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

by Noah Feldman

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IPLE I: Non-Fiction Book Review Project
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices is a masterful effort by author Noah Feldman.
Feldman attempts to encompass Franklin D. Roosevelt’s pres Sean Cannon is reading this book.

IPLE I: Non-Fiction Book Review Project
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices is a masterful effort by author Noah Feldman.
Feldman attempts to encompass Franklin D. Roosevelt’s presidency from the perspective of his Supreme Court nominees. Given that FDR served as president for more than 12 years (an impossibility for modern Presidents given the 22nd Amendment), he had the unique ability to name all nine Justices to the Court. That said, Roosevelt’s legacy, vis-à-vis the Court, was mixed because of the personalities involved. Roosevelt’s appointments reflected the fact that, while President’s have the ability to name people to the Court, they don’t have the ability to control what happens to those nominees once they are confirmed by the Senate. Despite all political inclinations during the nomination process, once a nominee goes before the Senate Judiciary Committee (and then the full Senate), any Supreme Court nominee is at the will of the political process. (See Robert Bork, as in the verb “to Bork”) and then is able to “evolve” however he or she evolves.
“Scorpions” spends the first third of the book focusing on each of Roosevelt’s Supreme Court nominees. He takes care to detail how and why each nominee is eventually confirmed by the Senate. He takes pains to explain how and why Roosevelt chose his candidates for the Court. Feldman does a great job in showing how political each nomination was decided upon and how Roosevelt’s inner circle was intimately involved in not only the decision to choose a particular nominee, but how hard FDR’s people had to work in order to get them confirmed. To put this in context, just take a look at the election results of the 1932, 1936, 1940 and 1944 elections. Roosevelt won 1932 in a cake-walk, not surprising given the economic climate. His re-election in 1936 resulted in an even greater electoral victory (as well as giving FDR an overwhelming advantage in the House and the Senate).
Feldman eviscerates FDR in regards to his Court-packing plan. Feldman’s account is masterful in this regard. Feldman takes pain to expose FDR for his naked attempt at securing dominion over all three branches of government. The author’s exposition on West Coast Hotel Co. v. Parrish shows just how the Court danced a very careful dance in the run-up to the Court Packing Plan. Justice Roberts decision helped to secure for the liberals on the Court a decision that gave President Roosevelt a reason to back off of his Court Packing Plan. Feldman describes at length why Justice Roberts decided how he did.
One of the more interesting parts of the book was Feldman’s descriptions of the Justices themselves. What was interesting about the Justices was Feldman’s incisive descriptions of how they longed to emulate their judicial heroes. With Brandeis’ death, Felix Frankfurter didn’t have a living protégé for the Court. “Frankfurter had set out to become what Brandeis and Holmes were, or rather what he had helped make them: mythical embodiments of their constitutional ideals.” (p. 210) This was a recurring feature of Roosevelt’s Supreme Court nominees.
Feldman’s writing engenders a number of questions that deserve to be addressed. One of the most interesting (and politically charged) was involved the relationship between Felix Frankfurter (one of FDR’s confidents) and Roosevelt himself. A President will, ideally, avoid intimate relations with Supreme Court members because he wishes to avoid the appearance of impropriety. Roosevelt was not concerned. He felt that, given the situation, the President should be given as much leeway as possible.
This brings us to the question of Constitutional interpretation. Is the Constitution a living document or is it an 18th Century document that gives the Government the ability to limit citizens to a handful of rights? One of the questions that Feldman pondered was related to Jackson’s history with the Nuremburg Trials. Was Jackson involved in the trials simply to feather his own bed or was it because Jackson believed that Nazis were guilty of “crimes against humanity” and therefore the Court needed to represent America’s voice? If the latter were the case, Feldman argues that Jackson greatly stretched the boundary of traditional jurisprudence by participating in the trials. Feldman goes even further to suggest that for the sake of national security, the precedent of the Nuremberg Trials needs to be overturned. “As a legal argument, this claim was exceedingly weak. If so important a nation as Germany had failed to realize that a new rule of customary law was coming into effect, this was evidence that the custom was not general, and therefore should not be treated as law. As a pragmatic argument to justify the tribunal’s undertaking, however, Jackson’s argument made perfect sense. By holding the Nazi leaders liable for a crime that may not have been fully recognized before the war, the tribunal would definitely establish aggressive war as a crime for the future.” (p. 282) Here, Feldman fails to extrapolate this logic by discussing the Afghan and Iraq wars of the Bush Administration. While the book is about FDR’s important Court appointees, Feldman left dangling the very intriguing notion that Jackson’s participation in the Nuremberg Trials set a precedent so firm that Bush Administration officials, held to the same standard as members of the Nazi regime, the US would today be liable for prosecution under an international tribunal such as The Hague.
In leaving this argument unstated, Feldman perhaps shows his own bias. A cursory reading of the book would suggest that Feldman was a fan not only of the Roosevelt Administration, but of liberalism in general. That indeed may be Feldman’s position. However, in not discussing the ramifications of Jackson’s participation in the Nuremberg Trials, Feldman left himself open to criticism. Feldman’s focus on Brown v Board with its “unoriginalist” logical reasoning leads one to believe that Feldman was ambivalent at best in criticizing the conservative wing of the current Court. “But the fact that even Bork found it necessary to say that Brown was rightly decided indicates the leading position that the case assumed in the hierarchy of American constitutional thought.” (p. 406) It is almost as if Feldman is saddened by Brown’s outcome. ...more "

May 13, 2012 09:38AM · see review