DOUGLAS, WILLIAM O. (1898–1980)

William Orville Douglas was appointed to the Supreme Court by President franklin d. roosevelt on April 15, 1939, the youngest appointee since joseph story, 128 years earlier. Illness forced his retirement on November 12, 1975, but he had surpassed by nearly two years the record for longevity of service previously held by stephen j. field.

As a child, Douglas contracted polio and overcame the residual weakness in his legs through long solitary hikes. When his father died before Douglas's sixth birthday, his mother was left nearly penniless with three children. Douglas knew grinding poverty and from his childhood, through all of his education, he worked to support himself and his family. Three views that colored his outlook on life emerged from this period and strongly influenced his legal views. Above all an individualist, he believed that, if given enough room by society, one could achieve full potential through self-reliance and hard work. At the same time, he formed a deep sympathetic bond with the outcasts and disadvantaged of society, particularly the poor, racial minorities, and political radicals. Finally, he harbored a lingering resentment of "the establishment," a view that later matured into a distrust of concentrations of power, whether of the private sector, the police, or government generally. A number of Douglas's legal positions trace their origin to these three linked premises, from his populist view of the antitrust laws to his repeated insistence that the function of the billofrights was to take government off the backs of the people.

Douglas's career prior to his appointment to the Court also explains the hallmarks of his judicial style. (Over the years, even admirers of the Justice's substantive conclusions criticized his opinions for insufficiently explaining the origins of novel legal doctrines, for carelessness in setting out the limits and definitions of the principles announced, and for unnecessary inconsistency in arguments made from one case to another.) Douglas was always a superior student, with an intellect in the genius range, yet from high school through law school, as he explained in his autobiography, "I had been trotting while I learned." His work obligations and his other activities left little time for reflection. Douglas was a quick study.

Douglas described both his initial appointment as a law teacher and his appointment to the Supreme Court as furnishing new leisure for intellectual contemplation. Intellectual habits, however, are not so easily set aside. Douglas was never contemplative. His habit was to analyze swiftly mountains of data, get to the heart of a controversy, and decide. He was impatient with extended discussion as an aid to decision, with long indecision prior to decision, and with excessive concern for peripheral issues. He remained a loner who spent little time trying to proselytize other members of the Court to his own views. In the Court's conferences and in his separate opinions, he was content to state his positions without adapting them to gain greater acceptance from either his brethren or the scholarly community.

Douglas's impatience with traditional legal style in opinions is also easily explained. As a law professor at Columbia and Yale, Douglas was at the center of the realist movement in jurisprudence. (See legal realism.) The realists shared the view that traditional judicial opinions obscured rather than explained the reasons for decision. Douglas's own approach to his fields of business organization, securities regulation, and bankruptcy was to study the political, economic, and social institutions with which the law dealt and to shape the law to cope with contemporary problems presented by those institutions. And so it was with his approach to constitutional law. Douglas viewed much of the elaborate argument in standard Court opinions as so much "Harvard fly paper." Indeed, he delighted in sharp criticism of his opinion-writing style, which he viewed as the carping of the conservative legal establishment. He remained a pragmatist who did not try to develop a general theory of constitutional adjudication. Often he was content to let Justices with whom he agreed develop the overarching theories. He was indifferent to scholarly debates about the abstract limits of judicial activism, and he did not have a consistent theory explaining his own pattern of judicial restraint and active judicial intervention.

The substance of Douglas's constitutional jurisprudence can best be explained by contrast with the views of the two other major figures among Roosevelt's appointees to the Court—felix frankfurter and hugo l. black. Between 1937 and 1939, when these three joined the Court, the chief constitutional controversies were still perceived as those of the previous decade—the Court's "economic due process" theory had restrained state economic regulation, and its "dual federalism" theory had limited federal power to regulate the national economy. The mainstream of constitutional law thought was still preoccupied by the mistakes of the "old Court" in writing its own notions of laissez-faire economics into constitutional limits on state and federal power. All of Roosevelt's appointees shared the opinion that these decisions of the old Court had been erroneous. The major battles surrounding economic due process, and the legitimate scope of federal economic regulatory authority, however, were over before Roosevelt appointed a single Justice to the Court. (See wagner act cases; west coast hotel v. parrish.)

The early 1940s brought new problems, with personal liberty claims asserted under the first amendment, and attacks on criminal convictions for procedural irregularities of constitutional dimension. For Frankfurter, the lessons of the Court's previous excesses in second-guessing state and federal economic regulation applied here. It was inappropriate for judges to block decisions of political majorities simply because judges held deep personal views that those decisions were wrong. Issues of personal liberty involved a balance between legitimate interests of government and claims of constitutionally protected liberty. Judges must defer to reasonable governmental accommodations of these competing interests. Moreover, in the case of challenged state laws, interests of federalism imposed additional constraints.

For a brief initial period, Black and Douglas accepted the Frankfurter position. In Minersville School District v. Gobitis (1940), the first of the flag salute cases, Justice Frankfurter wrote for the Court, sustaining a law compelling salute to the flag against a challenge by children of Jehovah's Witnesses, whose religious beliefs forbade their participation. (Only Justice harlan fiske stone dissented.)

The break with Frankfurter came soon. Black and Douglas shared similar concerns about the rights of minorities and about fair procedures in state and federal criminal trials. In 1942, dissenting in Jones v. Opelika, a case sustaining a state license tax applied to the sale of religious literature, they announced that they had recanted their position in Gobitis. Jones was overruled a year later in murdock v. pennsylvania (1943), with Douglas writing for the Court. The same year, West Virginia State Board of Education v. Barnette overruled Gobitis, with Black and Douglas joining Justice robert h. jackson's opinion.

Even though Black and Douglas often wrote jointly in constitutional cases involving claims of constitutionally protected liberty, it was Black who was the theoretician. Black gradually evolved the views that protection of liberty required the Court to give liberal—and even literal—construction to the Bill of Rights, and that the Bill of Rights restricted not only the national government but also state governments, because, historically, it had been "incorporated" into section one of the fourteenth amendment. (See incorporation doctrine.) Douglas and Black often clashed with Frankfurter on both issues throughout the 1940s and 1950s.

In Adamson v. California (1947) the Court decided, 5–4, that the right against self-incrimination of the Fifth Amendment was inapplicable to the states. Justice Frankfurter, concurring, defended the Court's position that the historic and practical meaning of due process was not contained in the specific provisions of the Bill of Rights, but he also insisted that working out the limits of due process of law required more than personal judgments according to a judge's idiosyncratic sense of justice. Black, joined by Douglas, wrote a lengthy dissent arguing that the Fourteenth Amendment incorporated the "specific" standards of the Bill of Rights.

As time passed, Black, again joined by Douglas, further insisted that the guarantees of the Bill of Rights were specific indeed. Characteristic was their position concerning the First Amendment—that it literally forbade all government restrictions upon the content of "speech," leaving to the government power only to regulate "conduct" (for example, yates v. united states, 1957, separate opinion). Justice Frankfurter predictably insisted that free speech claims involved a balance between competing interests and required deference to legislative choices (beauharnais v. illinois, 1952). During the 1950s, the Frankfurter position usually prevailed. Black and Douglas were often in lonely dissent as the Court sustained a series of state and federal antisubversion measures. With the appointment of Chief Justice earl warren and Justice william j. brennan in the mid-1950s, the dissenting group grew to four.

After Frankfurter's retirement in 1962, the substance, if not the rhetoric, of many of the Black and Douglas dissenting opinions prevailed. Although the Court rejected total "incorporation" of the Bill of Rights, a process of "selective incorporation" of "fundamental" provisions applied nearly all of its provisions to state governments (for example, griffin v. california, 1965, overruling Adamson v. California). The provisions of the Bill of Rights governing procedure in criminal trials were expansively construed in cases such as miranda v. arizona (1966). And while no other Justice accepted the Black-Douglas theory that the First Amendment literally protected all speech, the Court's cases of the 1960s rejected the Frankfurter position that the First Amendment tolerated all reasonable governmental restriction on speech. (See new york times v. sullivan; brandenburg v. ohio.)

The 1960s, however, brought new constitutional problems and a noticeable split between Justices Black and Douglas. There was a negative side to Black's theory pinning activist protection of liberty to the literal meaning of the Bill of Rights. For Black, the Bill of Rights defined not only the minimum guarantees of constitutionally protected liberty but also the maximum. As with Frankfurter's approach, the restrictive branch of Black's theory could be traced to the judicial excesses of the past. The "old Court" had used a natural law approach to write into the Constitution laissez-faire economic policies not fairly reflected in the document's history or text. For Black it was equally wrong for judges to import subjective notions of personal liberty into the Constitution. If judges balanced competing interests in interpreting the Constitution, there was danger beyond the certainty that judges would "balance away" constitutional restrictions with which they were unsympathetic. Judges might also use an open-ended balancing process to create rights according to their subjective predilections.

In Adamson v. California, two other dissenting Justices—frank murphy and wiley b. rutledge—had agreed with Black and Douglas that the Fourteenth Amendment incorporated the Bill of Rights as restrictions on state government. They had disagreed, however, with the contention that the Bill of Rights was the outer limit of constitutionally protected liberty. In their view, the Fourteenth Amendment's conception of due process required "fundamental standards of procedure … despite the absence of a specific provision of the Bill of Rights." Black and Douglas, on the other hand, had condemned the "natural law-due process formula" which allowed courts "to roam at large in the broad expanse of policy and morals and to trespass, all too freely, on the legislative domain.…"

In the late 1940s and the 1950s Douglas continued to support Black's literalist position. Occasional votes can be identified during this period, however, to suggest that his agreement with Black was only skin deep. In Francis v. Resweber (1947), decided only months before Adamson, the Court permitted a state to electrocute a man after a first attempt at his execution had failed. The vote was again 5–4. This time Black concurred in the result, without opinion. Douglas, along with Murphy and Rutledge, joined Justice harold burton's dissent. The same year, another 5–4 vote, in Kotch v. Board of River Pilot Commissioners (1947), sustained a Louisiana law that limited the occupation of river pilots to friends and relatives of incumbents. Black wrote for the Court, but Douglas and Murphy joined Rutledge's dissent.

In the late 1960s, more cases arose testing the negative side of Black's constitutional literalism and the break with Black had become apparent. (Interestingly, Douglas never openly conceded that he had recanted his agreement with Black in the Adamson case. Only in the posthumously published second volume of his autobiography does he admit that the Murphy and Rutledge position was one with which he "in the years to come, was inclined to agree.") The pattern of voting disagreements with Black in the 1960s was no longer episodic but dramatic. Their differences can be seen on a wide range of issues, all centering on Black's consistent rejection of what he called the "natural law" approach to constitutional adjudication and Douglas's growing willingness to go beyond the literal text of the document.

Douglas wrote the Court's opinion in harper v. virginia state board of elections (1966), striking down poll taxes in state elections under the equal protection clause. Black dissented. Douglas also wrote for the Court in levy v. louisiana (1968), striking down a state law discriminating against children born out of wedlock. Again, he relied on an expansive interpretation of the equal protection clause. Justice Black was in dissent and, three years later (Labine v. Vincent, 1971), wrote an opinion for the Court that seemed at the time to overrule Levy. Here, Black emphasized the absence of any "specific constitutional guarantee." Douglas, of course, was in dissent. Douglas endorsed open-ended theories extending the Fourteenth Amendment's restrictions on state action to actions by private business. Black disagreed, insisting that in the absence of federal legislation, the Fourteenth Amendment was inapplicable to private conduct. (See bell v. maryland.) With reference to limitations on the time, place, or manner of speech activities on public property, Douglas was prepared to balance the need for available avenues of dissent against competing state interests, if the balance favored freedom of expression. Black disagreed. In adderley v. florida (1966), a 5–4 decision sustaining a sheriff's order that protesters leave a jail driveway, Black wrote for the Court and Douglas for the dissent. Finally, Douglas was prepared to interpret the Constitution to require government to follow fair criminal, civil, and administrative procedures even where those requirements could not be tied to specific guarantees of the Bill of Rights. Black, of course, disagreed. (See in re winship; goldberg v. kelly.)

The most dramatic clash between the two former judicial allies occurred in griswold v. connecticut (1965). Douglas wrote for the Court, striking down a state law forbidding the use of contraceptive devices. In that case, Black's dissent was predictable, since no provision of the Bill of Rights dealt with the issue. Douglas made a valiant attempt in his opinion to maintain the façade of his agreement with Black eighteen years earlier in Adamson. The opinion explained that the right of marital privacy was within "penumbras, formed by emanations" of specific guarantees of the Bill of Rights. (See penumbra theory.) The façade was thin, particularly as Douglas relied on the ninth amendment for the proposition that constitutionally protected liberty was not limited to the specific guarantees of the Bill of Rights. Just how far removed from even the "penumbras" of the Bill of Rights was Douglas's own conception of the constitutional guarantee of privacy became apparent years later in his concurrence in the abortion cases (Doe v. Bolton and roe v. wade, 1973; see also right of privacy.) Here, he explained that the term "liberty" in the Fourteenth Amendment, as he read it, was broader than the Court's conception of a right to freedom of choice in the areas of marriage, divorce, procreation, contraception, and the education and upbringing of children. It included "the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll or loaf." These, too, were rights that he insisted could not be abridged by government absent a compelling state interest.

Douglas had come to believe that the excesses of the old Court in the economic due process cases had not been that the judges read personal values into the fabric of the Constitution. The problem was, rather, that the Court's laissezfaire economic values were the wrong values. For Douglas, the "right" values had been clear all along. They required protecting the individual's right to self-fulfillment, protecting the politically powerless from unsympathetic legislative majorities, insulating the individual from excess concentrations of governmental and private power, and insisting that government procedures be fundamentally fair.

These values best explain Douglas's decisions, up until the end. In his own written instructions for his funeral service, conducted in Washington, D.C., in January 1980, Douglas requested that Woody Guthrie's song "This Land is Your Land" be sung. He patiently explained that some had falsely assumed the song to be a hymn to socialism. Quite to the contrary, he said, the song was in praise of the freedom to wander from place to place which had received constitutional protection in his opinion for the Court in Papachristou v. City of Jacksonville (1972).

The Papachristou decision was a fitting epitaph. Douglas had written for a unanimous Court striking down a local vagrancy ordinance under the due process clause of the Fourteenth Amendment. The technical basis for the decision was that the ordinance was unconstitutionally vague. Insofar as activities that were "normally innocent" were made crimes, an unfettered discretion was placed in the hands of the police. But, quoting Walt Whitman, Henry David Thoreau, and Vachel Lindsay, he went on to argue that wandering and strolling were more than merely "innocent" activities. They were "historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence." The Papachristou opinion, in its results, its style, and the values it enshrined, was vintage Douglas.

William Cohen
(1986)

Bibliography

Countryman, Vern 1977 The Douglas Opinions. New York: Random House.

Douglas, William O. 1974 Go East, Young Man: The Early Years. New York: Random House.

——1980 The Court Years: 1939–1975. New York: Random House.

Karst, Kenneth L. 1969 Invidious Discrimination: Justice Douglas and the Return of the "Natural-Law-Due-Process Formula." UCLA Law Review 16:716–750.

Powe, L. A., Jr. 1974 Evolution to Absolutism: Justice Douglas and the First Amendment. Columbia Law Review 74:371–411.

Simon, James F. 1980 Independent Journey: The Life of William O. Douglas. New York: Harper & Row.