When you spent the weekend working by way of your leftover turkey, the conservative authorized motion embraced a brand new ardour challenge: digging up the stays of a long-dead Supreme Courtroom justice.
These individuals are very, very regular!
Justice William O. Douglas — nonetheless the longest-serving justice in Supreme Courtroom historical past, although Clarence Thomas seems hellbent on breaking this report in 2028 — a towering determine within the Courtroom’s civil liberties jurisprudence, has grow to be the newest little bit of rage bait for the American right-wing regardless of having shuffled off this mortal coil through the Carter administration. And whereas the present Supreme Courtroom majority continues to take a scorched earth method to his legacy, that’s apparently inadequate as we attain the “exhume our liberal enemies and defile their corpses” part of American conservatism.
The individuals who can not shut up about eradicating Accomplice statues as an affront to the useless are greater than able to play Weekend at Bernie’s with a liberal icon.
That’s Blake Neff, a producer for the late Charlie Kirk’s present, kicking off what can be the #DigUpDouglas hashtag if Twitter nonetheless used hashtags. Neff, as you would possibly recall, previously served as Tucker Carlson’s head author earlier than resigning from Fox Information when it got here out that he’d been posting racist content under a pseudonym that Fox Information executives labeled “abhorrent.” Clearly, a reliable arbiter of ethical character.
For the report, Douglas absolutely served in the Army during WWI. Douglas was inducted into the College students’ Military Coaching Corps at Whitman School in 1918, obtained a federal service quantity, and was honorably discharged. His December 1918 discharge papers establish him as “William O. Douglas, Serial No. 5200182, Personal S.A.T.C., Whitman School, U.S. Military.”
However how did we get right here… now? Nicely, the supply of the declare that Douglas lied about his service gained notoriety from Bruce Allen Murphy’s 2003 biography of Douglas, “Wild Invoice.” How did a biography from 22 years in the past find yourself on the conservative front-burner? This appears to be the fault of Professor and Volokh Conspiracy contributor Orin Kerr, who inadvertently resurfaced all of this earlier final week when he posted about a book review written by Judge Richard Posner and published in The New Republic.
Whereas Kerr by no means supposed to start out a marketing campaign to get Douglas exhumed, conservative social media is a huge raccoon rummaging by way of America’s ideological trash, so the discourse inevitably devolved from right here. Managing to seize the quintessence of American conservatism in a single sentence, Professor Yuan Yi Zhu writes, “3 days from Orin Kerr posting that Posner assessment for lolz to the producer of the Charlie Kirk Present calling for William O Douglas to be dug out of a cemetery.” Consider the conservative mental funnel like a twisted Easter. A libertarian tutorial says one thing on in the future, and on the third day proto-fascists demand to boost the useless from his tomb.
The trail from Kerr’s submit to Neff suggesting The Nice Dissenter ought to grow to be The Nice Disinterred, ran by way of different right-wing accounts leaping on Douglas’s grave. Nationwide Overview’s Dan McLaughlin racked up almost 300K impressions highlighting a passage from Posner’s guide assessment that drips with the kind of vitriol McLaughlin usually reserves for increasing the designated hitter rule or ladies believing in bodily autonomy.
Leaving for summer season trip earlier than the time period ended? Unforgivable! Until that trip is financed by parties seeking favor from the Court… then it’s simply good enterprise sense! Choose Posner’s assessment, learn holistically, isn’t totally damaging. That stated, Posner additionally took a detour to lambast Douglas for an opinion in a Nineteen Sixties case about constructing dams on the Snake River the place the justice wrote that the dam challenge “would hurt the salmon.” Quick ahead, and the sequence of dams at concern really did drive multiple salmon species to the brink of extinction. Hindsight is 20/20.
However Posner additionally describes Douglas as a person higher fitted to the presidency that the justice not-at-all-secretly longed for. Douglas’s abilities much better match the political area, which — Posner suggests — contributed to Douglas’s disdain for the judicial submit he ended up caught with. It’s a nuanced argument that spins out of Posner’s stance that judges aren’t geniuses, as a result of geniuses are incentivized to enter nearly any subject of human endeavor apart from the legislation. “Along with his intelligence, his toughness, his ambition, his management abilities, his large acquaintanceship in official Washington, his mixture of Western homespun (a favourite trick was lighting a cigarette by putting a match on the seat of his pants) and Japanese sophistication, and his charisma,” Posner writes, “Douglas might need been a superb Chilly Struggle president.”
Such an entire view doesn’t make it on social media, nonetheless. Whereas Posner explicitly famous that “One could be a unhealthy individual and a great choose, simply as one could be a good individual and a foul choose,” his article is getting chopped as much as give conservatives a possibility to denigrate the creator of Griswold as a result of he was a womanizing drunk.
This, by the way in which, is an precise advert hominem assault. Conservatives whine about “advert hominem” every time somebody calls them knuckle-dragging bigots whereas dismantling their newest disinformation submit about immigrants inflicting all murders, however that’s simply colourful commentary. Advert hominem is about substituting aspersions in regards to the speaker for argument… like suggesting the Structure shouldn’t shield the appropriate to contraception as a result of William O. Douglas hid mistresses in his chambers closet. The precise-wing enthusiasm for Douglas bashing is all about feeding their educated viewers of drooling MAGA hats an ethical villain that may stand in for the very concept that the Warren Courtroom is inherently suspect.
Which, as a technique, can be solely barely much less objectionable have been it not coming from individuals whose ethical compass factors unerringly towards a thrice-married, porn-star-fornicating, adjudicated digital rapist. Say what you’ll about William O. Douglas, the person wouldn’t be sweating in regards to the Epstein information. And a minimum of he didn’t spend WWI complaining about bone spurs.
It additionally helps to recollect why Douglas rests eternally in each Arlington Nationwide Cemetery and rent-free in conservative minds. Within the Church of Everlasting Grievance Farming, Douglas occupies a seat of honor. Not simply because the creator of Griswold, however as an architect that introduced environmental plaintiffs into court docket, creating no finish of inconvenience for the donors who fund right-wing summer camps for conservative legal luminaries to attend. Douglas’s free speech opinions acknowledged the federal government as one thing to be restrained, not an authority to force private actors to protect bigots from being canceled. And he’s the securities legislation knowledgeable who’s spinning in that grave at 50 terahashes per second that we now have a pretend foreign money financial system pushed by a president with a meme coin. After all they hate him.
Conservatives aren’t making an attempt to exhume Douglas as a result of they care about ethical uprightness. They’re relitigating William O. Douglas as a result of they want a tradition warfare villain who can permit them to chop the nook on making a coherent argument why the Structure ought to permit governments to police your bedrooms. It’s the identical motive why individuals who level out that Hugo Black as soon as belonged to the Klan (he later resigned and publicly rejected the group), are the identical individuals at the moment gleefully retweeting white supremacist accounts. The difficulty doesn’t matter, poisoning the nicely does. Black was racist, Douglas was a scoundrel… due to this fact all liberal jurisprudence is completely compromised.
Q.E.Dumbassery.
Again within the Nineteen Seventies, rumors of cognitive decline compelled Douglas from the bench. In 2025, Douglas’s detractors watch Trump’s every day and public shows of dementia and demand a 3rd time period. And, after all, there’s a non-zero probability that the nation’s chief govt ran throughout this whereas scrolling Twitter and is already sending backhoes to Douglas’s plot.
Joe Patrice is a senior editor at Above the Legislation and co-host of Thinking Like A Lawyer. Be happy to email any suggestions, questions, or feedback. Comply with him on Twitter or Bluesky in case you’re thinking about legislation, politics, and a wholesome dose of school sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.
