Douglas, William O. (1898–1980)

• Author: William Cohen
• Pages: 813-817

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William Orville Douglas was appointed to the Supreme Court by President FRANKLIN D. ROOSEVELT on April 15, 1939, the youngest appointee since JOSEPH STORY, 128 years earlier. Illness forced his retirement on November 12, 1975, but he had surpassed by nearly two years the record for longevity of service previously held by STEPHEN J. FIELD.

As a child, Douglas contracted polio and overcame the residual weakness in his legs through long solitary hikes. When his father died before Douglas's sixth birthday, his mother was left nearly penniless with three children. Douglas knew grinding poverty and from his childhood, through all of his education, he worked to support himself and his family. Three views that colored his outlook on life emerged from this period and strongly influenced his legal views. Above all an individualist, he believed that, if given enough room by society, one could achieve full potential through self-reliance and hard work. At the same time, he formed a deep sympathetic bond with the outcasts and disadvantaged of society, particularly the poor, racial minorities, and political radicals. Finally, he harbored a lingering resentment of "the establishment," a view that later matured into a distrust of concentrations of power, whether of the private sector, the police, or government generally. A number of Douglas's legal positions trace their origin to these three linked premises, from his populist view of the antitrust laws to his repeated insistence that the function of the BILLOFRIGHTS was to take government off the backs of the people.

Douglas's career prior to his appointment to the Court also explains the hallmarks of his judicial style. (Over the years, even admirers of the Justice's substantive conclusions criticized his opinions for insufficiently explaining the origins of novel legal DOCTRINES, for carelessness in setting out the limits and definitions of the principles announced, and for unnecessary inconsistency in arguments made from one case to another.) Douglas was always a superior student, with an intellect in the genius range, yet from high school through law school, as he explained in his autobiography, "I had been trotting while I learned." His work obligations and his other activities left little time for reflection. Douglas was a quick study.

Douglas described both his initial appointment as a law teacher and his appointment to the Supreme Court as furnishing new leisure for intellectual contemplation. Intellectual habits, however, are not so easily set aside. Douglas was never contemplative. His habit was to analyze swiftly mountains of data, get to the heart of a controversy, and

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decide. He was impatient with extended discussion as an aid to decision, with long indecision prior to decision, and with excessive concern for peripheral issues. He remained a loner who spent little time trying to proselytize other members of the Court to his own views. In the Court's conferences and in his separate opinions, he was content to state his positions without adapting them to gain greater acceptance from either his brethren or the scholarly community.

Douglas's impatience with traditional legal style in opinions is also easily explained. As a law professor at Columbia and Yale, Douglas was at the center of the realist movement in jurisprudence. (See LEGAL REALISM.) The realists shared the view that traditional judicial opinions obscured rather than explained the reasons for decision. Douglas's own approach to his fields of business organization, securities regulation, and bankruptcy was to study the political, economic, and social institutions with which the law dealt and to shape the law to cope with contemporary problems presented by those institutions. And so it was with his approach to constitutional law. Douglas viewed much of the elaborate argument in standard Court opinions as so much "Harvard fly paper." Indeed, he delighted in sharp criticism of his opinion-writing style, which he viewed as the carping of the conservative legal establishment. He remained a pragmatist who did not try to develop a general theory of constitutional adjudication. Often he was content to let Justices with whom he agreed develop the overarching theories. He was indifferent to scholarly debates about the abstract limits of JUDICIAL ACTIVISM, and he did not have a consistent theory explaining his own pattern of judicial restraint and active judicial intervention.

The substance of Douglas's constitutional jurisprudence can best be explained by contrast with the views of the two other major figures among Roosevelt's appointees to the Court?FELIX FRANKFURTER and HUGO L. BLACK. Between 1937 and 1939, when these three joined the Court, the chief constitutional controversies were still perceived as those of the previous decade?the Court's "economic due process" theory had restrained state ECONOMIC REGULATION, and its "dual federalism" theory had limited federal power to regulate the national economy. The mainstream of constitutional law thought...