November 14, 1975
Page 36713
ON THE RETIREMENT OF MR. JUSTICE WILLIAM O. DOUGLAS FROM THE SUPREME COURT
Mr. MUSKIE. Mr. President, it is with a deep sense of regret that I learned of the retirement from the Supreme Court of one of its greatest Justices and certainly one of the most able and accomplished public servants of this century. A long time friend and former associate of William O. Douglas on the Supreme Court, Abe Fortas, has called him the only true genius he has ever known.
While Mr. Justice Douglas' service on the Court spanned more than a third of a century, longer than any other Justice in our history, his career and life, as was said in one article about him, "cannot be measured by clocks and calendars, time and numbers. He has been an extraordinary man, working within a crucial citadel of reason and wisdom, throughout a three-decade period of unusual crisis and change, growth and challenge."
It would be impossible to assess his accomplishments in only a few words, but it is important to note his breadth of experience, his sense of history, and the intellectual ability which he has brought to each position he has held including that of Justice of the highest Court of our land.
After graduating with honors from law school and spending a brief period in the practice of law, he served with distinction as a professor at the Yale Law School. From there, he moved to a position on the staff, later emerging as a Commissioner, and finally serving as Chairman of the Securities and Exchange Commission.
Douglas was appointed in 1939, at age 40, as the youngest Justice to the Supreme Court since 1811 and the second youngest Justice in history. These facts about his appointment underscore his leadership and foresight on major issues facing the country which often came far in advance of both his colleagues and the country at large by years, and sometimes even decades.
Throughout his life, he has displayed a fervent commitment to the preservation of our environment, a commitment which reflects his own sense of oneness between man and nature.
His commitment to the rights and liberties of American citizens is no less strong and his opinions offer some of the Court's earliest observations on the rights of individual privacy.
In perhaps his most noted opinion, in Dennis against United States, he displayed his always consistent efforts to defend the right of free speech of American citizens. In that case, the Supreme Court upheld the conviction of 11 leaders of the Communist Party in the United States for teaching and distributing information related to the overthrow of the U.S. Government. In perhaps his most eloquent dissent, Douglas said of the teachings and literature:
These books are to Soviet communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent and the chances of its success less likely ... Free speech has occupied an exalted position because of the high service it has given our society.
Mr. President, certainly the Judiciary of the United States will be diminished substantially with the retirement of Justice Douglas, but we hope his colleagues and our Nation will continue to benefit from his writings and his continued service in other capacities. I ask unanimous consent that the series of five articles that appeared in the St. Louis Post Dispatch from October 14 to 18, 1973, be printed in the RECORD.
There being no objection, the articles were ordered. to be printed in the RECORD, as follows:
[From the St. Louis Post Dispatch, Oct. 14, 1975]
JUSTICE DOUGLAS IS STRIDING TOWARD A MILESTONE
(By Curt Matthews)
The elderly gray-haired man stands with a younger companion beside a pasture fence watching the impatient stomp of a restless horse. The scene compresses in a single moment elements that are fundamental to the life of Associate Justice William O. Douglas of the Supreme Court.
The outdoors, privacy, irrepressible curiosity, impatience, the spirit of the maverick — these are but a few of the facets reflecting the man who in a few days will have served longer than any other justice on the United States Supreme Court.
The quiet of a September day deep in the Cascade Mountains is disturbed by the laboring engine of a Volkswagen bus. The vehicle pushes up the steep unpaved road through the fir trees surrounding the Douglas retreat near Goose Prairie, Wash. Douglas scowls at the intruders.
With obvious resignation he turns away from the horse and walks toward the vehicle. Douglas is 75 years old, lean, almost frail. But his stride is firm and purposeful. His boyish features — much in evidence when his mood is pleasant — are veiled by irritation and a trace of fatigue, seeming to say, "Who the hell are you?"
The newcomer explains the visit. Just passing through. Heard you had come back from China. Thought we'd stop by. Say hello ... welcome back. Won't stay long.
Douglas nods, listens, softens slightly. The conversation turns to the Supreme Court and the record of longevity that Douglas will establish on Oct. 29. On that day he will exceed the 34 years, six months and 12 days on the court served by Justice Stephen J. Field between 1863 and 1897.
Controversy erupts. Douglas contends that three other men have matched his years on the Supreme Court and insists erroneously that the late Justice Hugo L. Black holds the record with 35 years. Then he abruptly ends the discussion: "The whole point is an irrelevancy."
Five minutes later the stranger heads down the road through the trees.
The Supreme Court career and the life of Justice William O. Douglas cannot be measured by clocks and calendars, time and numbers.
He has been an extraordinary man, working within a crucial citadel of reason and wisdom, throughout a three-decade period of unusual crisis and change, growth and challenge.
His years on the Supreme Court have spanned the dawn of the Atomic Age, the birth of rock and roll, the advent of television and the growth of population in the United States from 122,000,000 in 1940 to more than 200,000,000 in 1973.
Of the 100 Americans who have served on the high court in its 183-year history, Douglas has served with 30. Six Presidents have occupied the White House during his years on the court. Associate Justice William H. Rehnquist was a 15-year-old high school student in Milwaukee when Justice Douglas wrote his first opinion.
Douglas's career has been one of the most controversial ever. He has been praised and damned with equal fervor. He has survived with equal aplomb efforts to lionize him and efforts to impeach him.
The words of Douglas have cut to the core of virtually every major legal dispute that has erupted in the United States over the last 30-plus years — from the New Deal to the bombing of Cambodia.
A long-time friend and former associate on the Supreme Court, Abe Fortas, calls Douglas the only true genius he has ever known: "He can do 10 times the work that other men do in one-tenth of the time. I use the word carefully, but Douglas is a genius."
John P. Frank, a Supreme Court scholar from Phoenix, Ariz., says, "Douglas has harnessed technical skill and brilliant creativity" of method with his education to maximum liberty for all Americans."
Justice William J. Brennan, Jr., another colleague, says, "I am most convinced that history is going to mark him down not for his length of service but for his uncompromising stand on certain fundamental principles."
Douglas, who brought to the court an expertise in finance and business organization, has over the years displayed a remarkable range of knowledge in such diverse areas as education, conservation, computer science, chicken farming and the Bible.
His credentials as a student of life are just as extensive. He has seen more of it — from childhood poverty to dinner with kings — than perhaps any justice before him. He has traveled more miles to more countries — including China in August — climbed more mountains, written more books, had more wives and probably faced more physical danger than any justice in the history of the court.
His work on the court has been no less provocative, no less independent, no less unorthodox than the sum of his life experience.
Douglas was a defender of the New Deal and the Government's authority to regulate business, and to establish new mechanisms for managing the national economy. In recent years he has been the court's most consistent foe of Government authority to quell dissent or stifle protest.
A firm believer in "the firstness of the First Amendment," Douglas has sided with the press in its recent confrontations with the Nixon Administration. He believes pornography to be a matter of taste, not a matter of law to be administered by censors.
Douglas views wiretapping as a abhorrent invasion of privacy. He wrote against capital punishment years before the court finally outlawed the practice in 1972. Abortion is a matter between an individual woman and her doctor, Douglas has said, "a matter of privacy."
Perhaps his greatest legacy has been his record of dissent.
"Douglas seems to enjoy going his own way," a colleague on the court said. "At times it seems he is almost uncomfortable if he finds other people agree with him. If others agree, he thinks he must be wrong."
However, in numerous cases in which Douglas went his own way, he found that several years later he no longer walked alone. He wrote three dissenting opinions on the rights of the accused that eventually formed the crux of the court's majority ruling in the famous Miranda decision, the ruling guaranteeing the right to counsel during police interrogations.
Douglas formulated a dissent regarding the right to privacy when the court ruled in 1952 on the legality of piped music on city buses.
In 1965, the court took the reasoning of the Douglas dissent and used it to strike down Connecticut laws against birth control as an invasion of the right to privacy.
In 1951, Douglas warned in a strongly worded dissent about the dangers of witch hunting for Communists. Ten years later the nation understood what he was talking about and the court had come to accept his views more readily after the inquisitions of Senator Joseph McCarthy.
Historian Alexis deTocqueville once observed that given time, every major issue in America reaches the Supreme Court. The history of the Supreme Court has been the history of the United States distilled to the fine grain of legal controversy. The sifting of that grain — the measuring, the sorting, the careful weighing — has been the work of Justice Douglas since President Franklin D. Roosevelt's second term.
Douglas was appointed in 1939 — at age 40, the youngest justice since 1811 and the second youngest in history.
The crucial issue then before the court centered on the authority that Roosevelt had vested in a newly created "fourth branch" of Government — the administrative and regulatory agencies of the New Deal era. Douglas consistently favored the agencies whenever Congress or the courts attempted to weaken or restrain these creations of what he saw as enlightened Government.
After World War II, a new issue dominated the court's deliberations: freedom of speech. How much dissent could a democracy endure? Does a Communist have equal rights under the Constitution even in the crisis circumstances of "The Cold War?" Can citizens be investigated to establish their national loyalty?
The response by Douglas was bold, confident and often in the minority. He placed more trust in the individual citizen than in the Government and began to use a phrase that crept increasingly into his opinions: The purpose of the Bill of Rights is to keep the Government off the backs of the people.
In the early 1960s, as Douglas approached the age when other men begin to consider retirement, other issues arose with fierce intensity.
A restless, mobile, newly affluent population began to recognize that democracy in, the U.S. remained a hollow concept for millions of citizens. Blacks, women, the accused, the poor, the young all came to the Supreme Court for help.
Setting out from the landmark decision in1954, striking down racial segregation in public schools, Douglas and his fellow justices, more than any other branch of Government in the late 1950s and 1960s, took action to secure the rights of racial minorities, to assure that persons accused of crimes were treated fairly, and to preserve free speech.
Joseph L. Rauh Jr., a Washington lawyer and counsel to the Leadership Conference on Civil Rights, says of Douglas, "He has the longest record of consistently liberal opinions in the history of the Supreme Court ... He has fought for liberal principles on practically every issue of civil liberties and civil rights for more than 30 years."
Douglas, while not necessarily disagreeing with Rauh's assessment, had this to say about himself the year before he went to the Supreme Court: "To tell you the truth I think I am really a pretty conservative sort of fellow from the old school, perhaps a school too old to be remembered ..."
[From the St. Louis Post Dispatch, Oct. 15, 1975]
JUSTICE DOUGLAS: A MAN OF PARADOX, CONTRADICTION
(By Curt Matthews)
Justice William O. Douglas, the pre-eminent liberal on the Supreme Court, is a man of paradox and contradiction — layer upon layer of inconsistency.
He is the oldest man on the court, with the most youthful outlook on law and life. A great advocate of freedom of the press, who thinks newspaper reporters often don't know what they're writing about. A jurist of remarkable intellectual power, whose opinions are often called technically careless.
Douglas has displayed great sensitivity for the human condition in his opinions. Yet, he is a shy, remote man — some call him an iconoclast, others call him rude.
Says one colleague on the Supreme Court: "If I sat for 100 years on the same bench with Bill Douglas, I really would never be able to say with certainty what his reaction to a certain case might be. He is a fascinating fellow. Predictable in many ways, but ultimately a totally unpredictable person."
His 75 years notwithstanding, Douglas seems always to be looking ahead. He once devised a 10-point formula for life. Point four: "Live in the future ... do not rest on the achievements of the past."
But to understand the man and how he became a titan of the law, it is necessary to look backward
It is not hard to imagine Justice Douglas as a boy or as a young man. His blue eyes and wrinkled skin and manner reflect his age, but his features are aligned in wide-eyed youthfulness and his gestures and movements are quick. He has the natural impatience of a six-year-old in Sunday school.
His father was a Presbyterian "home missionary" in Washington State, and when Douglas was a boy he regularly went to church four times on Sunday. Douglas was only six when his father died, but at his mother's insistence the family continued its remarkable schedule of churchgoing. Douglas rarely goes to church anymore.
When he was a little older, Douglas was stricken with infantile paralysis. He turned to the mountains of the Northwest for strength, becoming an avid climber and hiker in an effort to regain the full use of his legs. In the process he kindled a lifelong passion for the outdoor life.
As a boy growing up in impoverished circumstances, Douglas delivered newspapers, worked summers in the fruit orchards around Yakima, Wash., and ran a brisk business in household junk.
The newspaper that Douglas delivered was the Yakima Daily Republic. Years later, when Douglas established himself as a man of influence within the New Deal of Franklin D. Roosevelt, the Daily Republic looked upon its one-time carrier as a budding Communist. It printed a somber editorial chastising Douglas and his theories of government under a headline that read: "Yakima Not to Blame." Douglas carried a clipping of the editorial in his wallet until it crumbled with age. He still subscribes to the Yakima Daily Republic.
There were three children in the Douglas family. An older sister, Martha, became a department store executive in Chicago in charge of personnel. Arthur, the youngest, became president of the Statler Hotel Co. before his death in 1956.
Douglas, who today is slightly under six feet tall, was small as a boy and answered to the nickname "Peanuts." "Peanuts" Douglas was valedictorian of his high school class, and obtained a one-year scholarship to Whitman College in Walla Walla.
He arrived there in the fall of 1916 on a cheap bicycle which he had pedaled more than 100 miles down the Yakima valley from his home. With little money he pitched a tent and lived in it for a time.
A steady succession of jobs — including vacations working with migrant laborers in the orchards and fields of Washington and Oregon — got Douglas out of the tent, into a house, and eventually through four years of college. He graduated, Phi Beta Kappa, in 1920.
After trying his hand as a teacher at Yakima High School, Douglas decided in 1922 to head east with his scant resources. He boarded a freight train for Chicago, not as a paying passenger but as caretaker for a load of sheep bound for the stockyards.
In New York, Douglas borrowed $75 to finance his enrollment at Columbia University Law School. He ranked second in the class of 1925, was an editor of the Law Review, and drew the special attention of Harlan Fiske Stone, a Columbia professor who would become Chief Justice of the United States when Douglas was sitting on the bench as a youthful Associate Justice.
Douglas returned to Yakima in 1923 to marry Miss Mildred Riddle, a young school teacher he had met in his own teaching days. After graduating from Columbia, Douglas joined a prestigious Wall Street law firm and then took a brief fling at private practice in Walla Walla, but soon returned to Columbia as an assistant professor of law.
He was there only a year when the university president appointed a new law school dean without first consulting the law school faculty, an academic affront that Douglas much resented. Showing early signs of the independence that was a Douglas trademark, he resigned with a curt one-line note and took a teaching job at the Yale Law School.
The arrival of William Douglas at Yale was a turning point in his life. There he met men who matched his own vast intellectual capacity, his own devotion to new ideas, and his own zest for exploring the far corners of life. He formed lasting friendships with men who later followed him into government service. Among them were Thurman Arnold, later to become a trustbusting head of the Justice Department's antitrust division, and Abe Fortas, later to join Douglas on the Supreme Court.
Douglas was one of the charter members of a semi-secret faculty group known as the "Hunt Club" which conducted outrageous snipe hunts and other episodes of horseplay at Yale. Douglas held the title of "mattress bearer."
The hunt club maintained a front row balcony box at a burlesque theater in New Haven. The story is told that on one occasion Douglas and three associates attended an afternoon performance at the theater, quietly took their seats in the balcony, and then hung out a large banner that said: "Yale Divinity School."
Douglas says he does not recall the episode, but another former club member insists it happened.
It was his expertise in corporate law, not college pranks, that brought Douglas to Washington. In 1934, the late Joseph P. Kennedy, then head of the Securities and Exchange Commission, hired Douglas to investigate the relationship between business organization and the economic collapse of the 1930s. Douglas picked Fortas as his top aid.
One night in 1935, Fortas was working in his office at the SEC when Douglas walked in and said, "I sure do miss Thurman (Arnold) . We ought to get him down here. What do you say we subpoena him?"
Exercising the authority of his new office, Douglas secured a court order directing Professor Arnold of Yale to appear in Washington. Arnold arrived as directed and there followed a happy reunion. In time Arnold began pressing Douglas as to why he had been ordered to Washington.
"Just be patient," Douglas told him. "Your turn to testify will come."
Finally, when Arnold could be put off no longer, Douglas broke down and told him the reason for the subpoena: "We just missed you, Thurman, and we wanted you around for a while."
The story comes from an unimpeachable source. Douglas denies, with a smile, that the incident happened.
In 1936, Douglas was named a member of the SEC and the next year succeeded Kennedy as chairman, a job that pushed Douglas into national prominence as a crusading reformer of the securities industry. Influenced by his own experiences and the philosophy of Thurman Arnold, Douglas brought to his SEC job a healthy distrust of big business and an awareness of the dangers of monopoly.
These same elements of personal philosophy had been followed over many, many years by Supreme Court Justice Louis D. Brandeis, whom Douglas had met and admired at Columbia Law School. When Brandeis announced his retirement from the court in March 1939, President Roosevelt tapped Douglas as his successor.
He was confirmed by the Senate on April 4, 1939, by a vote of 62 to 4, and took his seat on April 17, 1939. He was the eighty-second man chosen to serve on the court.
[From the St. Louis Post Dispatch, Oct. 16, 1975]
DOUGLAS A LONELY MAN DEVOTED TO LONELY JOB
(By Curt Matthews)
Despite the worldliness of its decision-making, the work of the Supreme Court is essentially quite lonely, particularly for William O. Douglas in the waning years of a long career characterized by independence.
He has disagreed with the rulings of the court more often than anyone who ever sat on the court. Douglas has written more Supreme Court opinions than anyone in history, a total of 1232 through last July, when the court recessed for three months. He has expressed the view of the majority 502 times, written 536 dissents and 195 "separate views"(either concurring with the majority or agreeing in part and dissenting in part) .
However, the nature of the work process more than a man's philosophy makes the job of Supreme Court justice a lonely one.
"It is easy to overestimate the day-to-day interplay that the justices have with one another," says one member of the court. "They see each other in conference at least once a week and they sit together on the bench hearing argument. But there is less intramural or conference conversation on a man-to-man eye-to-eye basis than one would suspect."
Decisions of the court are reported and remembered as blocs of votes — 5 to 4, 6 to 3,8 to 1. But neither "majorities" nor "minorities" actually write opinions. That is left to the individual justices and involves long hours of solitude, introspection and effort.
Douglas and his colleagues write constantly during a normal nine-month term of the court — drafting, revising, editing and polishing an opinion in behalf of the majority or an individual expression of views.
Very early in his career on the high court, Douglas displayed remarkable productivity.
"His speed at writing decisions is legendary around here," says one member of the court.
"The older Douglas gets, the better he gets," observes another justice. "No other job really prepares one for the kind of work we do here. You make of it what you can after you get here, and Douglas has made quite a bit of it."
Over the 35 years he has served, Douglas has hardly changed his routine, his former law clerks attest.
He arrives at his chambers about 7:45 a.m., chauffeur-driven from his home in northwest Washington. Unless scheduled to hear cases or called to conference with his colleagues, Douglas remains fairly fixed in his private office.
The place where Justice Douglas spends the greater part of his working day is a first-floor office, about 20 by 20 feet, with a high ceiling and two large windows. His chambers — a suite of three rooms — are visibly personal. A row of mismatched filing cabinets lines one wall of his outer office, books and papers are stacked about, showing that Douglas is not a slave to neatness.
He sits with his back toward the large windows that look out on the manicured south lawns of the Supreme Court across East Capitol Street to the Library of Congress. His office is smaller than that of some of the more junior members of the court, more tactile, more "lived in."
Douglas is proud of a collection of hats kept on a small lamp table next to the working fireplace in his office.
The collection includes several presented to him on travels to Russia, one worn by the late Jawaharal Nehru, Prime Minister of India, and hats presented to Douglas by Himalayan tribesmen.
On the walls are spears, arrows and masks from Africa, on the mantle are two delicate blue porcelain dishes that once belonged to Chief Justice John Marshall, and in a place of prominence over the fireplace, a photo of Douglas hiking down the C&O Canal towpath in southwestern Maryland.
Douglas works at an antique desk that once belonged to his late brother Arthur. The desk was in storage for several years, but this summer it was polished and fitted with a glass top under which Douglas keeps a few favorite specimens from his collection of pressed wildflowers.
Before Douglas arrives at his office each day, he usually has looked at the Washington Post and the New York Times. He subscribes to about 30 daily and weekly newspapers.
He is not a man for idle chit-chat and is capable of concentrating for long periods on the job at hand. He usually remains in his chambers — alone — turning out page after page of handwritten manuscript on long yellow legal pads. He works with exceptional speed and facility, the words and thoughts apparently flowing without the hesitant stumbles and false starts that plague many writers.
Brief chats with his law clerks are sometimes held before Douglas commits to paper his views in a case. Although the clerks are without exception young men and women lawyers who ranked high in their classes and come from the best law schools in the country, Douglas uses their abilities sparingly.
"Clerks never draft an opinion for Justice Douglas," says Peter M. Kriendler who served as a clerk for Douglas last year and is now a member of the Watergate special prosecution force headed by Archibald Cox. "Douglas knows what he thinks about a case; he doesn't solicit a clerk's opinion. What he wants is research and analysis, and he gives very specific assignments to get this done."
Douglas resents presumption and impertinence. "The quickest way to the doghouse with Justice Douglas," says one former clerk, "is for a clerk to try to play justice."
Vern A. Countryman, a Douglas law clerk in 1942 and now a professor of law at Harvard University, says Douglas developed a highly proprietary attitude about his written opinions early in his Supreme Court career.
Countryman says that only on one occasion did his words ever find their way into a Douglas opinion: "There is a minor footnote in one opinion handed down in 1942 that is all mine — every last word of it."
The legendary speed of Douglas is illustrated by an experience recalled by Countryman in 1942. Douglas wrote a 60-page re-organization plan for the bankrupt Chicago& Milwaukee Railroad in only three days and gave it to Countryman to be proofread.
"I spent the next three months looking for errors, but didn't find a thing wrong with his solution to a very complex legal and corporate problem," Countryman says.
It has been reported that once, after writing a dissent in a particular case, Douglas stopped by to chat with the justice assigned to write the majority opinion.
"I can't seem to write the damn thing," the spokesman for the court's majority is reported to have complained to Douglas.
Douglas offered to help and ended up drafting what became the majority opinion. If the story is true, Douglas may be the only justice in history to have taken both sides in a case before the high court.
However, Douglas carefully refrains from trying to woo other justices to his position on an issue.
"I think my job is finished when I make up my own mind," Douglas says. "I don't think I have to be an evangelist and convince others to think about things the way I do."
Among his associates on the court, Douglas is known as a man of few words in conference. But the hard logic and the astutenessof his views often win others to his side in a case.
Former Associate Justice Tom C. Clark says: "He has a way of presenting the facts that can convince you to think in new ways about the problems in a case. Not just the problem of law, but the problems that a certain decision might later raise for the court."
There is a rigid order for discussion when the court meets in conference. The Chief Justice traditionally speaks first, followed by the senior justice and so on down to the junior member, who speaks last.
Douglas speaks immediately after Chief Justice Warren E. Burger and his colleagues say Douglas is always brief and incisive. One of the recent Nixon appointees to the court has been particularly pleased with the Douglas technique in conference.
"He has a sort of pixie sense of humor that comes out at precisely the right time," he says. "It's a very valuable asset because the conferences could easily become dour and pompous without some injection of humor from time to time."
However, Douglas has not been able to please all his colleagues all the time — and he would be the last to try.
There was an occasion when Justice Felix Frankfurter was third in line to present his views in conference, with Douglas next in line.
Frankfurter had been a Harvard law professor and in conference he always spoke for precisely 50 minutes — the standard Harvard law school lecture. When his turn came his colleagues always settled back, knowing what was coming.
Douglas listened to this particular Frankfurter lecture, then said in his most boyish and apologetic tone: "Well ... when I came into the conference today ... I was, well I was prepared to vote with you, Felix. But now that I've heard you out on this issue well ... I feel compelled to vote the other way."
Douglas then sat down and said nothing more.
[From the St. Louis Post Dispatch, Oct. 17, 1975]
DOUGLAS OFTEN UNDER FIRE BECAUSE OF PRIVATE LIFE
(By Curt Matthews)
It was a warm and clear April evening and 42 men in black-tie formal dress gathered in the garden of the 1925 F Street Club. They came to pay tribute to Justice William O. Douglas, an old friend who on that day in 1959 marked his twentieth year as a member of the Supreme Court.
Among the guests were Thurmond Arnold, an old associate from the Yale Law School faculty; Senator Lyndon B. Johnson of Texas; presidential advisers Clark M. Clifford, Thomas G. Corcoran, Paul Porter and Abe Fortas, all Washington lawyers; journalists Arthur Krock, Martin Agronsky and Leonard Lyons, and economist Eliot Janeway, who was quadrennially urging Douglas to seek the presidency.
The witty and urbane Thurmond Arnold, in an after-dinner speech, recalled the first time Douglas sat on the Supreme Court bench:
"I was present and the scene is etched in the tablet of my memory. The crier of the Supreme Court was obviously harassed and disturbed. I remember him saying immediately after Justice Douglas took his seat, 'God save the United States and his honorable court."
It was the kind of evening that Douglas enjoys. Few men are more protective of their privacy than the justices of the Supreme Court, and a quiet evening with select friends is the preferred fulfillment of their social needs.
Douglas, who in 1965 wrote an opinion for the court that established a constitutional "right of privacy," is perhaps more protective of his personal life than his colleagues.
Twice in his 34-plus years on the Supreme Court, the private life of Justice Douglas has stirred talk of his impeachment, once when he married for the fourth time in 1966 and again in 1970, when it was disclosed that he received $12,000 a year as a director of a private nonprofit educational foundation.
The Douglas life-style within the controversial context of his judicial philosophy on the court, has long engendered widely disparate public views of the man. He is revered by liberal thinkers as simply a man following a liberal conscience — inner directed and unrestrained by other men's judgments. He is criticized by detractors as a man with very little conscience and a shocking lack of respect for basic traditions and proprieties. Douglas has come under fire, for example, on such subjects as:
Marriage — He has been divorced three times, and each time promptly married a woman much younger than himself.
Obscenity — Douglas has written articles for Playboy magazine, and excerpts from his 1970 essay, "Points on Rebellion," appeared in Evergreen Review opposite some explicit (and unrelated) nude photography.
Judicial Ethics — His off-bench income has at times exceeded his salary as a Supreme Court justice. Douglas has written many books and at one time was active on the lecture circuit.
The "Generation Gap" — Douglas calls his own generation bankrupt. He prefers the idealism of young people and recently told a newspaper reporter that people over 40 years of age just aren't open to new ideas."
Douglas does not talk about his private life. He considers his personal conduct nobody's business but his own, an attitude he believes to be consistent with the concept of America as a free country.
When Douglas came to Washington in the mid-1930s, he settled with his wife and two small children in suburban Silver Spring, Md. His sharp wit and ability as a story-teller were greatly appreciated.
He played poker regularly at the home of Harold Ickes, one-time Secretary of Interior, along with a group that included Henry Morgenthau, the Secretary of Treasury; Harry Hopkins, an adviser to President Franklin D. Roosevelt; and a young Representative from Texas named Lyndon Johnson.
Douglas was noted for insistently introducing off-beat games of poker. After joining the court, he began naming the games after his colleagues on the bench: One he called "Bushy" after Chief Justice Charles Evans Hughes, who sported full white mustache and beard. Another poker hand that was particularly complex and "mean" Douglas identified as "McReynolds" — a reference to Justice James C. McReynolds whose judicial theories clashed sharply with those of Douglas.
However, just as there is paradox in other aspects of his life, there is a measure of inconsistency in Douglas's personal relationships.
Former Associate Justice Abe Fortas, who has known Douglas since the early 1930s says, "He has always been someone with whom a really close friendship is not easy to come by." But, Fortas adds, once you do get such a relationship with Douglas, "it can be very warm and very firm."
A justice who now sits with Douglas on the court says of him, "I can't say I really know him very well. He's a loner and never really shares with others a part of himself that would reveal his private thoughts and feelings."
The same source says that despite Douglas's long tenure at the Supreme Court he knows few of the court's 250 employees, including some he sees every day. The Justice recalls riding up to his office in an elevator with Douglas one day and, after getting off at the appropriate floor, saying to him, "I'm embarrassed that after working here for three years I still don't know that elevator operator's name."
Douglas replied, "Don't let it bother you. I've been working here for 25 years and I don't know anyone's name."
None of Douglas's foibles seems to generate more indignation among his critics than his attitude toward matrimony.
In 1953, after 30 years of marriage, Douglas and his first wife were divorced. Shortly afterwards, Douglas married Mercedes Hester Davidson, the former wife of an assistant secretary of the interior. Douglas was 55 years old, his new wife in her mid-30s. The marriage lasted 10 years. The second Mrs. Douglas, then won an uncontested divorce on grounds of "mental cruelty," and Douglas married for the third time in August 1963. This time the bride was a 23-year-old college student, Joan Carol Martin, whom Douglas had met when lecturing at Allegheny College in Meadville, Pa.
That marriage lasted two and a half years. Shortly after his third divorce, Douglas married his present wife, Cathleen Heffernan of Portland, Ore., in July, 1966. Douglas was 67 years old and Cathy Heffernan was 23.
The difference in age seemed to be what most disturbed the Douglas critics. In the House of Representatives a resolution was introduced urging that the Judiciary Committee investigate the "moral character" of Justice Douglas, and talk of impeachment was heard but soon died out.
The critics notwithstanding, the fourth Douglas marriage has been an obvious success. The present Mrs. Douglas is known in Washington as open, friendly and capable. She recently graduated from law school, and she appears to share a full and active life with her jurist husband.
The second impeachment effort directed toward Douglas came in 1970 and was initiated by Representative Gerald R. Ford (Rep.), Michigan, the new vice president-designate. The catalyst for the case against Douglas was the substantial income he derived from writing, lecturing and other outside activities. Most specifically improper, Ford said, was the $12,0000 annual fee he received as director of the Albert Parvin Foundation.
Ford and other Republican members of Congress also brought up Douglas's marriages, his controversial writings, his friends and associates and even his judicial philosophy as reasons for impeachment.
After several months of investigation, however, a special subcommittee of the House issued a 924-page report which concluded: "There is no credible evidence that would warrant preparation of impeachment charges."
Douglas, who later told an associate he was considering retirement until Ford's impeachment attempt, resigned his post at the Parvin Foundation and cut back his schedule of lectures. But like other justices, he steadfastly refuses to make public the details of his financial interests or outside income.
On those occasions when the Justice and Mrs. Douglas emerge socially in Washington — usually at small parties or diplomatic occasions — he drinks little more than a glass of Dubonnet. Douglas is allergic to alcoholic beverages, a condition that caused him some problem on recent travels in China where beer or rice wine is served with almost every meal and it is considered impolite not to partake.
Although somewhat aloof in social encounters with strangers, Douglas can warm up quickly when talking about his travels, his favorite hiking trails, and the need for conservation of natural beauty and wilderness areas. These are his three primary topics of interest outside the work of the court.
Douglas reads a great deal at home and still hikes 15 miles or so on most weekends — down from the 25 miles of a few years ago. He forsakes the heavily used trails near Washington in favor of the more remote areas of Virginia and Maryland. His wife frequently goes along.
For a man in his seventy-fifth year, Douglas appears to be in good health. He is neither impeded by nor greatly concerned about the small electronic device — a "pacemaker" — that was surgically implanted in his abdomen in June 1968 to regulate a slow heart-beat.
Probably Douglas's closest brush with death was 23 years ago when a horse rolled over him, crushing his rib cage. He recovered and laughed off the incident as "part of my training program."
Former Douglas law clerks say they can tell what books he is reading by the language he uses in writing his opinions.
These days he is reading books about China. He did prodigious research on China before his visit there in August. On returning to Washington early this month he asked for another half a dozen books on China from the Supreme Court library.
Douglas has written extensively about his travels to other countries and there is speculation that he soon will do a book on China. There are also reports of another important Douglas writing project — his autobiography. One source says that the first of several volumes has already been sent to a publisher.
[From the St. Louis Post Dispatch, Oct. 18, 1975]
JUSTICE DOUGLAS: NEW "GREAT DISSENTER"
(By Curt Matthews)
On a Friday night in late September, the high school football team is the usual point of focus in Middletown, O. The "Middies" played Roger Bacon High School of Cincinnati on Sept. 28, but instead of going to the football game a number of the town's residents went to the Middletown campus of Miami University (Ohio) to hear Supreme Court Justice William O. Douglas talk about "participatory democracy."
Middletown is a company town — Armco Steel. It is a union town — United Steel Workers. It is a Republican town that twice in the last five years has supported Richard M. Nixon for the presidency.
The Dave Finkelman Auditorium was packed and the audience gave Douglas a standing ovation when he rose to speak. But by the time he had finished, it was clear not everyone liked what he had heard.
Douglas on corporations: "The Federal Government is owned and controlled by organized lobbies and corporations ... The Government is of the corporation, by the corporation and for the corporation."
Douglas on unions: "Unions are the same as corporations. The right of the people to read, write, think and do as they choose pertains not to organizations. It pertains to individual people."
Douglas on recent presidential policy: "The things that have been going on — the wire taps, the surveillance of mail, the drawing up of enemies lists — simply don't comport with true democratic traditions."
In his hour-long lecture Douglas marked off the firm cornerstones that underlie his 34 years of labor in the court.
He spoke of the threat of monopolies, the plunder of bureauracy grown fat and powerful, the danger of secrecy in government, and the need for dissent in a democratic system.
Douglas prefaced his remarks by saying that he spoke not as a member of the Supreme Court, a man of the government, but as private citizen worried about a lot of things he has seen in this country and in the world.
What concerned him most?
"My friends, the greatest specter hanging over our country is the threat of presidential war. As the world's resources become more scarce, and emerging nations gain new industrial strength, there will be great pressures loose in the world. If we let presidential war become the standard, then the country is doomed."
There is a ring of authority in the concerns of Douglas, for he has demonstrated over the years an approach to world issues that has been both enlightened and prophetic.
Long ago he advocated resuming diplomatic relations with mainland China; he has rejected the philosophy of the cold war, and he was opposed early to America's misadventures in Southeast Asia. Likewise, his espousal of unpopular legal positions often has paved the way for change.
For example, in 1952, Douglas dissented when the court ruled that state school authorities could dismiss teachers who refused to take "loyalty oaths" swearing they had not associated with Communists. In 1967, the court came around to the Douglas view holding that removal of a teacher for the "mere advocacy of abstract doctrine" was unconstitutional.
Douglas was again ahead of the court in his concept of privacy in 1952 when he dissented from a Supreme Court ruling that permitted a Washington (D.C.) transit company to broadcast radio programs on buses and streetcars.
Douglas agreed with a lower court ruling that the transit riders have a right to silence and that broadcasts that could not be "tuned out" were an invasion of the right to privacy.
It was not until 1965 that a majority of the Supreme Court finally agreed with Douglas that something called "the right to privacy" actually was protected by the Constitution. In striking down state laws in Connecticut prohibiting the sale and use of birth control devices Douglas spoke for the court in pointing out that "a right of privacy (is) older than the Bill of Rights."
The dissenter plays a crucial role in the deliberations of the Supreme Court.
As Justice Potter Stewart explains it, "Dissents sometimes become opinions and are important for that reason. They hold out alternatives and options over the years and sometimes have the role of persuading other members of the court to change their thinking."
In his years on the court, Douglas has held out an alternative on 535 occasions when his colleagues decided an issue the other way. Until Douglas and the late Justice Hugo L. Black established their reputations, the title of "Great Dissenter" was usually reserved for Oliver Wendell Holmes. In his 30 years on the court, Holmes wrote 196 dissents.
Retired Justice Tom C. Clark is one who believes that Douglas now has a particularly crucial role. He sits on a court with four appointees of President Richard M. Nixon who often exercise what is called "conservative" judicial philosophy.
Dissents are always circulated among the justices before an opinion of the majority is made final. The thrust and logic of a well-reasoned dissent can sometimes temper or even change entirely the thinking of the court's majority.
"I'm sure his dissents have leavened some of the majority opinions of recent years," Clark says. "Douglas is able to throw darts very accurately at the opinion of a majority. Sometimes his dissents would just demolish you."
Is there a case in which Douglas has taken particular pride? Douglas says no. But then he begins talking about 1951 when the court engaged in what he calls "a travesty" — Dennis vs. United States.
The case involved the conviction of 11 leaders of the Communist Party in the United States for conspiring to teach and advocate the overthrow of the U.S. government. The Supreme Court upheld the conviction in a 6-to-1 decision with Douglas in eloquent dissent.
The court's majority said the teachings of the Communists represented "a clear and present danger" to the Government. Douglas said of the teachings and literature circulated by the Communists: "These books are to Soviet communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent and the chances of its success less likely ... Free speech has occupied an exalted position because of the high service it has given our society ..."
Thus Douglas, at a time when fear and suspicion were rampant in the U.S., was fully willing to put his trust in the good sense of the people.
Douglas, like his personal hero and contemporary on the high court, the late Justice Black, believes the First Amendment guarantees of freedom of speech and expression, and of the press, are absolute rights that should stand without attached conditions thought up by judges.
Even those who admire Douglas most, however, concede his weakness as a legal technician.
Some lawyers complain of a superficial quality in his work that makes them uneasy in drawing on it as examples of what the law should be. One colleague on the court called him "careless to the point of distraction."
Former Supreme Court Justice Abe Fortas says, "Douglas is a perfectionist, but not in the normal understanding of that word. He is a perfectionist about ultimate things like the meaning of the First Amendment, not about petty or transient things, not, for example, about the way he does his work."
Prof. Morris D. Forkosch of the Gonzaga University law school, who has written an essay-review of Douglas's controversial book, "Points of Rebellion," and has known Douglas for many years, says of him:
"I would look upon Douglas as not among the greatest minds or intellects in the history of the Supreme Court, but among those who were the great spurs to conservative benches. He is a firm believer in judicial activism when no other means is available to remedy our nation's ills — whether economic, judicial, or social."
John P. Frank, a Phoenix, Ariz., lawyer and former constitutional law professor at Harvard University, says of Douglas, "He has been a bridge from an old to a new liberalism, spanning almost a third of a century with a consistent freshness of outlook. Above all else, Douglas espouses freedom."
His longevity on the court has in itself a particular value to the development of law. As a present member of the court said:
"It's important in our proceedings — particularly in conferences — when a Justice can say, 'I remember when we faced that problem 25 years ago.' Anyone who knows personally where the court's been, and why, can help us avoid getting into trouble in the future."
Peter M. Kreindler, who was a law clerk for Douglas in the last term of the court, says, "It is possible for him to sit and personally view a case in the context of Supreme Court history and the history of the country."
After one-third of a century on the court, Douglas now occupies his own niche in that history.
How will he be judged when historians of the future examine his career?
Perhaps Douglas inadvertently provided his own answer in paying tribute to his close friend, Thurman Arnold, shortly after Arnold's death in 1969.
"Mr. Justice Holmes," Douglas said,"thought that when a man came to Judgment, St. Peter would examine him not only for morality but for intellectual achievement as well. I never talked to Thurman about it, but I'm sure he'd agree. And I suspect he'd go farther and predict that St. Peter would also examine a man on the extent to which he had been a vital part of the problems and challenges of his time. However Thurman is judged, he comes out a most remarkable man."
However Justice William O. Douglas is judged, he, too, comes out a most remarkable man.