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

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

Author: Noah Feldman
Publisher: The History Press
Copyright: 2010
Pages: 513
Cover Price: $ 30.00

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As a conservative Supreme Court flexes its muscles against a Democratic president for the first time since the New Deal, a series of recent books has explored the constitutional battles of the Roosevelt era and their contemporary relevance. Harvard law professor Feldman's Scorpions focuses more on the battles of the 1940s and 1950s, and it is distinguished by its thesis that the "distinctive constitutional theories" of Roosevelt's four greatest justices, all of whom began as New Deal liberals--Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson--have continued to "cover the whole field of constitutional thought" up to the present day.

Feldman argues that Black, the liberal originalist; Douglas, the activist libertarian; Frankfurter, the advocate of strenuous judicial deference; and Jackson, the pragmatist; achieved greatness by developing four unique constitutional approaches, which reflected their own personalities and worldviews, although they were able to converge on common ground in Brown v. Board of Education,which Feldman calls the last and greatest act of the Roosevelt Court. The pleasure of this book comes from Feldman's skill as a narrator of intellectual history.

With confidence and an eye for telling details, he relates the story of the backstage deliberations that contributed to the landmark decisions of the Roosevelt Court, including not onlyBrownbut also cases involving the internment of Japanese-Americans, the trial of the German saboteurs, and President Truman's seizure of the steel mills to avoid a strike. Combining the critical judgments of a legal scholar with political and narrative insight, Feldman is especially good in describing how the clashing personalities and philosophies of his four protagonists were reflected in their negotiations and final opinions; his concise accounts of Brown and the steel seizure case, for example, are memorable. And he describes how the rivalries and personality clashes among the four liberal allies eventually drove them apart: Hugo Black's determination to take revenge on those who offended his Southern sense of honor led him to retaliate not only against Jackson and Chief Justice Harlan Fiske Stone but also against the racist Southerners who had disclosed his former Ku Klux Klan membership to the press.

Not all readers will be convinced by Feldman's thesis that the judicial philosophies of the Roosevelt justices continue to define the Court's terms of debate today: on the left and the right, there are, for example, no advocates of Frankfurter's near-complete judicial abstinence or of Douglas's romantic libertarian activism. And in the political arena, the constitutional debates of the 1940s and '50s seem less relevant today than those of the Progressive era, when liberals first attacked the conservative Court as pro-business, and conservatives insisted that only the Court could defend liberty in the face of an out-of-control regulatory state. But Feldman does not try to make too much of the contemporary relevance of the battles he describes: this is a first-rate work of narrative history that succeeds in bringing the intellectual and political battles of the post-Roosevelt Court vividly to life.

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Background Information

The Supreme Court is the highest judicial body in the country, and judges the actions of citizens and governments alike on the basis of the Constitution. Franklin D. Roosevelt declared that he would deliver a New Deal, which became the name for his anti-Depression programs. The Democratic Party formed around Andrew Jackson in 1828 as the party representing the frontier and the common man. The principle of "separate but equal" education, a mainstay of segregation in the Deep South, was overturned by the Supreme court in the case of Brown v. Board of Education. After the outbreak of World War II, anti-Japanese feeling was intense on the West Coast and Japanese-Americans were interned for the duration of the conflict. Harry S. Truman of Missouri was FDR's surprising choice for vice-president in 1944 and became president upon Roosevelt's death in 1945. The Ku Klux Klan has seen three phases, with the most recent occuring after World War II to express opposition to the aims of the Civil Rights Movement. The Progressive Movement grew out of belief, following the Gilded Age, the government could and should do more to promote the common welfare.