Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices by Noah Feldman (Review)
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.
