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Book Review: An injudicious life

By PETER ROFF, UPI National Political Analyst   |   May 27, 2003 at 2:25 PM   |   Comments

WASHINGTON, May 26 (UPI) -- Judges have an elite, almost unassailable status in the American system. From the start, the judicial branch was held out as the weakest of the three federal branches. Hamilton, writing in Federalist 78, said, "The judiciary... has no influence over either the sword or the purse... and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment..."

To guarantee their independence from the political leadership, the Founding Fathers provided that members of the federal judiciary should have life tenure. In Hamilton's view, periodic reappointment to the bench "would be fatal to their necessary independence."

Hamilton never met William O. Douglas. If he had, he might have reached an entirely different conclusion.

Douglas, who thus far remains the longest-serving justice to have sat on the U.S. Supreme Court, is still beloved by liberals whose policy goals he advocated in his opinions and dissents.

By the same token, conservatives still grimace whenever his name is mentioned. If asked, many would surely identify him as the best example of the kind of activist jurist they have sworn to keep from taking the bench.

His legal writings are fascinating both for what they say about America and for what they say about Douglas the man. His personal life is equally fascinating, but for entirely different reasons. "In Wild Bill, The Legend and Life of William O. Douglas," author Bruce Allen Murphy tells the whole tale.

It is a tale very much worth the telling.

Murphy, the Fred Morgan Kirby professor of civil rights at Pennsylvania's Lafayette College, has taken on the often-difficult task of writing about the Supreme Court on more than one occasion. His book about the secret political activities of Associate Justices Louis Brandeis and Felix Frankfurter received national acclaim while his biography of former Justice Abe Fortas was nominated for a Pulitzer Prize.

He knows the field of inquiry and its limitations. Much of what the court does, by design, remains hidden from public view. It is a manner of working that springs directly from the idea of judicial independence that the founders worked so carefully to build into the system. As such, it is often hard to discover the inner workings of the court as many authors and reporters covering it have discovered.

Fortunately Douglas, who for much of his life aspired to be president of the United States, was a prolific writer who chronicled his own activities, in some cases reshaping the record of events to further his own ends.

Murphy seamlessly blends his career as a justice with the other elements of Douglas's life. This is commendable. All too often the life of a jurist is presented as an in-depth study of the legal record they left behind while little if any attention is given to personal details.

If Murphy had taken that approach to the life of Douglas then he would have produced a wholly incomplete study, of little value to students of the court, of contemporary American liberalism, or recent U. S. history.

Douglas, as Murphy presents him, was a complex character. Emerging out of the Pacific Northwest, he landed at the Columbia University law school in the mid-1920s where he was later to become a professor. A consummate political operative from the beginning, he maneuvered himself into a position at Yale Law School and then set off a bidding war for his services between Yale and the University of Chicago, keeping both on a string for some time.

Though Yale finally won out, naming him the Sterling Professor of Law, Douglas had already begun to set his sights on bigger things. His work on the issue of bankruptcy led to an appointment as chairman of the Securities and Exchange Commission, where he became, as Murphy calls him, "The bogeyman of Wall Street."

As the point man for Roosevelt's New Deal on Wall Street, Douglas pushed forward a reform agenda that toppled titans in the world of finance. Making few friends, he and The New York Times' Arthur Krock set out to gain a nomination to the nation's highest court.

On April 17, 1939, Douglas was sworn in to the post he would hold for the next 36 years. In that time, says Murphy, he wrote more opinions and dissents than any other justice in history and played a major role in reshaping the way the American Constitution is interpreted.

His personal life was quite frequently a shambles, as Murphy documents.

Almost always short of money, he entered into financial arrangements with attorneys, businessmen and Washington powerbrokers that were the subject of rampant speculation during his lifetime. Today, such activities would have driven Douglas from the court.

A flagrant philanderer, Douglas was married four times and had numerous affairs. Murphy documents this aspect of Douglas's life as well. Were a contemporary public figure to behave as Douglas did and were that behavior to become known, it would have destroyed their effectiveness as jurists and would also have likely driven them into early retirement.

The picture of Douglas that Murphy paints leads to the inescapable conclusion that Douglas used his power and prestige to advance, more than anything else, the personal agenda of William O. Douglas.

As he remade his life for the history books, Douglas remade the Constitution into a living, breathing document, finding that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

This theory alone has changed American jurisprudence from a discipline based on the actual meaning of words into one where, all too often, judges seek and find in the Constitution the justification to issue rulings that are fundamentally political decisions, based on how a particular justice may feel about an issue.

Murphy is to be credited for producing an eminently readable life of a fascinating and important American figure. Though some of his assertions have proven controversial, emanations coming from the extensively researched presentation of the events of Douglas's life have formed a penumbra worth piercing.


(The book at a glance: Wild Bill: The legend and life of William O. Douglas - America's most controversial Supreme Court Justice by Bruce Allen Murphy. Random House, $35.00, 716 pages.)

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