Today in Supreme Court History: October 16, 1898

10/16/1898: Justice William O. Douglas's birthday.

Justice William O. Douglas

Comments

[Dan Schiavetta]

Bad man, good positions.

[Cal Cetín]

Depends on the position. He had more positions than the Kama Sutra, so the law of probabilities is that he would be right at least some of the time.

Om, Om, Om, visualize the penumbras.

[oldtimer]

Was one of those "good positions" his siding with the majority on Korematsu?

[Cal Cetín]

Look, he *said* he was sorry!

[Dan Schiavetta]

Actually he did.

All of us can think of positions we held in the past which were mistaken. Hugo Black and Douglas and Robert C. Byrd are examples. Conservatives are notably lacking in this level of humility.

[Cal Cetín]

I know he said he was sorry. That's why I said he said he was sorry. I'm sorry if you misunderstood.

And I seem to recall conservatives apologizing all the time. But obviously, if they're looking to get credit for it, they're wasting their energy.

[Cal Cetín]

I recall a Sesame Street sketch (yes, the term "sketch" fits, even though it's a kids show) where George Washington kept chopping down cherry trees and apologizing. His dad told him to stop apologizing and just stop cutting down cherry trees.

[Dilan Esper]

When evaluating a prominent judge's work product, I'm not sure later apologies mean very much. When he could have done something to help an oppressed minority, Douglas gave them the middle finger, and he likely did it in part because he was a gung-ho Roosevelt man and hated the Japanese.

More generally, he was a bad justice, even when his moral compass was functioning more properly. He didn't write good opinions (we're still paying for "we're a religious people whose institutions presuppose a supreme being", and the Griswold majority opinion is a hot mess). He didn't understand the judicial role (no, you can't declare the Vietnam War unconstitutional). And he didn't understand counting to 5, which is the only way you achieve results on the Court.

And at the end, he tried to stay on after resigning. What a prick.

[Cal Cetín]

"we’re still paying for 'we’re a religious people whose institutions presuppose a supreme being'"

Paying how, dare I ask?

[Dilan Esper]

It is highly influential and cited in support of weakening the separation of church and state.

[Cal Cetín]

Could you be more specific?

[Cal Cetín]

I mean, if you define the terms broadly enough, then giving Caesar the things that are Caesar's and to God what is God's could be defined as separation of church and state and would elicit agreement from right-wing fundamentalist fanatics, so I'm assuming you have a more specific definition of separation of Church and State, and some ideas of what does or doesn't violate that separation.

[Dilan Esper]

I mean every legal brief that ever argues for its erosion cites that language. It's influential.

[Intelligent Mr Toad]

William O. Douglas authored Griswold v. Connecticut (1965), establishing a 'right to marital privacy' which included a right to buy, and own, contraceptives. This later became a more general 'right to privacy' which underlies Roe vs. Wade.

Happy Birthday, WOD.

[Dan Schiavetta]

Indeed.

Clarence Thomas makes fun of “penumbras and emanations” but in fact these allowed him to marry a whole woman and are basic to our understanding today of the right to privacy which we all treasure.

[Cal Cetín]

What is it which makes Democrats so obsessed with miscegenation?

[Michael P]

The same reason they think a black man shouldn't be able to marry a whole woman, only a fractional one.

[Cal Cetín]

Uh, I don't get it.

[Rev. Arthur L. Kirkland]

"What is it which makes Democrats so obsessed with miscegenation?"

1. Dismantling those ugly laws, against severe opposition, was an important effort and test of character.

2. Racism is a strong marker for low character and lousy judgment.

[Cal Cetín]

Democrats, the cause of, and the solution to, miscegenation laws!

[Dilan Esper]

Penumbras do exist. Miranda v. Arizona is a nice example of one- in order for the Fifth Amendment protections to mean anything, you need to be able to have the right to counsel at a stationhouse interview.

But penumbras aren't the reason there's a right to privacy in the Constitution, and if you took Griswold literally, whether you have an unenumerated right would depend on whether you could make a very strained analogy to another constitutional right (the Third Amendment?), which is an absolutely stupid test for constitutional rights.

The Court spent the next several years repudiating Douglas' awful opinion, which is never applied as the legal test for anything anymore.

[Cal Cetín]

So they're just saying it's all just an emanation he pulled out of his penumbra?

[Cal Cetín]

"Happy Birthday, WOD."

Would he have made it all the way to birth if he'd been conceived after 1973?

[Alpheus W Drinkwater]

The odds would have been in his favor for every single year from 1973 until now.

[Cal Cetín]

Obviously, what mother would want to give up the bragging rights about "my son the Supreme Court Justice."

[Alpheus W Drinkwater]

It would depend on what horrible stuff gets dredged up (or made up) during the confirmation process.