas and other liberal activists on the Warren court discarded limiting precedents and gave real meaning to the equal protection and due process clauses of the 14th Amendment. "He did not write for the law school professors," remarked one of his admiring clerks; law professors, in fact, scolded him for sloppiness and sometimes for indifference to law in drafting his opinions. Douglas was also criticized by his own colleague Justice Felix Frankfurter for disregarding the procedural boundaries on the court's power. In addition, Frankfurter was furious with Douglas, a potential vice-presidential candidate in 1944 and 1948, for continuing to hold political ambitions while he was serving on the court.

Douglas' fierce individuality and his support of the little man grew out of a boyhood of poverty in Yakima, Wash. To help support his family, he labored as a field hand alongside migrant workers; he climbed mountains to rebuild legs weakened by polio. It was on these hikes that Douglas developed a love for the wilderness that he would later celebrate with dozens of books on travel and wildlife. Throughout his career, he would flee the U.S. capital to return to the Western mountains or explore remote areas of the world from the high Himalayas to the Dead Sea.

But as a young man, his ambition to become a lawyer led him to New York City. In 1922, at 24, Douglas boarded a freight train to shepherd 2,000 sheep East. He graduated three years later from Columbia Law School and migrated downtown to a Wall Street law firm.

When Douglas was nominated to the Supreme Court after teaching at Columbia and Yale and running the SEC, his only opposition came from Senators who, astonishingly, thought he might be too conservative. Congress soon | learned otherwise. Three times Congressmen wanted to impeach him: in 1953, when he temporarily stayed the executions of Julius and Ethel Rosenberg for giving the U.S.S.R. atom bomb secrets; in 1966, when the thrice-divorced Douglas, then 67, married Cathleen Heffernan, then 23, and was accused by Kansas Republican Robert Dole of using "bad judgment from a matrimonial standpoint"; and in 1970, when House Minority Leader Gerald Ford accused Douglas of accepting a salary from the Parvin Foundation, which was set up by a man with links to Las Vegas gambling.

None of the impeachment efforts got very far, or deserved to. But in the '70s Douglas grew increasingly isolated from his own colleagues on the court. "Bill Douglas is positively embarrassed if anyone on the court agrees with him," said one. Douglas was proud of his lonely stands. Said he: "I haven't been much of a proselytizer on the court. I've got the theory that the only soul I had to save was my own." In late 1974 a stroke confined him to a wheelchair. His colleagues delayed any case that Douglas could decide with a tie-breaking vote, but Douglas refused to leave the bench. He was determined, he told a friend, to stay on the court until a Democratic President was elected who could appoint his successor. But his pain became so unbearable that he could no longer sit through oral arguments, and in November 1975 he reluctantly retired.

That did not mean he stopped working. Remaining in Washington, D.C., he wrote his as yet unpublished memoirs, which may reveal some of the still untold workings of the high court. They may also expose his acerbic views of other Justices over the years. But then, a book that speaks freely and frankly would be a fitting Douglas legacy.

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