Misrule of Law

Attempting to portray the quintessential judicial activist as a victim of political skullduggery is like putting lipstick on a pig. It’s still a pig.

This essay originally appeared in Law & Liberty on June 22, 2020 (here). Thank you, Instapundit (here)!

Properly done, studying history is a window into the past, like opening a time capsule. Looking back can illuminate our understanding of what happened, and provide valuable context for interpreting the present. But if the events being unearthed are altered or fabricated, like bogus artifacts in a sham archeological dig, we end up with the historical equivalent of the Piltdown Man—a pointless hoax. In a recent book, University of New Mexico law professor Joshua Kastenberg attempts to rehabilitate the image of William O. Douglas—the longest-serving justice in Supreme Court history—as the victim of a politically-motivated impeachment campaign, led in 1970 by then-Republican House Minority Leader Gerald Ford. Kastenberg makes a wholly unconvincing case.

Aside from his longevity, Douglas is best known for his execrable opinion in Griswold v. Connecticut (1965), which coined the unforgettable phrase to describe made-up constitutional rights: “penumbras, formed by emanations.” Despite his record tenure on the court, Douglas’s jurisprudential legacy is scant, greatly overshadowed by that of Earl Warren and William Brennan. Even liberal historians view Douglas as a “huge disappointment,” due to his sloppiness (many of his opinions were hastily written, some in as little as twenty minutes), superficiality, lack of discipline, and prickly temperament.

Richard Posner, who clerked for Brennan, is no fan of Douglas. In 2003, Posner scathingly wrote in The New Republic that:

Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.

Biographies of Douglas by James Simon (Independent Journey) and Bruce Allen Murphy (Wild Bill) added no luster to his abysmal reputation.

Douglas was undeniably brilliant, and at one time supremely ambitious, but in Murphy’s telling lost interest in the court after narrowly missing being selected as FDR’s running mate in 1944. Had Douglas been chosen (instead of Sen. Harry Truman) to replace outgoing Vice President Henry Wallace, he would have become President upon FDR’s death in April 1945. How disappointing this must have been for Douglas! Yet in 1948 a cautious Douglas turned down Truman’s offer to be his running mate, preferring to maintain his lifetime appointment on the court.  Douglas was a frustrated pol who became embittered.

Arguably the most left-wing justice to ever serve on the court, Douglas was also controversial in other ways: married four times (twice to women 40 years his junior), author of some 30 books (including polemical tracts such as America Challenged [1960] and Points of Rebellion [1970]), advisor to foreign governments, outspoken opponent of the Vietnam War, frequent public commentator on political topics (including foreign policy), and enmired in questionable financial dealings (similar to the scandal that brought down Abe Fortas in 1968).  An ardent environmentalist, he proposed to confer legal standing on trees to bring lawsuits! Most controversial of all, Douglas waged his opposition to the Vietnam War from the bench, unilaterally issuing stays against the Secretary of the Army in a variety of cases.

Ever the maverick, following the failed impeachment attempt in 1970, Douglas once reinstated a lower court order—stayed by the Second Circuit–that would have blocked funding for the U.S. military’s bombing of Cambodia, after the Circuit Justice, Thurgood Marshall, had previously denied relief with a 12-page written opinion.Marshall, no conservative, stated that judicial interference with political decisions would constitute “lawlessness” and warned that “Down that road lies tyranny and repression.” Of course, the rest of the court promptly and unanimously overturned Douglas’s improper order in a case that was ultimately deemed to be a political question. Douglas stubbornly defended his lawless ruling in his memoir, The Court Years, but Kastenberg barely mentions the episode and attempts to justify Douglas’s actions by breezily claiming that Marshall “was unwilling to intervene,” when he in fact had issued a lengthy opinion.  Douglas, unchastened by Ford’s impeachment campaign, remained an unabashed and energetic activist until a disabling stroke forced him to retire in 1975.

With this background, it is not surprising that Douglas faced an impeachment investigation in 1970, following a decade of Warren Court activism. In fact, Douglas’s granting of a last-minute (but short-lived) stay of execution to Julius and Ethel Rosenberg in 1953 had prompted an earlier impeachment resolution by Democratic Rep. William M. (Don) Wheeler of Georgia. Other southern Democrats, Reps. Thomas Abernethy and Joseph Waggonner, introduced similar resolutions in 1966. Douglas’s bipartisan critics in Congress continued to call for his impeachment even after Ford’s efforts failed. For justifiable reasons, Douglas was one of the most unpopular justices of all time, with fierce critics in both parties. Many considered him to be unfit for the bench—a naked political actor oblivious to the judicial role.

Why would a scholar choose Douglas—with all his flaws and baggage–for a hagiography? The subtitle of the book, The Campaign to Impeach Justice William O. Douglas, is a tipoff: “Nixon, Vietnam, and the Conservative Attack on Judicial Independence.”  Progressives adore Douglas’s politics, especially his opposition to the Vietnam War. Kastenberg acknowledges that he admires Douglas, “the nation’s leading liberal judge,” for having “an unparalleled empathy for humanity.” Despite his “extraordinary flaws,” including “a lack of judicial restraint,” Kastenberg asserts that Douglas “was more often on the right side of history than not” (whatever that means). The book, with a Foreword by former Democratic presidential candidate Fred Harris (who ran on an “economic democracy” platform in 1972 and 1976, as a precursor to democratic socialism), frames the 1970 impeachment hearings as a Manichean struggle between good and evil. Douglas, of course, embodies good, while Ford is condemned as a partisan stooge, being used as a pawn by the ruthless and corrupt President Richard Nixon. The impeachment campaign was an “attack” on the Constitution by “reactionaries” and Douglas’s “misguided critics.”

Ironically, the author, who makes no secret of his contempt for President Trump, criticizes Ford for arguing that impeachment of Douglas needn’t be based on proof of treason, bribery, or other high crimes and misdemeanors, but is silent on the House Democrats’ use of a non-constitutional standard to impeach Trump.

In short, the book is an overtly political paean to a liberal icon.  The tone is relentlessly that of an advocate, not a dispassionate historian. Kastenberg molds facts to fit his strained thesis in a manner that is both tiresome and unpersuasive. Kastenberg can’t make up his mind whether the “brazen” impeachment campaign against Douglas was purely partisan; retribution for the 1969-70 defeat of Nixon’s nominees to replace Fortas, Clement Haynsworth and G. Harrold Carswell; or, since Douglas was also opposed by many Democrats (including West Virginia Sen. Robert Byrd), an exercise in racial bigotry.  He doesn’t seriously consider that Ford, a Yale-trained lawyer, was acting in good faith. Kastenberg claims Ford was doing Nixon’s bidding, but then avers that Nixon’s failure to “overtly support” Ford contributed to his failure. Which is it?

If the author’s thesis sounds muddled, it is a model of clarity compared to Kastenberg’s convoluted exegesis. The unsuccessful 1970 campaign against Douglas was bipartisan, undermining the author’s contention that Ford was driven by politics. Conceding this, Kastenberg asserts—without proof–that the only reason some Democrats joined Ford’s campaign to impeach Douglas was hostility to civil rights, ignoring that conservative Democrats may well have been offended by Douglas’s strident anti-war rhetoric, libertine lifestyle, shady financial dealings, and aggressively activist rulings on a variety of subjects, including granting procedural protections to criminal defendants. Ford’s impeachment campaign fell short of reaching a vote in the House when a Judiciary Committee investigation cleared Douglas of significant wrongdoing—hardly a dramatic denouement or grist for a page-turner.

A lot of things happened during the period of Douglas’s service on the Court (1939-1975). In tedious and confusing detail, Kastenberg rehashes these facts–with frequent digressions–whether or not they are germane to his narrative. No portion of his research went unused. The result is a turgid, stultifying hodgepodge of impenetrable prose—choppy, meandering, repetitive, poorly organized, sometimes unreadable. The only coherent theme evident in the book is that a cast of Republicans and conservative Democrats opposed to Douglas were bad, and that Douglas and his liberal defenders (including allies in the legal academy) were good.  

At the conclusion of The Campaign to Impeach Justice William O. Douglas (assuming they can complete the slog), many readers will wish to commend Ford for his efforts, and regret that he failed.  No justice, before or since Douglas, has exhibited such a lack of “good behaviour,” warranting removal. Kastenberg concedes that Douglas “engaged in extrajudicial activities that…were ill-suited for the judiciary” but doggedly insists that Ford’s motives for seeking Douglas’s impeachment were impure.  I have rarely seen a less persuasive argument than this tendentious screed. Like the phony excavation of the “missing link” in the Piltdown hoax, Kastenberg claims to have discovered a political martyr, when all he has produced is a warmed-over encomium for a discredited judicial activist.