Posted by Eugene Volokh:
Professor Scot Powe on Judge Posner Quoting Professor Bruce Murphy on Justice
Douglas:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1153853100
Scot Powe, a constitutional law professor I much respect, who knows a
good deal about Justice Douglas -- he clerked for him, and he wrote a
history of the Warren Court -- writes:
The problem is that Posner believed everything Murphy wrote when in
fact much was in error (as [1]my review in Reviews in American
History showed).
Here are some more specific criticisms of Murphy's book, from Powe's
review, which is also a good and short read (paragraph break added):
Murphy believes [Douglas's claim of having been striken with polio
as a child] was a fabrication. Yet most of Douglas�s symptoms and
treatment were consistent with polio. We will never know what
Douglas had, but Murphy has not shown what he claims, that Douglas
knew he did not have it.
Similarly, Douglas was always a top student and all biographies
note he was number two in his Columbia Law School class, but this
is not quite accurate. He was near the top of his Columbia class,
but not number two. Again, however, Murphy assumes Douglas is
lying, although his evidence does not show that Douglas did not
simply make an honest error. [endnote: The records of Columbia�s
class of 1925 are still not public.] Furthermore Douglas had been
terribly sick at two, and doctors thought he would die; he worked
all kinds of jobs for the money that his family always needed; he
was a whiz at school and never could devote himself full-time to
his studies. And not many people would survive, as he did in 1949,
a horse rolling over them on a mountain side, breaking twenty-three
ribs plus collapsing a lung, much less return as quickly as
possible to the outdoors. If he created myths, the reality did not
stray so far from the myth....
Murphy's conclusion is a gratuitous slam at Douglas for being
buried at Arlington National Cemetery under false pretenses. Here
Murphy stretched the data too far by concluding that Douglas was
not a private in the United States Army during World War I because
he was merely in the equivalent of the ROTC at Whitman College. But
Douglas was, as he claimed, inducted in and honorably discharged
from the United States Army and the relevant documents are in both
the Library of Congress and the Cravath law firm file on Douglas.
Douglas also did not claim, as Murphy implies, that he served in
France.
Powe also defends Douglas's protecting the First Amendment rights of
Communists, his "cleaning up Wall Street" in the 1930s, and his
"prescient environmentalism."
References
1. http://muse.jhu.edu/journals/reviews_in_american_history/v031/31.3powe.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
