Transcripts For CSPAN2 M. Margaret McKeown Citizen Justice 20221009

William douglas public at public advocate and conservation. It comes out september first. There are some sample copies, display copies right outside. Would you all please again, welcome the amazing margaret mcewen. Good morning. My thanks to my good friend judge owens and conference organizers for this really amazing conference. You know, its really fitting that my topic this morning is Justice Douglas. He succeeded justice brandeis. But following Justice Douglas, we had Justice Stevens and he was succeeded by our very own circuit, Justice Elena kagan, who now holds a seat and from whom you will hear very shortly, you know, legal scholarship usually focuses on the judicial role of and judges, but theres really a much larger story of judges as public figures. Now, this is my book and i literally stumbled into this i was crosscountry skiing actually snowshoeing in my home state of wyoming in grand Teton National park. It was snowy. I saw this beautiful homestead that i wasnt familiar with. I it was probably private property. I didnt want to sit on their porch and out comes this guy. And i said, well, where am i . And he said, youre at the murray ranch. And i said, oh, i know, i get that. I know john. He said, no, no. Muir. I said, oh, and i learned that olaus. And mardy murie, who had been of the homestead, were very famous. Conservation and biology in the forties, fifties and sixties, and that they had a friendship with William Douglas. So that got my curiosity going. And so what really began as lark to understand what was the relation ship has turned into this book. Douglas was really larger than life and a very public justice. He was fascinating and. He was also flawed. Hes often remembered for his four wives the impeachment inquiry, which was not successful, and his tenure as a large, long serving justice,. 1939 to 1975. Now, all us are familiar with his many landmark decisions in privacy such as griswold v connecticut free speech and criminal procedure, but perhaps his most enduring legacy is as a successful advocate for environmental causes. He was a very unusual justice. He lived life on the edge and he definitely pushed the envelope ethically, personally and judicially. So i want to explore four ways in which he did this, dissenting on the road, dissenting in the corridors of power, dissenting on the court and dissenting in his own backyard. Now he is big hat. Let me the stage. Who was William Douglas . Well, hes been called many, many things. Mr. Justice pangloss, the frontier justice. And even a communist. He had a certain kind of cowboy mannerisms and with that big hat when he was in washington, they might have asked, is he all hat and no cattle . As we say out west . Well, he was actually a western nerd, brought up in yakima, which in Central Washington state by, a single mother. She had aspirations for him to be president and she called him treasure. His life was really punctured weighted by illness as a child. And the mystique of his polio really drove, who he was and how he thought of himself. He was small and he was bullied. So he took refuge in the mountains and thus made his connection between mountains and spiritual quality. He went off to Whitman College and laura has said he rode the rails to columbia law school. He talked about that in an autobiography graffiti many of us read when we were in law school. Go east, young man. He married a young teacher, yakima. And at law school, he began his meteoric rise, but he missed what he considered the brass ring the Supreme Court. But amazingly with only 14 years out of law school, he took a seat on. The United States Supreme Court. Now, before that happened, he went to what is now provost wayne and more. And he really complained about the drudge of the work. So he thought, well, maybe hed come back to Washington State. My former law firm, perkins cooley, offered him a job at 600 a month. Cravath said, no, well give you 5000. So not much has changed in that regard. And he quickly went back to new york. Well, he was never, ever meant to practice law and soon became a professor at columbia. And then yale but he was only there a few years when he then went down to washington under the tutelage of joe kennedy and before, long after doing some research, he soon became commissioner at the securities and exchange commission. And then a couple of years he became the chair of scc and he didnt do that for too long either because. 1939, president roosevelt nominated, douglas to the United States Supreme Court, he was only 40 years old. He was the second youngest justice to serve then. And now so here he is a Supreme Court might recognize some of his companions, justice frankfurter, justice black. Now, roosevelt wanted westerner on the court. So douglas, his allies really went hard to prove that he was a westerner. Actually, his entire adult life had been spent on the east coast. So roosevelt asked him to come in for a very important meeting, and his fear was, im going to be named the chair of federal communications commission, which he did not really get too excited about. So what roosevelt said instead is im asking you to a job which is a little bit like going to i want you to be on the United States Supreme Court. Well, he was very excited and it was two days from his formal confirmation nomination to confirmation and his confirmation hearing was just. 5 minutes long. So what a contrast to what were seeing now. Now, at heart, you know, douglas is a Political Animal he really thrived in washington, played poker with the president. He hobnobbed with ambassadors and political shows. And during his first decade on the bench, his political star actually continued to rise. From 1939 until probably early 1950s. He was a possible president ial and Vice President ial nominee on the democratic ticket. Now, in the end, he lost out to truman. And the last push came in 1948, truman him to be his Vice President. And douglas reported, he said, why be number two to a number two . So he turned it down and he stayed on the court he said politics are perishable, but the work of the court is long and enduring. So it turned out really that is attachment to the court kind of strengthened as its political starts to plummet. Then he had a near fatal accident out in Washington State near mount rainier, his 1600 pound horse tumbled off the mountain with him and he broke 23 ribs and that shifted his focus by that time, hed been on the court for about decade and. Frankly, he was a little bored and his marriage to the sweetheart from yakima was on the rocks. So it seemed that he was now prepared to stay on the court. And so as he recovered from that accident, he wrote the first of his biographical trilogy of men in mountains. And that book is no marriage to the mountains. Wilderness which meant so much to him. But around this time it was also a very unapologetic time where he started into activism and it truly blossomed now his view of himself as a citizen. Justice actually came in the first term on the court. Theres a case called omalley the woodruff. The question was this whether a federal has to pay federal income taxes because as you know, the constitution says, well, federal judges are in office, you cant diminish their salary. Well, unfortunately, court quickly made short work that and they axed it and said no judges, citizens and they pay income taxes as we know. And so. Right after that, he made a little entry in his notebook and he told cbs journalist eric sevareid, he said that when i made the entry, said, you know, young man, you just voted yourself first class citizenship. But he went on to say, well, if he was going to have to pay taxes, he should be like everybody else and he should do so as a citizen, unless it interferes with the work of. The court and hence my title. Citizen justice well. That then is the conundrum i want to explore with you whether role as a justice and citizen justice actually collided with his work on the court. Now during time he was on the court, he had to abiding principles. Number one he believed wilderness spaces provided solitude sanctuary and spirituality and he wanted to do everything to save wilderness. And second, he believed that his role as a justice was to get the government off the backs of people and to protect minority rights. So both of these themes actually resonate in his conservation work. Let me turn now to the first way that he embraced this notion as a citizen justice, what i call dissent ing on the road that defined him as a National Leader in the conservation movement. Now, he loved and adored his heroes. Thoreau, john muir and teddy roosevelt. And so that devotion, nature really came through full tilt on his first historic and famous hike, the chesapeake and, ohio canal. His calendar entry for that day was hardly very revealing. And, you know, its a wonderful thing when you can go to the library of congress and look through all the files at least of Justice Douglass, total packrat and a huge correspondent. I theres like literally miles and miles of files. So i looked at his calendar for that day march 20 1954. And it said hike. That was it. Well, that was changed his life in the fifties. Theres this proposal by the park service to put a highway down to the sea, you know, canal, washington, d. C. Douglas objected and response to the Washington Post, which wrote an had an editorial that favored this highway. Douglas said, come along and hike with me. The editors up the challenge and they went on the hike and here they are its 189 miles, seven days snow rain and only nine people finished the hike including olaus murie, who was then president of the Wilderness Society and we had become his. You can see from the pictures how tall douglas is and hes very fit get this amazingly, he hikes 5 to 6 miles hikes per hour. Now, in the end, the Washington Post editors revoked their position and they supported douglas and joined forces to stop that highway down the sea. An oak at end of this, douglas started a concerted effort to stop the highway. And ultimately it was never built. In 71, the canal became a National Historic park in the interestingly, the park service says the only National Park walk it into existence. And also its the only National Park named after a single person, William Douglas. So he continued to hike on the canal nearly every sunday, sometimes with his clerks. If youre ever in at the very beginning of the canal, youll see a big bust of Justice Douglas and a memorial to what he did to save the cno canal. Well, next stop, alaska. In 1956, douglas joined the marines who had organized scientific expedition to the shinjuku river, and their goal was really to raise awareness against development of the fragile and delicate landscape of the. When everybody said justice Justice Douglas, they said, no, just call me bill. Im just another camper. Now, after the trip, douglas wrote a key chapter in one of his many books, my wilderness, the pacific west. The fight was long, but after decades, the arctic began to be treated and protected. Although it was a political football and remain so today, the Arctic Refuge gained protection in the early eighties. Douglas is credited as center to that effort, and they said that he was goofy bird from the supreme. But his name was sterling and magic in the corridors of power. So i turn now to his second way of dissenting and in the corridors of power. Now, both douglas and his nemesis, justice, said that the court was like a monastery. Well for both of them, that was totally a disingenuous and it was really remarkable that douglas undertook such extensive lobbying and correspondence on behalf of all kinds of projects, goals across the country. He was, without a doubt, a one man lobby shop. Now he had a signature approach. Heres what he did. He found a threatened area. He leveraged local and national groups. He formed a committee with himself as the chair. Of course. And then he started to lobby in congress. The president and federal agencies. Now, he had a very close relationship with the kennedys and particularly went backchannel to president kennedy through bobby. He once said to jack kennedy, the president , the trouble with you, jack, is you never slept on the ground. And as you know, he came from a rather blue bird upbringing in massachusetts, not from camping in the northwest. He also was pretty close to president johnson, although he never considered him a great environmentalist despite the many, many things that president johnson did, such as the wilderness. Now, douglas wasnt shy in his views. He had what he called the public enemies list, which he highlighted in a Playboy Magazine article. So you say to yourself, whoa, how is it that a justices writing in playboy . Heres what he said. Well, thats what young men read. And i want to reach everybody. No, he said, its easy to pick out public enemy number one, but he did. And that the army corps of engineers, the Agency Responsible for building dams. So then he went on to list a lot of other enemies like the Tennessee Valley authority. The public roads. Even the Forest Service. And hed been a huge admirer, of course, of gifford show, americas first forester. But that soon fell by the wayside. I want to give you an example of how he implemented his aim. Public enemy number one. This is the red river gorge and its a beautiful place in kentucky. The army corps wanted to build a Flood Control dam. So the sierra club invited douglas down to join several hundred protest. They were covered by tv journalists. Then named diane sawyer. So the organizers said, you know, we want a national attention. And im not sure we could have been successful if he hadnt come down. Now on this particular hike. He was accompanied by his fourth wife, cathy. She was just 23 and he was 67 when they married. Now, that was pretty much scandalized. The social scene in washington, d. C. , but not the environmentalists. And in fact, you know, cathy went on to law school and she went on to become a very occult environmental lawyer and philanthropist. Both of which endeavors she continues today. Now the press about the hike said that douglas was driven out town by armed men who didnt want to see now justice, telling them how to run their affairs. But heres his on the way home, he writes a letter to, president johnson, and he says, hold things up. Maybe get a study. And then he immediately contacts old pal stu udall, who is secretary of the interior and the gorge dam was stopped. Now, before i leave, douglas in the corridors of power and this is just one of many, many examples of when he lobbied with president and others. I want to talk about his writings. He was an amazing and prolific writer. He wrote 50 books. So starting in the forties, thats like one book a year. And then he had hundreds of articles. Of course. Playboy we know ladies home journal he wanted to appeal to what he he called housewife the homemakers. There was working inside the home look Magazine National geographic and others. So they not only informed the public, but to be honest, there was significant find shall remuneration and consequences. He actually was a little poor after his many divorces and he had some alimony to pay. And back then he needed the money. And amazingly, magazines actually paid you to write articles. And im not talking about bucks. Im talking thousands of dollars. A pretty nice supplement. So he invoked the prestige of the court to reach the highest levels to stop these federal projects and extoll virtues of the wilderness. But through his articles and his books, really spoke to america at a very transformative time. The fifties, sixties and seventies. And thats when the countrys environmental conscience was really being ignited. I now turn to Justice Douglas, dissenting on the court. You know as a child, he craved approbation. He wanted to fit in. But by the time he took his seat on the court, he had kind of developed a confidence. That really turned him into a champion dissenter. Was very, very sure of himself. And sometimes too sure when he retired. He had dissented. 486 opinions. Now contrast, we think of Justice Scalia as a major dissenter. But even over his 30 years, he only dissented. 254 times in whopping 40 of the cases. Douglas was the sole dissent. Now his work ethic was legendary, and it didnt endear to his colleagues. He said the court only took three or four days a week and so sometimes at the end of the term, without all the opinions being in, he dashed off his opinions and then flew out to washington to goose prairie. His cabin in the cascade mountains. Some of his opinions were written quickly. They were called airplane specials. Actually, no taking on this role of chief dissenter was really an extension who he was. He was an individual just a loner. And nonconformist. And he once wrote hiking how lonely he had been on the road. I walked. He might well, have been talking about his time on the Supreme Court. What he would do is this he would stick out a position and rather jawboning with the justices. He saw no point. He said the only soul i have to save is my own. Now because it is the 50th anniversary of his most famous dissent in, sierra club v morton. I want to talk about that case . This is mineral king valley. Some you may have been there in the sierra nevada. Youre out in california. The Forest Service had approved walt disney to develop a ski resort. And heres what it would look like. Theres valley. Theres the ski resort. The environmentalists claim it would destroy this fragile so they sued to District Court in san francisco, agreed and temporarily halted the resort at the request of the club. But the government quickly appealed to the ninth circuit and the government won. The court overturned the injunction. Next up, of course, the u. S. Supreme court. Now, as we know, interestingly douglas was no stranger, the sierra club. We just heard about a hike he took on behalf of the club and there were many, many others. So actually been on the board of the sierra club in the 1960s while he was on the court and the club made him a life member. So he remained member until december 1970, when a ostensibly out of the blue he writes a letter to the club resigning his life membership petition is pending in this case. Now the timing was probably pretty suspect, but douglas felt now was absolved of any conflict, and he participated in the mineral king case in discussions with many clerks at the time, they said it was a big behind the scenes at the Supreme Court as to whether he should have been conflicted out. Big question in the case was did sierra club have stand in . The lawyers rolled the dice. So instead of saying that there was an injury to any of their members, they said there was injury to mineral kings and. Ultimately, the Supreme Court agreed with the ninth circuit, something we really do appreciate when the Supreme Court agrees with us. But the Court Dismissed the suit for three decision. Justice potter for the majority said they lacked standing because theres no allegation any injury to the club by the disneyland resort. There was a kind of a famous footnote suggested maybe there could alleged some other kind of injury. Well, douglas wrote a passionate dissent, and its really of his most famous dissents in the courts history. It was a rallying cry to open the courts to nature instead of being sierra club norte morton. He said it should have been called mineral king v morton. In other words, the valley itself should been the plaintiff for purposes of the lawsuit. And heres his dissent. He about the voice of an inanimate object. He talks about a valley, Alpine Meadow river, lake, and all of this is his life coming together, in his opinion. And thats he urges the voice of environmental wonders should be heard. Now, sadly, i dont have the time to tell you completely. The remarkable route by which these ideas arrived in douglass chambers. So to get that story, im afraid youre going to have to read the book. But suffice it to say, one of douglas clarks usc grad put a bootleg of a draft of an article on the justices desk, and the article was by a young usc law professor christopher. And his query was, should trees have . No other justice received the article and. Stone was out of time for amicus status at that point. And so as we put documents together one by one and chronologically, we see how did this amazing article influence just douglass decision . But douglas drew in this dissent on years of communion with nature, his reverence for trees, rivers, forests and valleys, and a very different clerk, another clerk in chambers, our own judge also was the actual clerk on that case. Douglas whipped off this decision literally within hours after the case was argued. And then he asks alsup basically now put in some footnotes to support what i said. Which judge also said, its like writing it backwards. And it was not such an easy task. Now the sierra club took the hint and they went back to District Court, which gave the green light to the club to go forward in the case. But, you know, permitting drug and on and after delay after delay, disney the plan this notion of natures rights and standing for inanimate objects wasnt just an academic exercise. It has gained some traction over the last five decades. Just not in the United States. So there are a number of countries that have now put nature as a right in their constitution and not so long ago, new zealand after an agreement with the maori population recognized a river and a mountain as a person in the law. So pushing the envelope was not futile for douglas. Now two dissenting in his own backyard, his independent and iconoclastic streak really conjured up this nickname wild bill. Or it should been called wilderness bill, and it surely earned him the moniker of wilderness bill. It was especially on display in the northwest. He was saving rivers and mountains from oregon up to washington and other, theres his cabin in goose prairie. Theres his neighbors. They call them the wpa girls. And there he is with kathy. And he ultimately lobbied and campaigned relentlessly. And successfully in what is now known today very near his cabin, the William Douglas wilderness. Heres mt. Rainier. And from his cabin and from that wilderness, you can see this amazing mount rainier. In closing. I view Justice Douglas as an imperfect hero. By all accounts, he was a difficult personality. And according to some law clerks, he was an impossible tyrant. At one point, he thought a law clerk had scribbled in a law book. So he took it and he threw it out the window. This Supreme Court. But luckily it didnt hit or kill anybody outside. But he had this legacy in law in the environment and the lives of those who knew him. Many of these clerks remember fondly him as a mentor storyteller. Over a glass of scotch. Or joining him on sundays on the canal. Those in the conservation treated him as a hero and with reverence. It was like he had a life in washington. And then he had a life in the wilderness. And of course, far too often is mentioned, the four wives. But that should not the mark of a career, because i comes to my mind the mexican artist diego rivera. He had four wives and nobody would say he wasnt a fantastic and wonderful painter. Douglas was a justice on a mission. He once told a law clerk, get out in the stream of things and swim as fast as you can. Well, you know, thats what he did and he teaches the value and the hazards of constraints of being a contrarian and of dissent. But his approach also reminds us of the importance, ethics, the separation of powers and the importance of the appearance of impropriety. Finally, his conservation legacy cannot be overstated. There is little doubt that his commitment and his connection to the land has had enormous impact. From maine to washington to illinois to Washington State and back to washington, d. C. And alaska. He was a climate canary, a warning of the dangers of everything from pollution to pesticides. And more importantly, he laid the groundwork for what we have a present day conversation about the environment. When he retired, he wrote a letter. I was afraid no farewell note to his colleagues, and he analogized his time on the court to a canoe. He said at the beginning the justices were strangers, but at the end they were warm and fast friends. But he wrote to them and said he hoped that they would leave these wildernesses and these water horses as pure and unpolluted as we those which we traversed to his law clerks. He keep the faith in the rule of law and his legacy. He wanted to be remembered as someone who made the earth more beautiful than when he came. And indeed he did. Thank you for letting me share with you, douglas. Aall right, ladies and gentleme, lets get the show on, the road here this morning. You already all right. Lets here is the 30 that our man weve gone covid. We postpone for a hurricane and boy, youre all still here. I think maybe were just youre like the trekkies we going to call you the benders and what are we going to do . Im nick mueller, president ceo emeritus