Imagine an America plunged into a recession, with a president attempting to implement progressive reforms while an intransigent Supreme Court defiantly protects the interests of big business. Now imagine that same president is given the opportunity to fill not just one or two but nine Supreme Court seats over his tenure, and to fill those seats with some of the leading progressive lawyers and thinkers of the time. Quite a thought experiment, no? Imagine a present-day Supreme Court comprised of people like Pam Karlan, Harold Koh, Amy Klobuchar (insert your own “liberal Scalia” here).
Breathe deep, my Federalist Society friends. It’s still just a thought experiment.
But this was precisely the scenario faced by Franklin Roosevelt in 1937 when he first tried to pack the Supreme Court with liberal jurists. He sought to replace the “nine old men” who persistently blocked progressive legislation with the great legal liberal minds of his time. And thus this is the thought experiment to which one can’t help but return throughout Noah Feldman’s terrific new book Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. What does it mean when a president boldly attempts to reshape American constitutional thought? Did FDR’s four “great” Supreme Court appointees, who all served together from 1941 through 1954—Felix Frankfurter, Robert Jackson, Hugo Black, and William O. Douglas—redefine liberal constitutional thought? Having been selected to constitute some kind of liberal dream team—an FDR-stamped and certified Miracle on Ice—did they vanquish conservative jurisprudential thought for all time?
Feldman’s answer is complicated. (Disclosure: I have met Feldman twice and know him slightly.) On the one hand he traces the ways in which Frankfurter, Jackson, Black, and Douglas so fundamentally reshaped 20th-century constitutional thought that their influences still dominate modern doctrine today. Black was the father of originalism. Frankfurter devoted his whole career to promoting the goal of judicial restraint. Jackson was a lifelong pragmatist, and Douglas left his fingerprints all over what we have come to think of as modern privacy and liberty doctrine. As Damon Root at Reason Online recently noted, “It’s no exaggeration to say we’re living in a world shaped by their views.” And yet the main thrust of Feldman’s book is that these four “great” men were so consistently egotistical and inflexible, so fractious and combative, that they worked at cross purposes for most of their lives.
All of Feldman’s “scorpions” (Alexander Bickel, who clerked for Frankfurter, once described the Supreme Court as “nine scorpions in a bottle”) were deeply ambitious. The first half of the book shows how each justice overcame modest beginnings—Jackson never even graduated law school and Douglas slung hash and worked as a janitor—to become an intimate or adviser of FDR. Their naked opportunism and manipulation en route is quite stunning, especially compared with the lofty conduct of our modern justices, who like to pretend they never even thought about a court seat until it was offered them. Hugo Black went so far as to join the KKK in Alabama to help him achieve his Senate seat, then ditched the group immediately thereafter. Douglas kept pretending he had better job offers at prestigious Ivy League schools. These men weren’t just FDR’s advisers and occasional employees; they were his poker buddies, drinking companions, and strategists, too.
Yet the patrician Roosevelt handpicked these great lawyers in no small part because they had all staked their early legal careers on pursuing America’s most powerful special interests. Jackson made his name pursuing former Treasury Secretary Andrew Mellon (the third-richest man in America) for tax fraud, while Douglas went after Wall Street as chairman of the SEC. Frankfurter defended a pair of Italian anarchists. Black was a populist senator. All of them were staunch defenders of the New Deal. It should have been a match made in heaven. In 1941, when Jackson was sworn in, FDR triumphantly declared, “It may not be proper to announce it, but today the Supreme Court is full.”
Perhaps that is why the most fascinating part of the book is the drama that unfolds once all four are seated at the high court. That’s when everything starts to go all Real Housewives. There was a very brief honeymoon period in which all four scorpions signed off on a Frankfurter opinion in which the court sided against Jehovah’s Witnesses who were expelled from school for refusing to salute the flag. But the blowback was terrible, including a wave of anti-Jehovah’s Witness violence in 1940. Douglas and Black soon realized they’d been in error. And not long after that the wheels came off. Between boundless egos and overwhelming personal ambition, members of FDR’s liberal dream team ended up largely loathing one another. To add constitutional insult to injury, two of the guiding constitutional philosophies these New Deal liberals ultimately produced—Frankfurter’s devotion to judicial restraint and Black’s fealty to “original intent”—are now the lodestars of the court’s conservative wing.
Jackson wanted only to be named chief justice. Douglas was single-mindedly focused on being elected to higher office, which drove Frankfurter and Jackson nearly crazy. Then Black refused to recuse himself in a case brought by his former law partner, and so Jackson very publicly called him out for it. Frankfurter came to loathe Douglas, calling him one of the “two completely evil men I have ever met.” Douglas called Frankfurter “der Fuehrer.” To the extent that there is a happy ending to all this, it is the fact that the four managed to come together in 1954 to achieve a unanimous result in Brown v. Board of Education, the high-water mark of progressive legal jurisprudence. And perhaps that is enough.
Feldman has been criticized for privileging the personalities of his great justices over their ideologies in his book, but if Scorpions has anything to teach about judicial philosophy, it’s that personality and conflict can sometimes overmaster ideology. Perhaps these four great men could never have overcome their marked philosophical differences to work together—although their strained cooperation in Brown suggests otherwise. But with his emphasis on petty grudges, inflexibility, egos, and public barbs and humiliations, Feldman reminds us that sometimes intellectual greatness just isn’t enough to get you five votes for anything.
Feldman’s surprising conclusion is that these four competing and irreconcilable constitutional theories were in fact more than enough: The lengthy, fretful case conferences may not have been pleasant or even all that fruitful, but they created an “ideal set of conditions for the emergence of comprehensive theories of constitutional law.” Notes Feldman of his four jurists: “Their greatness came to pass precisely because each went his own way, each developing a constitutional vision distinctive to his own personality and worldview.” In Feldman’s eyes, while ideological consensus can be a worthy goal, “the justices of the Roosevelt Court also demonstrate that agreement is not the most important value for the members of the institution charged with interpreting the Constitution.” Feldman ultimately prefers four robust, even conflicting views of progressive jurisprudential theory to a unitary theory that answers every question every time.
The case that’s most emblematic of this conclusion is Brown itself, which was born of a hodgepodge of half-realized theories and compromised values. Writes Feldman, “Liberal and results-driven, it was shaped by Black’s moral clarity, Frankfurter’s aspiration to judicial leadership, Douglas’ political instincts and Jackson’s frank pragmatism.” Acknowledging that the patchwork result was “confusing” and “incoherent” and laid the groundwork for the decades of liberal constitutional turmoil that followed, Feldman nevertheless calls it the greatest accomplishment of the Roosevelt justices. They may not have provided a coherent game plan for progressive justices who followed, but their combined ideas continue to occupy the field.
In his thoughtful review, professor Jeremy Rabkin concludes that by failing to put his philosophical money on any one of these four competing theories, Feldman proves that “what liberals are mainly selling is nostalgia.” Perhaps. Or perhaps what Feldman is suggesting is that the decades-long search for a single, simple, unified progressive constitutional theory—a theory to rival the tidiness of originalism or strict construction—is misplaced. Perhaps the country is better off—and the Constitution itself is better off—with less intellectual tidiness and more philosophical struggle. It’s hardly clear that this kind of constitutional messiness is ever going to be good for liberals. Feldman’s point, I think, is that it’s good for the Constitution.