In Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, Noah Feldman, the Bemis Professor of International Law at HLS, paints the lives of Justices Hugo Black, William O. Douglas, Felix Frankfurter and Robert H. Jackson. Feldman argues FDR’s appointees were largely outsiders. Both Justice Black and Justice Jackson had a scant legal education. Justice Douglas came from a childhood of poverty and polio and Justice Frankfurter sat as the lone Jewish justice during his tenure on the Court. While they were all outsiders, the Justices came to the bench with different ideologies, experiences and goals. Despite their varying agendas, the Justices compromised to forge a tradition of liberalism in tackling myriad cases.
The title, “Scorpions,” comes from the description of the Court as “Nine scorpions in a bottle” attributed to either Justice Oliver Wendell Holmes or Alexander Bickel (one-time clerk for Justice Frankfurter). Professor Feldman artfully depicts FDR’s “scorpions.” The book is split into a four main parts: the back-story of each of the four Justices, the state of the Court before their respective appointments, their tenure as Justices, and famous issues facing FDR’s appointees. In doing so, Feldman covers judicial biographies, history and an overview of several cases.
Overall, Feldman achieves a fine balance. He takes a broad look at the Court in regards to FDR’s most important appointees. Some have criticized Feldman for flying by the legal analysis of many of the major cases he discusses. I would have to agree that Feldman discusses cases like Brown v. Board, Dennis v. United States, Griswold v. United States and Korematsu v. United States but fails to present a nuanced analysis of the legal underpinnings behind the story. I do, not however, deem this to be inappropriate.
Feldman wrote the book with the intent that it would be lucid and interesting for everyone. The book is more of a primer in judicial politics that casts a wide net by including funny anecdotes about the Justices, discussion of FDR’s administration and a larger notion of the legal realm of the 1940s. A lengthy formal analysis of the cases covered would dissuade many readers from touching the book. Feldman writing the book for the masses would also tackle the claim that Feldman he makes few revelations in the text. I also concede to this view. But the book, in its own way, it written like a popular history- focusing on interesting elements like judicial biography and anecdotes. These features appeal to the interest of the masses and help inform the people about the largely veiled judiciary.
As some have noted, Feldman has a knack of placing himself in incredibly important legal questions of our age. His book far transcends the dusty pages of judicial history. In “Scorpions,” he writes about a divided court, a progressive President and incredibly talented appointees. Sound familiar? In the age of Obama, we see promising appointees perhaps willing to uphold Obama’s legislation in light of a stubbornly conservative Court. The real trial of the Roberts Court and the ability of Obama’s liberal bloc will be tested when the healthcare bill reaches the High Court.
At the very end, Feldman poignantly writes (and it’s so poignant I feel the need not to edit the entire last paragraph):
There is no one way to interpret the Constitution, and the lives of the great justices reflect that reality. Driven by prudence, by principle, by pragmatism, or by policy, the justices at their best make the Constitution their own. Arguing about its true meaning, striving to make sense of its contours and its commands, is the essence of what makes us loyal to it. To interpret the constitution by one’s own best lights is to be an American.
Charged with a streak of legal realism, Feldman asserts that all these Justices had markedly different approaches to the law. These approaches were valid in being shaped by the needs of the day.
Photo credit: www.etseq.law.harvard.edu
