Tomorrow President Bush begins his second term, during which he will almost certainly appoint at least one new justice to the Supreme Court, which has enjoyed the longest period of stability since the 1820s. And by coincidence today marks precisely a quarter-century since the death of Cascadia’s sole Supreme Court Justice, William O. Douglas. Not only was Douglas the longest serving justice in the court’s history, he was also perhaps the most environmentally concerned.
Douglas’ boyhood adventures in the Cascade Mountains blossomed into a lifelong love affair with the outdoors that he later described as having “a spiritual significance.” He counted among his friends, not only lawyers and politicos, but also ranchers, trappers, foresters, guides, and conservationists. Douglas wrote extensively about the landscapes and characters of Cascadia, leaving behind a roster of books with titles like Of Men and Mountains and A Wilderness Bill of Rights.
Unfortunately, Douglas’ non-judicial writing sometimes lapses into self-indulgence—a little like listening to an old hand spin yarns around the campfire. But luckily for newcomers to Douglas’ corpus, James M. O’Fallon, a professor of law at Oregon State University, has recently compiled a good selection of Douglas’ writing in a new volume, aptly titled Nature’s Justice: Writings of William O. Douglas. It’s a great place to start. Or for a short biography, try this one at Historylink.org.
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Douglas was a curious sort of activist judge—he was both an activist and a judge. On several occasions, he left his black robes hanging in the closet while he led headline-grabbing hikes to preserve important natural areas, like the Olympic Peninsula’s coastal wilderness or the Chesapeake and Ohio Canal. The publicity he generated resulted in both areas winning greater protection under the national park system. He was also instrumental in the passage of the landmark Wilderness Act of 1964 and in numerous other conservation victories.
Not surprisingly, Douglas had his share of critics who maintained that his off-the-clock activism eroded his credibility and impartiality. (And the criticism continues today; a bruising biography was published in 2003.) He was also variously accused of communism, philandering, alcoholism, telling tall tales, and even sloppy writing. Some of the charges were well off the mark—he was an outspoken critic of communism.
Despite the ire he aroused, Douglas left behind a proud judicial legacy of staunch environmental protection, safeguards for individual rights, and social justice. Unforunately, many of today’s men and women in black are not as green as Douglas was. In fact, many environmental legal groups worry that a Bush-configured high court will have troublingimplications for land, air, water, and species’ protection.
If Chief Justice William H. Rehnquist steps down—a near certainty owing to his age, 80, and thyroid cancer—President Bush will replace not only a Justice; he will get to name a new Chief Justice to boot. Justices John Paul Stevens, 84 years old, and Sandra Day O’Connor, are also rumored to be considering retirement. Even a single replacement on the Court will make a big difference, because these days the justices are often narrowly split on controversial issues.
In Cascadia, the Supreme Court may play an especially big role. Much of the region will continue to be defined by often-litigated environmental issues such as resource extraction, public lands use, growth management, air and water quality, and species recovery. Specifically, the new Supreme Court will have a hand in re-interpreting the alphabet soup of environmental legislation—ESA, NEPA, CWA, CAA, CERCLA—that Douglas prepared the way for. And through the details of constitutional interpretation, the Supreme Court can alter the way lower courts consider standing, takings, property rights, Congressional authority, and states’ rights. Each of these issues can restrict environmental protection in significant ways.
If the contentious political arena wears you out this week, it’s worthwhile to recall a justice who was informed not only by case law and precedent, but by 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.”