Justice William O. Douglas' account of his Supreme Court years, released posthumously today by Random House, shows him to be as obsessed with his many enemies as they were with him, believing that both he and the Constitution were surrounded by conspiracies.
His autobiography of his 36 years on the court, like his opinions and dissents, reflects a struggle against what he depicts as an unbroken line of negotive forces -- beginning with "trusts" and big business, the organized bar and, finally, the administration of Richard M. Nixon.
It was such forces, he suggests, that tried to have him impeached in the 1960s and that, in fact, dissuaded him from resigning in 1969, instead of six years later, as he had decided to do. "I changed my mind about retiring and decided to stay on indefinitely," he writes, "until the last hound dog had stopped snapping at my heels."
Douglas who died last Jan. 19, finished writing his memoirs shortly after he retired from the court in 1975. But he had publication withheld until after his death "in the interests of sensitivities and feelings," said Sheldon Cohen, his attorney. Others who worked on early editing of the memoirs said Douglas also explicitly sought to exclude "unkind" references from the manuscript.
Nevertheless, he writes that he thought of Chief Justice Warren Burger as a Nixon "hatchet man" when Burger was appointed. Burger, Douglas writes, "thought of the court as a symbol of an authority which had best not be exercised."
Citing an already publicized effort by Thomas G. (Tommy the Cork) Corcoran to lobby the court improperly on a natural gas case in 1969, Douglas says Burger and Nixon brought "to the court a whiff of scandal" that had never before existed.
(In fact, neither Nixon nor Burger has ever been reported involved in the lobbying effort by the El Paso Natural Gas Co. Burger, in an incident publicized in the recent book "The Brethren," did try to change a court rule to accomplish what the company was trying to achieve with its lobbying -- a rehearing of its Supreme Court case. Douglas confirms that he blocked the rule change by threatening to expose it in a dissent.)
He writes in "The Court Years," to be published Oct. 6, that he believed that the Supreme Court's super-secret conference room, as well as justices' telephones, were bugged. Through a sweep ordered by Chief Justice Earl Warren found nothing, Douglas recalled that Chief Justice Charles Evans Hughes had once discovered a "bug" in the conference room.
He accuses the Nixon Justice Department of once making "threats" to the justices that their jurisdiction over wiretap cases would be removed by the administration and Congress if they didn't reverse a ruling that made wiretapping evidence subject to discovery in open court.
He speculates that news stories about his receipt of a salary from the Parvin Foundation and related efforts to tie him in with "gambling interests" in 1966 were, in part, an FBI-inspired effort to get him disqualified from an important gambling-wiretap case before the court
And he said he believes that the successful effort of Justice Thurgood Marshall to overturn a Douglas order staying the bombing of Cambodia in 1973 resulted when "some Nixon men put the pressure on Marshall . . ." As with many of his other suggestions, he offers no evidence of his claim. The book covers critical court decisions on school desegregation, the rights of criminal defendants, his stay of the execution of the Rosenbergs (he was threatened with lynching for it), his vote -- which he later publicly regretted -- to allow imprisonment of Japanese-Americans and the first seven years of the Burger court.
Generally, however, the book is relatively short on court secrets and name calling, and long on recollections of presidents and personal philosophy about his own judicial activism versus the pressure for the status quo from "the establishment."
His own view, he said, was that he would "rather create a precedent than find one." He approvingly cites advice he received 30 years before his retirement from then-Chief Justice Hughes: "'Ninety percent of any decision is emotion. The rational part of us supplies the reason for supporting our predilections.'"
Much of the book is also devoted to placing the various characters of U.S. history in the 20th century on one side or the other of his perceived struggle between right and wrong.
"The Nixon-Agnew regime," he writes, "reflected both crude and subtle corruption . . . This was the first time in history that both president and vice president polluted and desecrated their high positions of trust and public confidence."
The organized bar "is usually the focal point of the action," he says. 'It reflects the status quo. It is part of the establishment."
The press, which he accuses of allowing itself to be used to tarnish him by innuendo and planted leak, is "as depraved as it (was) in Jefferson's time. My feelings, however, were like Jefferson's -- that craven and abusive and self-seeking as the press is, a much worse press would result from governmental surveillance."
"Establishment lawyers," like Dean Acheson and Erwin Griswold, "spoke from the premise of the status quo in the law of the past and its precedents; they considered any deviation an error . . . they were unsuccessful, unenlightened advocates who missed great opportunities to mold the law . . ."
His "all-American team" of justices was composed of Hugo Black, William Brennan, Felis Frankfurter, John Harlan, Charles Evans Hughes, Earl Warren and Byron White.
Under Harry S. Truman, Douglas writes, "the court sank to its lowest professional level until the Burger court arrived."
At the same time, Douglas strongly defends his own actions -- accepting a salary from the Parvin Foundation and serving, at times, as an informal adviser and confidant to politicians (particularly President Kennedy and Robert F. Kennedy).
Douglas also described, without apology, his unorthodox and extensive efforts outside the court in lobbying presidents and others in conservation issues and the war in Vietnam.
As he neared retirement, Douglas seemed to become more and more pesimistic about the future of the court under Burger. The court, "an important symbol of the Constitution, was shoved more and more into the background . . . It would keep the solemn, benign face of the Establishment, letting the country know that 'law and order' was in control and that the Constitution -- so far as human rights were concerned -- kept on ice."
"This is the real reason why the Supreme Court was said to be overworked and should let others do its work. Big business, power politics, the regime under which the poor got poorer and the rich richer could not possibly have it otherwise."
The 395-page book contains hundreds of anecdotes. Such as:
When debating affirmative action and "reverse discrimination," of which Douglas disapproved, Justice Marshall, who is black, reportedly told his colleagues: "You guys have been practicing discrimination for years. Now it is our turn."
In 1939, Justice James Clark McReynolds reportedly asked a black Supreme Court barber: "'Tell me, where is this nigger university in Washington?'" The barber "removed the white cloth from McReynolds, walked around and faced him and said, 'Mr. Justice, I'm shocked that any justice would call a Negro a nigger. . . there is a Negro college in Washington. Its name is Howard University and we are very proud of it.'"
Justice Felix Frankfurter used "flying squadrons" of law clerks to convince other justices to change their minds on cases. Justice Charles Whittaker changed his mind so often that "it eventually led to a nervous breakdown and his retirement."
When playing poker with President Truman and others, Douglas recalls, everyone in the game let Truman win. "I was shocked at the patronizing attitude. Our strategy with FDR had been to do him in, if possible, and to gloat over a victory . . . Truman walked out of my house that night with $5,000 in winnings. I was so disgusted I never played another game of poker in my life."