The Volokh Conspiracy
[Eugene Volokh, July 24, 2006 at 12:51pm] Trackbacks
Judge Posner on Justice Douglas:

Much worth reading; I'm no expert on the substance, but it's certainly a fun and interesting read, and my sense is that the criticisms of Douglas, from what I've heard, are indeed quite apt. (Certainly Douglas's constitutional work, with which I am familiar, betrays the flaws that Posner identifies.) Thanks to Orin for the pointer.

Related Posts (on one page):

  1. Professor Scot Powe on Judge Posner Quoting Professor Bruce Murphy on Justice Douglas:
  2. Judge Posner on Justice Douglas:
some guest:
Thanks for the link. A very interesting read.
7.24.2006 2:26pm
Jason Fliegel (mail):
I have enormous respect for Judge Posner, both as a jurist and as a person, but I think this excerpt from two-thirds of the way through the review says it all:

From my account, Murphy's book may seem a hatchet job, with its mountain of often prurient detail about Douglas's personal life and character. Not so.


Yet to get there, we've had to sift through paragraph after paragraph detailing what a scoundrel Justice Douglas was (with added sideswipes at the Kennedys and LBJ).
7.24.2006 2:48pm
Mike BUSL07 (mail) (www):
I wonder who was the bigger a-hole, Douglas, or McReynolds. The only thing I read of the latter was the fictionalized account of a clerkship, apparently well-researched, and accurate, in Kermit Roosevelt's "In the Shadow of the Law." McReynolds apparently was quite a miserable bastard, and like Douglas, did not enjoy a good relationship with his clerks.

...Oh - a brief google search unearthed this gem from the non-fiction account of a McReynolds clerkship, upon which Roosevelt had relied:


"I don't want to dictate any letter," McReynolds said rather impatiently, "but I do feel that this is the time to speak about one thing. I realize you are a Northerner who has never been educated or reared in the South, but I want you to know that you are becoming much too friendly with Harry. You seem to forget that he is a negro and you are a graduate of the Harvard Law School. And yet for days now, it has been obvious to me that you are, well, treating Harry and Mary like equals. Really, a law clerk to a Justice of the Supreme Court of the United States should have some feeling about his position and not wish to associate with colored servants the way you are doing." And with a genuine sigh McReynolds continued, "Of course, you are not a Southerner, so maybe it's expecting too much of someone from Chicago to act like a Southerner, but I do wish you would think of my wishes in this matter in your future relations with darkies."


Great...
7.24.2006 2:53pm
Anonymous2:
Should the title of the post not be Bruce Murphy on Douglas? While Posner quite ably reviewed the biography, it was Murphy who spent the considerable effort required to sort through the convoluted lies surrounding Douglas and reveal Douglas's true personna.
7.24.2006 3:00pm
bob montgomery:
For Douglas turned out to be a liar to rival Baron Munchausen...

...his typical lies, not only repeated in a judicial opinion but inscribed on his tombstone...

Apart from being a flagrant liar...

I cannot begin to imagine his thinking in publishing lies that were readily refutable by documents certain one day to be discovered.

This was another lie...

Douglas claimed...when in fact...He claimed...all lies...He concealed this in his autobiography...He also claimed...Douglas claimed...which was not true...He also claimed...he had not...a liar...

After all that, I am astounded by this:

Douglas might have been a fine Cold War president.

Suppose that, upon being appointed to the Court, he had abandoned his political ambitions and set as his goal to become the greatest justice in history. The combination of his youth, his intelligence, his energy, his academic and government experience, his flair for writing, the leadership skills that he had displayed at the SEC, and his ability to charm when he bothered to try (rare as that was, except when he was courting) would have put him within reach of the goal.

...the tragedy of Douglas was not that he was a warped human being, or that Roosevelt passed him over for the vice presidential nomination, but that for reasons of temperament--and because the great prize of the presidency seemed for a while within reach--he could not buckle down and commit himself wholeheartedly to the Court and become the greatest of the legal realists.

Had he brought to bear all his powers, which were considerable, and injected greater realism and empirical understanding into the work of the Supreme Court, he might have achieved greatness.

How can you hypothesize that someone who has such apparent disregard for the truth could have been a great anything, if only he had buckled down?

I shudder to think of someone so prone to lie about everything as my neighbor, let alone as a person with authority over me.
7.24.2006 3:52pm
Jay (mail):
Aside from the personal swipes, couldn't a good deal of the criticisms that Posner makes about Douglas be fairly levied at Posner himself? Just asking.
7.24.2006 5:56pm
Eugene Volokh (www):
Jay: Really? I'd never heard of his being accused of being deceitful, being rude, being lazy, taking money from outside and likely improper sources, being unfaithful to his wife, being neglectful of his children, or the like. Can you point me to some specific charges that Posner makes about Douglas that could equally be made about Posner?
7.24.2006 6:07pm
Witness (mail):
"I'd never heard of his being accused of being deceitful, being rude, being lazy, taking money from outside and likely improper sources, being unfaithful to his wife, being neglectful of his children, or the like."

Um, weren't all (or at least most) of these things excluded from Jay's question in his "[a]side from the personal swipes" exception? Or am I only inviting a tedious dissection into the meaning of "personal" by pointing this out?
7.24.2006 6:17pm
U.Va. 2L (no longer a 1L) (mail):
As coincidence would have it, I'm currently reading Murhpy's book. I highly recommend it.
7.24.2006 7:04pm
Richard Riley (mail):
Orin Kerr's post that Eugene cites links to a "This I Believe" broadcast by William O. Douglas from 1951. Douglas's broadcast is, interestingly, very much of a piece with his Zorach v. Clausen opinion from 1952 in which he famously said "We are a religious people whose institutions presuppose a Supreme Being." Everybody knows that's hard to square with Douglas's later, leftier jurisprudence. But Douglas's 1951 "This I Believe" piece reflects, I would say, just the same kind of folksy religious outlook as in the Zorach case. Maybe, more accurately, a populist religious outlook? Orin says the 1951 broadcast may have been posturing for a possible Presidential run by Douglas, which Posner also mentions in his review to which Eugene links. Maybe Zorach, which seems so un-Douglas-like, is an example of the same political posturing.
7.24.2006 7:53pm
Eugene Volokh (www):
Witness: Judge Posner was reviewing a biography of Justice Douglas, which was chiefly a story of Justice Douglas the person, and was chiefly discussing his failures as a person, though failures that might bear on his qualities as a judge (especially his laziness and his questionable financial arrangements, but possibly also including his rudeness and his personal untrustworthiness). That's why I had thought that those items were included within Jay's comment. Perhaps I was mistaken, but then I still wonder what precisely Jay is talking about.
7.24.2006 7:57pm
Walk It:

Isn't Justice Douglas dead and gone?

In my culture, we let the dead rest in peace, and don't focus on their personal shortcomings except where relevant. Sure Douglas was a more public person, but continuing to smear a dead man? Doesn't the family deserve better?

Cheap points. Reach higher.
7.24.2006 8:05pm
Salaryman (mail):
Professor Volokh: apparently Jay meant to say that Posner is intelligent, knowledgeable, impressive academically and would have made a good Cold War president. I know these are not what one might typically consider "criticisms", but once you've purged all the personal swipes, that seems to be about all that's left.
7.24.2006 8:35pm
Brooklynite (mail) (www):
There's a lot of weird axe-grinding in the review --- and, if the review is anything to go by, in the biography. Take this, for example:
Douglas claimed to have grown up in abject poverty. This was another lie: his mother had been left surprisingly well provided for as a widow, and the family, though poor by modern standards (as most people were a century ago), was middle class. What is true is that Douglas's mother was very tight with money (another parental trait the son inherited, though this one only fitfully); and as a result Douglas believed until he was an adult that the family had been poor.
So Douglas wasn't poor, he just thought he was poor? And he thought this because his family didn't have any money when he was growing up?

Come on. That's just silliness. And self-refuting passages like that one leave me deeply skeptical about the rest of Posner's claims.
7.24.2006 9:47pm
Lev:
This, by a former clerk to Blackmun, was very interesting

Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court by Edward Lazarus
7.25.2006 1:26am

PicoSearch
Help
Lijit Search