May 2003

Anatomy of an Anecdote

by Lindsay Thompson

John N. Rupp, Bar News's first editor, was one of the best writers — and by far the best storyteller — I ever met. When I joined the line of his successors in 1988, he wrote me a letter of congratulation so offhandedly elegant I was at once charmed and intimidated. You felt you'd known him forever, and his lapidary prose was so effortless I used to tell friends I'd bet John Rupp's grocery lists were funnier than the best things I'd ever written.

We traded letters and stories — we were both fans of P.G. Wodehouse — for seven years. We met, finally, in 1995 as I was leaving the editorship. Not too long after, he died, having been a member of the Bar for nearly 60 years.

From time to time Mr. Rupp would send one of his little 1,500-word stories to me for consideration by Bar News. They always went in, because they were funny and illuminated bits of Washington's past (his father was a lawyer before him, so his knowledge of the Bar went back to statehood), and they always generated lots of letters from readers whose memories had been triggered by his tales. So when "The Douglas-Fortas Connection" "came over the transom," as Mr. Rupp used to describe how he got work, I ran it in the magazine 10 years ago this coming July.

I pulled out the article again recently as the filibuster of Abe Fortas's nomination for chief justice returned to the headlines in the debate over the nomination of Miguel Estrada to the D.C. Circuit bench, and as Random House published Bruce Allen Murphy's impressive new biography, Wild Bill: The Legend and Life of William O. Douglas, America's Most Controversial Supreme Court Justice (2003, 713 pp., $35). When I bought a copy, I immediately thumbed the index to see if Professor Murphy had found any additional light to shed on Mr. Rupp's reminiscence.

And he does. According to Murphy, someone at the ACLU telephoned Whistlin' Jack Motel — the closest phone to Justice Douglas's ranch — to tip him that New York representative Elizabeth Holtzman and others had sued to stop President Nixon's bombing of Cambodia. A New York federal judge issued a stay of the bombing July 27, 1973, but it was overturned by the 2nd Circuit Court of Appeals. Opponents of the war needed to find a Supreme Court justice to issue a stay until the full Court could hear the matter in the fall.

The effort was symbolic to some extent, as Congress had voted to terminate funding for the bombing as of August 15, 1973, "but the symbolism of having the Court stop the war for any period of time, no matter how small, could not be overlooked," Murphy writes. "Congresswoman Holtzman had asked Justice Thurgood Marshall to issue an order immediately ending the bombing in Cambodia, but he was expected to refuse, and now they wanted Douglas to stand ready to rule on the matter."

Douglas, on receiving the message, drove down to Whistlin' Jack to use the pay phone "so that he would not be overheard by any electronic surveillance that he suspected existed inside the hotel." Douglas informed the ACLU he'd rule after holding a hearing on the matter in the Yakima County Courthouse.

Justice Marshall declined to rule, as predicted, on August 1, 1973, citing the Court's past rulings declining to rule on the constitutionality of the war. Douglas stepped up to the plate and held a hearing in Yakima August 3. After the hearing, in which U.S. Attorney Dean Smith of Spokane argued for the federal government, Douglas left the courthouse, Murphy writes, declaring, "I will not let [the question] become moot."

There followed a series of phone calls by Douglas to his chambers from pay phones around downtown Yakima and en route back to Goose Prairie, the justice dictating at each stop what he'd composed since the last call. Then he asked to have the draft read back to him: "As he listened to the reading (from Whistlin' Jack's pay phone), Douglas edited the opinion from 2,300 miles away. When he was finally satisfied, he told the staff to release it immediately. The fact that there was no one left in the building except his office staff, the printers, a couple of guards, and the night janitors was of no consequence to the man who was to stop the Vietnam War all by himself," Murphy comments.

After Douglas issued his order, the government appealed to Justice Marshall, who polled the other justices by telephone. Six hours after Douglas's order was released, the Court overruled it.

While he expected to be overruled, Douglas began to wonder how the Court did it so quickly. "After fussing and fuming for a while, Douglas decided that the only answer was that the phone at Whistlin' Jack had been tapped by the FBI, meaning that his initial call to the ACLU had been intercepted and passed on to Marshall.… Now furious, he phoned for help from his longtime aide-de-camp, Abe Fortas, then practicing law in Washington. 'They bugged my phone at Whistlin' Jack,' he told Fortas. 'Look into it for me.' Douglas said that he wanted to sue the phone company for its 'cooperation' with the government in using the tap."

At this point Murphy takes up Rupp's end of the conversation, noting that Fortas "remained convinced that he himself had been forced off the Court by such nefarious governmental means," prompting him, on calling Rupp, "to go into full legal confrontational mode."

Murphy's account rounds out what John Rupp put together from a couple of strange phone calls and some newspaper accounts, and at last we have the full story of how international affairs swirled briefly through Yakima County 30 years ago this summer.

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