While you spent the weekend working through your leftover turkey, the conservative legal movement embraced a new passion project: digging up the remains of a long-dead Supreme Court justice.
These people are very, very normal!
Justice William O. Douglas — still the longest-serving justice in Supreme Court history, though Clarence Thomas appears hellbent on breaking this record in 2028 — a towering figure in the Court’s civil liberties jurisprudence, has become the latest bit of rage bait for the American right-wing despite having shuffled off this mortal coil during the Carter administration. And while the current Supreme Court majority continues to take a scorched earth approach to his legacy, that’s apparently insufficient as we reach the “exhume our liberal enemies and defile their corpses” phase of American conservatism.
The people who cannot shut up about removing Confederate statues as an affront to the dead are more than ready to play Weekend at Bernie’s with a liberal icon.
That’s Blake Neff, a producer for the late Charlie Kirk’s show, kicking off what would be the #DigUpDouglas hashtag if Twitter still used hashtags. Neff, as you might recall, formerly served as Tucker Carlson’s head writer before resigning from Fox News when it came out that he’d been posting racist content under a pseudonym that Fox News executives labeled “abhorrent.” Clearly, a trustworthy arbiter of moral character.
For the record, Douglas absolutely served in the Army during WWI. Douglas was inducted into the Students’ Army Training Corps at Whitman College in 1918, received a federal service number, and was honorably discharged. His December 1918 discharge papers identify him as “William O. Douglas, Serial No. 5200182, Private S.A.T.C., Whitman College, U.S. Army.”
But how did we get here… now? Well, the source of the claim that Douglas lied about his service gained notoriety from Bruce Allen Murphy’s 2003 biography of Douglas, “Wild Bill.” How did a biography from 22 years ago end up on the conservative front-burner? This seems to be the fault of Professor and Volokh Conspiracy contributor Orin Kerr, who inadvertently resurfaced all of this earlier last week when he posted about a book review written by Judge Richard Posner and published in The New Republic.
While Kerr never intended to start a campaign to get Douglas exhumed, conservative social media is a giant raccoon rummaging through America’s ideological trash, so the discourse inevitably devolved from here. Managing to capture the quintessence of American conservatism in one sentence, Professor Yuan Yi Zhu writes, “3 days from Orin Kerr posting that Posner review for lolz to the producer of the Charlie Kirk Show calling for William O Douglas to be dug out of a cemetery.” Think of the conservative intellectual funnel like a twisted Easter. A libertarian academic says something on one day, and on the third day proto-fascists demand to raise the dead from his tomb.
The path from Kerr’s post to Neff suggesting The Great Dissenter should become The Great Disinterred, ran through other right-wing accounts jumping on Douglas’s grave. National Review’s Dan McLaughlin racked up nearly 300K impressions highlighting a passage from Posner’s book review that drips with the sort of vitriol McLaughlin normally reserves for expanding the designated hitter rule or women believing in bodily autonomy.
Leaving for summer vacation before the term ended? Unforgivable! Unless that vacation is financed by parties seeking favor from the Court… then it’s just good business sense! Judge Posner’s review, read holistically, isn’t entirely negative. That said, Posner also took a detour to lambast Douglas for an opinion in a 1960s case about building dams on the Snake River where the justice wrote that the dam project “would harm the salmon.” Fast forward, and the series of dams at issue really did drive multiple salmon species to the brink of extinction. Hindsight is 20/20.
But Posner also describes Douglas as a man better suited for the presidency that the justice not-at-all-secretly longed for. Douglas’s skills far better fit the political arena, which — Posner suggests — contributed to Douglas’s disdain for the judicial post he ended up stuck with. It’s a nuanced argument that spins out of Posner’s stance that judges aren’t geniuses, because geniuses are incentivized to go into just about any field of human endeavor other than the law. “With his intelligence, his toughness, his ambition, his leadership skills, his wide acquaintanceship in official Washington, his combination of Western homespun (a favorite trick was lighting a cigarette by striking a match on the seat of his pants) and Eastern sophistication, and his charisma,” Posner writes, “Douglas might have been a fine Cold War president.”
Such a complete view doesn’t make it on social media, however. While Posner explicitly noted that “One can be a bad person and a good judge, just as one can be a good person and a bad judge,” his article is getting chopped up to give conservatives an opportunity to denigrate the author of Griswold because he was a womanizing drunk.
This, by the way, is an actual ad hominem attack. Conservatives whine about “ad hominem” whenever someone calls them knuckle-dragging bigots while dismantling their latest disinformation post about immigrants causing all murders, but that’s just colorful commentary. Ad hominem is about substituting aspersions about the speaker for argument… like suggesting the Constitution shouldn’t protect the right to contraception because William O. Douglas hid mistresses in his chambers closet. The right-wing enthusiasm for Douglas bashing is all about feeding their trained audience of drooling MAGA hats a moral villain that can stand in for the very idea that the Warren Court is inherently suspect.
Which, as a strategy, would be only slightly less objectionable were it not coming from people whose moral compass points unerringly toward a thrice-married, porn-star-fornicating, adjudicated digital rapist. Say what you will about William O. Douglas, the man wouldn’t be sweating about the Epstein files. And at least he didn’t spend WWI complaining about bone spurs.
It also helps to remember why Douglas rests eternally in both Arlington National Cemetery and rent-free in conservative minds. In the Church of Eternal Grievance Farming, Douglas occupies a seat of honor. Not just as the author of Griswold, but as an architect that brought environmental plaintiffs into court, creating no end of inconvenience for the donors who fund right-wing summer camps for conservative legal luminaries to attend. Douglas’s free speech opinions recognized the government as something to be restrained, not an authority to force private actors to protect bigots from being canceled. And he’s the securities law expert who is spinning in that grave at 50 terahashes per second that we have a fake currency economy driven by a president with a meme coin. Of course they hate him.
Conservatives aren’t trying to exhume Douglas because they care about moral uprightness. They’re relitigating William O. Douglas because they need a culture war villain who can allow them to cut the corner on making a coherent argument why the Constitution should allow governments to police your bedrooms. It’s the same reason why people who point out that Hugo Black once belonged to the Klan (he later resigned and publicly rejected the group), are the same people currently gleefully retweeting white supremacist accounts. The issue doesn’t matter, poisoning the well does. Black was racist, Douglas was a scoundrel… therefore all liberal jurisprudence is permanently compromised.
Q.E.Dumbassery.
Back in the 1970s, rumors of cognitive decline forced Douglas from the bench. In 2025, Douglas’s detractors watch Trump’s daily and public displays of dementia and demand a third term. And, of course, there’s a non-zero chance that the nation’s chief executive ran across this while scrolling Twitter and is already sending backhoes to Douglas’s plot.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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