When the Dogs Stopped Snapping

By Evan Thomas

In a posthumous book, Justice Douglas reviews his court years

The purpose of the U.S. Constitution, Supreme Court Justice William O. Douglas liked to say, is "to keep the Government off the backs of the people." Douglas was speaking from personal conviction. Especially in his later years, he believed that Government was not only out to subvert the Constitution but to get its chief defender, William O. Douglas.

With some reason. Douglas claims that Richard Nixon, in cahoots with then House Minority Leader Gerald Ford, once sicked 40 federal agents on Douglas in a misbegotten attempt to have the liberal Justice impeached. Even before Nixon, Douglas believed that the secret conference room of the Supreme Court was bugged. Chief Justice Earl Warren once had the FBI "sweep" the conference room, but Douglas remained suspicious, since he thought the FBI probably put the bugs there in the first place. And the feisty old jurist, who originally planned to retire from the Supreme Court in 1969, vowed to stay on until "the last hound dog had stopped snapping at my heels." Sick and in pain, he did finally outlast Nixon. When he left the high court in 1975, he had served 36 years, longer than any other Justice in U.S. history.

Douglas published his first autobiography, Go East, Young Man, in 1974, covering his life up to his appointment to the Supreme Court. The title of its just released sequel, The Court Years: 1939-1975, suggests a judicially revealing treatise. But Douglas spends more time twitting colleagues than talking about the workings of the court. A favorite target is longtime ideological foe Felix Frankfurter. Douglas says that Justice Frankfurter, brilliant, gregarious, but insecure, had the arrogant habit of dropping messages at the feet of court pages--as if physical contact with the unanointed would desecrate the sanctity of the conference room. Douglas tells of a near fistfight between Frankfurter and Chief Justice Fred Vinson in the court's conference room. He notes that Justice Thurgood Marshall was appointed to the court "simply because he was black," and quotes Marshall's contribution to the reverse discrimination debate: "You guys," Marshall tells his brethren, "have been practicing discrimination for years. Now it's our turn."

Douglas' judicial philosophy was a relentless defense of individual rights. His nearly absolutist views on the subject brooked no debate. His preference, he admits, was for "creating precedent," not "finding it." If he does not describe the give and take of court procedures, it is probably because he held aloof from most of them. He quotes the observation of Chief Justice Charles Evans Hughes: "Ninety percent of any decision is emotional."

In The Court Years little reference is made to his personal life. Most of Douglas' hobnobbing seems to have taken place at stag parties. When his poker partners played sucker for Harry S. Truman, letting the President walk off with $5,000 despite a night of mediocre hands, Douglas reports he was so "disgusted" that he quit poker forever.

He seems obsessed with certain villains, chiefly Richard Nixon and his Chief Justice, Warren Burger. Nixon, Douglas reports, was so vindictive that he denied a dying Earl Warren the use of Walter Reed Army Medical Center. Douglas scathingly describes Burger as Nixon's "hatchet man" on the court. Burger used to irritate Douglas, in fact, by ticking off all the liberal landmarks of the Warren Court that he wanted to reverse.

Douglas grumbles that under Burger the Constitution was being "put on ice" to make way for the forces of "law-and-order." Such maunderings are sad. In his hundreds of opinions and dissents, Douglas had far more impact on the court and the Constitution than Richard Nixon and Warren Burger put together. It is too bad that Douglas decided not to tell more about it.

--By Evan Thomas

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