Scorpions

As discussed in my review of Supreme Power, Franklin Roosevelt had an early problem with the Supreme Court. But by the time he died, he appointed seven of the nine justices, and promoted the Chief Justice. In his book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, Noah Feldman ably lays out how Roosevelt's appointments, particularly of four justices, would change Constitutional law, and by extension, America, for generations to come.

The title comes from a quote, sometimes attributed to Oliver Wendell Holmes, but here to law professor and former law clerk Alexander Bickel, that "The Supreme Court is nine scorpions in a bottle." As Feldman points out, though Roosevelt's justices would eventually coalesce into a liberal unit, with the culmination the epic decision of Brown v. Board of Education, they couldn't have hated each other more.

The four men Feldman focus on are Felix Frankfurter, Hugo Black, William O. Douglas, and Robert Jackson. Frankfurter had long been a preeminent legal scholar, an acolyte of Louis Brandeis, and an informal advisor to Roosevelt. Black, a senator from Alabama, ended up being Roosevelt's first appointment, and survived a scandal when it was revealed that he had briefly been a member of the Ku Klux Klan. Douglas was the chairman of the Securities and Exchange Commission, and was appointed at the tender age of forty. Despite lusting after the presidency, he would end up setting the record for years served on the court. Jackson would be the last justice who had not attended law school, and would end up on the world stage as a prosecutor in the Nuremberg trials.

Feldman gives us a brief biography of each man, plus the shift in the law going on at the time. These four all ascribed, to various levels, to something called legal realism: "The proponents of legal realism objected to the way law had generally been studied and taught until that time--as a body of rules found in legal treatises and used by judges to decide cases. To the realists, law was not what judges said in formal rulings. Rather, law consisted in what legal actors did in the real world."

But each justice had their own interpretation of what that meant. Frankfurter believed in judicial restraint, which is loudly hallowed by conservatives today, but of course that is in the eye of the beholder. For example, should the Court strike down the individual mandate of Obama's health care law, that would not be judicial restraint, but instead activism, but no Republican will tell you that.

Frankfurter would end up disappointing Roosevelt. "His belief in judicial restraint was rooted in the belief that judges should not effect social change, a belief that coexisted with his political liberalism. To this point, the two impulses had never been contradictory. Although he could not have known it, once he went on the Court, Frankfurter would find that the tension between achieving desirable liberal results and maintaining judicial restraint would be a constant source of difficulty."

As for Black, he was an originalist, another word bandied about today, but again, favored by Republicans, deplored by Democrats. But Black made it work for liberalism. He was an absolutist on the First Amendment, and that there was no exception the right of free speech. He also too the 14th Amendment to mean exactly what it said, even though it would have been highly unlikely to imagine its framers believing in integrated schools.

Douglas is the most interesting character of the story, emphasis on character. He would be a political animal for his time on the Court, especially during the '40s. He was vice-presidential timber for three straight elections, and in 1944 was one of two men that Roosevelt would indicate he would accept, Harry Truman being the other. The head of the Democratic party instructed his secretary to type up Roosevelt's memo, which had listed Douglas first, but to rearrange the order of the two names. It was this simple rearrangement that changed history, as Truman would end up being president after Roosevelt died.

Instead, Douglas would go on to be the architect of the way the Supreme Court expanded Constitutional rights. "As a justice of the Supreme Court, he would come to be known as the least compromising figure on the bench, fully prepared to announce opinion after opinion without caring that he was alone in his judgment. Assessments of Douglas as a justice are deeply divided between those who consider him arbitrary and outrageous, and those who judge him the most advanced exponent of liberal principle ever to sit on the Court; again, there is truth in both propositions."

Douglas' most famous statement, which is still mocked by conservatives, came in Griswold v. Connecticut, which overturned a law that forbade the use of contraceptives by married couples (it was still a hot-button issue during Robert Bork's confirmation hearings over twenty years later). Douglas wrote, "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

Jackson is Feldman's tragic figure, and the one he seems to have the most affection for. A country lawyer from western New York, Jackson would be solicitor general, attorney general, and then justice, but was bitter over being passed over twice for Chief Justice. He would take a year's leave to prosecute in Nuremberg, and though the verdicts were a foregone conclusion, he was badly bested by Hermann Goehring. He advocated a kind of pragmatism that was new to the court, but is now exemplified by the likes of Sandra Day O'Connor and Anthony Kennedy. Jackson would die (of a heart attack in his secretary's apartment, which was whitewashed over) thinking he was a failure. Feldman believes that over time Jackson's legacy has grown.

The best section is on the deciding of Brown, which would end segregation in schools. Originally it was a split decision, with the sitting Chief Justice, Fred Vinson, a southerner and Truman appointee, against. But Vinson would die suddenly, which prompted Frankfurter to confide to a colleague, "this is the first solid piece of evidence I've ever had that there really is a God."

Vinson's replacement, Earl Warren, was for the ending of segregation, but he recognized, along with Frankfurter, that it would require a unanimous vote. Douglas was no problem, but Jackson had doubts, and was going to file a separate but different concurrence. He had a heart attack, though, and it deflated his will, so he went along with Warren's opinion. Warren then twisted the arm of Stanley Reed, the only holdout, and the decision would change American forever.

I love books about the Supreme Court because of that kind of behind-the-scenes stuff. Sometimes books about the Court are far too complicated for the layman, but Feldman's book is amazingly readable, and always explanatory. He could have added some information about coming and going on the court--he will mention a justice retiring, but not who replaced him, and clearly emphasizes the four men over others--Reed is called, simply, "dull."

But the most fascinating aspect is the personal interplay of the justices. This has always been true, and always will be (the first book I read that inspired my interest in the Court was Bob Woodward's The Brethren, which revealed that some justices routinely called Chief Justice Warren Burger "Dummy"). But the Roosevelt court had a lot of animosity: "Frustration bred contempt. From allies sipping champagne to celebrate one another's joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of 'two completely evil men I have ever met.' Reflecting the language of wartime, Frankfurter called Douglas, Black, and [Frank] Murphy 'the Axis.' One-upping Frankfurter, Douglas called him 'Der Fuehrer.' The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson."

Yet somehow these men would come together to forge a new way of looking at the Constitution, and handing down decisions that still resonate today.