Debunking Douglas: The Case Against Writing Both Majority and Minority Opinions

Abstract

Debunking Douglas: The Case Against Writing Both Majority and Minority Opinions CRAIG ALAN SMITH Introduction In the annals of Supreme Court history, Meyer v. United States was hardly notewor­ thy. Decided by a six to three majority and announced in late November 1960, the case by all appearances was a run-of-the-mill federal tax question involving a disputed marital deduction on estate taxes paid.1 Although treated favorably by Shepard's citations, Meyer did not become a significant precedent, and no one outside the parties involved, their lawyers, or the Justices (at least, for a few weeks) paid any attention to it. Not so for the legacies ofJustices Charles Evans Whittaker and William O. Douglas. Although Whittaker was the second person ever to serve at all three levels of the federal judiciary,2 he was still rated a judicial “failure” by sixty-five legal and political experts in a 1971 survey.3 The only Missou­ rian and first native Kansan appointed to the Supreme Court, Whittaker’s five years of service were routinely dismissed as ineffec­ tive or insignificant. Shortly after Whittaker’s resignation, Leon Friedman prepared a bio­ graphical sketch portraying him as “not fitted intellectually or physically for the job.” Relying on Friedman, Victoria Woeste con­ cluded Whittaker “was in eveiy way unsuited for his exalted position.”4 Criticized for making inconsistent decisions, struggling with making decisions (or changing his mind once he made a decision), Whittaker’s weakened reputation was further tarnished when he (supposedly) failed to write the majority opinion assigned to him in Meyer v. United States. William O. Douglas, on the other hand, was the longest serving Justice in history. His feats were truly remarkable, often controver­ sial, and some were arguably unbelievable. Touted more than once as a vice presidential candidate while on the Bench (each time unsuccessfully), Douglas left an indelible stamp on Supreme Court history with his 228 JOURNAL OF SUPREME COURT HISTORY four marriages (a couple to women less than half his age), several calls for his impeach­ ment, wide-ranging publications based on his world travels, and nearly being killed when the horse he was riding fell on him.5 Stories of Douglas’s youth hiking through western mountains to overcome polio seemed fabled, and, according to one Douglas biographer, they probably were.6 Even Douglas’s rela­ tions with his law clerks contributed to recent debates over just how cruel a taskmaster he really was.7 Setting aside the hype, however, there was one Douglas legend that for over thirty years became so commonplace as to scarcely need attribution. According to Douglas himself, he wrote the Court opinion and the dissenting opinion in Meyer v. United States. Considering Douglas’s prodigious work out­ put and Meyer's relative obscurity, this claim was accepted by at least a dozen different authors as evidence of another memorable act in Douglas’s long list ofaccomplishments. As Supreme Court historical trivia, the story of how one Justice wrote the majority and minority decisions in the same case was repeated and regaled. Unfortunately, none of it was true; Douglas embellished it beyond credulity. More tragic, though, than the gullibility ofscores ofDouglas commentators was the irreparable damage this innocuous story did to Whittaker’s reputation once he became the unwitting buffoon of another Douglas tall tale. This article analyzes the persistency of Douglas’s story and presents how various sources (including Douglas) used it to perpetuate his legacy while denigrating Whittaker. This textual analysis reveals inconsistencies with other factual circum­ stances that made Douglas’s story all the more suspect. While the earliest sources who believed Douglas could be excused their naivete, later sources were guilty of inexcus­ able laxness for preserving such a preposter­ ous story without verification (even Douglas related inaccurate facts). It was more conve­ nient—some might say plausible—to cast Douglas as the genius behind two written opinions and Whittaker as the incapable rube who needed assistance. The truth found in the historical record (hidden in plain sight for thirty years) proved far more revealing for both men’s characters. Not only was Dou­ glas’s story untrue, but the truth cast Whittaker in a more positive...