The Legend and Life of
William O. Douglas
By Bruce Allen Murphy
Random House. 716 pp. $35
Reading the Supreme Court opinions of Justice William O. Douglas, it's often hard to avoid the suspicion that they were scribbled on the back of a cocktail napkin. Breezy, polemical and unconcerned with the fine points of legal doctrines, they read more like stump speeches than carefully reasoned constitutional arguments. And now comes Wild Bill to confirm our darkest fears. According to Bruce Allen Murphy's exuberant debunking of the longest-serving justice in American history, Douglas actually did scribble his opinions on scraps of paper (his staff called them his "plane trip specials") on his way to weekends devoted to running for president or compulsive bouts of drinking and adultery with college students, flight attendants or any other women who crossed his path. Although Murphy says that Douglas "proved to be the one person who could and did make a real difference in the American judicial system," the overwhelming impression left by his comprehensive biography is that Douglas hurt the cause of liberalism more than he helped it.
According to Murphy, the touchstone of Douglas's character was a willingness to do anything to forward his own career -- including lie about his past, break his promises and ruthlessly discard wives, children, friends and clerks as soon as they stopped being useful to him. He became the most sought-after law professor in the country by choosing his topics for their publicity value and hiring armies of law students to write his articles, which he would top off with "the Douglas flair." Appointed to the Securities and Exchange Commission by President Franklin Roosevelt, he continued his relentless pursuit of publicity by going after high-profile symbols of corporate excess. ("Piss on 'em," was his mantra to his staff.) And when Justice Louis Brandeis retired in 1939, FDR, who needed a Westerner and thought Douglas played an interesting game of poker, appointed him to the Supreme Court at the age of 40.
From the beginning, Douglas confessed that he "found the Court . . . a very unhappy existence" because, as his friend Tommy Corcoran put it, he "wanted the Presidency worse than Don Quixote wanted Dulcinea." Roosevelt thought that Douglas would be the strongest running mate in 1944, but Democratic bosses persuaded him to pick Harry Truman instead. Truman actually asked Douglas to be his running mate in 1948, but Douglas refused on the grounds that he didn't want to be "second fiddle to a second fiddle." But he never abandoned his goal of becoming president, and when Kennedy won the Democratic nomination over Lyndon Johnson, who Douglas believed would have chosen him as a running mate in 1960, Douglas drank himself into a stupor, raving that "this always happens to me."
Murphy suggests that Douglas's political ambitions caused him repeatedly to lie about his past in a series of self-promoting autobiographies that were closer to fiction than fact. He turned a rambling manuscript about hiking into a national bestseller by inventing the claim that "it was . . . infantile paralysis that drove me to the outdoors." In fact, his childhood illness was a recurring, psychosomatic intestinal colic. His law school classmates called him "the Approximate Mr. Justice Douglas" because he claimed to have graduated second in his class (at best he was fifth) and because he misstated the date of his first marriage to conceal that his first wife had put him through law school. And in a final act of self-invention, he arranged to be buried in Arlington Cemetery by claiming to have been a private in World War I. In fact, Murphy charges, Douglas never joined the Army and served only two months in the Student Officers Training Corps to avoid the draft. But a recent report in The Washington Post suggests that Murphy has inaccurately described the eligibility rules for burial in Arlington: As an associate justice who was honorably discharged from active duty, however brief, Douglas appears to have been technically eligible after all, according to a federal law in force when he died.
Douglas's political ambitions influenced his positions on the Supreme Court as well, according to Murphy. He was a law-and-order conservative in the 1940s, when he still hoped to become president, but he became more sensitive to the rights of religious minorities in an effort to court the Catholic vote. By the 1950s, he had turned himself into a reliable civil libertarian, but his opinions became increasingly self-indulgent. "I'm ready to bend the law in favor of the environment and against the corporations," he boasted. His most famous opinion, locating a right to privacy in "penumbras, formed by emanations" from the Bill of Rights, was justly attacked for its free-wheeling quality; a more legally rigorous derivation for privacy rights would have better served his cause. By the end of the 1960s, Douglas had become a judicial lounge act, ignored by his colleagues, who unanimously reversed his attempt to enjoin the bombing in Cambodia, and reduced to writing articles for Playboy and autobiographical plays about his political nemesis, Richard Nixon.
Murphy omits no details of Douglas's private life, where he appears to have been something of a monster. His neglected children found him "scary" and noted that he spoke to them only when "press photographers wanted a picture." They also resented his treatment of their mother, his first wife, whom he threw over after 28 years of marriage for a series of younger women. He left his third wife for a high school student who had asked him to sponsor her senior thesis, and then divorced her after 24 months for a college student whom he had met while she was a waitress in a cocktail lounge. He kept a room at the University Club, to which his messenger would drive Supreme Court secretaries who caught his fancy. In his sixties, he routinely invited flight attendants to visit him at the Court, where he would lunge at them in his chambers. He would not have survived the era of Anita Hill.
Murphy, the author of two other lively and respected works of Supreme Court muckraking, appears to take no special pleasure in unmasking his subject. But the only sympathetic moment in this relentlessly negative portrait occurs when Douglas, in an effort to prevent the construction of a parkway beside the Chesapeake and Ohio Canal, challenges the editors of The Washington Post, who had supported the project, to a 185-mile hike. For eight days, the 55-year-old Douglas leads a diminishing pack down the tow path, undeterred by a freak snowstorm, poison ivy or the return of his old intestinal problems. Hiking along in the nature he loved, singing drinking songs, he seems almost human. But at the end, when he is standing in a boat and waving his Western hat in response to a "roaring welcome" from 50,000 people in Georgetown, one realizes the true point of the trip. For the first and only time in his life, Douglas was basking in the cheers of a crowd. *
Jeffrey Rosen teaches law at George Washington University and is the legal affairs editor of the New Republic.