A Writ of Certiorari
By Noah Feldman
Twelve, Hachette Book Group, 2010
In American society, the United States Supreme Court is the most ubiquitous yet most mysterious branch of the Federal Government. Who may use what buildings? What are one’s rights upon arrest? Who may secretly listen in on your telephone conversations? These are all questions that have been decided by the Supreme Court and all are vital to American’s personal lives.
The Court is also the least democratic of the branches and throughout its history has regularly found itself on the wrong side of popular opinion, and since the Court is the last appeal, most of the important social issues in the American culture wars eventually come there for resolution.
In recent years it seems the Court has permanently relocated to the heart of controversy. It has overturned a century of campaign finance lawit has decided police could perform cavity searches of arrested persons whenever they choose; and it surprised everybody by holding that the much maligned Affordable Care Act was constitutional. Court watchers can also be reasonably confident that the Court will again find itself under scrutiny when the Defense of Marriage Act, now being argued in Federal Circuit Court, winds its way to the nine Justices.
But the finality of its rulings and its undemocratic nature aren’t the only reasons many view the Court with suspicion. Like cardinals in conclave, the cloistered nature of the business colors the men and women who give life to the institution, which creates a sense of separation between them and the rest of the American people.
But with all the copy dedicated to arguing the substance of the court’s decisions, or warning about the agenda of activist judges, or lionizing individual Justices, there has been relatively little verbiage dedicated to examining the interpersonal dynamics of the institution. Bob Woodward’s The Brethren and Jeffrey Toobin’s The Nine are the recent standouts in this field, and Noah Feldman’s Scorpions, now in paperback, hopes turn this short list into a troika.
To start, it’s worth noting that the cover design chosen for Scorpions could hardly have been more apt and it immediately identifies a main theme running through the book. Along the bottom of the front cover appear the pictures of four rather ordinary-looking men: Felix Frankfurter, Robert Jackson, Hugo Black and William Douglas. Looming above them, larger than life, floats Franklin Roosevelt. Unlike the previously mentioned studies of the Burger Court or the Rehnquist Court, it quickly becomes apparent in Scorpions that any study of the Roosevelt Court is inextricably mixed up with Franklin Roosevelt and the long shadow he casts on American history. (Please Note: all references to “the Roosevelt Court” or “Roosevelt’s justices” should be understood to refer to Hugo Black, Felix Frankfurter, Robert Jackson and William Douglas for the purposes of this review.)
Roosevelt’s was a revolutionary presidency, unprecedented in its energy and the scope of its transformative initiatives. Roosevelt’s programs attempted to raise the nation from the ruins of laissez faire capitalism. In the near vacuum created by the shock of the stock market crash and the paralysis of the Hoover Administration, few of the old socio-economic norms seemed to hold anymore. Swept forward by waves of popular discontent, the elective branches of government were birthing a new politics in the 1930’s. Conflicts would quickly rise between the Executive and Legislative branches while the Supreme Court, insulated from popular pressure, remained anchored in the past.
The Court, through twisted interpretations of the Fourteenth Amendment – a change in the Constitution following the Civil War intended to provide citizenship to former slaves and to constitutionally ensure citizens’ due process and equal protection under the law – stymied national reform movements for most of the late nineteenth and early twentieth centuries. During this time, laws which supported the worker’s rights or attempted to restrain the wild excesses of Gilded Age capitalism through the establishment of financial or labor regulations were struck down by the rationale that they violated the individual’s “liberty of contract.” Over a four-decade period, the Court consistently invalidated numerous state and federal measures that tried to improve workplace safety, establish a minimum wage or maximum hours and even overturned child labor laws. The “liberty of contract” argument advanced by the Court at its best might be judged a heady assertion of the autonomous individual’s right to pursue happiness within a free society that basically misunderstood the new and powerful social forces unleashed by industrialization and the imbalance of power between wage earners and the captains of industry or, at its worst could be seen as a cynical attempt to codify an economic ideology that served the interests of the wealthy and influential while abandoning the great unwashed to a form of economic serfdom.
However, come 1933 only one thing was for certain: it would only be a matter of time until the Court and the New Deal collided. The Court struck at the New Deal in 1935 and 1936 when the National Industrial Recovery Act, a program designed to stimulate the economy by granting the president the power to regulate industry and institute a national work program – and the similarly-designed Agricultural Adjustment Act, were declared unconstitutional. These had been cornerstones of FDR’s reform efforts, and they now stood on their head because of perceived violations to individual property rights.
The Court had now blocked two signature reforms of the early New Deal. In essence, it was telling the president of the United States that it did not matter that the legislature passed his reform bills, that he had signed them into law, and that they had been designed to save the country from economic disaster. The changes to the systems were too fundamental, and the Court was going to prevent them from being enforced.
Feldman recognizes that Roosevelt’s basic conception of the Supreme Court was that it was a political body (despite its protests to the contrary) and if it wouldn’t do business with him, he’d simply have to change the composition of that body.
The Roosevelt Administration had an answer to the constitutional arguments against its reforms. The right to free speech, privacy, and property were being invoked by the richest members of society in order to protect the system that they had created and from which they profited. The courts, by purporting to enforce these rights, were really using them as an excuse to stand in the way of change. That made the courts into enemies of the people.
His proposed remedy to this “evil” was his infamous court-packing scheme, which even ardent FDR admirers would have to admit was a naked power grab that would have fundamentally undermined the separation of powers as laid out in the Constitution and could have possibly eradicated an independent judiciary in any meaningful sense. The plan was simple: using the advanced age of many on the federal bench as a pretext, FDR proposed that Congress allow the President to appoint new judges for each federal judge over the age of seventy, translating to a total of six new Supreme Court Justices. Many in and out of Washington balked at the maneuver and the initiative died in congressional committees.
Regardless of its failure, the short term effect of the court-packing scheme was to make the Court more malleable, enough so that it upheld New Deal legislation in a series of rulings in 1937. In the longer term, Roosevelt as the nation’s longest serving president was able to pack the court in more traditional ways, eventually appointing more than twice as many federal judges than anyone before or since, including 8 Justices to the highest court in the land.
Through the first half of Scorpions Feldman begins the process of tying several different threads of history together. The preceding paragraphs represent the central legal theme he presents but he offers the reader several others. Roosevelt is the eye of the hurricane but in not the storm itself. He may be at the center of Feldman’s history but despite his centrality to it, the story being told is really about Felix Frankfurter, Hugo Black, William O. Douglas and Robert Jackson, four of Roosevelt’s appointments to the Supreme Court.
Each of these four men’s life stories run parallel through Scorpions and familiar themes run through each: all from humble origins, all self made men, all were ambitious, some of them were brilliant but all were saddled with the prickliness derived from the insecurities that always seems to beset novi homines.
Frankfurter was an immigrant who co-founded the ACLU and rose to be America’s leading liberal jurist of the 1920’s and ‘30’s. Black was a one-time Klansman and populist Senator from Alabama and a co-opted supporter of the New Deal. Douglas rose to the head of Securities and Exchange Commission who’s name would be floated in presidential politics for two decades. Jackson was arguably the closest to Roosevelt and served as both Solicitor General and Attorney General before as a sitting Justice, leading to the American prosecutorial team at Nuremburg.
On its face, the appointment of these four justices should have formed a core around which a new liberal consensus could crystallize, shifting the country’s ideological paradigm for years to come. However, each of the Justice’s brought their own ideas about what liberalism was and cultivated their own jurisprudence over the thirteen years they would serve together.
As the nation’s leading liberal jurist Felix Frankfurter had watched the Supreme Court swat down progressive legislation for years. This colored his ideas about how the Court should ideally behave and contributed to the development of his preferred constitutional theory: judicial restraint. In practice this was tantamount to judicial deference to the elected branches of government and the belief that the court should not seek to supplant those judgments with its own, except in clear cut instances.
The Supreme Court in 1937
Feldman credits Hugo Black as, “the inventor of [Constitutional] originalism,” a view which holds that one must understand the text of the Constitution as it would have been understood at the time of its writing. A good example provided by Feldman comes from one of Black’s dissents where he tries to view the issue through the eyes of a radical Republican from 1866,
“I do not believe the word ‘person’ in the Fourteenth Amendment includes corporations,” Black wrote. To include corporations was to invent new rights, new rights that had “a revolutionary effect on our form of government.”
Douglas was a proponent of a theory known as legal realism. Realists essentially believed that law did not exist separately from the pressures of the political world, or as Feldman puts it, “law was not what judges said in formal rulings…law consisted in what legal actors actually did in the real world…social, psychological, and especially economic forces determined results…the notion that law was a neutral, scientific system…was an elaborate cover for enforcing the preferences of those in power.”
Robert Jackson was a centrist, though his constitutional philosophy was similar to Douglas’s. However, Feldman tells us,
the views diverged… As a legal realist Douglas believed that since the Court would inevitably impose its own preferences in any given situation, it should have no qualms about explicitly doing so. By contrast, Jackson from the outset believed that the job of the Court was… to mediate practically among different interest groups in hope of preserving a balance.
Here Feldman captures the ideological tensions undercutting the unity of the new liberal Justices.
On one hand, liberals were heirs to a tradition that valued free expression and basic rights… The American Civil Liberties Union had been founded to stand against [repressive actions of] the state. Brandeis and Holmes had written great opinions trying to protect free speech and Roosevelt’s liberal justices considered these men heroes. Seen against the backdrop of this past, liberalism favored robust judicial protection of civil liberties.
On the other hand, the liberals distrusted courts’ intervention into controversial legislative decisions. The conservative Supreme Court had framed its property-protecting measures in terms of individual rights. That had given judicial rights activism a bad name. According to the theory of judicial restraint, judges should not interfere with the orderly political process, reflecting as it did the will of the people. It therefore seemed possible that liberals could favor civil liberties without believing that the judges were the right people to guarantee them.
These fractious perspectives help explain why the Court struggled to establish a consistent judicial philosophy in its early rulings. One of the very first cases these Justices heard together, Minerville School District v. Gobitis, provides a great example: in an 8-1 vote the Court, following Frankfurter’s lead (and the philosophy of judicial restraint), held that the state did not have to excuse Jehovah’s Witnesses attending public school from saluting the flag or reciting the pledge of allegiance on religious grounds. But just three years later Jackson, Black, and Douglas lead the Court to reverse direction and in a 6 to 3 vote in West Virginia State Board of Education v. Barnette ruled that the state did not possess the authority to compel Jehovah’s Witnesses or anybody else to salute the flag or perform any other kind of speech. This was a complete repudiation of Frankfurter’s judicial restraint and his bid for liberal leadership within the court.
While Roosevelt lived, his justices’ personal and intellectual animosities were tempered by mutual respect for the President and what consensuses they achieved were in cases that deferred to and augmented the executive branch’s power. In two rulings, Korematsu v. United States (which allowed Japanese internment) and Ex parte Quirin (where German saboteurs were denied a civil trial in favor of military tribunals) the Court effectively rejected that the judiciary had the standing to sit in judgment of a president’s military decisions during wartime. The writing of Justice Jackson relating to Quirin has been especially relevant in the last decade as it has been used to justify the enactment of a military tribunal system for trying “enemy combatants” in Guantanamo Bay by President George W. Bush.
Feldman notes that after the war, “With the man who had chosen them gone, Roosevelt’s justices were poised to splinter in full public view,” and it is with Roosevelt’s death in 1945 the centripetal force gingerly holding the Court together disappears.
As Roosevelt’s justices begin to argue, squabble and insult each other as they pursue their individual legacies, Feldman’s storytelling becomes gossipy and small. Doubtless, something of this sort is inevitable as the narrative can only reflect the churlish and petty behavior of the men he’s writing about. But what truly sinks the value of Scorpions is the selection of the 1954 Brown v. Kansas Board of Education decision as the Roosevelt Court’s defining moment and ultimate redemption.
Brown is possibly the most important decision of the last 100 years but by 1954 the Court was not only divided between Black and Douglas and Frankfurter and Jackson but the composition of the Court was changing. Earl Warren, a former district attorney, three-term California Governor, and an Eisenhower appointee was made Chief Justice and brought to the job fluid political leadership. Warren was able to obtain consensus from division and achieved a unanimous decision in Brown that put an end to de jure racial segregation in the United States.
What’s important to recognize is that while technically Brown was one of the last cases Roosevelt’s Justices decided together, it was no longer their Court. The appointment of Earl Warren marked a sea change for the Court, where it takes off on a new historical trajectory, cutting Feldman’s hypothesis off at the knees. For good or ill, the Warren Court is recognized as a unique moment in the Court’s history where it used its power for positive social change as opposed to the preservation of the status quo. Even if some of Roosevelt’s Scorpions lent a hand in the Brown decision, Feldman cannot appropriate the achievements of a subsequent era to add luster to his subject matter. They can be credited in helping to begin an incredible stretch of cases that expanded equality, individual liberty, and democracy itself but these achievements more properly belong to the Warren Court and its heirs.
In the end, Roosevelt’s Court oversaw years of transition – years between the end of the conservative, static, Lochner Era and the liberal, dynamic Warren Era. Roosevelt’s Justices’ place in history is best seen as a bridge between these two poles and they are important for the leadership they provided, however fragmented, in steering the Court through a judicial wilderness in which values and judgments were changing almost as rapidly as the world around them.
Thomas J. Daly is a frequent Open Letters contributor living in Boston.