WILLIAM O

WILLIAM O. DOUGLAS: THE MAN

Cathleen H. Douglas

I have always been amazed by how much Bill Douglas drew from his own personal experiences. Most people are affected by the life events that have touched them, but some are more deeply affected then others. Charles Evans Hughes, we are told, was greatly influenced by the devoutly religious environment of his home and the sermons of his father, a Baptist minister. Felix Frankfurter's views on race were, in all likelihood, at least partially shaped by his early experiences of religious discrimination. Bill Douglas is certainly not a unique example of a jurist who drew upon his own experiences in forming his legal philosophy; but he may perhaps be best remembered for the way in which he incorporated the experiences of his own life into the fabric of the law and his work on the Court.

In the beginning I'm sure that Bill's tendency to draw on his own experience was rather uncertain and done unconsciously. All of us have family and friends who have affected our development, and have had experiences that have shaped our growth. Bill had no control over his origin, and, like most of us, little control over the opening chapters of his life's story. Born the eldest son of a Presbyterian minister who died when Bill was only five, he knew poverty first-hand, and from a very early age struggled merely to survive. He observed as a child the difference in treatment accorded to the children of the rich and the children of the poor in the small Washington town of Yakima where he grew up. Although he worked to help support his family from the time he was six, he graduated as the valedictorian of his high school, an honor which gained for him a scholarship to Whitman College. Bill rode a bicycle from Yakima to Walla Walla where Whitman is located; after graduating from Whitman, he jumped a freight train and rode it east to New York City. He enrolled in law school at Columbia, working odd jobs to pay for his tuition. Although he was employed in one of the most prestigious law firms in the nation upon his graduation from law school at the top of his class, Bill was never able to forget the early experiences of his life, and rather than trying, he turned to them repeatedly for inspiration and a sense of renewal.

While teaching law at Columbia, and later at Yale, Bill became impatient with the static formalism of the law as it was then being taught. Together with several other "young turks," he demanded that law be taught, not in a vacuum, but within the framework of real life. An outspoken advocate of the so-called "new sociological jurisprudence," Bill agreed with Holmes that the life of the law has not been logic, but experience. Searching for new teaching materials to use in his classes, and finding none available, Bill set out with several collaborators to publish a new series of books. Characteristically, Bill's approach was vastly different from the traditional and the conventional; he sought, first and last, to find the realities of legal problems and to assess their social impact. Seeking the facts, he pursued reality--a reality tested against his own experience.

When Bill became Chairman of the Securities and Exchange Commission in 1937, he had been out of law school only twelve years. His "Vesuvian" reaction to the failure of the New York Stock Exchange to prosecute several prominent individuals for embezzling over a million dollars from the Exchange's Trust Fund was, as he confided in me years later, kindled by his memory of Yakima injustices. He wrote in a draft report:

When persons of outstanding wealth are involved, the Exchange cannot be trusted to do its own housecleaning. Unhappily, we are forced to conclude that discipline by the Exchange authorities of its own members will be exerted only if the offending person is of relatively little importance; that there is, so far as the Exchange is concerned, one law for the very powerful and wealthy and another for those of little wealth or influence.

From our many talks, I know that his concurring opinion in Edwards v. People of the State of California, 314 U.S. 160 (1949) was based in part upon his experience with migrant workers on the wheat and fruit farms of eastern Washington. The case arose from California's attempt to block the migration of "Okies" looking for work during the middle of the Depression. Bill argued in his opinion that the "right to travel" was a guarantee of federal citizenship under the Fourteenth Amendment's privileges and immunities clause--a view not adopted by the Court until 1969 in Shapiro v. Thompson, 394 U.S. 618.

In his civil rights decisions, the impact of Bill's travels on his legal analysis is also clearly visible. Everywhere he went, he sought to discover how local minorities were treated. What kinds of jobs did they perform? Were they allowed to vote? What laws were enacted that limited their horizons and burdened their paths? He studied the plight of the overseas Chinese in Thailand, the Muslims in India, the tribal people in Iran, the Jews in North Africa. The stark realities of the treatment of minorities abroad made more vivid for him, I think, the inequalities and injustices of his own country.

My life with Bill Douglas leads me to believe that in addition to his reliance on his early experiences, he came increasingly to seek out new experiences as a conscious way to expand his social, political, and legal insights. Having exhausted the potential lessons of his adolescence, Bill began to draw new inspiration from the lives and experiences of others. In developing new criteria by which the impact of law on the individual could be judged, Bill made the individual the focus for the further advancement of his own legal philosophy.

By the time I met Bill Douglas, the path connecting his laboratory of life and his life with the law was very well worn. From each new experience, he seemed anxious and able to expand his understanding of justice and the role of the law in achieving it. Our summers were spent at "Prairie House" in Goose Prairie, Washington. Nestled in the Cascade Mountains, without a telephone and with few neighbors, the Prairie provided us with time to think and reflect. An idea which Bill mentioned frequently during the summer of 1972 was the importance of trying to comprehend the lessons taught by nature. Surrounded by the trees and sparkling rivers, the wild elk and bear, and the beauty of untended wildflowers, Bill was often moved to consider the true relationship of the law to life.

One sunny afternoon, we were standing in front of the house, when a doe, fleeing in panic from unseen pursuers, sped across the lawn. She stopped hesitantly near Bill, as if seeking his help. Sensing that the deer was trying desperately to escape some evil, Bill walked toward the river, motioning quietly for the deer to follow. At first cautiously, and then with more assurance, she did. As she fled toward safety, a pack of wild dogs broke from the woods, but stopped short when they saw us.

I'm sure that Bill thought of this experience the following term as he wrote his dissent in Sierra Club v. Morton, 406 U.S. 727, 741 (1972). The question of how the values represented by still-pristine lakes in the state of Washington would be treated by government agencies and protected by the courts became an important jurisprudential question for Bill, one which ultimately led to a dissenting opinion that would have given standing to sue to the inanimate elements of nature. Drawing on an analogy to the legal personality of ships and corporations created by legal fictions, he refined his inarticulate philosophical sensitivities into a technical rule of law.

But if experience was vital to Bill's understanding and interpretation of the law, humor was an essential characteristic of his experience. Bill loved to laugh at a good joke, particularly his own. Over the years, his unique sense of humor protected him from a sometimes hostile environment. On the day that he had his paralyzing stroke, I told Bill as he lay on his back in the hospital in the Bahamas that President Ford was sending a special plane to fly us back to Washington, D.C. After expressing his relief and gratitude, Bill's face brightened. He reminded me of the disagreements he and the former Congressman had had, and quipped, "We better watch out. He might be sending us to Cuba!"

Some years earlier, a summer's day had found us on horseback in the Cascade Mountains, three days out from Goose Prairie. After about a half day's ride, we had descended into a lovely meadow about 1,000 feet below the narrow mountain trail. As we reached the bottom of the hills, clouds began to move into the valley; they became so thick that the old cowboy leading the pack animals with our food, sleeping bags, and warm clothes failed to notice that we had left the trail, and passed on by us. From about one o'clock in the afternoon until daybreak the next morning, we and three friends huddled around a small campfire, with only two half-eaten Hershey Bars and a carrot stick. It began to rain, and as night came on, it changed to snow. As we sat by the fire in our shirtsleeves, Bill entertained us with his stories. The one I remember most vividly was the one he told about being asked to give the grace at an American Bar Association Prayer Breakfast. As he took the podium and stared into the sea of faces, all he could think of was an admonishment his mother had given her sons as they sat down to breakfast: "Easy on the butter, boys, its 10 cents a pound!"

Frequently, those of us who were closest to Bill were the objects of his humor. When we visited the People's Republic of China in 1973, we were given a tour of Shanghai by the Vice Mayor. The conversation shifted from hospitals and factories to what had happened to Lui Chou Chi, a former ally of Mao Tse Tung's who had fallen from favor during the Cultural Revolution. The atmosphere in our car was as heavy as the humidity in Washington, D.C. during August; the Chinese seemed somewhat taken aback by Bill's characteristic bluntness. Without any notice that he was changing the subject, Bill abruptly asked the Vice Mayor whether he was aware that I was a famous wrestler in the United States. After making sure that there had been no mistake in the translation, the Vice Mayor apologized for his ignorance, and noted that he never would have guessed that I was an accomplished wrestler because of my slight build. "That," responded Bill with an absolutely straight face, "is why Mrs. Douglas is so famous. She has developed a technique of wrestling that produces strength, but not those thick, unattractive muscles." Patting me on the shoulder, he continued, "Mrs. Douglas would be happy to show your Chinese wrestlers just how it's done." I fended off sincere offers to demonstrate my technique for the remainder of our visit in Shanghai.

On another occasion, Bill and I were attending a wedding in a church in Georgetown. During the service, I noticed Bill scribbling on a card he'd found on the back of the pew. I didn't pay much attention to it, since he wrote all the time, anywhere, and on whatever was available. I did take notice a few days later when the pastor of the church telephoned to ask about the nature of my spiritual crisis. Unaware that I had a spiritual crisis, I asked the pastor why he had sought me out. It turned out that Bill had not been scribbling notes on the card, but filling it out! It was a form to be completed by parishioners who wanted the pastor to visit because of an illness, depression, or other personal need. Mustering such composure as I could, I thanked the well-meaning pastor for his concern and explained that my crisis had been resolved.

I have said very little in this tribute about Bill's skills as a lawyer, author, or scholar--about his brief practice of law, his influence as a legal educator, or his years of distinguished government service. Perhaps it is more appropriate for his colleagues and collaborators to provide insights into those dimensions of his career and for more objective historians to assess his contributions as a member of the Supreme Court. For myself, I have chosen to remember Bill Douglas as the man who always had a love for life that exceeded the vagaries of the moment, who had a love of people that seemed endless, and who expressed a special joy in living that touched and changed all who knew him. For Bill Douglas, each day, no matter how hard or difficult, was something special to value and something special to enjoy.

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