Independent Journey: The Life of William O. Douglas, by James F. Simon
Independent Journey: The Life of William O. Douglas.
by James F. Simon.
Harper & Row. 503 pp. $16.95.
Many historians of the Supreme Court in the pre-New Deal era emphasized the relationship between economic interests and legal principles. Constitutional controversies, as Charles A. Beard and his progressive colleagues taught many years ago, are never resolved in a political vacuum, but rather are inextricably bound up with and usually serve to promote some sectional, class, or group interest. Yet this point has failed to find expression in conventional histories of the Court since the New Deal. Liberal historians had no difficulty in perceiving the property-minded motivation of the conservative Supreme Court from 1890 to 1937. But in their accounts of judicial history since the Court-packing fight of 1937, and especially during the Earl Warren period, they have by and large described the Court as an institution committed to true principles of liberty and equality, recognizing and seeking to eliminate social injustices which the political branches of the government persisted in ignoring.
After 1937 the Supreme Court created a body of civil-liberties and civil-rights law that formed a significant part of the revival of constitutionalism which occurred during World War II and the cold war. It detracts nothing from the importance of this contribution to meeting the totalitarian challenge, however, to observe that the Court’s rulings on free speech and equal rights, conjoined as they were with virtually categorical approval of government regulation of business, promoted certain interests at the expense of others. And as one might expect of judges appointed by Franklin D. Roosevelt, the interests supported by the Supreme Court from the late 1930′s through the 1960′s were the interests of the New Deal coalition.
In 1938 Justice Harlan Fiske Stone suggested that the Court should accept pretty much at face value legislation regulating business, but should take a skeptical view of legislation which on its face touched on political and civil liberties and the rights of minority groups. Thereafter the Court in a broad sense applied these guidelines in interpreting the Constitution. Picketing and other forms of labor action were protected as civil liberties under the free-speech guarantees of the First Amendment. The economic interests of the steadily expanding federal bureaucracy, a mainstay of the New Deal, were safeguarded by judicial decisions in the internal-security cases of the 1950′s and 1960′s which defined government employment as a right rather than a privilege. The promise of social improvement held out by the civil-rights movement, at first implicitly and then explicitly, illustrated the conjunction of humanitarian principle and political-economic interest. And the remarkable elaboration of First Amendment law on freedom of speech and the press provided a solid foundation for powerful interests in the fields of journalism and communications. It becomes increasingly clear that as political and economic gain was a reason why businessmen supported laissez-faire constitutionalism in the late 19th century, so political and economic interest has given modern liberals good reason to uphold both libertarian and egalitarian doctrines in the post-New Deal era.
In this context James Simon’s book on Justice Douglas takes on an importance that transcends the orthodox liberalism which informs its general thesis. In a nutshell, Simon regards Douglas as “a heroic symbol of the human spirit, offering an unwavering belief that the power and dignity of the individual could make the nation and the world a better place.” Concerning Douglas’s place in American history, Simon agrees with Clark Clifford’s judgment: “Because of Bill Douglas, each one of us is freer, safer, and stronger.”
There is ample reason to question this conclusion, and to argue on the contrary that liberal activist judges like Douglas, while greatly expanding the bounds of cultural and social expression, have weakened the moral principles of republican liberty and hence liberty itself. Yet this is not really an issue that concerns Simon; he merely asserts without attempting to demonstrate the goodness of Douglas’s work on the Court. His chief task, rather, is to provide for the first time a full and accurate account of Douglas’s career, and in this he is admirably successful. Indeed, although Simon does not think of it in this way, his book is an impressively honest study of the Supreme Court Justice who more than any other has been taken as representative of modern judicial liberalism.
Douglas wrote about himself so much, ceaselessly striving to appear the paragon of humanitarianism, that scholars have almost as a matter of course taken him at his word. Thus John P. Frank’s sketch in the standard Justices of the Supreme Court (1969) refers to Douglas’s sympathy for the downtrodden acquired in the experiences of youth, his roots in Brandeisian liberalism, his progressive legal scholarship before joining the Court. The evidence in Simon’s book, however, refutes this inspiring tale of a lifelong liberal crusade. What it shows instead is an exceedingly ambitious and opportunistic man of no progressive political tendencies whatsoever, who after achieving success as a technically proficient corporate-law specialist attached himself in a purely expedient way to the New Deal and rode the wave of modern liberalism to a position of power, fame, and, not least, expense-account comfort.
The most illuminating part of Simon’s story concerns Douglas’s pre-Court years. Contrary to Douglas’s assertion (in his autobiographical writings) that he was hostile toward the establishment from an early age, Simon finds no evidence of such an attitude in Douglas as a young boy, a collegian, or a law-school student. Ambitious for success and determined to use his quick mind to get it, Douglas went to work for a prominent Wall Street law firm and developed sympathetic ties to the investment banking business, which he retained until he entered the government in 1934. Leaving the firm for a teaching post at Columbia, Douglas for practical reasons supported the more reform-minded faction in the fight that occurred in 1928 for control of the law school. When his side lost, Douglas accepted a position at Yale and within three years parlayed an offer from the University of Chicago, where his friend Robert M. Hutchins was now president, into the Sterling professorship at Yale. Eager to join the government, Douglas pulled strings and maneuvered until he was appointed to prepare a study for the Securities and Exchange Commission in 1934. This started him on his political career.
If Douglas tried to convince the public of anything in the image-building that so preoccupied him, it was that he had fought for liberty and equality all his life. It is significant, therefore, that Simon finds no evidence of any political or ideological tendencies in Douglas until he set out to win a spot in the New Deal. For someone who professed such a keen sense of class consciousness, Simon writes, Douglas was “surprisingly aloof” from political activity and opinions. Later famed for his libertarian-ism, Douglas neither was involved in nor apparently did he even care about the Sacco-Vanzetti case, a fact glaringly at odds with Douglas’s insistence that he supported this great liberal cause of the 1920′s. Similarly, Douglas’s legal career on Wall Street and at Columbia and Yale shows no ideological pattern. An able legal technician, Douglas was if anything critical of excessive government regulation of the investment banking business, even as late as 1933.
But in order to get ahead in the New Deal, Douglas adopted a liberal political philosophy that called for government regulation of business. Using what Simon describes as “stump speech rhetoric,” he carved out a new position aimed at protecting “the helpless, the suckers, the underdogs.” Thereafter, through carefully contrived means, Douglas fashioned an image of himself as a compassionate libertarian and egalitarian. He became, in short, a professional liberal, and after serving on the Securities and Exchange Commission was appointed to the Supreme Court in 1939, where without losing stride he promoted his political career in judicial robes. For some time the focus of Douglas’s ambitions was presidential, and there was persistent speculation about him as a candidate for the Vice Presidency under Roosevelt and Truman. Concerning this issue Simon aptly points out that Douglas never publicly denied the ambition, however much he disavowed it privately.
Simon provides a generally reliable if familiar account of major developments in constitutional law in which Douglas was involved. Yet of greater value for understanding Douglas is the evidence concerning his literary and intellectual enterprises. As loose ethics and laissez-faire on the part of businessmen were gaining the official disapproval of the New Deal, these same qualities were catching on among liberal reformers and intellectuals. Douglas’s career illustrates the process. Simon tells us that as early as 1924, while assisting a Columbia professor in a research project for a trade association, Douglas became introduced “to expense account living, and it did not take him long to decide that he liked it.” A few years later he won the Chicago offer at an unheard of $20,000 and used it to wangle the merely extraordinary salary of $15,000 out of Yale. Then as a member of the Supreme Court Douglas financed travels all over the world by getting advances from publishers for books that he later wrote about his journeys. In the 1960′s, as is well known, Douglas received $12,000 a year as president of the Parvin Foundation.
The Watergate affair has made us forget the antecedent, relatively minor, yet nonetheless revealing scandals and excesses of liberal Democrats in the 1960′s. Douglas’s entrepreneurship provoked an impeachment inquiry in the House of Representatives. More serious was the case of Justice Abe Fortas, who apparently made a contract with the Wolfson Foundation to receive $20,000 a year; this led to the first resignation from the Supreme Court in American history. Trading on their prestige, Douglas and Fortas gave a new twist to old-fashioned, laissez-faire individualism. Their politics may have differed from those of businessmen in the age of enterprise, and the kind of property they protected was literary and intellectual rather than industrial-productive; but where they differed not at all was in their pursuit of the economic main chance, carried on in the name of abstract principles of liberty, which they pronounced even as they denied protection to older property interests.
Douglas’s final years on the Court were unhappy ones. His egocentricity and hypocrisy, and also, Simon notes, his professional irresponsibility created enmity between him and his colleagues. For the most part Douglas simply refused to assume a collegial role in the work of the Court. Douglas’s irresponsibility was evident also in ways Simon does not consider but which are perhaps even more damning. I refer in particular to his exaggerated and inaccurate, not to say deliberately dishonest, diatribes and condemnations of persons and public figures with whom he was connected. Time and again throughout his autobiographical writings Douglas says the most preposterous things about these people, many of which Simon proves to be demonstrably false.
In 1948 Douglas rejected the offer of the Vice Presidency on the Democratic ticket, giving as the reason his professed devotion to the Supreme Court—which prompted a skeptical Harry S. Truman to remark, “No professional liberal is intellectually honest.” If the evidence in this book does not incontestably bear out the truth of Truman’s assertion, it nonetheless diminishes Douglas’s stature as the honest and courageous voice of modern liberalism that has been his reputation for a generation.