When the statist legislative experiments of the New Deal fell, one after another, at the hands of an overreaching Supreme Court, Franklin Roosevelt displayed uncharacteristic political clumsiness and sought to pack the Court. Of course, that project failed, and he realized quickly that appointments were the key to removing the Court as an obstacle. The most important of those appointments—Felix Frankfurter, Hugo Black, William Douglas, and Robert Jackson—are the subjects of Noah Feldman’s highly readable and often absorbing Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices.
Feldman, who teaches at Harvard Law School, has a great story here (or, more precisely, four great stories), and he tells it well. All these men came from obscure backgrounds and rose to great prominence under Roosevelt. With their judicial appointments, they became the core of the liberal bloc that pulled the Court out of the way of the New Deal. It was not, however, a serene arrangement: “Beginning as allies, they would become enemies, each with his own theory of how to understand the Constitution,” Feldman writes. Their fierce and consequential struggles made them the scorpions of Feldman’s title.
Feldman provides vivid biographical portraits of all these men, but what makes this book more than biography is the emphasis he places on the development of the judicial philosophy of each of his subjects.
Hugo Black brought what Feldman intriguingly calls “the distinctively Protestant method of biblical interpretation that he had used for two decades as a Sunday school teacher in Birmingham” to his reading of the Constitution and became the “inventor of originalism.” To be sure, it was in many ways a crude originalism, particularly with respect to Black’s obtuse no-law-means-no-law reading of the first amendment. Still, Black steered clear of many of the excesses of the Warren Court because of his adherence to constitutional text.
For many years, William Douglas cared more for his presidential ambitions than his judicial work, but once it was clear that the Court was where he would have to make his name, he pursued the extreme libertarianism that became his hallmark. The problem for him was his abrasive and irascible personality, which alienated his colleagues and essentially eliminated any influence he might have had on the direction of the Court. His autonomy-obsessed individualism, however, was later adopted by William Brennan, whose smooth and accommodating personality turned it into majorities during the Warren Court.
Robert Jackson eschewed a comprehensive judicial philosophy in favor of a pragmatic jurisprudence. His influence was predicated on his extraordinary facility as a writer and his problem-solving approach to cases. Jackson’s skill as a judicial rhetorician is most conspicuously on display in Barnette, the 1943 case that struck down a compulsory flag salute and rejected Frankfurter’s controversial three-year-old Gobitis opinion, which upheld a compulsory flag salute. Moreover, Jackson’s pragmatism made him especially adept at sorting out the nebulous issues of executive power. His concurring opinion in the 1952 steel-seizure case, which thwarted President Truman’s seizure of the steel industry, remains a central precedent on the breadth of presidential authority.
Feldman is especially refreshing in his analysis of Felix Frankfurter. He correctly sees Frankfurter’s principled judicial restraint as the stumbling block for many in accurately assessing his jurisprudence: “As the other liberals on the Court shifted ground, Frankfurter—to his astonishment—found himself transformed into a conservative. Frankfurter’s critics, then and later, have tried to explain how it could be that the country’s best-known liberal became its leading judicial conservative. But the source of the change was not Frankfurter, whose constitutional philosophy remained remarkably consistent throughout his career. It was the rest of liberalism that abandoned him and moved on once judicial restraint was no longer a useful tool to advance liberal objectives.”
Feldman’s narrative closes with the four scorpions all putting their intense differences aside in order to effect the unanimity of Brown v. Board of Education in 1954. Although routinely lauded now as a great act of judicial statesmanship—a view shared by Feldman—the case was in fact an act of great intellectual dishonesty for Black, Jackson, and Frankfurter, all of whom recognized that the Court was acting outside of constitutional law and in an exclusively political way. (The results-driven Douglas had no problem with Brown’s shoddy extra-constitutional rationale.) Thus, the scorpions established a model for judicial supremacy that has made usurpation an insufferably standard practice for the Court.
Brown has become the sacred text of living constitutionalism, a freewheeling interpretive approach that would have been anathema to Black, Jackson, and Frankfurter. It is difficult to imagine the later revolutionary judicial decisions on contraception, abortion, and homosexual rights without it: the enlightened jurist, believing that he is acting with the boldness and moral clarity of Brown, removes an issue from the reactionary messiness of democratic contention and resolves it once and for all along progressive lines. That is the baneful legacy of Brown.
With the exception of Douglas, all these men made genuine, and often brilliant, contributions to constitutional law, as Feldman’s accessible book establishes. But the decades following the departure of Roosevelt’s jurists demonstrate that the catastrophic legacy of Brown—the superstition that the Court can, with one case, resolve a complex political problem—undermines these achievements and continues to cause grave damage to the constitutional order that these men did so much to shape.
Gregory J. Sullivan is a lawyer from Pennsylvania. He has written for First Things and The Weekly Standard.
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