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Begaveled Neuroses

by Joseph Tartakovsky
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, by Noah Feldman (Twelve, 528 pp., $30)

For Franklin Roosevelt’s most famous Supreme Court appointees — Felix Frankfurter, William O. Douglas, Hugo Black, and Robert Jackson — just getting to law school was the hard part. Frankfurter missed his first week at Harvard because he so desperately needed his full salary as a municipal clerk. Black enrolled only because a law degree was easier for him to get than a regular one. Douglas financed his travel to Yale by feeding sheep on a freight train. And Jackson, perhaps the greatest of them, couldn’t even get his father to pay. To reach the bench, on the other hand, they needed only FDR’s good graces, which each man had basked in for years.

Noah Feldman’s Scorpions is the story of how FDR remade the Court — and our country’s federal jurisprudence generally — by installing these four allies, hard-headed New Deal loyalists all, between 1937 and 1941. Feldman begins with short biographies that trace each man’s path to their common patron. From there he carries them through the tumults of the age — Depression, New Deal, court-packing, World War II, desegregation, Communism — weaving in discussions of notable cases that confronted the justices.

Ingratiating, bespectacled Felix Frankfurter arrived from Austria at age twelve and rose to become, in succession, a manager of Henry Stimson’s 1910 campaign for governor of New York, a lawyer in President Taft’s War Department, a Harvard professor, and (what seems to interest Feldman most) an ACLU activist. So invested was Frankfurter in the campaign to free Sacco and Vanzetti that when the anarchists were finally executed in 1927, his wife sank into depression.

Robert Jackson, the most inscrutable of the four, started out arguing livestock cases in upstate New York; in one, held in a lamp-lit barn, he clashed with opposing counsel over the question of Holstein or Jersey paternity before jurors sitting on potato crates. His law practice would eventually afford him a 30-foot yacht on Lake Chautauqua and Depression-era trips to Bermuda. He first met FDR, then a young state senator, in 1911, and always kept a foot in Democratic politics. In 1934, Jackson was appointed general counsel to the Internal Revenue Service, after which his rise was swift: Within a period of three years, he moved from solicitor general (winning 38 of 44 cases) to attorney general to Supreme Court justice.

Hugo Black grew up in an unpainted home deep in Clay County, Ala. He studied law under the two professors of the University of Alabama School of Law and became, at 25, a police-court judge, where he handled as many as 100 drinking and theft cases in a morning. After 20 years of private practice he became a proud, bullying U.S. senator and a radical New Dealer; in 1932, he proposed a law to limit the employment hours of all interstate businesses to 30 a week. He always preferred to forget that his election was underwritten by the Ku Klux Klan, which he had joined in the early 1920s.

William Douglas, raised in poor Yakima, Wash., obtained, at age 30, the job of professor of corporate law at Yale. He published energetically but soon struck out for D.C. and high office. In 1934 he began at the SEC, where the “sheriff” quailed plutocrats by posing in a ten-gallon hat, six-shooter on his desk. The restless Douglas twice came within reach of the vice presidency: first, in 1944, when he was vetoed by Democratic-party bosses who favored Truman, and again in 1948, when he declined Truman’s offer of a spot on the ticket.

Though they rode in grandly on FDR’s coattails and shared his vision of broad federal power, the erstwhile “allies” (in Feldman’s words) soon became “enemies.” This unraveling occurred, we are told, when the justices began to develop hostile constitutional theories. Feldman affixes an idea-label on each justice, and applies it so relentlessly that in virtually every legal discussion the reader must hear of Frankfurter’s “judicial restraint,” Jackson’s “pragmatism,” Douglas’s “realism,” and Black’s “originalism.” Not that such categorization explains much. Frankfurter had a “deeply romantic conception” of the “liberalism” of Americans as “manifested” in their “embrace of progressive ideals.” Black, for his part, is credited as the “inventor of originalism,” a theory Feldman defines as “looking at the text of the Constitution as it would have been publicly understood when written.” (One wonders what John Marshall thought he was doing.) FDR appointed eight justices, more than any president after Washington, but the others — Byrnes (who served a year), Murphy, Reed, and Rutledge — don’t interest Feldman, for, as he says of the Truman-appointed Vinson, another ignored judge, they had no “grand theories.”     

Feldman is a law professor at Harvard and served as a constitutional adviser to the Coalition Provisional Authority in Iraq. He marvels at the power of brainy go-getters to “reshape” a country. The book leaves one in doubt as to whether statutes are the work of elected legislators or of New Deal wizards like Tommy Corcoran, who churned out laws over the course of a weekend. Power, in this book, means big ideas in action, and big ideas, of course, mean academia. We learn about grades, law reviews, and prestigious professorships, and that the better part of American law is something run out of Harvard. Half the people in the book seem to have gone there; Feldman notes one minor figure’s Harvard education five times in three pages.

The closest thing the book has to a thesis is Feldman’s remark that “these four men reinvented the Constitution.” Leave aside the interesting question of their constitutional authority to do so: The substory of Scorpions concerns the power of the Court. “Although the framers of the Constitution did not anticipate it,” writes Feldman, “the title Justice is the closest thing the U.S. system has to nobility.” Black, for instance,  “ascended” from Senate to Court. For Feldman, a judicial opinion can be a statesmanlike act. He hails Black’s vote for desegregation in Brown v. Board of Education (1954) — the last case in which all four justices sat together — as an act of “exceptional bravery.” One might more naturally apply the term to the lawyers who risked their lives to bring the suit.

Strange, though, that despite such adulation, Feldman so frequently undermines his tale of a noble clash of theory by looking to psychology. Black’s desegregation vote, he suggests, was actually an expiation of his Klan past. Douglas, meanwhile, when he finally accepted the end of his political dreams, grew unstable; he divorced his wife — the first of four — making him, in that era, permanently unelectable. Feldman writes that his opinion in Griswold v. Connecticut (1965), holding that the Constitution forbids a state to ban the use of contraceptives by married couples, was an instance of his “personal chaos [giving] meaning and direction to his liberal constitutional values,” which seems rather close to saying that Douglas worked out his personal problems on the bench.

The justices, when not depicted as walking theories or begaveled neuroses, behave like thoroughly political animals. Especially Frankfurter, who in Feldman’s telling comes off as a sort of epistolary vizier, endlessly dashing off letters that crow about FDR’s latest address or advise on tax reform, the Anschluss, etc.; as a justice, he felt no compunction regarding tipping off friends in the solicitor general’s office about the confidential views of colleagues. Feldman doesn’t have a favored justice; each receives praise according to who achieves the most “liberal” result, which Feldman seems roughly to define as the leftmost position. Douglas, for instance, seizes the “mantle of liberalism” from the others when he argues, in Dennis v. United States (1951), that the First Amendment prohibits Congress from criminalizing the conspiracies of Communist “bogeymen.” That Douglas (with Black and Frankfurter) also held constitutional the internment of Japanese Americans in Korematsu v. United States (1944) is apparently soon forgiven.

Feldman writes that the Roosevelt Court spun a “constitutional web” in which “creatures, great and small, [found] themselves caught.” He means to convey the simultaneous power and passivity of the court, not a fearsome vision of fanged arachnid predators, but one can’t help thinking of spiders in black robes. (Not “scorpions,” as the title would have it.) Frankfurter thought Douglas the most “shamelessly amoral character I’ve ever known,” while Douglas merely thought Frankfurter “utterly dishonest.” Jackson, abroad in Germany in 1946 as chief prosecutor at the Nuremberg trial, maneuvered to secure the post of chief justice (which FDR had promised him), only to learn, in vain fury, that Douglas and Black had thwarted him by threatening to resign.

The book, well paced and readable, is fine popular history, but Feldman has a bad habit of paraphrasing — letters, speeches, judicial opinions — when he ought to allow his very articulate subjects to speak for themselves. This saps his story of life. He also tends to reach for the obvious word, which is to say the dull one, never more so than when he tries to lend human drama: People “stand up” for principles; struggles are what we “never give up”; difficulties, naturally, are what folks “bounce back” from. In places, Feldman’s imprecision leads to inadvertently comic sentences, e.g.: “In March 1933, days after Roosevelt assumed the presidency, Adolf Hitler stage-managed his own takeover of absolute power in Germany.”

Feldman thinks the New Deal a necessary “triumph.” Readers less wholly sympathetic to FDR will still take from Feldman’s book the sense that unprecedented change was afoot — especially on a bench where eight of nine justices were Roosevelt men. Jackson, for one, entered politics in 1911 to help friends get postmasterships, still the main federal patronage position. Thirty years later (in a case Feldman doesn’t mention, along with many other watershed Commerce Clause cases), Justice Jackson upheld, in Wickard v. Filburn (1942), the power of Washington bureaucrats, in an unprecedented expansion of their reach, to limit the private wheat production of a farmer in Ohio. Remarkable progress for the old livestock litigator, and his country, but whether this was a “triumph” depends, I suppose, on whose cow is being gored.

– Mr. Tartakovsky is a student at Fordham Law School and a contributing editor at the Claremont Review of Books.

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