“We who believe in liberty must indeed live our ethic if it is to be an important influence abroad.” , William O. Douglas
Lincoln said, “It has ever been my experience that folks who have no vices, have very few virtues.” By that measuring stick, William Orville Douglas is one of the most interesting Supreme Court justices of our time. He was loved, he was hated, and very few people who knew him were indifferent. He was never boring personally or professionally, as his four marriages, three divorces, and two attempts to impeach him demonstrate.
In October 1949 during a horse ride at Wallowa Mountain in Washington state, he had a life-threatening accident. At the Court, the joke went something like this: “Douglas fell off a cliff.” and the reply came back, “Where was Frankfurter?”. They despised each other; Justice Frankfurter considered Douglas “truly evil” and Douglas considered him a “prevaricator” as well as intellectually lazy.
William O. Douglas was appointed to the Supreme Court in 1939 by President Franklin Delano Roosevelt, after serving as the third Chairman of the Securities and Exchange Commission (1937-1939). He replaced renowned liberal Justice Louis Brandeis (1916 – 1939) who was retiring; Brandeis even lobbied FDR to appoint Douglas.
At 40 years old, Douglas was the second youngest justice to serve on the Court and is still the longest serving member of the Court with 36 years and 209 days even after he resigned in 1975 after a stroke. Over his career as a Justice, he authored the most opinions, the most dissents, gave the most speeches, and wrote the most books of any member of the Court.
While teaching law at Yale, he applied a “legal realist” (read as a more “human”) approach of the law, being more results-oriented than doctrinal. He believed that the law was a social tool that should be used to achieve progressive change – but by legislatures, not judges.
Over time, his “realist” approach and his New Deal philosophy became more expansive with regard to the Constitution and the Bill of Rights and how it applied to cases with regard to interpretation, especially in First Amendment freedoms of speech and religion, civil rights, and in particular, privacy. In other words, a true “liberal” approach, where he considered both documents to be “living with the times” with regard to cases, in contrast to a static, literal interpretation, where some insisted that the only correct interpretation of the Constitution was the view intended by the Framers with a strict fidelity to the constitutional text.
Above all, he believed the law survived because it adapted to new conditions; for instance, someone from the 19th century wouldn’t know or understand electronic surveillance in the 20th century, so what good would their decisions be today. As a liberal, he believed in an individual’s right to privacy and strict limits on government intrusion, the “right to be let alone”, as Brandeis said.
In addition, the country itself was demanding new rights after World War II, which required more than a literal reading of the Constitution. Douglas believed the Constitution should be interpreted to give each person the greatest room possible to shape his or her life autonomously, without intervention from the government. The Constitution, properly understood, was a blueprint for personal liberty. This would be a philosophy advocating the Founders’ spirit of the law, not the letter of the law.
Douglas was also an avid outdoorsman with a love for nature, the environment, and travel to experience different cultures. This greatly influenced his life on the Court because it provided him with an “ordinary man’s” view of the world. He sincerely believed that judges should not be cloistered, otherwise they would develop a narrow, out-of-touch view of the world.
He was considered an activist since he willingly reached out to decide issues. Justice Douglas concluded Go East, Young Man by expressing his ideas on the role of a Supreme Court Justice in society and the rules of disclosure of outside interests by federal judges. He considered that when he voted with a majority of the Court to uphold an Act of Congress that subjected to income taxes the salaries of all federal judges taking office after June 6, 1932, he voted himself first-class citizenship. That took place in O’Malley v. Woodrough, one of the first cases on which he voted. After that, he considered that he was free to vote, and to participate in local, state, and national affairs, if such affairs were not political or partisan in nature. That summed up his philosophy about being a judge and a citizen.
Right to Privacy
One notable case in particular that centered around Privacy during Douglas’ time on the Court was Griswold v. Connecticut (381 U.S. 479) (1965) and it turned out to be one of Douglas’ most important decisions.
In Griswold, the heart of the argument was a battle by family-planning organizations to take advantage of developing medical technology that would make birth control an important part of Americans’ lives. Before the birth control cases, the Supreme Court viewed privacy as debates over constitutional criminal procedures and the constitutional status of the family.
The Connecticut Planned Parenthood League defendants Dr. C. Lee Buxton, a medical director, and Estelle Griswold, executive director, and staff had provided contraceptive information to married couples. The Connecticut state’s attorney had warned family-planning advocates that he intended to enforce the Connecticut statute making the practice of using or advising the use of contraceptives a criminal offense. Buxton and Griswold were convicted as accessories because they had advised couples to violate the contraceptive law.
In an earlier 1961 case for judicial declaration, Justice Frankfurter wrote for the Supreme Court that the case was speculative since the state had not prosecuted anyone under the law; Douglas dissented on this case. In the 1965 case, Douglas concluded that emanations and penumbras in various guarantees of the First, Third, Fourth, Fifth, and Ninth Amendments created a constitutionally protected zone of privacy. Therefore, Connecticut’s invasion of this right to privacy was not permissible.
Justice Douglas wrote the opinion for the 7-2 majority. “We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring, and intimate to a degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
Douglas later explained it this way. “There is no mention of of privacy in our Bill of Rights but our decisions have recognized it as one of the fundamental values those amendments were designed to protect.” In Douglas’ view, the constitutional right of privacy was directly rooted in the Bill of Rights, which protects some rights explicitly (free speech), and some rights implicitly (free association), and still others in both ways. The right of privacy was, for Douglas, in the latter compound category of constitutional rights and therefore had both absolute (freedom of communication) and non-absolute (freedom to choose an abortion) aspects.
The Griswold decision laid the foundation for several subsequent cases, including Roe v. Wade (410 U.S. 113) (1973), where the Justices found conversations between a woman and her doctor to be private, and Doe v. Bolton (410 U.S. 179) (1973), a landmark case which overturned the abortion law of Georgia.
One Person, One Vote
Today, our current system for representation is “one person, one vote”. This wasn’t always the law. There were a number of apportionment issues in front of the Court that helped determine a formula for how representation should be determined. In the first apportionment case in 1946, the Court heard Colegrove v. Green (328 U.S. 549) (1946), an Illinois case which sought relief from the state legislature’s inability to provide fair representation.
In some cases, the ratio of 10,000 citizens to one US representative was treated the same as 100,000 (or even 900,000) citizens to one US representative. In a 4-3 decision, Justice Frankfurter warned his brethren that the courts had neither the power nor the wisdom to solve the problem. The question was held not to be a justiciable one but a political one that should be addressed by Congress; Douglas dissented along with Justices Black and Murphy.
Then in 1962, the Court declared the question justiciable in Baker v. Carr (369 U.S. 186) (1962) in a 6-2 decision, a Tennessee case where representation had not changed since 1901, even though the population had increased substantially. Two years later, in Reynolds v. Sims (377 U.S. 533) (1964) in a 7-2 decision, the Court required all states to apportion their legislatures on an equitable basis. Between the Baker and Reynolds cases, Douglas set forth a formula of “one person, one vote” that answered one of Frankfurter’s major objections that courts could not fashion judicially discoverable and manageable standards.
Douglas elaborated more on the decision in his autobiography: The Frankfurter view was often cited by authors as being the view of the Court. But the Court had never so held. While a majority had each time refused to entertain such as suit, the reasons varied. For example, it was common to say that the particular suit had “no equity” in the sense that the challenged election would be over before a federal court could adjudicate the merits. When Baker v. Carr – which challenged the failure of Tennessee to reapportion state legislators among the counties despite substantial population changes – triggered a careful analysis of the apportionment decisions, it became clear that the Court had never endorsed Frankfurter’s view.
Today, “one person, one vote” is considered the standard even though its roots started with the suffrage movements as “one man, one vote”.
In 1959, the Court heard Frank v. Maryland (359 U.S. 360) (1959). Baltimore health inspectors wanted access to a home to check rat infestation, but the owner refused entry since the city worker did not have a warrant. The owner was subsequently convicted for refusal to allow entry and appealed to the Supreme Court, which found in favor of Maryland. Justice Frankfurter wrote the 5-4 majority opinion, but Douglas disagreed. Up to this point, Fourth Amendment cases dealt mostly with criminal cases, therefore, justices viewed this through a narrow lens when weighing the facts.
He wrote a draft of the dissent, circulated it, and three justices (Warren, Black, and Brennan) immediately switched their vote. Justice Whittaker almost joined Douglas, but remained with the majority after some intense lobbying by Frankfurter.
Eight years later in the Camara v. Municipal Court case (387 U. S. 523) (1967), the Court overturned Frankfurter’s opinion and adopted Douglas’ view that a search conducted by the government, either by criminal or civil officials, is still a search and subject to the Fourth Amendment. Douglas’ unconventional analysis asked the right question and reached the right answer.
Although, these are only three cases from Douglas’ almost 37-year career on the Court, they were landmark cases in a sense because Douglas interpreted them in a wider judicial view than had previously been considered, and in doing so, established freedoms we take for granted today.
Douglas did have his weaknesses. There are three primary criticisms leveled at him by colleagues and Court-watchers. The first was his liberal political views. FDR selected him for the Court because of his views promoting the common good and his notable performance against financial institutions at the SEC. He was a New Dealer at his core, one who favored the public’s well-being over corporations. This was a cause of friction in his later years on the Court as it started to become more conservative in its’ views.
The second reason was how he arrived at his decisions. Instead of following strict standards of judicial decision making, he often went right from question to result with only the barest justification, or with a rationale that stretched a tenuous or unacceptable mode of reasoning among his colleagues. Often, he would not share how he arrived at some of his opinions because he didn’t have a lot of patience for formalities, although it’s clear he could write a detailed and sustained analysis.
The third reason was his failure to build collegial coalitions on the Court. He did not seem to care if he spoke for the majority or only for himself. It’s possible that he could not or would not play the game of coalition building, but in many respects, this is because Douglas saw himself as a loner and an individualist, being from the rugged West. It could also be that Douglas was more concerned with getting it right, instead of going along to get along.
For all his faults, Douglas played a very critical role on the Supreme Court for almost thirty-seven years. He asked the right questions and typically got the right answers. This helped his colleagues on the bench keep the law sensitive to the needs of a rapidly changing society.
Conclusion – The 20th Century’s Most influential Supreme Court Justice
Justice Douglas was one of the greatest leaders in the constitutional development in the growth of equal protection and substantive due process as a protection of personal liberties. He was responsive to changing societal needs which required a nonconformist, results-oriented judge who asked the right questions to get the right answers, which led to many of the protections we take for granted today. He steadily expanded the boundaries of constitutional rights in the crucial areas of free speech, privacy, and reproductive and sexual freedom.His opinions lay bare the issues, come quickly to the point, and dispose of the case in language that is frequently blunt and bold. Today, many would complain only that he reached the right conclusion by the wrong route. What is even less well appreciated is that more of Douglas’ dissents became the law.
Justice Douglas’ approach to judging may have appeared unorthodox, but his results contributed significantly to the growth of constitutional law in America in the twentieth century.
1. Noah Feldman. Scorpions: the Battles and Triumphs of FDR’s Great Supreme Court Justices.
2. Edward G. Hudon. “Of William O. Douglas, his Autobiography and Other Things”
3. William O. Douglas. The Anatomy of Liberty: The Rights of Man Without Force
4. William O. Douglas. The Court Years 1939-1975:The Autobiography of William O. Douglas
5. Vern Countryman. The Douglas Opinions: An Enduring Legacy to the Rights of Man
6. Stephen L. Wasby. He Shall Not Pass This Way Again: The Legacy of Justice William O. Douglas