Douglas, William Orville

Douglas, William Orville (b. Maine, Minn., 16 Oct. 1898; d. Washington, D.C., 19 Jan. 1980; interred Arlington National Cemetery, Arlington, Va.), associate justice, 1939–1975. Raised in straitened circumstances and afflicted by polio in youth, Douglas worked his way through college and law school, quickly became a distinguished legal scholar, was named third chairman of the Securities and Exchange Commission (SEC), and then, as associate justice, served longer than any other member in the history of the Supreme Court. A rugged outdoorsman and individualist who delighted, especially in later years, in flouting convention, Douglas became a spokesman for personal freedom on and off the Court. Unlike Hugo L. Black, Felix Frankfurter, or William J. Brennan among his contemporaries, Douglas left little theoretical legacy after his retirement but is remembered, with both affection and anger, as a symbol of the constitutional values he came to espouse (see Judicial Activism).

Early Career

Douglas was born in Minnesota but spent most of his childhood in or near Yakima, Washington. His father, a Presbyterian home minister, died when Douglas was six and left his family virtually penniless. As therapy for polio, Douglas took to taking solitary hikes in the foothills of the Cascades, which he later reported to be the source of his lifelong love of the outdoors as well as of his devotion to solitude. He worked his way through Whitman College, where poverty forced him to live in a tent one term. After graduating from Whitman in 1920 and teaching school for two years, he “hopped a freight and rode east,” as he later recalled (with some embellishment), to attend Columbia Law School, from which he graduated near the top of his class after working almost full‐time tutoring and doing odd jobs.

He coveted a clerkship with Associate Justice Harlan Fiske Stone, which customarily went to a top Columbia graduate, and when another graduate was selected, Douglas settled uneasily for a Wall Street law firm job that he later claimed to have hated. After two years at what is now Cravath, Swaine & Moore, Douglas left Wall Street to teach, first at Columbia Law School (1927–1929) and then, after a faculty rift over selection of Columbia's new dean, at Yale (1929–1934), where he became one of that law school's youngest chaired professors. His specialty was corporate law, including agency, bankruptcy, and reorganization. Although never closely identified with the American legal realist movement, which then flourished at both Columbia and Yale, Douglas was strongly influenced by its leading figures. He came to see legal doctrines not as autonomous but as devices that could be manipulated for social good or ill. Always restless, Douglas, like several prominent legal scholars, went to Washington to work in the New Deal, and he soon became a member (1936) and then chairman (1937) of the SEC, where he pressed for reform and battled the governors of the New York Stock Exchange over its operation. All the while, he developed close friendships—galvanized, he said, at poker games—within the Roosevelt administration and its inner circle, especially with Harold Ickes, the secretary of the interior.

Service on the Court

When Louis D. Brandeis retired as associate justice in February 1939, President Franklin D. Roosevelt made clear that he wished to appoint a Westerner but that he viewed Douglas, who had been mentioned as a possible candidate, as an Easterner from Yale. While friends, especially Jerome Frank and Thomas Corcoran, lined up Western political support, Douglas privately curried favor with influential political insiders. Then, just as his chances rose, his loyalty to the New Deal became suspect, so he made a fiery speech condemning the financial community and confirming his reformist brand of New Dealism. Within a week, Roosevelt offered Brandeis's seat to Douglas, and he was confirmed 4 April 1939 by a 62 to 4 vote (with the four dissenters labeling him a reactionary tool of Wall Street). At forty‐one, Douglas was the second youngest Supreme Court appointee in history and the youngest in 128 years; only Joseph Story, at thirty‐two, was younger.

The Supreme Court that Douglas joined was in transition, both personally and philosophically. Black, Stanley Reed, and Frankfurter had all been appointed after 1937, so Douglas—with the holdover Stone—provided a solidly pro–New Deal outlook. Over the next two years, during which three more Roosevelt appointees were added, the Court consolidated the post–1937 judicial imprimatur on the remaining New Deal programs that were in litigation. Black and Douglas played central roles, providing arguments for sustaining or interpretatively expanding late New Deal legislation, especially in the areas of labor law and control of markets (see Property Rights).

Despite his later reputation as a civil libertarian, Douglas's most important and enduring work during World War II concerned the regulation of business. His greatest achievements, still essentially undisturbed, are FPC v. Hope Natural Gas (1944), which established standards for reviewing agency rate‐making, and United States v. Socony‐Vacuum Oil Co. (1940), which held that a combination to fix prices was illegal per se without further inquiry into the reasonableness of the activity. Although Douglas did not coin the “per se” test, he firmly established its authority and permanently changed antitrust analysis of price fixing. Perhaps his most pervasive influence was in the administration of bankruptcy law, where he wrote definitive opinions on most aspects of the field. Douglas explained his judicial philosophy in business cases as a function of his predecessor's views, and many of his opinions quote Brandeis's opinions and nonjudicial works. In later life he would also trace the origins of his views to Thorstein Veblen and even to an influential preparatory school teacher, but, fully formed, his theoretical outlook was entirely his own.

During World War II, liberal members of the Court, particularly Black and Douglas, were caught between clashing symbols: While seeking to protect civil liberties in increasingly dark times, they also wished to support the war effort of the president who appointed them. Both justices initially supported compulsory flag‐salute laws (Minersville School District v. Gobitis, 1940), quickly repented publicly (Jones v. Opelika, 1942), and enthusiastically joined reversal of the first decision in West Virginia v. Barnette (1943). Both dissented from a highly restrictive reading of treason law, and Douglas filed a jingoistic dissent (Cramer v. United States, 1945). Both supported the constitutionality of the exclusion of Japanese from the West Coast during wartime, with Black speaking for the Court and Douglas concurring—although there is evidence that Douglas's vote vacillated until almost the last minute (Korematsu v. United States, 1944).

After the war, Black and Douglas found their voice and began to write opinion after opinion upholding civil liberties claims, particularly of free speech. Douglas's most controversial opinion for the Court at the time was Terminiello v. Chicago (1949), in which a speaker's conviction for insulting a hostile mob was reversed. To hold otherwise, he wrote, “would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups” (p. 5). Black and Douglas filed spirited dissents in Dennis v. United States, the 1951 decision upholding convictions of American Communist party members for conspiracy to teach and advocate overthrow of the government.

In most cases, Douglas wrote or voted silently in support of theories developed and advanced by Black. Douglas's most famous civil liberties opinion for the Court was Griswold v. Connecticut (1965), in which he identified a constitutional right to privacy emanating from the “penumbras” of rights enshrined in the First, Third, Fourth, Fifth, and Ninth Amendments. Although the theory, in fact, owed much to Justice Brennan, Douglas was identified with the approach, which, critics remarked unkindly, revealed that his constitutional views were more shadow than substance.

Black dissented in Griswold and again two years later in Harper v. Virginia State Board of Elections, in which Douglas's opinion for the Court invalidated poll taxes. During much of Black's last decade on the Court, 1961–1971, the two former allies were in opposite camps as Black sought limiting principles for his theories and Douglas sought to extend his views to their logical conclusion. During the same period, Douglas's analytical habits came under sharper scholarly attack for their tendentiousness, especially in tax cases, or simply for sloppiness. Douglas, ever the rebel, seemed to relish the criticism and appeared to bait his antagonists—larding his opinions, for example, with quotations from Walt Whitman and Vachel Lindsay (Papachristou v. Jacksonville, 1972), or staking out the most extreme positions, such as claiming that trees have legal standing to bring lawsuits (Sierra Club v. Morton, 1972, dissent). Douglas's record, especially from the mid‐1960s onward, displays positions that often appear to be casual, even in areas that he obviously cared about. To take the most startling example, the author of Papachristou, which invalidated a vagrancy ordinance in lyrical terms, also wrote to uphold zoning ordinances preserving traditional lifestyles (Belle Terre v. Boraas, 1974). To the end of his career, many critics charged that Douglas too often took positions simply to be in the center of the action, with his last‐minute stay in 1953 of the Rosenbergs' execution representing the most distasteful incident of this kind.

Douglas's motivation in that case is not free from doubt, but it is clear that his personal style changed dramatically in the early 1950s, when he divorced his wife of twenty‐nine years and embarked on annual globe‐trotting expeditions that routinely led to popularly targeted books about his travels. He was remarried three times, the last time, when he was sixty‐six, to a woman of twenty‐two. The combination of his sensational private life, maverick views, and personalization of his ideology led in April 1970 to a call by then House Minority Leader Gerald R. Ford for Douglas's impeachment. His puckishness temporarily suppressed, Douglas mounted a feverish defense, and the charges were rejected eight months later by a House judiciary subcommittee. Vindicated, Douglas reverted to form.

On 31 December 1974, Douglas suffered a debilitating stroke. He was partially paralyzed and never recovered his full capacities. He was absent for much of the rest of that Supreme Court term, and though he returned to the Court the following term, he was at far less than full strength. On 12 November 1975, he submitted a letter of retirement to President Ford after serving longer (by more than two years) than any other justice in history.

Legacy

Unlike Black and Frankfurter, who left competing theoretical legacies, or Brennan, who provided creative doctrinal dexterity, Douglas's intellectual legacy as a justice is slight. While he was sitting, Douglas's plain eloquence supported the causes of the day but now seems time‐bound, just as his voluminous occasional writing—more than thirty books and hundreds of articles—seems ephemeral.

Douglas's historical significance seems to rest on his symbolism as the personification of individualism and on his advocacy for the powerless. Yet the symbol is muddied by his own paradoxical complexity: His record is riddled with contradiction, both substantively and personally (the great humanitarian was notorious for abusing staff and for indulging his conceits). Part of the tension may have been due to his restiveness on the Court, which could not contain his vast energy and which provided less of a forum than he sometimes wished. He was a plausible vice presidential candidate in 1944 and flirted with a wildcat run for the Democratic presidential nomination in 1948. After his national political aspirations were finally foreclosed in 1948, he devoted more of his time to nonjudicial pursuits, which were aimed at reaching a wide audience interested in both legal and nonlegal—especially environmental—issues.

Douglas allowed himself to become a hero to professionals and laypeople alike, and at times even appeared to cultivate the role. He wished to be remembered for his faith in the individual, in the Constitution, and in the sanctity of the environment. His lasting monument, which touched him deeply, was designation by Congress of the parkland along the C & O Canal, a favorite walking trail in Washington state, as the William O. Douglas National Park.

See also History of the Court: The Depression and the Rise of Legal Liberalism; History of the Court: Rights Consciousness in Contemporary Society.

Bibliography

Vernon L. Countryman , The Judicial Record of Justice William O. Douglas (1974).
William O. Douglas , Go East, Young Man (1974).
William O. Douglas , The Court Years, 1939–1975 (1980).
James F. Simon , Independent Journey (1980).
Melvin I. Urofsky, ed., The Douglas Letters (1987).
Bruce Allen Murphy , Wild Bill: The Legend and Life of William O. Douglas (2003).

Dennis J. Hutchinson