A Court of Scorpions; The Book Blitz – Vol 30: Scorpions by Noah Feldman

Scorpions by Noah Feldman - Via Law.UConn.Edu

A Supreme Court nominee is thrust into the middle of a contentious confirmation hearing, is later confirmed, and celebrates his ascendancy to the highest court in the land by getting drunk with rounds of mixed drinks in the office of the Democratic congressional leadership. To cap off the impromptu celebration, this newly minted associate justice decides to visit the president unannounced. That is exactly how Felix Frankfurter, one of the most famous justices in Supreme Court history, celebrated his confirmation to the bench in 1937.

This is just one of the many interesting anecdotes that are found in Noah Feldman’s eminently readable Scorpions. Feldman chronicles the lives, Supreme Court tenure, and judicial legacies of the four liberal titans appointed by Franklin Delano Roosevelt: Hugo Black, William O. Douglas, Frankfurter, and Robert Jackson.

Scorpions is more than just anecdotes, however. Feldman ably weaves five biographies, including FDR’s, into the examination of the impact the Roosevelt Court had and continues to have on America and the way the court impacted these four brilliant legal minds.

Despite being liberal, these four justices came at the US Constitution from four unique perspectives. Black, who despite being a lawyer from Alabama, knew little in the way of constitutional law when he was appointed from the Senate. Self-taught over the years, Black believed answers could be found in what the intended meaning of the Constitution’s words. Black was an originalist.

Author and Harvard Law Professor Noah Feldman - Via Twelve Books

William O. Douglas, a rising star at Yale when he joined the Roosevelt Administration in the SEC, considered himself a legal realist. He was more interested in the effects the court’s decisions had in the real world. Douglas, considered the most libertarian justice in the court’s history due to his stance on individual rights, also has the distinction of being the longest serving justice in American history.

Felix Frankfurter immigrated to America from Austria at the age of 12, not speaking a world of English. At the age of 24, he had graduated from Harvard Law. During the Wilson Administration, he had a stint in the War Department before settling in as professor of law at Harvard. Frankfurter, who became a confidante and close friend of Roosevelt’s, saw himself as a natural successor to the liberal legacy of Louis Brandeis. However, his philosophy of judicial restraint, a belief that Congress should lead in changing laws, left Frankfurter in to the right of the Warren Court.

Much like FDR, Robert Jackson hailed from New York, but his western upstate upbringing pailed in comparison to the life of luxury FDR experienced. Jackson’s law firm gave him the opportunity to make a name for himself and get an appointment in the Roosevelt Treasury department. One of his early claims to fame was serving as the lead prosecutor in the Andrew Mellon tax fraud case. Also serving as Attorney General, Jackson desperately wanted to be Chief Justice, but internal squabbles between him and Black and poor timing stymied that desire. Jackson was a pragmatist who left the court for a year to serve as the lead American lawyer at the Nuremberg war trials.

By 1939, with Roosevelt’s failed court packing effort having faltered, these four liberals were on the court. When FDR died in office in the spring of 1945, these liberals had issued rulings on prominent cases like Gobitis and Korematsu that upheld laws that infringed on the rights of Americans, less on legal grounds, but more on real-time concerns about World War II. Feldman convincingly argues that when Roosevelt died in office, there was little left to hold these four justices together. A dynamic that had started off with all four on good terms had disintegrated into quarrels, threats, and very public animosity. The last major decision of the Roosevelt was the unanimous Brown decision, and that was done under the oversight of Chief Justice Earl Warren

The 1941 United States Supreme Court - Via Life.com

Most striking to me, in this era of a deeply politicized Supreme Court, is how these justices, who all had their own legal philosophies, transformed over time. Their deeply held beliefs led them to different legal plot points. Black, who joined the KKK in the 1920s in the run-up to his initial run for the US Senate, strongly believed in need to over turn Plessy v. Fergusson‘s precedent based on the intent of the 14th Amendment. Douglas’s adherence to realism and belief in the right of the individual made him a beloved liberal on the court. Jackson, who died at the age of 62 showed conservative tendencies when it came to over reach of federal power. Ironically, as Attorney General he had overseen episodes of serious government over reach, most remarkably in the justification of the Lend Lease Act. Frankfurter, an early supporter of the ACLU and a man who saw himself as the liberal who would carry on the work of the venerable Brandeis became the most conservative of the group. His restraint, and willingness to abide by the will of the people’s representatives were long held and was most definitely in vogue in some liberal circles in the days when Republican appointees dominated the Supreme Court. However, when it was the liberals who dominated the court, he struggled with squaring away his liberal personal beliefs with his legal philosophy.

In a time where Republicans oppose judicial activism until the bench is filled with conservative justices, the consistency by which these four legal legends held to their philosophies is refreshing. President George HW Bush is criticized for having appointed David Souter, who turned out not to side with Republicans often enough in his rulings. That is unfair. Legal philosophy doesn’t see political party. It should be a standard applied in each situation. Is there any way a Frankfurter of today could make a similar transformation in today’s court? Black, Douglas, Frankfurter, and Jackson show that liberals are not some sort of ideological block; there is nuance and shades of gray which can lead members of the same general political belief to four very different rulings.

Justice Jackson once said of the Supreme Court, “We are not final, because we are infallible. We are infallible, because we are final.” Feldman takes this sentiment to heart in his book. In describing the personal lives, professional careers, and aspirations of these justices, he holds no punches. Black’s dabble into the racism of the KKK, Douglas’s numerous marriages and inveterate cheating, Frankfurter’s tendency to stage manage the DOJ’s lawyers from the bench, and Jackson’s perpetual threats to quit if he didn’t get what he want and his long-term affair are all there for the reader to digest.

Scorpions, with its vivid exploration of the Roosevelt Court’s four liberal figures and explanation of their role in American history, is an important volume for anyone interested in better understanding the New Deal and the undeniable impact it has had on this country.


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