Introduction

Abstract

Introduction Philip E. Urofsky Soon after President Franklin D. Roosevelt appointed him to the Supreme Court, Justice William O. Douglas began keeping an official diary — a diary clearly intended as the basis for a future autobiography and limited solely to the public part of Douglas’s life: the Court, politics, and personalities. The “voice” ofthis diary, two years of which have survived, is the same voice as the Douglas ofGo East,Young Man and The Court Years: a Douglas intending only to give his opinion on whatever struck his fancy, but not willing to allow anyone into his personal life. For instance, his children are only mentioned twice: in his description of his swearing-in ceremony at the Court and in referring to his difficulty in explaining to his son the Jehovah’s Witnesses’ position in the first flag salute case. Similarly, in his discussion of his work on the Court, he never mentions his own staff, although he refers occasionally to other Justices’ clerks. Taking it on its own terms, several themes emerge in the diary. First, Douglas clearly did not, if he ever did, retreat into the monastery of the Court in his first few Terms. The diary is sprinkled with references to meetings with Presi­ dent Roosevelt, including references to helping him draft a significant speech on the European war, advising him on the 1940 campaign, and, of course, attending the famous poker parties. Douglas also discussed policy and politics with many members ofthe Roosevelt Administration, such as Harold Ickes. Finally, Douglas was him­ self the apparently involuntary object of politi­ cal speculation, with many of his friends pro­ moting him for the vice presidential spot in Roosevelt’s 1940 campaign. A second theme is Douglas’s near-worship of Louis D. Brandeis, whose seat on the Court he took, and his sensitivity to Brandeis’ opinion on everything from the decisions of the Court to politics. In the diary’s very first entry, Douglas describes how he and the President spoke oftheir shared acceptance of Brandeis’ views on The Curse of Bigness. During the period leading up to the 1940 Democratic Convention, Douglas mentions several times Brandeis’ disapproval of rumors that Douglas would be asked to run for Vice President, and he states that, at Brandeis’ urging, he publicly disavowed any wish to leave the Court and, further, delayed publication of a collection of his works to avoid any appearance of courting the nomination. Brandeis’ presence was also felt on the Court as Douglas reports instances in which both Chief Justice Charles Evans Hughes and Justice Felix Frankfurter invoked his name and claimed his support to obtain a majority on a particular opinion. In one of the most significant instances, Douglas states that he joined Justice Frankfurter’s opin­ ion in the first flag salute case in large part because Brandeis had “no doubts” that Frankfurter’s position was correct. Finally, although Douglas does not go into detail on any ofthe cases decided in the first two Terms ofthe Court, the cases he chooses to men­ tion highlight several themes that marked his jurisprudence. First, throughout these Terms, the Court wrestled with the difficult issue of double taxation. During the Depression, the states sought new revenue by taxing any intan­ gible assets that had even a tenuous connection to the state. This, of course, resulted in several states attempting to tax the same asset, such as the capital stock of a corporation incorporated in one state but doing business in another. Chief Justice Hughes, with other members ofthe “Old Court,” pushed throughout this period for the Court to adopt, on constitutional due process grounds, a rule permitting taxation only in the state in which the intangible assets had a “busi­ ness situs.” The “New Court,” the Roosevelt appointees and Justice Harlan Fiske Stone, resisted this manifestation of substantive due process, stating, as Douglas succinctly puts it in his diary, “I certainly have not been able to find anything in the constitution about “business situs.’” In these cases, as in several others, the Roosevelt Court, two years after “the switch in time that saved nine,” solidified its opposition to economic substantive due process and DOUGLAS DIARY 79 declared...