The Anti-Hero

Wild Bill: The Legend and Life of William O. Douglas

by Bruce Allen Murphy

(Random House, 688 pp., $35.00)I met Justice William Douglas, the longest-serving member of the
Supreme Court, when I was clerking for Justice William Brennan.
Douglas struck me as cold and brusque but charismatic--the most
charismatic judge (well, the only charismatic judge) on the Court.
Little did I know that this elderly gentleman (he was sixty-four
when I was a law clerk) was having sex with his soon-to-be third
wife in his Supreme Court office, that he was being stalked by his
justifiably suspicious soon-to-be ex-wife, and that on one occasion
he had to hide the wife-to-be in his closet in order to prevent the
current wife from discovering her.

This is just one of the gamy bits in Bruce Allen Murphy's riveting
biography of one of the most unwholesome figures in modern American
political history, a field with many contenders. Murphy explains
that he had expected the biography to take six years to complete
but that it actually took almost fifteen. For Douglas turned out to
be a liar to rival Baron Munchausen, and a great deal of patient
digging was required to reconstruct his true life story. One of his
typical lies, not only repeated in a judicial opinion but inscribed
on his tombstone in Arlington National Cemetery, was that he had
been a soldier in World War I. Douglas was never in the Armed
Forces. The lie metastasized: a book about Arlington National
Cemetery, published in 1986, reports: "Refusing to allow his polio
to keep him from fighting for his nation during World War I,
Douglas enlisted in the United States Army and fought in Europe." He
never had polio, either.

Apart from being a flagrant liar, Douglas was a compulsive
womanizer, a heavy drinker, a terrible husband to each of his four
wives, a terrible father to his two children, and a bored,
distracted, uncollegial, irresponsible, and at times unethical
Supreme Court justice who regularly left the Court for his summer
vacation weeks before the term ended. Rude, ice-cold, hot-tempered,
ungrateful, foul-mouthed, self-absorbed, and devoured by ambition,
he was also financially reckless--at once a big spender, a
tightwad, and a sponge--who, while he was serving as a justice,
received a substantial salary from a foundation established and
controlled by a shady Las Vegas businessman.

For at least a decade before he was felled in 1974 by the massive
stroke that forced his retirement from the Court a year later,
Douglas (perhaps as a consequence of his heavy drinking) had been
deteriorating morally and psychologically from an already low
level. The deterioration manifested itself in paranoid delusions,
senile rages and sulks, sadistic treatment of his staff to the
point where his law clerks--whom he described as "the lowest form
of human life"--took to calling him "shithead" behind his back, and
increasingly bizarre behavior toward women, which included an
assault in his office on an airline stewardess who had
unsuspectingly accepted an invitation from this kindly seeming old
man to visit him there. His third marriage, to a woman in her early
twenties (the woman in the closet), lasted only two years, and
began to disintegrate within weeks of the wedding. After that
divorce Douglas speedily took up with two more women in their
twenties, marrying one on an impulse but later resuming romantic
relations with the other. This fourth marriage might well have
dissolved had his stroke held off. As Murphy puts it, Douglas had
"buyer's remorse" in the marriage market.

Does any of this matter? It would not--had not Douglas in his
autobiographical writings and elsewhere presented his life to the
public as exemplary of American individualism and achievement. I
cannot begin to imagine his thinking in publishing lies that were
readily refutable by documents certain one day to be discovered.

William Orville Douglas was born in 1898 in Yakima, Washington. In
his autobiography he claimed that his grandfather Orville had
fought in Grant's army at Vicksburg, when in fact Orville had
deserted from the Union Army twice without ever seeing combat.
Douglas's father, an eccentric itinerant preacher notably
neglectful of his children (like father, like son), died when
Douglas, the couple's firstborn son, was a young child. Douglas
himself almost died of an intestinal disease as an infant. His
mother hailed his recovery as a miracle. He became her "treasure"
and she declared that he would someday be president of the United
States, thus planting in him the seed of a lifelong ambition. It
was also in his autobiography that Douglas reported having cured
himself of polio by sheer force of will. He wanted to link himself
to Franklin Roosevelt, whom he had hoped to succeed as
president--with the difference of having actually cured himself of
the disease, a feat beyond FDR's ability.

Douglas claimed to have grown up in abject poverty. This was another
lie: his mother had been left surprisingly well provided for as a
widow, and the family, though poor by modern standards (as most
people were a century ago), was middle class. What is true is that
Douglas's mother was very tight with money (another parental trait
the son inherited, though this one only fitfully); and as a result
Douglas believed until he was an adult that the family had been
poor. His discovery of the truth led to a lifelong resentment
against his mother, who he thought should have paid for him to
attend Washington State University, which he believed would have
led to his obtaining a Rhodes Scholarship. On his deathbed Douglas
told his wife: "I want you always to know that no one has ever been
better to me since my mother." Douglas's daughter told Murphy that
this was actually an insult, given Douglas's hostility toward his
mother.

After graduating from Whitman College in Washington (Douglas claimed
that at Whitman he had lived in a tent, when in fact he had lived
in a fraternity house, though in hot weather the frat boys
sometimes slept outside), Douglas taught high school for two years
and then enrolled in Columbia Law School. He claimed to have
arrived in New York, having ridden the brake rods of a train or
possibly in an open boxcar, with just six cents in his pocket--all
lies. By this time he was married, and his wife, a schoolteacher,
was his major support in law school. He concealed this in his
autobiography, in part by postdating his marriage by a year, and
claimed to have worked his way through law school. He also claimed
to have heard Caruso sing at the Metropolitan Opera House, though
the tenor died the year before Douglas arrived in New York.

Of greater consequence, Douglas claimed to have graduated second in
his law school class, which was not true, although he was a good
student, and made the law review, and was hired by the Cravath firm
(despite looking, according to John J. McCloy, the associate who
hired him, like "a singed cat"), then as now a leading Wall Street
firm. He quit after four and a half months and fled back to Yakima,
his hometown, hoping to practice law there but abandoning the idea
after just four days. A spell of unemployment followed, during which
he was supported by his wife. He returned to the Cravath firm for
seven months and then went into teaching, first at Columbia and
then at Yale, where he represented himself as having been a
successful Wall Street lawyer. He also claimed to have practiced
law in Yakima; he had not.

His academic career was short, lasting from 1927 to 1935, but it was
spectacularly successful. Attracted as a student to legal realism,
of which Columbia was the hotbed, as a professor he quickly became
a prominent member of the movement. Yale soon hired him away from
Columbia, with which he had become disaffected by the school's
failure to appoint a legal realist as dean. He had made a
tremendous impression on Robert Maynard Hutchins, Yale's young
dean. When shortly afterward Hutchins became president of the
University of Chicago, he offered Douglas an appointment and
Douglas accepted, and he was listed for two years in the Chicago
catalog as a member of the faculty visiting at Yale. But he never
taught at Chicago, instead using his dual status to extract a
Sterling professorship and high salary at Yale. He was a consummate
careerist.

The legal realists recognized that law is not an autonomous body of
thought. (The belief that it is autonomous, and that judges arrive
at their decisions by a process of deductive logic or something
akin to it, is known as legal formalism, and it retains to this day
a strong hold on the legal imagination.) According to the realists,
law is an instrument of social policy, and intelligent reform
therefore requires an understanding of the consequences of law, an
understanding that is itself dependent on social science and
empirical inquiry. Douglas knew no social science, but he
understood the value of grounding analysis of business law in
empirical inquiry, and he organized and supervised a number of
ambitious empirical projects. His articles and his casebooks
quickly made him a coming figure in corporate and bankruptcy law.

Yet he had plenty of time for boozing, girls, and practical jokes.
Once, when the dean of the law school was too drunk to find his way
to the railroad station to catch a train to a city in which he was
to give a speech, Douglas considerately drove him to the
station--and put him on a train to a different city. Another time
Douglas sent a note to one of his colleagues that he purported to
be from an admirer named Yvonne, who gave her phone number and
suggested that they meet for cocktails. When the colleague dialed
the number, he discovered that he was calling the city morgue.
Douglas's sense of humor also expressed itself in his
connoisseurship of popular-song titles, such as "Songs I Learned at
My Mother's Knee and Other Low Joints" and "My Wife Ran Off With My
Best Friend, and I Sure Miss Him."

Legal realism made a natural fit with the New Deal, and a number of
faculty members and recent students at Yale went off to work for
federal agencies. Douglas, quickly spotting securities law as an
emerging field and becoming an expert in it, became a member of the
Securities and Exchange Commission and before long its chairman.
His two years as chairman brought notable successes in efforts to
regulate the stock exchanges and made him a hero of the second New
Deal. Murphy's account of the Wall Street scandals of the period has
a surprisingly contemporary ring.

Douglas, according to legal historian (and former Douglas law clerk)
Dennis Hutchinson, "found it easy to elbow his way into the back
rooms of power through a combination of a reputation for
capability, cheek, skill at losing poker games, and drinking hard
with the boys." When Brandeis retired from the Supreme Court in
1939 and there was a clamor to appoint a Westerner to the Court,
Roosevelt picked Douglas. He was forty. He was also Brandeis's
personal choice to succeed him.

It took Douglas only a few weeks to discover that being a judge was
not to his taste. He missed the excitement of jousting with the
Wall Streeters, and he viewed his new job primarily as a stepping
stone to the presidency. He came close to being nominated for vice
president on the Democratic ticket in 1944; had he been the
nominee, he rather than Truman would have become president when
Roosevelt died the following year. Bitterly disappointed, he
continued to nurse presidential ambitions. He almost accepted the
Democratic nomination for vice president in 1948--Truman was
desperately eager to have him on the ticket--and probably would
have done so had he thought Truman would lose the election, in
which event he could expect to inherit Truman's mantle as leader of
the Democratic Party. But he shrewdly recognized that Dewey would
lose.

As late as 1960, Douglas was still considering a political career.
Lyndon Johnson, one of his pals (Douglas tended to clump together
with other persons of unsavory personal character), promised
Douglas that if he was nominated for president he would make
Douglas the vice presidential nominee. Douglas was bitter at the
Kennedys for ruining his chances by "buying" the 1960 nomination
for JFK. His bitterness provoked a memorable alcoholic binge that
Murphy vividly describes.

Douglas's divorce from his first wife in 1954 had placed him in a
financial bind from which he never entirely escaped. Her lawyer,
egged on by Tommy Corcoran, another of Douglas's unattractive
friends from the New Deal days turned enemies, had ingeniously
inserted in the divorce settlement an escalator clause whereby the
more money Douglas made from his books and lectures, the more he
had to give her in alimony--and she lived for a long time and did
not remarry. He was now on a financial treadmill. Besides his
income from the dubious Parvin Foundation, he lectured constantly
and wrote book after book, mainly travel books; he was heavily
dependent on publishers' advances. He employed an editorial
assistant who eventually became a ghost co-writer of his books.

In the 1940s, when Douglas had thought he had a shot at the
presidency, he had been a liberal justice, but respectably so--to
the right, for example, of Frank Murphy. In the 1950s, however, he
and Hugo Black formed the extreme liberal wing of the Court, and he
moved steadily leftward from there, to the point where even in the
heyday of the Warren Court in the 1960s Douglas was to the left of
any other justice. He became a bte noir of the right and survived
three efforts to impeach him, the third a serious one that was
blocked by Democratic control of the House of Representatives. The
second impeachment effort was provoked by his sensible if premature
suggestion--it was during the Korean War--that the United States
should begin to cozy up to Communist China in order to divide it
from the Soviet Union, a suggestion that later became the
foundation of the hated Nixon's foreign policy.

Douglas became a hero not only to radicals and civil libertarians
but also to environmentalists. He may not have liked any human
being, but he loved nature; and by his books and his personal
example, including a well-publicized 185-mile hike along the
Chesapeake %amp% Ohio canal towpath in a successful protest against
the building of a highway on it, Douglas helped give visibility to
the nascent environmental movement. I had a scrape with Douglas's
environmentalism when I worked in the solicitor general's office in
the 1960s. We sided with the Bonneville Power Administration (part
of the Department of the Interior) in a fight with the Federal
Power Commission over whether Bonneville or a private power company
would build a hydroelectric dam on the Snake River in Idaho. We won
the case, which was gratifying, but we were astonished at Douglas's
opinion, which declared without basis in the record or the
arguments of the parties that no one should build the dam, because
it would harm the salmon, and anyway solar and nuclear power would
soon supplant the need for further hydroelectric power.

From my account, Murphy's book may seem a hatchet job, with its
mountain of often prurient detail about Douglas's personal life and
character. Not so. Murphy displays no animus toward Douglas. He
does not try to extenuate Douglas's failings as a human being, or
to excuse them, or even to explain them, but he greatly admires
Douglas's civil liberties decisions, and (without his actually
saying so) this admiration leads him to forgive Douglas's flaws of
character. The only time his realism regarding Douglas's character
falters is when he is discussing Felix Frankfurter. His portrayal
of Frankfurter is relentlessly and excessively critical; he sees
Frankfurter exclusively through Douglas's hostile eyes.

Murphy is right to separate the personal from the judicial. One can
be a bad person and a good judge, just as one can be a good person
and a bad judge. With biography and reportage becoming ever more
candid and penetrating, we now know that a high percentage of
successful and creative people are psychologically warped and
morally challenged; and anyway, as Machiavelli recognized long ago,
personal morality and political morality are not the same thing.
Douglas was not a good judge (I will come back to this point), but
this was not because he was a woman-chaser, a heavy drinker, a
liar, and so on. It was because he did not like the job. In part he
did not like it because he wanted another job badly, a job for
which he was indeed better suited. Roosevelt may have made a
mistake in preferring Truman as his running mate in 1944. Not a
political mistake: Douglas had never run for elective office, and
the Democratic Party bosses, whose enthusiastic support FDR thought
essential to his re-election, were passionate for Truman. If
passing over Douglas was an error (which we shall never know), it
was an error of statesmanship. With his intelligence, his
toughness, his ambition, his leadership skills, his wide
acquaintanceship in official Washington, his combination of Western
homespun (a favorite trick was lighting a cigarette by striking a
match on the seat of his pants) and Eastern sophistication, and his
charisma, Douglas might have been a fine Cold War president.

At least a Douglas administration would not have been afflicted by
the cronyism that so undermined Truman's presidency. Douglas had
his own cronies, many with character flaws similar to his own, like
Lyndon Johnson and Abe Fortas, but they were abler and less
manifestly corrupt than Truman's cronies. And unlike Henry Wallace,
the vice president whom FDR providentially dropped at the end of
his third term in favor of Truman, Douglas was not soft on
communism. I do not think that he was ideological at all; he was
merely ambitious. I doubt even that he was, despite his later
judicial record, a genuine liberal. Douglas was just ornery and
rebellious and publicity-seeking: "always fame was the spur," as
Ronald Dworkin, one of Douglas's liberal critics, put it.

Thus Douglas's hostility to Frankfurter seems to have been based on
professional jealousy rather than on political or jurisprudential
disagreement. Come the 1950s and the dimming of his presidential
prospects, Douglas gave his rebellious instincts full rein and
reveled in the role of the iconoclast, the outsider; he became the
judicial Thoreau. Later, when he himself had become an icon of the
left, he claimed that had he been president he would not have
dropped the atomic bomb on Japan, and would have recognized Red
China, and so forth; but these claims cannot be taken very
seriously, especially given his complete lack of respect for
truthfulness.

Where Murphy can be faulted, though I think not severely, is for his
uncritical treatment of Douglas's judicial performance. Other recent
judicial biographies, such as the very distinguished biographies of
Learned Hand by Gerald Gunther, of Benjamin Cardozo by Andrew
Kaufman, and of Byron White by Dennis Hutchinson, have maintained a
good balance between the judge's life and his work. But those
biographers were dealing with much less interesting personalities;
and after fifteen years and seven hundred pages Murphy was entitled
to call it a day. About all he does with Douglas's judicial product
is quote from a handful of his civil liberties opinions.

The quotations are effective in demonstrating that Douglas was an
able judicial polemicist and had the good sense to write his own
opinions rather than rely on law clerks, even if they are not
really the lowest form of human life. Still, taken as a whole,
Douglas's judicial oeuvre is slipshod and slapdash. Here are
typical criticisms, none of them by conservatives. "His opinions
were not models; they appear to be hastily written; and they are
easy to ignore" (Lucas Powe). Their carelessness is rooted in
"indifference to the texture of legal analysis, which arises from
an exclusively political conception of the judicial role" (Yosal
Rogat). "Douglas was the foremost anti- judge of his time" (G.
Edward White). A careful study of his tax opinions by Bernard
Wolfman and others has documented Douglas's unreasoning hostility
to the Internal Revenue Service and accuses him of "refusing to
judge in tax cases. "

The Supreme Court is a political court. The discretion that the
justices exercise can fairly be described as legislative in
character, but the conditions under which this "legislature"
operates are different from those of Congress. Lacking electoral
legitimacy, yet wielding Zeus's thunderbolt in the form of the
power to invalidate actions of the other branches of government as
unconstitutional, the justices, to be effective, have to accept
certain limitations on their legislative discretion. They are
confined, in Holmes's words, from molar to molecular motions. And
even at the molecular level the justices have to be able to offer
reasoned justifications for departing from their previous
decisions, and to accord a decent respect to public opinion, and to
allow room for social experimentation, and to formulate doctrines
that will provide guidance to lower courts, and to comply with the
expectations of the legal profession concerning the judicial craft.
They have to be seen to be doing law rather than doing politics.

Douglas was largely oblivious to these rather modest requirements,
with which he could easily have complied had he had just a little
Sitzfleisch. He liked to say that "I don't follow precedents, I
make 'em." Yes, that is what Supreme Court justices do much of the
time; but they are supposed to explain why, and in precisely what
sense and to what degree, they are departing from precedent.
Douglas's disdain for judicial norms is easily illustrated. On a
number of occasions he issued stays--which were quickly and
unanimously overturned by his colleagues--intended to halt American
participation in the Vietnam War on the ground that Congress had
not declared war. One can argue from the language of the
Constitution that the United States cannot lawfully wage war
without a congressional declaration, but the argument depends on a
literal interpretation of the Constitution--an interpretation that
would also forbid military aviation on the ground that the
Constitution expressly authorizes the creation only of land and
naval forces--which Douglas contemptuously rejected in every other
area of constitutional law. It was Douglas, after all, who had the
audacity to rule in Griswold v. Connecticut, the first case to
establish a right of sexual autonomy and hence a precursor of Roe
v. Wade, that the Court could fashion new constitutional rights
based not on the text of the Constitution but on the values
underlying it; and so the Third Amendment, which forbids the
quartering of troops in private homes in peacetime, became a source
of the constitutional right declared in Griswold of married couples
to use contraceptives.

The most interesting question about Douglas's judicial performance
is whether its deficiencies can be blamed to any extent on legal
realism, to which he had committed himself as an academic. Suppose
that, upon being appointed to the Court, he had abandoned his
political ambitions and set as his goal to become the greatest
justice in history. The combination of his youth, his intelligence,
his energy, his academic and government experience, his flair for
writing, the leadership skills that he had displayed at the SEC, and
his ability to charm when he bothered to try (rare as that was,
except when he was courting) would have put him within reach of the
goal. He was not a genius, as some of his ex-wives and judicial
colleagues claimed. He was a very fast worker, which is not the
same thing, especially when speed is the product of restlessness
and impatience. (He wrote some of his opinions in twenty minutes.)

But law is not the calling of geniuses. There has never been a
genius on the Supreme Court, unless it was Holmes. Douglas was
certainly very able. Would a commitment to legal realism have
stopped him well short of the goal by breeding a cynicism about law
that would have prevented him from taking his job entirely
seriously? I think that the opposite is more likely, and that the
tragedy of Douglas was not that he was a warped human being, or
that Roosevelt passed him over for the vice presidential
nomination, but that for reasons of temperament-- and because the
great prize of the presidency seemed for a while within reach-- he
could not buckle down and commit himself wholeheartedly to the Court
and become the greatest of the legal realists.

For it is not true that a judge cannot achieve greatness without
embracing formalism. John Marshall, Oliver Wendell Holmes, and
Robert Jackson were realist judges. Many of the criticisms leveled
against Douglas have been leveled against them (and other realists
as well), but they have bounced off them because, unlike Douglas,
they took the judicial process seriously--even Jackson, whose
presidential longings were as intense as Douglas's. For Douglas,
law was merely politics. Had he brought to bear all his powers,
which were considerable, and injected greater realism and empirical
understanding into the work of the Supreme Court, he might have
achieved greatness. He could still have summered in the Cascades
and chased young women, though he would have been well advised not
to marry them, and to go easy on the booze.

By Richard A. Posner