In 1939, Justice
Louis D. Brandeis retired from the Court, and on March 20 Roosevelt nominated Douglas as his replacement.
Relationships with others at Supreme Court Douglas was often at odds with fellow justice
Felix Frankfurter, who believed in
judicial restraint and thought the court should stay out of politics. Judge
Richard A. Posner, who was a law clerk for justice
William J. Brennan Jr. during the latter part of Douglas's tenure, characterized Douglas as "a bored, distracted, uncollegial, irresponsible" Supreme Court justice, as well as "rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed" and so abusive in "treatment of his staff to the point where his law clerks—whom he described as 'the lowest form of human life'—took to calling him "shithead" behind his back." Posner asserts also that "Douglas's judicial oeuvre is slipshod and slapdash," but Douglas's "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" could have let him "become the greatest justice in history."
Judicial philosophy Legal scholars have noted that Douglas's judicial style was unusual in that he generally did not attempt to elaborate justifications for his judicial positions on the basis of text, history, or precedent. Douglas was known for writing short, pithy opinions that relied on philosophical insights, observations about current politics, and literature as much as more conventional judicial sources. Douglas wrote many of his opinions in twenty minutes, often publishing the first draft. Ultimately, Douglas believed that a judge's role was "not neutral" because, as he wrote, "The Constitution is not neutral. It was designed to take the government off the backs of the people." Douglas has been widely characterized as a
civil libertarian, and was in fact described upon his 1975 retirement by
Time magazine as "the most doctrinaire and committed civil libertarian ever to sit on the court". On the bench, Douglas became known as a strong advocate of
First Amendment rights. With fellow justice
Hugo Black, Douglas argued for a "literalist" interpretation of the
First Amendment, insisting that the First Amendment's command that "no law" shall restrict freedom of speech should be interpreted literally. He wrote the opinion in
Terminiello v. City of Chicago (1949), overturning the conviction of a Catholic priest who allegedly caused a "breach of the peace" by making anti-Semitic comments during a raucous public speech. Douglas, joined by Black, furthered his advocacy of a broad reading of First Amendment rights by dissenting from the Supreme Court's decision in
Dennis v. United States (1952), which affirmed the conviction of the leader of the
U.S. Communist Party. Douglas was publicly critical of censorship, saying, "The way to combat noxious ideas is with other ideas. The way to combat falsehoods is with truth." Douglas voted with the majority to uphold the wartime
internment of Japanese Americans in
Korematsu v. United States (1944) despite having initially planned to dissent, a vote he later regretted. Over the course of his career, he grew to become a leading advocate of individual rights. He was suspicious of majority rule as it related to social and moral questions, and he frequently expressed concern about forced conformity with "
the establishment". For example, Douglas wrote the majority opinion in
Griswold v. Connecticut (1965), which stated that a constitutional
right to privacy forbids state contraception bans because "specific guarantees in the
Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them life and substance." That went too far for Hugo Black, who dissented in
Griswold despite generally having been allies with Douglas with respect to civil rights. Justice
Clarence Thomas would years later hang a sign in his chambers reading, "Please don't emanate in the penumbras." Prof.
David P. Currie of the
University of Chicago Law School called Douglas's
Griswold opinion "one of the most hypocritical opinions in the history of the Court." Douglas and Black also disagreed in
Fortson v. Morris (1967), which cleared the path for the
Georgia State Legislature to choose the governor in the deadlocked
1966 race between
Democrat Lester Maddox and
Republican Howard Callaway. Whereas Black voted with the majority under strict construction to uphold the state constitutional provision, Douglas and
Abe Fortas dissented. According to Douglas, Georgia tradition would guarantee a Maddox victory, but he had trailed Callaway by some 3,000 votes in the general election returns. Douglas also saw the issue as a continuation of the earlier decision
Gray v. Sanders, which had struck down Georgia's
County Unit System, a kind of
electoral college formerly used to choose the governor. According to political scientists
Andrew D. Martin and Kevin M. Quinn, he was by far the most liberal justice in the history of the Supreme Court, with a
Martin-Quinn score of -8 at his most liberal. He voted to strike down the death penalty in
Furman v. Georgia (1972), argued that the environment should be granted
legal personhood, argued that the
Vietnam War was unconstitutional because Congress had never declared war, and generally mounted an uncompromising defense of individual rights from which even typically stalwart liberals like
William Brennan and
Thurgood Marshall sometimes shied away. Douglas was notable as a public pre-
Stonewall supporter of gay rights. Douglas dissented in
Boutilier v. INS (1967), in which the Court ruled that gay and lesbian sexualities were included in the list of “psychopathic personalities” that Congress could deport, arguing that the term “psychopathic personality” was unconstitutionally vague, and that even if it were not, not all gay and lesbian people are psychopaths. In 1968, in a concurring opinion in the case of
Flast v. Cohen (1968), Douglas indicated that he did not believe in
judicial restraint: There has long been a school of thought here that the less the judiciary does, the better. It is often said that judicial intrusion should be infrequent, since it is "always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors"; that the effect of a participation by the judiciary in these processes is "to dwarf the political capacity of the people, and to deaden its sense of moral responsibility." J. Thayer, John Marshall 106, 107 (1901).¶ The late Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control. ... His description of our constitutional tradition was in these words: "Be not reasonable with inquisitions, anonymous informers, and secret files that mock American justice. Be not reasonable with punitive denationalizations, ex post facto deportations, labels of disloyalty, and all the other stratagems for outlawing human beings from the community of mankind. These devices have put us to shame. Exercise the full judicial power of the United States; nullify them, forbid them, and make us proud again." Can the Supreme Court Defend Civil Liberties? in Samuel, ed., Toward a Better America 132, 144 -145 (1968). Douglas' first law clerk
David Ginsburg wrote that "critics have sometimes charged that [Douglas] was result oriented and guilty of oversimplification; those who understand how he thought, and who share his compassion, conscience, and sense of fair dealing, see him as courageous and farsighted." Legal scholar
David P. Currie has argued that "there is no necessary contradiction between these two views." Because of widespread opposition to his decision, Douglas briefly faced
impeachment proceedings in Congress proposed by Representative
Don Wheeler, but attempts to remove him from the Court went nowhere.
Vietnam War Douglas took strong positions on the Vietnam War. In 1952, Douglas traveled to Vietnam and met with
Ho Chi Minh. During the trip, Douglas became friendly with
Ngô Đình Diệm, and in 1953 he personally introduced the nationalist leader to senators
Mike Mansfield and
John F. Kennedy. Douglas became one of the chief promoters for U.S. support of Diệm, with CIA deputy director Robert Amory crediting Diệm becoming "our man in Indochina" to a conversation with Douglas during a party at
Martin Agronsky's house. After Diệm assassination in November 1963, Douglas became strongly critical of the war, believing that Diệm had been killed because he "was not sufficiently servile to
Pentagon demands." In 1968, Douglas issued an order blocking the shipment of Army reservists to Vietnam, before the eight other justices unanimously reversed him. The Court was in recess for the summer, but the Congresswoman reapplied to Douglas. The U.S. military ignored Douglas's order.
"Trees have standing" Douglas was highly innovative in legal theory. For example, in his dissenting opinion in the landmark environmental law case
Sierra Club v. Morton (1972), Douglas argued that "inanimate objects" should have standing to sue in court: He continued: Douglas biographer
M. Margaret McKeown argued that he was influenced in his opinion by reading a pre-publication copy of
Southern California Law Review article "Should Trees Have Standing?Toward Legal Rights for Natural Objects", in which author
Christopher Stone advanced an argument that would later be the basis for the legal concepts of
environmental personhood and
rights of nature.{{cite news |last=Rakoff |first=Jed S. |title=The Frontier Justice |newspaper=
New York Review of Books ==Environmentalism==