The most unorthodox dissent

In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country.

On Aug. 3, 1973, a single Supreme Court justice – working alone, far from Washington, D.C. – ordered the president of the United States to stop bombing Cambodia. He was swiftly overruled by the eight other justices, who, via hastily arranged phone calls, agreed to take immediate action to avoid a constitutional crisis. Justice William O. Douglas, known as “Wild Bill,” then issued a biting dissent – with perhaps the most unorthodox justice to ever have sat on the bench accusing the other eight of impropriety.

I. Constitutional Chicken

In the summer of 1973, Congress and the Nixon administration were locked in a familiar game of constitutional chicken. As legal scholars like Steve Vladeck have detailed, although U.S. troops had withdrawn from Vietnam earlier that year, the president continued to bomb neighboring Cambodia. Congress never authorized this bombing, and in fact, had consistently attached the so-called “Fulbright Proviso” to appropriations bills, barring military support to Cambodia unless necessary to withdraw U.S. forces or POWs. In June of 1973, Congress adopted a bill that outright prohibited the use of funds for Cambodian combat operations unless explicitly authorized by legislation, hoping to end U.S. involvement entirely. But President Richard Nixon vetoed it.

Congress adapted. It didn’t have the votes to surmount a veto, so it passed a new law that prohibited taxpayer money from funding military activities in Cambodia while also giving the president time to wind down operations. The bill gave the administration until Aug. 15, 1973, to withdraw. Nixon relented, at least partially. The White House treated the delay as implicit authorization of all activities prior to the deadline. Members of Congress considered it a political compromise – not necessarily a constitutional blessing.

Rep. Elizabeth Holtzman and a U.S. airman stationed in Southeast Asia brought a lawsuit seeking to end all bombing in Cambodia even prior to the August deadline. They argued that the continued bombing lacked congressional authorization, as required by Article I, § 8, Clause 11 of the Constitution.

The district court agreed that the president lacked authority to bomb Cambodia, but gave the administration a few days to appeal to the U.S. Court of Appeals for the 2nd Circuit for a stay of its injunction. Sure enough, the government appealed, and the 2nd Circuit issued a stay. The plaintiffs then asked Justice Thurgood Marshall, the justice responsible for emergency appeals from the 2nd Circuit, to stay the stay, meaning the president would once again be immediately enjoined from engaging in military operations in Cambodia.

Marshall declined. In a restrained and institutional opinion issued on Aug. 1, 1973, he emphasized the difficulties of weighing the equities in such a case: on the one hand, the plaintiffs argued that continued bombing put Cambodians and U.S. servicemen at risk of death. On the other hand, the government argued that a cessation in bombing would frustrate its foreign policy goals. While “[s]ome may greet with considerable skepticism the claim that vital security interests … rest on whether the Air Force is permitted to continue bombing for a few more days” – after all, Aug. 15 was just around the corner – Marshall emphasized that a single justice should not decide such an important question. Instead, the parties should go through the normal appellate procedures so that the entire court could consider the case.

The plaintiffs then turned their attention to Douglas.

II. Wild Bill goes rogue

William Orville Douglas did not become a Supreme Court justice so he could sit quietly on the bench refining doctrine. His judicial legacy is one of intervention. After all, he was something of a political character. Douglas was known for cleaning up Wall Street as chairman of the Securities and Exchange Commission under President Franklin Delano Roosevelt. And he had been considered as a vice presidential candidate under FDR, and again under Harry Truman (he declined, supposedly asking, “Why be number two to a number two?”). He carried his political sensibilities along with him onto the court and created a lasting legacy as an environmental activist, civil libertarian, and all-around rogue justice. 

Born in 1898 in the rougher corners of the Pacific Northwest, Douglas grew up poor, sickly, and stubborn. Childhood polio caused him to develop a near-religious devotion to physical endurance. He hiked obsessively, sometimes sleeping outdoors in minimal shelter, and had a lifelong passion for the environment.

After putting himself through Whitman College in Walla Walla, Washington, he graduated second in his class at Columbia Law School, and soon after joined the Yale Law School faculty. He was appointed to the Supreme Court in 1939 by FDR at just 40 years old (and would go on to become its longest serving justice). He continued to play poker with FDR even after his confirmation.

Douglas had no interest in the court as an institution of quiet consensus. He holds the record for the most opinions written by a Supreme Court justice – more than 1,200 opinions over his record-setting 36-year tenure – with an unusually large share of them being dissents. It was said that he wrote opinions quickly with little editing and only then would ask his clerks to find the legal authority to support his suppositions.

He famously tried to spare Julius and Ethel Rosenberg, who were convicted of spying for the Soviet Union, from death, staying their execution until he was overruled by the full court. He dissented when the court refused to hear a case involving the Kent State massacre, calling the case moot rather than incapable of judicial resolution. He cemented the constitutional right to privacy in Griswold v. Connecticut, rooting it in the Bill of Rights’ “penumbras, formed by emanations,” a phrase endlessly mocked (and memorialized in a sign in Justice Clarence Thomas’ office that says “Please do not emanate into the penumbra”). He suggested in dissent that meadows, rivers, lakes, and “even air” should have a right to sue in environmental cases.

In 1954, Douglas took the unconventional step of inviting Washington Post editors who had endorsed a proposed parkway through the Chesapeake & Ohio Canal to take the full 185-mile trek along the proposed route with him, averaging 20+ miles a day over eight days, so that the journalists would fully understand the beauty the parkway threatened. Of the 40 participants (from various media outlets and conservation groups), only nine completed the grueling hike entirely by foot. Douglas pressed on in the face of a snowstorm, stomach problems, and a bout of poison ivy. A crowd of thousands awaited the group at the end. The controversial bit of activism worked: the Post retracted its endorsement, and the canal was saved.

Douglas’ personal life, like his professional life, was unconventional. Douglas was married four times, divorced three – a record among Supreme Court justices. Many of his wives were much younger and he abruptly moved on from. He married his third wife, Joan, just five days after his divorce from his second wife (who had been his research assistant) was finalized on account of “cruelty.” After Joan’s mother received “nasty” phone calls about the marriage, she remarked that the marriage was not untoward. Instead, simply, “They are, neither of them, ordinary people.”

After his third marriage, Douglas, now in his sixties, once again married a woman in her twenties, and Congress called for an investigation into his moral character. The investigation never materialized. It instead became political theater, likely intertwined with his relentless criticism of government policy. Republican Rep. Bob Dole charged that Douglas had not only shown “bad judgment from a matrimonial standpoint, but also in a number of 5-to-4 decisions of the Supreme Court.”

On top of that he was a heavy drinker, not to mention that the factual accuracy of his autobiography has been questioned by historians (Douglas seemed to have a habit of exaggerating both his hardships and his own importance in Supreme Court happenings). He was, in a word, unorthodox.

III. Shopping around

Douglas wasn’t even in D.C. when ACLU lawyers tracked him down at his cabin in Goose Prairie, Washington, to ask him to reconsider their petition involving Cambodia. It was no accident that they had turned to Douglas, a known critic of the Vietnam War. And the justice delivered: he conducted a full hearing on the petition in a packed federal courthouse (and post office) in nearby Yakima. After the government’s lawyer suggested that pausing the bombing would cause irreparable harm, Douglas replied, “Who to, peasants of Cambodia who get bombed?”

It wasn’t the first time lawyers had gone wading into the wilderness to make an emergency appeal to Douglas. In an earlier case, attorneys in suits had marched onto a remote trail carrying their briefcases, eventually encountering the striking, six-foot-tall justice in blue jeans and a flannel. Douglas listened and said he would make a decision on their plea the following day. The next morning, the lawyers returned and found a single sheet of paper nailed to a tree that said, “denied.”

This time, however, he agreed.

Douglas began his opinion by stating that it was not the normal practice to apply to a second justice after being denied by a first, and when the court was in session, the second justice would normally refer the petition to the full court to discourage “shopping around.” Nevertheless, the court was in recess and the justices were “scattered,” requiring him to hear the petition himself, paying “the greatest deference” to Marshall’s previous denial.

He then likened the petition to a capital case:

The classic capital case is whether Mr. Lew, Mr. Low, or Mr. Lucas should die. The present case involves whether Mr. X (an unknown person or persons) should die. No one knows who they are. They may be Cambodian farmers whose only “sin” is a desire for socialized medicine to alleviate the suffering of their families and neighbors. Or Mr. X may be the American pilot or navigator who drops a ton of bombs on a Cambodian village. The upshot is that we know that someone is about to die.

It was therefore unnecessary to balance any equities or to decide the merits or such things as whether it was proper for Douglas to hear the question before him. Instead, “since denial of the application before me would catapult our airmen as well a Cambodian peasants [sic] into the death zone. I do what I think any judge would do in a capital case — vacate the stay entered by the Court of Appeals.”

With that short order, Douglas demanded that the president stop bombing Cambodia.

IV. A quick reversal

Hours later, attorneys for the Nixon administration presented an application to Marshall to stay the original district court injunction, which was now in effect as a result of Douglas’ order reversing the 2nd Circuit’s stay. Marshall quickly called up the other justices, who agreed the court should overrule Douglas. Marshall issued an opinion halting what had been only a brief pause in the bombing – if it had halted anything at all. The administration had continued its operations despite Douglas’ order, since it had not yet been properly served.

Marshall explained that the purpose of the 2nd Circuit’s original stay was to preserve the status quo while it considered the case on the merits – and because the appellate court had now expedited that hearing, maintaining the stay was appropriate. (The 2nd Circuit would go on to hear the appeal, reverse the district court, and dismiss the case.) Douglas was overruled. And, of course, he dissented.

Douglas privately believed the reversal came so swiftly because a telephone tap had alerted the justices to his impending opinion. In his view, they could not – given the short timeline – possibly have read it before acting. While acknowledging that the full court had the power to reverse him, Douglas insisted in his dissent that it had to meet in person to do so. Citing a statute requiring a quorum, he wrote that “[s]eriatim telephone calls cannot, with all respect, be a lawful substitute.” The court, he said, was “as much bound by the law of the land as is he who lives in the ghetto or in the big white house on the hill.” They had flouted the rules. The most unorthodox justice suddenly demanded strict fidelity to procedure.

V. The aftermath

Douglas had lost. The bombing continued until Congress’ deadline took effect. His opinion never became law, and his dissent changed nothing. And just over a day after the court reversed Douglas, the United States mistakenly bombed a town center, killing 137, many of whom were civilians. Congress would later pass the War Powers Resolution over Nixon’s veto, limiting a president’s ability to send American troops into combat absent congressional authorization or an attack on the United States.

Still, in many ways, Douglas had made a mark. As Vladeck has noted, the court’s procedures subsequently shifted; justices began referring all second-bite petitions to the full court even in the middle of summer. And eventually, the court stopped formally adjourning for the summer at all, such that terms were considered continuous through the year.

This was true of many of Douglas’ opinions: they had an effect even if they did not become law. His lone dissent in Pierson v. Ray foreshadowed many of the problems that would follow the expansion of qualified immunity. His affirmation of the right to privacy became widely accepted, even if other justices might have come to the same conclusion under a different mode of analysis. And his hundreds of dissents normalized the idea that dissents exist for an important reason, whether it’s to pave the way for future cases … or not. Douglas did not stop the bombing – but he forced the court to reckon, however briefly, with what it means to do nothing. And he showed that even short dissents that do not have the force of law can have an impact.