HISTORY OCTOBER 14, 2010
by Noah Feldman
Twelve Publishing, 528 pp., $30
The scorpions in the title of Noah Feldman’s book are four Supreme Court justices appointed by Franklin Delano Roosevelt between 1937 and 1941. Felix Frankfurter, Hugo Black, Robert Jackson, and William Douglas were frequently petty and vindictive in their dealings with each other—yes, like scorpions in a bottle—but they also left significant legacies in constitutional law.
The pre-New Deal era Supreme Court, referred to as the Lochner Court after one of its famous decisions, was best known for a commitment to the free market and limited government. It struck down many state and federal laws that regulated working conditions on the grounds that these laws violated people’s constitutional right to enter contracts. The Court also interpreted the constitution to grant limited powers to Congress, leaving state governments with primary responsibility for regulating economic and social conditions.
These doctrines did not auger well for the New Deal program of national economic regulation. The court struck down some central New Deal statutes, and several others hung in the balance. To defend the New Deal, Roosevelt tried to push through a law that increased the number of Supreme Court justices so that he would be able to appoint a majority. The law was never enacted but in the meantime, one justice changed his vote in these cases. The anti-New Deal coalition was now outnumbered 5 to 4.
That same year, 1937, a retirement presented the president with the chance to appoint his first justice. Roosevelt wanted someone who would uphold New Deal legislation and he could do this by appointing a committed New Dealer such as Hugo Black. He ended up appointing eight justices. These appointments, along with the political popularity of Roosevelt and his New Deal, killed Lochnerism—the clearest and most famous example of the way politics ultimately shapes the constitution.
The era of Supreme Court adjudication described by Feldman roughly extends from 1937, the demise of Lochnerism, to 1953, the beginning of the Warren Court. The Lochner court and the Warren court feared the mob—in the former case, this meant the fear that it would violate the rights of property holders; in the latter case, that it would violate the rights of minorities. No one has honored the in-between era with a name. With the benefit of hindsight, it looks like a transitional period, during which the court confirmed its rejection of Lochnerism—it became clear that national economic regulations would never be struck down—but could not reach a consensus on what would replace it.
The Scorpions had some things in common, Feldman informs us. All four were New Deal liberals. Frankfurter was a close advisor to Roosevelt; Jackson and Douglas held high positions in the administration; and Black was a populist senator from Alabama who shared the president’s goals. All of them opposed the Supreme Court’s obstruction of New Deal legislation, which ended before they joined the Court. Most interestingly, and unlike Roosevelt, all were self-made men. Frankfurter was a Jew and an immigrant at a time of anti-Semitism. Jackson began his career as an obscure country lawyer. Douglas endured an impoverished childhood out West. Black, a Southerner, also grew up in modest circumstances. None received a fancy law school education except Frankfurter, who distinguished himself at Harvard Law School. All were intelligent, public-spirited, and intensely ambitious men.
Frankfurter, and to a lesser extent Jackson, believed in judicial restraint—the doctrine that courts should generally uphold statutes on the ground that legislatures, which unlike courts enjoy democratic accountability, should work out constitutional values. Judicial restraint seemed like a logical response to Lochnerism. The New Deal critics of Lochnerism had accused the Lochner justices of implementing their right-wing political preferences rather than upholding the law.
Black and Douglas believed that judges had little obligation to respect the views of other branches with respect to constitutional questions, a position inconsistent with judicial restraint as Frankfurter understood it. They thought that justices should strike down statutes that violated constitutional values. The Lochner Court was correct in this respect; but it identified the wrong constitutional values. The Constitution does not protect markets; it protected liberty and equality.
Each position was open to objection. Judicial restraint was in tension with a long history of judicial invalidation of statutes on constitutional grounds, and for all the unpopularity of the Lochner Court, there did seem to be a strong demand—among the general public and powerful elites—for a court willing to strike down bad laws.
Judicial activism of the Black-Douglas type often seemed to be little more than judicial legislation. Black and Douglas struck down statutes that offended their liberal commitments, opening them up to the charge that they were no more principled than the Lochner justices. This criticism was accurate as applied to Douglas, who was cynical about constitutional adjudication. Black, by contrast, tried hard to justify his decisions on the basis of constitutional norms. But his ideas never gelled: sometimes he argued that the constitution should be interpreted as the founders intended it to be understood, and at other times he argued that the Constitution should be interpreted in a literal fashion.
The four justices disagreed in important cases. Frankfurter and Jackson voted to uphold the conviction of Eugene Dennis for espousing communist teachings; but Black and Douglas voted to reverse on First Amendment grounds. In another set of cases, Black and Douglas argued that the Bill of Rights applied to the states even though they had previously been interpreted to apply only to the federal government; but Frankfurter disagreed. Black’s and Douglas’s view (mostly) prevailed, allowing the Supreme Court to reform the racist criminal justice systems of the southern states. (To be sure, the four justices did not always disagree: their most famous moment of unity was Brown v. Board of Education, which struck down segregation in schools.)
The reputations of the Scorpions have changed with the times. Liberal law professors and legal historians celebrated Black and Douglas for anticipating, and then participating in, an era of liberal judicial activism that began in 1953 when Earl Warren became the chief justice of the Supreme Court, and ended in the early 1970s. Whatever the merits of judicial restraint, Frankfurter and Jackson were on the wrong side of history with respect to the two big postwar issues—McCarthyism and race. Indeed, the philosophy of judicial restraint was appropriated by beleaguered conservatives who hoped to stem the tide of liberal activism. In recent years, however, the conservative activism of the Rehnquist and Roberts courts has awakened law professors to the virtues of judicial restraint. Suddenly, Frankfurter and Jackson seem less objectionable. Frankfurter showed real self-discipline when so many justices seem merely to vote their policy preferences.
Jackson is admired for his candor and eloquence. Black’s originalism lost favor when it was hitched to the horse and buggy of conservative jurisprudence, and his textual literalism is incoherent. But he did appear to take his judicial role seriously. Douglas did not, which rankles even those law professors who admire the liberal outcomes of his decisions in cases involving privacy and the environment.
Our view of these men is also a reflection of their unappealing personalities. Frankfurter was a schemer and a windbag, Jackson was remote and friendless, Douglas was mean-spirited and egocentric, and Black, who had joined the Klan to get ahead in Alabama politics and then quickly exited it, had a vindictive streak. Feldman relates the tedious details of their paltry feuds and personal foibles with inexplicable relish.
He is also fascinated with the question of why four men who resembled each other in many ways should later come to embody distinctive judicial philosophies. His speculations are sometimes plausible, sometimes not, but in general add little that is new to longstanding debates.
Frankfurter and Jackson worried about social conflict; they were more conservative than Black and Douglas even though they supported the New Deal—a big tent if there ever was one—and otherwise had a liberal outlook for the time. Political scientists like to argue that judicial decisions simply reflect the policy preferences of judges, and nothing in Feldman’s book casts doubt on this wisdom. Black turned out to be the most influential justice of the era because he was lucky enough to have four or more colleagues whose political preferences frequently coincided with his. Douglas, farther to the left, often wrote alone.
The men had different backgrounds, but their backgrounds shed only a little light on their judicial philosophies. Law was central to Frankfurter’s identity—he was a law professor—and Jackson was an experienced trial lawyer, while Black was a politician, and Douglas a kind of politician-technocrat. So one might think that Black and Douglas would have been more willing to flout legal precedent to advance a political agenda than Frankfurter and Jackson. This was true about Douglas, but Black did take legal argument seriously. Meanwhile, Frankfurter sought to downgrade the role of the supreme court, and Jackson’s approach was pragmatic rather than legalistic.
Feldman does not pursue these lines of inquiry vigorously. He prefers to expound on the legacy of the justices. But inconsistencies in his discussion betray a confusion about the nature of judicial greatness. In some places Feldman criticizes the justices for failing to advance liberal political goals (great=liberal); in other places he criticizes them for making up the law to suit their political preferences (great=impartial). Feldman is hardly alone in this respect: this is a central failing of constitutional law scholarship. All that is clear is that the justices’ disagreements shaped constitutional debate for decades (thanks in part to a cadre of worshipful judicial clerks who later became professors). Whether for good or for ill, is hard to say.
For a general audience, Feldman’s book might provide a useful introduction to some of the main currents of constitutional thought. The historical background and the biographical detail bring to life ideas which have been sucked dry by the endless debate over the roles of the constitution and the Supreme Court in American life. Feldman is a competent and clear if not always fluent writer, with an occasional penchant for bloviation (“To interpret the Constitution by one’s own best lights is to be an American”). The gratuitous celebratory tone of a book that dwells on the flaws of its subjects detracts from its persuasive force. Feldman is too good an academic to write hagiographies, but his best instincts sometimes fail him.
Eric A. Posner is a professor at the University of Chicago Law School.