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Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices
A tiny, ebullient Jew who started as America's leading liberal and ended as its most famous judicial conservative. A Klansman who became an absolutist advocate of free speech and civil rights. A backcountry lawyer who started off trying cases about cows and went on to conduct the most important international trial ever. A self-invented, tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.
Four more different men could hardly be imagined. Yet they had certain things in common. Each was a self-made man who came from humble beginnings on the edge of poverty. Each had driving ambition and a will to succeed. Each was, in his own way, a genius.
They began as close allies and friends of FDR, but the quest to shape a new Constitution led them to competition and sometimes outright warfare. SCORPIONS tells the story of these four great justices: their relationship with Roosevelt, with each other, and with the turbulent world of the Great Depression, World War II, and the Cold War. It also serves as a history of the modern Constitution itself.
Four more different men could hardly be imagined. Yet they had certain things in common. Each was a self-made man who came from humble beginnings on the edge of poverty. Each had driving ambition and a will to succeed. Each was, in his own way, a genius.
They began as close allies and friends of FDR, but the quest to shape a new Constitution led them to competition and sometimes outright warfare. SCORPIONS tells the story of these four great justices: their relationship with Roosevelt, with each other, and with the turbulent world of the Great Depression, World War II, and the Cold War. It also serves as a history of the modern Constitution itself.
513 pages, Hardcover
First published January 1, 2010
About the author
Noah Feldman
27 books190 followersNoah Feldman is an American author and professor of law at Harvard Law School.
Feldman grew up in Boston, Massachusetts, where he attended the Maimonides School. He graduated from Harvard College in 1992, ranked first in the College, and earned a Rhodes Scholarship to Oxford University, where he earned a D.Phil in Islamic Thought in 1994. Upon his return from Oxford, he received his J.D., in 1997, from Yale Law School, where he was the book review editor of the Yale Law Journal. He later served as a law clerk for Associate Justice David Souter on the U.S. Supreme Court.
In 2001, he joined the faculty of New York University Law School (NYU), leaving for Harvard in 2007. In 2008, he was appointed the Bemis Professor of International Law. He worked as an advisor in the early days of the Coalition Provisional Authority in Iraq following the 2003 invasion of the country. He regularly contributes features and opinion pieces to The New York Times Magazine and is a senior adjunct fellow at the Council on Foreign Relations.
Feldman grew up in Boston, Massachusetts, where he attended the Maimonides School. He graduated from Harvard College in 1992, ranked first in the College, and earned a Rhodes Scholarship to Oxford University, where he earned a D.Phil in Islamic Thought in 1994. Upon his return from Oxford, he received his J.D., in 1997, from Yale Law School, where he was the book review editor of the Yale Law Journal. He later served as a law clerk for Associate Justice David Souter on the U.S. Supreme Court.
In 2001, he joined the faculty of New York University Law School (NYU), leaving for Harvard in 2007. In 2008, he was appointed the Bemis Professor of International Law. He worked as an advisor in the early days of the Coalition Provisional Authority in Iraq following the 2003 invasion of the country. He regularly contributes features and opinion pieces to The New York Times Magazine and is a senior adjunct fellow at the Council on Foreign Relations.
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March 25, 2017
It’s hard to minimize the impact of Franklin Delano Roosevelt on American history. Love him or hate him, he towered over an era. He was elected president four times and served for 12 of our most tumultuous years. There are, of course, no shortage of books on FDR, whether focusing on his reaction to the Great Depression, the implementation of the New Deal, or his leadership in World War II.
Noah Feldman’s Scorpions takes a different approach. He focuses on an aspect of Roosevelt’s legacy that is less celebrated: his Supreme Court. Due to his years in office, FDR nominated an unprecedented 8 justices to the highest court in the land. Four of those men (Stanley Reed, Frank Murphy, James Byrnes, and Wiley Rutledge) are mostly forgotten today. Whatever their individual qualities (and Murphy, at least, deserves our praise for his gutsy dissent in the Japanese internment case), none of these jurists made a lasting impact.
The other four, however, can justly be numbered among the greatest to ever serve the Court. Hugo Black, Felix Frankfurter, Robert Jackson, and William Douglas not only participated in cases of enduring importance, they had unique judicial philosophies and powerful personalities that made an imprint on the Supreme Court that, in some instances is still felt today.
Scorpions undertakes two things. First, it is a quadruple biography of Black, Frankfurter, Jackson, and Douglas. Second, it provides a fast-paced narrative of the triumphs, trials, and tribulations of the Roosevelt Court. It succeeds on both fronts.
Feldman has chosen his subject well. Black, Frankfurter, Jackson, and Douglas are characters. All four were picked by the same president. That president undoubtedly thought they shared his legal viewpoints. As it turned out, however, it is hard to imagine more wildly different jurists.
Hugo Black was a senator from Alabama with a rudimentary education and an expired membership in the Ku Klux Klan. A liberal, he nevertheless is credited as among the first to take a textualist (or originalist) approach to the Constitution. He used this textualism to advance both free speech and civil rights, and eventually joined the opinion in Brown v. Board of Education. (Scorpions concludes with Brown, arguing – a bit unconvincingly – that the decision belonged to the Roosevelt Court, rather than Earl Warren).
Felix Frankfurter reputedly had the highest grades ever at Harvard Law. A New Deal liberal espousing judicial restraint, he began his career bemoaning decades of conservative jurisprudence that struck down legislative enactments that protected workers. He left the Court, though, as one of its staunchest conservatives.
Robert Jackson was a country lawyer who never went to law school. He rose to be solicitor general, attorney general, Supreme Court justice, and prosecutor at the Nuremberg Tribunal. His pragmatic approach to constitutional law lives on today in cases that touch international law and the War Powers.
Finally, William Douglas was an eccentric and ambitious politician who kept seeing his dreams for high office demolished. When he finally accepted his role on the Court, he became a leading proponent of the “living” constitution, and wrote opinions that expanded the protection of individual liberty.
(Passing aside: Neither Black nor Jackson had a formal legal education, which seems incredible today. In today’s Supreme Court, educational diversity occurs when someone from Columbia gets appointed. Otherwise, it’s all Harvard or Yale. Stop by the bar – by which I mean saloon – someday and I’ll tell you why I think this is a problem).
Feldman is a law professor at Harvard, which might give you pause. But it’s important to note that he’s not writing to impress his buddies on the faculty. This is a popular history, with a premium on anecdote, and prose that is blessedly free of legal jargon and Latin phrases. He writes in a transparent vein, explaining concepts in a way that is clear, without being condescendingly simplified. As a lawyer myself, I thought he struck a good balance between sophistication and clarity. He gives you the broad contours, without needlessly leading the lay reader into legal thickets that are better left to peer-reviewed journals.
The first part of Scorpions is a little tricky, just because Feldman has the near impossible task of juggling the lives of four different men in four different timelines. It can get a bit confusing at times, because we keep jumping back and forth in terms of chronology. This makes it difficult to keep straight who is on the Supreme Court at a given moment. Still, there is much of value, especially in Feldman’s lucid retelling of Roosevelt’s “court-packing” scheme, and Justice Owen Roberts’ maligned “switch in time that saved nine.”
This issue disappears as soon as all four are robed and seated and the narrative can really click into gear. Feldman covers the great cases, describes the give-and-take process that produces a Supreme Court opinion, expounds on the justices’ competing judicial philosophies, and – of course, based on the title – describes in exceptional detail how they all sort of hated each others’ existences.
The Roosevelt Court was instrumental in preserving the New Deal in its rulings on interstate commerce. But don’t fret. This isn’t the kind of book that dwells on the Commerce Clause (I would never do that to you). Instead, Feldman focuses on the cases that resonate today. We’re talking about German saboteurs caught on a Jersey Beach and executed after a military tribunal (Ex Parte Quirin); and the Japanese man who defied the government’s order to report to a concentration camp (Korematsu v. United States); and the conviction of Communists for teaching Marxist texts (Dennis v. United States). Not all of these opinions did credit to the Court, or the men who wrote them. Indeed, I view many of them in the opposite light. Regardless, Feldman does an excellent job explaining how the justices’ competing ideologies (and temperaments) shaped these decisions, with echoes into the future. (In a lot of these cases, it is a concurrence or dissent that actually lived on, rather than the original holding).
I had some issues with Scorpions. It tries to fit way too much material into too few pages (my small trade paperback edition is only 433 pages of text). The result is that some subjects get short shrift, while certain storylines are oddly truncated.
This is especially apparent in the treatment of the International Military Tribunal at Nuremberg. Feldman, who is pretty objective in his handling of competing judicial dogmas, is strangely vehement in his criticism of Nuremberg. He expounds on his belief that the Tribunal lacked precedential authority, and was nothing more than a sham. Accordingly, he is unrelentingly harsh in his critique of Jackson’s performance at Nuremberg, especially his failed cross examination of Herman Goering. Incidentally, the notion that Goering dominated Jackson in a show of intellectual dominance is a view shared by David Irving, which probably should’ve given Feldman pause. In truth, Jackson made tactical errors, but Goering was also given tremendous leeway to make speeches, since the judges (despite Feldman’s assertion this was a show trial) went out of their way to give the Nazi thug – in Jackson’s own words – “the trial he never gave a living soul, or dead one either.”
(Not to keep beating a dead horse...Well, in fact, to keep beating a dead horse, Jackson was entirely correct in how he wasn’t allowed to cross examine effectively. In cross, you are supposed to control the answers. That’s the point! Read Wigmore! Feldman doesn’t seem to recognize this. He is certainly an accomplished legal mind with a bio filled with important appointments and clerkships. But I can't tell if he's ever been in a working courtroom. Maybe this reality eluded him? I sometimes think it's helpful when professors work in the real world before they start professing. Theory with practice is better than theory alone. This isn't meant to be snark; I just feel like he's missing some of what it means to be a workaday attorney, caught up in the fray rather than pondering in the ivory tower).
In any event, after leaving us with Jackson’s embarrassment, Feldman drops Nuremberg and never returns to the subject. There isn’t a single line about Jackson’s famous closing argument, or an acknowledgment that three of the defendants were acquitted (so much for this being a sham). And really, if you are going to dismiss the Nuremberg Tribunal, at least provide a counterfactual. If not a trial, then what? We shoot them all, like Stalin wanted? Or do we just let them go, so that Goering could run for office, and Kaltenbrunner could be a police chief in some Austrian village? Okay – sorry, I got a little worked up. I’ll get off my high horse now. Well, one more thing. I studied the IMT extensively in law school and beyond, and in the end, I strongly agree with Jackson that giving the Nazis the benefit of a criminal trial was indeed “one of the most significant tributes that Power has ever paid to Reason.”
That aside – and this quibble clearly has more to do with me than Feldman – this is an excellent read. You learn about four fascinating judges. You learn about constitutional theory, and how it has evolved over time (conservatives started out as activists; liberals originally called for restraint; now things have flipped). More entertainingly, though, you get to watch these four men, who had all reached the peak of their professional attainment, acting like petty children in their interpersonal relationships.
The lesson, I suppose, is that you can never get too old, too smart, or too successful, to nurse a lingering grudge all the way to the grave.
Noah Feldman’s Scorpions takes a different approach. He focuses on an aspect of Roosevelt’s legacy that is less celebrated: his Supreme Court. Due to his years in office, FDR nominated an unprecedented 8 justices to the highest court in the land. Four of those men (Stanley Reed, Frank Murphy, James Byrnes, and Wiley Rutledge) are mostly forgotten today. Whatever their individual qualities (and Murphy, at least, deserves our praise for his gutsy dissent in the Japanese internment case), none of these jurists made a lasting impact.
The other four, however, can justly be numbered among the greatest to ever serve the Court. Hugo Black, Felix Frankfurter, Robert Jackson, and William Douglas not only participated in cases of enduring importance, they had unique judicial philosophies and powerful personalities that made an imprint on the Supreme Court that, in some instances is still felt today.
Scorpions undertakes two things. First, it is a quadruple biography of Black, Frankfurter, Jackson, and Douglas. Second, it provides a fast-paced narrative of the triumphs, trials, and tribulations of the Roosevelt Court. It succeeds on both fronts.
Feldman has chosen his subject well. Black, Frankfurter, Jackson, and Douglas are characters. All four were picked by the same president. That president undoubtedly thought they shared his legal viewpoints. As it turned out, however, it is hard to imagine more wildly different jurists.
Hugo Black was a senator from Alabama with a rudimentary education and an expired membership in the Ku Klux Klan. A liberal, he nevertheless is credited as among the first to take a textualist (or originalist) approach to the Constitution. He used this textualism to advance both free speech and civil rights, and eventually joined the opinion in Brown v. Board of Education. (Scorpions concludes with Brown, arguing – a bit unconvincingly – that the decision belonged to the Roosevelt Court, rather than Earl Warren).
Felix Frankfurter reputedly had the highest grades ever at Harvard Law. A New Deal liberal espousing judicial restraint, he began his career bemoaning decades of conservative jurisprudence that struck down legislative enactments that protected workers. He left the Court, though, as one of its staunchest conservatives.
Robert Jackson was a country lawyer who never went to law school. He rose to be solicitor general, attorney general, Supreme Court justice, and prosecutor at the Nuremberg Tribunal. His pragmatic approach to constitutional law lives on today in cases that touch international law and the War Powers.
Finally, William Douglas was an eccentric and ambitious politician who kept seeing his dreams for high office demolished. When he finally accepted his role on the Court, he became a leading proponent of the “living” constitution, and wrote opinions that expanded the protection of individual liberty.
(Passing aside: Neither Black nor Jackson had a formal legal education, which seems incredible today. In today’s Supreme Court, educational diversity occurs when someone from Columbia gets appointed. Otherwise, it’s all Harvard or Yale. Stop by the bar – by which I mean saloon – someday and I’ll tell you why I think this is a problem).
Feldman is a law professor at Harvard, which might give you pause. But it’s important to note that he’s not writing to impress his buddies on the faculty. This is a popular history, with a premium on anecdote, and prose that is blessedly free of legal jargon and Latin phrases. He writes in a transparent vein, explaining concepts in a way that is clear, without being condescendingly simplified. As a lawyer myself, I thought he struck a good balance between sophistication and clarity. He gives you the broad contours, without needlessly leading the lay reader into legal thickets that are better left to peer-reviewed journals.
The first part of Scorpions is a little tricky, just because Feldman has the near impossible task of juggling the lives of four different men in four different timelines. It can get a bit confusing at times, because we keep jumping back and forth in terms of chronology. This makes it difficult to keep straight who is on the Supreme Court at a given moment. Still, there is much of value, especially in Feldman’s lucid retelling of Roosevelt’s “court-packing” scheme, and Justice Owen Roberts’ maligned “switch in time that saved nine.”
This issue disappears as soon as all four are robed and seated and the narrative can really click into gear. Feldman covers the great cases, describes the give-and-take process that produces a Supreme Court opinion, expounds on the justices’ competing judicial philosophies, and – of course, based on the title – describes in exceptional detail how they all sort of hated each others’ existences.
The Roosevelt Court was instrumental in preserving the New Deal in its rulings on interstate commerce. But don’t fret. This isn’t the kind of book that dwells on the Commerce Clause (I would never do that to you). Instead, Feldman focuses on the cases that resonate today. We’re talking about German saboteurs caught on a Jersey Beach and executed after a military tribunal (Ex Parte Quirin); and the Japanese man who defied the government’s order to report to a concentration camp (Korematsu v. United States); and the conviction of Communists for teaching Marxist texts (Dennis v. United States). Not all of these opinions did credit to the Court, or the men who wrote them. Indeed, I view many of them in the opposite light. Regardless, Feldman does an excellent job explaining how the justices’ competing ideologies (and temperaments) shaped these decisions, with echoes into the future. (In a lot of these cases, it is a concurrence or dissent that actually lived on, rather than the original holding).
I had some issues with Scorpions. It tries to fit way too much material into too few pages (my small trade paperback edition is only 433 pages of text). The result is that some subjects get short shrift, while certain storylines are oddly truncated.
This is especially apparent in the treatment of the International Military Tribunal at Nuremberg. Feldman, who is pretty objective in his handling of competing judicial dogmas, is strangely vehement in his criticism of Nuremberg. He expounds on his belief that the Tribunal lacked precedential authority, and was nothing more than a sham. Accordingly, he is unrelentingly harsh in his critique of Jackson’s performance at Nuremberg, especially his failed cross examination of Herman Goering. Incidentally, the notion that Goering dominated Jackson in a show of intellectual dominance is a view shared by David Irving, which probably should’ve given Feldman pause. In truth, Jackson made tactical errors, but Goering was also given tremendous leeway to make speeches, since the judges (despite Feldman’s assertion this was a show trial) went out of their way to give the Nazi thug – in Jackson’s own words – “the trial he never gave a living soul, or dead one either.”
(Not to keep beating a dead horse...Well, in fact, to keep beating a dead horse, Jackson was entirely correct in how he wasn’t allowed to cross examine effectively. In cross, you are supposed to control the answers. That’s the point! Read Wigmore! Feldman doesn’t seem to recognize this. He is certainly an accomplished legal mind with a bio filled with important appointments and clerkships. But I can't tell if he's ever been in a working courtroom. Maybe this reality eluded him? I sometimes think it's helpful when professors work in the real world before they start professing. Theory with practice is better than theory alone. This isn't meant to be snark; I just feel like he's missing some of what it means to be a workaday attorney, caught up in the fray rather than pondering in the ivory tower).
In any event, after leaving us with Jackson’s embarrassment, Feldman drops Nuremberg and never returns to the subject. There isn’t a single line about Jackson’s famous closing argument, or an acknowledgment that three of the defendants were acquitted (so much for this being a sham). And really, if you are going to dismiss the Nuremberg Tribunal, at least provide a counterfactual. If not a trial, then what? We shoot them all, like Stalin wanted? Or do we just let them go, so that Goering could run for office, and Kaltenbrunner could be a police chief in some Austrian village? Okay – sorry, I got a little worked up. I’ll get off my high horse now. Well, one more thing. I studied the IMT extensively in law school and beyond, and in the end, I strongly agree with Jackson that giving the Nazis the benefit of a criminal trial was indeed “one of the most significant tributes that Power has ever paid to Reason.”
That aside – and this quibble clearly has more to do with me than Feldman – this is an excellent read. You learn about four fascinating judges. You learn about constitutional theory, and how it has evolved over time (conservatives started out as activists; liberals originally called for restraint; now things have flipped). More entertainingly, though, you get to watch these four men, who had all reached the peak of their professional attainment, acting like petty children in their interpersonal relationships.
The lesson, I suppose, is that you can never get too old, too smart, or too successful, to nurse a lingering grudge all the way to the grave.
June 10, 2019
It has been said that the Justices of the Supreme Court of the United States (SCOTUS) are like nine scorpions in a bottle. Never is that truer than after reading Noah Feldman’s book, in which he explores some of the precarious dealings those nine men had with one another throughout the 20th century. While Feldman does focus on four specific Justices, all chosen by President Franklin Delano Roosevelt, he makes the case that these men were unpredictable, both on and off the bench. The argument of FDR’s desire to shape the Court in his own image has long been held, though Feldman shows how the choice of four men in particular—Felix Frankfurter, Hugo Black, William O. Douglas, and Robert H. Jackson—shaped the Court and America significantly with their decisions that spanned decades on the bench. However, Feldman does not simply parachute the reader into the middle of Supreme Court decisions, but rather builds a foundation through biographical vignettes of these powerful men, providing context into some of their decisions and the outside influences during key cases. Each man came from a vastly different background and held beliefs that creates the aforementioned unpredictability. From Frankfurter’s arrival as a teenage to the shores of America to Black’s membership in the KKK in order to win a seat in the Senate, Feldman shows how one’s past can differ greatly and yet still catch the eye of a man with the power to offer great rewards. Feldman also discusses some of the key FDR legal issues early in his presidency, including the court-packing bill that would have ensured a liberal court in his own image. Moving away from that, FDR had to choose men who would support his New Deal politics and turn the Court away from its conservatism. This paved the way for support the liberal democracy that would soon be paramount in contrasting with the rise of fascist views in Europe. As Feldman mixes biography with Court cases, the reader has a better understanding of how America evolved—or devolved—during key events in history, the war, and social expression. One cannot miss the inherent political side of the SCOTUS, even as it purports to be the neutral branch of the American political system. Justice Douglas is shown throughout to align himself with those who could grant him a potential run for high office, while Justice Jackson used his ties to win a temporary leave from SCOTUS to serve as chief prosecutor in Nuremberg. Feldman takes the reader on this journey and explores how—due to their life appointment—FDR’s appointees continued to shape the legal landscape long after the president’s death. Full of captivating stories and constitutional discussions about how American jurisprudence sought to weight rights against policy enactment, Feldman shows how the law is not as clear-cut as it may seem—including detailed discussion of Brown v. Board of Education and the negotiation to get a unanimous decision. Recommended to those who love all things legal, especially constitutional, as well as the reader who has a passion for 20th century American history.
This book was recommended to me by a friend who knows how much I love constitutional discussions. I have long loved reading about SCOTUS interpretation of the law and how decisions are reached by the nine sitting on the bench. Feldman goes deeper though, by not only providing the reader with a biography of the four men he will use as judicial filters throughout, but also providing an ongoing narrative about their lives, the interactions they had, and the backdrop of history as it unfolded. While today’s SCOTUS may appear to be lapdogs with decision-making to appease an ideological bent, Feldman effectively shows how the Court of the day was less predictable in its decisions and rationale, looking to legal arguments and not a pre-destined checklist of how a Justice will rule. Interestingly enough, Feldman also shows that Justices can flex their own legal muscle when they attain a seat on the bench, no longer forced to spew forth the rhetoric of the president who selected them (or the groups that helped push them into the limelight, as with Justice Black). Feldman’s discussion remains on point and his narrative is clear, turning the delivery of fact and anecdote into a story-like presentation rather than dry, textbook discussion. The tome is easily understood by the layperson seeking to know more or better understand key decisions, particularly during the apparent suspension of rights throughout the Second World War and the social instability of the early Cold War years. Fantastic in its presentation, Feldman leaves the reader wanting to know more, with a text full of citations that dangle more information on many topics. I hope to find more of Feldman’s writing to explore legal history and SCOTUS discussions in the near future.
Kudos, Mr. Feldman, on a stunningly easy book to digest while also tacking the tough topics. You have proven the ‘scorpion’ argument well and I cannot wait to see what else you have in store for readers.
Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
A Book for All Seasons, a different sort of Book Challenge: https://www.goodreads.com/group/show/...
This book was recommended to me by a friend who knows how much I love constitutional discussions. I have long loved reading about SCOTUS interpretation of the law and how decisions are reached by the nine sitting on the bench. Feldman goes deeper though, by not only providing the reader with a biography of the four men he will use as judicial filters throughout, but also providing an ongoing narrative about their lives, the interactions they had, and the backdrop of history as it unfolded. While today’s SCOTUS may appear to be lapdogs with decision-making to appease an ideological bent, Feldman effectively shows how the Court of the day was less predictable in its decisions and rationale, looking to legal arguments and not a pre-destined checklist of how a Justice will rule. Interestingly enough, Feldman also shows that Justices can flex their own legal muscle when they attain a seat on the bench, no longer forced to spew forth the rhetoric of the president who selected them (or the groups that helped push them into the limelight, as with Justice Black). Feldman’s discussion remains on point and his narrative is clear, turning the delivery of fact and anecdote into a story-like presentation rather than dry, textbook discussion. The tome is easily understood by the layperson seeking to know more or better understand key decisions, particularly during the apparent suspension of rights throughout the Second World War and the social instability of the early Cold War years. Fantastic in its presentation, Feldman leaves the reader wanting to know more, with a text full of citations that dangle more information on many topics. I hope to find more of Feldman’s writing to explore legal history and SCOTUS discussions in the near future.
Kudos, Mr. Feldman, on a stunningly easy book to digest while also tacking the tough topics. You have proven the ‘scorpion’ argument well and I cannot wait to see what else you have in store for readers.
Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
A Book for All Seasons, a different sort of Book Challenge: https://www.goodreads.com/group/show/...
January 14, 2023
The cloak of majesty over the Supreme Court is pulled off in this book. The reader is given a birds eye view to the jealousies, pettiness, arrogance, and inner working of the Court during the Roosevelt Court but it could apply to any rime. It focuses on Frankfurter, Black, Douglas, and Jackson and although the aforementioned adjectives fit all of them, they were also some of the most brilliant men ever to sit on the court. They re-defined the way the Constitution was interpreted. In the words of Douglas, the Constitution is a living document; one which can be interpreted to respect rights that previously had not been recognized.
The book covers the time while Roosevelt was in office and had a large influence over decisions that were taken and keeping them away from one anothers throats. They were all highly ambitious. Douglas' prime ambition was to become president while Black's was to become Chief Justice. Neither achieved those goals but both, along with Frankfurter and Jackson become four of the greatest justices in the history of the country.
I recommend this book as an excellent source on this particular court but also on the court in general.
The book covers the time while Roosevelt was in office and had a large influence over decisions that were taken and keeping them away from one anothers throats. They were all highly ambitious. Douglas' prime ambition was to become president while Black's was to become Chief Justice. Neither achieved those goals but both, along with Frankfurter and Jackson become four of the greatest justices in the history of the country.
I recommend this book as an excellent source on this particular court but also on the court in general.
December 27, 2019
FDR was one of America’s great liberal presidents. It only makes sense that he would appoint liberal justices to the Supreme Court. This book is about 4 of those justices (Douglas, Black, Frankfurter, and Jackson).
At the core of liberal jurisprudence are judicial restraint and original intent.
Er, wait? What? Judicial restraint and original intent are at the core of liberal jurisprudence? Surely I wrote that wrong! Judicial restraint and original intent are at the core of conservative jurisprudence, right?
Not necessarily. Would you believe that the vote that denied the Jehovah’s Witnesses the freedom not to say the Pledge of Allegiance was decided 8-1 with the lone vote supporting the JW’s coming from the most conservative Justice---Justice Stone?
Would you believe that the ruling in Brown v Education that required desegregation was decided because Justice Black argued that the original intent of the 13-15th Amendments had not been upheld by even the earliest Supreme Court Rulings? That Black saw those amendments as originally supporting equality and requiring desegregation?
One of the more interesting sections of the book was when the author was talking about Frankfurter. Frankfurter joined the Court as a liberal, but became known as one of the leading conservative justices:
As the other liberals on the Court shifted ground, Frankfurter--to his astonishment---found himself transformed into a Conservative. Frankfurters 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 remarkedly 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.
[...]
Frankfurter worried that assigning to the Supreme Court the job of protecting liberal Rights would relieve the public of the responsibility to protect basic Rights on its own, through influencing the lesigislature.
The book is about much more than just the shifts between liberal and conservatism, but I found that to be an interesting undercurrent of the book.
At the core of liberal jurisprudence are judicial restraint and original intent.
Er, wait? What? Judicial restraint and original intent are at the core of liberal jurisprudence? Surely I wrote that wrong! Judicial restraint and original intent are at the core of conservative jurisprudence, right?
Not necessarily. Would you believe that the vote that denied the Jehovah’s Witnesses the freedom not to say the Pledge of Allegiance was decided 8-1 with the lone vote supporting the JW’s coming from the most conservative Justice---Justice Stone?
Would you believe that the ruling in Brown v Education that required desegregation was decided because Justice Black argued that the original intent of the 13-15th Amendments had not been upheld by even the earliest Supreme Court Rulings? That Black saw those amendments as originally supporting equality and requiring desegregation?
One of the more interesting sections of the book was when the author was talking about Frankfurter. Frankfurter joined the Court as a liberal, but became known as one of the leading conservative justices:
As the other liberals on the Court shifted ground, Frankfurter--to his astonishment---found himself transformed into a Conservative. Frankfurters 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 remarkedly 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.
[...]
Frankfurter worried that assigning to the Supreme Court the job of protecting liberal Rights would relieve the public of the responsibility to protect basic Rights on its own, through influencing the lesigislature.
The book is about much more than just the shifts between liberal and conservatism, but I found that to be an interesting undercurrent of the book.
May 30, 2017
One would think that a book about 4 Supreme Court Justices written by a Harvard academic would be a real dozer; dry, dull, boring, and full of legalese. Happily I can report that that is most certainly not the case with this story of Justices Frankfurter, Douglas, Jackson, and Black. I would never have risked purchasing this book but for the positive review of a GR friend (thanks Matt) as my experience with books by academics is not good. Academics seem to write for other academics and not the general reading public which is most unfortunate as it is the public that needs to read these books. But my friend's review stirred my interest so I bought the book, read it, and enjoyed it immensely.
Mr. Feldman has given us a book that primarily traces the professional careers of these 4 eminent justices but the main focus is on their tenures on the SCOTUS. Each justice's life is given in detail sufficient to understand their adult lives and careers but this book is not a full blown biography of each of these men. If I understand the author's position he believes these 4 men entered the SCOTUS as liberal New Deal appointees of FDR united in their loyalty to their president and his programs to rebuild the American economy and then win a war. At first these men were allies and something of a team in their efforts to aid the efforts of FDR and the New Deal. But this unity was not to last. After FDR died in 1945 the team lost their captain and the New Deal was part of the past. This is when the book, for me, became interesting, very interesting.
The only thing these 4 men had in common was FDR and now he was gone. What may have struck the author and most readers as odd was, to me, hardly anything but predictable. These men were all very intelligent, accomplished, ambitious, LAWYERS. These men were all classic Type A personalities or they would never have achieved the acclaim needed to be appointed to the SCOTUS. As a retired lawyer I think I would not be telling tales out of school to reveal that the members of my profession are not strong team players. Mostly lawyers are prima donnas and lone wolves and sharing spotlights runs against the grain. What I found unusual was that these 4 men were ever able to work cohesively together at all regardless of their loyalty to FDR but they did. Once FDR was gone, however, it should have surprised nobody that they started to split up and even became hostile to one another. The hostility brings us to another aspect of this book I enjoyed.
It was more than a little amusing to read about the behind the scenes behavior of these justices. The SCOTUS has been traditionally cloaked in secrecy and very little is ever revealed about what goes on it that building across the street from the Capitol but this book gives us an eye full. In the course of discussing some of the major decisions reached by the Court during the tenures of these men the author reveals the motivations and reasoning, personal and political, that affected these decisions. This book clearly details the humanity of these 4 members of SCOTUS. While justices of the SCOTUS are the pinnacle of the American legal profession and are regarded as almost god-like in stature this book shows us that they are also human and that is rather disturbing as well as comforting. The author also traces what I believe is a universal fault of those that reach this pinnacle of our profession.
In the course of tracing the evolution of SCOTUS decisions rendered during the tenures of these 4 justices the author details the attempts of each justice to formulate his own legal philosophy. This is what I consider a fault of being a SCOTUS justice. Each justice attempts to create some sort of mechanical system that will allow him/her to approach and decide each case in a consistent manner. The author's discussion of Justice Frankfurter's anguish over the Brown v Board of Education case most clearly illustrates the problems with creating such a consistent philosophy. Frankfurter clearly wanted to rule to end segregation but his philosophy of judicial restraint conflicted with his desired outcome. He didn't want to be viewed as inconsistent and he tortured himself about how to reconcile his desired outcome with his philosophy. To my mind the only consistency a judge should strive to achieve is a just outcome using the law as a guide but not as straightjacket. If the law was meant to be applied mechanically then it wouldn't have been placed in the hands of human beings. The law is a tool to be intelligently used by humans to achieve justice and creating a legal philosophy will eventually only put a judge in the same position Frankfurter found himself in with the Brown case. We lawyers love to over-think things sometimes.
On the whole I found this book to be a work that can be read by a layman as well as a lawyer and appreciated by both. The author ably treats his subjects and the details of SCOTUS history and the evolution of Court decisions in a manner easily understandable to any reader without it appearing to be dumb-downed. The wealth of inside information and history is a joy and a revelation to discover and part of the value of reading histories. If you are interested in FDR, the Depression, the New Deal, or the modern SCOTUS then this book would be something you should definitely read and enjoy.
Mr. Feldman has given us a book that primarily traces the professional careers of these 4 eminent justices but the main focus is on their tenures on the SCOTUS. Each justice's life is given in detail sufficient to understand their adult lives and careers but this book is not a full blown biography of each of these men. If I understand the author's position he believes these 4 men entered the SCOTUS as liberal New Deal appointees of FDR united in their loyalty to their president and his programs to rebuild the American economy and then win a war. At first these men were allies and something of a team in their efforts to aid the efforts of FDR and the New Deal. But this unity was not to last. After FDR died in 1945 the team lost their captain and the New Deal was part of the past. This is when the book, for me, became interesting, very interesting.
The only thing these 4 men had in common was FDR and now he was gone. What may have struck the author and most readers as odd was, to me, hardly anything but predictable. These men were all very intelligent, accomplished, ambitious, LAWYERS. These men were all classic Type A personalities or they would never have achieved the acclaim needed to be appointed to the SCOTUS. As a retired lawyer I think I would not be telling tales out of school to reveal that the members of my profession are not strong team players. Mostly lawyers are prima donnas and lone wolves and sharing spotlights runs against the grain. What I found unusual was that these 4 men were ever able to work cohesively together at all regardless of their loyalty to FDR but they did. Once FDR was gone, however, it should have surprised nobody that they started to split up and even became hostile to one another. The hostility brings us to another aspect of this book I enjoyed.
It was more than a little amusing to read about the behind the scenes behavior of these justices. The SCOTUS has been traditionally cloaked in secrecy and very little is ever revealed about what goes on it that building across the street from the Capitol but this book gives us an eye full. In the course of discussing some of the major decisions reached by the Court during the tenures of these men the author reveals the motivations and reasoning, personal and political, that affected these decisions. This book clearly details the humanity of these 4 members of SCOTUS. While justices of the SCOTUS are the pinnacle of the American legal profession and are regarded as almost god-like in stature this book shows us that they are also human and that is rather disturbing as well as comforting. The author also traces what I believe is a universal fault of those that reach this pinnacle of our profession.
In the course of tracing the evolution of SCOTUS decisions rendered during the tenures of these 4 justices the author details the attempts of each justice to formulate his own legal philosophy. This is what I consider a fault of being a SCOTUS justice. Each justice attempts to create some sort of mechanical system that will allow him/her to approach and decide each case in a consistent manner. The author's discussion of Justice Frankfurter's anguish over the Brown v Board of Education case most clearly illustrates the problems with creating such a consistent philosophy. Frankfurter clearly wanted to rule to end segregation but his philosophy of judicial restraint conflicted with his desired outcome. He didn't want to be viewed as inconsistent and he tortured himself about how to reconcile his desired outcome with his philosophy. To my mind the only consistency a judge should strive to achieve is a just outcome using the law as a guide but not as straightjacket. If the law was meant to be applied mechanically then it wouldn't have been placed in the hands of human beings. The law is a tool to be intelligently used by humans to achieve justice and creating a legal philosophy will eventually only put a judge in the same position Frankfurter found himself in with the Brown case. We lawyers love to over-think things sometimes.
On the whole I found this book to be a work that can be read by a layman as well as a lawyer and appreciated by both. The author ably treats his subjects and the details of SCOTUS history and the evolution of Court decisions in a manner easily understandable to any reader without it appearing to be dumb-downed. The wealth of inside information and history is a joy and a revelation to discover and part of the value of reading histories. If you are interested in FDR, the Depression, the New Deal, or the modern SCOTUS then this book would be something you should definitely read and enjoy.
December 5, 2010
This started off badly. By page 34, discussing Franklin Roosevelt's battle with polio, Feldman writes:
Drawing on reserves of personal strength even he did not know he had, the man to whom everything had come so easily rehabilitated himself until he was strong enough to run for governor of New York in 1928.
Really? Perhaps it was a miracle then. At least we know early on in Scorpions that Feldman will not be objective when it comes to FDR. And indeed he was not. Sometimes it was a little more subtle, as opposed to the hero-worshiping line above, like when he compares every other human being unfavorably. Indeed, he has not a kind word to say about Truman, a president I happen to like a lot.
And by Chapter Two, Feldman has absolved Sacco and Vanzetti of guilt. He manages to do this by referencing a ballistics expert called by the prosecution who had some doubts about his testimony after the trial. This is a classic argumentative technique of post-trial defense attorneys without scruples (or agenda-driven law professors), to ignore any evidence of guilt and look instead to any inconsistency or post-trial angst as proof of innocence and government conspiratorial overreaching. In fact, Feldman actually posits that the prosecution probably switched guns to frame Sacco and Vanzetti. There is no proof of that, of course. And one wonders why Feldman went to all the bother because he never mentioned that more sophisticated ballistics tests in 1961 and again in 1983 proved that the bullet that killed Berardelli (one of the victims whom Feldman never mentions by name, perhaps because a victim can never be as important as a cause) was absolutely, positively fired from Sacco's gun. However, if he actually dealt with the facts, Feldman could never have gushed about what a hero Felix Frankfurter was for trying to spare Sacco and Vanzetti, executed, he suggests, for merely being Italian.
Nevertheless, with that stumble out of the gate, Feldman does right himself. The rest of Scorpions could serve as a primer of basic constitutional law and theory. And it's very well-told. There is just enough biographical background to add a human element to it all and also give an insider's view to what might otherwise be cold jurisprudence. I was fascinated, in particular, with how petty these men could be.
While I might quibble with the author's insistence on calling these four judges 'great' (and repetitively as if saying it over and over would make it so), there is no denying that these were great cases: court-packing, Japanese-American internment, Communists, Nuremburg, the right to privacy, and, of course, segregation. And if you're a constitutional law geek, Feldman's treatment of the judicial attempts to understand what the Fourteenth Amendment's due process clause means - whether, and to what extent, the Bill of Rights is applicable to the States - is the second best explanation I've ever heard.
Scorpions is compelling reading. I only wish I had read this 34 years ago.
Drawing on reserves of personal strength even he did not know he had, the man to whom everything had come so easily rehabilitated himself until he was strong enough to run for governor of New York in 1928.
Really? Perhaps it was a miracle then. At least we know early on in Scorpions that Feldman will not be objective when it comes to FDR. And indeed he was not. Sometimes it was a little more subtle, as opposed to the hero-worshiping line above, like when he compares every other human being unfavorably. Indeed, he has not a kind word to say about Truman, a president I happen to like a lot.
And by Chapter Two, Feldman has absolved Sacco and Vanzetti of guilt. He manages to do this by referencing a ballistics expert called by the prosecution who had some doubts about his testimony after the trial. This is a classic argumentative technique of post-trial defense attorneys without scruples (or agenda-driven law professors), to ignore any evidence of guilt and look instead to any inconsistency or post-trial angst as proof of innocence and government conspiratorial overreaching. In fact, Feldman actually posits that the prosecution probably switched guns to frame Sacco and Vanzetti. There is no proof of that, of course. And one wonders why Feldman went to all the bother because he never mentioned that more sophisticated ballistics tests in 1961 and again in 1983 proved that the bullet that killed Berardelli (one of the victims whom Feldman never mentions by name, perhaps because a victim can never be as important as a cause) was absolutely, positively fired from Sacco's gun. However, if he actually dealt with the facts, Feldman could never have gushed about what a hero Felix Frankfurter was for trying to spare Sacco and Vanzetti, executed, he suggests, for merely being Italian.
Nevertheless, with that stumble out of the gate, Feldman does right himself. The rest of Scorpions could serve as a primer of basic constitutional law and theory. And it's very well-told. There is just enough biographical background to add a human element to it all and also give an insider's view to what might otherwise be cold jurisprudence. I was fascinated, in particular, with how petty these men could be.
While I might quibble with the author's insistence on calling these four judges 'great' (and repetitively as if saying it over and over would make it so), there is no denying that these were great cases: court-packing, Japanese-American internment, Communists, Nuremburg, the right to privacy, and, of course, segregation. And if you're a constitutional law geek, Feldman's treatment of the judicial attempts to understand what the Fourteenth Amendment's due process clause means - whether, and to what extent, the Bill of Rights is applicable to the States - is the second best explanation I've ever heard.
Scorpions is compelling reading. I only wish I had read this 34 years ago.
April 20, 2014
I loved the quote by one of Frankfurter’s clerks, “They are like nine scorpions in a bottle.” FDR appointed more Supreme Court justices than any other President. He re-made the court through his appointees. Four of them Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson are among the most influential justices in the U. S. history. The author looks at how these men came to the court, how their ideas developed there, and how their interplay and rivalries reshaped constitutional thought and the balance of power in the country. They gradually came to understand just how radically different their judicial philosophies became over time. The climax of the book was how the new chief justice Earl Warren bought them together to reach a unanimous decision on Brown V Board of Education. Feldman did an excellent job weaving a compelling narrative out of an extremely complicated and abstract plot. The book offers a wealth of anecdotes. The author tells these stories in a graceful narrative, cutting back and forth between different characters, situating personal doings in the great events of the era. The book helps give one an understanding of how the court works even it justices have different philosophies. I read this as an e-book downloaded to the Kindle app on my Ipad.
December 20, 2019
Scorpions is a thorough examination of four justices appointed by FDR: Felix Frankfurter, Robert Jackson, Hugo Black and William O. Douglas. The book discusses their educational backgrounds, private lives, rise to the supreme court, and of course their notable decisions while serving.
Each of the justices were fascinating people with complex perspectives on the law. My favorites were Frankfurter, an outspoken Jew who believed in judicial restraint, and Hugo Black, a former Klans member who ended up arguing for desegregation in Brown vs. the Board of Education.
Other interesting topics included the case involving the internment of Japanese Americans during WWII and Jackson's involvement in the Nuremberg trials.
I read this as part of my 2019 resolution to read more about the Supreme Court. Like many of the other books I have read on the topic, it is striking how political and personal issues influence interactions between justices and even court decisions.
I will admit that I didn't fully understand some of the information regarding the different perspectives (originalism, judicial restraint, liberalism, pragmatism) and the book felt very long at times. Overall, though, I highly recommend it for anyone interested in legal history!
Each of the justices were fascinating people with complex perspectives on the law. My favorites were Frankfurter, an outspoken Jew who believed in judicial restraint, and Hugo Black, a former Klans member who ended up arguing for desegregation in Brown vs. the Board of Education.
Other interesting topics included the case involving the internment of Japanese Americans during WWII and Jackson's involvement in the Nuremberg trials.
I read this as part of my 2019 resolution to read more about the Supreme Court. Like many of the other books I have read on the topic, it is striking how political and personal issues influence interactions between justices and even court decisions.
I will admit that I didn't fully understand some of the information regarding the different perspectives (originalism, judicial restraint, liberalism, pragmatism) and the book felt very long at times. Overall, though, I highly recommend it for anyone interested in legal history!
November 4, 2010
Scorpions – the title references a description of the Supreme Court Justices as “nine scorpions in a bottle” – is the story of four widely different justices all appointed by Franklin D. Roosevelt. These four, Hugo Black, Felix Frankfurter, Robert Jackson and William O. Douglas could not have been more dissimiliar. Frankfurter, a Jew was perhaps the most liberal voice in the country when Roosevelt appointed him to the court. Black was a southern country lawyer former KKK member with an altogether unique interpretation of the constitution, Jackson, a plain spoken lawyer seeking a pragmatic resolution to court cases and Douglas, a westerner who defined wide limits for individual freedom. I enjoyed the detail and back story the author presented on all of these men. The intellectual growth that allowed these men to listen, learn and change their minds from where they started was so appealing in this story. Black from a KKK member to perhaps the strongest civil rights supporter on the court. Frankfurter from the most liberal to arguably the most conservative member of the court. I was fascinated at how men of such widely divergent backgrounds could come together to decide some of the most important issues of the twentieth century. The background of the Japanese interment in WWII, Truman’s seizure of the steel mills, civil rights and lastly the Brown v. the Board of Education decisions are all covered with the deliberations and interactions that led to the court decisions. Personalities are on full display. I admit much of the legal theories were lost on me and did for me (the clearly non legal reader) drag out the story a bit but I still enjoyed this book as a history of the Supreme Court and the justices who served there. In today’s acrimonious political environment one really longs for the time when disagreements were discussed, debated and had compromises developed that moved the country forward. A good narrative history of the Supreme Court in the mid twentieth century.
November 8, 2017
Pure literary heroin for this legal history addict. The personal and interpersonal lives of these four Roosevelt-appointed justices was more interesting than many of the landmark cases they considered and ruled on. The developing constitutional philosophies for each individual justice was extremely fascinating as well, especially in light of each justice's personal background and upbringing. Highly recommend, but don't overdose!
June 14, 2017
This is a very well written, highly satisfying history of the Roosevelt Supreme Court through the life stories of its four greatest members, Justices Jackson, Douglas, Frankfurter and Black. The life stories of these men are fascinating. Anyone of them would be a formidable subject for a biography. But the four of them together over the two decades of greatest doctrinal change in the Supreme Court's history are absolutely compelling. Proud Hugo Black, who joined the KKK in his native Alabama to ride the group's network to the Senate and then washed his hands off them, was a nasty piece of work. Brittle Jackson, who never achieved his ambition of becoming Chief Justice but prosecuted the Nuremberg trial while accompanied by his mistress. Brilliant Frankfurter, an arrogant and supercilious manipulator who treated his colleagues like students and cared about nothing as much as his legacy. And crusty individualist Douglas, an inveterate skirt-chaser who could have become President of the USA. Each of these four men pioneered the schools that have driven Court rulings for the past 60 years: originalism, legal realism, minimalism, pragmatism. What is particularly compelling is how great rulings got made in the middle of political intrigue and all around beastliness. The stories behind great rulings like Korematsu and Brown v. Board of Education are told in detail. Fascinating stuff. Not the stuff of Socratic dialogue. Highly recommended.
June 16, 2019
A highly readable history of the Supreme Court judiciary during the time of FDR and Truman. The legacy of their decisions continue to affect our daily lives. The politicizing of supreme court appointees is in the news today, but this controversy has been around a long, long time. I learned that there is no constitutional requirement for 9 judges, so the “packing” by FDR was not as crazy as it is commonly taught (similarly, politics blocked an Obama appointee, and decisions thwarted after Scalia died). FDR increased the power of the federal government to a great extent and operationalized it by his long tenure, essentially replacing all but one on the SCOTUS. On the heels of the depression, there was finally an appetite for reigning in the moneyed interests (FDR believed that his “socialist” policies saved democracy from the naked greed of capitalists). Oddly, the right to free speech was being invoked by the richest members of society to protect the system they had created and profited from (p. 92) – similar to our state today where SCOTUS has deemed corporations individuals and their political contributions therefore constitutionally protected “speech”.
Perhaps one of the more interesting learnings for me was that there has always been a clash of interpretation of the constitution and its amendments. “Originalists” remind me of biblical literalists, yet I do sympathize with the view that congress should legislate (not the SCOTUS) – regardless of political pressure. Protection of individuals against their own state’s laws (be it segregation or worker safety) because a matter of federal control in the mid 20th century and it wasn’t until Ronald Reagan that this approach began to erode (ironically citing federal government as “the problem”, and further boosted but the current POTUS and his cronies). It almost feels as if we are on a 100 year cycle and history will repeat in the 2020’s. This book is an invaluable history lesson, and highly entertaining as we learn of the real players of this era: Felix Frankfurter, the far left socialist who changed to be one of the most conservative; Hugo Black, the southern ex-Klansman who ultimately argued Brown vs the Board of Education; Robert Jackson, the non-lawyer who litigated at Nuremberg and sought public office throughout his tenure on the SCOTUS; and William Douglas, also politically active and married four times yet presided over some of the most brilliant arguments and momentous decisions. This book reveals the men as human beings, has descriptive chapter headings, and is well organized into appropriately sized sections that flow and make for entertaining reading. Readers will learn a great deal about history and the second world war, the most recent and one of the most important geo-political events of all time.
The relevance of this book today is manifest in the interpretation of the momentous and broad-ranging 14th amendment, whose due process clause is used to justify, e.g. Koch brothers donations to the GOP and business-friendly politicians and the right to abortion (Roe v Wade), still a major plank on the left side of the democratic platform. Hugo Black railed against this over-reach when he argued this amendment was never intended to include corporations as “persons” (as deemed in the prior court, in the Lochner case). The long reach of precedent and the awesome power of the decisions of SCOTUS, even those made nearly a 100 years ago, astonished me.
“Saving capitalism by regulating it” (p. 177) was the liberal mantra of Roosevelt’s court, as stated by Jackson in 1938. This was long before the term was weaponized in the 1960s (Goldwater) and redefined by that great orator/actor Reagan in the 1980s. Back in the 30s, the goal was to protect personal property, but to get a “fair” return. Communism, socialism and fascism were seen as antithetical to what liberals espoused. The toxic politics in the US today seeks to obfuscate the meaning of these words. The other takeaway for me, and consistent with other recent readings, is the “red scare” of communism was never truly a threat in the US, it was really the perception and fear created for political ends that caused all the trauma. It reminds me of the war on drugs started in the 80s, perpetuated by creating villains of dealers – an effective campaign that seems to have done nearly nothing to avoid the pain of drug use today which it at a zenith. But I digress.
A surprising fact was that in the era of the FDR appointed SCOTUS, the positions were not conceived as permanent, and being politically active (e.g. campaigning for secretary of state or vice president) was not unusual. It was a job, not a lifetime appointment as it is perceived today. In this sense, I think the SCOTUS is in a better place, less politically incentivized (one can argue they should have terms to refresh more often, but the tenure argument has two sides). I’ve always felt the SCOTUS is one of our stronger organizations, and keeping it separate from the other two branches of government is our best hope for a democratic form of government. This book was truly enlightening and slaked my thirst for more knowledge, especially on matters such as Roe v Wade, which brings together some of most incendiary issues and has influenced every single election in my lifetime.
This book was a gift from a friend at work, with whom I share a love of history. I’m trying to get him to read more novels and he seeks to get me to read more history. We are good match and, without his influence, I would not have read this one. That’s the beauty of a reading partner. My father in law read it too, being a generation older and more familiar with the actual history, and we shared a great deal of stimulating debate after sharing this book.
The scholarship and references are spectacular - the references don't impede the prose, yet clearly is exhaustive and well documented in the end.
Perhaps one of the more interesting learnings for me was that there has always been a clash of interpretation of the constitution and its amendments. “Originalists” remind me of biblical literalists, yet I do sympathize with the view that congress should legislate (not the SCOTUS) – regardless of political pressure. Protection of individuals against their own state’s laws (be it segregation or worker safety) because a matter of federal control in the mid 20th century and it wasn’t until Ronald Reagan that this approach began to erode (ironically citing federal government as “the problem”, and further boosted but the current POTUS and his cronies). It almost feels as if we are on a 100 year cycle and history will repeat in the 2020’s. This book is an invaluable history lesson, and highly entertaining as we learn of the real players of this era: Felix Frankfurter, the far left socialist who changed to be one of the most conservative; Hugo Black, the southern ex-Klansman who ultimately argued Brown vs the Board of Education; Robert Jackson, the non-lawyer who litigated at Nuremberg and sought public office throughout his tenure on the SCOTUS; and William Douglas, also politically active and married four times yet presided over some of the most brilliant arguments and momentous decisions. This book reveals the men as human beings, has descriptive chapter headings, and is well organized into appropriately sized sections that flow and make for entertaining reading. Readers will learn a great deal about history and the second world war, the most recent and one of the most important geo-political events of all time.
The relevance of this book today is manifest in the interpretation of the momentous and broad-ranging 14th amendment, whose due process clause is used to justify, e.g. Koch brothers donations to the GOP and business-friendly politicians and the right to abortion (Roe v Wade), still a major plank on the left side of the democratic platform. Hugo Black railed against this over-reach when he argued this amendment was never intended to include corporations as “persons” (as deemed in the prior court, in the Lochner case). The long reach of precedent and the awesome power of the decisions of SCOTUS, even those made nearly a 100 years ago, astonished me.
“Saving capitalism by regulating it” (p. 177) was the liberal mantra of Roosevelt’s court, as stated by Jackson in 1938. This was long before the term was weaponized in the 1960s (Goldwater) and redefined by that great orator/actor Reagan in the 1980s. Back in the 30s, the goal was to protect personal property, but to get a “fair” return. Communism, socialism and fascism were seen as antithetical to what liberals espoused. The toxic politics in the US today seeks to obfuscate the meaning of these words. The other takeaway for me, and consistent with other recent readings, is the “red scare” of communism was never truly a threat in the US, it was really the perception and fear created for political ends that caused all the trauma. It reminds me of the war on drugs started in the 80s, perpetuated by creating villains of dealers – an effective campaign that seems to have done nearly nothing to avoid the pain of drug use today which it at a zenith. But I digress.
A surprising fact was that in the era of the FDR appointed SCOTUS, the positions were not conceived as permanent, and being politically active (e.g. campaigning for secretary of state or vice president) was not unusual. It was a job, not a lifetime appointment as it is perceived today. In this sense, I think the SCOTUS is in a better place, less politically incentivized (one can argue they should have terms to refresh more often, but the tenure argument has two sides). I’ve always felt the SCOTUS is one of our stronger organizations, and keeping it separate from the other two branches of government is our best hope for a democratic form of government. This book was truly enlightening and slaked my thirst for more knowledge, especially on matters such as Roe v Wade, which brings together some of most incendiary issues and has influenced every single election in my lifetime.
This book was a gift from a friend at work, with whom I share a love of history. I’m trying to get him to read more novels and he seeks to get me to read more history. We are good match and, without his influence, I would not have read this one. That’s the beauty of a reading partner. My father in law read it too, being a generation older and more familiar with the actual history, and we shared a great deal of stimulating debate after sharing this book.
The scholarship and references are spectacular - the references don't impede the prose, yet clearly is exhaustive and well documented in the end.
October 26, 2012
This is one part biography and one part judicial history for four New Deal justices: Robert Jackson, Hugo Black, Felix Frankfurter and William O. Douglas. Each of these men was different from the other, and different from today's appointees. For instance, two of them did not have a four year law degree and none was promoted up from a lower court, which seem to be de facto requirements today. Author Noah Feldman, Harvard University Professor of Law, provides germane and interesting personal information, tells how each came to be appointed by President Franklin Roosevelt and what each contributed to American jurisprudence.
I thought the politics of the Senate's "advise and consent" began with the rejection of Robert Bork, but Feldman shows how the need to get the justices through the Senate, even though the justices might not have to testify in a hearing (Frankfurter was the first justice since Brandeis to appear), was a major consideration for Roosevelt as well as Truman.
Once on the court, I was surprised to see the "group think" dynamic, such as the sway of Frankfurter on the Jehovah Witness flag saluting case and the administration's influence on World War II Japanese Internment.
Feldman provides the clearest explanation of the Roosevelt's "court packing' attempt that I have seen. Feldman doesn't discuss, and I wondered, if Owen Roberts' changed vote that "saved nine" means the question of adding justices is still unresolved and can be tried again.
While some areas of the justices' conduct are more restrained today, others are not. For instance Frankfurter's barrage of letters to Roosevelt and Thomas Corcoran's input to the justices he mentored would not be acceptable today, but recusal seems to be a thing of the past. The issue of Justice Black's honor for not recusing himself on a mining case, argued by a partner of 20 years past, seems quaint. Today, justices openly mix with business leaders who hire lobbyists to make their viewpoints known and the justices do not recuse themselves when cases related to those interests come before the court.
The book brings up many issues still with us today, such as Frankfurter's doctrine of judicial restraint, pragmatism shown by Jackson and originalism as developed by Black. Justice Douglas developed judicial doctrines on "liberty" (different from "equality" which was of more interest to other justices), applying the constitution to individual privacy.
This is a very thought provoking book. These four justices were pioneers in applying law to the modern age. They presided over some of the most important issues of the twentieth century, not only at home, but also abroad (Jackson as Chief Prosecutor at Nuremberg) It is fitting that their last case together was Brown v, the Board of Education, which ushered in a whole new birth of freedom in the US.
Feldman does not develop his title. While the justices compete with and undermine each other, with the exception of the Jackson-Black non-recusal episode and fallout, much of it seems like office politics more than scorpion behavior. Similarly, not all of Feldman's summations follow from his narrative. For instance Jackson may have been lonely, but it is hard to build a case that he is a "Hollow Man" ("headpiece filled with straw").
The legal issues and ideas are clear and presented in an interesting way. It provokes more interest in these outsized personalities and their work.
I thought the politics of the Senate's "advise and consent" began with the rejection of Robert Bork, but Feldman shows how the need to get the justices through the Senate, even though the justices might not have to testify in a hearing (Frankfurter was the first justice since Brandeis to appear), was a major consideration for Roosevelt as well as Truman.
Once on the court, I was surprised to see the "group think" dynamic, such as the sway of Frankfurter on the Jehovah Witness flag saluting case and the administration's influence on World War II Japanese Internment.
Feldman provides the clearest explanation of the Roosevelt's "court packing' attempt that I have seen. Feldman doesn't discuss, and I wondered, if Owen Roberts' changed vote that "saved nine" means the question of adding justices is still unresolved and can be tried again.
While some areas of the justices' conduct are more restrained today, others are not. For instance Frankfurter's barrage of letters to Roosevelt and Thomas Corcoran's input to the justices he mentored would not be acceptable today, but recusal seems to be a thing of the past. The issue of Justice Black's honor for not recusing himself on a mining case, argued by a partner of 20 years past, seems quaint. Today, justices openly mix with business leaders who hire lobbyists to make their viewpoints known and the justices do not recuse themselves when cases related to those interests come before the court.
The book brings up many issues still with us today, such as Frankfurter's doctrine of judicial restraint, pragmatism shown by Jackson and originalism as developed by Black. Justice Douglas developed judicial doctrines on "liberty" (different from "equality" which was of more interest to other justices), applying the constitution to individual privacy.
This is a very thought provoking book. These four justices were pioneers in applying law to the modern age. They presided over some of the most important issues of the twentieth century, not only at home, but also abroad (Jackson as Chief Prosecutor at Nuremberg) It is fitting that their last case together was Brown v, the Board of Education, which ushered in a whole new birth of freedom in the US.
Feldman does not develop his title. While the justices compete with and undermine each other, with the exception of the Jackson-Black non-recusal episode and fallout, much of it seems like office politics more than scorpion behavior. Similarly, not all of Feldman's summations follow from his narrative. For instance Jackson may have been lonely, but it is hard to build a case that he is a "Hollow Man" ("headpiece filled with straw").
The legal issues and ideas are clear and presented in an interesting way. It provokes more interest in these outsized personalities and their work.
May 1, 2011
I won this book as a goodreads first reads giveaway!
Perhaps it's because I haven't read enough history books, but I didn't realize that reading about FDR's Supreme Court justices would be like reading a soap opera. Geez, the drama was ridiculous.
I suppose I imagined this book would be more about the individual cases and their opinions than about who said what, befriended whom, offended so-and-so, etc., etc. But a lot of the book was about the dramas and perceived slights.
The first half of the book was about the history of each justice and how they made it to the Supreme Court and their relationship with Roosevelt. It also explained how each justice came to have their own unique judicial philosophy and constitutional view and provided a whole lot of context for the second half of the book.
One thing I didn't realize before I read this book was that while today we think of the Supreme Court as the highest point in a career, in this time some still had political aspirations or wanted to be Chief Justice. Seeing how this altered their votes and opinions was really interesting (I remember learning in my high school government class that the Supreme Court was above the politics :-)).
From Japanese internment to Brown vs. Board, these justices were trying to right past wrongs or explain away apparent contradictions, draw the line for what's acceptable during times of war and what is not as well as what's acceptable for the Court to decide vs. what should be legislated in Congress. This book captures all of this and shows how even the cases that appear most obvious have a lot going on behind them.
Perhaps it's because I haven't read enough history books, but I didn't realize that reading about FDR's Supreme Court justices would be like reading a soap opera. Geez, the drama was ridiculous.
I suppose I imagined this book would be more about the individual cases and their opinions than about who said what, befriended whom, offended so-and-so, etc., etc. But a lot of the book was about the dramas and perceived slights.
The first half of the book was about the history of each justice and how they made it to the Supreme Court and their relationship with Roosevelt. It also explained how each justice came to have their own unique judicial philosophy and constitutional view and provided a whole lot of context for the second half of the book.
One thing I didn't realize before I read this book was that while today we think of the Supreme Court as the highest point in a career, in this time some still had political aspirations or wanted to be Chief Justice. Seeing how this altered their votes and opinions was really interesting (I remember learning in my high school government class that the Supreme Court was above the politics :-)).
From Japanese internment to Brown vs. Board, these justices were trying to right past wrongs or explain away apparent contradictions, draw the line for what's acceptable during times of war and what is not as well as what's acceptable for the Court to decide vs. what should be legislated in Congress. This book captures all of this and shows how even the cases that appear most obvious have a lot going on behind them.
November 28, 2010
I'm giving this 5 stars because the material is important--not because it offers a cohesive narrative. My mouth was open during most of it. Truly, I was constantly surprised. Scorpions is well named. The four Roosevelt-appointed justices upon whom it focuses (Frankfurter, Black, Douglas and Jackson)were often jealous, political, petty and vengeful. While I didn't find anyone I could admire, I will give each of them credit for having a carefully thought-out personal theory of the Constitution from which each tried to work. (Proving to me that no single theory will work.) Unfortunately, the theories were widely diverse. Much of the work done by these men took place after Roosevelt died. They served through Truman and, amazingly, were still alive and on the Court for Brown v. Board of Education. In that case, they struggled through their different theories to reach a unanimous decision. A daunting task since two of them didn't believe in judicial activism. They realized, however, that if there were to be an end to segregation, it had to come from the Court. Congress, any Congress, would never pass such legislation. Read this if you're willing to give it the time and attention it deserves. The theories are worth thinking about and range from what we currently consider very liberal to very conservative.
October 15, 2019
This is a must for anyone who has even a passing interest in civil rights, American history, the Supreme Court, or the law.
Feldman does a fantastic job of summarizing the life, times and jurisprudence of Frankfurter, Douglas, Black and Jackson.
Feldman does a fantastic job of summarizing the life, times and jurisprudence of Frankfurter, Douglas, Black and Jackson.
September 1, 2023
probably the most compelling history book ive read honestly
June 18, 2012
“Scorpions The Battles and Triumphs of FDR’s Great Supreme Court Justices is” a very interesting book. All of FDR’s chosen justices subscribed to FDR’s liberal views and had distinguished themselves in some way in the eyes of their boss prior to being picked. In all FDR appointed 8 justices.
However, before he appointed any justices he made an attempt in vain to stack the Supreme Court with additional appointees. Under his plan, he wanted the authority to add one justice for every sitting justice over age 70 and 1/2. The purpose of this was to produce a court sympathetic to his very ample list of New Deal programs. This was FDR’s largest miscalculation. The public did not support it nor did the currently sitting justices including the very influential Chief Justice Charles Evans Hughes and FDR’s liberal sympathizer Justice Louis Brandeis. So when it went to congress it failed to pass.
Undeterred, FDR was forced to wait for a retirement or death for an opportunity to appoint Justices with his views. That opportunity came shortly after his court packing scheme failed. Justice Willis Van Devanter retired allowing FRD to make his first pick. His pick was Alabama Senator Hugo Black. Black had been an ardent supporter of the president. In fact, Black had voted for all 24 New deal programs. Black was easily confirmed due to the Senate Gentleman’s Club atmosphere despite rumors of KKK affiliation.
His next appointment was Stanley Reed who was working as U.S. Solicitor General. As Solicitor General Reed had argued many of FDR’s proposals including the Social Security Act and the Public Utility Holding Company Act before the Supreme Court prior to his own appointment.
His third appointment was one of his closest friends and advisors Felix Frankfurter.
His fourth pick was William O. Douglas. Douglass had been Securities and Exchange Commission (SEC) chairman. At that post he did an outstanding job of reorganizing the stock market.
His fifth pick was Frank Murphy. Murphy was the mayor of Detroit and only Catholic on the bench.
His next pick was James F. Byrnes who only sat on the bench for a year and a half leaving to head the Office of Economic Stabilization. He was replaced by Wiley Rutledge.
Robert Jackson was FRD’s last nominated justice. He was the U.S. Solicitor General who took over the trial of former U.S. Treasury Secretary Andrew Mellon’s tax case. After Mellon was all but cleared of all charges Jackson came in a nabbed him with a minor offense. FDR was so impressed how Jackson saved face for him that he appointed him to the bench.
A few of the Courts Major cases:
Minersville School District vs. Gobitis, The Minersville, PA school district tried to compel a Jehovah Witness boy to salute the American flag while reciting the Pledge of Allegiance. The court ruled in favor of the school stating that national unity is the basis for national security.
Korematsu v. United States, FDR issued an executive order to place Japanese Americans in internment camps during WWII. Fred Korematsu challenged this order. The Court ruled in favor of the government stating that the need to protect against espionage outweighed the rights of Japanese Americans.
What is generally regarded as the crown jewel opinion of this court was their decision in Brown vs. the Board of Education decision. In it they ruled that segregation was a violation of the Fourteenth Amendment’s “Equal Protection Clause.” This decision paved the way for civil rights legislation a decade later. Felix Frankfurter had the brilliant idea of a slow implantation of the ruling while he convinced a dying Justice Jackson’s approval, thus gaining a united opinion, and stewarding President Eisenhower and Former President Truman’s public support.
However, before he appointed any justices he made an attempt in vain to stack the Supreme Court with additional appointees. Under his plan, he wanted the authority to add one justice for every sitting justice over age 70 and 1/2. The purpose of this was to produce a court sympathetic to his very ample list of New Deal programs. This was FDR’s largest miscalculation. The public did not support it nor did the currently sitting justices including the very influential Chief Justice Charles Evans Hughes and FDR’s liberal sympathizer Justice Louis Brandeis. So when it went to congress it failed to pass.
Undeterred, FDR was forced to wait for a retirement or death for an opportunity to appoint Justices with his views. That opportunity came shortly after his court packing scheme failed. Justice Willis Van Devanter retired allowing FRD to make his first pick. His pick was Alabama Senator Hugo Black. Black had been an ardent supporter of the president. In fact, Black had voted for all 24 New deal programs. Black was easily confirmed due to the Senate Gentleman’s Club atmosphere despite rumors of KKK affiliation.
His next appointment was Stanley Reed who was working as U.S. Solicitor General. As Solicitor General Reed had argued many of FDR’s proposals including the Social Security Act and the Public Utility Holding Company Act before the Supreme Court prior to his own appointment.
His third appointment was one of his closest friends and advisors Felix Frankfurter.
His fourth pick was William O. Douglas. Douglass had been Securities and Exchange Commission (SEC) chairman. At that post he did an outstanding job of reorganizing the stock market.
His fifth pick was Frank Murphy. Murphy was the mayor of Detroit and only Catholic on the bench.
His next pick was James F. Byrnes who only sat on the bench for a year and a half leaving to head the Office of Economic Stabilization. He was replaced by Wiley Rutledge.
Robert Jackson was FRD’s last nominated justice. He was the U.S. Solicitor General who took over the trial of former U.S. Treasury Secretary Andrew Mellon’s tax case. After Mellon was all but cleared of all charges Jackson came in a nabbed him with a minor offense. FDR was so impressed how Jackson saved face for him that he appointed him to the bench.
A few of the Courts Major cases:
Minersville School District vs. Gobitis, The Minersville, PA school district tried to compel a Jehovah Witness boy to salute the American flag while reciting the Pledge of Allegiance. The court ruled in favor of the school stating that national unity is the basis for national security.
Korematsu v. United States, FDR issued an executive order to place Japanese Americans in internment camps during WWII. Fred Korematsu challenged this order. The Court ruled in favor of the government stating that the need to protect against espionage outweighed the rights of Japanese Americans.
What is generally regarded as the crown jewel opinion of this court was their decision in Brown vs. the Board of Education decision. In it they ruled that segregation was a violation of the Fourteenth Amendment’s “Equal Protection Clause.” This decision paved the way for civil rights legislation a decade later. Felix Frankfurter had the brilliant idea of a slow implantation of the ruling while he convinced a dying Justice Jackson’s approval, thus gaining a united opinion, and stewarding President Eisenhower and Former President Truman’s public support.
February 16, 2017
I recently finished Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices" and cannot recommend it enough. I love this book. And on so many levels…
First, “Scorpions” is a book that gives me hope. I have listened to the audio version several times over the last couple of years. Nevertheless immediately after our recent presidential election I felt compelled to examine Feldman’s work once again. Why? Perhaps because the story is restorative. Feldman’s work brilliantly demonstrates that even flawed individuals are capable of doing the right thing. For me, “Scorpions” serves as a convincing reminder that, bleak as things may look, there is reason to hope.
Second, Feldman is a really good writer. While his subject is a weighty one, Feldman manages to tell a compelling story that is both well paced and informative. “Scorpions” focuses on four Supreme Court Justices (all FDR appointees) - Hugo Black, Felix Frankfurter, Robert Jackson and William O. Douglas and their respective roles in a number of key Supreme Court decisions. In so doing, he provides telling glimpses into the background and personality of each individual justice. Among the seminal decisions Feldman discusses are: Korematsu (Japanese internment during WWII); Gobitis (flag salute case involving Jehova’s Witnesses); Dennis (arrest and trial of a dozen high level members of communist party/First Amendment issues) and Youngstown Sheet & Tube (seizure of steel mills by Truman under threat of industry-wide strike). He concludes, fittingly, with the Court’s decision in Brown v. Board of Education. Feldman adeptly weaves pertinent tidbits of information about each man and his relationship with the other justices into the story at just the right times. By the same token, Feldman never succumbs to using gossip for gossip’s sake. Rather, Feldman keeps his eye on the ball at all times.
Third, “Scorpions” serves as a reminder that things could have turned out very differently than they did. In the telling, Feldman convincingly demonstrates (whether intentional or not) that few decisions handed down during the Roosevelt era were inevitable. This is especially true in Brown, where Feldman describes the many "wild" cards that entered into the mix (personal animosities, petty grievances, and over-inflated egos, to name a few). Nevertheless, in the end in Brown all four men overcame such obstacles and acted as one. In so doing, they took the first step towards desegregation of our schools.
Finally, Feldman provides a clear picture of the early development of several Constitutional theories or schools of thought that abide today. These include originalism, legal realism and judicial restraint. In addition, he touches upon what conservatism and liberalism looked like in the Roosevelt era and how the definition of each has morphed over time. In today’s intensely political climate, Supreme Court nominations and confirmation hearings often result in news media coverage that is baffling to say the least. Front page stories describing heated Senate debates over a nominee’s approach to one constitutional theory or another (such as whether or not a given appointee is an originalist, or whether he/she might look to other countries’ laws when deciding a case) could lead those not well versed in constitutional law to wonder…why the debate in the first place? If nothing else, Feldman’s book provides a solid foundation for tackling such questions. And while everyone should decide for him/herself, knowing why a given approach to the Constitution is important seems like a logical place to start.
First, “Scorpions” is a book that gives me hope. I have listened to the audio version several times over the last couple of years. Nevertheless immediately after our recent presidential election I felt compelled to examine Feldman’s work once again. Why? Perhaps because the story is restorative. Feldman’s work brilliantly demonstrates that even flawed individuals are capable of doing the right thing. For me, “Scorpions” serves as a convincing reminder that, bleak as things may look, there is reason to hope.
Second, Feldman is a really good writer. While his subject is a weighty one, Feldman manages to tell a compelling story that is both well paced and informative. “Scorpions” focuses on four Supreme Court Justices (all FDR appointees) - Hugo Black, Felix Frankfurter, Robert Jackson and William O. Douglas and their respective roles in a number of key Supreme Court decisions. In so doing, he provides telling glimpses into the background and personality of each individual justice. Among the seminal decisions Feldman discusses are: Korematsu (Japanese internment during WWII); Gobitis (flag salute case involving Jehova’s Witnesses); Dennis (arrest and trial of a dozen high level members of communist party/First Amendment issues) and Youngstown Sheet & Tube (seizure of steel mills by Truman under threat of industry-wide strike). He concludes, fittingly, with the Court’s decision in Brown v. Board of Education. Feldman adeptly weaves pertinent tidbits of information about each man and his relationship with the other justices into the story at just the right times. By the same token, Feldman never succumbs to using gossip for gossip’s sake. Rather, Feldman keeps his eye on the ball at all times.
Third, “Scorpions” serves as a reminder that things could have turned out very differently than they did. In the telling, Feldman convincingly demonstrates (whether intentional or not) that few decisions handed down during the Roosevelt era were inevitable. This is especially true in Brown, where Feldman describes the many "wild" cards that entered into the mix (personal animosities, petty grievances, and over-inflated egos, to name a few). Nevertheless, in the end in Brown all four men overcame such obstacles and acted as one. In so doing, they took the first step towards desegregation of our schools.
Finally, Feldman provides a clear picture of the early development of several Constitutional theories or schools of thought that abide today. These include originalism, legal realism and judicial restraint. In addition, he touches upon what conservatism and liberalism looked like in the Roosevelt era and how the definition of each has morphed over time. In today’s intensely political climate, Supreme Court nominations and confirmation hearings often result in news media coverage that is baffling to say the least. Front page stories describing heated Senate debates over a nominee’s approach to one constitutional theory or another (such as whether or not a given appointee is an originalist, or whether he/she might look to other countries’ laws when deciding a case) could lead those not well versed in constitutional law to wonder…why the debate in the first place? If nothing else, Feldman’s book provides a solid foundation for tackling such questions. And while everyone should decide for him/herself, knowing why a given approach to the Constitution is important seems like a logical place to start.
July 25, 2013
A pretty straightforward recounting of the battles from 1940 to 1955 between the four most important Supreme Court justices appointed by Franklin Roosevelt: Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson.
So much of this ground has been covered thoroughly before, in many different forms, that there aren't many surprises here. The fact that Feldman spends almost 50 pages dealing with Brown v. Board of Education, a case very well covered in Richard Klugar's "Simple Justice" and innumerable other places, shows that he isn't aiming for originality. He's aiming his book at a popular audience, and if one wants a good introduction to the constitutional and political conflicts of this era, this might be a good place to start.
As Feldman points out, all four of these men were very poor boys made very good, but they all had ambitions that could not be satisfied by being a mere Supreme Court justice. Black, Douglas and Jackson all sought the presidency, and Douglas came very close to getting it (Roosevelt preferred him to Truman as vice president in 1944, and only some skulduggery by Truman's friends at the convention took it from him). Frankfurter, on the other hand, merely wanted to be remembered as the most important and intelligent justice in history. Today he's remembered largely as an isolated anachronism. Thus, despite their accomplishments and importance to American law, they all left the world unhappy men.
Some of the saddest parts of the book show the gradual alienation of Frankfurter from his erstwhile disciples. Despite being recognized by all as the intellectual heir to Oliver Wendell Holmes, his extreme judicial restraint lead the more liberal types to move away from him as the Court became more solicitous of civil rights and more involved in striking down state and federal actions. For instance, in 1940 Frankfurter lead an 8-1 decision allowing a school district to expel Jehovah's Witnesses for refusing to salute the flag. Just four years later, however, the court, largely composed of the same people, overturned him and caused him to issue one of what would be many embittered and impassioned dissents.
The battles between the justices only became even more personal over the years. After Jackson pointed out to the world that Black refused to recuse himself in a case involving his former law partner, Black made a successful effort to sabotage Jackson's appointment to Chief Justice in 1946. By the 1950s the court was so tired of Douglas's presidential ambitions (which they thought were coloring his opinions) most would barely speak to him.
There are also solid analyses of a few classic cases here, like the 1944 Korematsu case legitimating Japanese internment or the 1951 Dennis v. US case which, temporarily, allowed the government to outlaw the Communist Party. Overall though, the book is best relating all the gossip and the drama inside the Court, and showing how those personal battles sometimes shaped the Constitution.
So much of this ground has been covered thoroughly before, in many different forms, that there aren't many surprises here. The fact that Feldman spends almost 50 pages dealing with Brown v. Board of Education, a case very well covered in Richard Klugar's "Simple Justice" and innumerable other places, shows that he isn't aiming for originality. He's aiming his book at a popular audience, and if one wants a good introduction to the constitutional and political conflicts of this era, this might be a good place to start.
As Feldman points out, all four of these men were very poor boys made very good, but they all had ambitions that could not be satisfied by being a mere Supreme Court justice. Black, Douglas and Jackson all sought the presidency, and Douglas came very close to getting it (Roosevelt preferred him to Truman as vice president in 1944, and only some skulduggery by Truman's friends at the convention took it from him). Frankfurter, on the other hand, merely wanted to be remembered as the most important and intelligent justice in history. Today he's remembered largely as an isolated anachronism. Thus, despite their accomplishments and importance to American law, they all left the world unhappy men.
Some of the saddest parts of the book show the gradual alienation of Frankfurter from his erstwhile disciples. Despite being recognized by all as the intellectual heir to Oliver Wendell Holmes, his extreme judicial restraint lead the more liberal types to move away from him as the Court became more solicitous of civil rights and more involved in striking down state and federal actions. For instance, in 1940 Frankfurter lead an 8-1 decision allowing a school district to expel Jehovah's Witnesses for refusing to salute the flag. Just four years later, however, the court, largely composed of the same people, overturned him and caused him to issue one of what would be many embittered and impassioned dissents.
The battles between the justices only became even more personal over the years. After Jackson pointed out to the world that Black refused to recuse himself in a case involving his former law partner, Black made a successful effort to sabotage Jackson's appointment to Chief Justice in 1946. By the 1950s the court was so tired of Douglas's presidential ambitions (which they thought were coloring his opinions) most would barely speak to him.
There are also solid analyses of a few classic cases here, like the 1944 Korematsu case legitimating Japanese internment or the 1951 Dennis v. US case which, temporarily, allowed the government to outlaw the Communist Party. Overall though, the book is best relating all the gossip and the drama inside the Court, and showing how those personal battles sometimes shaped the Constitution.
November 25, 2020
This book was really fascinating. My knowledge of the supreme court is limited to what we covered in government class and conversations with my mother so this definitely filled in gaps. I knew the name Frankfurter and Hugo Black before but I had not heard of Robert Jackson or William O. Douglas. Nor did I understand that these four liberals, allies of Roosevelt, became responsible for forming the four major modern jurisprudence schools (both liberal and conservative). Black, in his protestant and southern religious experience, formed the basis for originalism. Though he was the most liberal member of the court until the 1960's, his school of thought is obviously seen as being conservative nowadays. Though this is largely a product of the rights protected or "discovered" (depending on your perspective) during the Warren Court, the most controversial of which is the Right to Privacy. Felix Frankfurter was the most experienced legal scholar elevated to the court when he became a Justice. A self-proclaimed heir to Oliver Wendell Holmes Jr. and Louis Brandeis, he formulated the modern conception of judicial restraint-a theory of justice intended to prevent the court from blocking the will of the people. It is interesting then, this theory too would be associated with conservatism in later years, and Frankfurter himself would be cast as a conservative. However, it should be recognized that, in his time, he felt judicial restraint would enable liberal measures that were previously being blocked by the court (many of these involved the legality of unions, price setting, hours limitations, and other issues wrapped up in the Lochner era of the court (1897-1937)). Now, Jackson is really interesting. I should have learned more about him sooner, especially for his dominating role in the Nuremberg War Crimes Trials after WWII. However, his theory of the constitution is one I had not directly recognized as a theory. The author describes him as a pragmatist, believing the court's role is to set boundaries that lead to better effective relationships between the branches of government as well as lead to social harmony. It is a pragmatic theory, because it reflects on the practical, non-theoretical, working of the relationships of government. Although I could be wrong in this (of all the theories I understood his position the least). Douglas rounds out the group as a judicial realist, focusing all his efforts on the practical outcome of rulings. He is the most associated with contemporary understanding of judicial liberalism. He was also the most politically oriented of the four Roosevelt and in both 1940 and 1944 was a leading candidate for the Democratic Vice Presidential part of the ticket. However, after Eisenhower's election in 1952, Douglas became for focused on the court and developed his perspective into obsession with individual liberty at the expense of most other topics. The book ends with a discussion of Brown v Board of Education, in which all four justices would have to put their theories aside for a cause all understood to be simply just (Frankfurter disregarded judicial restraint in favor of ending the long-standing practice of segregation, Black contorted his view of originalism to see the 13th through 15th amendments as being explicitly against segregation, Jackson-on his deathbed-withdrew a concurring opinion where he almost said their is no precedent for the Brown decision and therefore it is the court unnecessarily causing social unrest, though he still voted with the majority, and Douglas hardly offered any effort to the Brown case-as it involved no question of individual liberty but collective discrimination and legalized subordination.)
This book is really interesting and I think lots of people would find it informative,
This book is really interesting and I think lots of people would find it informative,
June 26, 2023
This is an update and expansion of the 1994 book by Max Lerner, “Nine Scorpions in a Bottle: Great Judges and Cases of the Supreme Court”. I am a big fan of Noah Feldman. He is brilliant, but seemingly without the giant ego that often comes with the territory and a great writer. This book is a captivating exploration of the historical events, legal battles, and personal lives of four remarkable justices who served on the United States Supreme Court during Franklin D. Roosevelt's presidency.
One cannot separate historical figures from their time. This book covers the turbulent era of the Great Depression and World War II, examining how the Court's decisions shaped the nation's course and fundamentally transformed the role of the federal government. The book primarily focuses on the lives and judicial philosophies of four key justices: Hugo Black, William O. Douglas, Felix Frankfurter, and Robert H. Jackson.
The book is not a dry legal analysis but provides vivid portraits of each justice's upbringing, legal career, and their interactions with one another, allowing readers to gain a deeper understanding of their unique personalities and ideological differences. Black, a former member of the Ku Klux Klan, emerges as a civil libertarian who championed individual rights. Douglas, an environmentalist and advocate for social justice, is depicted as a strong-willed justice who often clashed with his colleagues, with lose personal morals. Frankfurter, a self-proclaimed moderate, is portrayed as a pragmatist who sought to balance competing interests. Jackson, the small town lawyer, who never attended law school, but became a brilliant lawyer and prosecutor at the Nuremberg Trials, and serves as a bridge between the Court and the political world that the Court inhabits.
Feldman delves into pivotal cases that shaped the nation's legal landscape, such as the fight for civil liberties during wartime, the controversial internment of Japanese Americans, and landmark decisions on racial equality, labor rights, and government power. He analyzes how these justices navigated complex legal issues while dealing with political pressures and personal dilemmas. In addition the book explores the impact of FDR's attempts to reshape the Court through his controversial court-packing plan, which sought to expand the number of justices. This episode tested the independence and integrity of the judiciary and had long-lasting effects on public perception of the Court.
"Scorpions" is an insightful and thought-provoking examination of the Supreme Court's role during a transformative period in American history. Feldman skillfully balances legal analysis, historical context, and human drama. Whether one is a legal scholar, historian, or a general reader this is and engaging interplay between law, politics, and the justices who shaped the nation's highest court.
One cannot separate historical figures from their time. This book covers the turbulent era of the Great Depression and World War II, examining how the Court's decisions shaped the nation's course and fundamentally transformed the role of the federal government. The book primarily focuses on the lives and judicial philosophies of four key justices: Hugo Black, William O. Douglas, Felix Frankfurter, and Robert H. Jackson.
The book is not a dry legal analysis but provides vivid portraits of each justice's upbringing, legal career, and their interactions with one another, allowing readers to gain a deeper understanding of their unique personalities and ideological differences. Black, a former member of the Ku Klux Klan, emerges as a civil libertarian who championed individual rights. Douglas, an environmentalist and advocate for social justice, is depicted as a strong-willed justice who often clashed with his colleagues, with lose personal morals. Frankfurter, a self-proclaimed moderate, is portrayed as a pragmatist who sought to balance competing interests. Jackson, the small town lawyer, who never attended law school, but became a brilliant lawyer and prosecutor at the Nuremberg Trials, and serves as a bridge between the Court and the political world that the Court inhabits.
Feldman delves into pivotal cases that shaped the nation's legal landscape, such as the fight for civil liberties during wartime, the controversial internment of Japanese Americans, and landmark decisions on racial equality, labor rights, and government power. He analyzes how these justices navigated complex legal issues while dealing with political pressures and personal dilemmas. In addition the book explores the impact of FDR's attempts to reshape the Court through his controversial court-packing plan, which sought to expand the number of justices. This episode tested the independence and integrity of the judiciary and had long-lasting effects on public perception of the Court.
"Scorpions" is an insightful and thought-provoking examination of the Supreme Court's role during a transformative period in American history. Feldman skillfully balances legal analysis, historical context, and human drama. Whether one is a legal scholar, historian, or a general reader this is and engaging interplay between law, politics, and the justices who shaped the nation's highest court.
January 17, 2023
This book is one of, if not the, best judicial biography books I have ever read. It incorporates everything someone needs to know reading about these great FDR era legal minds.
Interested in judicial philosophies? - This is the book for you
Interested in biographies of historical individuals? - This is the book for you
Interested in learning about the foundational legal cases and movements of the 30s-50s? - This is the book for you
FDR’s politics get a lot of coverage in the economic field, public policy field, and political campaigning fields, however I feel that this book is an essential to anyone who wants to have knowledge of the period. It explores some of the foundational people for Rooseveltian progressive politics and the modern legal theories from that era. Without the crucial knowledge in this book it is impossible to have a full overview of the New Deal, Truman Presidency, or the circumstances around it.
The book also does a great job at being an entertaining narration and providing absolutely amazing quotes characterizing and arguing for the period. It also does it in an easily digestible way for any level of intellectual prowess.
The only drawback is Feldman’s bias, it is clear he worships FDR and the ground he stood on is sacred to him, however, I believe he does a good enough job in all other areas that the book reads well and provides enough objective information for 5 stars!
Interested in judicial philosophies? - This is the book for you
Interested in biographies of historical individuals? - This is the book for you
Interested in learning about the foundational legal cases and movements of the 30s-50s? - This is the book for you
FDR’s politics get a lot of coverage in the economic field, public policy field, and political campaigning fields, however I feel that this book is an essential to anyone who wants to have knowledge of the period. It explores some of the foundational people for Rooseveltian progressive politics and the modern legal theories from that era. Without the crucial knowledge in this book it is impossible to have a full overview of the New Deal, Truman Presidency, or the circumstances around it.
The book also does a great job at being an entertaining narration and providing absolutely amazing quotes characterizing and arguing for the period. It also does it in an easily digestible way for any level of intellectual prowess.
The only drawback is Feldman’s bias, it is clear he worships FDR and the ground he stood on is sacred to him, however, I believe he does a good enough job in all other areas that the book reads well and provides enough objective information for 5 stars!
April 2, 2023
Writing this book is a challenge within itself. Biographies can already take up so much space, but writing essentially four within one book? That's a feat. The argument of the justices being the four most influential ever to sit on the court falls flat to me, but again the book is impressive by how much it is able to explain. I also wish the timeline was set up just a little differently. overall I read most (almost) all of this for a class, which is rare, so kudos to the author for making it interesting enough to keep reading.
March 23, 2024
Another Little Free Library find. I've always wondered, and been fascinated by, how interpersonal dynamics and personal attitudes affect decision-making that should be purely based on logic. This book is a great exploration of how men with vastly different worldviews intersected in a pivotal point in American history and, in many ways, created the country we live in today. A really interesting read.
February 21, 2022
A very good book. As a lawyer, law professor and avid reader of history I thought I knew a great deal about the subjects covered here — constitutional law, the Supreme Court, the Roosevelt presidency etc. But in almost every chapter I learned some new fact. Ok it drags a bit after FDR’s death with protracted discussions of a few famous Supreme Court cases. But this is a quibble. An enjoyable work of American history.
July 26, 2022
Noah Feldman tells the story of four of FDR's 8 Supreme Court nominees (Frankfurter, Black, Jackson, and Douglas) - all nominated in an effort to push through FDR's ambitious legislation. Each came to be associated with a different school of constitutional interpretation and how they all changed the country and left an indelible mark on it through their opinions (whether majority, concurrence, or dissent). Brilliant.
March 4, 2020
Justice Oliver Wendell Holmes Jr. once described the Supreme Court as “nine scorpions in a bottle.” His commentary served as the inspiration for the title of Noah Feldman’s excellent book on the United States Supreme Court in the era of Franklin Roosevelt. Feldman focused on Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson, who were four of FDR’s most prominent justices. While I cannot help but approach this book as a lawyer, Feldman writes in such an accessible and interesting manner that I believe even non-lawyers will find this book to be a most engaging book. The following are some of the points I enjoyed learning about during my read.
Felix Frankfurter arrived in storage from Austria at age 12 without speaking a word of English. FDR appointed Frankfurter in 1939 as WWII was beginning. Though being native-born is not a requisite for the Supreme Court, it surprised me that Frankfurter was the appointment amidst so much international tension.
Roosevelt’s polio paralysis and his lifelong belief in continuous improvement seemed to also shape his political philosophy in the midst of the Great Depression. Even when progress was slow, he was obsessed with improvement.
As Roosevelt ascended to the Governor of New York, he and Frankfurter rekindled their relationship. When FDR became president, Frankfurter turned down the offer of U.S. Solicitor General. FDR wanted this path as the first step to SCOTUS. But Frankfurter wanted an appointment to the high court.
Robert Jackson grew up in a small farming community, and he was a decade younger than FDR. They met in 1911 when FDR was in the NY Senate as a rare rural democrat, which made Jackson a rarity in his community.
Hugo Black did not meet FDR until after his ascension to the White House. Black introduced a sweeping bill as a U.S. Senator during the Great Depression to limit hours of work in hopes of distributing jobs. This idea was of interest to FDR. FDR and his brain trust began with the idea that overproduction was the problem and a free-market approach was a main contributor. Where there was really overproduction was the stock market and the printing of stock certificates. This production coupled with loose accounting contributed to the stock-market crash.
Black grew up in rural Alabama. Because Black had little formal education, he became a voracious reader and self-student after election to the U.S. Senate because he was well aware of his limited education. Black also has a history of racism when he was a judge and it is exacerbated by his membership in the Ku Klux Klan. The Klan gave him a statewide network to support his run for the Senate. He quickly left the Klan behind him in his policy and his votes, but the history is still there and Feldman discussed the issues with thoughtful analysis.
William O. Douglas met FDR in the White House as a guest of Joseph Kennedy in 1935. Douglas was a Yale law professor conducting a bankruptcy study for Joe Kennedy.
After setting up the introduction to Black, Douglas, Frankfurter, and Jackson, Feldman started into FDR’s fight with SCOTUS beginning with the Lochner bakery case and the right to contract, when the Supreme Court struck down the 60-hour workweek. This action began SCOTUS striking down the NLRB and the Department of Agriculture, which in turn prompted FDR’s court-packing plan to grow the court and make his own appointments.
After FDR’s losses and his court-packing plan, Jackson came up with a more direct plan to attack the Court as being wrong. He did so during congressional hearings, and soon after, SCOTUS handed down its decision in West Coast Hotel Co. v. Parrish, which overturned Lochner. The apparent political nature of the decision—politics that are debatable based on the record of the opinion’s author, Owen Roberts—was a source of disillusionment for Felix Frankfurter. Because the Court so dramatically changed course, commentators labeled the decision, “the switch in time that saved nine,” because the outcome neutered the potential success of the court-packing plan.
Hugo Black was the progenitor of originalism as a constitutional theory.
William O. Douglas’s ascent to the Supreme Court was remarkably fast. Feldman also described how FDR wanted Douglas as his VP over Truman. Had the support for Truman been weaker, Douglas would likely have been president instead of Senator Truman.
Frankfurter’s first opinion was Minersville School District v. Gobitis, which allowed schools to mandate saluting the flag. The decision may seem surprising, but Frankfurter’s immigration coupled with his careful watching of Hitler and subsequent pro-war stance led him to conclude that saluting the flag and its implication of country unity was critical in upcoming conflict. SCOTUS overruled itself three years later in a Robert Jackson opinion, West Virginia State Board of Education v. Barnette. Frankfurter did not see his opinion as a blow to civil liberties. He encouraged the school to allow the students to refrain from saluting the flag, but his judicial theory was one of judicial restraint. And so he deemed the action reasonable if not advisable. The result was political backlash. The public did not broadly grasp the difference between Frankfurter preferring the school allow students the freedom to refrain from saluting and his failure to simply protect the students’ freedom.
After Great Britain entered the war, the United States was bound by Congress’s neutrality act. FDR still wanted to help Great Britain, so Robert Jackson—as solicitor general—counseled President Roosevelt on his options. The eventual reclassification of dated navy destroyers as too obsolete for U.S. usage seems like a remarkable expansion of executive power. FDR did, however, trade military-base access for the destroyers, which was a huge benefit for U.S. defense. Jackson was skeptical about the legal theory of reclassifying the destroyers. But FDR convinced Jackson that his support of the plan gave FDR the public shield needed for supporting Great Britain.
FDR’s appointment of Harlan Stone had a mixed effect on the court. He differed in his approach to conferencing cases compared to Charles Evans Hughes. Hughes kept conferences brief and hammered out the main point while leaving the secondary issues to the justice writing the opinion. Stone approached the cases like a point-by-point debate starting with the most senior judge fleshing out each issue followed by the next most senior justice all the way to the end. The effect was that individuals developed comprehensive theories of law. But it also drove the justices to conflict since no points were minor and everything was up for debate. This approach lessened unanimity.
Felix Frankfurter underwent a dramatic transformation from a liberal to a conservative if you look at his philosophy superficially. He was a key FDR advisor in liberal circles. Yet this occurred under a conservative court, when Frankfurter’s arguments before that court were often a core argument of judicial restraint. He kept that same philosophy when he joined the Supreme Court, and judicial restraint appeared conservative as his fellow justices advanced significant progressive strides. This judicial restraint occurred outside the scope of political forces—the philosophy did not bend to such pressure.
I had not remembered reading the Ex Parte Endo decision in the context of the Korematsu decision. The Court intended Endo to be read with Korematsu as an escape hatch for the discrimination for the Japanese concentration camps that prevailed under WWII. Douglas came to regret his concurrence in Korematsu because it swallowed up his majority opinion in Endo.
Feldman provided a helpful explanation of the theory behind Justice Jackson’s work at the Nuremberg Trials and the treaties that emerged during and after WWI, which Jackson used as the foundation of the charge against the Nazis as commuting aggressive warfare.
Feldman’s overview of Adamson v. California—particularly Hugo Black’s dissent—gave more significance than I remember learning about for the setup to apply to Bill of Rights to the states or the foundation of Originalism as a constitutional theory.
William Douglas had an interesting juxtaposition with his personal life and his judicial opinions. After he failed to secure the vice presidency twice, his personal life spiraled with a series of marriages and divorces. This behavior was shocking at the time. As Douglas operated individually as he saw fit, his judicial opinions similarly took on a theme of maximizing individual rights in relation to the government. He steered the Court on personal liberty—free speech, privacy, and sexual freedom.
In Dennis v. United States, the Supreme Court upheld the convictions of 11 U.S.-based communists for their political teachings. They did so using the clear-and-present-danger test, treating communist teaching as similar to shouting, “Fire!” in a crowded theater to incite a riot. Feldman identified this case as the moment when Frankfurter lost his status as a liberal. His dissent deferred to Congress and claimed judicial restraint demanded upholding the restriction on free speech. Frankfurter’s stance shows an interesting insight on the brands of conservatism and where power resides. For Frankfurter, the Court was weak and judicial restraint demanded allowing Congressional power to remain with only minimal restraints by the Court.
While Brown v. Board is often attributed as the first act of the Warren Court, it is more accurately viewed as the closing act of the Roosevelt Court. After years of struggle and disagreement, the did come together on this one case to take up the liberal cause of civil rights.
Hugo Black transformed—at least in perception—from a liberal to a conservative. His originalism began as a liberal foundation to secure rights. But—outside of the first amendment—Black found himself voting rarely with the liberal wing of the Warren Court.
Despite his critical role in liberal ideology, William Douglas does not receive praise as a liberal iconoclast. His pragmatism model of constitutional law seems so results oriented that Douglas is in some ways an anti-judge focused more on securing results rather than the legal foundation to decide those results. Douglas’s personality may have something to do with his limited reputation. He was of the type who loved humanity but disliked people; this left him without people to tell his story well.
This compilation of notes fails to reflect the tightly connected story that Noah Feldman told. His work pulled together the lives of these four Supreme Court justices along with the Franklin Delano Roosevelt. His book moved with a brisk pace that provided a smart balance of facts, explanations, and drama. I enjoyed the book from start to finish and was not yet ready for the book to finish when I reached the end. This trait is the sign of a good book, and I unreservedly give Scorpions a full endorsement.
Felix Frankfurter arrived in storage from Austria at age 12 without speaking a word of English. FDR appointed Frankfurter in 1939 as WWII was beginning. Though being native-born is not a requisite for the Supreme Court, it surprised me that Frankfurter was the appointment amidst so much international tension.
Roosevelt’s polio paralysis and his lifelong belief in continuous improvement seemed to also shape his political philosophy in the midst of the Great Depression. Even when progress was slow, he was obsessed with improvement.
As Roosevelt ascended to the Governor of New York, he and Frankfurter rekindled their relationship. When FDR became president, Frankfurter turned down the offer of U.S. Solicitor General. FDR wanted this path as the first step to SCOTUS. But Frankfurter wanted an appointment to the high court.
Robert Jackson grew up in a small farming community, and he was a decade younger than FDR. They met in 1911 when FDR was in the NY Senate as a rare rural democrat, which made Jackson a rarity in his community.
Hugo Black did not meet FDR until after his ascension to the White House. Black introduced a sweeping bill as a U.S. Senator during the Great Depression to limit hours of work in hopes of distributing jobs. This idea was of interest to FDR. FDR and his brain trust began with the idea that overproduction was the problem and a free-market approach was a main contributor. Where there was really overproduction was the stock market and the printing of stock certificates. This production coupled with loose accounting contributed to the stock-market crash.
Black grew up in rural Alabama. Because Black had little formal education, he became a voracious reader and self-student after election to the U.S. Senate because he was well aware of his limited education. Black also has a history of racism when he was a judge and it is exacerbated by his membership in the Ku Klux Klan. The Klan gave him a statewide network to support his run for the Senate. He quickly left the Klan behind him in his policy and his votes, but the history is still there and Feldman discussed the issues with thoughtful analysis.
William O. Douglas met FDR in the White House as a guest of Joseph Kennedy in 1935. Douglas was a Yale law professor conducting a bankruptcy study for Joe Kennedy.
After setting up the introduction to Black, Douglas, Frankfurter, and Jackson, Feldman started into FDR’s fight with SCOTUS beginning with the Lochner bakery case and the right to contract, when the Supreme Court struck down the 60-hour workweek. This action began SCOTUS striking down the NLRB and the Department of Agriculture, which in turn prompted FDR’s court-packing plan to grow the court and make his own appointments.
After FDR’s losses and his court-packing plan, Jackson came up with a more direct plan to attack the Court as being wrong. He did so during congressional hearings, and soon after, SCOTUS handed down its decision in West Coast Hotel Co. v. Parrish, which overturned Lochner. The apparent political nature of the decision—politics that are debatable based on the record of the opinion’s author, Owen Roberts—was a source of disillusionment for Felix Frankfurter. Because the Court so dramatically changed course, commentators labeled the decision, “the switch in time that saved nine,” because the outcome neutered the potential success of the court-packing plan.
Hugo Black was the progenitor of originalism as a constitutional theory.
William O. Douglas’s ascent to the Supreme Court was remarkably fast. Feldman also described how FDR wanted Douglas as his VP over Truman. Had the support for Truman been weaker, Douglas would likely have been president instead of Senator Truman.
Frankfurter’s first opinion was Minersville School District v. Gobitis, which allowed schools to mandate saluting the flag. The decision may seem surprising, but Frankfurter’s immigration coupled with his careful watching of Hitler and subsequent pro-war stance led him to conclude that saluting the flag and its implication of country unity was critical in upcoming conflict. SCOTUS overruled itself three years later in a Robert Jackson opinion, West Virginia State Board of Education v. Barnette. Frankfurter did not see his opinion as a blow to civil liberties. He encouraged the school to allow the students to refrain from saluting the flag, but his judicial theory was one of judicial restraint. And so he deemed the action reasonable if not advisable. The result was political backlash. The public did not broadly grasp the difference between Frankfurter preferring the school allow students the freedom to refrain from saluting and his failure to simply protect the students’ freedom.
After Great Britain entered the war, the United States was bound by Congress’s neutrality act. FDR still wanted to help Great Britain, so Robert Jackson—as solicitor general—counseled President Roosevelt on his options. The eventual reclassification of dated navy destroyers as too obsolete for U.S. usage seems like a remarkable expansion of executive power. FDR did, however, trade military-base access for the destroyers, which was a huge benefit for U.S. defense. Jackson was skeptical about the legal theory of reclassifying the destroyers. But FDR convinced Jackson that his support of the plan gave FDR the public shield needed for supporting Great Britain.
FDR’s appointment of Harlan Stone had a mixed effect on the court. He differed in his approach to conferencing cases compared to Charles Evans Hughes. Hughes kept conferences brief and hammered out the main point while leaving the secondary issues to the justice writing the opinion. Stone approached the cases like a point-by-point debate starting with the most senior judge fleshing out each issue followed by the next most senior justice all the way to the end. The effect was that individuals developed comprehensive theories of law. But it also drove the justices to conflict since no points were minor and everything was up for debate. This approach lessened unanimity.
Felix Frankfurter underwent a dramatic transformation from a liberal to a conservative if you look at his philosophy superficially. He was a key FDR advisor in liberal circles. Yet this occurred under a conservative court, when Frankfurter’s arguments before that court were often a core argument of judicial restraint. He kept that same philosophy when he joined the Supreme Court, and judicial restraint appeared conservative as his fellow justices advanced significant progressive strides. This judicial restraint occurred outside the scope of political forces—the philosophy did not bend to such pressure.
I had not remembered reading the Ex Parte Endo decision in the context of the Korematsu decision. The Court intended Endo to be read with Korematsu as an escape hatch for the discrimination for the Japanese concentration camps that prevailed under WWII. Douglas came to regret his concurrence in Korematsu because it swallowed up his majority opinion in Endo.
Feldman provided a helpful explanation of the theory behind Justice Jackson’s work at the Nuremberg Trials and the treaties that emerged during and after WWI, which Jackson used as the foundation of the charge against the Nazis as commuting aggressive warfare.
Feldman’s overview of Adamson v. California—particularly Hugo Black’s dissent—gave more significance than I remember learning about for the setup to apply to Bill of Rights to the states or the foundation of Originalism as a constitutional theory.
William Douglas had an interesting juxtaposition with his personal life and his judicial opinions. After he failed to secure the vice presidency twice, his personal life spiraled with a series of marriages and divorces. This behavior was shocking at the time. As Douglas operated individually as he saw fit, his judicial opinions similarly took on a theme of maximizing individual rights in relation to the government. He steered the Court on personal liberty—free speech, privacy, and sexual freedom.
In Dennis v. United States, the Supreme Court upheld the convictions of 11 U.S.-based communists for their political teachings. They did so using the clear-and-present-danger test, treating communist teaching as similar to shouting, “Fire!” in a crowded theater to incite a riot. Feldman identified this case as the moment when Frankfurter lost his status as a liberal. His dissent deferred to Congress and claimed judicial restraint demanded upholding the restriction on free speech. Frankfurter’s stance shows an interesting insight on the brands of conservatism and where power resides. For Frankfurter, the Court was weak and judicial restraint demanded allowing Congressional power to remain with only minimal restraints by the Court.
While Brown v. Board is often attributed as the first act of the Warren Court, it is more accurately viewed as the closing act of the Roosevelt Court. After years of struggle and disagreement, the did come together on this one case to take up the liberal cause of civil rights.
Hugo Black transformed—at least in perception—from a liberal to a conservative. His originalism began as a liberal foundation to secure rights. But—outside of the first amendment—Black found himself voting rarely with the liberal wing of the Warren Court.
Despite his critical role in liberal ideology, William Douglas does not receive praise as a liberal iconoclast. His pragmatism model of constitutional law seems so results oriented that Douglas is in some ways an anti-judge focused more on securing results rather than the legal foundation to decide those results. Douglas’s personality may have something to do with his limited reputation. He was of the type who loved humanity but disliked people; this left him without people to tell his story well.
This compilation of notes fails to reflect the tightly connected story that Noah Feldman told. His work pulled together the lives of these four Supreme Court justices along with the Franklin Delano Roosevelt. His book moved with a brisk pace that provided a smart balance of facts, explanations, and drama. I enjoyed the book from start to finish and was not yet ready for the book to finish when I reached the end. This trait is the sign of a good book, and I unreservedly give Scorpions a full endorsement.
December 4, 2011
Interesting book - lots of New Deal history and the background of the four particular Supreme Court justices addressed in this book. Roosevelt appointed nine justices - this book is about four of them: Felix Frankfurter, Hugo Black, Robert Jackson and William O. Douglas. These men were all considered liberals before their appointments, but they morphed as they sat on the court. Douglas is the only one who was considered a liberal throughout his service.
Something that surprised me was the animosity that grew up between these men over the years. Some of it seems petty to me. I guess I always thought that the Court was a group of individuals with strong ideas but treating each other like colleagues. This is the picture I have of the Quorum of the Twelve Apostles and I have always imagined the same kind of relationship among the justices.
Feldman doesn't go into much detail except in the landmark cases decided by the court. The coverage of Brown v. Board of Education is very interesting. I had heard it said that Chief Justice Earl Warren had postponed the announcement of the decision until all nine were in agreement and that there would be only one opinion handed down. This was because he wanted there to be no reason for the public or politicians to be equivocal on the matter. This is true, but Felix Frankfurter was the first to propose delaying any announcement in the case and ask for a "re-argument." Frankfurter understood the great impact the decision would have on the nation and wanted unanimity even while Warren's precedessor was still on the bench.
I would have given 3 1/2 stars, but it is not an option. Anyone interested in the court for the period of the early 1900s to the middle 1970s should read the book.
Something that surprised me was the animosity that grew up between these men over the years. Some of it seems petty to me. I guess I always thought that the Court was a group of individuals with strong ideas but treating each other like colleagues. This is the picture I have of the Quorum of the Twelve Apostles and I have always imagined the same kind of relationship among the justices.
Feldman doesn't go into much detail except in the landmark cases decided by the court. The coverage of Brown v. Board of Education is very interesting. I had heard it said that Chief Justice Earl Warren had postponed the announcement of the decision until all nine were in agreement and that there would be only one opinion handed down. This was because he wanted there to be no reason for the public or politicians to be equivocal on the matter. This is true, but Felix Frankfurter was the first to propose delaying any announcement in the case and ask for a "re-argument." Frankfurter understood the great impact the decision would have on the nation and wanted unanimity even while Warren's precedessor was still on the bench.
I would have given 3 1/2 stars, but it is not an option. Anyone interested in the court for the period of the early 1900s to the middle 1970s should read the book.
August 8, 2013
Feldman doesn't pull any punches, which is part of what makes this book such a great read. He takes Black, Douglas, Frankfurter and Jackson apart in terms of their intelligences, motivations, character flaws and abilities, and then puts them back together to demonstrate that despite individual weaknesses, these four people were a supreme (sorry) collection of constitutionalists. The best tribute I can pay to Scorpions is that it has sent me off in search of more information about the justices (especially Black; Feldman makes a convincing case that this former Klansman was the lynchpin behind "Brown vs. Board of Education". The author is dispassionate, but he takes cracks at some interesting people, including Rehnquist. For example, he says that the two most important Justices since the Reagan era have been O'Connor and Kennedy, who were the obvious swing votes.
A fascinating story, well-told.
A fascinating story, well-told.
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