'Men in Black' Blasts High Court

While news coverage tends to focus on developments in the White House and with Congress, most folks pay little or no attention to what happens on the Supreme Court.

That's a shame, says constitutional scholar and former Reagan Justice Department official Mark Levin, since the Court wields so much unchecked power affecting the everyday lives of Americans, often in ways detrimental to the nation.

Released today, Levin's new book "Men in Black" is nothing short of an indictment of the high court, detailing judicial abuses from its founding in 1801 right through modern day decisions on abortion and homosexual rights cases.

Though the Supreme Court is generally the most revered branch of government, supposedly populated by the finest legal minds in the nation, Levin lays bare the institution as one plagued by the human frailties of its members - who regularly base their decisions on their own political prejudices, often with little or no regard for Constitution.

"The biggest myth about judges is that they're somehow imbued with greater insight, wisdom, and vision than the rest of us, that for some reason God Almighty has endowed them with superior judgment about justice and fairness," he begins.

But over its two-plus century history, the high court has welcomed into its club an ex-Ku Klux Klansman (Hugo Black), a virulent anti-Semite (James McReynolds) and a sexual predator (William O. Douglas) - along with no small number of increasingly infirm and senile members who soldiered on while their colleagues worked around them.

"Men in Black's" central complaint, however, is the abuse of a branch of government that was created to interpret the Constitution - and more often than not, ends up rewriting it.

Or as Justice Thurgood Marshall said, explaining his judicial philosophy: "You do what you think is right and let the law catch up."

Over the years that approach has led to a series of judicial disasters, each covered by Levin in great detail.

The Plessy vs Ferguson decision, for instance, which ratified the Jim Crow "separate but equal" code of the segregation, could be reached only by ignoring already well established law.

Levin notes that the Court simply ignored "the plain language of the Fourteenth Amendment" and "inserted it's own segregationist version of what was just."

Korematsu v. United States, the high court decision that justified FDR's internment of the Japanese during World War II, "was devoid of any legitimate constitutional basis for upholding Roosevelt's orders," he explains.

One of the book's most insightful chapters dissects Justice Harry Blackmun's motives in writing the landmark Roe v. Wade decision.

His wife Dorothy, for instance, once told one of his pro-abortion clerks that she was coaxing him at home to legalize abortion, explaining, "You and I are working on the same thing; me at home and you at work."

In the wake Blackmun's abortion ruling, reaction was sharp. Letters poured into the Court, both pro and con. Blackmun took the supportive letters to heart. "Over time, he came to think he had done a great thing for women," a Court historian noted, and it radicalized his judgment in future privacy rights cases.

Notes Levin: "There is something truly absurd and, frankly, repugnant about a judge being swayed by fan mail."

Through vignettes like that, "Men in Black" offers an up close and personal perspective on a high court that all too often resembles the legal version a runaway train - careening off the course clearly outlined in the Constitution.

Dismantling a legend;
Biography of William Douglas separates fact from fiction in the life of the late Supreme Court justice
Dennis J. Hutchinson
Chicago Tribune
March 16, 2003

Wild Bill: The Legend and Life of William O. Douglas
By Bruce Allen Murphy
Random House, 716 pages, $35

A few months after Justice William O. Douglas retired in 1975, having served longer than anyone on the U.S. Supreme Court, he interviewed me for a job helping him with Volume 2 of his memoirs. His first question was what I thought of the first volume, "Go East, Young Man."

I told him I thought a lot of the book was "pretty far-fetched."

He fixed me with a steely glare for 30 seconds, although it seemed much longer. Then he said: "Yeah, can you believe that some people believed all that [stuff] I wrote? Catching fish with my bare hands? Jesus Christ!"

Bruce Allen Murphy, author of earlier studies of Justice Abe Fortas and of the relationship between Justices Louis Brandeis and Felix Frankfurter, has spent 15 years producing a detailed life of Douglas spanning more than 500 pages of text and 150 pages of endnotes. The book demonstrates that bare-handed fishing was the least of Douglas' autobiographical fibs.

Douglas did not grow up in poverty but in comparative comfort for the day and place. He did not suffer life-threatening polio but probably a severe case of colic. He did not work his way through Columbia Law School but was supported by his first wife's school-teaching job. He did not graduate second in his class but probably fifth or sixth. He did not enjoy a brilliant early career on Wall Street but quit because his nerves couldn't take the pace. Robert Maynard Hutchins did not offer him $25,000 to leave Yale Law School for the University of Chicago in 1930 but much less. "Go East" is, in short, a tissue of lies. Murphy thinks the fictions were designed to enlarge the legend of a man who enjoyed a distinguished career but failed in the primary goal he--and his mother--set for him at an early age: to be president of the United States.

Almost lost in the lengthy and minutely detailed deconstruction of the self-created legend is the judicial career for which Douglas is best known. His 36 years on the court are captured largely in quotations from Douglas' opinions, whose significance are devoid of context or impact. The reader is barely aware that the court set off a constitutional and political revolution in 1954 with Brown vs. Board of Education, which is mentioned only once in the narrative and then only as a side note to a collateral case decided several years later.

When Murphy delves into the internal work of the court, he relies frequently on a series of tape-recorded interviews Douglas made at Princeton University in 1961-1963. The reliance is odd. Having established Douglas' wholesale unreliability as a witness to his own life, Murphy seems never to have questioned whether the tapes were accurate portrayals of life inside the court or simply another self-serving account designed to burnish Douglas' role at the expense of his enemies (principally Frankfurter and Robert H. Jackson).

The court provides the setting rather than the focus for the book, which is organized around two themes: Douglas' pathological personality--a cruel, distant father, and an unquenchable philanderer--and the somewhat ambivalent quest for the White House. The personality portrait is alternately pathetic and repellant. Douglas had no time for his two children, paraded them before friends at parties to show what a devoted family man he was, and then ignored them. He depended on his first wife to get him through law school, used her for social and moral support early in his career, then dumped her after a decade-plus on the court. A succession of childish courtships with younger and younger women followed. He married his fourth and final wife when he was 67 and she was 23. Throughout his marriages he pursued other women, including one episode recounted by Murphy in which a naive flight attendant was chased around his office in the court and escaped before she could be molested. Douglas' sexual appetite came at a high price. His multiple divorces kept him on the precipice of bankruptcy for more than 25 years and probably prompted his globe-trotting activities, which provided entertainment, ready cash and royalty advances from the books that he eventually wrote about his trips.

Murphy argues that Douglas disliked his judicial work almost as soon as he joined the court in 1939 and set his sights on the White House almost simultaneously. His first thought of presidential politics came in 1940, but then Franklin Roosevelt decided to run for an unprecedented third term, and Douglas put his ambitions on hold--as did two other members of the court, Hugo Black and Jackson. The 1944 election was Douglas' big chance, and the battle for the vice presidential nomination forms the most sustained and fully realized chapter of the book. Yet for all of the detail, the outcome was foreordained. Despite an energetic corps of lieutenants, Douglas was outmatched from the start. The chairman of the Democratic National Committee, "Busyman Bob" Hannegan, was also head of the Missouri delegation and a close ally of Harry Truman's. Hannegan kept Roosevelt incommunicado prior to the nominating convention, so the Douglas forces couldn't learn the president's preferences for a running mate. Hannegan knew that FDR was willing to run with either Truman or Douglas, but by keeping the information to himself he was able to jump-start a Truman bandwagon.

Douglas bitterly resented being outmaneuvered by Hannegan, but when the vice presidential nomination came around four years later, he blinked. According to Murphy, Truman offered Douglas the second spot on the ticket three times. He didn't want to play " 'second fiddle to a second fiddle,' " in the words of his sometimes-right-hand political operative, Thomas "Tommy the Cork" Corcoran. But that would only happen if Truman won, which seemed unlikely in summer 1948. " 'The problem,' " Douglas said at the time, was that Tom Dewey, his law school classmate, will " 'screw it up, and Truman will win.' " Douglas dithered for weeks, finally said no and consoled himself that if Truman won, " 'by 1952 anyone will be able to beat him.' "

What Douglas did not realize was that he had blown his biggest opportunity to leave the court for bigger opportunities. By 1952 he was divorced, and thus political poison at the time in presidential politics. The presidency continued to gnaw at him, even until 1960, when he told Lyndon Johnson he would resign from the court to campaign for his presidency, with the implication that he would be happy to accept the vice presidency. When John Kennedy won the nomination, Douglas went on a three-day alcoholic bender during one of his annual summer camping trips in the Cascades, crying to his companions that "they" had bought the nomination. "They," of course, were the Kennedys, which twisted the knife for Douglas, who had thought that Joseph Kennedy, the candidate's father, was his ally as well as a former patron.

At 61, his life's dream--or so he claimed--was finally foreclosed. Douglas' final 15 years on the court come as an anti-climax for Murphy and his readers. Douglas survives a weak impeachment attempt designed by President Richard Nixon and bungled by House Minority Leader Gerald Ford, and his private life becomes a litany of drinking and womanizing. His judicial opinions become more idiosyncratic and self-indulgent, and the leadership of the court falls to Chief Justice Earl Warren and Justice William Brennan. A massive stroke on New Year's Eve 1974 eventually forces his retirement.

The nagging, unresolved question posed by Murphy's story is what Douglas' ambition really was. At more than one point, Murphy quotes law clerks who recall statements by Douglas that if he had to do it all over again, he would not have gone on the court. The explanation was always essentially the same:

" 'Because the Court as an institution is too peripheral, too much in the backwater. . . .You're just too far out of the action here.' "

I asked Douglas in 1976 whether he was sorry he went on the court and sorry he spurned Truman in 1948, and his unequivocal answer was no. He said the security of office provided by the court substantially outweighed the risks of the political arena.

The truth--an elusive quarry where Douglas is concerned--may be both. Douglas loved the national spotlight and craved the attention and power that could go with it, but he knew himself--even if he created other personae--and he knew that he had thin skin and little taste for campaigning. He also knew that he had an even greater fear of failure and of a fall from political grace. William O. Douglas had a weak stomach, medically and psychologically, and the court allowed him to indulge himself more and at less cost than any other public position he could hold.

Dennis J. Hutchinson teaches constitutional law and legal history at the University of Chicago and is the author of The Man Who Once Was Whizzer White, a biography of the late U.S. Supreme Court Justice Byron White. His most recent book, which he edited with David J. Garrow, is The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR's Washington.

pc93 reporting!

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