A Supreme Court Justice in the Examining Room

Bernard Lown, MD

My admiration for the Supreme Court dates to the Roosevelt era. The majesty of law then seemed dazzling. Dominated by four judicial giants — Hugo Black, William Douglas, Robert Jackson, and Frank Murphy — the court had never before been more progressive, nor has it since. These justices were committed to sustaining a vibrant democratic constitution, favoring the inalienable rights of the individual against the insistent demands of property. Then something unimaginable transpired. The same Supreme Court abandoned liberal constitutional principles to serve the momentary desires of the state.

In 1940 the Supreme Court, in an eight-to-one decision, approved the rights of a school board in Pennsylvania to expel two young children for refusing to salute the flag and recite the Pledge of Allegiance. The children, William and Lillian Gobitis, aged 10 and 12, who were Jehovah’s Witnesses, maintained that their undivided loyalty to God would be compromised by what they regarded as idolatrous practices.

Worse was soon to follow. In 1942 the U.S. government expelled 110,000 Japanese Americans who lived along the Pacific Coast and forced them into detention camps. Two years later the Supreme Court upheld the constitutionality of the internment. My judicial hero, William Douglas, supported the constitutional legitimacy of President Roosevelt’s executive order, maintaining that the internment was about loyalty, not race, and that disloyal Americans could be incarcerated in times of war.

The decision of the Supreme Court contravened the facts on the ground and cast an ugly blot on the United States’ democratic pretensions. Two-thirds of those interned were American citizens. Over half were children and infants. Their only crime was Japanese ancestry, and their incarceration was the culmination of a long history of anti-Asian racism, which began in the mid-1800s against Chinese laborers and was then transferred to the Japanese, maligned as the “yellow peril.” Worth recalling is that German Americans were never treated in like manner. In the summer of 1942 a German submarine slipped into our coastal waters and deposited eight saboteurs, two of whom were native-born Americans. They aimed to wreak havoc by dynamiting public buildings. Yet no voices called for German Americans, many of whom were overt Nazi sympathizers, to be cleared out from the East Coast.

I was deeply puzzled that this great country was emulating some of the practices of a brutal enemy with whom we were in mortal combat. As a Jewish immigrant from Lithuania who had barely escaped the Nazi dragnet, I had been sensitized to the oppressive treatment of minorities.(1) Demanding that children salute the flag and incarcerating citizens in detention camps stirred intense memories of the ubiquitous “Heil Hitlers” that I had witnessed. Concentration camps were the final way stations to extermination for many of my friends and family members. If only I could have had a meaningful discussion with a Supreme Court justice. At the time this seemed as likely as having a dialogue with God. Thirty years later it happened.

In the spring of 1971 Supreme Court Justice William Douglas came to Boston seeking medical consultation. His condition warranted hospitalization, and he was admitted to the Peter Bent Brigham Hospital (now the Brigham and Women’s Hospital). He underwent an operation. While he recovered from surgery, I had occasion to spend many hours with him. Douglas was a prodigious talker who had much noteworthy to say. Now our roles were reversed, from doctor and patient to student and teacher. I pulled out a notebook and was barely able to capture the propulsive flow of words. He looked at me quizzically. Somewhat embarrassed I muttered, “Someday I would like to report your words, which are of enormous public interest. Do you object?” “Hell no,” came his reply, “as long as I am dead.”(2)

Our conversation began on his first hospital day. After the operation I made evening rounds. Not to rouse him abruptly from sleep, I used a flashlight. Nevertheless, he awakened with a start and seemed confused by the surroundings. He greeted me warmly as though I were a family member rather than someone he had just met. With a welcoming smile he commented, “How thoughtful that you have traveled such a great distance to see me.” In the dark he had confused me with his brother, who had died some years earlier. Even after realizing the mistake, he continued to reminisce about his brother in the context of the Rosenberg case. The husband and wife, Julius and Ethel Rosenberg, had been tried, convicted, and executed for sharing atomic secrets with the Russians.

He recalled that when he had granted a stay of execution for the Rosenbergs, the country was seething with anger, expressing an orgiastic desire for human sacrifice to atone for the loss of our atomic monopoly. At the time, his brother was on a train heading from New York City to Chicago. A big man approached him and asked, “Are you the brother of that son of a bitch Douglas who issued a stay of execution for those commies?” His brother stood up to his full height. “He’s much bigger than I am,” explained Justice Douglas. His brother faced the man closely and said, “I did not get your question.” When the man repeated himself, Douglas’s brother hit him straight in the mouth and knocked out five teeth. With a twinkle, the justice added that his brother helped the man pick up his teeth. A lawsuit for $50,000 resulted in an acquittal.

Still reminiscing about the Rosenberg case, Justice Douglas recalled that when he had issued the stay, he was traveling by car to St. Louis. Around the Pittsburgh area, it grew dark and he pulled into a motel. Over the radio he heard that Chief Justice Vinson was convening an emergency session of the court to vacate Douglas’s stay of execution. Douglas motored to Pittsburgh to obtain flight reservations back to Washington. Late that night, on returning to the motel to pick up his belongings, he saw more than a hundred people milling about. He thought, “Oh my God, this is the end of me.” He presumed these “burly roughnecks” had assembled for a lynching. Douglas was debating whether to turn around and drive away. Instead he slowly shut off the motor, switched off the lights, and stepped out with great unease “to face the music.” Four big strapping miners from the United Mine Workers asked, “Are you Douglas, the judge who stopped the execution of the Rosenbergs?” He replied, “Yes, I am.” They took him on their shoulders. These were Slovak, Polish, and Hungarian working people. They carried him about two miles away, where they had a big party, singing and dancing and celebrating. According to Douglas, these working people sensed that a great injustice was being committed. “The America with guts to stand up to the hysteria,” Douglas said with some emotion. “I always believed in this silent America, the true source of our greatness. This was one of the greatest events of my life.”

Douglas continued to dwell on the Rosenberg case as though lamenting a failure of the judicial process for which he felt personally accountable. The Supreme Court voted five to four to vacate the stay of execution. Thereupon impeachment proceedings were started against Douglas. The House brought the charges, but they did not pass in the Senate. He said, “All I did was stop the execution of the Rosenbergs for one day. They were finally executed by Kaufman on Friday instead of Thursday.”(3) He went on as though recalling a painful nightmare. “This is a shameful chapter in our history ‑‑ two poor ordinary people burned for their political views. Some Americans had an orgy.” His voice was slow and deliberate, spitting out the words as though regurgitating bile. “A dreadful chapter. Justice Kaufman, one of the real political opportunists, a right-winger, was rewarded for this sordid business. He was elevated to the Appeals Court. It is rumored that Nixon will make him the next justice of the Supreme Court, as payment for a frame‑up.”

Douglas sat with legs dangling by the side of the bed, compulsively talking. The room was dark, illuminated merely by the flashlight. I dared not switch on the light, fearing to break the flow of free association. Then abruptly he shifted the conversation to a remote part of the globe. He talked of having walked twenty days in Tibet, where he received shelter in a monastery. The head priest informed him that Christ had not been crucified but had come to that site, where he taught for more than a decade, wrote some commentary about the Buddha, and was buried on monastic grounds. Douglas concluded this reminiscence by musing, “Perhaps Jesus Christ was the first astronaut ascending to heaven who on returning ended up in Tibet.”

Douglas had traveled far and wide. He related his experiences in Outer Mongolia, where he admired the Mongols because they still lived in nature, ranged nomadically over great space, had simplicity, and proffered unstintingly generous friendship to strangers. While in Mongolia a doctor examined him. He listened to Douglas’s heart, took his blood pressure, tapped his lungs. The doctor didn’t speak a word of English, but as he was listening to Douglas’s lungs he’d instruct, “Say ninety-nine.” With a mischievous twinkle Douglas asked, “You doctors do the same thing. Did you get it from the Mongolians? You’ll have to explain. Why ninety-nine?”

The next morning he apologized for talking so much. He indicated that my rapt listening helped lessen his postoperative pain. Promptly, though, he resumed regaling me with reminiscences. Once more I was in the role of student scribbling away trying to capture the torrent of words.

Douglas recalled that FDR, when seeking a fourth presidential term, pressured him to be his vice-presidential running mate. Douglas accepted but the Tammany bosses of the Democratic Party wanted one of their own. They chose Harry Truman, a product of the corrupt Pendergast political machine in Kansas City, Missouri. Not to rock the boat and undermine national unity during war, Roosevelt yielded to their judgment. Several years later, Truman was running for reelection. In order to retain Roosevelt’s liberal constituency, he too courted Douglas to be his vice president. Early McCarthyism, Douglas indicated, compelled him to remain on the Supreme Court, where he was one of the swing votes in the five-to-four majority that helped to stem the tide of reaction.

He reflected on the ironies of history. Within a few months after he refused the vice-presidency, three justices died. Truman appointed Fred Vinson, Sherman Minton, and Tom Clark as their replacements. Instead of five votes for the liberal majority, the court abruptly switched to a consistent majority of seven votes supporting a conservative agenda. Douglas and Black remained the stalwart minority in opposition. “Apparently, I miscalculated,” Douglas added with a wry chuckle.

Then Douglas ranged widely, covering a host of subjects, including, for example, his admiration for gypsies: their pageantry, pride, insight, and devotion to family. When I asked which country he found the most admirable, he said Israel was second. First without a doubt was the state of Washington, particularly the Yakima Valley, where he was born.

While in Israel he had walked the length and breadth of the country. Douglas admired the people, their culture, dignity, and commitment to many principles that he held dear, “a certain blustering, rugged, tenacious individualism.” But, he said, “those goddamn Turks ruined the country” and Turkish land inspectors were “lazy bums.” To assess the land holdings to be taxed, they counted trees instead of measuring the property. The fewer the trees, the less tax one paid. Because taxes were onerous, Palestine was denuded of trees. Cutting down trees led to erosion. From 1600 to 1900, when the Turks were finally driven out by the British, Palestine lost three feet of topsoil. What had been a fertile land for two thousand years was turned into desert by the Turks in three hundred years.

Being with Justice Douglas was like being exposed to a talking encyclopedia whose pages were randomly leafed by unpredictable gusts of inner winds. He then turned to an erudite exposition on Turkish law, impressing this listener with his knowledge of esoterica. “Turkish law in many ways absorbs and imparts flavor to Anglo‑Saxon practices. If you ride a donkey,” he related, “you’re not culpable when the donkey kicks someone with its hind legs; with the front legs you are liable because you can control the front legs.” To which he suggested that there should be a law mandating a rear-view mirror on the donkey’s ass, thereby making the owner completely responsible.

Douglas had the uncanny memory of a politician. He asked what my son, Fred, was doing. The year before Fred had driven him to Logan Airport in Boston. “Has he already enrolled in the NYU graduate school in education?” he questioned. I indicated that Fred was in Washington and that he might be one of the seven thousand arrested during the mass protests against the Vietnam War. At this point the judge lurched upright, though the abrupt movement provoked pain, and commanded, “Find out if he is in jail. I’ll issue a habeas corpus for his instant release.”

He continued the disjointed monologue. He recalled that at 6 a.m. on a Monday, a law school student named Murphy had been coming to drive him to the Supreme Court. Douglas was to present his opinion on the death penalty. Youngsters in opposition to the Vietnam War were intent on paralyzing the government by blocking traffic with logs. The street seemed impassable. Murphy protested, “Hey, you guys, I’m going to pick up a Supreme Court judge.” The response was sharp, “We don’t give a damn who you’re going to pick up.” “But I’m picking up Justice Douglas, one of our guys.” “Why didn’t you say so in the first place? He’s the only decent one among them.” Immediately the word passed around to all the kids to remove the logs, in order to let Murphy be on his way. Douglas commented that he had never received more meaningful recognition.

Talking about the Supreme Court, he shifted to Chief Justice Earl Warren, an admired friend. He had recently visited Douglas all broken up. Apparently Warren went to the Walter Reed Hospital for a checkup. He was refused medical care because of orders from high in the government. Warren believed this emanated from President Nixon, who was, according to Douglas, one the most mean-spirited people ever to occupy presidential office. “Nixon never forgot a grudge.” Douglas commented on the irony that Nixon and Senator William Knowland,(4) a McCarthy supporter and one of the most reactionary of California politicians, demanded that President Eisenhower appoint Warren chief justice of the United States. They insisted, “We have got to get this man out of California. Nothing will get him out except a job on the Supreme Court.” That led to his appointment.(4) Douglas heard this directly from Eisenhower.

I asked him about President Johnson. There was a long silence, with pain marring his blue eyes. Then he burst forth. “He’s an evil man, a very evil man!” Douglas related that they had both come to Washington more than three decades earlier. Neither had a dime to his name. “While I remained poor, LBJ accumulated $20 million. In sequestering this enormous wealth he left not a fingerprint, not a trail of illegality behind.”

Douglas recalled that in 1967 LBJ invited him for supper. Nobody else was present, not even Lady Bird Johnson. “Whatever LBJ did never surprised me.” But that evening did. Douglas was taken aback by LBJ’s gluttony. “He consumed eight dishes of corn chowder, gulping in a hurry as though deprived of food for days, without slowing the flow of words.” Douglas turned to him and asked, “How could you have done it?” Meaning how could he have gotten the United States into the quagmire of the Vietnam War. Johnson responded, “The dirty commies killed twenty-one of my boys, my Marines. I will never forget nor forgive.” Douglas indicated that he was puzzled why he had been invited to this solitary meeting. As supper was about over, Johnson revealed his intent: “Bill, you’ve got to get Walter Lippmann(5) off my back. Have him stop. You help me muzzle Lippmann. Without that son of a bitch we could win the war.” Douglas was completely flabbergasted by this unreasonable, seemingly demented outburst.

Douglas recalled the very last time he visited LBJ in the White House. The purpose was to gain presidential endorsement for a small conservation project in the state of Washington. To simplify the matter, Douglas brought a single-page outline. He handed it to LBJ, who merely glanced at it with contempt and asked, “Are you interested in this?” Douglas responded affirmatively. Whereupon LBJ crumpled the page and threw it in the wastebasket. Then in a raucous, angry voice, “Mr. Justice, when the last trumpet call sounds, I guess you will still be yelping about liberty and justice for all.” Douglas stood up and said, “Mr. President, you’re goddamn right,” and stalked out of the White House. They never met again.

When asked about Jack Kennedy’s assassination, he grew restive and uncomfortable. Douglas indicated that Johnson was capable of anything, but that he didn’t believe Johnson was implicated. LBJ, according to Douglas, represented part of a parvenu class of Texans who were completely unscrupulous, greedy for power, arrogant enough to dwarf the Alps, and lacking any shred of moral scruple. Douglas felt that Johnson deliberately undermined Hubert Humphrey’s presidential campaign and thereby helped elect Nixon. “Johnson and Nixon were very much alike.” Douglas recalled that Nixon entered California politics by running for Congress against incumbent Jerry Voorhis(6) in one of the most sordid national campaigns ever witnessed. Nixon hired several hundred derelicts, long‑haired, unshaven, dirty men, with thick accents. They went door to door pretending to be Russian Bolsheviks seeking support for Voorhis on behalf of the Communist Party. This ugly smear was launched during the last week of the campaign. It was brazen, outlandish, criminal, and yet effective, and that is what mattered to Nixon.

Douglas continued, when Nixon was running for the Senate against Helen Gahagan Douglas(7), he faked a photograph of her embracing Earl Browder, head of the American Communist Party. When Douglas’s impeachment procedures were started in Congress, he received a note from Nixon ‑‑ the only note he ever received from the president. It said: “Dear Justice, I’m opposed to these proceedings.” Douglas remarked he had never thought Nixon was behind the cabal until that moment. To confirm his suspicion Douglas turned to Earl Warren, three times governor of the state of California before becoming chief justice of the United States. He was therefore very familiar with Nixon’s political antics. Douglas showed him the note without comment. Warren’s unprompted response was, “I guess Nixon launched this dirty business.”

Douglas then shifted direction, recalling a visit to Yale to address law students. They were bubbling with youthful enthusiasm about the privilege of being in this “august university,” about the exceptional legal education they were obtaining, about the absolute academic freedom that prevailed. Dismayed by these arrogant pretensions, Douglas asked, “Supposing an assistant professor [this was in 1965] urged that China be admitted to the United Nations. Supposing he launched a campaign to achieve this goal. Would he have a chance of being promoted to full professor?”

They responded, “Of course not.”

“Then what the hell is the academic freedom you talk about? Supporting the establishment provides no proof of academic freedom.”

For an hour he railed against, provoked, and berated the students. Douglas indicated little respect for their fathers, naming specific individuals who were bank robbers: bandits who had become tycoons of industry. For what they lacked in principle, they made up in daring, Douglas told them, but “you are merely second-rate milquetoasts.” When he finished an hour of this, there was a standing ovation. He shrugged, “What do you make of this behavior?” I was not sure whether he was referring to his own provocations or to the students’ seeming to relish being pegged as second rate.

Early in 1972, having to lecture in Washington, I informed the justice of my visit. Douglas insisted on sending a car to pick me up at National Airport. It turned out to be a limousine of the chief justice. I came directly to Douglas’s chambers to examine him, and then we talked for about an hour. He went back in time, roaming freely over his humble beginnings, of having tasted poverty, of having been exposed to much misery that made him into ” a lifelong uncompromising radical.”

“This system,” he bristled with contempt (I presume meaning capitalism) “is corrupt from top down. The higher you mount, the more jaded and self-righteous it is. It has mastered the art of socializing losses while capitalizing gains.” His outspoken, uninhibited radicalism startled me. “Your place must be bugged,” I blurted out. “Why would they want to do it?” he replied. “I have made no secret of my beliefs or where I stand.”

I scribbled copious notes. Some of these are now hardly decipherable. Justice Douglas emerges as a loner not a team player. One is reminded of Gary Cooper in the great western movie High Noon. He was a fearless, radical maverick with features of honest Abe Lincoln. Unswervingly principled, painfully candid, totally lacking in affectation or pretense. Such types are still encountered in the Northwest but are largely lost in the East. He was absolutely intransigent in pursuing his ideas and in adhering to his beliefs. For him, the Bill of Rights was the people’s charter, a holy of hollies, not to be tampered with by government. Douglas contributed to epochal shift in our constitutional law.  He extended the “zones of privacy.” Among these were the rights to intimate matters of sex and procreation and defending a beleaguered outdoors. He pioneered the field of legal  environmentalism.  Douglas  was an awesome, inspiring figure. Encountering one such person  permanently adds meaning and hope to our meager lives.

What about the questions that ignited my youthful wish to converse with a Supreme Court justice? Douglas evaded talking about those two cases, that of the Jehovah’s Witnesses and the internment of Japanese Americans. I will not speculate why he demurred. No doubt, if pressed, he would have acknowledged that his position had been unprincipled.

Now, forty years after my conversations with Justice Douglas, the Roosevelt Supreme Court(8) appears to have been occupied by judicial giants committed to advancing democratic institutions. The present composition of the court is far to the right. In the recent Citizens United ruling, the Roberts court went beyond affirming that a corporation is a legal person with constitutional rights. It established that corporate money is equivalent to political speech and may be spent without limit to influence electoral campaigns. In fact it sanctioned the right of corporations to buy the government. As politics is largely the struggle of how to distribute the economic product that society creates, this decision will further siphon wealth to the moneyed elite.

The Roberts court rulings propel an economic trend initiated under President Reagan and thereafter continued under every White House occupant whether Democrat or Republican. As a result Americans are experiencing economic inequalities not witnessed in nearly a century. According to Nobel Prize economist Joseph Stiglitz,(10) the upper 1 percent of Americans are now earning nearly a quarter of the nation’s income annually and control 40 percent of the nation’s wealth.

Were Justice Douglas still with us, he would indubitably rail against the legal perversity of transforming inanimate corporations into a golem personhood that disfigures the face of America the Beautiful. Yet he would not have been surprised. In our conversations, he anticipated that the backlash against Roosevelt’s New Deal would continue until the last vestige of it was erased. Douglas’s dark vision was also coupled with a conviction that the American dream could not be readily vanquished. His optimism derived from a belief in the power of the multitudes who had partaken of this dream and found it to their liking.

 Notes

1. Part of my family emigrated to the USA in 1935. At the time the Hitlerites were already threatening to invade Lithuania, which transpired six years later.

2. When quotes are used, it represents Justice Douglas’s exact words. Otherwise these are approximations of what he said deduced from my notes.

3. Judge Irving Kaufman served as a judge in the U.S. District Court for the Southern District of New York. He presided in the trial of Julius and Ethel Rosenberg for espionage and imposed a death sentence. In this judgment he was guided during secret meetings with Roy Cohen, one of the prosecutors.

4. In the Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, by Noah Feldman, a different sequence of events is offered. In the 1952 Republican National Convention, Earl Warren, “who had his home state’s  ‘favorite son’ support, directed the California delegation to cast its votes for Eisenhower, assuring his nomination on the first ballot. Rumor had it that Warren demanded the chief judgeship in return.”

5. Walter Lippmann (1889-1974), twice Pulitzer Prize-winning journalist and syndicated columnist, was one of the most influential political commentators in the United States.

6. Jerry Voorhis (1901-1984), an educator who devoted his life to mitigating the lot of the underprivileged, served as congressman from 1936 to 1946, when defeated by Nixon.

7. Helen Gahagan Douglas (1900-1980), movie actress and politician, served three terms in the House of Representatives for California’s 14th Congressional District. She was defeated in the 1950 race for the Senate by Nixon.

8. President Roosevelt nominated nine justices to the Supreme Court: Hugo Black, Stanley Forman Reed, William Douglas, Felix Frankfurter, Frank Murphy, James Byrnes, Robert Jackson, Harlan Fiske Stone, and Wiley Blount Rutledge.

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