I still remember how angry I was at Justice Marshall for what I perceived as undue timidity. As the years have gone on, I have come to realize that his insistence on respecting the views of his Supreme Court colleagues was one of the great acts of judicial principle that I have ever witnessed.
A Cross-Country Hail Mary
Disappointed, I left Marshall’s Supreme Court chambers and called the “Douglas desk” at the ACLU. In those days, the ACLU kept a 24-hour watch on the whereabouts of Justice William O. Douglas, in case an emergency vote was needed to slay a dragon, square a circle, or stay an execution. Douglas — the first commissioner of the Securities and Exchange Commission, FDR’s first-choice for vice president in 1944 (Democratic Party leaders insisted on Harry Truman), the leading counter-weight to Joe McCarthy during the 1950s, among the greatest defenders of free speech in the Supreme Court’s history, and a passionate friend of the environment (Douglas once ruled that trees had standing to protect themselves) — was my best chance at reinstating Judd’s injunction.
Under the Supreme Court’s rules, there was still enough daylight to play another inning.