Scorpions: The Battles and Triumphs of Fdr's Great Supreme Court Justices

How judiciary will be impartial

There are a number of books and articles that discuss conflict between Supreme Court Justices, including the four Justices at the center of this fine study: Felix Frankfurter (1882-1965); Robert Jackson (1892-1954); Hugo Black (1886-1971); and William O. Douglas (1898-1975). Collectively, these Justices served between 1939 and 1975. However this book is unique in several ways that advance our understanding of the Court during this period. At about 500 pages, the author is able to paint a more complete picture of the Justices and their Court interaction than shorter studies. Each Justice is introduced, in terms both of his pre-Court career and his relationship with FDR. So by the time the author discusses their Court interaction, the reader has a particularly good feel for each Justice as an individual. Unlike most other studies, the author devotes probably most attention to Robert Jackson, an almost forgotten figure today who is soon to be the subject of a major biography by Professor John Q. Barrett. This focus on Jackson, former Attorney General, whom Justice Brandeis considered the finest Solicitor General he had seen, who later served as lead American prosecutor at Nuremberg, and who wrote some of the finest opinions in the Court's history, enhances the study enormously.The book also sheds light on the other three Justices as well. The much criticized Frankfurter, who went from being the leading Court liberal to outright conservative, is assessed in ways that allow the reader to understand why the shift to an activist Court left Frankfurter behind, rather than a shift in his own judicial restrainist philosophy. A perceptive discussion of Black and the development of his incorporation and textual philosophy of interpretation helps fill out an understanding of this key Justice. Equally important as his revival of Jackson is the author's rehabilitative portrait of Douglas, driven by political ambitions until 1948, when he emerges as a "great justice" and theoretician of new constitutional rights (such as privacy) and opponent of the Vietnam war. As a corrective to the "Wild Bill" approach to Douglas, the author's analysis is most welcome. We are reminded of why Douglas was so vital a Justice during his tenure in dealing with issues such as the flag salute cases, Japanese relocation, the HCUA, and the Rosenbergs.On top of all this, the book is a solid analysis of some of the leading cases in our constitutional history during this period. The discussions of "Brown," the Steel Seizure and "Dennis" cases are particularly perceptive. Another focus is the intellectual approach to judging each man employed. Some issues of judicial philosophy are raised, for example Jackson's pragmatic approach (promoting the effective functioning of the government) and Alexander Bickel's "counter-majoritarian difficulty." The bizarre Black-Jackson feud that erupts while Jackson is at Nuremberg is skillfully dissected and explained. There is much more of marked value in the book, supported by 46 pages of helpful endnotes, a 12 page bibliography, and some useful photographs. While one can quibble with the author's perhaps excessive opinions of Douglas and Jackson, and some of his other judgments, in the process one can learn a tremendous amount about these four unique individuals, the Court they made, and our constitutional history.

And even that depends upon politics.At the beginning of FDR's presidencies, Originalist philosophy was considered being a Liberal. At the end, and now, it's being a Right-winger.Since 2016, my interest in the Supreme Court has grown, as has my interest in social issues and politics.Prior to the "surprises" and "failures" of our Democracy, lately, I didn't think that much about the Supreme Court. Quite frankly, I took the Supreme Court for granted."Scorpions" is a great psychosocial history of how Supreme Court justices interpret and "make" new law. It is also a great look at what considerations go into the jurists' decisions.You might be surprised to learn that many decisions, including "Brown v. Education" was less about de-segregation, and more about how America's racism was copied by both Germany and the Soviet bloc states, despite the fact that America's part in the Nuremberg trials.While "Brown v. Education" passed because our international reputation depended upon looking at African Americans has humans, equal to all other races in America, it was a gradual process, because jurist feared that if "Brown" were passed, without a gradual process, jurists feared "there would be riots in the streets, and school closures in the South. Sound familiar?Read this book to understand our history, and to vote for a president who is likely to nominate Supreme Court jurists whose social justice philosophies align with your own.

Good in depth analysis of the personalities and the politics involved as well as the evolving doctrines of constitutional philosophy amongst the justices. The title of the book comes from a quote attributed to a former clerk of Justice Frankfurter that the Supreme Court is "Nine scorpions in a bottle." Turns out to be very true. I am a trial court judge (which may skew my analysis), but I found it to be an excellent read, and in parts, absolutely fascinating. The four justices who are the focus of the book could be petty and mean spirited, but when the occasion demanded, they generally rose to needed heights.

This book fails in two respects.First, I was hoping that a Harvard law professor, who supposedly is an expert on constitutional law, would be a bit more analytical in his assessment of the seminal Supreme Court decisions during the mid-20th Century. Instead of providing an informed discussion of the precedential value of their legal opinions, he concentrates on behind-the-scenes gossip and the idiosyncratic personalities of Frankfurter, Black, Jackson and Douglas. Among other things, he completely glosses over the Roosevelt Court's decision to abandon all prior precedents placing limits on the regulatory power of the federal government, oversimplifying the rationale of the cases that were reversed and ignoring the genuine constitutional debate on the scope of the Commerce Clause.Second, the author's assessment of both FDR and these four appointees is hagiographic to the point of absurdity. He talks of FDR leading the country "to victory over the Depression" (p. 305) when, in fact, Roosevelt's policies failed to have any measureable impact on the economic downturn and contributed nothing to the eventual recovery--a recovery that did not actually begin until well after FDR's death. Even Roosevelt's own Treasury Secretary, Henry Morgenthau Jr., admitted, during a meeting with two U.S. Senators in May 1939, that "We have tried spending money. We are spending more than we have ever spent before and it does not work. * * * I say after eight years of this Administration we have just as much unemployment as when we started. And an enormous debt to boot!" All of this--and much more--Professor Feldman conveniently ignores. Although he concedes (p. 75, quoting Justice Jackson) that FDR "never devoted himself to much study of the economic processes of the country," in the next sentence he states that the "chief advantages he [FDR] brought to the problem were the conviction that something needed to be done...." I laughed out loud when I read that. Apparently, the thought never occurred to the good professor that perhaps it might be better to think twice before radically restructuring the U.S. economy when you really don't know what you are doing.Feldman is equally uncritical of the four justices. For example, he goes to great lengths to explain and justify Frankfurter's decision upholding a state law requiring children of Jehovah's Witnesses' families to participate in the pledge of allegiance, stating that Frankfurter's only error was that he "had misunderstood not only the will of the people but the true meaning of liberalism." (p. 186) In reality, the explanation is much simpler: Frankfurter misunderstood the Constitution. The lone dissenter, Harlan Fiske Stone, was the only one who grasped that freedom of religion was added to the Constitution, along with the rest of the Bill of Rights, to protect the minority in the face of the elected majority--something that Feldman suggests was a novel idea at the time, which is just plain silly (p. 184). James Madison et al. understood this very clearly at the time they pressed for the first ten amendments.There were parts of the book I enjoyed: Jackson's handling of the Nuremberg trials, the shameful disposition by the justices of the Japanese internment cases, and the machinations that resulted in the unanimous opinion in Brown vs. Board of Education. But none of this really compensates for the lack of substance and the uncritical examination of the results-driven approach to constitutional law often embraced by these four justices and endorsed professor Feldman who draws no distinction between those decisions that were based on sound legal principles and those that were blatantly arbitrary. A more analytical and balanced assessment of Frankfurter, Douglas, Black and Jackson is what I was hoping for but did not find.