Posted on 03/11/2003 10:04:07 AM PST by Maximilian
The Anti-Hero By Richard A. Posner The New Republic February 24, 2003
Wild Bill: The Legend and Life of William O. Douglas by Bruce Allen Murphy (Random House, 688 pp., $35)
I met justice William Douglas, the longest-serving member of the Supreme Court, when I was clerking for Justice William Brennan. Douglas struck me as cold and brusque but charismatic--the most charismatic judge (well, the only charismatic judge) on the Court. Little did I know that this elderly gentleman (he was sixty-four when I was a law clerk) was having sex with his soon-to-be third wife in his Supreme Court office, that he was being stalked by his justifiably suspicious soon-to-be ex-wife, and that on one occasion he had to hide the wife-to-be in his closet in order to prevent the current wife from discovering her. This is just one of the gamy bits in Bruce Allen Murphy's riveting biography of one of the most unwholesome figures in modern American political history, a field with many contenders. Murphy explains that he had expected the biography to take six years to complete but that it actually took almost fifteen. For Douglas turned out to be a liar to rival Baron Munchausen, and a great deal o0f patient digging was required to reconstruct his true life story. One of his typical lies, not only repeated in a judicial opinion but inscribed on his tombstone in Arlington National Cemetery, was that he had been a soldier in World War I. Douglas was never in the Armed Forces. The lie metastasized: a book about Arlington National Cemetery, published in 1986, reports: "Refusing to allow his polio to keep him from fighting for his nation during World War I, Douglas enlisted in the United States Army and fought in Europe." He never had polio, either.
Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.
For at least a decade before he was felled in 1974 by the massive stroke that forced his retirement from the Court a year later, Douglas (perhaps as a consequence of his heavy drinking) had been deteriorating morally and psychologically from an already low level. The deterioration manifested itself in paranoid delusions, senile rages and sulks, sadistic 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, and increasingly bizarre behavior toward women, which included an assault in his office on an airline stewardess who had unsuspectingly accepted an invitation from this kindly seeming old man to visit him there. His third marriage, to a woman in her early twenties (the woman in the closet), lasted only two years, and began to disintegrate within weeks of the wedding. After that divorce Douglas speedily took up with two more women in their twenties, marrying one on an impulse but later resuming romantic relations with the other. This fourth marriage might well have dissolved had his stroke held off. As Murphy puts it, Douglas had "buyer's remorse" in the marriage market.
Does any of this matter? It would not--had not Douglas in his autobiographical writings and elsewhere presented his life to the public as exemplary of American individualism and achievement. I cannot begin to imagine his thinking in publishing lies that were readily refutable by documents certain one day to be discovered.
William Orville Douglas was born in 1898 in Yakima, Washington. In his autobiography he claimed that his grandfather Orville had fought in Grant's army at Vicksburg, when in fact Orville had deserted from the Union Army twice without ever seeing combat. Douglas's father, an eccentric itinerant preacher notably neglectful of his children (like father, like son), died when Douglas, the couple's firstborn son, was a young child. Douglas himself almost died of an intestinal disease as an infant. His mother hailed his recovery as a miracle. He became her "treasure" and she declared that he would someday be president of the United States, thus planting in him the seed of a lifelong ambition. It was also in his autobiography that Douglas reported having cured himself of polio by sheer force of will. He wanted to link himself to Franklin Roosevelt, whom he had hoped to succeed as president--with the difference of having actually cured himself of the disease, a feat beyond FDR's ability.
Douglas claimed to have grown up in abject poverty. This was another lie: his mother had been left surprisingly well provided for as a widow, and the family, though poor by modern standards (as most people were a century ago), was middle class. What is true is that Douglas's mother was very tight with money (another parental trait the son inherited, though this one only fitfully); and as a result Douglas believed until he was an adult that the family had been poor. His discovery of the truth led to a lifelong resentment against his mother, who he thought should have paid for him to attend Washington State University, which he believed would have led to his obtaining a Rhodes Scholarship. On his deathbed Douglas told his wife: "I want you always to know that no one has ever been better to me since my mother." Douglas's daughter told Murphy that this was actually an insult, given Douglas's hostility toward his mother.
After graduating from Whitman College in Washington (Douglas claimed that at Whitman he had lived in a tent, when in fact he had lived in a fraternity house, though in hot weather the frat boys sometimes slept outside), Douglas taught high school for two years and then enrolled in Columbia Law School. He claimed to have arrived in New York, having ridden the brake rods of a train or possibly in an open boxcar, with just six cents in his pocket--all lies. By this time he was married, and his wife, a schoolteacher, was his major support in law school. He concealed this in his autobiography, in part by postdating his marriage by a year, and claimed to have worked his way through law school. He also claimed to have heard Caruso sing at the Metropolitan Opera House, though the tenor died the year before Douglas arrived in New York.
Of greater consequence, Douglas claimed to have graduated second in his law school class, which was not true, although he was a good student, and made the law review, and was hired by the Cravath firm (despite looking, according to John J. McCloy, the associate who hired him, like "a singed cat"), then as now a leading Wall Street firm. He quit after four and a half months and fled back to Yakima, his hometown, hoping to practice law there but abandoning the idea after just four days. A spell of unemployment followed, during which he was supported by his wife. He returned to the Cravath firm for seven months and then went into teaching, first at Columbia and then at Yale, where he represented himself as having been a successful Wall Street lawyer. He also claimed to have practiced law in Yakima; he had not.
His academic career was short, lasting from 1927 to 1935, but it was spectacularly successful. Attracted as a student to legal realism, of which Columbia was the hotbed, as a professor he quickly became a prominent member of the movement. Yale soon hired him away from Columbia, with which he had become disaffected by the school's failure to appoint a legal realist as dean. He had made a tremendous impression on Robert Maynard Hutchins, Yale's young dean. When shortly afterward Hutchins became president of the University of Chicago, he offered Douglas an appointment and Douglas accepted, and he was listed for two years in the Chicago catalog as a member of the faculty visiting at Yale. But he never taught at Chicago, instead using his dual status to extract a Sterling professorship and high salary at Yale. He was a consummate careerist.
The legal realists recognized that law is not an autonomous body of thought. (The belief that it is autonomous, and that judges arrive at their decisions by a process of deductive logic or something akin to it, is known as legal formalism, and it retains to this day a strong hold on the legal imagination.) According to the realists, law is an instrument of social policy, and intelligent reform therefore requires an understanding of the consequences of law, an understanding that is itself dependent on social science and empirical inquiry. Douglas knew no social science, but he understood the value of grounding analysis of business law in empirical inquiry, and he organized and supervised a number of ambitious empirical projects. His articles and his casebooks quickly made him a coming figure in corporate and bankruptcy law.
Yet he had plenty of time for boozing, girls, and practical jokes. Once, when the dean of the law school was too drunk to find his way to the railroad station to catch a train to a city in which he was to give a speech, Douglas considerately drove him to the station--and put him on a train to a different city. Another time Douglas sent a note to one of his colleagues that he purported to be from an admirer named Yvonne, who gave her phone number and suggested that they meet for cocktails. When the colleague dialed the number, he discovered that he was calling the city morgue. Douglas's sense of humor also expressed itself in his connoisseurship of popular-song titles, such as "Songs I Learned at My Mother's Knee and Other Low Joints" and "My Wife Ran Off With My Best Friend, and I Sure Miss Him."
Legal realism made a natural fit with the New Deal, and a number of faculty members and recent students at Yale went off to work for federal agencies. Douglas, quickly spotting securities law as an emerging field and becoming an expert in it, became a member of the Securities and Exchange Commission and before long its chairman. His two years as chairman brought notable successes in efforts to regulate the stock exchanges and made him a hero of the second New Deal. Murphy's account of the Wall Street scandals of the period has a surprisingly contemporary ring.
Douglas, according to legal historian (and former Douglas law clerk) Dennis Hutchinson, "found it easy to elbow his way into the back rooms of power through a combination of a reputation for capability, cheek, skill at losing poker games, and drinking hard with the boys." When Brandeis retired from the Supreme Court in 1939 and there was a clamor to appoint a Westerner to the Court, Roosevelt picked Douglas. He was forty. He was also Brandeis's personal choice to succeed him.
It took douglas only a few weeks to discover that being a judge was not to his taste. He missed the excitement of jousting with the Wall Streeters, and he viewed his new job primarily as a stepping stone to the presidency. He came close to being nominated for vice president on the Democratic ticket in 1944; had he been the nominee, he rather than Truman would have become president when Roosevelt died the following year. Bitterly disappointed, he continued to nurse presidential ambitions. He almost accepted the Democratic nomination for vice president in 1948--Truman was desperately eager to have him on the ticket--and probably would have done so had he thought Truman would lose the election, in which event he could expect to inherit Truman's mantle as leader of the Democratic Party. But he shrewdly recognized that Dewey would lose.
As late as 1960, Douglas was still considering a political career. Lyndon Johnson, one of his pals (Douglas tended to clump together with other persons of unsavory personal character), promised Douglas that if he was nominated for president he would make Douglas the vice presidential nominee. Douglas was bitter at the Kennedys for ruining his chances by "buying" the 1960 nomination for JFK. His bitterness provoked a memorable alcoholic binge that Murphy vividly describes.
Douglas's divorce from his first wife in 1954 had placed him in a financial bind from which he never entirely escaped. Her lawyer, egged on by Tommy Corcoran, another of Douglas's unattractive friends from the New Deal days turned enemies, had ingeniously inserted in the divorce settlement an escalator clause whereby the more money Douglas made from his books and lectures, the more he had to give her in alimony--and she lived for a long time and did not remarry. He was now on a financial treadmill. Besides his income from the dubious Parvin Foundation, he lectured constantly and wrote book after book, mainly travel books; he was heavily dependent on publishers' advances. He employed an editorial assistant who eventually became a ghost co-writer of his books.
In the 1940s, when Douglas had thought he had a shot at the presidency, he had been a liberal justice, but respectably so--to the right, for example, of Frank Murphy. In the 1950s, however, he and Hugo Black formed the extreme liberal wing of the Court, and he moved steadily leftward from there, to the point where even in the heyday of the Warren Court in the 1960s Douglas was to the left of any other justice. He became a bete noir of the right and survived three efforts to impeach him, the third a serious one that was blocked by Democratic control of the House of Representatives. The second impeachment effort was provoked by his sensible if premature suggestion--it was during the Korean War--that the United States should begin to cozy up to Communist China in order to divide it from the Soviet Union, a suggestion that later became the foundation of the hated Nixon's foreign policy.
Douglas became a hero not only to radicals and civil libertarians but also to environmentalists. He may not have liked any human being, but he loved nature; and by his books and his personal example, including a well-publicized 185-mile hike along the Chesapeake & Ohio canal towpath in a successful protest against the building of a highway on it, Douglas helped give visibility to the nascent environmental movement. I had a scrape with Douglas's environmentalism when I worked in the solicitor general's office in the 1960s. We sided with the Bonneville Power Administration (part of the Department of the Interior) in a fight with the Federal Power Commission over whether Bonneville or a private power company would build a hydroelectric dam on the Snake River in Idaho. We won the case, which was gratifying, but we were astonished at Douglas's opinion, which declared without basis in the record or the arguments of the parties that no one should build the dam, because it would harm the salmon, and anyway solar and nuclear power would soon supplant the need for further hydroelectric power.
From my account, Murphy's book may seem a hatchet job, with its mountain of often prurient detail about Douglas's personal life and character. Not so. Murphy displays no animus toward Douglas. He does not try to extenuate Douglas's failings as a human being, or to excuse them, or even to explain them, but he greatly admires Douglas's civil liberties decisions, and (without his actually saying so) this admiration leads him to forgive Douglas's flaws of character. The only time his realism regarding Douglas's character falters is when he is discussing Felix Frankfurter. His portrayal of Frankfurter is relentlessly and excessively critical; he sees Frankfurter exclusively through Douglas's hostile eyes.
Murphy is right to separate the personal from the judicial. One can be a bad person and a good judge, just as one can be a good person and a bad judge. With biography and reportage becoming ever more candid and penetrating, we now know that a high percentage of successful and creative people are psychologically warped and morally challenged; and anyway, as Machiavelli recognized long ago, personal morality and political morality are not the same thing. Douglas was not a good judge (I will come back to this point), but this was not because he was a woman-chaser, a heavy drinker, a liar, and so on. It was because he did not like the job. In part he did not like it because he wanted another job badly, a job for which he was indeed better suited. Roosevelt may have made a mistake in preferring Truman as his running mate in 1944. Not a political mistake: Douglas had never run for elective office, and the Democratic Party bosses, whose enthusiastic support FDR thought essential to his re-election, were passionate for Truman. If passing over Douglas was an error (which we shall never know), it was an error of statesmanship. With his intelligence, his toughness, his ambition, his leadership skills, his wide acquaintanceship in official Washington, his combination of Western homespun (a favorite trick was lighting a cigarette by striking a match on the seat of his pants) and Eastern sophistication, and his charisma, Douglas might have been a fine Cold War president.
At least a Douglas administration would not have been afflicted by the cronyism that so undermined Truman's presidency. Douglas had his own cronies, many with character flaws similar to his own, like Lyndon Johnson and Abe Fortas, but they were abler and less manifestly corrupt than Truman's cronies. And unlike Henry Wallace, the vice president whom FDR providentially dropped at the end of his third term in favor of Truman, Douglas was not soft on communism. I do not think that he was ideological at all; he was merely ambitious. I doubt even that he was, despite his later judicial record, a genuine liberal. Douglas was just ornery and rebellious and publicity-seeking: "always fame was the spur," as Ronald Dworkin, one of Douglas's liberal critics, put it.
Thus Douglas's hostility to Frankfurter seems to have been based on professional jealousy rather than on political or jurisprudential disagreement. Come the 1950s and the dimming of his presidential prospects, Douglas gave his rebellious instincts full rein and reveled in the role of the iconoclast, the outsider; he became the judicial Thoreau. Later, when he himself had become an icon of the left, he claimed that had he been president he would not have dropped the atomic bomb on Japan, and would have recognized Red China, and so forth; but these claims cannot be taken very seriously, especially given his complete lack of respect for truthfulness.
Where Murphy can be faulted, though I think not severely, is for his uncritical treatment of Douglas's judicial performance. Other recent judicial biographies, such as the very distinguished biographies of Learned Hand by Gerald Gunther, of Benjamin Cardozo by Andrew Kaufman, and of Byron White by Dennis Hutchinson, have maintained a good balance between the judge's life and his work. But those biographers were dealing with much less interesting personalities; and after fifteen years and seven hundred pages Murphy was entitled to call it a day. About all he does with Douglas's judicial product is quote from a handful of his civil liberties opinions.
The quotations are effective in demonstrating that Douglas was an able judicial polemicist and had the good sense to write his own opinions rather than rely on law clerks, even if they are not really the lowest form of human life. Still, taken as a whole, Douglas's judicial oeuvre is slipshod and slapdash. Here are typical criticisms, none of them by conservatives. "His opinions were not models; they appear to be hastily written; and they are easy to ignore" (Lucas Powe). Their carelessness is rooted in "indifference to the texture of legal analysis, which arises from an exclusively political conception of the judicial role" (Yosal Rogat). "Douglas was the foremost anti-judge of his time" (G. Edward White). A careful study of his tax opinions by Bernard Wolfman and others has documented Douglas's unreasoning hostility to the Internal Revenue Service and accuses him of "refusing to judge in tax cases."
The supreme court is a political court. The discretion that the justices exercise can fairly be described as legislative in character, but the conditions under which this "legislature" operates are different from those of Congress. Lacking electoral legitimacy, yet wielding Zeus's thunderbolt in the form of the power to invalidate actions of the other branches of government as unconstitutional, the justices, to be effective, have to accept certain limitations on their legislative discretion. They are confined, in Holmes's words, from molar to molecular motions. And even at the molecular level the justices have to be able to offer reasoned justifications for departing from their previous decisions, and to accord a decent respect to public opinion, and to allow room for social experimentation, and to formulate doctrines that will provide guidance to lower courts, and to comply with the expectations of the legal profession concerning the judicial craft. They have to be seen to be doing law rather than doing politics.
Douglas was largely oblivious to these rather modest requirements, with which he could easily have complied had he had just a little Sitzfleisch. He liked to say that "I don't follow precedents, I make 'em." Yes, that is what Supreme Court justices do much of the time; but they are supposed to explain why, and in precisely what sense and to what degree, they are departing from precedent. Douglas's disdain for judicial norms is easily illustrated. On a number of occasions he issued stays--which were quickly and unanimously overturned by his colleagues--intended to halt American participation in the Vietnam War on the ground that Congress had not declared war. One can argue from the language of the Constitution that the United States cannot lawfully wage war without a congressional declaration, but the argument depends on a literal interpretation of the Constitution--an interpretation that would also forbid military aviation on the ground that the Constitution expressly authorizes the creation only of land and naval forces--which Douglas contemptuously rejected in every other area of constitutional law. It was Douglas, after all, who had the audacity to rule in Griswold v. Connecticut, the first case to establish a right of sexual autonomy and hence a precursor of Roe v. Wade, that the Court could fashion new constitutional rights based not on the text of the Constitution but on the values underlying it; and so the Third Amendment, which forbids the quartering of troops in private homes in peacetime, became a source of the constitutional right declared in Griswold of married couples to use contraceptives.
The most interesting question about Douglas's judicial performance is whether its deficiencies can be blamed to any extent on legal realism, to which he had committed himself as an academic. Suppose that, upon being appointed to the Court, he had abandoned his political ambitions and set as his goal to become the greatest justice in history. The combination of his youth, his intelligence, his energy, his academic and government experience, his flair for writing, the leadership skills that he had displayed at the SEC, and his ability to charm when he bothered to try (rare as that was, except when he was courting) would have put him within reach of the goal. He was not a genius, as some of his ex-wives and judicial colleagues claimed. He was a very fast worker, which is not the same thing, especially when speed is the product of restlessness and impatience. (He wrote some of his opinions in twenty minutes.)
But law is not the calling of geniuses. There has never been a genius on the Supreme Court, unless it was Holmes. Douglas was certainly very able. Would a commitment to legal realism have stopped him well short of the goal by breeding a cynicism about law that would have prevented him from taking his job entirely seriously? I think that the opposite is more likely, and that the tragedy of Douglas was not that he was a warped human being, or that Roosevelt passed him over for the vice presidential nomination, but that for reasons of temperament--and because the great prize of the presidency seemed for a while within reach--he could not buckle down and commit himself wholeheartedly to the Court and become the greatest of the legal realists.
For it is not true that a judge cannot achieve greatness without embracing formalism. John Marshall, Oliver Wendell Holmes, and Robert Jackson were realist judges. Many of the criticisms leveled against Douglas have been leveled against them (and other realists as well), but they have bounced off them because, unlike Douglas, they took the judicial process seriously--even Jackson, whose presidential longings were as intense as Douglas's. For Douglas, law was merely politics. Had he brought to bear all his powers, which were considerable, and injected greater realism and empirical understanding into the work of the Supreme Court, he might have achieved greatness. He could still have summered in the Cascades and chased young women, though he would have been well advised not to marry them, and to go easy on the booze.
Richard A. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. His book Law, Pragmatism, and Democracy will be published next month by Harvard University Press.
Copyright 2003 New Republic, LLC
People like Douglas are responsible for the no standards lifestyle that is so prevalent in this country. Its no wonder out prisons are full. (Rant-rant)
THOMAS L. BOWERS, ADMINISTRATOR OF THE ESTATE OF MARGUERITE ANNE BOWERS,
DECEASED, PLAINTIFF, v. ROBERT A. DeVITO, M.D., ET AL., DEFENDANTS.
Nos. 80-1865, 80-2078.
United States Court of Appeals, Seventh Circuit.
Submitted June 21, 1982.
Decided August 20, 1982.
As Amended September 2, 1982.
Lester E. Munson, Smith & Munson, James G. Meyer, Chicago, Ill., for plaintiff.
Christine A. Bremer, Sp. Asst. Atty. Gen., Illinois Dept. of Mental Health, D. Kendall Griffith, Chicago, Ill., for defendants.
Appeal from the United States District Court for the Northern District of Illinois.
Before PELL, WOOD and POSNER, Circuit Judges.
POSNER, Circuit Judge.
(snip) "[6] We need not decide whether this distinction is valid, for there is an alternative ground on which the dismissal of the complaint against these defendants must be upheld. Section 1983 imposes liability on anyone who under color of state law "subjects . . . any citizen . . . or other person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . .," and thus applies only if there is a deprivation of a constitutional right. See, e.g., Paul v. Davis, 424 U.S. 693, 699-701, 96 S.Ct. 1155, 1159-1160, 47 L.Ed.2d 405 (1976); Baker v. McCollan, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979); Bonner v. Coughlin, 545 F.2d 565, 567, 569 (7th Cir. 1976). There is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law. Brazier v. Cherry, 293 F.2d 401, 404-05 (5th Cir. 1961). But there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order. Discrimination in providing protection against private violence could of course violate the equal protection clause of the Fourteenth Amendment..........."
My old grade school teacher thought Douglas was just the cat's whiskers and made us read a lot of his jibberish. 'Course, she was a rabid, fangy-toothed democRAT.
I wish someone would write a comprehensive study on this point. How did someone like Douglas (as well as Bill and Hillary) get away with spreading such blatent lies about themselves their entire lives? And still have worshipers?
Why didn't (doesn't) someone step forward and expose these rats for what they are?
Why is it that the people who try to expose these frauds are viewed with contempt, while the greater public would rather believe the lie than accept the truth about the liers?
... and anyway, as Machiavelli recognized long ago, personal morality and political morality are not the same thing.
I completely disagree with this point. Personal morality and political morality go hand in hand. If you lie and cheat on your wife, partner, friend, mother, father, child, you will lie and cheat on your constituent. If I had the time I could prove this with many examples.
Did Clinton's philandering in the WH prevent him from stealing goods from the WH (taxpayer)? No, we were just one more grubby little conquest.
Pet Rocks & Potential Personhood ... Justice Douglas's Sanctity of Environmental Life Ethic. (From William Brenna's "Dehumanizing the Vulnerable")
Interesting quandary, that ... "pragmatists" voting on Virtue.
But the State is correct to stop you and search you in case you're not wearing your seatbelt?
Thank God for large favors. Sounds like Posner actually admires the evil creature. Amazing. And why, exactly, do so many of these lefty scribblers consider the presidency a "great prize"? My wife - yes. The presidency - you've got to be kidding.
Right--we'd have been spared his destructive influence if only we'd made him president!! Let him have the nuclear football! Let Douglas be in charge during the Berlin blockade in '48! Let him be the leader of the free world at the outset of the cold war!
Saints preserve us from the intellectuals
Do you know of the author E. Michael Jones? You might be interested in his books Degenerate Moderns and Dionysius Rising. Jones details the unsavory personal histories of several pillars of modern thought (Freud, Mead, Kinsey, Wagner et al.) and shows how their private lives influenced their thinking and art.
You could probably write an endless series of such books. Douglas would rate an especially fat chapter in one.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.