Law Without Douglas

Wild Bill Douglas is remembered as one of the Supreme Court greats, authoring such significant opinions as Skinner v. Oklahoma, Brady v. Maryland and Griswold v. Connecticut. But William Orville Douglas was pretty awful.

Judge Richard A. Posner, who was a law clerk at the Court during the latter part of Douglas’s tenure, characterized him as “a bored, distracted, uncollegial, irresponsible” Supreme Court justice, as well as “rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed” and so abusive in “treatment of his staff to the point where his law clerks—whom he described as ‘the lowest form of human life’—took to calling him “shithead” behind his back.”

None of this is new or surprising to those moderately familiar with Justice Douglas, who was stronger on outcome and the occasional rhetorical flourish than substance and the gritty details of making his novel outcomes work. If he was, maybe we wouldn’t be arguing about a Brady (1963) “epidemic” more than half a century later. Oh wait, that “epidemic” came from Alex Kozinski, and he’s too awful to refer to anymore given his sexual misconduct.

But Douglas had his sexual harassment issues as well.

Douglas was divorced three times (no previous Justice had so ended a marriage), and was habitually unfaithful to all four of his wives, the last two of whom were several decades younger than him. He propositioned the wives of law clerks, groped unsuspecting female visitors to the court, and one occasion hid a wife-to-be in his office closet to prevent her from being discovered by a current spouse.

And much as he may be beloved by some today for his opinions, he wasn’t quite so respected by his colleagues.

He was married four times, each time to progressively younger women. As the alimonies added up, he needed cash and ended up relying on secret payments from a shady businessman. People said that Douglas loved humanity and hated people. Such was his obsessive hatred of [his colleague Justice Felix] Frankfurter that he dubbed the Austrian-born Jewish justice “Der Fuhrer” — during the Holocaust. Frankfurter called Douglas “one of the two completely evil men I have ever met.”

There is no question that Douglas was a Supreme Court justice, of course. He was, and no matter what he did, how awful he was as a human being, as a man, even as a justice, he held the position and wrote the opinions.

So what do we do about it? Do we refuse to cite to Brady because Douglas was so awful? Was the Court illegitimate because he was a disgusting sexual harasser who should have been imprisoned instead of seated on the Supreme Court bench? Does he deserve to be atop a pedestal or disappeared for his awfulness?

As Michael Medved and Jerome Woehrle have noted, Justice Douglas apparently engaged in acts that today would be considered textbook examples of sexual harassment. But he issued landmark rulings in the First Amendment, equal protection, and environmental cases. His expansive concept of standing to sue opened the courthouse door to all manner of new lawsuits, transforming the law. His opinions are required reading in law schools across America.

Will law professors stop assigning his opinions to students because of his unsavory personal life? Law professors who are overwhelmingly left-leaning have made no move to stop assigning Justice Douglas’s opinions — at least, not yet.

If students at Harvard couldn’t bear to be on the same campus as Justice Brett Kavanaugh, and advocates couldn’t bear to appear for oral argument at the Ninth Circuit if Koz was on the bench in the very same room as them, can law students be compelled to read the words of this “shithead”? Can courts render legitimate holdings based upon a precedent written by a sexual harasser?

As we tend to “disappear” people who played significant roles, whether historically or popularly, because of our recognition of their flaws, their being the very sort of people who today would be societal pariahs, we need to be cautious about what we lose in the process.

William O. Douglas was a liberal lion who brought monumental change to our law, change for which many of us are extremely thankful as it has well-served our clients and framed our jurisprudence. If we were to be consistent in our application of condemnation, Douglas would be at the head of the line to be burned at the stake. And outside of his shoddy, but very liberal, opinions, he was certainly awful enough to deserve it.

We can’t have it both ways, however. If we’re going to disappear people for their being truly awful, then either they all go or none go. We can’t keep the ones who served us well despite being awful and jettison the ones we have no particular use for anymore.

The rhetoric being thrown around, and embraced by the unduly passionate when it serves their outcome to do so, would rid us of this awful justice. It would delegitimize his opinions and even invalidate every 5-4 case in which he served to make a majority. After all, if its too awful to have a sexual harasser on a court today, is it any less awful to have had one from 1939 to 1975? That’s 36 years, the longest serving associate justice. That’s a lot of law to lose.

But nobody wants to be a hypocrite about it, and clearly the depth of passion of the woke demands to be recognized lest we erase their existence. And yet, Douglas’ opinions continue to be taught in the wokest law schools and cited continually. Even though he was literally awful.

 

17 thoughts on “Law Without Douglas

  1. Scott Jacobs

    None of this is new or surprising to those moderately familiar with Justice Douglas, who was stronger on outcome and the occasional rhetorical flourish than substance and the gritty details of making his novel outcomes work

    So Posner is mad he wasn’t the first to come up with the act?

    You’d think he’d treat the man as a kindred spirit.

  2. B. McLeod

    I’m sure the passionate “ban everyone” idiots don’t know about the Douglas history of sexual harassment, or they would indeed be making demands that his contributions must not be recognized because of his awfulness.

  3. Curmudgeonly Ex-Clerk

    Is the contention that Douglas was indispensible? He didn’t do anything that at least 4 other justices agreed to do.

    1. SHG Post author

      If you read carefully, you’ll note that my reference is to his opinions, not merely his vote. But even assuming that you accidentally failed to see that detail, we have a peculiar system in that a one justice majority defines our Constitution. One less justice and our Constitution means something else entirely. So four justices agreeing means they lose without a fifth. That’s how our system works.

      1. Curmudgeonly Ex-Clerk

        Ok. So which of his 5-4 opinions are indispensable? The ones you refer to were unanimous, 7-2, and 7-2 respectively. So they’d have been decided the same way regardless.

          1. Miles

            Oh Greenfield, you just completely missed the point. So what if you never raised the issue of 5-4 decisions involving Douglas. CeC raised it, and so now it’s your sworn duty to spend the rest of your day going through 5-4 decisions to satisfy his demand. Where is your fealty to your commenters, you wastrel?!?

            1. Curmudgeonly Ex-Clerk

              Except he did. Go back and read the original post. The one that expressly references 5-4 decisions.

          2. Curmudgeonly Ex-Clerk

            Well, no, I’m not trolling. Your argument appears to be something like: we cannot do without Douglas or some of his opinions; therefore, any movement that would result is him or his opinions being delegitimized (like Woke AF, Inc.) must be mistaken. I think the premise is wobbly.

            1. SHG Post author

              I’m not arguing either way about Douglas, but about hypocrisy. If you can see beyond minor details, you might be able to see the underlying concepts.

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