The Men Who Ruled on FDR's Supreme Court

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Niccolo and Donkey
The men who ruled on FDR’s Supreme Court

The Boston Globe

Claude Marx

December 16, 2010

Constitutional history is all-too-often written in an arcane manner that fails to make potentially fascinating topics approachable for the general reader. Then there are books such as “Scorpions,’’ which infuses a critical period of legal history with Hollywood-like drama.

Harvard Law professor Noah Feldman has a great deal to work with in this collective biography of justices Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson. The title comes from a description of the high court by Alexander Bickel, Frankfurter’s former clerk and a Yale Law School professor, as “nine scorpions in a bottle.’’

Because this is aimed at general readers, Feldman places more of an emphasis on the personalities and politics of the justices and keeps the philosophical analysis to a minimum. He doesn’t break much new ground but synthesizes existing information well. Although he generally keeps the narrative flowing at a brisk pace, he occasionally gives readers a bit too much biographical information about his subjects’ pre-court lives.

All four justices were key supporters of the New Deal; they arrived at their conclusions through quite varied philosophies. Their ideological and personality disputes made for a clash of legal titans.
Douglas, for example, was a results-oriented justice. Whatever it took to decide a case the way he wanted was acceptable. That approach to judging, combined with his prickly personality, made him controversial and decreased his effectiveness.

Frankfurter called Douglas one of the “two completely evil men I have ever met.’’ Douglas returned the favor by referring to Frankfurter (the third Jew to sit on the high court) as “Der Fuehrer.’’ And Feldman contends that the friendship between Frankfurter and Jackson “seemed to depend more on disdain for Douglas and Black than any closer connection.’’

Other justices, such as Jackson, took a more pragmatic approach. He was very much of a legal realist and sometimes reached liberal conclusions not out of empathy for the aggrieved party, but because he felt the need to uphold a constitutional principle.

The court’s ruling in Korematsu v. United States upheld FDR’s executive order that forced the internment of Japanese-Americans. In Jackson’s dissent, he focused on what he saw as the inappropriateness of the court passing judgment on a military order during wartime.

He contended that if the court approved a military order it would also be in a position of having to approve exemptions that would be inappropriate during peacetime. This new power would destroy the meaning of the Constitution. In addition, he wrote that: “The principle then lies about like a loaded weapon ready for the hands of any authority that can bring forward a plausible claim of urgent need.’’

Feldman praises the justices for their role in helping the high court deliver a unanimous decision in the landmark desegregation decision, Brown v. Board of Education. He contends that their willingness to “break [philosophical] rules of their own,’’ showed that they had learned political skills from FDR.

Feldman has an annoying tendency to make sweeping statements without backing them up. The author goes so far as to describe FDR as “the most successful politician in American history.’’ One could argue that the description could apply to Washington and Lincoln as well.

That is a minor shortcoming of “Scorpions.’’ The book is insightful and engaging. It is popular history at its finest.