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Justice Douglas participated in 4501 cases.
Joined with Majority2918
Dissented1181
Concurred177
Concurring in Judgment196
Did Not Participate180
Judgment of the Court4
Dissent from Denial of Certiorari1
Jurisdictional Dissent24

Douglas, William Orville

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Birth: October 16, 1898, Maine, Minnesota.

Education: Whitman College, B.A., 1920; Columbia Law School, LL.B., 1925.

Official Positions: Member, Securities and Exchange Commission, 1936–1939; chairman, 1937–1939.

Supreme Court Service: Nominated associate justice by President Franklin D. Roosevelt, March 20, 1939, to replace Louis D. Brandeis, who had retired; confirmed by the Senate, April 4, 1939, by a 62–4 vote; took judicial oath April 17, 1939; retired November 12, 1975; replaced by John Paul Stevens, nominated by President Gerald R. Ford.

Death: January 19, 1980, Washington D.C.


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William Orville Douglas
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William Orville Douglas

Justice William O. Douglas served longer on the U.S. Supreme Court than any other justice. Irony, variety, and nonconformity were the characteristics of the restless intelligence of this independent-minded man, whose thirty-six-year tenure on the Court spanned major transformations in mid—twentieth-century American society. Justice Douglas was very much a creature of his times. From the New Deal and World War II at the beginning of his judicial career, through the cold war, the civil rights and environmental movements, to the withdrawal from Vietnam as he retired from the Court, Douglas responded to the challenges of his era.

Douglas's judicial opinions do not fit within any particular school of legal doctrine, although he is associated with the legal realists and considered both an activist and a liberal jurist. In fact, Douglas resisted the very concept of legal doctrine and rejected any foreordained set of propositions from which resolutions of legal controversies could be deduced. Instead, he believed that his job as a justice was to make decisions about particular sets of facts in their particular social, economic, and political contexts. As the situations changed, his decisions changed.

Although he resisted doctrine, Douglas believed passionately in the power of ideas. His judicial opinions sometimes have an oracular style, articulating a wide variety of values and ideals such as democracy, equality, free enterprise, privacy, diversity, and conservation. Many of the opinions of his late judicial career sound like manifestos. Both on and off the Court, Douglas tirelessly advocated progressive views and liberal democratic values. Most of all, he believed that individuals should think for themselves. Douglas genuinely despised conformity and fought against the regimentation of individuals by big business or big government.

During his long tenure on the bench, Douglas wrote more than 1,200 judicial opinions, countless articles and speeches, and thirty-one books, including a two-volume autobiography. After World War II, during Court recesses, Douglas traveled to Russia, China, Burma, India, and other remote parts of the world and wrote about them in popular books and articles. He said that these explorations of diverse societies gave him a fresh perspective on the issues that came before the Supreme Court. For Douglas, theory and life always went together.

In 1939 President Franklin D. Roosevelt nominated Douglas to replace Justice Louis D. Brandeis, who knew Douglas and was reportedly pleased by his successor. Roosevelt no doubt considered Douglas, then the young, vigorous, iconoclastic, and obviously bright chairman of the Securities and Exchange Commission, as insurance against a recurrence of Supreme Court obstruction of New Deal regulatory programs. Forty years old when he was appointed, Douglas was the second-youngest justice to join the Court, after Joseph Story. Moreover, Douglas was from the West, which was demanding representation on the Court. Hailing from a poor family in Yakima, Washington, Douglas seemed to be the quintessential westerner and a self-made “common man” to boot. But Douglas came to the Court equipped with more than his often-ridiculed five-gallon western hat. Under that hat was a keen mind sharpened by an eastern legal education at Columbia Law School and service on the law faculties of Columbia and Yale.

In addition to being a New Deal loyalist, Douglas was also one of Roosevelt's personal friends. In fact, Douglas was one of the president's “poker buddies,” a group that included Washington power brokers such as Interior Secretary Harold Ickes and Treasury Secretary Henry Morgenthau. Surprisingly, in light of later attempts to impeach Douglas, his confirmation was noncontroversial. No witnesses spoke for or against Douglas's confirmation at the Senate Judiciary Committee hearing. In the Senate, the vote was 62–4, with thirty senators not voting.

During his first decade or so on the Court, Douglas kept at least one eye on politics. He was considered a possible candidate for the Democratic ticket in 1940. In late 1941 Roosevelt suggested that Douglas resign from the Court and take charge of what became the War Production Board, but Douglas remained on the Court. There are conflicting accounts of how and why Douglas was considered but not chosen to run as vice president with Roosevelt in 1944. Although Roosevelt liked Douglas, he left the vice presidential decision up to the Democratic convention, which chose Harry Truman, who became president when Roosevelt died in 1945. Douglas apparently always felt bitter about not being president of the United States. Although he had turned away from electoral ambition by the 1950s, politics continued to intrude on his judicial life in the form of several politically motivated but unsuccessful efforts to impeach him.

Douglas brought to the Court a distinctive approach to law and judging. For him, law was a practical process that operated in a particular political, social, and economic context to serve societal goals. Judging was, in part, applied psychology. As a student and faculty member at Columbia Law School, he adopted what was then called a functional, as opposed to theoretical, view of law. As a member of the Yale Law School faculty from 1928 to 1934, Douglas worked with legal realists who took a dynamic, pragmatic view of law and insisted on an empirical approach to legal problems in the light of actual social, political, economic, and psychological realities. For realists, concentration on doctrine and precedents perniciously masked the vital actuality of present circumstances. Although Justice Douglas sometimes referred approvingly to “sociological jurisprudence,” he avoided describing himself as a legal realist or as a functionalist. He was far too independent-minded to associate himself with anything that sounded like orthodoxy.

Having rejected legal doctrine as a basis for judicial decision making, Douglas gradually developed a distinctive judicial style. In simplest terms, he thought his job was to decide cases. Douglas believed he was responsible for making his own decision in each case that came before the Court, and he said he agreed with Thomas Jefferson that each judge should give his individual opinion in every case. That belief may account for Douglas's numerous dissenting and concurring opinions, including his notorious dissents without opinion in tax cases, in which he almost invariably voted for the taxpayer because he distrusted big government. During some periods, he filed a separate opinion in every case decided by the Court. Douglas became adept at deciding cases rapidly. Noted for his restlessness on the bench, he often grew impatient during oral arguments and would write letters or engage in other tasks. He hated to waste time. In his later years on the Court, he complained that accomplishing Court work, deciding cases, and ruling on petitions and stays required only working four days a week.

Explaining decisions was of secondary importance to deciding cases. Douglas generally avoided established legal doctrine. He said he was opposed to stare decisis, the judicial practice of deciding cases based on precedent, because present controversies should be decided on their own terms, rather than by applying past cases. Particularly in constitutional cases, Douglas thought stare decisis was an excuse for not making hard choices about how to apply constitutional values to new circumstances. He often said that he would rather create a precedent than find one.

The Douglas approach to judicial decision making has often been criticized as results-oriented: first deciding the result he wanted to reach and then building an argument for the correctness of that outcome. Critics also have disparaged some of his judicial opinions as careless, slapdash polemics. But Douglas was generally unperturbed by complaints that he was results-oriented or intellectually untidy. For him, life, including law, was just like that. Spinning webs of legal doctrine in order to entrap future decisions in foreordained conclusions was not the role Douglas thought the Constitution assigned to Supreme Court justices. For him, judicial opinions should provide solutions to real-life problems, not academic dissertations about legal doctrine. Sometimes he gave no reasons at all. Because deciding the case was the point of judging, and supporting reasons were far less important, it is not surprising that he often did not invest much time developing the latter. Prof. Vern Countryman, who was Douglas's law clerk and later his literary executor, reports Douglas as saying, “For those who liked the result, it was scholarship.”

Douglas had an uncanny ability both to understand what was at issue in complicated cases and to envision new ways of looking at them. A typical Douglas opinion is filled with facts and may even have an appendix or two to provide even more background for his view of the case. He would first focus on the facts at issue and then find a pivotal issue at the heart of the legal controversy. In the latter part of his judicial career, he grasped cases especially quickly because he believed that legal controversies, like much of human behavior, fall into cyclical patterns, recurring every decade or so.

Douglas's opinion for the Court in Griswold v. Connecticut (1965), which recognized a penumbral right of privacy in the Constitution, provides a typical as well as famous example of Douglas's characteristic approach to judicial decision making. In Griswold, the Court held unconstitutional a Connecticut criminal statute prohibiting the use and distribution of contraceptives. Douglas saw marital privacy as the heart of the case: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Douglas asked. Then he answered: “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Douglas's opinion found that the penumbras of various constitutional guarantees establish a “right of privacy older than the Bill of Rights,” which protects marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” His insight into what was really at stake in Griswold retains remarkable vitality.

Douglas took seriously the political status of the Supreme Court, which the Constitution places at the head of the judicial branch of government. Just as the executive or the legislative branches do, the Supreme Court exercises political power. He felt that, as a justice, he had a political role in deciding cases based on his own understanding of constitutional values. More than once, Douglas described the Court as “the keeper of the conscience. And the conscience is the Constitution.” He felt that it was “very important to have a keeper of the conscience, an independent group, above the storm.” Part of the Court's political role under the Constitution was independently to apply constitutional values to keep the other branches in check.

Douglas's distrust of the executive grew stronger, particularly after Roosevelt's death. For example, in Youngstown Sheet & Tube Co. v. Sawyer (1952), the Court held unconstitutional President Truman's seizure of the steel mills to prevent a lockout in connection with a labor dispute. Douglas concurred in the decision, but he had his own grounds for holding Truman's action unlawful. Seizure of the steel mills was expropriation of private property, which under the Constitution could be accomplished only by legislative action. Douglas warned: “All executive power—from the reign of ancient kings to the rule of modern dictators—has the outward appearance of efficiency.” He repudiated the idea that the Constitution gave “the President not only the power to execute the laws but to make some.”

His views regarding the political responsibilities of the judiciary led Douglas to dissent in numerous cases in which the Court dismissed constitutional challenges because those bringing the challenges were found to lack standing to sue. A good example is Laird v. Tatum (1972), in which the Court held that individuals and groups that had been under army surveillance because of antiwar activities lacked standing to complain about it in court. Douglas's dissenting opinion asserted that the case involved “a cancer in our body politic” in the form of a dangerously unlawful exercise of executive power that would remain unchecked if the Court did not allow these individuals and groups to bring their case to court. Douglas explained in his autobiography that his “view always has been that anyone whose life, liberty or property was threatened or impaired by any branch of government …. had a justiciable controversy and could properly repair to a judicial tribunal for vindication of his rights.”

According to Douglas, the Constitution not only established the Supreme Court's political role, but also provided a set of general principles that the Court was to apply. These constitutional principles provided a philosophy that judges must interpret and apply in light of their own lives and experiences. For Douglas, such a dynamic approach to constitutional interpretation was not at all incompatible with strict construction. He considered himself a strict constructionist, like Hugo Black, because he believed strict construction meant not subtracting from or making exceptions to constitutional freedoms. Douglas also considered himself a strict incorporationist, because he believed that all of the rights contained in the Bill of Rights were incorporated into the Fourteenth Amendment's due process guarantee against state and local action that deprives individuals of liberty.

Among the more interesting examples of Douglas's adjustment of constitutional guarantees to contemporary circumstances was his 1946 opinion in United States v. Causby. The case was brought by a North Carolina chicken farmer whose property served as a glide path for military aircraft using an adjacent airport during World War II. The farmer sought compensation under the just compensation clause of the Fifth Amendment because the overflights made his property less valuable. Justice Douglas's opinion recognized two important realities. First, modern air transport requires use of the air space above private property as part of the public domain, where airplanes can fly without restriction by those who own the land below. Second, the farmer's particular circumstances involved frequent low-level takeoffs and landings. That pattern of overflights, so low that they frightened the farmer's chickens literally to death, was a government use of the farmer's land. Because the government's use made the farmer's land less valuable, the farmer was entitled to recover just compensation for his loss. For Douglas, applying constitutional guarantees that the government will not take property without paying just compensation required focusing on what was really at stake: the devaluation of the chicken farmer's land by the government's overflights. In a sense, the decision is results-oriented: big government should bear the financial loss rather than the small farmer. But the opinion's apt focus on the particular circumstances of the case also exemplifies Douglas's characteristic ability to apply the Constitution to new circumstances and technologies.

Psychological aspects of the work of the Supreme Court were also important to Douglas, who believed with the realists that each individual justice brings a unique life experience to bear on making each decision. Douglas's interest in psychology was personal as well as theoretical. He noted in his autobiography that he undertook psychoanalysis with Dr. George Draper in New York to overcome his migraine headaches and his fear of water and lightning. Douglas believed that an active life outside the Court was essential to keep a justice in touch with the realities of the society in which he lived and to maintain a psychological balance. He often warned that judges who insulate themselves from life tend to become dried-up husks of human beings, incapable of growth and change.

Change was at once inevitable and beneficial in his view. Unconstrained by commitment to doctrinal consistency, Douglas was notably uninhibited about changing his mind, simply admitting that an earlier decision or view was wrong. In the 1940s the Court decided two well-known cases that involved the constitutionality of compelling school children to salute the American flag. In Minersville School District v. Gobitis (1940), Douglas first voted with the majority of the Court that Jehovah's Witnesses children could be compelled to salute the flag, even though doing so violated their religious beliefs. Three years later, in Board of Education v. Barnette (1943), he changed his mind and joined Justice Black in a concurring opinion that argued that forced expression contrary to an individual's religious principles violates the First Amendment.

In 1952 Justice Douglas forthrightly declared that he had changed his views with regard to the constitutionality of electronic surveillance. Dissenting in On Lee v. United States, a case involving a narcotics agent carrying a hidden microphone, Douglas stated that his earlier tolerance of electronic surveillance in Goldman v. United States (1942) had been mistaken. “I now more fully appreciate the vice of the practices spawned by …. Goldman. Reflection on them has brought new insight to me. I now feel that I was wrong in the Goldman case,” in not voting to overrule Olmstead v. United States (1928), which had found wiretapping to be constitutional, over a stirring dissent from Justice Brandeis.

In addition to cases in which Justice Douglas changed his mind and said so, his flexible approach in deciding particular cases greatly annoyed some of his judicial colleagues, especially Felix Frankfurter. The Japanese exclusion cases and the Rosenberg espionage case are two prominent examples. In these cases, which involved highly charged political controversies, Douglas did not see himself or his decisions as inconsistent. In his view, he simply responded to the particular circumstances of various aspects of the cases, to help resolve difficult tensions among strongly held values and interests.

The three Japanese exclusion cases, Hirabayashi v. United States (1943), Korematsu v. United States (1944), and Ex parte Endo (1944), contested the legality of military orders that imposed curfews, relocation, and detention of Japanese on the West Coast after the attack on Pearl Harbor. Douglas filed a concurring opinion in Hirabayashi, upholding the legality of a curfew order against persons of Japanese ancestry. He voted with the majority in Korematsu, in which the Court upheld an order excluding persons of Japanese ancestry from military areas of the West Coast and providing for their relocation and detention. Although Douglas opposed racial and ethnic discrimination and said so repeatedly in his opinions, he thought that the wartime circumstances presented by Korematsu and Hirabayashi involved a genuine national emergency sufficiently grave to warrant interference with individual civil rights. Douglas's sense that the nation was in imminent danger was probably particularly acute because during this time he was a frequent visitor at the White House, where the fear of a Japanese invasion of the West Coast must have been palpable. Douglas's opinion for the Court in Ex parte Endo, however, focused on the conceded fact that Mitsuye Endo was a loyal American citizen who posed no danger to the war effort or national security. Douglas's context-bound realist view saw that the government's exclusion of Ms. Endo was unjustified and, therefore, unconstitutional.

In the Rosenberg espionage case, Douglas's shifting votes apparently outraged Frankfurter and Robert H. Jackson, who saw them as irresponsible political grandstanding for his civil libertarian constituencies. Julius and Ethel Rosenberg had been convicted of conspiracy and violations of the Espionage Act for giving atomic and military secrets to the Soviet Union, and the judge in the case sentenced both of them to death. In reacting to numerous petitions brought to the Supreme Court on behalf of the Rosenbergs, Douglas seems to have thought that he was just considering each petition, as he considered any other petition, on its own merits. First, he voted to deny a hearing before the Supreme Court, then dissented from such denial, and eventually granted a last-minute stay of execution after the Court had adjourned. That final extraordinary stay was immediately overturned by the full Court meeting in special session in Rosenberg v. United States (1953). Douglas was undoubtedly ambivalent about the situation. A militant anti-Communist, he was also concerned about individual rights and procedural fairness. Although not a consistent opponent of the death penalty, Douglas strongly believed in strict enforcement of constitutional protection of the rights of people accused of crimes.

As he considered the various Rosenberg petitions, he apparently began to sense that the sensationalized prosecution of the Rosenbergs had deprived them of a fair trial. In granting the emergency stay of execution, Douglas did not feel constrained to be consistent with earlier decisions on different petitions, even though they involved the same case. In deciding this particular petition, Douglas became convinced that, under provisions of the Atomic Energy Act, the Rosenbergs could not legally be executed without a jury recommendation of the death penalty. Whether he was subconsciously swayed by the public controversy on all sides of the Rosenberg case is difficult to determine. In later speeches and articles, Douglas insisted that the Supreme Court was and should be above the storm of public pressures. He always maintained that he had been unaffected by the public outcry and protest marches for and against the Rosenbergs and merely decided the legal issues in the petitions presented to him.

Douglas's many decisions in cases involving the economy reflected his roots in legal realism. His views about economics generally favored free enterprise, although early opinions often favored the regulatory power of government. A bankruptcy expert and corporate regulator before he came to the Court, Douglas insisted that corporate directors, officers, and controlling shareholders have fiduciary duties of care and fairness with regard to their investors and creditors.

Although over time Douglas came to fear too much power on the part of regulatory agencies, many of his decisions favored economic regulation. Among the best known is his opinion for the Court in Federal Power Commission v. Hope Natural Gas Co. (1944). This decision greatly enhanced the discretion of regulatory agencies to set the rates utility companies charge their customers. Douglas held that “fixing of ‘just and reasonable’ rates involves a balancing of the investor and the consumer interests,” by the regulatory agency, with very little role for the courts in reviewing the reasonableness of the rates.

Like Brandeis before him, Douglas was wary of big business and believed in vigorous enforcement of the antitrust laws. Echoing the populism of his times, Douglas was skeptical about the power of large business and financial interests over the economy and especially over small businesses and small investors. For example, he dissented in United States v. Columbia Steel Co. (1948), in which the majority found no violation of the Sherman Antitrust Act when the nation's largest unfinished steel producer acquired the largest independent steel fabricator on the West Coast. “We have here the problem of bigness,” Douglas insisted. “Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men.”

From his childhood, when he overcame the debilitation of polio by hiking in the Cascade Mountains, Douglas loved the natural world. The outdoors provided a source of personal strength and comfort for the restless justice, even though a riding accident nearly cost him his life in 1949. An avid naturalist, conservationist, hiker, and rider, Douglas actively promoted environmental causes, such as the preservation of the C & O Canal in and near Washington, D.C., which in 1977 became a national historic park named for him. Some of his most impassioned nonjudicial writing, such as A Wilderness Bill of Rights (1965), concerned the environment. It is therefore somewhat surprising that he did not write a great many judicial opinions on this subject. The last opinion Douglas filed as a Supreme Court justice was, however, a concurring opinion in Northern Indiana Public Service v. Walton (1975), in which, in addition to voicing concern about unconstrained discretion on the part of an administrative agency, Douglas expressed his apprehension about the environmental hazards of nuclear power.

Douglas's well-known dissenting opinion in Sierra Club v. Morton (1972) suggested a whole new strategy for bringing environmental problems before the courts. The majority held that the Sierra Club lacked standing to object to government approval of a recreational resort in the Mineral King Valley in the Sierra mountains of California. Douglas filled his dissenting opinion, its footnotes, and its appendix with examples of threatened environmental destruction. He argued that natural features and creatures, from trees and rivers to mountains and woodpeckers, should be allowed to bring their own legal actions, through guardians, to prevent destruction of their ecological systems.

Douglas also wrote important opinions supporting land-use regulation. His opinion in Berman v. Parker (1954) upheld the urban renewal powers of government to condemn whole neighborhoods, including blighted and not-so-blighted properties, to make way for rebuilding a more attractive and healthy community. He also wrote the majority opinion in Village of Belle Terre v. Boraas (1974), in which the Court approved a zoning regulation that restricted occupancy of single family residences by groups other than traditional families. Justice Thurgood Marshall dissented, saying that the restriction violated rights of association, but Douglas did not think that freedom of association was involved in the case at all. He was concerned about “The regimes of boarding houses, fraternity houses, and the like [that] present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.” In Douglas's view, “A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs.” The power to regulate land use “is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” He knew from personal experience that a healthy environment is essential for the development of strong, independent individuals.

Much of Douglas's judicial philosophy focused on the importance of individual freedom and equality. Even his economic and environmental interests were frequently based on his overriding belief in the independent, self-reliant individual. In his 1958 book, Right of the People, he declared, “Our Society is built upon the premise that it exists only to aid the fullest individual achievement of which each of its members is capable. Our starting point has always been the individual, not the state.”

Early in his judicial career, however, he was sometimes willing to subordinate individual rights to broader government interests, as in the Japanese internment cases. But in the early 1950s, he became concerned about the dangers posed by government regimentation of individual freedom. He came to believe that one of the most important purposes of the Constitution was to restrain government. Dissenting in Laird v. Tatum, Douglas declared, “The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance.” In Douglas's view, “The aim [of the Bill of Rights] was to allow men to be free and independent and to assert their rights against government.”

Douglas provided the most comprehensive discussion of his views regarding individual freedoms guaranteed by the Constitution in connection with the 1973 abortion cases, Roe v. Wade and Doe v. Bolton, in which the Supreme Court invalidated Texas and Georgia abortion statutes on privacy grounds. In his concurring opinion in Bolton, Douglas described what he called “a reasoning” about individual rights that are guaranteed by the Bill of Rights and are included within the right to liberty protected against state government interference under the Fourteenth Amendment.

Douglas suggested three concentric circles of individual rights: “First is the autonomous control over the development and expression of one's intellect, interests, tastes, and personality.” He saw these rights, including freedom of conscience and free exercise of religion, as aspects of freedom of thought and conscience that were absolutely protected under the First Amendment without any exceptions or qualifications. In this absolutely protected area, Douglas also placed the Fifth Amendment's right to remain silent.

“Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.” These fundamental rights, including the right of privacy involved in Griswold and the abortion cases, were outside the absolute protection of the First Amendment and were therefore subject to some reasonable control by the regulatory power of government. But any regulation had to be narrowly drawn and supported by a compelling state interest.

“Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.” These rights protected individuals as they interacted with others out in the world where the individual, although not exactly immune from government regulation, nevertheless retained certain rights to be let alone by the government, even in relatively public circumstances.

The particular individual freedom with which Douglas is most closely associated is the right of privacy. Douglas derived many of his views about protecting individual privacy against government interference from Brandeis, his predecessor on the Court. But Douglas nearly always referred to a right of privacy, rather than Brandeis's right to privacy. Moreover, Douglas's right of privacy was solely focused on government threats to privacy. He rejected imposing damage liability for invasions of privacy by the news media, which Brandeis had suggested many years earlier. For example, dissenting in Public Utilities Commission v. Pollak (1952), Douglas argued that when the government forced a “captive audience” of riders on the publicly licensed street cars in the District of Columbia to listen to radio broadcasts, such action infringed the privacy rights of individuals to be let alone by the government. After repeatedly calling for recognition of a constitutional right of privacy in a series of dissenting opinions, Douglas eventually persuaded a majority of the Court to adopt his views about privacy in Griswold. In that case, Douglas characterized the right of privacy as based on “several fundamental constitutional guarantees,” of individual freedom, including the First Amendment right of association, the Third Amendment's prohibition of quartering soldiers, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Fifth Amendment's prohibition of compelled self-incrimination. Douglas's opinion for the Court found the right of privacy in the penumbras of these constitutional guarantees. In Douglas's view, “specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

For Douglas, the right of privacy was part of the meaning of the Constitution, even though the word “privacy” does not appear in the text. One had but to open one's eyes and one's mind to see it. Douglas believed that the right of privacy is consistent with strict construction of the Constitution, because it is part of what the Bill of Rights means. Because he also believed that all of the guarantees of individual freedom in the Bill of Rights are included as aspects of the liberty protected against state action under the due process clause of the Fourteenth Amendment, states such as Connecticut were constrained to respect the right of privacy along with the rest of the Bill of Rights. Douglas did not believe that the right of privacy was the same thing as substantive due process, which he rejected as simply fastening extraconstitutional personal views and economic preferences of particular justices on the Constitution. The right of privacy was, for Douglas, part and parcel of the Constitution itself.

Douglas came to agree with Black that First Amendment guarantees of freedom of expression and religion permit no government regulation of any kind with regard to speech, press, religion, conscience, or association. In the appeal of the conviction of the Communist Party leaders, Dennis v. United States (1951), Douglas entered a short but extremely effective dissent that tore apart the weak reasoning of Chief Justice Fred Vinson's majority opinion upholding the convictions. He searched the record to find evidence—any evidence—that the defendants had done anything other than talk, and he could find no proof that they had committed a single act of any sort, even conspiracy to act. Although vilified at the time for his defense of free speech even for Communists, Douglas's dissent has become one of the great markers in free speech jurisprudence. Law Professor Thomas Emerson noted an essential ingredient in Douglas's thought, a “remarkable ability to grasp the realities of the system of free expression.” For Douglas, free speech could be understood only in the larger context of facts. The power of his dissent lies in his reliance on the facts of the case.

Douglas dissented in obscenity cases such as Roth v. United States (1957), in which he stated: “The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.” Even though Douglas was a victim of obnoxious press accounts about his personal life, he believed that awarding damages for defamation or invasion of privacy was unconstitutional because it involved penalizing the media for disseminating information. For example, he concurred in rejecting the invasion of privacy action in Time v. Hill (1957), which involved a sensationalized magazine account of a family's experience as hostages of escaped criminals. He was concerned that the possibility of having to pay damages might discourage publication.

Because he believed in the intrinsic worth of each individual, Douglas consistently favored equality of opportunity. A case involving a special admissions program for minority applicants to the University of Washington Law School, DeFunis v. Odegaard (1974), presented a particularly difficult equal protection question. The majority found the case moot because the nonminority plaintiff was in his last semester of law school and would graduate no matter what the Court decided. Douglas thought the Court should decide the case. Repeatedly insisting on racial neutrality and decrying racial, religious, and ethnic quotas, he took a hard look at law school admissions practices. After carefully considering the circumstances, Douglas concluded that the law school's special admissions process was constitutional because, in his view, it was designed to individualize and to equalize the treatment of applicants from minority backgrounds. “I think a separate classification of these applicants is warranted, lest race be a subtle force in eliminating minority members because of cultural differences,” Douglas wrote. At the same time, he also insisted, “There is no constitutional right for any race to be preferred.” For Douglas, equal protection, like many constitutional values, involved a complex balancing of the realities of the situation. Individualized treatment in this instance satisfied Douglas's understanding of the spirit of equal protection.

Douglas's concerns about individual equality are also reflected in his application of equal protection guarantees to strictly scrutinize legislative classifications that affect fundamental rights. Among the most interesting examples of this approach to equal protection guarantees was Douglas's inventive opinion for the Court in Skinner v. Oklahoma (1942). His opinion describes the law at issue in the case, Oklahoma's Habitual Criminal Sterilization Act, as “legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. There is no redemption for the individual whom the law touches.… He is forever deprived of a basic liberty.” Therefore, the opinion concludes, the Court should apply “strict scrutiny of the classification” that differentiated between those convicted of grand larceny and others convicted of similar property crimes such as embezzlement. Careful scrutiny was required “lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” Because Oklahoma provided no reasons why it needed to sterilize people who had been convicted of grand larceny three times, but not people who had been convicted of embezzlement three times, the statute was unconstitutional. “The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn,” when fundamental individual rights were at stake. Douglas later applied this strict scrutiny approach in invalidating Virginia's $1.50 annual poll tax as a condition for voting in state elections in Harper v. Virginia State Board of Elections (1966). His idea that legislative classifications that affect fundamental individual rights must be strictly scrutinized by the courts has proved to be both powerful and enduring.

A self-conscious nonconformist, Douglas saw himself as an individual who, through native ability, self-reliance, and hard work, had overcome adversity and challenge, to make his way in the world. In 1970, when Rep. Gerald Ford, R-Mich., sought to impeach Justice Douglas, the effort was based in part on Douglas's unconventional lifestyle, as well as his alleged financial misdealings. Douglas had been divorced three times while sitting as a justice and was, at the age of sixty-seven, happily married to a twenty-three-year-old fourth wife. His off-the-bench activities included leading environmental protest marches and traveling to strange and faraway places. At times he seemed to have his own foreign policy, including opposition to the Vietnam War. As long as he did his Court work, he reasoned, he could live as he liked.

Much of Douglas's sense of his individuality was founded on his relationship with the natural world. He thrived in the outdoors and relished strenuous hikes, particularly in remote places of wild beauty, such as his vacation home at Goose Prairie, Washington. He valued the natural world as a source of personal challenge, which brought him satisfaction as well as growth. For Douglas, wilderness was an essential environment where, by literally getting lost in nature, he could find himself. He counted his life span in terms of the destruction of the American wilderness.

William O. Douglas's judicial work was as eclectic as it was prolific. People tend either to strongly agree or disagree with his independent-minded judicial philosophy, much as they intensely liked or disliked the blunt-spoken and impatient man. Some of his judicial opinions have a remarkable resonance and eloquence. Some are political tracts. Still others appear to have been carelessly thrown together. Through it all, Douglas had an insight into the American spirit, an ability to articulate constitutional values, and a power to provoke thought and argument that few Supreme Court justices have equaled.

Bibliography

Extensive Douglas papers are in the Library of Congress. Melvin I. Urofsky, ed. The Douglas Letters (1987), contains an intriguing selection of those private papers, such as letters, memoranda, and personal files. William O. Douglas, Go East, Young Man: The Early Years (1974), and The Court Years: The Autobiography of William O. Douglas (1980), make up Douglas's autobiography. Douglas also wrote twenty-nine additional books on subjects varying from the environment to international travel to political freedom.

James Simon, Independent Journey (1980), provides a readable and thought-provoking account of the essential qualities of Douglas's character as they developed over the course of his long life. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (2003), focuses on Douglas's private life and scandals and, unfortunately, is weak on his jurisprudential ideas and legacy.

A number of writers have analyzed Douglas's judicial career, and these works include Howard Ball and Philip J. Cooper, Of Power and Right: Hugo Black, William O. Douglas and America's Constitutional Revolution (1992); Bernard Wolfman, Jonathan L. F. Silver, and Marjorie A. Silver, Dissent Without Opinion: The Behavior of Justice William O. Douglas in Federal Tax Cases (1975); and Stephen L. Wasby, ed., “He Shall Not Pass This Way Again”: The Legacy of Justice William O. Douglas (1990), which contains a useful collection of essays and commentary about Douglas from nearly thirty legal scholars and historians.

Vern Countryman, Douglas's former law clerk and the literary executor of his estate, wrote a number of books about him. One of the more interesting is The Judicial Record of Justice William O. Douglas (1974), which was written in reaction to the last impeachment effort brought against him. Professor Countryman also published selections of Douglas opinions, including Douglas of the Supreme Court (1959), and The Douglas Opinions (1977). Two interesting appraisals of his Court work are L. K. Ray, “Autobiography and Opinion: The Romantic Jurisprudence of Justice William O. Douglas,” University of Pennsylvania Law Review 60 (1999): 707; and P. Manus, “Wild Bill Douglas's Last Stand: A Retrospective on the First Supreme Court Environmentalist,” Temple Law Review 72 (1999): 111. Douglas's views on speech are analyzed in Thomas Emerson, “Mr. Justice Douglas' Contribution to the Law: The First Amendment,” Columbia Law Review 74 (1974): 354. See also Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (1977).

G. Edward White's The American Judicial Tradition (1988) contains a provocative chapter on Douglas entitled “The Anti-Judge: William O. Douglas and the Ambiguities of Individuality.” For a contrary view, see Melvin I. Urofsky, “William O. Douglas as a Common Law Judge,” Duke Law Journal 41 (1991): 133.

At least two plays have been written about Justice Douglas's colorful life. Douglas Scott's Mountain (1990) enjoyed success off-Broadway in New York. A biographical monodrama, Douglas, by Robert Litz, was presented in Seattle, Washington, in September 1992.

Noteworthy Opinions

Skinner v. Oklahoma, 316 U.S. 535 (1942)

Hirabayashi v. United States, 320 U.S. 81 (1943) (Concurrence)

Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944)

Ex parte Endo, 323 U.S. 283 (1944)

United States v. Causby, 328 U.S. 256 (1946)

Dennis v. United States, 341 U.S. 494 (1951) (Dissent)

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Concurrence)

On Lee v. United States, 343 U.S. 747 (1952) (Dissent)

Rosenberg v. United States, 346 U.S. 273 (1953) (Dissent)

Berman v. Parker, 348 U.S. 26 (1954)

Roth v. United States, 354 U.S. 476 (1957) (Dissent)

Griswold v. Connecticut, 381 U.S. 479 (1965)

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)

Sierra Club v. Morton, 405 U.S. 727 (1972) (Dissent)

Laird v. Tatum, 408 U.S. 1 (1972) (Dissent)

Roe v. Wade, 410 U.S. 113 (1973) (Concurrence)

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)

DeFunis v. Odegaard, 416 U.S. 312 (1974) (Dissent)

 

Document Citation
Douglas, William Orville, in Biographical Encyclopedia of the Supreme Court 167 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18166-979198.
Document ID: bioenc-427-18166-979198
Document URL: http://library.cqpress.com/scc/bioenc-427-18166-979198