The Court Years of Associate Justice William O. Douglas and His Impact on American Society

WILLIAM O. DOUGLAS served on the United States Supreme Court for over 36 years, the longest term of any Justice. He participated in more than 200 opinions. He wrote more dissenting opinions than any other Justice. An attempt at his impeachment failed. He married four times, the last to a 23-year-old cocktail waitress. He was an absolutist on the guarantees of freedom in the Bill of Rights. William O. Douglas was a paradigm of the man described by Henry David Thoreau in Walden in 1854:

If a man does not keep pace with his companions, perhaps it is because he hears a different drummer. Let him step to the music which he hears, however measured or far away.

To his supporters William O. Douglas was one of the most effective and influential justices in the history of the Supreme Court. He was a conservationist, naturalist, traveler, and author of more books on these subjects than any one else on the American scene. During his tenure on the Court he was the foremost exponent of individual liberty, particularly freedom of speech. It was his belief that a commitment to man's freedom and nature's glory were one and the same. Yet despite his passions for the rights of the individual he was the subject of attack and denunciation. In the opening sentence to his autobiography he wrote, "It seemed to me that I had barely reached the Court when people were trying to get me off.

Douglas has been offended and defended since he was nominated to the Supreme Court by President Franklin Delano Roosevelt in February 1939 and it is not intended here to further the denunciations or rally to his defense. The long tenure of Douglas on the Court was instrumental in his producing a multiple of decisions that reflected his principles, beliefs, and values, for "as a man thinketh, so is he." An examination of his decisions will help to determine the importance of their impact and influence on American society.

A brief look at his vita provides a key to Douglas' disposition and character. Born on October 16, 1898 in Minnesota, he was the son of a Presbyterian minister who died when Douglas was a child. He contracted polio as youth and recovered because of the persistent massaging by his mother and his own determination not to be a loser. After graduating from college in Walla Walla, Washington, and a short military service, he entered Columbia Law School, graduating in 1925, second in his class. Later he taught law at Columbia and Yale and then moved to the Securities and Exchange Commission where he became its chairman in 1937. On April 17, 1939 he was confirmed by the Senate to the Supreme Court by a 54 to 4 vote, the youngest justice since Joseph Story in 1811. He lost his Last Appeal on January 19, 1980, in Washington, D. C.

The first test of Douglas' belief in the validity of the Bill of Rights as the protector of the individual's birthright came early after his appointment to the Court. In the matter of Minersville School District v. Gobitis, Lillian and William Gobitis believed they were obeying a higher law as Jehovah Witnesses by not permitting their children to salute the flag in a public school. A district judge ruled in favor of the Gobitis, but the school board appealed and the high court agreed to hear the case. Every Roosevelt appointee, Reed, Murphy, Black, and Douglas, agreed with Chief Justice Holmes in upholding the school board and the flag salute requirement. Only Justice Harlan Stone dissented. Later Douglas would take the other side of the argument, as we shall see in the Japanese Exclusion cases.

Kiyoshi Hirabayashi, an American citizen of Japanese parents was completing his final year at the University of Washington. He had been sentenced to a prison term for violating a curfew order and failing to report to a civil control station. He went to court, claiming his rights under the Fifth Amendment. The Court including Douglas decided the military had acted responsibly and Douglas wrote in separate opinion that the bombing of Pearl Harbor had made Japanese invasion of the West Coast a real threat. Again Douglas joined the majority in Korematsu v. United States where the issue was the constitutionality of assembly and relocation centers across the western United States.

Douglas struggled with the constitutional issue and the denial of due process. He circulated a four-page dissenting opinion, addressing the legitimacy of the military plans in uprooting 120,000 persons, over 70,000 of whom were American citizens. His dissent met with a storm of criticism from other members of the Court and on December 6, 1942, Douglas, with personal pain, changed his mind. He would later write, "The evacuation case was ever on my conscience."

Douglas later had a chance to redeem himself. On December 18, 1944, the Court vindicated Mitsuye Endo, an American citizen of Japanese descent, who had sued for a writ of habeas corpus after receiving a permit to leave a relocation camp in Utah but not allowed to do so. Douglas wrote the majority opinion, holding that she had been illegally detained after her loyalty had been verified. He wrote, "Once loyalty is shown, the basis for military decision disappears." The Endo case was a turning point in Douglas's thinking as evidenced by his writing in later years, "Preventive detention is inconsistent with the Fourth and Fifth Amendments of our Constitution." The changes in his opinions came during his early years as a justice, years when Douglas was clearly and vigorously into the workings of the Court and are best demonstrated in his dissent in Dennis v. United States.

In Dennis the issue was the validity of the Smith Act of 1940 as applied to the national officers of the Communist Party. The defendants were charged with advocating the forcible overthrow of the government by organizing a group which, in turn, would advocate such subversion. More precisely, not only did the defendants themselves advocate the downfall of the government, but further conspired to organize and teach others to do so by teaching from books written by Marx, Lenin, and Stalin and others. The Smith Act was upheld by a majority of the Court, with Douglas writing the dissenting opinion. His admirers have generally chosen his opinion as his single most outstanding expression on the Supreme Court. Douglas wrote that he would have no difficulty with the majority decision if the defendants had been teaching people to commit sabotage, assassinate the President, steal public documents, or plant bombs. However, he could find no evidence that any such thing occurred. Instead, the record showed that the defendants had promoted the works of Stalin, Lenin, Marx, and Engles. He wrote that their books were to the Communists what Mein Kampf was to Nazism and that the inherent ugliness of Communism is best understood when their books are read. As their deceit and cunning are exposed the chances of their success is virtually none. The defendants preached with hopes that their creed would be acted upon, but the Supreme Court had failed to ban the books from library shelves.

"The crime," Douglas wrote, "is not what is taught, but who the teachers are, which is to make freedom of speech turned not on what is said, but on the intent with which it is said. Once we start down that road we enter territory dangerous to the liberty of every citizen." Douglas said, "What we are dealing with here is freedom of speech alone, and not with acts of sabotage or unlawful conduct." This was one of Douglas' most stirring defenses of freedom of speech, which, he declared, must remain inviolate if American tradition is to be preserved.

Douglas was actually embracing an eloquent earlier passage from Justice Brandies. Douglas himself was militantly opposed to Communism, holding no brief for Communists in the United States Government or anywhere else and his anti-communism had been a matter of public record for years. But to him, opposition to Communism never justified the depravation of due process rights of American citizens whatever their political beliefs. His defense of due process was a benchmark of Douglas decisions.

Despite his opposition to Communism he continued to defend the right of due process for Communists charged with treason against the country. The most notable case was that of Julius and Ethel Rosenberg who were charged with violation of the 1917 Espionage Act under which they had transported secrets of the atom bomb to the Russians between 1944 and 1950, thus allowing the Soviet to develop the bomb 20 years earlier than they did. On six different occasions the Court rejected every plea for a review of their conviction. For five times Douglas agreed, but on the sixth he changed his mind, but the vote for certiorari was 3-6 or one vote short. As the clock was ticking down toward the "11th hour" of their execution, Douglas acted alone. The Court had recessed for the summer when, on June 15, 1953, Douglas granted a stay of execution the full Court had denied. Douglas had not listened to the Rosenberg's regular counsel but to two earnest and frenetic lawyers, Fyke Farmer of Nashville and Daniel Marshall of Los Angeles. What convinced Douglas to issue a stay was a new point of law: the Rosenbergs had been unlawfully sentenced under the Espionage Act of 1917 that allowed a judge to fix the death penalty. They should have been convicted, it was claimed, under the Atomic Energy Act of 1945 which provided that the death penalty could only be imposed by a jury.

After issuing the indefinite stay, Douglas rushed off on vacation. In the meanwhile, Chief Justice Frederick Vinson ordered an immediate sitting of the Court to rule on Douglas' order. The government's case was simple and the stay was vacated: the Rosenberg's had been properly sentenced before the passage of the Atomic Energy Act. Justices Black, Frankfurter, and Burton agreed with Douglas that the question raised should be referred to the Court of Appeals, where, according to Douglas, it should have been filed at the beginning. But since the request for stay was on a Tuesday and the Rosenbergs scheduled to die on the following Thursday, Douglas felt there would have been no harm in the delay since the Rosenbergs were behind bars and the Appeals Court would make its decision in October. Again Douglas raised the question of due process, for the Rosenberg conspiracy had run from 1944 to 1950, and in 1946, while the conspiracy was under way, Congress amended the law in the Atomic Energy Act to make the death penalty only applicable when a jury recommends it. Due process, according to Douglas, demanded that the Court of Appeals hear the case.

RIGHT OF PRIVACY

Douglas felt that there should be a balance of treatment with new problems which a previous generation of justices never had to consider. The case of Griswold v. Connecticut is illustrious of the point. The state had a statute prohibiting the use of contraceptive devise. A Planned Parenthood League official and a doctor at Yale Medical School, both of whom had advocated birth control, were charged with violating the statute. Douglas wrote the majority opinion, holding that the statute was unconstitutional because it invaded the right of privacy. Although not presented as a matter of freedom of speech, Douglas related the case to that right because a basic freedom of the First Amendment depended on free association of people. It was a breakthrough decision as Douglas introduced his theory of penumbra for the first time. He wrote, "The First Amendment has a "penumbra" where privacy is protected from government intrusion and the privacy of marital association is thus entitled to First Amendment protection." (A penumbra is a partial or imperfect shadow outside the complete shadow of an opaque body.) Douglas wrote

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 for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life . . . yet it is an association for as noble a purpose as any involved in our prior decisions.

The right of privacy was one of Douglas' most ardent causes, even in the face of opposition that objected to the notion of the right of privacy by holding it was not a constitutional issue for three reasons: privacy is not mentioned in the text of the Constitution, it seems to embody substantive due process, and because it serves as a vehicle for activist judges to enforce their personal views. Douglas answered that while he took the Constitution to mean what it says, he believed his judicial role involved "the adjustment of the Constitution to the needs of the times." In other words, the Constitution could be interpreted in light of modern day circumstances. In his concurring opinion in Roe v. Wade Douglas explained, "There is no mention 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.

Douglas believed that the constitutional right of privacy was deeply rooted in the Bill of Rights which protects some rights explicitly (freedom of speech) and others implicitly (free association). There is no doubt that the right of privacy issue was the result of judicial activism and that Douglas was undoubtedly an activist judge. He once declared, "I would rather create a precedent than find one, because the creation of a precedent in terms of a modern setting means adjustment of the Constitution to the needs of the time." He believed his constitutional role as a Supreme Court justice required judicial activism.

RIGHT OF ASSEMBLY

The Supreme Court divided 5 to 4 on Adderly v. Florida, upholding a conviction of trespass by student demonstrators who protested segregation policies on city jail property. Douglas wrote the opinion for the four dissenting justices, declaring that a protest could take place on any seat of government whether it be the Tower of London, the Bastille, or a small county jail. He wrote, "The right to petition a redress for grievances has an ancient history and is not limited to writing, sending a telegram to a congressman, writing a letter to the President, governor, or mayor. He found that jail ground meetings, peaceable without violence or threat of violence were not in violation. If these protests against injustice were suppressed, we would increase the forces of frustration which the conditions of second class citizenship are generating.

THE QUESTION OF OBSCENITY

One of the single most important phases in Douglas work was in the field of individual liberty. He served on the Supreme Court during the New Deal days, World War II, and the McCarthy hearings, the repression following the war, and through days of integration, redistricting and reapportionment of American legislatures under the leadership of Chief Justice Earl Warren. Now arose the question of obscene literature.

Since March 1873 when Congress first legislated against sending obscene literature through the mails, American courts had to deal with literary censorship. Over the years the public had grown more tolerant and the courts had shown liberalizing tendencies, opening the way for the publication of books that earlier would have been banned. But in the case of Ralph Ginzburg the Supreme Court took a stricter view and upheld a prior conviction for sending obscene literature through the mail. Douglas was joined by Justice Black and wrote a dissenting opinion.

Catering to the most eccentric tastes may have social importance in giving the minority an opportunity to express itself rather than to repress its inner desires. I find it difficult to say that a publication has no social importance because it caters to the taste of the most important unorthodox among us. We members of the Court should be the last to say what should be orthodox in literature.

FREEDOM OF RELIGION

Douglas continued to write innovative opinions as was demonstrate in a case involving Jehovah's Witnesses who challenged municipal ordinances requiring the payment of a license fee for door-to-door solicitation. With a new majority in the Court the ordinance was struck down as a violation of the Witnesses' First Amendment rights. Perhaps remembering his father riding the religious circuit in Minnesota, Douglas found that the Witnesses' evangelism occupied "the same high estate under the First Amendment as do worship in churches and preaching from pulpits."

RACIAL DISCRIMINATION

On May 17, 1954, the Supreme Court rendered one of its most important decisions in its history, finding unanimously that racial segregation in public schools was unconstitutional in the case of Brown v. Board of Education of Topeka, Kansas, that all separate education facilities were "inherently unequal." Douglas wrote, "So spoke the Supreme Court at a point in history when intolerance and racial hatreds were tearing some nations apart."

CONCLUSION

William O. Douglas was a foremost exponent of individual liberty and particularly freedom of speech. In his mind a commitment to man's freedom was tantamount to the preservation of nature and its environment, for he was at heart a naturalist and a conservationist. The environment, he believed, nurtures and preserves all natural life, but social environment may produce a warped and stunted people who need the protection and support of society. (He once said that man's most exciting journey must have been that of Lewis and Clark at the beginning of the 19th century.)

In his twilight years Douglas found a new constituency in the nation's youth at a time when many under 25 believed it was impossible to trust anyone over age 30. Instead, Douglas achieved the status of folk hero as his position on the environment, Vietnam, and civil liberties resonated in his book, Points of Rebellion.

It would be difficult to establish a hierarchy of value on the impact of Douglas' Supreme Court decisions on American society since all would be influential on future legislation and court decisions effecting human rights. Among the most compelling were his findings on the right of privacy, freedom of speech, freedom of religion, and the right to protest. He declared, "We are a religious people whose institutions presuppose a Supreme Being," but this did not stop him from constructing a high wall separating church and state. His tenure was marked by an unyielding and brilliantly executed termination to, as he put it, "keep the government off the backs of the people.

No other justice of the Supreme Court marched to the same drummer as did William O. Douglas whose decisions, beliefs, and convictions formed the first line of defense for "We, the people."