Noah Feldman's book on FDR's Supreme Court

By Dennis Drabelle
Friday, December 3, 2010; 2:52 PM


The Battles and Triumphs of FDR's Great Supreme Court Justices

By Noah Feldman

Twelve. 513 pp. $30

Twenty-one years ago, James F. Simon served up a piquant dish of American history called "The Antagonists," a book about thwarted expectations at a very high level. In the late 1930s and early '40s, Simon wrote, Washington insiders would have picked Justice Felix Frankfurter, a brilliant and well-connected former Harvard law professor, to take charge of the liberal Supreme Court that President Franklin Roosevelt was fashioning as vacancies arose. The same insiders would have cast Justice Hugo Black, a former senator from Alabama whose description of himself as "a country lawyer" was not far off the mark, as a probable acolyte. Yet, Black went on to develop a plain but powerful approach to the Constitution that made Frankfurter look conservative. To Frankfurter's dismay, it was not he but Black who became the Court's intellectual leader.

Now Noah Feldman, himself a Harvard law professor, has written a book similar to Simon's, although "The Antagonists" have bulked up into "Scorpions" and two more Roosevelt appointees have entered the lists: Justices William O. Douglas and Robert Jackson. Having reviewed "The Antagonists" for The Post, I doubted that Simon's topic deserved another look. In truth, however, it did. "The Antagonists" remains a very good book, but "Scorpions" is even better. In it, Feldman tells how four ambitious and strong-willed jurists jockeyed for position on a Supreme Court asked to rule on the constitutionality of New Deal programs and to find a balance between governmental objectives and individual rights.

In striking down New Deal statutes, Frankfurter believed, the Court had superimposed its own ideology on Congressional and presidential attempts to restore an ailing economy; as an antidote, he counseled judicial restraint across the board. The other justices were of the same mind as a challenging case reached the Court in 1940: Minersville School Dist. v. Gobitis. The Pennsylvania school district had expelled two Jehovah's Witness children for refusing to salute the flag in class. Following his principle of restraint and writing for an 8-1 majority that included Black, Frankfurter sided with the authorities. He hinted that the school district might have acted more wisely by allowing the children to follow their consciences but decided that the Constitution did not require such an accommodation.

Frankfurter, who had helped found the American Civil Liberties Union, was roundly criticized for this decision; over the next few years, the Court's composition changed, and some of his brethren had second thoughts - Black among them. In West Virginia v. Barnette (1943), the Court overruled Gobitis in an eloquent majority opinion by Jackson, who had joined the Court in the interim. "The very purpose of the Bill of Rights," Jackson wrote, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities. . . . Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." Frankfurter was so upset by this about-face that he took the extraordinary step of citing his own Jewish background in his dissent, which Feldman calls "the most agonized and agonizing opinion recorded anywhere in the U.S. Reports": "One who belongs to the most vilified and persecuted minority in history," Frankfurter asserted, "is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime." How a "guaranteed" freedom could end up not being enforced by the court of last resort, however, was a puzzle Frankfurter did not solve.

As for Jackson, Feldman notes that he tended to pale next to the forceful Black and the flashy Douglas, but that in recent decades his reputation has risen. Not only was he a fine prose stylist, but his flexibility in judging contrasts favorably with the dogmatism of Frankfurter and Black. Indeed, a remark by Jackson might give pause to today's proponents of originalism (deciding cases on the basis of what the framers of the Constitution had in mind when they wrote its language). What the framers meant "or would have envisioned had they foreseen modern conditions," Jackson wrote, "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."

"Scorpions" climaxes with the Court's deliberations over Brown v. Board of Education, the 1954 case that marked the beginning of the end for government-sponsored segregation in the United States. Feldman ably captures the behind-the-scenes maneuvering to hammer out a unanimous opinion, including repeated visits by the new chief justice, Earl Warren, to the bed-ridden Jackson, who had been hospitalized after a heart attack. As Feldman points out, Brown not only heralded the end of the Roosevelt Court (Jackson died at the start of the following term). "It was also one of the only times that those fiercely independent men [Black, Frankfurter, Douglas and Jackson] agreed on a common opinion in a case of great moment."

Occasionally, I wanted Feldman to go further. He makes much of Jackson's stint as a prosecutor (on leave of absence from the Court) at the Nuremberg Trials but overlooks Rebecca West's sharply etched portrait of Jackson in her coverage of those trials for the New Yorker. And in his account of how Hermann Goering sparred successfully with Jackson at Nuremberg, Feldman neglects to mention that the Nazi went on to cheat the hangman by committing suicide in his cell; for that matter, a summing-up of all the trial verdicts would have helped the reader assess Jackson's performance.

Still, one is grateful for what the author has accomplished: a book blessedly free of legal jargon, nuanced without being cryptic and full of high-stakes intellectual drama.

Dennis Drabelle is a contributing editor of Book World and a lawyer.

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