Sunday, January 2, 2011

Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices

Noah Feldman, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. New York: Twelve, 2010. Hardcover. 433 pages. $30.

When FDR took office in 1933, the United States was in the midst of the Great Depression. Unemployment peaked that year at an astonishing 25%, but the financial markets which had been at the epicenter of the crisis were still unreformed and unregulated. FDR took office with an ambitious plan to repair the American economy that became known as the first New Deal, but as he attempted to implement his plans through sweeping legislation like the National Industrial Recovery Act (NIRA), he was consistently blocked by a conservative majority on the United States Supreme Court.

The Court in 1933 was dominated by justices who consistently interpreted the Fourteenth Amendment, in particular, as guaranteeing “liberty of contract,” a concept which the Court used to protect the interests of big business. The Court consistently found unconstitutional Progressive measures like minimum wage laws and restrictions on the length of the work week. In frustration, FDR conceived a plan to increase the membership of the court—nowhere was it written that the Supreme Court must have nine members—and create a new liberal majority that would support the New Deal.

The “court packing” plan failed, but during FDR’s long tenure as President he was able to reshape the Court in a way that had profound effects on American jurisprudence and American society. The direct influence of FDR’s appointees culminated in the landmark 1954 decision in Brown vs. Board of Education, but their legacy lives on in the influential constitutional theories that the greatest of his appointees developed during their time on the Court.

Feldman’s fantastic book focuses on the four greatest of FDR’s Supreme Court Justices: Hugo Black, Felix Frankfurter, Robert Jackson, and William O. Douglas. Each rose from humble origins to assume an important place in FDR’s inner circle and a seat on the Supreme Court. Each was dazzlingly brilliant and fiercely ambitious. Together, in the words of Frankfurter’s former law clerk Alexander Bickel, they were like “scorpions in a bottle.” Feldman shows how, out of their individual backgrounds and personalities and their collective conflicts, FDR’s Justices made history.

Hugo Black, for example, had in the late 1920s won a Senate seat from Alabama largely on the strength of his membership in the Ku Klux Klan. He later repudiated his membership in the Klan, and went on to become the moral force behind the Brown decision and the Court’s advocacy of the rights of racial minorities. Black’s effort to redeem his personal honor from the taint of racism can be seen as a driving force behind his actions on the Court.

During his record thirty-six years on the Court, Black developed the now highly influential constitutional theory known as “originalism,” which looks to the original meaning of the Constitution, and the Framers’ original intent, as the basis for judicial decision-making. Feldman points out that “the deep wellspring of Black’s originalism was the distinctly Protestant method of biblical interpretation that he had used for two decades as a Sunday school teacher in Birmingham.” Feldman explains: “There is an overlap between the Protestant idea that the Bible can be interpreted by any individual without the mediating authority of the Church and the originalist idea that the meaning of the Constitution may be ascertained without reference to binding precedent” (145).

Black developed originalism as a means of remedying what he considered the overreaching of an earlier conservative court, which had smuggled the concept of “liberty of contract” into the Constitution, even though the concept was unsupported by the text itself. For Black, at least in the beginning, originalism was a liberal constitutional theory which stood behind his efforts to insure equal justice to minorities. But later in his career, Black’s consistent originalism led him to oppose decisions of the Warren Court based on the “right to privacy,” which he argued was (like “liberty of contract”) a concept that appeared nowhere in the text of the Constitution.* Black, once the most liberal Justice on the Court, became increasingly perceived as conservative as the Warren Court embraced the “legal realism” (or “judicial activism”) of Black’s one-time ally William O. Douglas. A consistent application of originalism produced results that were liberal in the context of the 1940s and 1950s, and conservative in the changed circumstances of the 1960s and beyond. On the present Court, of course, originalism is the Constitutional creed of the conservative standard-bearer Justice Antonin Scalia. Douglas, on the other hand, was consistently liberal because his philosophy of judicial activism led him to see the Supreme Court as an engine for social change.

Black was a Sunday school teacher with no theological training, a self-taught historian, a Justice with no previous experience as a judge. He thought originalism opened up an understanding of the Constitution to anyone with a copy of the text. Ironically, as Feldman points out, the doctrine of originalism has given rise to the highly specialized field of constitutional history, as historians ferret out the original contexts, intents, and meanings of Constitutional concepts.

While Black was working out originalism as his guiding constitutional philosophy, his colleague Felix Frankfurter was guided by “judicial restraint,” another concept which has become associated with judicial conservatism. Feldman brings out the irony of Frankfurter, once a lawyer for the ACLU and a driving force behind the defense of Sacco and Vanzetti, upholding the constitutionality of the World War II Japanese internment camps and eventually being seen as one of the Court’s conservatives.

One of the great pleasures and virtues of Feldman’s book is that he can explain, in clear and compelling terms, the often specialized Constitutional issues at stake while maintaining the drama and excitement of a good story with memorable characters. There are times when the story of Justice Robert Jackson, the proponent of judicial pragmatism, has the feel of a Greek tragedy: a stunning rise to power and prominence from humble beginnings; a damaging clash with Black that doomed Jackson’s shot at becoming Chief Justice; an international spotlight as chief prosecutor at the Nuremberg Trials, where the pressures of cross-examining Hermann Goering made him come spectacularly unhinged; a hospital bed signing of the unanimous opinion in Brown, a decision about which he had deep reservations. Jackson died believing he’d been a failure, but his tradition of judicial pragmatism has been enormously influential on the Supreme Court, particularly in the swing votes of Justices Sandra Day O’Connor and Anthony Kennedy.

Feldman tells his interwoven stories with brilliance and flair, demonstrating that history is best understood as a confluence of massive societal forces and individual personalities, and that there is still value in studying the lives of great men whose influence has become woven into the fabric of American life.

* The landmark “right to privacy” case Griswold v. Connecticut (1965), in which Black issued a dissenting opinion, actually drew on opinions of Justice James Clark McReynolds, one of the “Four Horsemen” on the Supreme Court who consistently struck down New Deal legislation prior to 1937.

Disclaimer: I received a free review copy of this book from the publisher as part of the LibraryThing Early Reviewers program.

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