Last week the Law Weekly published “Impeachment Stories: Congressman Gerald Ford’s Attempt to Remove Justice William O. Douglas” written by Will Fassuliotis ’19. This Letter to the Editor was submitted in response to that article.
Professor George Rutherglen
It was with some amusement and more distress that I read the column by Will Fassuliotis published by the Law Weekly on April 10. It concerns Justice Douglas, “a rank partisan” according to your columnist. He should be careful, since his rank partisanship is on open display in his column, not to mention his ignorance of constitutional law. Perhaps “Wild Will,” to paraphrase the title of a biography of Justice Douglas, can tell me how Douglas’s best-known opinion, Griswold v. Connecticut, recognizing a right to contraception and providing the foundation for the modern law of reproductive and sexual freedom, was an exercise in “rank partisanship.” Very few states, and certainly not Connecticut, favored reproductive rights in 1965 when the decision was handed down. Wild Will’s rank partisanship seems to lie with the Christian, Trump, and Republican right at this moment, not the historical context in which Justice Douglas acted. Beware of whom you accuse, Wild Will, because those accusations fit you all too well.
I am, I admit, a former law clerk of Justice Douglas, and Justice Stewart, and Justice Stevens. You might count me biased in this respect, but you have to understand that Justice Douglas did not curry favor with his clerks. On the contrary, he criticized all of us in the most unsparing terms. And it was for failure to respect individual rights, not for failure to toe the line of whatever party might be in power. Since Wild Will tells stories on Justice Stevens’s swearing-in ceremony and Justice Douglas’s encounter with Justice Whittaker, I have to disagree. Justice Douglas had suffered from the massive stroke that would eventually kill him when Justice Stevens was sworn in. I know, because I was there. I would not, myself, expect a dying man to offer comments with the most equanimity at the end of his career and of his life. In any event, Justice Stevens never mentioned any such conversation between Justice Douglas and President Ford to me, and I have had several occasions to talk with him about Douglas’s work on the Court just before he retired. As for Justice Whittaker, he was notoriously indecisive, and as I was told by Justice Stewart, who was given Whittaker’s copies of U.S. Reports for his chambers, Whittaker had underlined every line in those volumes. How would you like to purchase a used casebook with underlining on every line? I take this fact to confirm Whittaker’s indecisiveness and the need he felt to accept help from Douglas.
Wild Will has made Justice Douglas into an anti-Christ of what must be resisted in American law today. A look back at what Douglas stood for, what he wrote, and which of his opinions have become foundational will lead any unbiased reader to the opposite conclusion. He set the terms for debate over constitutional issues today, from sexual rights to the commerce clause. If that’s “rank partisanship,” I’m sure Wild Will wants the justices he favors to accomplish as much.
Be careful what you criticize, Wild Will, because you seem to be criticizing yourself.
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grutherglen@virginia.edu
While the Law Weekly normally does not release Letters to the Editor in advance of publication, the Law Weekly wanted to offer the graduating 3L a chance to respond as this is the Law Weekly’s last issue of the semester. His response follows .
Will Fassuliotis ’19
a.k.a. “Wild Will”
Justice Douglas is a controversial figure. Just as with the other controversial figures I have written about, I tried to cover him with a respectful tone but, when necessary, a critical one as well. Sometimes the words do not come across exactly as I intended. Professor Rutherglen takes objection to my use of “rank partisan” to describe Douglas. One thing I admire about Justice Douglas was his one-man crusade to end the Vietnam War. He spoke out in public and wrote article after article against it. His efforts culminated in Holtzman v. Schlesinger[1] where, acting on his own capacity as a Circuit Justice, he issued an injunction on the United States Airforce from bombing targets in Cambodia. Douglas, despite being an early supporter of intervention in Vietnam, rightly came to believe that the Vietnam War was a bloody waste of American lives. Douglas did not complain behind the scenes, but did everything in his power to end the war, up to and including this unprecedented judicial interference in the President’s war powers.
Soon after he issued the injunction, the other eight Justices swiftly overruled him and his injunction, ending any judicial oversight of the Vietnam War. In a very narrow way, Professor Rutherglen is correct that “partisan” was a poor choice of words; Justices Brennan and Marshall, also Democrats, also judicial liberals, did not join him. But this episode undoubtedly shows that Douglas was an ideologue (perhaps a “rank ideologue”), willing to use any method to get the end result he desired, whether the Constitution or law plausibly permitted that result. Again, I found that admirable in this context. Morally, it was the right thing to do. But was it the right thing for an Associate Justice of the Supreme Court to do? Justice Douglas rarely let such considerations constrain him.
I strive to present a balanced view of the Justices and events I write about. Not a single Justice to ever sit on the Court—from Chief Justice John Jay to Justice Brett Kavanaugh—is without vice or virtue. One person’s landmark case is another person’s abdication of the Constitution. The very cases that Professor Rutherglen holds up as exemplary were in no small measure why Representative Ford and other conservatives wanted to oust Douglas. To not include that is to do a disservice to those who do not know the context of the time. Like any writer, I am limited to the historical record as I find it. As I tried to stress, Douglas, more so than any other modern Justice, has a mythology surrounding him. Piercing the myth is complicated.
At the beginning of the school year, I said to the Law Weekly Editor-in-Chief, “I have a lot of stories I want to tell and no one to tell them to. Can I write something for the paper?” I hope they have been informative. But more so, as with any piece of history, I hope you, the reader, have read my work with a skeptical eye, and were encouraged to find out more for yourself.
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wf5ex@virginia.edu
[1] 414 U.S. 1316 (1973).