Vol. 2 No. 1 (January, 1992) pp. 13-15

"HE SHALL NOT PASS THIS WAY AGAIN:" THE LEGACY OF JUSTICE WILLIAM O. DOUGLAS by Stephen L. Wasby (Editor). Pittsburgh: University of Pittsburgh Press, 1990. 388 pp.

Reviewed by Joel B. Grossman, Department of Political Science, University of Wisconsin--Madison

The essays and commentaries in this book were originally presented at a conference in 1989 marking the 50th anniversary of Justice William O. Douglas' appointment to the Supreme Court. Four major aspects of Douglas's 36 year tenure on the Supreme Court, the longest in history, are examined by a distinguished but primarily friendly group of scholars: his decisionmaking style and relations with his colleagues; his preeminence as a civil libertarian; his views on environmental matters; and his status as an internationalist. There is a lively give and take about Douglas' behavior as a justice, and about some of his major opinions; some conflicting assessments about his judicial contributions to constitutional liberty; and more or less general agreement, for better or worse, that he was the unique figure in American law implied by the book's title. But conspicuously absent (except in passing mention) are the more critical views of Douglas' rights based liberalism that might have been expected from commentators on the far left and the conservative right. As in all collections of this kind, there is considerable diversity of style and unevenness in the quality of research and analysis. Nevertheless the book does present a coherent and useful, if essentially conventional, portrait.

Douglas was an iconoclast and a loner, a rebel in judicial garb. G. Edward White once characterized him as an "anti-judge," who, reflecting his legal realist background, regarded formal legal doctrine as a sham, placed little value on precedent, disparaged and tried to reduce the many traditional barriers that prevented equal and open access to the justice system, and disparaged routine institutional deference. Douglas was more interested in ideas and social concerns, and in achieving the correct result in particular cases, than in shaping doctrine or building judicial majorities. He personified the judge as public philosopher (but not jurisprude); his medium of choice was not constitutional theory and the perpetual debates over the Supreme Court's proper adjudicative role, but the effectuation of broad constitutional principles; his audience of choice was not law professors but the citizens whose rights he felt an obligation to protect. He was, in these ways, the quintessential liberal judicial activist.

An underlying theme of at least some of these essays is that Douglas was a "great" judge notwithstanding his inconsistency, his meager doctrinal legacy, and his disdain for legal form. Some contributors argue that his doctrinal legacy was not so insubstantial, but this view is difficult to sustain. One is hard pressed to identify more than a handful of Douglas' opinions that instantly or subsequently changed the way the law operates, or the way in which we think of the law and the Constitution. The major exception, of course, is the right to privacy which he articulated in the GRISWOLD case, and which, at his urging,

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eventually became the doctrinal basis of ROE V. WADE. It is his greatest claim to judicial fame, notwithstanding the current conservative backlash which threatens to overrule ROE and limit further extensions of GRISWOLD. Although even friendly critics concede that, in its recognition or creation of a new constitutional right, GRISWOLD was a major example of judicial activism, Douglas adamantly maintained that it was not merely a liberal version of substantive due process, and thus no more legitimate than LOCHNER V. NEW YORK. But none could deny that GRISWOLD was a bold, and largely successful, effort to expand the range of protected constitutional rights. Its impact extended far beyond the courthouse into almost every dimension of our life and culture.

"Greatness" is, however, an elusive and highly subjective concept. Douglas himself would have categorically rejected doctrine as the sole basis for such a judgment. More likely he would have pointed to his important role in completing the New Deal Revolution and restoring the powers of Congress and the states to regulate economic matters, a position summarized forcefully in the PEREZ case; and to the evolution of his views on protected speech to include expressive action, sexually explicit materials, and provocative -- even seditious -- speech which fell short of actual incitement. His courageous defense of beleagured speech (joining with Hugo Black) during the McCarthy period, epitomized by his DENNIS and BEAUHARNAIS dissents, helped to lay the foundation for modern First Amendment doctrine, and for the equally important principle that judges could and should be responsible for enforcing individual rights -- especially in times of crisis. He forced the Court, and the nation, to understand the many dimensions of expression that were entitled to constitutional protection, and the reality that expression needed constant judicial attention.

Douglas was a strong supporter of civil rights, but not a major contributor to the evolving doctrines of racial equality. He tried unsuccessfully to persuade his brethren in the sit-in cases to adopt a broad construction of the 13th and 14th Amendments, but was instrumental in the ultimate revival of some long dormant reconstruction statutes and expanding Congress' power to enforce those Amendments. He argued for the constitutional fungibility of defacto and dejure segregation, but then deferred to the majority's view that nonintentional defacto segregation was not unconstitutional. Douglas retired before the affirmative action issue came to the fore, but his concurring opinion in the DEFUNIS case suggested a fundamental opposition to race based benign quotas which would have put him on a collision course with the Brennan-led liberals. His belated and lame explanation for his vote, and the Court's wartime decisions, in the Japanese Exclusion cases, suggests that whatever his eventual commitment to racial equality, it could be subordinated to claimed national security needs.

A similar ambivalence might be discerned in matters of gender equality. Douglas concurred in REED, the Court's first decision holding that gender equality was protected by the 14th Amendment; and he joined the plurality in FRONTIERO that futilely argued that gender should be a suspect classification. But

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his paternalistic majority opinion in KAHN V. SHEVIN, upholding a compensatory tax break for widows, suggests a more limited conception.

Was William O. Douglas a "great" judge? Despite the efforts of the many current curators of his reputation, history probably will not accord him that accolade. He was an important public figure and, notwithstanding the many contradictions, a strong force for the development and judicial protection of individual rights. But his long term influence is likely to be seen as essentially transitional. He helped to shift the Court's focus from, in Herman Pritchett and Alan Westin's phrase, a jurisprudence of property to a jurisprudence of status. But his noble aspirations for constitutional protection for human dignity and autonomy, often brilliantly articulated, were often poorly and incompletely advanced. This was due in part to his own carelessness, but also to his curious reluctance to mobilize judicial resources. Douglas' reputation thus exceeded his achievements. Ironically, the same legal realism which freed him to creatively interpret the Constitution, and the individualism which so importantly defined him as a person and enabled him to see so clearly the critical need for a rights conscious society, also undermined his judicial effectiveness.

References

BEAUHARNAIS V. ILLINOIS, 343 US 250 (1952) DEFUNIS V. ODEGAARD, 416 US 312 (1974) DENNIS V. UNITED STATES, 341 US 494 (1951) FRONTIERO V. RICHARDSON, 411 US 677 (1973) GRISWOLD V. CONNECTICUT, 381 US 479 (1965) KOREMATSU V. UNITED STATES, 321 US 760 (1944) KAHN V. SHEVIN, 416 US 351 (1974) LOCHNER V. NEW YORK, 198 US 45 (1905) PEREZ V. UNITED STATES, 402 US 146 (1971) REED V. REED, 404 US 71 (1971) ROE V. WADE, 410 US 113 (1973)