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Douglas made a difference Independent Journey: The Life of William O. Douglas, by James F. Simon. New York: Harper & Row. $15. The Court Years, 1939-1975: The Autobiography of William O. Douglas. New York: Random House. $16.95.

By C. Robert ZelnickC. Robert Zelnick is director of news coverage for ABC News in Washington. / March 9, 1981



Shortly after William O. Douglas was named to the Supreme Court by FDR in 1939, an illiterate black Texan named Bob White was convicted of raping a white woman and sentenced to death. The critical evidence against Mr. White was a signed "confession" which, it turned out, had been obtained by the local police through extreme mental and physical coercion.Upon discovering the irregularities , the Supreme Court reversed White's conviction and remanded the case for a second trial.

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During that trial, the husband of the alleged victim walked calml down the center aisle of the courtroom, removed a pistol from his pocket, and shot Bob White dead.

Six days later, following a fervent plea for aquittal by the local prosecutor , an all- white jury found the assailant "not guilty."

The episode, recounted by Justice Douglas in the posthumously published second volume of his autobiography, "The Court Years," serves as an electric shock jolting the readerhs memory back through the 36 years that Douglas served on the nation's highest tribunal and through the six years that have elapsed since he left.

Such shocks are valuable now that we again confront an era of political and judicial conservatism in the United States, an era when the remedial overdoses of the New Deal/Great Society period and the Warren Court years are quite properly under severe scrutiny but when the conditions triggering such remedies are often forgotten.

It may be well to remember now that food stamps came about because some American citizens were starving, medicare and medicaid were enacted because poor people suffered a lack of proper health care, and welfare standards were federalized because many states showed a brutal disregard for the well-being of their citizens.

It may also be well to remember that the emotional judicial activism displayed by Douglas during his years on the bench found its most forceful expression in situations where racial minorities, the economically downtrodden, or those holding opinions outside the political norm cried out for redress from the harsh realities of the law.

In wondering, as many do, whether Justice Douglas was too "result oriented," whether he payed too much attention to subjective right and wrong rather than legal and constitutional precedent, whether his views lacked a coherent constitutional framework of lasting value to future generations of legal scholars, one is reminded in these books of the sort of legal regime we might have been left with, had more traditional, "sounder" legal minds prevailed.

This was, after all, a legal community which sanctioned the segregation of the races, as it had previously sanctioned child labor, union-busting, and the sweatshop. Champions of judicial "self restraint" had decreed that forbidding blacks from voting and gerrymandering state and congressional districts, were both "political questions" beyond the reach of the courts.

In the prevailing philosophy of self- restraint, children of Jehovah's Witnesses could be expelled from public school for refusing to salute the flag; Marxist teachers were imprisoned for discussing their beliefs; and loyalty oaths were routinely administered, while witch-hunting legislative and administrative committees operated with the most fragmentary notions of procedural due process.