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Justice Douglas’ Real Roots Were in the Wilderness: Q&A with Judge M. Margaret McKeown

Felicity Barringer
Jun 17 2020

If other figures in American law are celebrated for what they changed, the late Supreme Court Justice William O. Douglas has been celebrated for what he kept unchanged.

Dewey Lake in the William O. Douglas Wilderness in Washington State, near Mount Rainier

Dewey Lake in the William O. Douglas Wilderness in Washington State, near Mount Rainier.   Dave Pettinger, U.S. Forest Service via Flickr

By Felicity Barringer

Yakima, Washington, with its orchards and hills and a railroad to bigger places, was a starting point for the late Supreme Court Justice William O. Douglas. But those who study his life and his jurisprudence could be forgiven for thinking that, even if his real roots were in Yakima, his spirit had its roots in America’s wilderness.

Judge M. Margaret McKeown, United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, based in San Diego.

Judge M. Margaret McKeown, United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, based in San Diego.   Wikimedia Commons

After graduating from Whitman College in Washington, Douglas completed Columbia Law School, and taught at Yale Law School before he found his way to Washington D.C., focusing on securities law. Franklin Delano Roosevelt appointed him to the Supreme Court in 1939.

If other figures in American law are celebrated for what they changed, Douglas has been celebrated for keeping things unchanged. Thanks in part to his protest hikes and legal efforts, there is no big highway along the C&O Canal in Washington, D.C., no dam across the Red River Gorge in Kentucky, and no huge Disney resort in Mineral King Valley in California’s southern Sierra Mountains.

Judge M. Margaret McKeown, a member of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, has studied Douglas’s life and law; her book on the justice is nearing completion. At a recent talk at Stanford University’s Bill Lane Center for the American West, she described Douglas as “A loner, a non-conformist, an individualist.” His Supreme Court opinions were often dissents – 486 of them. As Judge McKeown said, “You don’t dissent for today. You dissent for the future.”

Here are Judge McKeown’s answers to questions about Justice Douglas’s life, his legal theories, and the role he played in the growth of environmental law.


What are the roots of Justice Douglas’s commitment to nature, wilderness and open spaces? How did he express this commitment in his earlier career? Which Western places were most influential on his views?

As a child, Douglas was sickly with polio, so the paths and mountains nearby his home in Yakima were both an escape and also a chance to build strength in his legs. He was inspired by the solitude and beauty of the wilderness and he honed a deep understanding of the ecology, wildlife, and plant life of the region. Mt. Rainier, the Cougar Lakes, and the Goat Rocks areas of the Cascade Mountains were among his favorite places. In later years, he ventured to the Rocky Mountains, the Appalachian Mountains, the Big Thicket in Texas, and other places of natural beauty in the United States, like Maine. He also took early exploratory trips to Tibet and the Middle East.

Who influenced his views of these issues the most? Have you found letters of other recordings of the kinds of discussions that went on over distant campfires, and how these affected him?

After a brief stint in California, his preacher father moved the family to the small town of Cleveland, Washington, near the Oregon border. He was six when his father died and his mother resettled in Yakima, Washington. At his father’s funeral, he could see the majestic Mt. Adams, a glaciated peak that is part of the Cascade range. He often spoke of the mountain in personal terms: “Adams subtly became a force to me to tie to, a symbol of stability and strength.” His father’s spirituality was a legacy. The mountains were his chapel and the wilderness his spiritual inspiration. He had several good boyhood hiking companions. This story of his reverence for nature and the mountains is best told by Douglas in his 1950 book, Of Men and Mountains.

Thanks in part to his protest hikes and legal efforts, there is no big highway along the C&O Canal in Washington, D.C.

In 1954, Justice Douglas and nine companions hiked the entire 184 miles of the Chesapeake and Ohio Canal towpath (top row); he was greeted at Fletcher’s Cove in Washington, D.C. by the Secretary of the Interior, Douglas McKay (bottom left); seen in 2015, the canal (lower right) became a National Historical Park in 1971.   National Park Service; Henk Sijgers via Flickr;

What are the roots of Justice Douglas’s commitment to nature, wilderness and open spaces? How did he express this commitment in his earlier career? Which Western places were most influential on his views?

The awakening of his public advocacy came in 1954 when he learned that there was a plan to build a parkway to the C&O Canal, near Washington, D.C. He read an editorial in the Washington Post supporting the proposal and wrote a counter piece challenging the editors to hike with him to see for themselves why a parkway would be a travesty. They accepted the challenge. Douglas, along with nine companions, hiked the entire 184 miles of the towpath along the canal. Among those who finished with him was Olaus Murie, Director of The Wilderness Society and a noted wildlife biologist. They became close friends and collaborators. Though the Post editors weren’t among those who went the entire distance, the hike and Douglas’ advocacy changed their mind. The parkway was never built. A statue commemorating Douglas’ role and inspiration can be found at the beginning of the C&O towpath.

Justice Douglas photographed in 1939.

Justice Douglas photographed in 1939.   Harris & Ewing via Wikimedia Commons

How did he end up being selected for the Supreme Court?

During his time as a law professor at Yale, he developed a specialty in business reorganization and bankruptcy. He began commuting to the Securities and Exchange Commission in the District of Columbia, where he headed a special study. Soon after he was appointed as a Commissioner. His patron was Joseph Kennedy, then Chair of the SEC. Within a few years of his arrival in DC, Douglas became Chair of the SEC.

When Justice Brandeis announced he was stepping down from the Court, Roosevelt wanted to appoint a westerner. Douglas’ name was in the mix, in large part because of his political connections and because he was Brandeis’ choice. However, there were those who doubted his western credentials because, by then, he had been on the east coast since the early 1920s. A United States Senator from Washington State was a key contender, but he was undermined by political enemies. Douglas was appointed in 1939 at age 40.

How much influence did his connections to nature and his strong feelings about conservation affect the court’s decisions? Was he a persuader who affected the judgment of his colleagues, or a dissenter who wrote great opinions that had little practical effect?

Scholars have criticized his decisions as not being sufficiently scholarly. But he wrote for the public and for posterity, not for law review articles. He wrote path-breaking decisions in the privacy and due process areas. His decisions in the environmental area are limited because true environmental cases did not come to the Court in large numbers until late in his career. However, he authored a number of important dissents from the Court’s failure to hear various environmental cases.

During his 36 plus years on the Court, he dissented in 486 cases. He was not one to lobby his fellow justices to adopt his views. As he said, “I haven’t been much of a proselytizer on the Court. I’ve had the theory that the only soul I had to save was my own.”

The Mineral King Valley in the Sierra Nevada mountains.

The Mineral King Valley in the Sierra Nevada mountains. HikingMike via Flickr

Which case inspired Justice Douglas's most eloquent defense of and appreciation for public lands?

Sierra Club v. Morton (1972). The case involved a proposal by Walt Disney Corporation to build a ski resort in Mineral King Valley in California. The Court determined that the Sierra Club did not have standing to bring the case because the Club had not claimed direct injury to its members. In his dissent, Douglas argued that nature, such as trees, lakes, and wildlife, should have standing to sue for their protection in their own right.

After further court proceedings and the passage of time, Disney decided to abandon the project. The ski resort was never built.

 

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Arizona’s Drought Intensified as Seasonal Monsoons Again Turn Into “Nonsoons.” With temperatures in Phoenix exceeding 110 degrees for days on end and the three-month period ending in June was the second hottest and third driest in 125 years. Populous Maricopa County, including Phoenix and Scottsdale, is in a severe drought. The impact on the water levels at Lake Mead, which is now at 40 percent of capacity, will mean that Arizona, Nevada and Mexico will receive less water from the Colorado River. Arizona Water News Arizona Republic

Some Oregon Forest Land Would Be Lost as Spotted Owl Habitat if a federal Fish and Wildlife Service proposal becomes final. The proposal would take 204,653 acres, or 2 percent of the total of 9.6 Million Acres, from the area of ancient forests designated as critical habitat and set aside as habitat for the endangered owl. Oregon Public Broadcasting

With Ice Disappearing, Pacific Walruses Are Moving Sooner and Sooner to Beaches of Alaska’s Chukchi Sea. They just gathered at Point Lay at the end of July, earlier than ever before. The walruses had evolved to use floating ice as platforms for foraging and rearing their young. But for the past 13 years, after the first year of a record-low extent of sea ice, they have been moving to the Point Lay site by the tens of thousands every summer. Arctic Today

A Colorado Lab Works to Prepare the National Electric Grid for a Renewable Future. A scientist used this metaphor to describe the challenge of retrofitting the three power grids to let them handle the upcoming changes: It's like updating a reliable 1957 Chevrolet for the complex technologies and climate-related hazards of the 21st century. What was recently unveiled at the National Renewable Energy Laboratory in Golden, Colorado is a proving ground for the high-tech creations and will test the impacts of battery- and hydrogen-powered energy storage systems and large increases of renewable energy. Scientific American

Graphics & the West

Where California Grows Its Food

See the most detailed survey ever done of crops and land use in California. It covers nine million acres of land devoted to grapes, alfalfa, cotton, plums, you name it – food for people and animals all over the world. View map »

California's Changing Energy Mix

A look at the energy sources California utilities have used gives us insights into the state’s progress in decarbonizing its electricity supply. In 2015, 35% of total electricity generation (in-state generation plus imported electricity) came from zero-greenhouse-gas sources, which include solar, wind, hydropower, and nuclear. View Graphic »

U.S. Conservation Easements

Conservation easements of various kinds cover more than 22 million acres of land in the United States, according to the National Conservation Easement Database, a public-private partnership. Take a look at our interactive map of nearly every conservation easement, with details on over 130,000 sites. View map »

 

Recent Center News

Oct 21 2020 | CivicPulse | Center News, Happenings, Topics of the West
Bill Lane Center partnership with CivicPulse yields new report on patterns of local protest against coronavirus restrictions across the United States
Oct 20 2020 | ... & the West Blog, ... & the Best | Stories Recommended by the ‘... & the West’ Blog
Indigenous fire practices in California; Dam operators and activists join forces; Montana coal prospects dim; Statehood for the Navajo Nation? and more recent environmental reads from around the West.
Oct 12 2020 | ... & the Best | Stories Recommended by the ‘... & the West’ Blog
California plans to conserve 30% of state’s land and water; Montana asks court to throw out major public lands decisions; EPA grants Oklahoma environmental oversight over Indian Country; Los Angeles plans trout recovery and more recent environmental reads from around the West.