He was nicknamed “Wild Bill” for his dissenting opinions, multiple marriages, and travels to remote mountains, but M. Margaret McKeown suggests that a better moniker for U.S. Supreme Court Justice William O. Douglas was “Wilderness Bill.”
The product of Yakima and Whitman College, Douglas dazzled the New Deal as chairman of the Securities and Exchange Commission, played what Franklin D. Roosevelt called “an interesting game of poker,” was tapped for the high court in 1939 and confirmed at the age of 40. He came within an eyelash of being tapped as FDR’s running mate in 1944. He would serve on the Supreme Court until 1975, reluctantly resigning when only impaired by a stroke.
“Douglas spent his first decade as a justice with one foot in the court and other in politics,” McKeown writes in her new book, Citizen Justice: The Environmental Legacy of William O. Douglas (Potomac Books). Citizen Justice will be released this week. McKeown is a longtime judge on the U.S. 9th Circuit Court of Appeals and was an intellectual property lawyer with Perkins Coie in Seattle.
Shuffled out of a run for higher office, Douglas put on his hiking shoes. “The political skills he had honed in Washington (D.C.) served him well when he finally found his most expansive frontiers saving the wilderness,” McKeown writes. “Political Washington was a springboard for his conservation politics.”
He left a living legacy in both Washingtons. Douglas wrote a seminal opinion in Griswold vs. Connecticut overturning the Nutmeg State’s ban on contraceptives. While the U.S. Constitution does not mention privacy, he argued, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” A plaque on Justice Clarence Thomas’ office wall mocks Douglas’ theory.
The right to privacy is today threatened, as are places Douglas helped save. Reading Judge McKeown’s book does not require approaching the bench. She does take the reader through Douglas’ judicial opinions, and explores the ethical edge of a judge as passionate advocate. The book hits its stride, however, when Douglas is setting a fast pace along Olympic National Park beaches or the Chesapeake and Ohio Canal outside Washington, D.C.
The justice walked along the old C & O tow path every weekend he was in Washington, D.C. In 1954, the Washington Post gave its editorial support to building a parkway down the canal. Douglas wrote a letter challenging the editorialist to walk all 189 miles and see what would be sacrificed. The Post took him up on the challenge.
The trek taught Douglas the publicity he could bring to a cause. Just nine men, including the justice, finished the historic walk. The newspaper changed its mind. As McKeown writes, “The Chesapeake and Ohio Canal National Historic Park became the only national park walked into existence.” A bust of Douglas sits behind the Four Seasons Hotel in D.C., at the start of the canal trail.
I’ve found it amusing to keep track of Douglas’ conservation crusades by his brides. He was still married to first wife Millie when fighting to protect the Minam River in Oregon’s Wallowa Mountains. The couple had a cabin there, where Douglas twice waited to see if he would be picked as the Democrats’ nominee for Vice President.
Second wife Mercedes went with him to the Brooks Range in Alaska, a trip that helped creation of the Arctic National Wildlife Range (now Refuge). She was there in 1958 when Douglas hit the beaches to protest a proposed highway along the wild coast of Olympic National Park. A “rising mist added a beauty indescribable to the beach and shoreline,” Mercedes wrote. The shadows of trees on wet ‘smoking’ sand was dramatic.”
At age 21, third wife Joanie was there for the judge’s second Olympic beach walk in 1961. Douglas’s air mattress sprang a leak, so he borrowed hers. The beach hikes helped Olympic Park Associates block the road. Fifty-six years later, Attorney General Bob Ferguson would lead an Olympic coastal backpack in protest against Trump Administration plans to open America’s Outer Continental Shelf to oil and gas leasing.
The judge’s final spouse, Cathy Douglas, was on hand when Douglas trekked in the Suiattle River trail in protest against Kennecott Copper’s proposed half-mile-wide open pit mine in the Glacier Peak Wilderness. The conservation movement found its legs in the battle. McKeown ventures onto a side trail, relating how Mt. Vernon physician Dr. Fred Darvill bought three shares of Kennecott Copper stock, then stood up at the company’s New York shareholders meeting and displayed an easel of paintings of Image Lake and Miners Ridge.
Douglas had a strategy for conservationists: As with Dr. Darvill, greens should go public even when taunted as “birdwatchers.” He cheered the Sierra Club when it bought anti-Kennecott ads headlined: “An Open Pit Visible from the Moon.” Said Douglas: “We should be like the Salvation Army out in the streets with a band.”
McKeown is a fine storyteller. Douglas’ last cause was creation of a Cougar Lakes Wilderness Area in the lakes and high ridges of Mt. Rainier. He and Cathy had a cabin at Goose Prairie. The couple’s next door neighbors were Kay Kershaw and Isabelle Lynn, two opinionated characters (and conservationists) who ran the Double-K Mountain Ranch. They welcomed three Douglas wives in their time, along with a couple of ladies who never legally made it. When Supreme Court colleague William Rehnquist came for a visit, they cited Douglas’ “rule of the valley” that he had to climb Goat Peak to get a drink. Rehnquist puffed up to about 5,000 feet, then came down and threw himself at the mercy of his hosts.
It was a final victory the judge did not live to see. The U.S. Forest Service proposed a piddling 23,000-acre Cougar Lakes wilderness. The final, million-acre 1984 Washington Wilderness Act set aside 166,603 acres as the William O. Douglas Wilderness Area. Kay and Isabelle were on the dais when it was dedicated.
A couple good Douglas biographies, Wild Bill and Independent Journey, have come out in recent years, and Supreme Court scholar David Danelski is working on an upcoming book. In Citizen Justice, obviously a labor of love, McKeown has taken a tighter focus. She deals with, but does not judge, a lingering controversy over Douglas’ work.
Douglas wrote his court opinions rapidly, rarely calling on clerks for drafting. He had favored targets, notably federal agencies that narrowly interpreted their duties and shut the public out of their deliberations. The Federal Power Commission decided to license a massive High Mountain Sheep Dam project that would flood Hells Canyon of the Snake River. The FPC saw itself as referee on competing dam proposals by public and private power. In Udall vs. Federal Power Commission, a majority opinion, Douglas took on the FPC and forced a widening of power project decisions. He quoted Justice Oliver Wendell Holmes that “a river is more than an amenity: It is a treasure.”
“The text (from Congress) is whether the project will be in the public interest,” wrote Douglas. “And that determination can be made only after an exploration of all issues,” which included “the public interest in preserving reaches of wild river and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife.” The opinion was key to a reevaluation of America’s deepest canyon. Congress voted in 1975 to create a Hells Canyon National Recreation Area, today a treasured recreation resource for the region. The bore holes of dam designers can still be viewed near the confluence of the Snake and Salmon Rivers.
Douglas’ well known “Trees have standing” opinion was delivered in the case of Sierra Club v. Morton, the conservation group’s ultimately successful bid to keep the Disney Corp. from developing a big ski resort at Mineral King Valley in the Sierras. It was a dissent with lasting influence in which he argues that “all the forms of life,” including inanimate natural objects, “will stand before the court, including the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams.”
Eloquent, but . . . Douglas had briefly served as a director of the Sierra Club and resigned as an honorary club member as the Mineral King case wound its way toward the Supreme Court. Of Douglas’ advocacy, McKeown writes: “His approach surely glossed over the ethical importance of the appearance of propriety, which bolsters public perception of the judiciary’s integrity and independence. Still, Douglas’s conception was consistent with his self-image as a citizen justice.”
Future President Gerald Ford took a run at impeaching Douglas for such conflicts. Republicans in Congress pilloried the justice. Today, of course, not a peep of criticism comes out of them over the deep right wing ties of Clarence and Ginny Thomas. Or Justice Samuel Alito’s advocacy that religious believers have a right to discriminate against those of whom they disapprove. Or court findings that corporations are entitled to plow unlimited sums of money into campaigns.
Douglas was a believer in freedom for individuals, not just corporations. He was forever a foe of meddling or imperious government. “The Court is not neutral,” he argued. “It was designed to take the government off the backs of people.” The present Court, with the Dobbs opinion, has taken away the right to reproductive choice for which Douglas voted in Roe v. Wade, and his put government on the backs of millions of American women facing intimate and deeply personal choices.
William O. Douglas was a character with character. He left an imprint on the law, and on the rivers and wildlands of the Northwest. I’ve thanked him every time signing a trail register in the Glacier Peak Wilderness. Citizen Justice is a delightful, educational, and occasionally provocative book.
(Judge McKeown will appear at Town Hall with ex-U.S. Interior Secretary Sally Jewell on Sept. 12, talking about her new biography.)