Justice Douglas is my favorite Supreme Court justice, ever. Justice Stevens is #2, and Justice Brandeis might be #3. (Brennan, Marshall, and Black might fill out a few other top slots.) That all 3 ran on the "same line" from 1916 - 2010 is noteworthy, and whatever reservations Douglas may have had about his likely successor, one hopes that Justice Stevens "made good" in the eyes of history (I believe that he has).
Wild Bill is a long book--511 pages to be exact. It was published in 2003 and took 15 years to research and write. Mr. Murphy did a fine job with his research and his prose, but one tends to wonder about editing. While Wild Bill will certainly make the "best books" list on Flying Houses, I fear that it did not capture a wide audience. Murphy states that he had a 2,700 page manuscript at one point, so boiling this down to 1/5 of that length must have involved some serious editorial wrangling. He had good help:
"My gratitude is extended to agent Robert Gottlieb, then at William Morris, for arranging the original book contract and for encouraging me to stick with the plan of doing a one-volume biography." (515)
Gottlieb is a legend in his own right, but it is quite apparent to me that few people in 2003 were still interested in reading multi-volume biographies. However I will not use this review as a sword against the modern world of literary agents. This is a book that deserved to be published (of course) and deserves to be called one of the greatest biographies in American history--primarily because its subject is one of the greatest heroes in American history, and the treatment of that subject is well considered.
For those that are unaware of Justice Douglas (or who did not read my review of his excellent work
Points of Rebellion) there are a number of "sound bites" that people in law school tend to know:
(1) He was married four times.
(2) He was an impassioned environmentalist.
(3) He holds the record for the longest term of service on the Court.
(4) He was fucking crazy.
Of course I am only kidding about the last one. If he was crazy at any point, it was near the end of his life, and I intend "crazy" in its most endearing form: good crazy; not bad crazy.
His life story is not easily told in a review of a book, but I would like to comment on one thing first:
Whitman College.
Now, few people may know this, but Whitman College was on my "shortlist" of undergraduate institutions to attend back in 2001. It did not win out, but I am sure that had I gone there, I would have been aware of Justice Douglas much earlier in my life, and would have modeled the years past accordingly. Therefore, I blame the admissions outreach office of Whitman College for its failure to highlight this esteemed alumnus's humble roots. Perhaps I was not interested in law when I was 18, but I am sure that, had I gone to Whitman College, I would have gone to law school immediately, would probably have graduated at one of the most terrible times in history, and might not be sitting in the Napping Room of the Brooklyn Law School library, typing out this post.
I suppose the best place to begin is with his time in law school (at Columbia):
"As his classmates got to know Douglas, they became aware that he was different from them. 'The thing that really set him apart from the rest of us,' remembered classmate Herman Benjamin. 'was not his brilliance--we were all pretty smart--and it was not his poverty--we were all pretty poor...No, what set him apart from the rest of us was his age. He was a full two years older than the rest of us.' Indeed, in an entering class of 264 people, nearly all twenty-one or twenty-two years old, Douglas was one of only two who were about to turn twenty-four. Embarrassed by this difference, Douglas made up a story to explain it...." (44)
That story involves distinguished service in World War I, which later serves to get him a place at Arlington National Cemetery. This is apocryphal, like some other stories Douglas liked to tell, but true enough to make people shut up.
Douglas did well in law school, but not as well as most modern Supreme Court justices:
"This combination of intellectual challenges took its toll on Bill Douglas's scholarly performance. At the end of the first year's exams, when the top several students were acknowledged by being named James Kent Scholars, Douglas was not among them. Douglas's friends believed that his lack of academic success was due to causes beyond any intellectual weakness on his part. 'Douglas was not well-off in law school,' explained Herman Benjamin. 'He was the only one of our class who absolutely had to work...The rest of us worked to get spare money, but Douglas had to work to live. I think it's quite possible that his financial straits may have affected his scholarship." (45)
Later, he improved in his second year, due in no small part to the efforts of his first wife, Mildred, who taught school in New Jersey and supported him for his last two years in school. However, it was not without its disappointments. He didn't make the Columbia Law Review (at first) and he "lost a clerkship." Furthermore:
"The real truth, they all knew, was that the Yakima Apple Knocker had been nowhere close to graduating second in his class or, for that matter, to the law clerkship. Herman Benjamin, a Law Review compatriot who is acknowledged as the class's historian, remembered, 'Not only can I assure you that Al McCormack was the universal and obvious choice for the clerkship [with Harlan Fiske Stone], but...if Douglas was competing with McCormack, it was for no better than fifth in the class....Douglas's memory on this matter is never very precise. I have concluded that he is always a little general about the facts.'" (474)
This is not a far cry from my laments about Justice Stevens being the only recent Justice not to graduate from Harvard or Yale, but that being okay because he graduated #1 in his class at Northwestern. Once again, I lament that only the most intellectually superior will ever have a chance to sit on the Supreme Court. It is particularly ironic, in this day and age of anti-intellectualism, that the President has never felt compelled to place a "more ordinary" mind on the Court. I digress.
Justice Douglas was raised in large part by his mother, with whom he had a stormy relationship. His father was a Reverend, and sometimes Murphy invokes that image when writing of Douglas as a "preacher from the pulpit of the Court." He was very ill as a boy, but recovered, and eventually was a very powerful hiker. At one point he challenges a bunch of people to hike a 161 mile trail:
"The Washington Post endorsed a plan to build the C&O Parkway from Cumberland, Maryland, to the nation's capital along an old 185-mile, 230-foot-wide towpath beside the historic Chesapeake and Ohio Canal....Douglas sent a letter to the editor protesting that this highway would destroy the canal that his predecessor Justice Louis D. Brandeis used to travel by canoe to Cumberland. Even now, he said, 'it is a refuge, a place of retreat, a long stretch of quiet and peace at the Capitol's [sic] back door--a wilderness area where man can be alone with his thoughts, a sanctuary where he can commune with God and with nature, a place not yet marred by the roar of wheels and the sound of horns.'" (330)
Of course he makes good on his challenge, and the editors at the Post decide that they were wrong, that the trail is indeed beautiful, and that they no longer endorsed the project.
Oh, also he did this (in his mid-50's) after a horse fell on top of him about five years earlier, crushing 23 out of 24 of his ribs.
There is also plenty of gossip regarding his womanizing and drinking. No less than five wives/long-term girlfriends (while married to someone else) were sprinkled throughout his life. And there were more:
"'We never knew what Dad did in Goose Prairie,' recalled his daughter Millie. 'He would just be gone for long periods of time [during the summer].' And he took advantage of his privacy, especially in his relationships with women. 'Bill was the biggest whorer around,' recalled Isabelle Lynn, an early guest and later Kershaw's partner at the Double K, 'but we still loved him, though.' Kay Kershaw had built a one-room, tine-roofed outbuilding, complete with a fireplace and a half bath, where a guest could live in total seclusion even from the main ranch. This very quickly became Douglas's home away from home. 'Bill came here when he had a girlfriend, or when he didn't have a girlfriend and was writing one of his books,' recalled Kershaw, adding with a knowing smile, 'and he was here a lot.' His female guests were arranged by an old friend. 'Douglas would just see what he liked in Yakima, and Elon Gilbert would ask the girl up,' explained Kershaw. 'I was always seeing girls come by saying, "Is Bill around?" There were all types and all ages, and they came all the time...Poor Bill,' Kershaw concluded, 'he was no family man. His personal life was all fouled up.'" (270-271)
As for drinking, Douglas could do it with the best of them. But his paranoia, while oftentimes reasonable in certain respects (this was the J. Edgar Hoover era after all), sometimes took a toll on his staff:
"After a day of hard work with Douglas, everyone would wait until he departed before leaving themselves--sometimes it was at 6:00 and sometimes as late as 8:00 P.M. When Douglas found out about this practice, he began leaving and then returning ten minutes later to see if the work was still under way. If he saw no one, Douglas asked his secretary the next day, 'Where was everyone last night? I came back, and no one was in the office.'
On days when they did not all scramble for the door after he had departed, the bottle of vodka in the bottom of Fay Aull's desk might be brought out to celebrate the survival of another day in the Justice's service. One time, the Justice walked in a few minutes later to find a party well under way, said nothing, and went into his office. The next morning, he buzzed for his secretaries and told them, 'Somebody is stealing my booze.' Knowing that no one would dare touch the ample supply of liquor that he kept in his office, this was merely intended to put them on notice that what he saw should not happen again. All it did, though, was convince them all to wait an extra five minutes before beginning the end-of-day festivities." (407-408)
There is also a great account of a pseudo-nervous breakdown he suffers while on a hiking trip:
"Everyone looked forward to dinner and the conversation that followed around the campfire, where Douglas would often sit cross-legged on the wooden supply boxes or on a log by the fire and tell his stories. Looking past the roaring embers, with sparks filling the air around him, he would mesmerize the travelers with his tales of how he had 'cleaned up the Street,' how he had told Felix [Frankfurter] to 'go to hell,' or how close he had come to being vice president and then president instead of that haberdasher from Missouri.
But as the pack train moved along on this August day, it soon became clear to everyone that something was dreadfully wrong with their famous friend...'I'm gonna get good and drunk tonight,' he hissed at Cragg Gilbert. Normally, that would not be an unusual statement, except this time Gilbert could see that Douglas would be drinking out of anger rather than to amuse himself.
As soon as the procession reached Blankenship Meadow, nearly everyone sprang into action--pitching their tents, getting their water, scouring the woods for kindling, arranging the food and cooking utensils for dinner, and building a campfire. But Bill Douglas did none of that. Instead, reaching into one of his saddlebags, he took out a liquor bottle and just sat down, drinking as fast as his body would allow. With each swig, a deepening anger set in. When the bottle was finished, he simply tossed it aside, returned to the saddlebag, and picked out another one.....Douglas started mumbling, but it wasn't to anyone around him, it was only to himself and in a language only he seemed to understand....'They bought it! They bought the goddamned nomination!'...Douglas's mumbling eventually ceased, and he began yelling at no one in particular...."(348-349)
So on the personal side of things, Murphy does a good job of summarizing Douglas's life. Murphy's writing on the law could be compared to Jeffrey Toobin's (in
The Oath or
The Nine), though it lacks the same kind of immediacy that present-day reportage on the Court entails. It seems clear that Murphy is "liberal," but he is more nuanced in his treatment of "conservative" justices. In any case, this book has some overlap with
The Brethren, but an unrelenting attack on Justice Burger is not undertaken.
And it is to Murphy's credit that he must have known the existing literature on his subject, and that he didn't want to needlessly repeat some episodes already noted in other books. Thus, there is some discussion of Douglas's treatment of his law clerks, but none of the stories from
The Brethren are repeated. Generally, Murphy is great at summarizing the Court's decisions in concise and well-chosen language. See for example, his two sentence summary of
Roe v. Wade:
"In
Roe, the Court had overturned Texas's ban on abortions by creating a trimester system regulating the ability to secure abortions based on the differing interests of the three parties involved in the dispute: the mother, the unborn fetus, and the state. While the mother had an unlimited right to get an abortion in the first three months of a pregnancy, and the state had the right to prevent an abortion in the last three months to protect the fetus, in the middle trimester a state could only regulate the decision to get an abortion based on the need to protect the health and life of the mother." (458)
So, again, this book will be useful for students studying Constitutional Law. Here is a brief list of cases that the book touches upon, and may be useful in supplementing one's studies:
Adderley v. Florida (1966)
Dennis v. United States (1951)
Feiner v. New York (1950)
Griswold v. Connecticut (1965)
Korematsu v. United States (1944)
Minersville School Dist. v. Gobitis (1940)
New York Times Co. v. United States (1971)
Papachristou v. City of Jacksonville (1972)
Poe v. Ullman (1961)
Rosenberg v. United States (1953)
Roth v. United States (1957)
Sierra Club v. Morton (1972)
Terminiello v. Chicago (1949)
United States v. Nixon (1974)
United Stats v. O'Brien (1968)
Sadly, the book does not pass the 420 test--but it comes pretty close:
"By this time [1970] he was especially suspicious of the FBI. Upon noticing men in dark suits loitering around his summer house, Douglas began to investigate their mission. 'I wrote you last fall or winter that federal agents were in Yakima and Goose Prairie looking me over at Goose Prairie. I thought they were merely counting fence posts,' Douglas wrote his friends at the Double K ranch in the spring of 1970. 'But I learned in New York City yesterday that they were planting marijuana with the prospect of a nice big TV-covered raid in July or August. I forgot to tell you that this gang in power is not in search of truth. They are "search and destroy" people...It would be ironic if they planted it over in Ira [Ford]'s yard, not mine!' But no such marijuana raid was ever staged." (444-445)
Douglas's career looks like this: (1) humble beginnings in Yakima, WA; (2) Whitman College years; (3) One year spent teaching high school; (4) Columbia Law School years; (5) Time spent working at Cravath, the work making him sick, weighing his other options; (6) Time spent teaching at Columbia and Yale Law Schools; (7) Offers dangled from the University of Chicago, playing law schools against one another to have him on their faculty; (8) elected Chairman of the SEC and prosecutes Richard Whitney; (9) Appointed to the Supreme Court in 1939; (10) Potential Vice-Presidential Candidate for Franklin Delano Roosevelt and Harry S. Truman; (11) Potential presidential candidate--until he gets divorced; (12) Several wives, stultifying alimony responsibilities, and general disarray of personal financial affairs; (13) Discovery that he could be paid handsomely for writing books on the various travels he took; (14) Last surviving New Dealer on the Court, facing five Nixon appointees; (15) Greatly diminished old man who refuses to accept that he can no longer handle the work on the Court after suffering a stroke.
While the book does not discuss the
Bakke case (that was decided in 1977, two years after Douglas retired), it does mention a similar case that came before it, and Douglas's opinions on the matter would turn out to be quite prophetic:
"The 1973-1974 term offered Douglas the opportunity to deal with the growing number of programs offering preference based on race to law-school applicants. Marco DeFunis Jr., a Caucasian, was suing the University of Washington Law School for denying him admission while admitting under its 'affirmative action' program minority applicants with lesser qualifications...'I don't know about these tests,' said Douglas, referring to the Law School Admissions Test (LSAT), which is used to test the aptitude of prospective law-school applicants. Three days later, after the Court decided not to hear the case because DeFunis was about to graduate, Douglas decided to write a dissent to the denial. The reason, he explained to his clerk, was simple: 'I might not be around next time this issue comes up.'
After considerable back and forth with his clerk in writing the opinion, Douglas's arguments against affirmative-action programs were instructive. First, he vigorously attacked the LSAT, even without evidence to prove his point, as being so racially biased that on occasion there must be reverse bias by a law school to correct it. The only requirement for him was that 'the consideration of each application [be done]
in a racially neutral way. Since [the] LSAT reflects questions touching on cultural backgrounds, the Admissions Committee acted properly in my view in setting minority applications apart for separate processing...The melting pot is not designed to homogenize people, making them uniform in consistency. The melting pot as I understand it is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag.'.......
Douglas made very clear, however, that he had no tolerance for a quota system, by which a certain number of the seats for the incoming class were reserved for certain minorities: 'The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group.' Only a policy of admissions based on racial neutrality was the answer: 'The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone...A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions.' For Douglas, who had once been denied access to the undergraduate portion of this very school because of his family's finances, the programs of affirmative action, which diminished the use of merit as an admissions criterion, were not permissible: 'All races can compete fairly at all professional levels. So far as race is concerned, any state-sponsored preference to one race over another in that competition is in my view "invidious" and violative of the Equal Protection Clause.' He was prepared to send this case back to the lower court to determine both the impact of the LSAT and this application process on various groups." (467-468)
These concerns would arise 40 years later in the
Grutter and
Gratz (University of Michigan) cases, and are still being decided as I write this today (University of Texas).
The lesson is that anyone interested in a progressive future for America should read this book and try to follow Douglas's lead. To be sure, Murphy does not hold up Douglas as a god, and details his personal indiscretions as greatly as his contributions to American society at large. So maybe, it is not okay on a moral level for a Supreme Court justice to use his or her position in order to constantly get laid. But the point is Douglas lived by what he preached. He believed in the freedom of the individual to express themselves in whatever ways they sought fit, and he certainly expressed himself without worrying what others would think of him.
Murphy sums up Douglas's importance in the history of 20th century America nicely near the end:
"He celebrated his 74th birthday, on October 16, 1972, by objecting to twenty-six denials of writs of
certiorari, offering full dissents in ten of them. Douglas was objecting to the Court's unwillingness to hear all manner of cases: antimonopoly laws, airport zoning statutes, state support for parochial-school education, employment liability, destruction of war materials, the constitutionality of chain gangs, and the rights of the poor in filing for criminal-trial transcripts. By this time, Douglas was so anxious to show his displeasure with his colleagues that when four members of the Court voted to accept a case, he objected to that as well. But with four Nixon appointees now dominating the Burger Court, it was all to no avail." (458)
His retirement announcement is described in rather moving terms as well:
"After they heard the news, one by one each member of the Court walked over to shake their senior colleague's hand and wish him well. Then, as Douglas was quietly wheeled to the door, he raised his good arm, and, with some difficulty, expressed to his colleagues what had become his mantra in his waning years: 'Keep the Faith!' With Douglas's record-making legacy of 1,164 full opinions, including 486 full dissents (not to mention thirty-two books and hundreds upon hundreds of public speeches), now complete, for the first time in more than thirty-six years the guardianship of the Constitution was in others' hands." (495)
At times this book may drag (I found it a bit slow through the several chapters dealing with Douglas's Presidential ambitions) but at other times it reads like an adventure story ("Trouble in the Woods" may be the strongest chapter in the book, as Murphy does an excellent job of recreating the horror of Douglas's horseback-riding accident). Generally, the book is about as "quick" a read as you can expect for a 500+ page volume. It is excellent reading for law students and those interested in the law, but I fear most people will forget about Justice Douglas. That would be unfortunate because his influence remains relevant even in these technologically-advanced times. Douglas could see where the future of America was heading, and more often than not, his opinions articulated that view. He was an extraordinary human being, and this book is likely the most authoritative text on his life.
Of course this book won't be for everyone--but as I've mentioned on Flying Houses previously, parents should stop telling their children to "one day be President" and instead urge them to "one day be a justice." Douglas may have wanted to be President (due in no small part to his mother's prediction that it was his destiny), but the lasting impact of his work as a justice easily outdoes that of the majority of 20th century American Presidents. Future generations of law students will know his name, but more of the general American population should become acquainted with him. This book should provide that requisite level of intimacy for all.
