Whose Ox is Gored?

Honorable Stephen Reinhardt, Whose Ox is Gored?, 35 Gonz. L. Rev. 1 (1990).

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It is a great honor to deliver the annual William O. Douglas address. Justice Douglas is a hero of mine. He had a broad view of the Constitution; a sweeping vision of the law. He cared deeply about justice and about the rights of the individual. He was a champion of civil liberties and civil rights. Although his term began some 14 years before Earl Warren was appointed Chief Justice of the United States,’ Justice Douglas symbolized all that was best about what came to be known as the Warren Court. It is undoubtedly no accident that Earl Warren and William Brennan, both appointees of a Republican President, surprised and dismayed that President by their rapid growth and development following their appointment to the Court. And surely it was no accident that they both rejected the arid, technocratic approach of the leader of the conservative wing of the Court, former Harvard professor Felix Frankfurter, and adopted in its place the views previously expressed, largely in dissent, by Justice Douglas and sometimes Justice Hugo Black. In retrospect, it seems like an easy choice for men of compassion like Warren and Brennan, but, then again, when one observes the technocrats, proceduralists, and literalists who dominate our courts these days, maybe it was not so easy after all. And maybe even a Bill Douglas could not make the vision that so deeply marked his era a prevailing vision today – in this era in which each branch of government so sorely disappoints idealists and men and women of  principle – when those of little vision dominate our public life. Yet Justice Douglas’ thirty-five years on the Court will never be forgotten, and one cannot help but think how much and how frequently we miss his commanding intellect and overpowering passion.

It was the year I graduated from law school that Justice Douglas and the rest of the Warren Court decided Brown v. Board of Education. Brown, perhaps the most important Supreme Court decision in history, was the forerunner of the new judicial era for which Justice Douglas had fought- an era in which the courts became the protectors of the rights of the poor, the disenfranchised, and the underprivileged. The Court in that golden era expanded concepts of equality, due process, and individual liberty, handing down decisions that redefined notions of justice and fairness.

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