The Nation's Pulse

...but I believe as well that the philosophy which came to characterize his approach as a member of the Supreme Court should and must be questioned by all who take seriously the role of law in our constitutional order...

...But I hope as well that his flaws as a Justice will prove equally instructive to those who sit on the nation's highest Court—yielding a heightened awareness that law must transcend even the deepest views of those entrusted with its final interpretation, and a renewed commitment to reasoned decision within the limits of a defined constitutional framework...

...In the again admiring words of Professor Abraham,' "The Douglas human rights posture thus would not be checked by the verbiage of the Constitution...

...According to the first of these theories, we are now going through a typical period of party realignment of the sort that has characterized American politics at remarkably regular intervals, demarcated by the "critical elections" of 1800, 1828, 1860, 1896, and 1932...

...In the game of ranking in which historians periodically indulge, Justice Douglas is usually placed in the "near great" category...

...Mother had been upset when Wilson was elected...

...These wild fluctuations might be regarded, of course, as mere aberrations, the results of particular events unlikely to be repeated—Watergate in 1974, and the Democrats' "mistake" in nominating George McGovern in 1972...

...Now I do not propose an extended discussion of the merits of these cases, some of which raise issues considerably more difficult than their many lay critics would admit...

...It looked as if after 40 years of Democratic preponderance, a new Republican majority might indeed have emerged...

...Unfortunately, the intense personal devotion to individual liberties revealed in the above quotations from Griswold and Hayden permeated Douglas' philosophy to excess—and in my own judgment, to the exclusion of his being a great Supreme Court Justice...

...The problem did not lie in those predilections per se (though I personally would quarrel with many aspects of them...

...His retirement will not, I hope, mark a turning from that devotion on the part of the Court...

...Judged solely in terms of his impact, few can dispute that assessment: throughout his lengthy tenure, which just ended with his resignation in November, Douglas' presence was indubitably felt...

...Perhaps that is one reason why in the sixties The Alternative: An American Spectator January 1976 19 and seventies I sided with our youth against the new Establishment that held the reins of power...

...Through seven Presidents, five Chief Justices, and three wars, Douglas was one of the nine men who sit as ultimate arbiters of the law under the United States Constitution...

...If the Rich are disenchanted, then we are all unemployed' was her comment...

...My personal reactions, both as a law student and as a staff member of a legal journal, have usually been of the latter variety...

...I was bitter at the prejudices shown by the then Establishment...

...Douglas was a charter member of what the press was wont to call the "activist majority" of the famed Warren Court...

...In the most recent Presidential election in 1972, Republican Richard Nixon triumphed by a landslide, wining the allegiance of huge numbers of traditionally Democratic voters...

...Later in the book, Douglas reveals a starkly simplistic perspective in words that could find comfortable lodging between the covers of Ramparts...

...In a Supreme Court Justice, however, whose position symbolizes and personifies the rule of law in this country, Douglas' is a particularly tragic failing...

...I would...

...Recent survey data show not only that people's party identification is becoming a less accurate gauge of how they actually vote in Presidential elections, but also that the proportion of the electorate identifying itself as "Independent" has grown dramatically...

...Nevertheless, I think Justice Douglas is ultimately best understood in terms of both descriptions...

...and a second whichholds that that structure itself will change...

...The personal effects and possessions of the individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police...

...But Douglas' extrajudicial writings indicate that his dissenting rhetoric was a fairly accurate measure of the depth of his moral understanding...

...One cannot in this space attempt an exhaustive analysis of Douglas' judicial output...

...Lodge's neo-fascist image came into full focus when he served as ambassador to Saigon in 1963 and 1964...

...In the famous Warren Court revisions of constitutional criminal procedure—Chime/ v. California, Mapp v. Ohio, Douglas v. California, Escobedo v. Illinois, Miranda v. Arizona—Douglas cast not a single dissenting vote...

...And by the end of his extensive period of service to his country, Douglas seemed political and result-oriented to a degreethat most of us, I suspect, find inconsistent with the high office it was his privilege to hold...

...As Professor Henry J. Abraham notes with admiration in Justices & Presidents, "Douglas has compiled a civil liberties record on the bench second to none: in close to 95 per cent of all cases involving line-drawing between the rights of the individual and those of society, he has sided with the former...

...Like the President who appointed him, Douglas possessed in full measure the capacity to evoke deeply emotional reactions from friend and foe alike...

...as the late Professor Alexander M. Bickelpointed out in The Morality of Consent, the ends-means morality lurking in many of the landmark decisions of the liberal Warren Court found executive expression in the conservative White House of Richard M. Nixon...

...In the end, I believe that this overriding concern with reaching substantive results that accorded with his political and social predilections undermined Douglas' stature as a Supreme Court Justice...

...According to the University of Michigan's Center for Political Studies, the percentage of voters calling themselves "Independent" has grown from 22% in 1952 to an unprecedented high of 37% in 1974...

...Without it the Fourth Amendment and the Fifth are ready instruments for the police state that the Framers sought to avoid...

...this waitress was overjoyed that Nixon won, for the Rich would stay in power and her job as waitress would be secure...

...Basically, there are two dominant theories: one which discerns a major party realignment within the traditional structure of our two-party system...

...Discussing one of the four Senators who opposed his confirmation to the Court, Douglas writes: "I did know Lodge and I was honored that he opposed me...

...His work, spanning one-fourth of the bound volumes of all Supreme Court cases, stands at its best as an eloquent reminder of his devotion to the individual rights so cherished in this nation...

...Justice Douglas of the individual, particularly when he saw those rights threatened by some conflicting interest of society...

...The very idea is repulsive to the notions of privacy surrounding the marriage relationship...

...Sixty years later—in 1972—I sat at a counter in a Washington, D.C., restaurant having a cup of coffee, and the waitress who served me told me the same thing...

...Issues that perplexed his fellow Justices could evoke from Douglas, as in Hayden, righteous, confident warnings about the "police state" lurking in the hazy future for those who opposed his position...

...Thus, in Griswold v. Connecticut (1965), Douglas wrote for a majority that held unconstitutional that state's anti-contraceptive laws...

...And like Warren's, his fame was deserved...

...But the most explicit and forceful pronouncements of the expiration of the New Deal party structure have come, not surprisingly, from those who see a new 20 The Alternative: An American Spectator January 1976...

...For Douglas' views sprang, in many ways, from a simplistic assessment of the issues and conflicts of modern society...

...But at almost every other point along the political spectrum there is a widespread feeling that the old patterns of party alignment established by the New Deal are crumbling, and that some new structure is in the process of emerging...

...It is fair to say, however, that at his best Douglas stood as an unswerving advocate for what he perceived as the rights Mr...

...Moreover, the Michigan data reveal that this trend toward Independent status is especially marked among the young: among voters under 30 the number identifying themselves as Independent in 1974 reached an astonishing 51 %. These figures clearly indicate a growing dissatisfaction with the present shape of the two-party system...

...in Warden v. Hayden (1967), Douglas was equally emphatic in dissenting from a judgment that upheld a conviction based in part on items of clothing seized during a search of the accused's home...

...The point is simply that Douglas, more than any other Justice with the possible exception of Chief Justice Warren, was perfectly at home with decisions that at least arguably elevated particular social views of proper criminal process to constitutional dimensions...

...He was famous, as Supreme Court Justices go—probably more famous than any of his colleagues save Chief Justice Earl Warren, whose impeachment was implored by a thousand John Birch Society billboards...

...Douglas' convictions—firmly rooted in a view of the world where heroes and villains were as clear and uncomplicated as those of any John Wayne epic—found ready expression in his votes as a Justice...

...In such elections, a fundamental issue has come to the fore (e.g., slavery in 1860, economic depression in 1932), and has cut across existing party patterns, giving rise to a new majority which dominates the politics of the succeeding generation—until a new issue emerges to produce still another alignment and another majority...

...Neither his intelligence nor his devotion to the causes he so diligently espoused can, in my view, be questioned...

...For a man of his intelligence, Douglas viewed the world in terms of lasting moral simplicity...

...leave to the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate...

...The existence of that choice is the very essence of the right of privacy...

...When I pressed her, she finally said that the Republicans represented the Rich, who hired the entire labor force...

...A scant two years later, however, the post-Watergate Congressional election of 1974 dealt the Republicans a devastating defeat, and many observers suggested that the GOP had become an endangered species...

...As America enters its bicentennial year, there is good reason to believe that its political parties are approaching a critical juncture...

...In his autobiography, Go East, Young Man, lifelong Democrat Douglas describes his disaffection for the Republican Party in language of stunning superficiality and stereotype: " [Mother] made clear that her resolute commitment was to the Republicans...

...His major shortcoming was thus far from unique among men who hold high office...

...if that document did not provide the kind of protection for the in-dividual Douglas deemed necessary to bring about justice under law, well, he would find it...

...The nature of that impact, however, is a matter of considerable dispute...

...No specific constitutional prohibition against such legislation could be found, but Douglas was emphatic that the rights of privacy implicit in marriage must lead to invalidation of the offending statutes: "Would we call on the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives...

...Whatever the merits of the Griswold decision, its author was clearly an individual who believed that if the result were "right," law and Constitution could and must be made to conform...

...The constitutional philosophy is, I think, clear...

...Even at the age of fourteen I did not buy that theory, and I soon became an ardent Wilson protagonist...

...Among liberals, adjectives like "brilliant" and "iconoclastic" garnish respectful tributes to a champion of civil liberties...

...by Peter J. Rusthoven The Nation's Pulse Justice William Orville Douglas, appointed to the Supreme Court by Franklin Roosevelt in 1939, served thirty-six-andone-half years on the nation's highest bench, longer than any other individual in history...

...World solutions of world problems seemed essential to me when I was eighteen...

...Marc Plattner What Future for Partisan Politics...

...Apart from the results of recent elections, the most striking evidence that significant change is brewing is the decline in party identification among voters...

...But the Lodge whom I early despised was his grandfather, Henry Cabot Lodge, who worked tooth and nail against American adherence to the League of Nations...

...What is less clear is the kind of change that is likely to be produced by this dissatisfaction...

...This is the view of those "old-line" Democrats who feel that the old New Deal coalition would still be viable if only their party would discard its New Politics foolishness and nominate the right sort of Presidential candidate...

...Thus in 1974 the Independents far outnumbered the Republicans (22%) and almost equaled the Democrats (39...

...This assumption underlies the various attempts of left-wing proponents of the New Politics to put together a coalition based upon such groups as ethnic minorities, women, the young, consumerists and environmentalists, and other issue-oriented middle- and upper-class voters...

...To be sure, dire predictions of grave consequences are hardly unusual in the pages of United States Reports, particularly in the opinions of dissenting Justices...

...Those who believe that we are currently in such a period of realignment argue, with considerable cogency, that the party configurations generated by the New Deal have, on the Presidential level at least, been all but completely eroded...

...Illustrations from Douglas opinions abound, but Abraham's citation of Griswold, where Douglas found the necessary constitutional support for his position in "penumbras, formed by emanations" from the guarantees of the Bill of Rights, is sufficient for our purposes...

...William Douglas was an independent, intelligent, committed Justice...

...Convinced of the rightness of his beliefs, he had little difficulty deciding that a large number of those beliefs were constitutionally enshrined...

...To a remarkable degree, William 0. Douglas typified much of the best and the worst tendencies of his era...

...conservative evaluations are more likely to feature irritated mutterings about "dogmatism," "judicial legislation," and "meddling intervention...

...Rather, the root difficulty was that in many instances, Douglas seemed guided by the philosophy that the ends in which he deeply believed justified employing any judicial means at his disposal to achieve them...

...With him as an enemy, who needs a friend' was the common saying...

...He will be honored as he retires, and rightly so...