The Nassau Lawyer | October 2012
BOOK REVIEW
By Anthony Michael Sabino
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
Author: Noah Feldman
Twelve | First Edition (November 8, 2010) Hardcover, 528 pages | List Price: $30 ISBN: 0446580570
As much as I despised “Con Law” in law school (maybe it was the nattering professor?) the longer I am in practice the more I am drawn to the beauty and the intricacies of constitutional law. And not just the opinions per se, but the rich historical context of those landmarks and the Justices who decided them.
Thus, I found myself drawn to Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, which, to my delight, turned out to be compelling reading. Beyond the book’s historical value are its object lessons for today’s Supreme Court. Noah Feldman, a Harvard Law School professor, has penned an incredibly fast paced history of the Roosevelt Court and the four giants that populated it: Felix Frankfurter, Hugo Black, William Douglas, and Robert Jackson.
Make no mistake, this is not some turgid legal analysis of the precedents of that era. Feldman has achieved a fascinating read by telling the story of the personalities of these men and their familiars, set against the backdrop of some of the most turbulent times in American history. He achieves a richly textured story that you don’t need a law degree to appreciate. Yet if you are an attorney, it brings a fullness and texture to those dusty old landmarks they beat into our heads in law school.
Part of Feldman’s achievement here is that he cogently breaks down the Roosevelt Court epoch into distinguishable eras from the Great Depression, the war years, and the early years of the Cold War, culminating of course in the last great achievement of the FDR’s appointees, Brown v. Board of Education. In doing so, he tells a very human story.
He commences with the pre-Court history of each of Roosevelt’s men. There is Jackson, the small town lawyer from upstate New York with political aspirations; Frankfurter, the polished Ivy League intellectual; Black, the populist senator from the Alabama backwoods (and his regrettable flirtation with the Klan, done purely to garner votes); and Douglas, a consummate politician, who amazingly viewed his Justiceship as a waystation to what he really wanted — the Presidency.
This is where we learn one of our first lessons, and no doubt a shocking one: back then, a Supreme Court seat was not necessarily the penultimate goal of these men, but rather a steppingstone to higher political office. This is in sharp contradistinction to our modern view that once on the Court, there is no higher office.
Implicitly, these early chapters also explain how and why the author came to focus on this epic quartet. Certainly, they were not the only Roosevelt appointees (for instance, Justice Stanley Reed was an intermediate FDR appointment). Yet these four were, in essence, Roosevelt’s “chosen ones,” for each in their own way shared the President’s progressive philosophy and zest for implementing the New Deal. Although he largely bypasses the
other members of the Court from that era, Feldman ameliorates that flaw somewhat when, from time to time, he exposits the views of the remaining Justices, albeit mainly for contrast (possibly the success of this tome will bring about a more comprehensive successor).
Feldman tells a detailed story of each Justice’s intimate history with Roosevelt. This is significant, because it provides context and motivations to their future days on the Court. As four of the most influential progenitors of the New Deal and pre-War policy, we can see what informed these men and took expression in the solemn words yet to be inscribed in their High Court opinions. Again, the lesson for today is a demonstration of how a Supreme Court appointee can be an extension of the political will of the Chief Executive.
Scorpions does not spend as much time as one might think on FDR’s court-packing plan (no doubt because that episode has been so widely written upon). But it does give perspective from the four future Justices so greatly impacted by Roosevelt’s ploy. We see, for example, that Frankfurter was particularly horrified at Roosevelt’s proposal, not merely because he deemed it to be so overtly political as to be foolhardy, but more for reason that Frankfurter could be said to have a love bordering on religious fervor for the sanctity of the High Court as the penultimate guardian of our freedoms.
Feldman is marvelous in his dissection of the New Deal-era cases they decided, not in terms of “law review” type analysis, but for expositing the roles these individuals played in formulating their ultimate opinions, especially how each Justice’s past and concern for history shaped his view. We all suffered through the turgid analysis of the “sick chicken” and child labor cases in Con Law. This author avoids that, in the main, and rather humanizes the ultimate holdings as reflections of the relevant Justices’ individual philosophies of constitutional interpretation.
Again, our lesson for today’s Court is how the personal history of a Justice and his or her concern for how history views their jurisprudence plays a role in decision making.
Quite illuminating were the wartime decisions, such as the now-condemned Korematsu ruling, where Feldman provides a much fuller story behind its genesis. One can compare the mindset of that America at war with our own post-9/11 thinking, and draw the appropriate contrasts. This then easily transitions to the post-war “Red Scare” opinions impacting the First Amendment, and, without a doubt, the Court’s greatest hour, Brown v. Board of Education, where in their last great moment together the Roosevelt Justices worked towards a consensus that would not only bind the Court, but would keep the nation from tearing itself apart.
In my personal view, there are four significant “takeaways” from Scorpions that impart lessons for today and our own future. One, Supreme Court Justices are men and women of extraordinary intellect — and extraordinary ambition. It does one well to carefully scrutinize what they did in the past to understand what their future path might be. Douglas is particularly fascinating in this regard, as we see his arc from top lawyer at the nascent Securities and Exchange Commission under “Papa Joe” Kennedy, the SEC’s first chairman, and ultimately to the high bench, but always with a sharp eye and burning ambition to the Presidency. Hard to imagine in today’s world.
Two, we’re preoccupied today with “politicizing” the Supreme Court and its work. That’s a sound notion in the abstract, but as this book so amply demonstrates, when was the Court not political, at least to some degree?
Highly respectful of whatever your own opinion may be, reasonable people can agree, I think, that few things were more political than Roosevelt’s failed attempt to “pack” the Court, the infamous “switch in time,” and, perhaps, most tragic of all, the ill-starred Korematsu decision as aforenoted. While we should all strive to keep the High Court as apolitical as possible, the reality is that such purity is likely beyond reach. Possibly the more
sensible goal is to minimize the political overtones of its decision making process.
Third — and this is an excellent warning for today — people change. That includes Supreme Court Justices. As Feldman catalogues in the latter part of his book, each of these Justices went through a metamorphosis that led them in directions and to decisions far different that one would have expected from the time they were appointed.
The last lesson derived from Scorpions is by far the greatest, and that is Supreme Court Justices are people. Their present day actions are informed by their past. Their decisions are influenced by their own perceptions of history, and how history shall judge them in the future. While they might be monuments to reason and justice, they can also fall prey to the same human frailties that bedevil all of us, like ambition and jealousy. And that’s a lesson we should all bear in mind, that Justices are just individuals like us, and sometimes we ask or expect too much of them.
Whether you are a constitutional law expert, a history buff or someone just looking for an interesting read,
Scorpions offers law, history, politics, intrigue, and a quick and enjoyable read.
Anthony Michael Sabino is a partner in Sabino & Sabino, P.C. and a Professor of Law at Tobin College of Business, St. John’s University.