The Law: Mooting Justice Douglas

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Whatever his troubles—a near fatal riding accident in 1949, three impeachment threats or, most recently, a severe stroke—Justice William O. Douglas, 76, has crustily refused to remove his unique voice from the Supreme Court. But last week, as the current term was moving toward the latest regular-session adjournment in history, it was learned that Douglas' fellow Justices had quietly moved to moot the great libertarian by unofficially discounting his vote.

Since his stroke on New Year's Eve, the court has announced no 5-to-4 vote that relied on him as part of the majority. After interviews at the court, TIME Correspondent David Beckwith reports: "A consensus has emerged among the Justices that no opinion should be issued that depends on Douglas as the decisive vote. Court sources deny that any agreement was formally ratified. But a majority apparently decided that both justice and the appearance of justice would be better served if Douglas were physically present for cases in which he was the critical vote."

In a pending case on the death penalty, for example, Douglas made a special effort to attend the oral arguments in his wheelchair, but he missed conferences at which the case was discussed. In 1972 he had been part of the 5-to-4 majority that had declared the differing and "arbitrary" applications of capital punishment to be unconstitutional; the current case was to test a new scheme for mandatory imposition of the death sentence. Last week the Justices decided to postpone any decision and hold the case over for reargument next fall. As usual, no reason was given. But sources state that Douglas' vote was a key one. (Some Justices also thought the specific case too technically flawed to serve as the basis of a major ruling.)

Wrong Names. In recent months there have been reports that Douglas was getting some coworkers' names wrong and that he once even mistook his own chambers for those of Chief Justice Warren Burger. He has chosen not to participate in some 25 cases and has not written a major opinion in 1975, though he has filed a few short dissents. In one such dissent last week he gamely reiterated his feeling that the court is not overworked, as the Chief Justice persistently argues. Wrote Douglas: "I have found it a comfortable burden carried even in my months of hospitalization."

Many court observers wonder. As of last week, the Justices had held over eleven cases until next fall, one of the highest totals in memory. After last week's output of 24 cases, the court had eight to dispose of before it could close for the summer this week. The even larger than usual last-minute caseload is at least partly due to the Douglas disability. During the vacation, the other Justices hope that the still hospitalized Douglas will be able to recuperate sufficiently to resume his duties. No one now believes he will retire willingly. Indeed, he is said to have prepared a scathing answer to anyone who has the temerity to ask him.