Remembrances of William 0. Douglas on the 50th Anniversary of his Appointment to the Supreme Court

William J. Brennan, Jr., Richard W. Benka, Richard H. Chambers, Ramsey Clark Milton V. Freeman, Thomas J. Klitgaard, Simon H. Rifkind, Gerhard A. Gesell, Erwin N. Griswold, Milton Handler, Leonard F. Jansen, William A. Reppy, Marshall L. Small, Jay Kelly Wright, Eric Sevareid

WILLIAM J. BRENNAN, JR.

Retired Associate Justice Brennan sat on the Bench with Justice Douglas from 1956 to 1975.

I was very fond of Bill. I first met him on October 16, 1956 when I as a recess appointee took my seat on the Court. October 16 also happened to be Bill's birthday. He was having a birthday party at his house and invited my wife and me. There was a large number of guests and Bill was a most delightful and gracious host. When we were leaving he suggested that we ought to get together on October 16 in future years and celebrate our anniversaries together. We did that except when one or both of us was out of town on that date. That did not happen very often and our October 16 date held until the year before he suffered his disabling stroke. On occasions, we invited a third couple (Abe and Carol Fortas, for example). We dined either at his house or ours or, on occasions, at a good restaurant. Without exception, they were delightful, amusing occasions which we simply refused to spoil by talking shop. I only wish I had kept a diary of the things we did talk about. Bill was a natural storyteller and his details of his latest fishing or mountain climbing adventures in far away places were fascinating and often gripping. Bill also had a long-time reputation as an incorrigible practical joker, but would not indulge in horseplay on those occasions.

In the early weeks after I took my seat, Bill's close friend, Fred Rodell, wrote a piece for the Progressive deriding my appointment. Bill was much disturbed by this and wrote Fred a strongly phrased letter in my defense. That provoked from Fred an apology, but never any commitment not to repeat his appraisal if events justified.

Bill's relationship with his colleagues was generally very warm, but he took considerable delight in teasing Justice Frankfurter who, he thought, treated his colleagues as if they were his students and subservient to him. Jim Simon quoted Bill as saying,

Our conferences, at which we discuss and vote on cases after argument, are limited to the nine of us. On many occasions Justice Frankfurter would speak to a case not from his seat but while walking around the conference table. The bookshelves containing the reports of the Supreme Court decisions were along the walls. Justice Frankfurter would reach into the shelves, take down a volume of decisions and read, sometimes at length, excerpts from opinions that he argued supported his position. When this took more time than Bill thought justified, he, on occasions, would rise from his seat, approach the Chief Justice and say, "When Felix finishes, Chief, I'll be back," and leave the conference. Justice Frankfurter would be furious but nevertheless would continue until he had fully expressed his view.

Bill was a very fast worker. I have sat with 22 Justices during my time on the Court and Bill turned out his opinions in vastly less time than the rest of us were able to. He had an uncanny ability at oral argument to listen and at the close make up his mind how he believed each of his colleagues would probably vote. When his judgment was that he would be in the minority he often dictated a dissent immediately after the close of the day and put the dissent in his desk drawer awaiting the circulation of a Court opinion, often months later. Time and again, almost within minutes after circulation of a Court opinion, the Douglas dissent would be circulated and it was extraordinary how often the dissent squarely met the circulated Court opinion.

Bill usually finished the Term's work much earlier than the rest of us. He would then depart for Goose Prairie. Quite often he would leave with me his votes in as yet uncirculated cases. On at least one occasion, however, he slipped up. He left me with a vote to affirm in a case. I did so only to receive some days later a dissenting opinion from Goose Prairie. Bill had forgotten to tell me he had changed his mind.

Bill was a powerful figure. He had a brilliant and meteoric career highlighted by a special talent for persuasion. Intelligent, humane, imaginative, yet compassionate and practical, he was intensely loyal to the Court while not sacrificing his own creative independence. Few Justices in our history played a more influential role in shaping our modern jurisprudence. He provides still an inspiring example of devoted public service. I miss him very much.

I'll use this opportunity to relate two brief stories, one of which reveals the Justice's beartrap memory and facile draftsmanship and the other of which demonstrates how his decisions were profoundly governed by his sense of justice and human need.

At the time of his 75th birthday celebration, in 1973, the Justice in his remarks said that he had only one "unrealized ambition" on the Court, and that was "to be the author both of the majority and of the minority opinions in one case." I was clerking for the Justice at the time, and--in his inimitable fashion--he had filed away in his memory the fact that a justice of the Kansas Supreme Court had accomplished the feat sometime in the 1920s. We were able to find the actual cases, and the Justice cited them in his remarks.

What the Justice did not tell, however, was that he actually had written both the majority and the dissent of a Supreme Court opinion, as he confided to the three of us who were clerking for him in 1973. The Justice had years before been in dissent in a "trivial tax case," he said, and after Conference he returned to chambers and dashed off his dissent for circulation (typically, again, before the majority opinion had circulated). Weeks later, the Justice to whom the majority opinion had been assigned (who will remain nameless), came to the Justice and said he was agonizing over the majority opinion. With evident relish as he told the story, the Justice continued: "I told him I wasn't surprised--he was dead wrong. But I told him that I'd help him out, and ghostwrite the majority opinion for him, which I did."

My other comments involve Kahn v. Shevin, 416 U.S. 351 (1974), which came before the Court during the 1973-74 Term. This case involved a small Florida state property tax exemption given to widows (but not widowers). The three law clerks, having learned about "suspect classifications," "strict scrutiny," "rationality," and the like in law school, were convinced that the statute should be struck down.

We made our legal arguments to the Justice, and pointed out that in our day and age this sex-based difference should not be sustained. He listened--briefly. Perhaps he was thinking of his own mother, for he had at the time been working on his autobiography, Go East, Young Man. In any event; he looked squarely at us and said: "I've known a lot of starving widows." The Justice was voting to uphold the statute--no doubts, no second thoughts, no more discussion.

There was one facet about the character of William 0. Douglas that few have noticed, or if noticed, not written about. It is this: In reversing a lower court, he always gave the losing court judges an eminently fair statement of the facts, perhaps canting a little toward the losers.

I call this not shabby, but the hallmark of greatness.

How many of us practice what we preach in the face of extreme personal adversity? Bill Douglas did. This in no small way accounts for the special power of his words.

The impeachment effort against him, an assault on the independence of the Supreme Court of the United States no less, was an extremely dangerous matter.

Mr. Justice Douglas understood this completely. He had at that very moment an important new book, Points of Rebellion, ready for publication by Random House. His publisher had sold rights to one chapter to a magazine, Evergreen, that would clearly create a storm of protest in the House since it regularly ran pictures of less than scantily clad ladies and articles by some of America's most notorious radicals.

His cautious lawyers first urged the Justice, then meeting rejection, begged him to either cancel, or at least delay publication of the book and the chapter in Evergreen until the storm clouds of impeachment blew over.

Bill Douglas quietly, but firmly, refused. He would not demean the spirit of his precious First Amendment by an act of self-censorship if it meant risking his seat on the Court and the independence of the judiciary as well.

Because of his life, his words and his deeds, our chance to see the truth in time through the protections of the First Amendment is clear. The rest is up to us.

A. When Bill Douglas became Chairman of the Securities and Exchange Commission, he would frequently see the President. On one occasion he came to me and said, "The President has asked me for a bill on federal incorporation of public companies." He said the President had two conditions (1) the bill must not stop payroll and (2) it must be no more than two pages long. Needless to say I got up a draft that afternoon and he told me it was on the President's desk the next morning. It never got any further, except that to this day some government agencies appear to be making partial moves in that direction.

B. At the time Bill was Chairman of the SEC, I was President of the SEC Employees Union, and Dave Ginsburg (later Bill's first clerk when he went to the Supreme Court) was Chairman of the Adjustment Committee. Bill and two other commissioners signed an agreement for promotion of employees from within. Dave and I were signatories for the union. This was the first written agreement of a government agency with a union, except for one similar and prior agreement by the National Labor Relations Board with its own employees union.

I remember that Bill came to union parties and dances. We all danced to the "Big Apple" which was the popular dance at the time.

C. In the 1930s it was well-established law that federal employees were not subject to state taxation. Bill was living in Maryland at the time and as a Commissioner he requested a legal opinion to this effect. It was duly given to him. He thought this was unfair and decided he would file and pay Maryland taxes anyway.

D. Bill Douglas and Jerry Frank (a Commissioner and later Douglas's successor as Chairman) were baseball fans. In those days Washington had a baseball team, the Washington Senators. Once at a ball game at Griffith Stadium between the Washington Senators and some other team, a runner at first base was called out by the first base umpire. The runner objected violently, shouted and jumped up and down. At this point the umpire folded his arms and majestically turned his back on the player. Bill Douglas turned to Jerry Frank and said, "That is what we call giving them a fair hearing at the SEC."

E. In 1938 and 1939 there was a great movement to amend the Securities Act by the business community. Oddly enough, compared with current public opinion on the subject, the industry placed substantial emphasis on a desire to repeal the limitations on insider trading by officers, directors and principal stockholders provided in Section 16 (b) of the 1934 Act. (Rule 10 b-5, under which many current proceedings are brought, had not yet been adopted.)

Bill, as Chairman of the SEC, agreed that meetings should be held to discuss possible amendments but arranged that they would not be held on the Commission's premises. Accordingly, staff members, principally on the legal side, John Davis, Assistant General Counsel, and I (as Chief Interpretive Attorney or some such title) would go to meetings held at the Metropolitan Club one block away from the Commission. The meetings were presided over by Colonel Milbank, counsel for the New York Stock Exchange. It was a peculiar arrangement which went on for about a year. At some point Bill issued a statement denouncing the suggestions being advanced by the financial community, and the meetings were discontinued.

F. Shortly thereafter, Bill was appointed to the Supreme Court. When I went in to see him to wish him luck, together with Bob O'Brien, then Assistant General Counsel, he said to us, "My rejection of the Wall Street proposals will kill any possibility of weakening amendments of the securities laws for some time. Then there will be a war in which it will not be possible for Wall Street to succeed, so the securities laws are safe from attack for a substantial period of time. Please keep up the fight."

G. When Bill was on the Supreme Court he would always call up about SEC cases to see if he should disqualify himself. Frequently we would say there was no need for disqualification because he had not been at the Commission when the matters in controversy arose. Nevertheless he would frequently not vote in those cases for reasons which he did not explain.

H. When Bill was on the Supreme Court, I was in private practice with Thurman Arnold, Abe Fortas and Paul Porter. We had a very important civil liberties case for a government employee named Dorothy Bailey. It involved the asserted right of the government to dismiss a government employee as of doubtful loyalty on the basis of secret statements made to the FBI without normal due process protections. The deciding officials did not know who the informants were and knew only that the statements were given not under oath to an agent of the FBI who had recorded the statements. The case duly came to the Supreme Court. The Solicitor General, Philip Pearlman, opened his argument by saying that our firm in its reply brief stated that the government "admitted" something. He said, "I want the court to know that we do not admit anything." At this point Justice Douglas said, "So that means you do not admit it is unconstitutional?"

Although the case was affirmed against our client on a 4 to 4 decision without opinion, Justice Douglas in a related case took great pains to make it clear that he regarded the sanctions against the employee as not only outrageously unfair, but also unconstitutional under the due process clause.

I. Properly, Bill's career on the Supreme Court is regarded as devotion to the rights of those whose liberty or freedom of expression is threatened by government action. To those of us who worked with him at the SEC it seems appropriate to remember that he had a superb expertise in commercial matters. His insight and his pen were equally adept at dealing with these matters. For example, the entire theory of public utility rate regulation is clearly and simply set forth in the space of one paragraph in his opinion in the Hope Natural Gas case 320 U.S. 591, 603, (1944).

J. Bill's emphasis on the long view is not something he came to on his ascension to the Supreme Court. It was always in his thinking. One instance that comes to mind is from the time when he was Director of the SEC's Protective Committee study. He and Thurman Arnold, who was working with him on that matter, went to see the distinguished leader of the New York Bar, Samuel Untermeyer. In the course of the examination it appeared that Mr. Untermeyer's firm had received legal fees under an indenture. Since the indenture provided that such fees could be paid only upon receipt of a legal opinion, inquiry was made as to what firm had rendered the opinion. Mr. Untermeyer's reply was that his own firm had rendered the opinion that it was entitled to receive the fees in question.

At this point it was possible to take the short range view common in prosecutorial circles, i.e., of denouncing conflict of interest, etc. Douglas, however, had a longer range point of view. He asked further questions which revealed that Mr. Untermeyer regarded this act as not only appropriate but in accordance with the general practice among firms operating under such indentures. As a result of this inquiry it was established, not that one man had erred, but that there was a well-established practice among reputable law firms which would be generally regarded as unacceptable and should be outlawed by specific legislation. This was in fact done in the various laws which the Congress adopted as a result of the Protective Committee study.

K. When Bill Douglas came on Board at the SEC, the new legal personnel consisted largely of Harvard Law School graduates provided by Commissioner Jim Landis, a former Harvard professor. When Douglas was named Director of the Protective Committee study, he brought with him his colleague on the Yale faculty, Abe Fort as. So that study started with a Director and Associate Director destined for the Supreme Court.

In addition, we began to get not only superb Harvard lawyers, but also superb Yale and Columbia lawyers in SEC legal positions. Besides many very prominent practitioners, the people who came down from Yale under Douglas's auspices who are in public life now were Gerhard Gesell, who would make anyone's list of candidates for the best trial judge in the United States, and Professor Louis Loss, the leading author and theoretician on the securities laws.

I remember with particular fondness coming in on Saturday to work with the Justice and Nan Burgess or Faye Aull, his secretaries, and then going to lunch at the Methodist Building across the street, or over at Jimmy's on Pennsylvania Avenue. We would leave the Court around 12:45, and spend an hour or so, and then come back to do a little work before going home. The Justice spent lunchtime reminiscing about his experiences in FDR's New Deal and at the Securities and Exchange Commission, talking about old cases or giving insights into people that he knew in Washington. He was particularly fond of telling stories about his days at Columbia and later at Yale. The experience was like a history lesson. Conversation at Jimmy's was usually a little different, turning to sports and comments on the current political scene. The Justice told me the first time we went to Jimmy's that it was then run by ex-convicts and that he was welcome there, presumably in light of some of his opinions.

I found the Justice always very kind to people who did not have his intellectual capacities, or who were in some difficulty, either in a legal matter or in some personal way. He did not take advantage of people and when he did them a kind turn he did not talk or brag about it. The kindness was just there and passed as part of the ordinary events of the day.

Justice Douglas loved it when other Justices would come to visit him--in particular when Justice Frankfurter paid a visit during the 1961 Term after a long absence of personal visits--or when he received a nice note from Justice Harlan, whom he admired greatly, or from Justice Brennan, whom he considered his great friend, or from the Chief Justice or Justice Black. The Justice particularly liked to tell a story about how some commentators would analyze the "Douglas-Black" interpretations of the First Amendment. He said that these commentators focused on a single word or phrase, while entirely missing the point as to the First Amendment's real meaning.

One of the Justice's favorite stories was about Charles Evans Hughes, Chief Justice in the late 1930s when Justice Douglas was appointed to the Court. Justice Douglas liked to tell how Chief Justice Hughes, with his imposing personality, was held in awe by the other Justices. At that time, the Conference was held on Saturday morning. Justice Douglas explained that the Chief Justice liked to end the Conference at 11:30 A.M. sharp, and that if there was not enough work to fill the calendar, the other Justices would each have one or two items in reserve to bring up, so that the Chief could end the Conference at the appointed time. It was a small point, perhaps, but it illustrated to me that there was a decency and respect in the Court among the Justices that existed despite their philosophical differences, and that Justice Douglas treasured the traditions of the Court.

I also remember his tales about the Clerk's office, and how one of the clerks came down to bring an important order for the Justice to review and sign, and then went to sleep on the Justice's couch while the Justice was reviewing the order. The Justice liked the clerk, thought that this was a great incongruity, and enjoyed repeating this story. This was part of an oral history about the Court, similar to Homer's day, when remembrances were passed down orally from generation to generation. The relationships and traditions within the Court reflected those experiences, and affected those who came afterward.

Before starting my clerkship, I had heard rumors that the Justice was a fearsome taskmaster. I never found this to be so. He was demanding, but fair. He expected the very best, but in looking back through my old certiorari memoranda and other notes to him, I was reminded how tolerant he was of a young clerk's lack of experience.

The Justice did not like thoughtless questions and he was not particularly communicative in his oral expression. However, he went out of his way in many small acts to show his appreciation and his kindness. I think this was in part due to the Justice's shyness. He would often express his affection by passing along the latest jokes, or by giving some insight into his thinking.

The Justice did not frequently ask directly for opinions from his law clerks, but I know from my own experience, and from others, that he was grateful for their input. From time to time, he liked to hear what other law clerks were saying in the law clerks' dining room about some of the pending cases. He was interested in what others were doing and thinking, but did not let this control his own thinking. Instead, as we all know, he went his own way.

I learned the value of an instant response in working for the Justice, and the necessity of being innovative in legal research. In this respect, the Supreme Court library, with Helen Newman, Ed Hudon, Bob Higbie, and its other wonderful people, was invaluable. The library personnel enjoyed the Justice because he asked interesting questions and he always deeply respected the library's capabilities.

In preparing this reminiscence, I was reminded again of the notes the Justice sent to me at the Court. There was one which illustrated his great sense of humor and wry observations. I am sure the Justice would not mind my sharing it:

Justice Douglas was a great man. By every scale that I can employ, he was a person of large dimensions intellectually and morally. I am not competent to measure his greatness, and I suffer from two disqualifications: first, because I loved him; and second, because I stood in awe of his genius.

My first encounter with William 0. Douglas occurred at Columbia Law School in the fall of 1922. The chasm of difference which divided us was so wide that the possibility of bridging it never entered my mind. My preparatory schooling had all been achieved on the island of Manhattan. I was totally ignorant of what existed on the other side of the Hudson. Bill Douglas was, in appearance, a storybook version of the Western American. He was tall, rugged-looking, soft-voiced, with an inflection quite foreign to the one to which I was accustomed. I heard from his friends that he came from a place called Walla Walla. I did not believe such a place existed. I thought I was being teased in order to expose my provincialism. The only condition Douglas and I had in common was that, unlike Earl Mountbatten, neither of us suffered from the necessity of overcoming our privileges.

Fortunately, the law generates a vocabulary of its own and a universe of communications which is indifferent to regional inflections. It was not long before we exchanged ideas.

In those days, Bill must have regarded words as very precious. He used them so frugally. When it came to putting words on paper in his student days, he was positively parsimonious.

In later years, I could easily understand the outpouring of hundreds of his opinions because he was always keenly alive to his duties and responsibilities. But that he should produce some thirty books, under no compulsion whatever, represented a new kind of maturation of his talents. Bill Douglas was unquestionably a genius, if by that is meant that his intellectual talents reached far beyond the limits of the ordinary. In a class of students often described as of vintage quality, he towered like a redwood. His memory was prodigious; his imagination was of enormous dimensions; his capacity to isolate a unifying principle, tying many disparate elements together, was quite exceptional. Once convinced of the merit of a proposition, he would espouse it without fear of opposition and with complete indifference to criticism.

To the public, he always exhibited a granite-like exterior. In private, he could be affectionate and sentimental.

In the course of the fifty-eight years we knew each other, our paths were sometimes far apart and sometimes they crossed. It was always a warm meeting, as if we had never parted.

I remember once finding myself in an inn in Tucson, Arizona, intending merely to spend the night. He discovered my presence and within minutes his car was at my door, moving my wife and me and my belongings to his place of abode.

The time came when I acted as his counsel, in the last attempt to impeach him. Never have I encountered so cooperative a client. He undoubtedly had strong views of the many propositions of law that I asserted, especially with respect to the constitutional issues. Whatever his reservations, he never uttered a dissent or suggested a revision. Never once did he discourage my search for a fact on the ground that it might be irrelevant or might invade his privacy. For a man of such strong convictions, this was an extraordinary form of submission, an acceptance of the role of client.

The attempt to impeach Douglas was a reckless challenge to the independence of the judiciary. If the doctrine upon which the impeachment was launched--the doctrine that an impeachable offense was whatever Congress said it was--had prevailed, judges would thereafter serve at the pleasure of transient congressional majorities. Douglas perceived it as subversive of the separation of powers and of judicial independence. Against the acceptance of that principle as part of our constitutional structure, he set his face with a fierce and fearless determination.

The last time I saw him in public was on December 6, 1979, when, at the Supreme Court, he received the honorary degree of Columbia University. By this time, his strength had ebbed but his spirit shone brightly in his eyes. It was plain that he was glad to receive this honor from his alma mater. To me it seemed that he greatly honored Columbia University by accepting the degree.

William 0. Douglas was a free spirit. He was as unshackled as any human being could possibly be. The only restraints he acknowledged upon the roving of his mind were those that he, himself, had forged, through the formulation and acceptance of principles which he embraced. But these, too, were subject to his reexamination.

His discipline was all self-discipline. He did not submit to any dogmatic religious commandment, to any philosophical imperative, to any fixed political credo.

His self-discipline, however, was firmly in place. He did not, in the world of ideas, freewheel in response to whim or fancy. Nor was he likely to forge rules for one occasion only, to be cast on a scrap heap after a single usage. His compass had a few fixed points. But he had placed them there himself, in response to his own reason and to his own vision of the good, the true and the beautiful.

The essence of his personality was his persevering courage, and the key to his character was his unyielding independence. His life as a Justice of the Court can be fitted only within this framework, and can no more be measured by the shifting values of liberalism or conservatism than by the dubious analyses of activism or restraint.

For more than three decades, in concurrence and dissent, he carried on a dialogue with generations of lawyers. Deeply influenced by his predecessor, Brandeis, he was interested in ideas as well as facts, injustice as well as law. A skeptical man who troubled our dogmas, a religious man who appealed to our conscience, he raised vexing questions that did not always yield tranquil answers.

His constant concern was with the diffusion and interplay of constitutional powers, and with the need to set the limits on government interference with political liberty. But his opinions ranged the entire gamut of American constitutional law, and to these he brought his strong intellect and his warm compassion. No one can dispute that Mr. Justice Douglas was a major influence in the history of the Court. He has left us a tradition that will endow future generations of lawyers with a larger grasp of the ultimate issues of law and the Constitution.

Mr. Justice Holmes once admonished us that a civilized man "should be passionate as well as reasonable." It was the fusion of these twin qualities in the mind and heart of Bill Douglas that made Mr. Justice Douglas the judge that he was.

But what made Bill Douglas the man that he was, was yet an added dimension that he possessed to an extraordinary degree--his heightened sensitivity, and his wide-ranging imagination.

I have, on occasion, enjoyed reading out loud excerpts of his nonjudicial writing. My ear detected in them the rhythm and movement of the Psalms of David. One of my favorites was the following passage from Of Men and Mountains:

"Your old men shall dream dreams," Scripture says, "and your young men shall see visions, and where there is no vision the people perish." Bill Douglas dreamt of a just society. And, in his own unique way, he bequeathed to us a vision, a vision of the triumph of individuality over conformity, of persuasion over force, and, finally, of a system of law as the enduring basis of a civilized and free society.

Judge Gesell was with the SEC from 1935 to 1941, the firm of Covington & Burling from 1941 to 1967, and has been a judge on tile U.S. District Court in D.C since 1968.

By pure chance I was in Bill's office at the SEC when the White House told him his name was going to the Hill for the Supreme Court vacancy. There had been rumors to this effect, but Washington always has rumors suggesting the most unlikely people for key jobs. He put down the phone and told me he was going on the Court. My reaction was one of anger and surprise. I blurted out, "For God's sake, why?" All he said in his laconic way was, "I need the money." To this date I still don't know why he took the job.

Many of us at the SEC thought he was too young, that he would be bored, that the work was too restrictive, that a contemplative life for Bill was not in the cards. But most of all we felt deprived. He had been the rallying point for much needed change. His drive, his energy, his insight, his ability to get things done had led us to envision a far different career for him. But, of course, as always, he was his own man.

Now it is apparent he was a man of many careers and many interests. Because he was at one of his highest and most productive points when he guided the SEC, I will try to capture some of this as a survivor of those halcyon days.

I got the New Deal-SEC bug from Bill as one of his students at Yale Law School. In small seminars he brought real life into class, unraveling the machinations of Wall Street based on his own first-hand experiences. The daily financial news during the Depression years came to life. He was investigating financiers of the town he hated and his classes opened our eyes to the realities of a marketplace hit by depression and greed. He decried the absence of concern for the small investor, hidden deals, conflicts of interest and the cynicism of it all. This was practical stuff and it seemed even more so as he described what was happening in his pithy Western talk. Some of us might drink and play absurd games with Thurman Arnold, Walton Hamilton, Wes Sturgis, Bill Gaud, along with Bill and other kindred souls, but we still came to class without much sleep, still eager to learn more. We had had enough academic talk and his classes were a breath of fresh air.

Later, when Bill came to the SEC, I had already been there about two years trying to be a lawyer. Things brightened up. It is difficult to recapture what the place was like in those days. We worked six or seven days a week, often late into the night. There was a sense of purpose, vitality, mission and impatience to get the job done. The General Counsel's office was packed with young talent. There was adventure and opportunity on every side. No matter that on my first fumbling attempt at dictation the girl from the pool, who had never taken dictation, fainted.

Bill was a reformer. He hated pretentious people and had no pretense himself. He was easy to work with and evoked extraordinary loyalty. He cursed, used plain English, never held back what he thought and never lost his roots. He outpaced all of us in hours worked, ideas, as well as at poker. Yet he was somewhat aloof at times, occasionally moody and while he placed great responsibility in me and others he kept his distance and we never felt he was truly a close friend. Nonetheless, he loved people and had the widest, most eclectic aggregation of acquaintances of any man I have ever known. He met people at their level and they responded. Once you had his confidence he let you run with the ball and thus, in many ways, he was a superb administrator. Underneath, the fires of reform burned and he could not be diverted from his goals.

Don't get the idea he was bureaucratic. Quite the opposite. He could wait out an older dissenting Commissioner until nature caused the dissenter to leave a meeting to seek the men's room and then vote the matter his way, leaving the irate colleague only a chance to draw a male organ across the minutes to reflect his absence. Or consider howl was forced to commit two years of hard work. Called hastily to his office by the back way, he said "you have just agreed to become Special Counsel to the TNEC" (Temporary National Economic Committee). When I asked what the hell that was, without answering he said to his secretary, "Show Mr. Corcoran in." Tommy had a candidate for the TNEC job with him and Bill, with a straight face, said, "Tom, I'm sure you will be pleased to hear that Gerry has just accepted the TNEC job." So I pitched in.

Perhaps now you can see how we missed him when higher duties called.

It is hard to realize that 50 years have passed since William 0. Douglas became a Justice of the Supreme Court of the United States, on April 17, 1939. I was not present on the occasion, for I had duties in Cambridge. But I well remember when it occurred and I have many memories of the intervening half century.

Justice Douglas and I were never intimates. Indeed, there was perhaps at times a certain tension between us, possibly going back to differences which may have arisen from his Columbia-Yale background and my Harvard-influenced outlook. Needless to say, it was plain to me from the beginning that he was a brilliant addition to the Bench. He had the same sort of business and factual approach as that of his predecessor Louis D. Brandeis, stepped forward a generation into the post-depression business atmosphere. Beyond that, he was a skilled lawyer, with a powerful mind, and an effective writer of legal prose. I always read his opinions with interest, and often with admiration. He made many important contributions to many fields of law. He was especially enlightening in the more complicated cases. He always made things look relatively easy, more easy than they usually seemed to me.

Justice Douglas had been on the Supreme Court bench for 28 years when I became Solicitor General in 1967. Pursuant to long-established custom, I called on each of the Justices. I remember that my call on Justice Douglas was made with some trepidation. But that was unwarranted. He was gracious and friendly, if a bit crisp. He welcomed me as an aide to the Court, and indicated that he expected the usual high standards of the Solicitor General's office to be maintained.

On a number of occasions, both before and after I became Solicitor General, I appeared as counsel before the Court while Justice Douglas was sitting. He did not ask a great many questions, but when he did, they were usually rapier-like, piercing deeply, and to the heart of the case. Preparation for argument involved careful thought in advance about the questions which might come, and there was great satisfaction on those occasions when a Douglas question could be effectively answered--even greater on those rare occasions when an adequate answer could be made to a question which had not been anticipated.

Justice Douglas served for more than two-thirds of the 50 years since he took his place on the Bench in 1939. It was a great privilege to know him, even at a distance, and to appear before him. His mark has been left on our law through his long career and his many distinguished opinions.

Bill and I both served on the Columbia Law Review in 1925, when he was a third-year and I a second-year student in the Law School. Bill never limited himself to any one task. In addition to his class work, his research for the review, and his outside jobs, he was devoting twenty hours a week as an assistant to his mentor, Underhill Moore. Typically, even as a student, he engaged in a multiplicity of activities which provided an outlet for his inexhaustible energy.

Upon graduation, he taught a course on Damages while working as an associate in the Cravath firm. He continued teaching Damages the following year, at which time I was law clerk to Justice Harlan Fiske Stone.

I returned to Columbia in 1927,joining Bill on the Law School faculty. By then he had undertaken the monumental task of fusing the courses on Agency, Partnership and Corporations into one on Business Associations. Again, one or two jobs were not enough for Bill--he worked with Professor James C. Bonbright on the latter's seminal studies of Judicial Valuation.

During the 1927-28 academic year, Bill and I spent most of our days in the Officers Library, reading hundreds of cases in our respective fields. As the two youngest members of the faculty, we lunched together practically every day at the Faculty Club. This laid the foundation of our life-long friendship. In those days Bill was very taciturn and business-like. Levity, gossip or idle chatter were not in his nature. Our conversations were on a very serious and professional level and rarely dealt with our personal lives. I only learned of his difficult childhood and the hardships he encountered in going East in order to enter Columbia when in later life I read his autobiography.

Unfortunately for Columbia and for me, at the end of 1928 Bill, together with Professors Underhill Moore and Frederick C. Hicks, left Columbia and joined the Yale Faculty. Herman Oliphant, my mentor, and Hessel Yntema also left Columbia to establish an Institute of Law at Johns Hopkins University. These departures came about because a substantial part of the faculty objected to the elevation of Young Berryman Smith as Dean of the Law School. Before leaving, Bill talked to me at length about his distress at Smith's elevation, expressing his pessimism about the Law School's future under the new dean's leadership. In that regard, happily for Columbia, Bill turned out to be a poor prophet.

Roosevelt's principal advisors during his governorship and in the 1932 campaign were members of the Columbia Law School and college faculties. I worked with the so-called Brain Trust as their antitrust expert. By going to Yale, Bill missed this exciting and exhilarating experience. However, with the enactment of the Securities Act and the subsequent creation of the Securities and Exchange Commission, Bill's assistance was soon enlisted and ultimately he became a member and then Chairman of the SEC. Whenever I went to Washington, I visited him at the Commission. Busy as he was, he always found the time to greet me and to engage in a short chat.

My first visit after his appointment to the Court followed the publication of his landmark opinion in the Socony-Vacuum case. We spent more than an hour together in his chambers. I told him that his was the best antitrust opinion that the Court had ever rendered in the fifty years the Sherman Act had been on the books. Here, as Stone had sought to do in Trenton Potteries, the basic policy postulates of the legislation and the course of decision were coherently explicated. There is much in the opinion that has been questioned in later years as our knowledge of antitrust has deepened and as the law has been reshaped in response to the country's changing views of economic policy. But my views of the seminal nature of Bill's handiwork remain unchanged, even though I did not agree entirely with his analysis or the breadth and absolute nature of the principles he formulated. To be sure, not everything he wrote has survived.

Justice Douglas was many things to many persons. Much has been written about William 0. Douglas: as a world traveler, an early environmentalist, a distinguished professor of the law, and the longest sitting Justice of the United States Supreme Court. The influence cast by this man during his lifetime will cause him to be remembered for generations. However, I remember William 0. Douglas as the man who paused once to befriend a poor farm boy named Len Jansen, and who, having befriended that boy, remained a friend through the rest of his life.

I first met Justice Douglas in August, 1940, in Walla Walla, Washington, at the home of his long time friend J. Howard Shubert. At the time, he was 44 years old and was already a member of the Court. I had graduated from Whitman College, which was his alma mater also, and was on my way to Columbia Law School, armed only with a scholarship. I could not even imagine law school, much less Columbia University and New York City. William 0. Douglas extended his hand to me, not as an acquaintance, but as a friend. He took from his precious time that day to tell me about law school, New York and the world of law.

Whitman College was as far away from my home in Lind, Washington, as I had ever been. So one can imagine my apprehension, and even some dread, as I faced the big city and the big law school for the first time. As promised, Justice Douglas supplied me with letters of introduction to the Associate Dean of the school, James P. Gifford, and, more importantly, to Miss Mary Wegner, who was in charge of finding jobs for needy law students, of whom I was one. She favored me with outside jobs which supplied needed bed and board. During that first year I was faced with having to adapt to the law school's "case-hardening method" of legal education, studying my eyes out to keep up, working for my room and board, and worrying over a failing romance at home. As a result, I became increasingly discouraged. From his own experience at Columbia some 20 years earlier, Justice Douglas knew what was happening to me without my telling him. Being an interested and concerned friend, he urged me to persist. Numerous letters of encouragement from him really did help to pull me through. When a friend and I went to Washington, D.C., by bus during Christmas vacation for a personal visit, he literally took us in, giving freely of his time and sending us back to school with renewed vigor and determination.

It was Justice Douglas who urged me to forsake Wall Street employment and return home to begin my law practice. After my second year, law school was interrupted by 53 months of service as a naval officer in World War II. During all that time Justice Douglas continued our friendship through his letters and occasional personal visits. He had always warned me against "going downtown like the rest of the boys," which at Columbia meant joining one of the big city's law firms on graduating. He always said the big New York firms would "pick your brains" and then let you go when they could hire some younger person at a lower salary. "I am confident you will have a happier and better life back home," he advised.

That phrase "pick your brains" stuck in my mind all during those naval years and almost unconsciously thoughts of Wall Street were replaced with those of returning west. On July 1, 1947, accompanied by little except my dear wife and tiny daughter, I began practice in my home town of Lind, Washington. I have never failed to be grateful for the sound advice from that wise man.

In October, 1949, Justice Douglas was severely injured in an accident while horseback riding in the mountains above Yakima, Washington. The horse slipped and fell on him, crushing his chest, breaking all his ribs but one, and collapsing a lung. I hastened to Yakima to be a friend in time of need. Although in great pain, he expressed his delight at my coming. Hearing about my developing rural eastern Washington practice lifted his spirits.

I was required to go to Washington, D.C., on a tax matter in 1957, and my wife accompanied me on the trip. Entertained at dinner by Justice and Mrs. Douglas, we shared a delightful evening reminiscing. The next day, May20, 1957, I was admitted to practice before the Supreme Court. I shall never forget the beaming smile and personal nod he gave me as I stood before that august body.

In August, 1960, I was privileged to be included in a cultural tour of the Iron Curtain countries. Upon hearing of the invitation, Justice Douglas not only encouraged me to accept but supplied me with a personal briefing based upon his travels there. He also provided me with introductions to three distinguished lawyers, one each in Moscow, Warsaw, and Belgrade. Having traveled extensively all over the world, he had acquired enviable international recognition and stature. His introductions resulted in friendly and interesting visits with distinguished professionals in communist countries during the cold war. They added greatly to the trip.

That same year, I was in Washington again as General Counsel for the East Columbia Basin Irrigation District of the Columbia Basic Project in Eastern Washington. During dinner with Justice and Mrs. Douglas, I explained that the United States Bureau of Reclamation had refused to turn over the operation of that project to the farmers so all the negotiators had been called to Washington in an effort to resolve the conflict. During a visit of the negotiators to his private chambers and the Court, Justice Douglas suddenly asked the government officials present, the single question, "Why won't you turn this project over to the people?" After that, even when we were deadlocked, a reference to Justice Douglas's personal interest would bring relaxing smiles and eventually led to a happy resolution of the matter.

The above glimpses were gleaned from several hundred letters we shared and recollections from our personal conversations.

Just what were some of the qualities of this great man which produced such a diversity of response? First, his background is of importance since he had struggled against poverty and from poor health as a result of polio. His minister father died while he was a youngster, leaving him lonely and aloof. He escaped to the nearby mountains of Yakima, Washington, where he found solace and inspiration as well as physical strength and endurance.

He roamed all over the world, hiked the high mountains, fished in the virgin lakes, observed the plight of the underdog, including the hobos with whom he shared the rails across our land. Out of this grew a man filled with a fighting spirit and possessed of dynamic ideas. He grew to believe strongly in our fundamental rights and stood up to fight for them.

Hard work was his secret to success. He not only authored over 1,200 opinions while a Justice of the Supreme Court, but he also published over 30 books and made many public appearances.

He indicated it was his fond hope that Americans would truly love our country and appreciate its great and glorious traditions of liberty and freedom enshrined in our Constitution. He hoped they would develop a willingness to fight to retain our fertile lands and our pure waters.

His greatness was also demonstrated by his tolerance of the views of others as he respected those who differed with him. To many, it may well be that he appeared to be difficult in nature with a rock-hard exterior. In private, he could be sentimental and affectionate. That is the bounty he heaped upon me.

Over the 40 years of our friendship, time after time he perceived others' needs and came forward without request to fill them. Although everyone has a different perception of this great man, I have spoken from my personal perspective. Perhaps he saw a little of himself in that poor Eastern Washington farm boy recently graduated from his alma mater. But for whatever reason, his lasting generosity and support were evidences of the greatness of his spirit.

After clerking for Justice Douglas in 1967, Professor Reppy practiced law in Los Angeles for three years before joining the faculty of Duke Law School ill 1971.

One morning not long after I came to work for Justice Douglas I answered a buzz and was handed papers by WOD with the first printed draft of a majority opinion. The case was Whitehill v. Elkins, 389 US 54(1967), one of the first to be decided in that Term of the Court. The Court would hold unconstitutional a loyalty oath required of teachers at the University of Maryland that they were not engaged in an attempt to overthrow the federal or state governments by force. The enabling legislation underlying the oath indicated that an attempt to forcefully "alter" the form of government would violate the oath. Apparently, so would being a member of the Communist Party.

WOD's draft opinion held that the First Amendment protected advocating a revolution that would "alter" the form of our government and concluded that Maryland's loyalty oath legislation was unconstitutional. But that statute had a typical severability clause (if one provision is unconstitutional, the other parts shall be enforced even though the former provision may not be). I felt the opinion ought to deal with the possibility that the vague oath could be sustained under the provision of the enabling law directed at Communist Party membership even if the portion of that statute about altering the form of government was unconstitutional. A reported Maryland decision involving an attorney's loyalty oath had raised the possibility that the oath legislation was not directed at mere passive membership in the party, so that a colorable argument could be made for sustaining the teachers' oath.

Along with doing a normal cite check of the Justice's draft, I typed up and stapled to the print of his opinion a suggested insert addressing the problem of severability by holding that the limited construction given the Maryland loyalty oath for attorneys could not apply to the state teachers' oath because the Maryland state constitution barred mere members of a party advocating the overthrow of the government from state employment. That was unconstitutional, I said, and the state constitutional provision was a gloss on the oath enabling legislation. This was the kind of suggested addition to an opinion I would have made for the judge who I had clerked for in California, and as a newcomer to WOD's chambers I just didn't know the trouble I was getting myself in.

The print opinion with my addition went to the Justice's chambers, and later that day I responded to a buzz from him. He reacted to my suggested addition to his opinion by giving me a serious dressing down. Only persons nominated by the President and confirmed by the Senate were to be writing Supreme Court opinions. I had been impertinent. And so forth.

My reply was simply to say that I was sorry and that I would dispose of the offending proposed addition to the opinion. I was holding the evidence of my impertinence at the time and ripped off the stapled-on insert, crumbled it up, and threw it in the Justice's wastebasket. Humbly, I retired to the clerks' office (believing that I had been fired, a notion which the kind secretaries of the Justice put to rest by advising me that everyone working at the chambers got "fired" now and then and should keep coming to work until WOD made a more definitive discharge).

To my amazement, the second draft of Douglas's opinion in Whitehall v. Elkins that got routed to me about two days later contained in a footnote my suggested addition. How did the insert get out of the Justice's wastebasket? I never asked secretaries Fay Aull or Nan Burgess if he had one of them fish it out--highly unlikely even though the secretaries suffered their share of WOD's abuse. He must have retrieved the insert himself, which always seemed to me to be astonishing.

The official report of Whitehall contains my text. (It is footnote 2.) Not long after the release of his opinion the Washington Post published an editorial critical of the Whitehall majority opinion. The newspaper had no quarrel with the invalidation of the teachers' loyalty oath but opined that the Court had gone too far in indicating that a part of the Maryland state constitution itself was invalid. I assume that WOD must have seen the editorial, but .he never indicated an awareness that in a sense it made him the ultimate victor in our small battle of wills.

Although I cannot now recall that WOD ever explicitly told me so, I suspect that he rather resented Felix Frankfurter's posing as the champion of judicial restraint, and allowing WOD to be publicly portrayed as an unrestrained activist who went about striking down any government action he did not personally like. WOD was probably annoyed by Frankfurter's self-imposed restraint in Public Utilities Commission v. Pollak, 343 U.S. 451 (1952), where Frankfurter opined that the practice of requiring streetcar passengers to hear canned messages and commercials was so personally offensive that he refused to participate in the case. WOD also found the practice offensive, but saw no reason not to say so in a dissenting opinion based on constitutional principles rather than personal pique. The Judge would have (and I think did) enjoy the irony of seeing Frankfurter dissent that Term in Leland v. Oregon, 343 U.S. 790(1952), a case in which the Court upheld an Oregon statute placing the burden of proof on a defendant in a criminal case to sustain the defense of insanity over Frankfurter's claim that the state statute offended his innate sense of decency. WOD enjoyed even more the opportunity to question Frankfurter's reputation for judicial restraint in a concurrence in Rochin v. California, 342 U.S. 165 (1952). In the majority opinion, Frankfurter had struck down the action of California law enforcement authorities in securing evidence by forcibly pumping out the contents of an accused's stomach, as so brutal and offensive to human dignity as to violate the Due Process Clause. The Judge had me collect what proved to be a substantial number of state cases that would have upheld the admissibility of such type of evidence, and was pleased to be able to state in his concurring opinion that he did not agree that a rule which a majority of states had fashioned violated the "decency of civilized conduct," noting that "It is a rule formulated by responsible courts with judges as sensitive as we are to the proper standards for law administration." WOD, of course, went on to agree that the action in question was improper, but on the narrower ground of violating the privilege against self-incrimination rather than on a broader due process ground.

I do not offer these recollections simply to emphasize the differences between WOD and Frankfurter. Indeed, I did not sense during the 1951 Term the deep antagonism that Melvin Urofsky concluded had developed between them based on his own review of WOD's private papers. But I do remember that the Judge felt at times that his positions were misunderstood by the public. It would have been far easier--especially in the atmosphere prevailing in 195 1--for him to find shelter in the doctrine of judicial restraint. But WOD would never have done so when he felt constitutional freedoms were threatened by government action. He was a man of courage and was willing to question prevailing orthodoxy even when it was not popular to do so.

I reported for duty as a law clerk in June 1974. WOD was in Goose Prairie, although the Court was still in session. The "Nixon tapes" case was awaiting decision. Although several draft opinions were in circulation, it was not clear how the case would be decided. WOD had circulated a draft opinion; my co-clerk Don Kelley had worked on it. A few days before July 24, a Conference was scheduled and WOD flew back from Goose Prairie. There was a flurry of activity in chambers as we got paperwork ready for his arrival.

When WOD came to Court, he showed up in the office the three law clerks shared, shook my hand and said welcome. My co-clerk Alan Austin remarked that this was the warmest welcome any of us had received, but that I should not let this go to my head.

After the Conference held that day, WOD came back to chambers and gave us the multiple buzzes signaling that he wanted the law clerks in his office. We were followed into the office by Harry Datcher, who carried a beat-up cardboard box that made clinking noises. Datcher hauled out a bottle of Scotch, and WOD poured us drinks. He poured himself a Dubonnet; anything else, he said, made him sneeze.

He told us that the Court would unanimously affirm Judge Sirica's order requiring President Nixon to turn over tapes to the special prosecutor. The Chief Justice would deliver the opinion. WOD would withdraw his own opinion, as would other Justices who had circulated their own. He talked to us about the importance of a unanimous decision in this momentous case, even though he obviously did not agree with everything in the Chief Justice's opinion. He disagreed with the notion that a sitting President has a special constitutionally-protected privacy interest. Every citizen has a right of privacy, WOD explained, but there was no reason to give the President special treatment.

I know there was never a boring moment when I was in the company of Bill Douglas, so it is a persistent regret that memory loses its strength and many of the moments with Bill are lost to me now. But he existed in my young man's consciousness long before we ever met. He was, after all, a hero of American liberals when he was still quite young himself.

I can't recall our first meeting, which was probably in 1941, but I do remember him and his first wife sitting on my open deck at the ultra modern house I bought in 1946 in Valley Lane, off Seminary Road in what was then Fairfax County, Virginia. The Douglases lived about a mile away, near the Episcopal High School, and, as I remember it, their son delivered the Washington Post by bicycle to my mailbox down the hill.

He originated in the far west, I at the edge of the Great Plains--North Dakota. We both had crossed much of the country by freight train. We both had been poor. We both loved the West and horses, two of which grazed just below that open deck. When his own horse rolled on him, in Arizona, I think, we all sent our telegrams of anxiety and hope to the hospital and received, ultimately, his cheerful responses.

One spring day, he asked me if I would like to join him in a hiking trip around India's hill country. I politely but firmly declined. I had had all the tropical hiking I could take during the war, and had long since decided that when the urge to exercise occurred, I would, like his friend, Robert Hutchins, lie down until the impulse died away. "How old are you, Sevareid?" he said. "Thirty-six," I replied. "Oh, hell," he said. (He was fifty.)

When he made his challenge to the Washington press boys to join him on a hike from Cumberland Gap to the Capital along the old canal route, I was canny enough to keep my mouth shut in the CBS-WTOP newsroom. A colleague, Lou Shollenberger, accepted the challenge. He enjoyed the long hike, but, he recounted, the challengers only caught glimpses of Douglas. He would bolt his breakfast at dawn and start down the trail. When the others saw him again he had already cooked his supper on the trail and rolled up in his sleeping bag. He was damn well going to put those uppity reporters in their place and he did-- far behind, in his dust.

Douglas traveled a great deal and one summer his travels took him around the Soviet Union in the company of the very youthful Robert Kennedy. Joe Kennedy, Sr. was an admiring friend of the Justice, philosophically odd as that may seem. In fact, he got Douglas to Washington to reorganize the SEQ not because he agreed with Douglas about anything political but because he knew Douglas knew something about the laws of finance. Old Joe asked Douglas to take young Bobby along on the trip to Russia, to broaden him out a bit. Bobby was his early belligerent self. He carried a Bible with him and wanted to argue about communism versus capitalism with anybody he met. Douglas got him off that kick, telling him to use his time to understand a very different culture. At CBS TV we wanted to make some kind of program out of their journey, so we carefully instructed the Justice in the uses of a sixteen millimeter, hand-held movie camera.

The party returned. We met Douglas at the Yale Club in New York and escorted him his wife and his rolls of film to a projection room at Grand Central where CBS News had studios. The Douglases sat in the front row of seats as we played the film on a big screen. There was nothing, just occasional flashes of light, a quickly passing scene of a wheat field or factory, and so on. All the cans of film had been exposed to light, either by the KGB or by some Soviet bureaucrat in the customs office.

As we watched in horror, Douglas's head sank slowly into his chest. His wife said, "This is a tragedy." We all trudged back to the Yale Club for a drink, in silence.

The years passed. Bill was in the news now and then, whether a Justice should be or not. He wrote an article for Playboy magazine, because, he said later, he wanted to get some ideas into the heads of American youth. This was one of the actions that seemed to persuade a handful of Republican Congressmen that Mr. Justice Douglas needed his character investigated. Their leader in this was Representative Gerald Ford. When the whole silly thing was dropped, Douglas received a phone call from a strange source--President Richard Nixon. Privately, Nixon must have been hoping against hope that Douglas would resign, giving Nixon another chance to fill a seat on the Court. But his phone call was one of his famous "stroking" calls, to tell the listener how much he admired him and sympathized with him. (If Nixon disapproved of the investigation attempt, all he had to do was put in one non-stroking call to Representative Ford.) I asked Douglas what had been his reaction to the call. He just shrugged, as if to say, "What can you do about a man like that?"

How does one define or categorize such a man as Bill Douglas? Sometime after his tragic stroke I helped to arrange a public dinner in his honor at the Shoreham Hotel in Washington. I would like--most immodestly-- to quote from my own little speech at the dinner. I said that he could he called a classical humanist. Like the Greeks, he believed that man is the measure of all things. Therefore, I remarked, while Douglas loved nature, he did not climb the mountain "because it was there." He climbed it because he was there.

He was a man who lived every day as if it were his last. When the last days were really at hand, there was a reception for him at the Library of Congress. Columbia University belatedly bestowed an honorary degree on the Justice. He sat there as we passed slowly by. He was gaunt, unspeaking. To take his hand would cause him pain. I lightly touched his knee as I passed. His eyes followed me, with a yearning look. It was an old friend saying goodbye.