William O. Douglas served longer on the U.S. Supreme Court than any other justice, and his thirtysix- year tenure spanned major transformations in midtwentieth- century American society. After a brief stint as a lawyer in a large New York law firm, Douglas turned to teaching, first at Columbia and then at the Yale Law School, where he became one of the leaders of the legal realism school. During the New Deal he came to Washington first as a commissioner and than as chair of the Securities Exchange Commission. He also became a poker buddy of Franklin Roosevelt, who named him to the Court to succeed Louis D. Brandeis in February 1939.
Justice Douglas’s judicial opinions do not fit within any particular school of legal doctrine, although he is associated with the legal realists and considered an activist and a liberal jurist. In fact, he resisted the concept of legal doctrine and rejected any set of propositions from which resolutions of legal controversies could be deduced. Instead, he believed that his job as a justice was to make decisions about specific sets of facts in their particular social, economic, and political contexts. As situations changed, his decisions changed. Initially, he did not appear to be any sort of champion of civil liberties; by the time he retired, he was hailed as one of the staunchest defenders of individual liberties ever to sit on the Court.
Justice Douglas brought to the Court a distinctive approach to law and judging and insisted on an empirical approach to legal problems in the light of actual social, political, economic, and psychological realities. For the legal realists, concentration on doctrine and precedents masked the vital actuality of present circumstances. Although Justice Douglas sometimes referred approvingly to ‘‘sociological jurisprudence,’’ he avoided describing himself as a legal realist or as a functionalist. He was far too independently minded to associate with anything that sounded like orthodoxy.
Having rejected legal doctrine as a basis for judicial decision making, the justice gradually developed a distinctive judicial style. In simplest terms, he considered his job to decide cases. Justice Douglas believed he was responsible for making his own decision in each case that came before the Court and said that he agreed with Thomas Jefferson that each judge should give his individual opinion in every case. Explaining decisions was of secondary importance to deciding cases. Justice Douglas generally avoided established legal doctrine. He said he was opposed to stare decisis, the judicial practice of deciding cases based on precedent, because present controversies should be decided on their own terms, rather than by applying past cases. Particularly in constitutional cases, the justice thought stare decisis was an excuse for not making hard choices about how to apply constitutional values to new circumstances. He often said that he would rather create a precedent than find one.
The Douglas approach to judicial decision-making has been often criticized as result oriented: first deciding the result he wanted to reach and then building an argument for the correctness of that outcome. Critics also have disparaged some of his judicial opinions as careless, slapdash polemics. Justice Douglas was generally unperturbed by criticisms that he was result oriented or intellectually untidy. For him, life, including law, was just like that. Judicial opinions should provide solutions to real-life problems, not academic dissertations about legal doctrine. Sometimes he gave no reasons at all. Since deciding the case was the point of judging, and supporting reasons were far less important, it is not surprising that he did not often invest a lot of time developing the latter.
Justice Douglas had an uncanny ability to understand what was at issue in complicated cases and to envision new ways of looking at them. A typical Douglas opinion is filled with facts and may even have an appendix or two to provide even more background for his view of the case. He would first focus on the facts at issue and then find a key, pivotal issue at the heart of the legal controversy. In the latter part of his judicial career, he grasped cases especially quickly because he believed that legal controversies, like much of human behavior, fall into cyclical patterns, recurring every decade or so.
The justice’s opinion for the Court in Griswold v. Connecticut, 381 U.S. 479 (1965), which recognized a penumbral right of privacy in the Constitution, provides a typical as well as famous example of his characteristic approach to judicial decision-making. In Griswold, the Court held unconstitutional a Connecticut criminal statute prohibiting the use and distribution of contraceptives. Justice Douglas saw the heart of the case as marital privacy: ‘‘Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?’’ he asked, and then answered: ‘‘The very idea is repulsive to the notions of privacy surrounding the marriage relationship.’’ The justice’s opinion found that the penumbras of various constitutional guarantees establish a ‘‘right of privacy older than the Bill of Rights,’’ which protects marriage as ‘‘a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.’’ His insight into what was really at stake in Griswold retains remarkable vitality.
According to Justice Douglas, the Constitution not only established the Supreme Court’s political role, but also provided a set of general principles that the Court was to apply. These constitutional principles provided a philosophy which must be interpreted and applied by judges in light of their lives and experiences. For the justice, such a dynamic approach to constitutional interpretation was not at all incompatible with strict construction. Justice Douglas considered himself a strict constructionist, like Hugo Black, because he believed strict construction meant not subtracting from or making exceptions to constitutional freedoms. He also considered himself a strict incorporationist because he believed that all of the rights contained in the Bill of Rights were incorporated into the Fourteenth Amendment’s due process guarantee against state and local action that deprives individuals of liberty.
Among the more interesting examples of Justice Douglas’s adjustment of constitutional guarantees to contemporary circumstances was his 1946 opinion in United States v. Causby, 328 U.S. 256 (1946). The case was brought by a North Carolina chicken farmer whose property served as a glide path for military aircraft using an adjacent airport during World War II. The farmer sought compensation under the Takings Clause of the Fifth Amendment because the overflights made his property less valuable. Justice Douglas’s opinion recognized two important realities. First, modern air transport requires use of the air space above private property as part of the public domain, where airplanes can fly without restriction by those who own the land below. At the same time, the farmer’s particular circumstances involved frequent low-level takeoffs and landings. That particular pattern of overflights, so low that they frightened the farmer’s chickens literally to death, was a government use of the farmer’s land. Since this government use made the farmer’s land less valuable, the farmer was entitled to recover just compensation for his loss.
For Justice Douglas, applying constitutional guarantees that the government will not take property without paying just compensation required focusing on what was really at stake: the devaluation of the chicken farmer’s land by the government’s overflights. In a sense, the decision is result oriented: big government should bear the financial loss rather than the small farmer. But the opinion’s apt focus on the particular circumstances of the case also exemplifies the justice’s characteristic ability to apply the Constitution to new circumstances and technologies.
Change was at once inevitable and beneficial in his view. Unconstrained by commitment to doctrinal consistency, Douglas was notably uninhibited about changing his mind. There are many instances of cases in which he simply admitted that an earlier decision or view was wrong. In the l940s, the Supreme Court decided a series of cases that involved the constitutionality of compelling school children to salute the American flag. In Minersville School District v. Gobitis, 310 U.S. 586 (1940), Justice Douglas first voted with the majority of the Court that Jehovah’s Witnesses children could be compelled to salute the flag, even though doing so violated their religious beliefs. Three years later, in Board of Education v. Barnette, 319 U.S. 624 (1943), he changed his mind and joined Justice Black in a concurring opinion that argued that forced expression contrary to an individual’s religious principles violates the First Amendment.
In 1952, Justice Douglas forthrightly declared that he had changed his views with regard to the constitutionality of electronic surveillance. Dissenting in On Lee v. United States, a case involving a narcotics agent carrying a hidden microphone, he simply confessed that his earlier tolerance of electronic surveillance in Goldman v. United States (1942) had been mistaken. ‘‘I now more fully appreciate the vice of the practices spawned by . . . Goldman. Reflection on them has brought new insight to me. I now feel that I was wrong in the Goldman case’’ (in not voting to overrule Olmstead v. United States, 277 US 438, 1928, which had found wiretapping to be constitutional).
In addition to cases in which Justice Douglas changed his mind and said so, his flexible approach in deciding particular cases greatly annoyed some of his judicial colleagues, especially Felix Frankfurter. The Japanese exclusion cases and the Rosenberg espionage case are two prominent examples. In these cases, which involved highly charged political controversies, the justice did not see himself or his decisions as inconsistent. In his view, he simply responded to the particular circumstances of various aspects of the cases to help resolve difficult tensions among strongly held values and interests.
The three Japanese exclusion cases, Hirabayashi v. United States, 320 U.S. 81 (1943), Korematsu v. United States, 323 U.S. 214 (1944), and Ex parte Endo (1944), contested the legality of military orders that imposed curfews, relocation, and detention of Japanese on the West Coast after the attack on Pearl Harbor. Justice Douglas filed a concurring opinion in Hirabayashi that upheld the legality of a curfew order against persons of Japanese ancestry. He voted with the majority in Korematsu, in which the Supreme Court upheld an order excluding persons of Japanese ancestry from military areas of the West Coast and providing for their relocation and detention. Although the justice opposed racial and ethnic discrimination and said so repeatedly in his opinions, he thought that the wartime circumstances presented by the Korematsu and Hirabayashi cases involved a genuine national emergency sufficiently grave to warrant interference with individual civil rights.
Justice Douglas’s sense that the nation was in imminent danger was probably particularly acute because, during this time, he was a frequent visitor at the White House, where the fear of Japanese invasion of the West Coast must have been palpable. However, his opinion for the Court in Ex parte Endo focused on the conceded fact that Mitsuye Endo was a loyal American citizen who posed no danger to the war effort or national security. Justice Douglas’s context-bound realist view saw that the government’s exclusion of Endo was unjustified and therefore unconstitutional.
Much of William O. Douglas’s judicial philosophy focused on the importance of individual freedom and equality. In his 1958 book, Right of the People, he declared, ‘‘Our Society is built upon the premise that it exists only to aid the fullest individual achievement of which each of its members is capable. Our starting point has always been the individual, not the state.’’
The justice’s concerns about individual freedom were mostly focused on threatened government oppression, although he sometimes also expressed misgivings about domination of independent entrepreneurs by what he called the unelected ‘‘industrial oligarchy.’’ Early in his judicial career he was sometimes willing to subordinate individual rights to broader government interests. For example, in the emergency circumstances of World War II, Justice Douglas thought it constitutionally acceptable to sacrifice the rights of individuals of Japanese ancestry in the interests of national security. In the early 1950s, he became increasingly concerned about the dangers posed by government regimentation of individual freedom. He came to believe that one of the most important purposes of the Constitution was to restrain government. Dissenting in Laird v. Tatum (1972), he declared, ‘‘The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance.’’ In Justice Douglas’s view, ‘‘The aim [of the Bill of Rights] was to allow men to be free and independent and to assert their rights against government.’’
Justice Douglas provided the most comprehensive discussion of his views regarding individual freedoms guaranteed by the Constitution in connection with the 1973 abortion cases, Doe v. Bolton, 410 U.S. 179 (1973), and Roe v. Wade, 410 U.S. 93 (1973), in which the Supreme Court invalidated Georgia and Texas abortion statutes on privacy grounds. In his concurring opinion in Bolton, he described what he called ‘‘a reasoning’’ about individual rights, which are guaranteed by the Bill of Rights and are included within the right to liberty protected against state government interference under the Fourteenth Amendment to the Constitution. Douglas suggested three concentric circles of individual rights:
‘‘First is the autonomous control over the development and expression of one’s intellect, interests, tastes, and personality.’’ The justice saw these rights, including freedom of conscience and free exercise of religion, as aspects of freedom of thought and conscience that were absolutely protected under the First Amendment without any exceptions or qualifications. In this absolutely protected area, he also placed the right to remain silent under the Fifth Amendment.
‘‘Second is freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.’’ These fundamental rights, including the right of privacy involved in Griswold and the abortion cases, were outside the absolute protection of the First Amendment and were therefore subject to some reasonable control by the regulatory power of government. Nevertheless, any regulation had to be narrowly drawn and supported by a compelling state interest.
‘‘Third is the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.’’ These rights protected individuals as they interacted with others out in the world where the individual, although not exactly immune from government regulation, nevertheless retained certain rights to be let alone by the government, even in relatively public circumstances.’’
The particular individual freedom with which Justice Douglas is most closely associated is the right of privacy. He derived many of his views about protecting individual privacy against government interference from his predecessor on the Court, Louis D. Brandeis. But he nearly always referred to a right ‘‘of ’’ privacy, rather than Justice Brandeis’s right ‘‘to’’ privacy. Moreover, Justice Douglas’s right of privacy was solely focused on governmental threats to privacy. He rejected imposing damage liability for invasions of privacy by the news media, which Brandeis had suggested many years earlier. For example, dissenting in Public Utilities Commission v. Pollak (1952), the justice argued that when the government forced a ‘‘captive audience’’ of riders on the publicly licensed street cars in the District of Columbia to listen to radio broadcasts, such action infringed on the privacy rights of individuals to be let alone by the government.
After repeatedly calling for recognition of a constitutional right of privacy in a series of dissenting opinions, Justice Douglas eventually persuaded a majority of the Court to adopt his views about privacy in Griswold. In that case, he characterized the right of privacy as based on ‘‘several fundamental constitutional guarantees’’ of individual freedom, including the First Amendment right of association, the Third Amendment’s prohibition of quartering soldiers, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Fifth Amendment’s prohibition of compelled self-incrimination. His opinion for the Court found the right of privacy in the penumbras of these constitutional guarantees. In Justice Douglas’s view, ‘‘Specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.’’
For Justice Douglas, the right of privacy was part of the meaning of the Constitution, even though the word ‘‘privacy’’ does not appear in the text. One had only to open one’s eyes and one’s mind to see it. He believed that the right of privacy is consistent with strict construction of the Constitution because it is part of what the Bill of Rights means. Since he also believed that all of the guarantees of individual freedom in the Bill of Rights are included as aspects of the liberty protected against state action under the due process clause of the Fourteenth Amendment, states such as Connecticut were constrained to respect the right of privacy along with the rest of the Bill of Rights. The justice did not believe that the right of privacy was the same thing as substantive due process, which he rejected as simply fastening extraconstitutional personal views and economic preferences of particular justices on the Constitution. The right of privacy was, for him, part and parcel of the Constitution.
Justice Douglas came to agree with Justice Black that First Amendment guarantees of freedom of expression and religion permit no governmental regulation of any kind with regard to speech, press, religion, conscience, or association. In the appeal of the conviction of the Communist Party leaders (Dennis v. United States, 341 U.S. 494, 1951), Justice Douglas entered a short but extremely effective dissent that tore apart the weak reasoning of Chief Justice Vinson’s majority opinion upholding the convictions. He searched the record to find evidence—any evidence— that the defendants had done anything else than talk and could find no proof that that had committed a single act of any sort, even conspiracy to act. Although vilified at the time for his defense of free speech even for communists, Justice Douglas’s dissent has become one of the great markers in free speech jurisprudence. Thomas Emerson noted an essential ingredient in his thought: a ‘‘remarkable ability to grasp the realities of the system of free expression.’’ For Justice Douglas, free speech could only be understood in the larger context of facts. The power of his dissent lies in his reliance on the facts of the case.
Justice Douglas dissented in obscenity cases such as Roth v. United States, 354 U.S. 476 (1957), in which he stated, ‘‘The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.’’ Even though the justice was a victim of obnoxious press accounts of his personal life, he believed that awarding damages for defamation or invasion of privacy was unconstitutional because it involved penalizing the media for disseminating information. For example, he concurred in rejecting the invasion of privacy action in Time v. Hill, 385 U.S. 374 (1957), which involved a sensationalized magazine account of a family’s experience as hostages of escaped criminals. He was concerned that the possibility of having to pay damages might discourage publication.
Because he believed in the intrinsic worth of each individual, Justice Douglas consistently favored equality of opportunity. A case involving a special admissions program for minority applicants to the University of Washington Law School (DeFunis v. Odegaard, 1974) presented a particularly difficult equal protection question. The majority found the case moot because the nonminority plaintiff was in his last semester of law school and would graduate no matter what the Court decided. Justice Douglas thought the Court should decide the case.
Repeatedly insisting on racial neutrality and decrying racial, religious, and ethnic quotas, the justice took a hard look at law school admissions practices. After carefully considering the circumstances, he concluded that the law school’s special admissions process was constitutional because, in his view, it was designed to individualize and to equalize the treatment of applicants from minority backgrounds. ‘‘I think a separate classification of these applicants is warranted, lest race be a subtle force in eliminating minority members because of cultural differences,’’ he wrote. At the same time, he also insisted that ‘‘there is no constitutional right for any race to be preferred.’’ For Justice Douglas, equal protection, like many constitutional values, involved a complex balancing of the realities of the situation. Individualized treatment in this instance satisfied his understanding of the spirit of equal protection.
The justice’s concerns about individual equality are also reflected in his application of equal protection guarantees to strictly scrutinize legislative classifications that affect fundamental rights. Among the most interesting examples of this approach to equal protection guarantees was his inventive 1942 opinion for the court in Skinner v. Oklahoma. His opinion describes Oklahoma’s Habitual Criminal Sterilization Act at issue in the case as ‘‘legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. There is no redemption for the individual whom the law touches . . . . He is forever deprived of a basic liberty.’’
Therefore, the opinion concludes, the Court should apply ‘‘strict scrutiny of the classification’’ that differentiated between those convicted of grand larceny and others convicted of such similar property crimes as embezzlement. Careful scrutiny was required ‘‘lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.’’ Since Oklahoma provided no reasons why it needed to sterilize people who had been three times convicted of grand larceny, but not people who had been three times convicted of embezzlement, the statute was unconstitutional. ‘‘The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn,’’ when such fundamental individual rights as the right to have children is at stake. Justice Douglas later applied this strict scrutiny approach in invalidating Virginia’s $1.50 annual poll tax as a condition for voting in state elections in Harper v. Virginia State Board of Elections (1966). His idea that legislative classifications that affect fundamental individual rights must be strictly scrutinized by the courts has proved to be powerful as well as enduring.
William O. Douglas’s judicial work was as eclectic as it was prolific. People tend to agree strongly or equally strongly to disagree with his independentminded judicial philosophy, much as they intensely liked or disliked the blunt-spoken and impatient man. Some of his judicial opinions have a remarkable resonance and eloquence. Some are political tracts. Still others appear to have been carelessly thrown together. Through it all, Justice Douglas had an insight into the American spirit, an ability to articulate constitutional values, and a power to provoke thought and argument that few Supreme Court justices have equaled.
MELVIN I. UROFSKY
References and Further Reading