U.S. Supreme Court Justice William O. Douglas built a legacy of strong progressive and libertarian views. Nominated by President Franklin Roosevelt, he was confirmed in 1939 at age 40 and served until 1975 — the longest tenure of any associate justice.
Law students get to know Douglas well because he turns up in many of the most famous cases of the 20th century. He wrote for the majority in blockbuster cases such as Griswold v. Connecticut, which established the right to birth control, and Brady v. Maryland, which established that the prosecution must turn evidence that might exonerate a defendant over to the defense team. He also penned withering dissents, particularly in a string of First Amendment cases, including United States v. O’Brien, Terry v. Ohio, and Brandenburg v. Ohio.
During his storied tenure, Douglas was also a fierce advocate for the environment. In this episode, Berkeley Law Dean Erwin Chemerinsky talks with Judge M. Margaret McKeown, who’s just published a fascinating book, Citizen Justice: The Environmental Legacy of William O. Douglas — Public Advocate and Conservation Champion. She explores Douglas’ activism and the ethical questions it raised that still haven’t been fully resolved.
Judge McKeown was appointed to the U.S. Court of Appeals for the Ninth Circuit by President Bill Clinton and confirmed by the Senate in 1998. She recently took senior status. She is a member of the American Academy of Arts and Sciences, an affiliated scholar at the Center for the American West at Stanford University, and jurist-in-residence at the University of San Diego School of Law.
More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at email@example.com and tell us what’s on your mind.
ERWIN CHEMERINSKY: Hello, listeners. I’m Erwin Chemerinsky, Dean of Berkeley Law. And this is more just a podcast about how law schools can help solve society’s most difficult problems. In this episode, I have the enormous pleasure of talking to Margaret McKeown, who’s just published a fascinating book, Citizen Justice, The Environmental Legacy of William O. Douglas, Public Advocate and Conservation Champion.
Doing a storied tenure is one of the Supreme Court’s most liberal-leaning justices. Douglas was also a fierce advocate for the environment, in a wonderful book that McKeown explores about activism and also the ethical questions it raised. These haven’t still been fully resolved. Judge McKeown was appointed to the United States Court of Appeals for the Ninth Circuit by President Bill Clinton, and confirmed by the Senate in 1998. She recently took senior status on that court.
She’s a member of the American Academy of Arts and Sciences, an affiliated scholar at the Center for American West Stanford University, and Jurist-in-Residence at the University of San Diego School of Law. Thank you so much for joining us. Judge McKeown, I thought this book was terrific. And I learned an enormous amount from it. Why did you decide to write it?
MARGARET MCKEOWN: Thanks, Erwin, and it’s great to be here. Well, actually, part of writing it began soon after law school. While I was in law school, Douglas of course, was a hero to those interested in civil liberties. And he died about five years after I got out of law school. And had a very important part of his life, which was a cabin in Washington State. So a group of Seattle lawyers got together and thought they should buy the cabin and make it a historical place.
And of course, there were two problems. Number one, the cabin wasn’t for sale. And two, we had no money. But I have this enduring interest in Douglas. And then a kind of serendipitous event led me to write the book. I was born in Wyoming. I’m a native of Wyoming. And I was out snowshoeing in a national park, at Teton National Park.
And I ran across a homestead that I wasn’t familiar with. So I was contemplating what to do. The snow was up to the roof of the cabins, when somebody came out. And I said, where am I? And he said, you’re at the Murie Ranch. And I said, oh yeah, I know, John Muir. And he said, no, no– Murie, M-U-R-I-E. I then became acquainted that the Muries were early day conservationists, and learned from their archives that they had a relationship with William O. Douglas.
So I thought that was interesting that the somewhat humble conservationist, although he was president of the wilderness society, knew William O. Douglas. So I began to track it down, spent some time at the Library of Congress. And I was really on a lark. But the more I researched, the more interesting it became. And so what started as a lark turned into a book.
ERWIN CHEMERINSKY: Why of all the areas, do you focus on his environmental work? Most people would think of him as a civil libertarian. Why this is the focus?
MARGARET MCKEOWN: This became the focus because he was so integral to the conservation movement starting in the 1950s. And he was very closely connected with this couple that I mentioned, Olaus and Mardy Murie from Wyoming. So through The Wilderness Society, the Sierra Club– all a number of local environmental and conservation groups, Douglas became rather a bandleader for conservation.
So because it was one of his passions, both on and off the court, I began to explore that aspect and realized that there was an important story to tell. There is also extensive documentation in his papers and other archives around the country, about the role he played in conservation. So not only was he a bandleader in general, but he targeted specific areas to save, and to champion– to save from destruction or degradation.
So it seemed to me, the environment was one of his primary purposes in life. And he often said that he had two primary goals. One, that he wanted to save wilderness because once it was gone and vanished, it couldn’t be recouped. And then his other overriding or overarching principle was that he viewed the constitution as an instrument by which it would take the government off the backs of little people. So those two themes, I think, resonate both in his off the court work and also obviously, his work throughout his time on the Supreme Court.
ERWIN CHEMERINSKY: Really interested to start with, in his off the court work. Are there some prominent examples you’d identify of his work as a conservationist, when I think also of your discussion with regard to his work for Alaska statehood?
MARGARET MCKEOWN: Sure. The first of these, I think of as the C&O Canal in Washington DC. And those who live in Washington and visit are very familiar. And at the Georgetown terminus, there’s now a very prominent bust of Justice Douglas. What happened in 1954, is there was a proposal by the Park Service to build a road into the canal, for better access. Washington Post thought that was a good idea, wrote an editorial.
Douglas was outraged. And he wrote an editorial back that said, this was a place of sanctuary and protection, and that they should not put a road in. So he challenged the editors of the Washington Post to come with him on a hike, on the C&O Canal. Now, the hike was 189 miles. And they didn’t really make it– 189 miles, that is the editors. But nine people made it, including Olaus Murie and Justice Douglas.
And when he finished the hike, to much publicity, he formed a group. And this became a– his MO and how he did his advocacy. He formed a group dedicated to preservation of the canal. He became the head or chair of the group. He then enlisted grassroots citizens to lobby. And then he went affirmatively to lobby the Interior Department Park Service and others.
And ultimately, it became a National Historic Park. The Park Service says it’s the only national park that was walked into existence. So that’s a very prominent one that we think of. And one that people often identify as an important place in America’s conservation.
ERWIN CHEMERINSKY: Could I pause there? I want to go through the examples you just mentioned of what he did. He wrote an op-ed, he formed a group, he recruited people to join the group, and then he engaged in lobbying. And I want to stress, all of this was while he was a Supreme Court justice. Is that appropriate for a justice? You write at one point in the book, that Douglas defended his colleagues for leaning over backwards to observe the appearance of propriety as well as practice itself.
But his was a more flexible vision. You write, he vocally objected Supreme Court proposals to impose internal rules that would chip away the justice’s freedom. What about those things that you just described? Should we be troubled, looking backwards at them?
MARGARET MCKEOWN: Well, when you look back at history, of course you have to look at the period in time. And there wasn’t anyone else that was doing those precise things. And we can talk, if you wish, later about what some of the other justices were up to. But there was no particular ethical rule that would have precluded him from doing this. But one might wonder, once he got not so much into his passion for this particular place– but his actual affirmative lobbying. Whether it was mixing and matching, and his role as a justice, and the separation of powers.
Because we think, of course, that the executive agency like Interior Department and under it, the Park Service was really responsible. So I think it was unusual for a justice to write an op-ed, or at least a response to an op-ed. And it was probably, also very unusual that he embarked on this campaign. But as I do demonstrate in the book, he was a very unusual justice.
ERWIN CHEMERINSKY: That’s fair. And of course, since then, it’s become much more common for justices to speak out. We’ve seen that recently, with a number of the justices giving talks. And yet it still would remain unique or at least, quite unusual to form a group, to recruit people, to lobby. I’m interested in– you’ve been a judge a long time. How as a judge did you react to reading about his doing all of these things? Was there a sense that you were looking at it as no, this was inappropriate? Or just, well, it’s an interesting set of things that most don’t do?
MARGARET MCKEOWN: I think there’s some of both there. Of course, my perspective is as a judge, looking at the contemporary ethical standards. And this is a historical example of a very different justice, but one who was operating in a different time. He also was very interested in politics. And I think one of the reasons he moved toward all of his conservation work is that by the 1950s, his prospects for political office had faded.
And he had had a major horse accident, broke 23 ribs. So he was in the hospital quite a long time and recovering. And he wrote one of his major books, Of Men and Mountains, which is kind of a soliloquy to the beauty and passion he has for mountains. So at this time in the early ’50s, I think he realized that he would probably not be in national office.
So it was ironic because in the ’40s, he was considered as a possibility for Roosevelt, to be a vise president. Truman of course, was the other major contender. And we know that Truman won out. And although Douglas– during these periods of political involvement, expressed some disdain or what one might call distance from the political arena, he did have a telephone hooked up from a cabin in Oregon to the post office or somewhere, where there was a real telephone during the Democratic Convention.
So he didn’t become the vise president. And then fast forward, when Roosevelt died, Truman became president and asked Douglas to be his vise president. Now, rumor has it that Douglas then said no. Why be number two to a number two? And he did not become vise president. And that’s when I think, during this whole evolution, that the environment– which really had been a passion since he was a child; the woods, hiking, the outdoors. He really went into it full tilt.
ERWIN CHEMERINSKY: Part of that was his advocacy for Alaska statehood– was an involvement with Alaska. I’d be interested in your thoughts about that. And again, whether you saw anything of concern from an ethical perspective.
MARGARET MCKEOWN: Actually, before Alaska statehood, he then joined the Muries on a scientific expedition to Alaska. Their expedition lasted quite a while. But Douglas and Mercedes, his second wife, joined him in Alaska. And he’d been very interested. He’d been to Alaska before. They were very concerned, that is the Muries, with the Arctic. And concerned that oil and gas drilling and other exploitation could really undermine the Arctic as a pristine environment.
So Douglas upon returning from that trip, wrote a chapter in one of his books about the Alaska and how important it was. And I don’t think there was probably anything unethical about that. He was really reporting on a very special place, not yet part of American statehood.
It was said that he also lobbied behind the scenes in Washington. And Douglas Brinkley said that negotiating with Douglas on these issues was like shaving with a blowtorch. So he could be an aggressive, and I think, both impressive and effective advocate. And some of the Park Service said, they don’t believe it would have come about that the Arctic in that period of the late ’50s would have been preserved and saved, had it not been for his behind the scenes advocacy.
So at this point, I think he’s seeing himself as an important figure in the conservation movement. And the movement is also seeing him as someone who can be their spokesman and who can also be very effective in telling their story.
ERWIN CHEMERINSKY: One part of the book is we talk about his involvement with the Sierra Club. And I found this fascinating in terms of what he did. But also, again, it raised questions for me about a sitting justice being so involved with an advocacy group.
MARGARET MCKEOWN: I think it was a little unusual. He was on the board of the Sierra Club in the early ’60s. And ultimately, he resigned from that board. But he did continue to work with them on different projects. And he also continued to join them in various protest hikes. For example, one involving the Red River Gorge in Kentucky, which was ultimately saved from being dammed. So he was involved with them certainly, behind the scenes.
But the most prominent time really came when he was on the Supreme Court panel for the case of Sierra Club v Morton, which many law students know and remember because of its importance in the standing doctrine. But we also remember that it is designated in his very mellifluous dissent in that case as, do trees have standing? So there was definitely gossip around the court, according to the clerks and the justices as to whether he should sit on the case, given his prior relation with the Sierra Club.
He was still a lifetime member at the time the case came to the court. But he wrote a letter to the Sierra Club and said that he would like to be relieved of his lifetime membership. Because it’s possible that a case– and he was not thinking of any particular case, he said– could come to the court, that would involve the Sierra Club. So he then resigned even from his lifetime membership. But that didn’t stop the scuttlebutt of whether he should sit on the court. But he considered the issue and ultimately decided that he could sit on the case.
ERWIN CHEMERINSKY: For those who are listening, who aren’t familiar with the case, it involved Disney wanting to build a ski resort in a beautiful area known as Mineral King valley. And the Sierra Club sued to stop construction. And the Supreme Court ruled that the Sierra Club lacked standing because it failed to allege that any of its members had ever used Mineral King. And this is a case that’s seen as establishing, under the Administrative Procedure Act. And more generally, that a person must have a personally suffered injury in order it has standing.
And as you point out, Justice Douglas in his dissent takes words from an article by a USC Law Professor Chris Dolan. Which was an article titled, Should Trees Have Standing? I especially enjoyed this part of the book. I was on the faculty at USC and a colleague of Chris Dolan’s for 21 years. And it was perhaps for all of his writings, which Chris was most known for.
And it obviously, had real appeal to Justice Douglas. You talked about how he reached out to the law review to try to get a copy of the paper. This was before you could just send it by email or text. And yet this idea of [INAUDIBLE] I don’t think Douglas ever returns to it in his other opinions. Does he?
MARGARET MCKEOWN: He doesn’t, specifically. Although it’s interesting because if you read his other writings, this would not be a novel concept for him. And as he writes in his dissent that the area you’re protecting; a river, a wilderness, a mountain, forest, is really the area that’s damaged. And since ships are inanimate objects and can have standing, why not these particular? So, no.
I think it is important to note though, that the idea isn’t wholly from the Stone article. Albeit during their exchange, Stone kind of bootlegged the copy of the article to Justice Douglas through a USC law clerk. But interestingly– and this may focus, when we think about– when we read dissents. That dissents as Justice Ginsburg often said, is writing for the future.
And the notion of nature’s rights did have some legs after this dissent. Not so much in the United States, although there are municipalities that give nature standing in effect. But it also comes up in the constitutions of other countries. And more recently, the New Zealand Government reaching a pact with the Máoris, in effect to give a river and a mountain its own standing and effort.
So he has a downstream effect, if you will, in this particular dissent. And it’s one in which he incorporated the writings of a number of conservationists and those connected with the land, like the Sand County Almanac. But that also reflected his writings as well and reflected thoughts he had before.
And this really was– in my view, this was a case made for Douglas and Douglas was made for this case because it really brought to the fore his personal connection about the importance of the environment. And it also gave him an opportunity to showcase not just the specific legal principle but some of his concerns about what the federal government was doing in various wilderness and other areas.
ERWIN CHEMERINSKY: And perhaps there’ll be a time when the Supreme Court revives and implements the idea of allowing trees or streams to have standing. One of the things that you talk about in the book is how Douglas didn’t forge coalitions or close relations with other justices for the most part. That I think at one point you talk about, Justice Douglas saw his role as doing what he thought was right rather than trying to put together the coalition in the way that Justice Brennan was famous for.
And yet in the Sierra Club versus Morton– and in a later but soon case, SCRAP versus the United States. Justice Douglas very much praised Justice Blackmun for his environmental positions. And some believe that Douglas doing that, helped to lead to an ideological transformation that we saw in Blackmun. So this seems an example where he was trying to forge a coalition or at least, that had the effect of doing so.
MARGARET MCKEOWN: I think that’s right. Obviously, his dissents in terms of number are staggering. He wrote 524 majority opinions and 486 dissenting opinions. So that is quite a record even for someone like Douglas, who is the longest serving justice– 36 years, even today.
But he did try to bring along others and of course, in the First Amendment area. And he was aligned with Black– Justice Black on a number of occasions. And Justice Blackmun, they were aligned on a number of occasions. So I think his approach was that he didn’t necessarily build the coalition like some justices try to do.
And you might argue that he really forewent an opportunity by going it alone. He once said, the only soul he had to save was his own. But I do think in many respects, he felt he was also saving the soul of the nation– the soul of the country by the various opinions that he wrote.
ERWIN CHEMERINSKY: Just this morning I was teaching Terry versus Ohio in my criminal procedure class. This is the case where the Supreme Court said that police can stop and frisk with just reasonable suspicion, not needing probable cause. Justice Douglas was the sole dissent in that case. It was an 8 to 1 decision. As I said to my students, this was the moment when the Supreme Court was the most liberal in all of American history.
The majority opinions written by Earl Warren, it includes William Brennan and Thurgood Marshall. And Douglas alone says that giving the police this power will lead to racial profiling and undermine civil liberties. So that seems a good example of exactly what you’re saying of, he went his own way. And unfortunately, history has shown that what he predicted has come true.
MARGARET MCKEOWN: Well, he in many respects was ahead of his time. That’s a good example, where he talks about racial profiling. And it’s consistent with his theme of constitution– getting the government off the backs of little people. I would say, he was also ahead of his time on the environment. He was like a canary in the coal mine. He warned against the dangers of pollution, the dangers of pesticides, the concerns about building dams, and the impact on the fisheries. So there were a number of areas.
Another one was that he felt that the whole administrative process should be more transparent. And today it is, in fact, more transparent than at the time. So he saw a number of issues. Some said he was a genius and he had an amazing intellect. So he was thinking beyond the individual case, for sure.
ERWIN CHEMERINSKY: I want to talk about a couple of criticisms that are raised of Douglas. You certainly touch on them in the book, but I think it’s worth our talking about them. One is that people have often criticized some of Justice Douglas’s opinion for sloppiness. I’ve often said in teaching, Griswold v Connecticut, that he gave a very poor foundation for the right to privacy.
Griswold of course, is the 1965 decision that said that there’s a right to purchase and use contraceptives. He located the right to privacy in the penumbra of the Bill of Rights. He said it’s from emanations that come from the amendments, not from the liberties of due process clause. Many ridiculed that.
And he said, we wouldn’t want the police to search the marital bedroom for telltale signs of the use of contraceptives. And that wasn’t what the case was about at all. And there’s nothing in it about reproductive autonomy and controlling whether to have a child. Whether it’s that case or more generally, is the criticism of his– some of his opinions for sloppiness a fair criticism or an unfair one?
MARGARET MCKEOWN: I think it’s hard to generalize because there are a number of his opinions that really wouldn’t fall in that category. Some said some of his opinions were airplane specials, which he dashed out as he was flying from Washington to his cabin in Washington State.
But you have to remember that– take Griswold v Connecticut. That was a 7-2 decision. And his real point I thought, was saying that there are rights that extend beyond those articulated in the constitution. And he went ahead and gave a number of examples of peripheral rights from the First Amendment. So I think what is sometimes ridiculed are the words penumbra and emanating.
But he was grounding his decision in prior decisions of the court, where there were peripheral rights in the First Amendment. And then he named other amendments where things could also be found. And of course, there was a concurrence by Goldberg, which landed on the ninth and the 14th. And another two concurrences really focused on the 14th. But their fundamental premise was the one that Douglas had articulated. And that was that the interpretation was not bound by these enumerated rights.
So he laid out the foundation. I think he certainly could have been more extensive, but his colleagues backed him up on the basic premise. And I also think if you look at his dissent, for example, in Sierra Club v Morton. Although he wrote that in a couple of hours after the argument, which is amazing. He really lays out a real rationale for rights of nature there.
And I think a funny story is that– particularly from a law student’s perspective, is there’s always the question, are the footnotes important in cases? And in that case, Douglas wrote the opinion. And then he asked his law clerk– who at that time was Bill Alsup, now senior judge on the District Court in the Northern District of California. He asked him in effect to fill the footnotes in backwards.
So while Douglas might rail about the Forest Service, or talk about the importance of wilderness, or talk about what it means to have a river to have standing– now, Judge Alsup was handed the difficult task of, OK, find the support for these things. So Douglas definitely wrote from the heart there. But there are a lot of footnotes too.
ERWIN CHEMERINSKY: This part of this book, I know you immersed yourself in Justice Douglas’s opinion. If you were to pick one or two opinions beyond the ones that we’ve discussed so far, that you think are most memorable. Which would you pick? I certainly have ones that come to my mind. But I’m interested, you having studied him, what you would choose.
MARGARET MCKEOWN: Right. Well, I want to say that I did not by any means make out that I am the expert on Justice Douglas. There’s a number of full biographies written. And I really only focused on his environmental cases. But you of course already mentioned a dissent with respect to the stop and frisk in Terry. And I think that’s an important decision in terms of looking forward.
But the other decisions that I think are very interesting are the ones related to the Indians, as they’re called in the statutes, and fish. Because those showed a collision between two of his interests. He was very supportive of Native Americans. But he was incredibly supportive of the environment and the rights of the fisheries. So I think he would, if push comes to shove, basically tip toward fisheries in those cases. So I think those are really interesting cases.
But then I think there’s another really interesting case involving a dam on the Snake River. In that particular case, there had been a permit granted to put yet another dam on the Snake River. And in a somewhat unusual opinion, that included all the flowery language about dams, and fish, and the environment. It was the first time the court had basically reversed an administrative decision to affirm or uphold a dam. And they sent it back and said, you need more justification. So when he got into the weeds so to speak, or the rivers, or the dams, I think that’s where he shines particularly.
ERWIN CHEMERINSKY: I would add two examples. Of course, the ones I know best are the constitutional ones. He wrote the opinion in Skinner versus Oklahoma in 1942, that declared unconstitutional an Oklahoma law that said, anyone convicted three times of a crime involving moral turpitude, be involuntarily sterilized. It follows 15 years after, the Supreme Court in Buck versus Bell had upheld an involuntary sterilization statute. And Douglas’s writing in that case is so eloquent. And it was obviously in the face of what was going on in Germany, in Nazism.
The other is I think of him as such an ardent advocate of free speech rights– as close as there’s been, other than just Black, to an absolutist with regard to speech. His dissent in Dennis versus the United States, where the Supreme Court upheld convictions of individuals, just for teaching works of Marx and Lenin Engels. And it was such an eloquent statement against the McCarthy era, at the moment in time where it was so important.
MARGARET MCKEOWN: I think those are two great examples. And both of them really go onto his theme of the constitution– getting the government off the backs of little people, whether it’s in vagrancy opinion, or of course the sterilization, or in the speech. He really did have a consistent theme in his court cases, that you see come through regardless of whether it’s a Fourth Amendment case, it’s a constitutional case under the First Amendment, or some other amendment.
I think he was really seeing, what is the role of the constitution? And he wrote a number of books. He wrote 50 books or one if you can imagine. I think you may well have written 50 books–
ERWIN CHEMERINSKY: No, no. Not even close.
MARGARET MCKEOWN: –but [INAUDIBLE] nobody writes 50 books–
ERWIN CHEMERINSKY: Not even close.
MARGARET MCKEOWN: –except some various romance authors, who are also quick writers. But he was a quick writer. And he did his conservation efforts at the same time he was writing books and writing in magazines, including Playboy. So he was an incredibly prolific thinker and writer.
ERWIN CHEMERINSKY: I want to go back to a time in terms of ethics, were there any ethical issues raised by the books? I mean, some of the books were a basis for then Congressman Gerald Ford, wanting to impeach him for his hippie-yippie writings. I think that is a direct quote from Gerald Ford.
MARGARET MCKEOWN: Right.
ERWIN CHEMERINSKY: Is there a problem– I mean, not many justices have written books while on the bench, but some have. Justice Breyer wrote a number of books on the bench. Justice Ginsburg published a collection of essays, while on the bench. Justice Scalia published a book on constitutional interpretation and statutory interpretation. But no one’s ever published like Justice Douglas did while on the bench.
MARGARET MCKEOWN: That’s true. I told you, he was an unusual justice. But I don’t think that the books in and of themselves posed ethical issues. Certainly, Congressman Ford was upset with Douglas for many things including his four wives, his hippie-yippie views, et cetera. But his efforts to impeach him related to receiving money from a foundation in which they were promoting democracy. And of course, the effort was not successful.
When reporting started about what the justices activities were and also federal judges, he objected. And he said, why do you want to know where I got money for writing a book or a magazine? Why don’t you look at stocks? And I don’t own any, but why don’t you look at stocks that various judges and justices have? So he was critical of the way the ethics were being framed in terms of the rules at the time.
And his books actually were an important source of income for him. He did have some alimony issues in the books and articles, for which he actually got paid post that. Now, whether publishing on Playboy would be some violation of ethics directly, it might not be. But certainly, one might raise the issue of whether it undermined the dignity of the court. His view would be, well, that’s what young men read. And that I’m also trying to reach women and others in Good Housekeeping and [INAUDIBLE] journal. And this is just an analog.
So he had a justification for everything he was doing. But I don’t think the publication alone is something that would really draw ethical ire. And he was also one of the first justices to be on TV. He was on an old show called What’s My Line? And then he was also interviewed a number of times on TV. That was unusual back then. But as time has gone on and we know now, it’s not at all unusual to see a justice on a talk show, or on C-SPAN, or some other medium.
ERWIN CHEMERINSKY: The other question that I’m interested in your thoughts about is how he treated others. There’s been certainly, discussion about, he’s sometimes treating law clerks in an– and their word is unkind, maybe an abusive way. There’s a book called Wild Bill that presents some of this.
And I have to say, I’ve talked to some who had clerked for him. Some of whom speak of it in the most glowing terms. Some are less generous towards him and how he treated his clerks. You’ve had many, many clerks over the years. Do you have a sense of is it a fair criticism of him?
MARGARET MCKEOWN: Well, I think it is a fair criticism. I’ve had close to 100 clerks. And I hope they wouldn’t be saying those things about me, which some of his clerks say about him. I interviewed as many clerks, still living, as I could. And there really was a dichotomy. He had a mean streak.
For example, he would fire clerks. And then his judicial assistant would say, just come in tomorrow, he won’t say anything, and you’re not really fired. Well, that is a very unusual and improper way to treat a clerk. Another case was a clerk supposedly wrote in a law book. And Douglas took it and threw it out the window. And they’re so heavy, they could kill someone if you were standing below. So he had some of those tendencies.
But I would also say, he had very close and positive relationships with a number of other people. Charles Reich, who wrote Greening of America, was one of his hiking partners and kind of muse to him. The Muries, for example, they idolized each other. And Douglas was very sensitive. He would visit their ranch in Wyoming. And then he would leave $1.25 and say, I used your telephone. So I wanted to pay for this.
And so there were many others. For example, he lived next door to two women who owned a Dude Ranch. They called them the Double K girls. The Forest Service called them the blister sisters because they, along with Douglas were very fierce advocates for the environment. So that and his wife Cathy, still living today, speaks so fondly of him and that relationship.
So I think certainly, with those in the conservation movement, he had a special relationship. And you never saw these complaints. I was fortunate enough to go, what– some have said maybe the last reunion of the Douglas’ clerks, several years back. And a number of them expressed as you indicate this rather reverent and admiring view of him, both as a justice and as a mentor.
He told his law clerk something. I think is really great advice. He said, get out in the stream of history and swim as fast as you can. And a number of them have, of course. They are finding themselves as law professors and in other positions. But he had an affection for those law clerks. And especially as he was dying, the number of them that came back to be by his bedside.
So he’s a complicated person. And I don’t think you can label him completely as Wild Bill did– the book, to having an erratic and negative personality. Because I saw many other examples of it, of where he was really admired and had a great relationship with people. So he’s not a one-size-fits-all justice in any respect.
ERWIN CHEMERINSKY: He left the bench, by my count, about 47 years ago. And he had been on the court during its most liberal era. He was on the court as it was transitioning to more conservative time, but nothing like it is today. What do you think his lasting legacy is for the law?
MARGARET MCKEOWN: Well, I think his lasting legacy really is in two parts, just like he lived his dual life. There is a legacy on the court. For example, the dissent in Sierra Club v Morton. There is a legacy in his other dissents, calling out social and environmental issues. So I think he will continue to be known for that. And he’ll continue to be known for his First Amendment, and his Fourth Amendment, and civil liberties cases.
On the environmental side, I think you could say that trees are still standing, rivers are still running, wilderness is preserved, all because of Justice Douglas. And Congress recognized that too because after he died, Congress created the William O. Douglas Wilderness. Which is in Eastern Washington, not far from Goose Prairie, where he had his cabin. And so he has saved a number of places physically, in the United States. And I think the other legacy that will live on is his enduring commitment to conservation and to wilderness.
ERWIN CHEMERINSKY: Is there anything you really wanted to talk about in the book, that we didn’t have– get a chance to get to. I know we had a limited amount of time. But if there was any major theme that I didn’t ask you about, certainly I want to give you the chance to talk about it.
MARGARET MCKEOWN: Well, I appreciate that. No, you really have hit on the major themes. When I embarked on the research, I didn’t know where it would end. I actually thought I might do a book about the Muries, but I found Douglas such a fascinating character. And he was a packrat. I mean, everything from his Christmas cards to the drafts of his opinions– you can go through in the Library of Congress. And I worry, what will happen in the digital world, where you can compare the various drafts on big yellow pads? So I think Douglas left us also this physical legacy of his time on the Supreme Court.
And I looked at some of the other justices’ archives as well because they’re such a treasure trove of how decisions are made. And you can really trace from the time of the briefs, to the argument, to the conferences, or even back to the granting of cert.
And one thing I’ll say about Douglas is he was kind of terse. He didn’t go on and on like Justice Frankfurter might have done. When he wanted to accept a case for cert, he would say, yes. He would accept it or decline. But when it came also to talking about the case in conference, he also wasn’t particularly loquacious at that time. He stated his opinion and he moved on. So I think Douglas has left us a very interesting figure to think about what he did for the environment, and how he did it, and whether there’s ethical concerns. But he also left us a legal legacy as well.
And really, it was my privilege and pleasure to have stumbled on to the topic and to have had the privilege of meeting so many former clerks, legal scholars, and others. That the book turned out to be not just an endeavor to write a book but really, an interesting passion. And I had a great time. Covert was helpful and that we were trapped at home. I couldn’t even go to the forest, which was closed, outside San Diego. Or the beaches, which were closed. So I stayed in my home office and wrote the book.
ERWIN CHEMERINSKY: I want to ask one last question. The focus of this podcast series is on how law schools can make a difference. And I’m interested, given your work on Justice Douglas, what lessons can be drawn for what law schools should or shouldn’t be doing from Douglas’s life and legacy?
MARGARET MCKEOWN: Well, the first thing that they should be doing is exactly what you’re doing, and that is teaching historical cases because we learn so much from those cases. And often, when judges and justices are writing now, we go back to those landmark cases for our fundamental principles. And I find it really interesting to focus as you did, on the dissents, in some of those cases. And that’s an important role, I think, law school can teach us. What is the value of the dissent? And also what’s the downside of dissent? There’s always a conundrum in that.
And the book really, I think, underscores the importance of history. And not just looking at a current or contemporary slice of life, where is the court today? Where will it be going? Where was it 10 years ago? But let’s look at the 20th century and see how the American Law has evolved. And I find that particularly interesting, when teaching overseas in a civil law country where they don’t have precedent. So this incremental precedent and its evolution, I think, are fundamental to teaching.
And finally, I think it’s important for law schools or law students to think about how important it is to have a passion. Douglas had a passion. And it’s important– no matter what your passion is, I think, to have some passion and to be able to follow it. And the law schools give students the tools to be able to do that.
ERWIN CHEMERINSKY: That’s a perfect way to end this conversation. Judge McKeown, thank you so much for taking the time to have this discussion. I’ve been talking to Judge Margaret McKeown about her terrific new book, Citizen Justice, The Environmental Legacy of William O. Douglas, Public Advocate and Conservation Champion.
I hope you enjoyed this episode at More Just. Be sure to subscribe wherever you get your podcasts. If you have a question about the law or a topic you’d like us to cover, please send an email to firstname.lastname@example.org to tell us your thoughts. Until next time, I’m Berkeley Law Dean Erwin Chemerinsky.