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

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Scorpions - the title references a description of the Supreme Court Justices as "nine scorpions in a bottle" - is the story of four widely different justices all appointed by Franklin D. Roosevelt. These four, Hugo Black, Felix Frankfurter, Robert Jackson and William O. Douglas could not have been more dissimiliar. Frankfurter, a Jew was perhaps the most liberal voice in the country when Roosevelt appointed him to the court. Black was a southern country lawyer former KKK member with an altogether unique interpretation of the constitution, Jackson, a plain spoken lawyer seeking a pragmatic resolution to court cases and Douglas, a westerner who defined wide limits for individual freedom. I enjoyed the detail and back story the author presented on all of these men. The intellectual growth that allowed these men to listen, learn and change their minds from where they started was so appealing in this story. Black from a KKK member to perhaps the strongest civil rights supporter on the court. Frankfurter from the most liberal to arguably the most conservative member of the court. I was fascinated at how men of such widely divergent backgrounds could come together to decide some of the most important issues of the twentieth century. The background of the Japanese interment in WWII, Truman's seizure of the steel mills, civil rights and lastly the Brown v. the Board of Education decisions are all covered with the deliberations and interactions that led to the court decisions. Personalities are on full display. I admit much of the legal theories were lost on me and did for me (the clearly non legal reader) drag out the story a bit but I still enjoyed this book as a history of the Supreme Court and the justices who served there. In today's acrimonious political environment one really longs for the time when disagreements were discussed, debated and had compromises developed that moved the country forward. A good narrative history of the Supreme Courtin the mid twentieth century.

By way of disclosure I am a private scholar who has studied the interplay of power among different institutions and entities, whether it is government, corporations, or other power groups. I have been a member of the Supreme Court Historical Society for many of the last 30 years and I have been fortunate to have developed personal relationships with many associate justices and two Chief Justices. Having said that, I am simply amazed at the wonderfully expertly written, fascinating, and breathtaking book that Feldman has written.

His anecdotes and historical references are both brilliant and factual. He has truly captured the essence of the Supreme Court and its stormy relationship with FDR during a critical period of American history. This was during the 1930's and for the next thirty years. This is a book about 5 egos, four of them justices, and one President, and the interplay between them during 3 decades. The first part of the book is devoted to a fast sweeping biography of 4 associate justices all of whom were appointed by the patrician Franklin Roosevelt.

The Players in this book:

Felix Frankfurter

Brilliant beyond anyone's understanding, he was the product of a poor family living in the slums of New York. He went to the City College of New York, and although it is not mentioned in the book, City College at that time was considered better than Harvard because the Ivy League was limiting Jewish enrollment intentionally. This allowed City College at one point to have more Nobel Prize winners than Harvard.

After graduation, Frankfurter put together some money and went on to Harvard Law where he excelled. Ultimately he developed mentors like Henry Stimson, an absolutely legendary power broker in Washington who served several Presidents including FDR as Secretary of War. Frankfurter is without question one of the intellectually most gifted people to ever serve on the Court.

Robert Jackson

Jackson was born dirt poor, so poor in fact, he could not afford an undergraduate education, and so he apprenticed to be a lawyer with a Jamestown New York law office. While working, he decided to pursue a year of formal education at the Albany New York Law School. He was folksy, clever, with a fabulous speaking delivery, exercised common sense and made a fortune before risking it all on a bank during FDR's first days in office.

Hugo Black

Black did a 2 year program at the University Of Alabama School Of Law. He was self-guided, extremely well read and understood that in the 1920's, the power was with the Ku Klux Klan, and so he joined in 1923. It helped him with his rise to power in Alabama and then he abruptly left the organization. It haunted him the rest of his life. He joined the Supreme Court in 1937, and became one of the most outspoken proponents of freedom, and free speech during the century.

William O. Douglas

Raised on the West Coast in Washington, he became a Yale Law School professor in his 20's. Accepted at Harvard Law, he went to Columbia Law instead. This man also knew how to be mentored. He came under the guidance of Robert Maynard Hutchins who graduated Yale Law in 1925 and immediately became a professor of law. Two years later Hutchins becomes dean of the school at 28 years of age. He then brings Douglas to Yale to be right in the center of things. Douglas would then be mentored by Joe Kennedy, JFK's father. Joe Kennedy would introduce Douglas to FDR, and thus a rocket ship ascent began for the future associate justice.

You need to understand who these players were to determine if you want to read this book. What the author clearly demonstrates is how these four individuals who on and off for thirty years would be friends and enemies would go on to reshape our modern interpretation of the Constitution, and the laws under which we live. Every major law and judicial event of the 20th century came through their hands for interpretation and lawfulness.

Their joint influence is not exceeded by anyone including Presidents. Just look at a short list of some of the seminal events they were involved in:

* The concept of Judicial Restraint

* Clear and Present Danger Case

* Dennis v. United States - The right or non-right to advocate the overthrow of the United States

* Judgment at Nuremburg - The right of the world to judge the implementers of Hitler's final solution. Associate Justice Robert Jackson presided.

* Brown v. Board of Education - Outlawing the separate but equal doctrine created by the Plessy v. Ferguson decision. Justice Jackson went through four different drafts of this new interpretation. While very ill at the time, Justice Jackson found it excruciatingly difficult to render a unanimous opinion. He went directly to the Court from a hospital bed to render support for the earthshaking decision the Court published.

* The Rosenberg Case

What you will gain from reading this book:

You will understand our country, and more importantly the true genius of the founding fathers in creating an independent Supreme Court. You will be awed by the intellectual genius of some of America's greatest minds dedicated to an interpretation of our laws. Even when you disagree with them, you will be struck by the quality of their thinking.

This is not about liberal versus conservative, which is what we see today. I have known many of the great liberals as well as the conservatives on the Court, and I am impressed by both types. My own personal demand on sitting justices is that they are people of absolute integrity, and extraordinary intellects, and for the most part we have been blessed by both from the right and the left.

Author Noah Feldman has given us a rare glimpse into some of the most interesting personalities of the 20th century. You will also get to know Tommy the Cork Corcoran, one of the most powerful legal players in the 20th century. You will meet Abe Fortas, perhaps the most influential associate justice of the 20 century. This is a man who sat in Lyndon Johnson's cabinet meetings, not at the table, but back several feet by the window. He would take it all in, and then when alone with the President dissect the whole meeting, and tell President Johnson what to do. I doubt LBJ could have remained in office through 1968 without the solid advice rendered by Abe Fortas.

In summary, if you have any interest in the Supreme Court at all, or how government works, this book should be at the top of your list. I simply could not put it down, and thank you for reading this review.

Richard C. Stoyeck

The author has cherry-picked the four most interesting Supreme Court justices from the eight men that President Rossevelt appointed to the high bench. This legal account really follows the tenure of Robert Jackson (1941-1954) as he interacts with fellow justices Hugo Black, Felix Frankfurther, and Wiliam Douglas. It is an arbitrary time period chosen by the author, but it is climaxed by the historic Brown vs. Board of Education decision and Justice Jackson's death. The narrative alternates between the constitutional theories of each of the justice's and between their brilliant but competitive minds. The book combines dueling legal arguments, New Deal politics and clashing personalities into an absorbing narrative of the World War Two era and beyond.

Noah Feldman's SCORPIONS is an important work of popular history. This group biography recounts the lives of four Supreme Court justices whose imprint on American history and law is substantial. Justices Felix Frankfurter, William O. Douglas, Hugo Black and Robert Jackson were giants of the law whose contribution to modern constitutional jurisprudence cannot be ignored. Each brought a unique and diverse background to the High Court and shared only one trait when selected by President Franklin D. Roosevelt to serve: none had any prior judicial experience. The contemporary United States Supreme Court is noteworthy because eight of the nine justices arrived after years of experience as judges on the various federal appellate courts. Only President Obama's most recent appointment, Elena Kagan, lacked federal judicial experience. SCORPIONS reminds readers that this experience is no indication of judicial greatness and indeed may be a predictor of something far worse: judicial mediocrity.

Three of the four men covered by Professor Feldman have been the subject of numerous biographies and, in the case of Douglas, a two-volume autobiography. Jackson, a small-town New York lawyer who rose to the Supreme Court and took a leave of absence to lead the Nuremberg prosecutions, has yet to be the focus of an exhaustive judicial biography. Feldman's coverage of his life, political rise and relationship with FDR is informative and rewarding. But SCORPIONS is only a general discussion of the four justices. This is not intended to be a criticism of the book, because its importance comes from what it tells readers about the interaction between the men and how their battles influenced the direction of the Supreme Court during an important era.

SCORPIONS covers the Supreme Court as shaped by FDR, who, during his four terms as President, transformed the Court and its jurisprudence. The nominees came from different backgrounds but were viewed as New Deal loyalists. In the beginning of his presidency, the Supreme Court declared many pieces of New Deal legislation unconstitutional. His first reaction was to attempt to pack the Court by changing the manner and procedure for filling vacancies. The "court-packing" plan was unsuccessful, but eventually retirement, death and three terms in office gave him the opportunity to remake the Court.

Before FDR could transform the Supreme Court from a judicial body protecting business to a Court that favored the protection of individual liberties, he would need to appoint justices who he believed shared his view of the Constitution. All four of the men chronicled in SCORPIONS were New Deal liberals. Black was a populist senator from Alabama and Frankfurter a law professor from Harvard. Both Douglas and Jackson served in the FDR administration and had ambition beyond justice: Douglas hoped to be President and Jackson Chief Justice. The potential nomination of Jackson as Chief Justice was a great source of friction among the four men, and eventually led to a rare occasion when a private dispute among justices was played out in a public airing of Court dirty laundry.

SCORPIONS is fairly straightforward in its treatment of the Court and its members. Following biographical coverage of the careers of Frankfurter, Black, Douglas and Jackson, Feldman discusses the cases that divided and united them. The men differed in their view of many critical cases of the era because they differed in their constitutional jurisprudence. While Frankfurter and Jackson were proponents of judicial restraint, Douglas and Black espoused a more active and aggressive judicial view. The book is appropriate for a general audience as a broad introduction to constitutional doctrine; though not for constitutional scholars, it's valuable history nonetheless.

SCORPIONS will also remind many of an era when Supreme Court justices brought a far wider life experience to their positions than do present members. Many believe that the lack of real-world experience tilts the Court against the common man. Only time will tell if we can achieve that goal in the current political marketplace.

--- Reviewed by Stuart Shiffman

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.

FDR appointed nine Supreme Court justices including the elevation of Harlan Fiske Stone to Chief Justice. The collection of individuals who orbited around FDR during the New Deal and World War II and those who appointed to the Court are an amazing list of influential, intelligent, and inspiring people who helped shape America. This book focuses on four of FDR's Supreme Court nominees: Hugo Black, an Alabama Senator; Felix Frankfurter, one of the nation's foremost authorities on the Court who knew FDR from the Wilson Administration; William Douglas, the SEC Chairman who could never truly end his love affair with presidential politics; Robert Jackson, the fast rising Solicitor General, Attorney General, and prosecutor at Nuremberg.

Noah Feldman traces the rise of FDR as well as these four individuals. The author tells us of their careers, beliefs, and interaction prior to their court confirmations and then their struggles once there. It is a political, constitutional, and personal history of the United States largely between the 1930s and 1960s. You will learn about the wheeling and dealing behind presidential and vice-presidential nominations, the constitutional history of many monumental Supreme Court decisions largely culminating in Brown v. Board of Education, and the personal friendships, rivalries, and outright conflicts at play.

In addition to the main cast of four justices and FDR, major players include political insider and New Dealer Tommy "The Cork" Corcoran, short term Supreme Court Justice James Byrnes, Attorney General Francis Biddle, Democratic insider Robert Hannegan, and many others who colored our country's history.

Despite having read a fair amount about the Supreme Court during these times and even some biographies of the nominees, I learned a great deal from reading this book. Unlike other treatments, the author really gives Douglas his due as an important thinker on the court. Many other books dismiss Frankfurter as a liberal who shifted right on the court, but that is really only a small part of his story told here. Jackson's pragmatism made him harder to pigeonhole and his ambition always left him wanting something else such as the position of Chief Justice or the presidency. Hugo Black invented modern day originalism, though of course he bent over backwards for certain decisions, such as Brown v. BOE, to meet it.

FDR's years as president were impactful enough. But Noah Feldman shows that they were even farther reaching than we thought, coloring the Warren Court, Justice Brennan's liberal jurisprudence, and many of the constitutional questions the Court is still dealing with today involving privacy and the Bill of Rights as it affects the states.

Feldman has written a spectacularly excellent history of the Supreme Court FDR made, the Supreme Court that transformed American jurisprudence and shaped it into what it is today. Feldman writes a kind of history that is all too rare -- addictively readable stories of real human beings who shape Constitutional doctrine and made history in the process. Frankfurter, Douglas, Black, and Jackson fought with one another, an opinion at a time, a personal affront at a time, and gave us all the Constitution that now protects free speech, the rights of minorities, and counts the Bill of Rights as the center of the Constitution rather than an appendage, the Constitution that grows, developes, is anything but static. Others will write in detail about the contents of this book, I won't. I will simply say that for anyone who is even mildly interested in Constitutional law in our time, this is a wonderful read for the lay person, the law student, or the skilled practitioner -- a wonderful reminder that although we say we are a nation of laws, not men, it is men who make the laws we live by, and fallible all too human men who interpret and apply it.

I thoroughly enjoyed Noah Feldman's historical account of Roosevelt's four most influential justices, Hugo Black, Felix Frankfurter, Robert Jackson, and William Douglas. The book is equal parts triumph and tragedy. These four justices serving during the same time literally changed the Constitution and the United States as we know it. Justices Frankfurter and Jackson were both involved with the "switch in time that saved nine" when Roosevelt attempted to pack the Court; Justice Black created the judicial philosophy of originalism that is popular with Justices Scalia and Thomas; and Justice Douglas was perhaps the most liberal justice there has been or ever will be.
Despite their influence, Feldman also does not sugarcoat their faults. These are four of the most ambitious men that have ever served on the Court and their conflicts will be shocking to readers when viewed in light of current Court etiquette.

While some potential readers may be wary of reading a book about four distinct individuals, Feldman seemlessly weaves their story into one coherent narrative. Additionally, some other reviewers have commented about the legal theories and the cases taking away from the narrative. While Scorpions is a book about the Supreme Court and four of its Justices, Feldman does not spend unnecessary ink talking about the judicial theories of each justice. When he does, he does this in a coherent way so that the reader can understand that, while each of these justices came to the Court as a "liberal" justice, each ultimately was defined by their judicial theory, which resulted in some being defined as "activist," "conservative," or retaining their reputation as "liberal," all labels that are regularly invoked when talking about judges today.

Pros
Many of the chapters are short, focusing on one of the justices, Roosevelt, or a specific case or historical event (ie. Brown v. Board of Education, Nuremberg, the death of a particular justice, etc.). This makes the individual stories easy to keep track of and provides natural breaks for the reader to take.

Cons
I struggle to find a flaw with the book, but I would say that there are only two one-sentence flaws that the book contains. In two instances Feldman makes a claim that some might dispute without attributing an end note to the source. (For example, essentially referring to Joe Kennedy and all of his sons as philanderers.) However, for a 433 page work, I would consider these two oversights nominal at best and they do not detract away from the evenhanded treatment the four justices receive in the book.

Final recommendation
If you are a law student or enjoy legal history, then you need to read this book. It provides interesting historical background on the cases that we read every day and the men who wrote them. It will certainly enhance your understanding of history and the law. Additionally, if you liked Toobin's The Nine or Woodward and Armstrong's The Brethren, then you will like this book as well. Conversely, if you enjoy this book, you will also like the others.

It seems as if there's a veritable slew of good books about Supreme Court justices this year. The latest, Noah Feldman's Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, focuses on four of Franklin Roosevelt's appointees: Felix Frankfurter, Hugo Black, Robert Jackson, and William O. Douglas.

Each of these justices is fascinating and could merit an individual biography (and there are biographies on each). By writing a joint biography, however, Feldman is really able to compare and contrast these men and their jurisprudence. Frankfurter was the activist law professor who was reluctant to exercise judicial review. Hugo Black, a former KKK member, became a noted civil libertarian and read the constitution literally. Robert Jackson, a small-town lawyer and later Nuremberg prosecutor, usually judged cases with an eye towards pragmatic policy solutions. William O. Douglas pined for political office but settled for preaching liberal values. Together, these men developed or promoted the modern constitutional doctrines of judicial restraint, originalism, pragmatism, and liberalism.

Outside the legal realm, these four justices often fought and bickered to a degree startling for four liberals appointed by the same president. Robert Jackson, who at law schools is portrayed as a reverential figure, got into a petty argument with Black over whether the latter should recuse himself in a case involving a former lawyer partner. Jackson even took his dispute public, sending cables from Nuremberg to impugn his colleague. Frankfurter viewed Black as an intellectual lightweight and relied on a network of mentees to conduct historical research against Black's legal philosophy. Douglas comes off as boorish, especially to his law clerks. However, there are some heartening moments too, such as when Frankfurter defends Jackson against the latter's former ungrateful law clerk, William Rehnquist.

I haven't been a fan of Feldman's past work, particularly the lightweight The Fall and Rise of the Islamic State (Council on Foreign Relations Book). However, I think he gets Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices just about right. For law students like me, I can recognize some of the cases and legal debates to which the book refers. It certainly furthered my understanding of these cases. Perhaps best of all, having a passing familiarity with these justices, I was still genuinely shocked by some of the book's anecdotes (particularly the petty fueds). However, it's generally accessible enough for any reader interested in American history to understand and enjoy.

My only "criticism" of Scorpions is that it's not long enough to do the subject full justice. I know, that's a common faux criticism. The main narrative essentially ends with Jackson's death in 1954, after Brown v. Board. However, Feldman alludes to tantalizing hints of how the other justices behaved afterwards. For example, Black and Douglas, despite being ideological allies during the 1950s, stopped speaking to each other in the late 1960s. Yet, Feldman doesn't really explain why. I felt like the book could really have benefitted from just a few more pages.

Overall, I'd highly recommend this for readers interested in the Supreme Court in particular, or just U.S. history generally. I'd also recommend Jeff Shesol's Supreme Power: Franklin Roosevelt vs. the Supreme Court, which covers FDR's court-packing scheme and acts as a nice prequel to Scorpions.

Noah Feldman's Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices is a superb piece of historical, political, and legal scholarship. I was made aware of the book by reviews in The Atlantic and The Economist, both of which praised the work. I concur wholeheartedly in their praise.

I've often wondered how human emotions and idiosyncrasies play into Supreme Court rulings. This book gives you examples from the mid twentieth century about how these impacted some of the most significant Supreme Court rulings in the history of the United States. That doesn't sound like a good thing on the surface, but the author explores how those emotions and idiosyncrasies opened the minds of these justices to create and compile some of the most significant theories of American constitutional law. These guys could be petty, vindictive, vengeful, rude, and maniacally egotistical, more often than not with each other, but they were also bright individuals who made positive contributions to American law and society. I don't always agree politically with all the contributions they made, but one cannot argue with the monumental impact of their decisions and opinions, even some of their dissents that did not ultimately become law.

If you have even a remote interest in America political history or American constitutional law, read this book. You will not be disappointed.

Keith