Books High Court Justice


WILLIAM O. DOUGLAS is like a craggy old mountain goat. Both have fuzzy white hair, wind-burned features, and a knack for getting onto precipitous ledges. Typically, Douglas is out on a limb once again, this time for publishing a short essay analyzing the ills of American society. By doing so, he has let himself become vulnerable to political enemies who keep trying to push him from his precarious position as a doggedly liberal jurist in a country where there is decreasing respect both for the judiciary and the law. One result of this essay, parts of which appeared in "Evergreen Review." is that a special subcommittee of the House Judiciary Committee is investigating possible grounds for impeaching Justice Douglas.

In many ways this is unfortunate, because Points of Rebellion is not a manifesto for radical change. Rather, it is an attempt by an embattled civil libertarian to save what he considers to be America's liberal heritage. Douglas does not sound the call for revolution, but argues that unless there is extensive institutional reform in America, revolution is inevitable. Drawing an analogy between the present-day American Establishment and George III, he writes, "A vast restructuring of laws and institutions was necessary if the people were to be content. That restructuring was not forthcoming and there was revolution."


Douglas has issued the State a grave warning, and it is almost comical to see how "public voices" are responding. One of House Minority Leader Gerald Ford's major arguments against the essay is that excerpts from it appeared in "Evergreen Review." Ford termed the magazine "full of hardcore pornography," and thought it outrageous that a Supreme Court Justice should allow his name to appear in such a journal. James Reston devoted one of his thrice-weekly columns to an attack against Points of Rebellion, calling it "a misdemeanor." To underscore which side of the political spectrum Reston is leaning toward, he very pointedly referred to William F. Buckley. Jr., editor of the conservative "National Review." as "my colleague." In its turn, the "National Review" ran an article attempting to prove that the origins of a quote used by Douglas, and attributed to Hitler, cannot in fact be found, thereby supposedly invalidating the quote. Nowhere does anyone deal with the issues raised in the essay, nor with the implications of its arguments.

This is unfortunate, not only because of the gravity of the issues involved, but because Douglas's easy is so inadequate in dealing with these problems. He attacks most of the major visible ills in American society by listing them, and by giving a few supporting statistics to prove that each of these problems does in fact exist. He presents these "Crises in American Life" with an eye towards correcting them, but his presentation consists of fragments. The only Evil he points to is The Establishment, a term which he never defines, and which he never adequately explores. There is no coherence to his argument, except that which can be inferred by a reader whose political sophistication has moved beyond the mere absorption of historical facts and economic statistics. Douglas recognizes that "a vast restructuring of our society is needed." but he argues that such a restructuring should be the result of institutional changes initiated from above. Thus, when referring to the inadequacy of our Federal food-assistance programs, he argues for more progressive legislation, and not for radical organizing of the poor. Douglas is a reformer, not a revolutionary: he prefers to attack one problem at a time, suggesting that a revised law here, more money there, and more legal counsel in general will significantly ameliorate these crisis situations.


THE PROBLEM with this kind of social analysis, however, lies in its economic and political innocence. Some of Douglas's observations are quite perceptive, but too many reveal a naive belief in the overriding importance of the law as the basis of organized human activity. His assertion that "If society is to be responsive to human needs, a vast restructuring of our laws is essential" indicate an ignorance of the economic forces in this country which determine not only for whom the law is written, but how it is practiced.

Douglas does acknowledge economic inequities, but always in the context of isolated examples of economic justice gone awry. His discussion of increasing Federal subsidies to "corporate farms" while Federal and state food-assistance programs are allowed to deteriorate is quite good, but he is reluctant to place this "contradiction" in its wider economic context. It is not at all surprising, however, that a Justice of the Supreme Court eschews a Marxian critique of the United States.

In fact, Douglas repeatedly stresses that the nature of the growing agitation among various groups in this country is not Communist-inspired or oriented. Rather, he asserts, the manifestations of this unrest are expressions of the human spirit rallying against the insensitive of a burgeoning technological and bureaucratic state. He recognizes the inherent dangers in the growing tensions and frustrations in a country where "People march and protest but they are not heard." Douglas is a firm believer in the sanctity of the law, and he does not call for extralegal political activities, as some of his detractors have suggested he has. But he does recognize that "where grievances pile high and most of the elected spokesmen represent the Establishment, violence may be the only effective response." Douglas is a staunch defender of democratic institutions, and he shares the concern of Edmund Burke, that the State reform in order to preserve.