The View From 1776

William O. Douglas graduated from Columbia University Law School in 1924.  He later taught at Columbia Law School and then at Yale Law School, where Judge Sotomayor studied law.  During Douglas’s tenure at Yale Law School, it already was acquiring a reputation for producing liberal, activist judges.

In 1939 Douglas was nominated by President Franklin Roosevelt to the Supreme Court. Fittingly, he succeeded Justice Louis D. Brandeis, who had gained fame before joining the Court for what came to be known as the “Brandeis brief,” arguments before the Supreme Court based, not on existing law, but on sociological theories and reams of statistics collected by academic researchers.  As a Supreme Court Justice, Brandeis was predisposed to reach judicial opinions on the basis of what seemed to him to be the socially desirable outcome of the case, regardless of existing law or legal case precedent.  Among other things he expressed the opinion that a government controlled enterprise would be better than one owned by private businessmen.

Justice Douglas served more years than any other Justice in Supreme Court history, from 1939 until 1975.  In that span, he contributed relatively little to the Court’s jurisprudential scholarship, becoming known instead as a radical civil libertarian.

His views are reflective of the academic milieu in which Judge Sotomayor’s gained her legal precepts.  Justice Douglas’s Points of Rebellion was published in 1969 in the aftermath of the student anarchist college campus riots, from Cal Berkeley to Columbia University, that involved seizures of buildings, destruction of records and computer centers, and threats of violence or death to professors who opposed them. 

Points of Rebellion is a justification of those actions and a damnation of American society that student activists aimed to destroy.

The point is, not that the social and political structure of the United States is perfect, but that Justice Douglas and his fellow radicals saw American society as all wrong and demanded its destruction and rebuilding in accords with their plans.  And their plans were very different from those of the generation that wrote the Constitution.

Representative extracts from Justice Douglas’s book:

I speak now of two forces working to [induce the older generation to resist student activism].  First, is the growing subservience of man to the machine.  Man has come to realize that if he is to have material “success,” he must honor the folklore of the corporation state...The interests of the corporation state are to convert all riches of the earth into dollars…

The second force which is shaping resistance to change is the way in which our First Amendment traditions have been watered down or discarded altogether...A person may be convicted for making a speech or for pamphleteering if a judge rules ex post facto that the speaker or publisher created a “clear and present danger” that his forbidden or revolutionary thesis would be accepted by at least some of the audience.

...Our private universities are self-perpetuating...students have little voice in affairs that vitally affect their interests.  For example, much of modern education fill young, tender minds with information that is utterly irrelevant to modern problems of the nation or to the critical conditions of the world.  Students rightfully protest…

We need the irrepressible urge to rejoin the human race.  We need to contribute moral and political leadership - as well as technical and financial help - to rebuilding a new world order controlled by Law [read the UN] rather than by Force…

This [student] dissent we witness is a reaffirmation of faith in man; it is protest against living under rules and prejudices and attitudes that produce the extremes of wealth and poverty and that make us dedicated to the destruction of people through arms, bombs, and gases...But we know that preparedness and the armament race inevitably leads to war [in fact, it led to the demise of the Soviet Union]...Armaments are no more of a deterrent to war than the death sentence is to murder…

The truth is that a vast restructuring of our society is needed if remedies are to become available to the average person...Should we prepare for war or for cooperative international programs designed to prevent war and to provide suitable substitutes for it?  Should not domestic problems - racial discrimination, housing, food for the hungry, education, and the like - receive priority?

...But the risk of violence is a continuing one in our own society, because the oncoming generation has two deep-seated convictions:

First - The welfare program works in reverse by syphoning off billions of dollars to the rich and leaving millions of people hungry and other millions feeling the sting of discrimination.

Second - The special interests [obviously not including teachers’ and industrial unions, racial and ethnic groups, and the tort bar] that control government use its powers to favor themselves and to perpetuate regimes of oppression, exploitation, and discrimination against the many…

If society is to be responsive to human needs a vast restructuring of our laws is essential.