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.
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.
People too poor to afford counsel were forced to defend themselves in felony cases; no judicial strictures whatsoever existed against government wiretaps; and haphazard censorship banned everything from "blue movies" to James Joyce's "Ulysses."
When they could form majorities, Justice Douglas and his fellow activists -- led for much of the time by Associate Justice Hugo Black and later by the politically astute Chief Justice Earl Warren -- began to roll back these affronts to liberty, creating new constitutional doctrines as they went.
First, official racial discrimination in all its forms was outlawed.
Second, under Justice Black's relentless leadership, most key provisions of the Bill of Rights -- free speech, press, and religion; the right to counsel; protections against self- incrimination; and others -- were made applicable to state laws and procedures by virtue of the due process clause of the 14th Amendment.
Finally, Justice Douglas himself came increasingly to define a broad area of rights and liberties inherent in our system itself, antedating even the Constitution, which he argued government was able to disturb only for the most compelling reasons.
Thus the court upheld the freedom to travel both here and abroad, thereby curbing state efforts to control the movement of poor people into new jurisdictions. At the same time the federal government was prevented from linking foreign travel to intrusive loyalty demands. And the government's attempts to proscribe birth control and abortion were held to run afoul of a citicen's inherent right to privacy.
If it is true that Justice Douglas found more in the Constitution than most careful readers of the document, it is also true that he took seriously the Declaratioin of Independence with its list of inalienable rights -- life, liberty, and the pursuit of happiness -- a document too often ignored by these same scholars.
These books complement eachother.Mr. Simon assumes we already know a good deal about the work of the court during the Douglas period but not nearly enough about the justice himself.
We learn more about Douglas's childhood here, the early death of his father, a country preacher, the strong and loving role of his mother, Douglas's personal insensitivity toward the later women in his life, and his continuing need for uncritical female adulation.
Simon, too, while appreciative of his subject, does not spare Douglas when criticism is warranted. Douglas's tyranny over his law clerks, his occasional efforts to rewrite history, his strange behavior in the appeals of convicted spies Julius and Ethel Rosenberg, his pronounced paranoia of later years, and his sometimes shallow political populism all receive tough critical treatment.
But in the end of the reader is left with the sense that William O. Douglas was a man of private weakness and public strength, that his strength most often took the form of a resistance to the demons of bigotry, injustice, and special privilege and that for the better part of his adult life he was in a position to battle, if not slay, these demons.
And for that he should be remembered with gratitude.