Washington Law & Politics
June/July 2005 LAW OF NATURE By Eric de Place In the long history of the U.S. Supreme Court, only a single justice has hailed from Washington state. But William O. Douglas, who died 25 years ago, was the longest sitting Supreme Court justice in American history, presiding for 36 years and 7 months. As change, perhaps radical change, lurks just around the corner for today’s Supreme Court, now seems a good time to remember the legacy of our native son, whose passion for protecting the environment has never been duplicated on the court. An appointee of Franklin D. Roosevelt in 1939, Douglas was a misfit on the high court from the beginning. A prickly crusader from sagebrush country, he maintained a streak of progressive politics and sheer cussedness that made him a lightning rod for the right wing. He was variously accused of communism, philandering, alcoholism, tall-tale telling, and sloppy writing. He even weathered a brief impeachment attempt. Some of the charges were well off the markDouglas was a vociferous critic of communism, for example—but others hit closer to home. His legal prose has perplexed law students for decades and his personal life was, well, unfettered by convention. He was married four times (and divorced three); each of his last two wives was more than 40 years his junior. A quarter century after his death, Douglas is still controversial. His legal interpretations are decidedly out of step with those of most justices on the present court, and critics still flog him as an activist judge nonpareil. They argue that his off-the-clock convictions eroded his judicial credibility and impartiality. In fact, a bruising new biography published in 2003—Wild Bill by Bruce Allen Murphy—argues that Douglas was a lazy, dishonest political careerist. Unfortunately, the spleen directed at Douglas’ legacy on the Supreme Court perhaps overshadows his environmental legacy, which should be a source of pride for the Evergreen State. Douglas was instrumental in many conservation victories. On several occasions, he left his black robe in the closet while he led headline-grabbing hikes to preserve important natural areas. In 1958, he hiked the coastal wilderness of Olympic National Park to protest planned roads there. The publicity he generated helped win permanent protection for the rugged northern beaches. And his conservation activism was not confined to his native state. Imagine a 55-year-old Supreme Court justice challenging the editors of The Washington Post, not to a policy debate, but to hike 185 miles with him, 23 miles a day. In 1958, the editorial board favored building a highway along the historic Chesepeake and Ohio Canal. Douglas felt that if they understood its rich natural heritage—best learned by walking its entire length—they would change their minds. The editors joined him, reversed their position and supported preservation of the canal. Seventeen years later it became a national park. To understand Douglas and his passion for natural places, you have to return to his boyhood adventures in the Cascade Mountains--a subject he seldom tired of recounting. In later autobiographical writing he may have exaggerated his early forays into the wildlands near Yakima. One has to wonder, for example, whether he really hiked 40 miles of mountainous terrain in a single night while carrying a 30-pound pack. In any case, his devotion to Washington State’s wild places was utterly in earnest. As an older man he wrote in Of Men and Mountain, “My young experiences in the high Cascades have placed the heavy mark of the mountains on me.” His early explorations in the Northwest’s mountains blossomed into a lifelong love affair with the outdoors. It had for him “a spiritual significance.” He wrote extensively about the landscapes and characters of the Northwest, leaving behind a roster of books including A Wilderness Bill of Rights. Unfortunately, reading Douglas’ non-judicial writing is a little like listening to an old hand spin yarns around the campfire after one too many pulls at the flask. But luckily for newcomers to Douglas’ corpus, James M. O’Fallon, a law professor at Oregon State University, has recently compiled a good selection of Douglas’ writing in a volume aptly titled Nature’s Justice. Even in the other Washington Douglas’ heart was back home—he was the quintessential homesick Northwesterner. He daydreamed about fly fishing while listening to appellants, and he baffled attendees at Beltway cocktail parties by reminiscing about high country trails. Though Douglas’ grave lies in Arlington National Cemetery, his spirit inhabits the federally protected William O. Douglas Wilderness Area just east of Mount Rainier. Its 166,000 acres of clean, rugged country features big ponderosa pines at low elevations, giving way to subalpine parkland and craggy summits. The wilderness is resonant with his youthful adventures; and the mountains there, “have the roar of torrents and avalanches in their throats.” Douglas’ conservation legacy is poignant today, given the changes that are likely in the offing for the Supreme Court, which has enjoyed the longest period of stability since at least the 1820s. If William H. Rehnquist steps down soon—a near certainty owing to his age, 81, and thyroid cancer (plus his likely desire to have a conservative replace him on the bench)—President Bush will replace not only a justice, he will name a new chief justice to boot. John Paul Stevens, 86, and Sandra Day O’Connor, 76, are also rumored to be considering retirement. Given the court’s narrow split on controversial issues, even a single replacement will make a big difference. And because today’s men and women in black are not so green as Douglas, many environmental advocates worry that a Bush-configured high court will have worrisome implications. Writing in the May issue of the Atlantic Monthly, Benjamin Wittes argues that a conservative judiciary poses a greater threat to the environment than to any other progressive bulwark, including abortion and civil rights. He points out that in the arcania of expanding the meaning of takings, restricting standing, and limiting the commerce clause, lies a “threat to basic environmental protections… [that] is broad-based and severe.” Tightening the definition of standing can make it harder for environmental advocates to bring lawsuits. Loosening the definition of takings to include “regulatory takings”—that is, regulations that reduces property value—can greatly weaken environmental laws by forcing governments to pay landowners for property value reductions that result from regulation. And restricting the commerce clause –a danger Wittes calls “hard to overstate”—could, for example, severely curtail the ability of the federal government to protect species that inhabit only a single state. It’s easy to imagine how Douglas would have greeted attempts to reinterpret the environmental legislation he helped prepare the way for. And it’s easy to imagine what he would have said about proposals to drill for oil in the Arctic National Wildlife Refuge (“This last remaining wilderness must remain sacrosanct,” he once argued in its defense). But it’s harder to imagine Douglas on the bench today. What would we make of a firebrand justice with a literary flair? It’s not often anymore that our leaders recall our enduring connection to nature. “We look to the heavens for help and uplift,” he wrote in My Wilderness: Pacific West, “but it is to the earth we are chained; it is from the earth that we must find our sustenance.”
--Eric de Place is senior research associate at Northwest Environment Watch, an independent, not-for-profit research and communication center based in Seattle. Read more of Eric's publications.
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