Will Fassuliotis ‘19
Guest Columnist
On November 12, 1975, Justice William O. Douglas announced his retirement in a letter to President Ford. The Justice suffered a debilitating stroke in 1974, but tried to continue serving. His condition became so poor, however, that the other Justices created a plan for any case that Douglas would be the fifth vote in an otherwise evenly split, four-to-four decision. The Justices agreed they would hold the case over for re-argument in the next term, awaiting either Douglas’ recovery, or a new judge (Douglas was unaware of this arrangement). Eventually, former law clerks and friends convinced Douglas he was incapable of fulfilling his duties.
In his responding letter, the 38th President heaped praise upon Douglas, writing “[y]our distinguished years of service are unequalled in all the history of the Court.” By one measure, President Ford was objectively correct: Douglas’ 36 years on the bench were over two years longer than any other justice.[1] Despite the warm words, the true nature of their relationship could be encapsulated in their encounter at the swearing-in ceremony of Douglas’ successor, the soon-to-be-Justice John Paul Stevens. After the ceremony, President Ford approached the wheelchair bound Douglas. “Good to see you, Mr. Justice,” greeted Ford. Douglas responded sarcastically, “Yeah. It’s really nice seeing you. We’ve got to get together more often.” After this brief exchange, Douglas was wheelchaired away.[2]
While impolite, the retired Justice’s terse reaction is immediately understandable; only five years earlier then-Congressman Ford sought to impeach Douglas. Now, Douglas’ poor health forced him to give the choice of his successor to the same man who tried to forcibly remove him. Never before and never since has a President replaced a Justice he actively sought to force off the bench.
It was April 15, 1970, when the Republican House Minority Leader rose in the Capitol building to demand an investigation of Douglas and, if warranted, a vote on impeachment. This period in time, as we have seen, was a pivotal one for the Court. Warren Burger had replaced Earl Warren as Chief Justice, and Nixon saw two of his nominees for the second opening go down in flames.[3] Ironically, the disgraced Justice who Nixon tried to replace, Abe Fortas,[4] resigned in part “to protect Douglas,” hoping to forestall further investigation into Douglas’ extrajudicial activities.
Ford presented four charges he thought rose to impeachable offenses. It was in this context that Gerald Ford uttered the (in)famous standard for impeachment, that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” The first two charges stemmed from alleged conflict of interests. In one instance, Douglas sold an article to a magazine facing libel charges in a case that ultimately reached the Supreme Court. Despite being paid by one of the litigants, Douglas did not recuse himself and joined a dissent from the denial of certiorari and would have ruled in favor of the magazine and overturned the jury decision against the magazine.[5]
The second charge involved Douglas serving as the only director of the Parvin Foundation. As director, he made over $96,000 in the ten years before 1970 (for comparison, his judicial salary over the same time period was slightly over $396,000). While the Foundation had legitimate functions seeking to develop leadership in Latin America, the Foundation’s namesake —Albert Parvin—was a sketchy individual. He publicly associated with criminals and was heavily involved with the casino business in Las Vegas when that industry was synonymous with mafia interests. Realizing the bad optics and similarities to Fortas, Douglas put an end to the payments soon after Fortas resigned.
The final two charges criticized Douglas’ political activity while he was a Justice. The first charge alleged association with “new leftists” and “leftist militants” of the Center for Democratic Institutions,[6] the second charged related to the contents of his recent book “Points of Rebellion” which, per Ford, “fanned the fires of unrest, rebellion, and revolution.”
Douglas’ actions were problematic. The editor of Douglas’ private papers, Melvin Urofsky, believed his actions fell short of an impeachable offense, but cautioned that “Douglas’s experience should serve as a warning, not an example” to judges. I am inclined to agree. The last two charges demonstrate that, however egregious Douglas’ actions, Ford’s charge was political in nature. And because they were political, Douglas ultimately continued without any formal censure. Where Ford sought a select committee to investigate the charges, Representative Andrew Jacobs beat Ford to the punch. Even though the Democrat opposed impeachment, by introducing the resolution he ensured the Democrat-dominated Judiciary Committee would oversee the investigation—a committee chaired by a good friend of Douglas.
Douglas and Fortas’ circumstances share some similarities, especially with their payments for legal work from their respective Foundations. Ultimately, their differences as individuals likely accounts for their different fates. Fortas was associated with Lyndon Johnson at a time when the Vietnam War made Johnson unpopular with the liberal legislators, people who Fortas needed to support him. However, distrust of LBJ easily transferred to Fortas.
Douglas, on the other hand, was an icon to the same liberals. Bob Woodward explained Douglas’ philosophy succinctly: “He was for the individual over government, government over big business, and the environment over all else.” “Wild Bill” was larger than life, in no small part because he encouraged those myths. Douglas was easily the most prolific writer on and off the Court, writing more opinions than any other Justice, as well as over thirty books expressing his political views. He wrote his opinions quicker than any other Justice; one legend holds that once, when Justice Whittaker struggled to write a particular opinion, Douglas, despite having already written the dissent, offered to write Whittaker’s majority opinion for him. Whittaker accepted, and thus, according to the story, Douglas became the only Justice to write both the dissent and majority of the same opinion.[7]
Eight months after Ford spoke, the committee voted to take no action. The results were predictably on a party line. This was the last serious attempt to impeach a Justice of the Supreme Court. But historically, judges were the most common targets of impeachment. Of the nineteen officials impeached in American history, fifteen were judges. The first person to be impeached, convicted, and removed was Judge John Pickering in 1803—for “mental instability and intoxication on the bench”—while the most recent impeached and convicted was Judge Thomas Porteous in 2010 for accepting bribes. Impeachment and removal are not always career ending, however. Despite being removed in 1989, former Judge Alcee Hastings later won election to the House of Representatives. He is now the longest tenured congressman in the Florida delegation.
Ford lambasted the committee’s investigation as a sham—no public hearings, no subpoenas, nothing. But Ford’s failure may have been preordained over a century and a half earlier, way back in 1805. Justice Samuel Chase remains the only Justice to be formally impeached by the House of Representatives. Chase was, by many accounts, a rank partisan, even more so than Douglas. At a time when Jeffersonian Republicans controlled the political branches, this attribute was dangerous for the ardent Federalist. Believed to still be smarting over John Marshall’s rebuke in Marbury v. Madison, President Jefferson encouraged Congress to impeach Chase. Formally, the charges of impeachment concerned his conduct as a trial judge (this was the time when Justices presided over trials in addition to hearing appeals). But to Jeffersonian Republicans, this could be the first step in restraining the activist Federalist federal judiciary and replacing them with committed Jeffersonians. If the Senate was willing to remove Chase, perhaps it would be willing to remove Marshall as well.
Proving that history has a sense of irony, Vice President Burr presided over the trial that featured some of foremost legal minds of the time. Ultimately, none of the eight articles of impeachment succeeded. Only one count garnered a majority, but it still fell short of the two-thirds required for removal. Justice Chase’s acquittal stands for the proposition that whatever a “high crime” or “high misdemeanor” means, they do not encompass mere political or partisan disagreements. For better or worse, judicial independence was secured. Better off, Ford learned, to just wait until the pain in the neck retires.
[1] For context, 13,365 days before the date of publication of this article would be after the movie E.T. was released, but before Michael Jackson’s Thriller album.
[2] This account comes from Bob Woodward and Scott Armstrong’s The Brethren, p. 402.
[3] For more, see “‘Aren’t the Mediocre Entitled to a Little Representation?’ Nixon’s Failed Supreme Court Nominees” in the February 6, 2019 issue of the Virginia Law Weekly.
[4] See the November 28, 2018 issue of the Virginia Law Weekly.
[5] Ginzburg v. Goldwater, 396 U.S. 1049 (1970).
[6] Which one biographer believed was false.
[7] Justice Whittaker’s biographer, Craig Allan Smith, purports to dispel this legend as made up. Debunking Douglas: The case against writing both majority and minority opinions. David J. Danelski purports to refute Smith’s refutation in Justices Douglas and Whittaker in Meyer v. United States: A false claim rebutted. Truly, I can think of nothing that better illustrates Douglas’ polarizing reputation.