Scorpions

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

By: Noah Feldman

Narrated by: Cotter Smith

Length: 14 hrs and 38 mins

Publisher's summary

A tiny, ebullient Jew who started as America's leading liberal and ended as its most famous judicial conservative. A Klansman who became an absolutist advocate of free speech and civil rights. A backcountry lawyer who started off trying cases about cows and went on to conduct the most important international trial ever. A self-invented, tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.

Four more different men could hardly be imagined. Yet they had certain things in common. Each was a self-made man who came from humble beginnings on the edge of poverty. Each had driving ambition and a will to succeed. Each was, in his own way, a genius. They began as close allies and friends of FDR, but the quest to shape a new Constitution led them to competition and sometimes outright warfare.

Scorpions tells the story of these four great justices: their relationship with Roosevelt, with each other, and with the turbulent world of the Great Depression, World War II, and the Cold War. It also serves as a history of the modern Constitution itself.

©2010 Noah Feldman (P)2010 Hachette Audio

A MOST HONOURABLE SWANSONG

‘The Supreme Court is 9 scorpions in a bottle’—Alexander Bickel, law clerk to Justice Frankfurter 1952-53.

Of these 9 Justices (all FDR appointees) Hugo Black, Felix Frankfurter, William Douglas and Robert Jackson would become great Justices. This audio book is dedicated to them. They were allies and close associates of FDR, contributed in essential ways to FDR’s New Deal, were all influenced by Justice Louis Brandeis, had taken on Wall Street and considered themselves liberals. Eventually their visions would diverge, their personalities would clash and they would become enemies. Each with his own theory about how to understand the constitution, they nevertheless reinvented this document, albeit along 4 diverging paths.

Black hailed from the Deep South and obtained his seat as Senator by wooing the KKK, even becoming a member—an association which dogged his Supreme Court appointment. He had a stint on the Bench as Magistrate in a Birmingham Police Court handling misdemeanours. For all his past KKK associations, he became a Supreme Court Justice who espoused noble human causes, most notably in the field of free speech. He maintained an absolutist view in this regard, i.e., Congress shall make NO law abridging free speech; the Constitution says NO law, and this means NO law.

Frankfurter, an Austrian born Jew arrived in the US aged 12 without a stitch of English. A Harvard law Professor, he had been, before his appointment to the Supreme Court the country’s foremost liberal, but he would become the leading Conservative on the Bench.

Douglas left his post as Yale law Professor to join the SEC, and became an adviser and friend of FDR. Douglas had Presidential aspirations and narrowly missed the Presidency. He became the most unabashedly liberal, results driven Justice ever to have sat on the Supreme Court.

Jackson, a back country lawyer, started off trying cases about cows. He was appointed Solicitor-General, and thereafter Attorney-General by FDR and played a seminal role advising the President on the legality of aiding the UK during WWII at a juncture when such assistance might have jeopardised America’s neutrality—Congress also having barred such assistance He would take an unprecedented leave of absence as Supreme Court Justice to conduct the most important International Criminal trial ever as Chief Prosecutor at Nuremburg.

Between 1937 and 1939 FDR appointed Black, Frankfurter and Douglas. In 1940 the Court had to decide on the legality of the expulsion from school of 2 Jehovah’s Witness siblings for refusing to salute the flag on religious grounds. In an opinion written by Frankfurter (Black and Douglas concurring), the Court upheld the school’s decision.

Jackson was appointed in 1941. The 4 Justices sat together for the 1st in the case of 8 German saboteurs. The Court, in a single unanimous order, had rejected their objection to a trial before a Military Commission. Their opinion would be delivered after the execution of 6 saboteurs. The Military Commission had not followed the Congressional Articles of War Rules, also FDR ordered that no court would have the authority to review the verdict. The Justices were hard-pressed to give a unanimous opinion as they had acted highly unusually by summarily approving the Military Commission. The Court might be embarrassed if it turned out that there were good reasons to doubt the constitutionality of the trial—6 defendants having already been executed already. Black felt that FDR had overstepped the bounds. Jackson disagreed, maintaining that the Court had no business reviewing FDR's decision. Frankfurter intervened proposing his judicial restraint punch-line: it is a wise requirement of Courts not to get into needless rows with other branches of Government by talking about things that need not be talked about if the a case can be disposed of with intellectual self-respect on grounds that do not raise such rows. Following Frankfurter’s circulation, the Justices decided not to make the disagreements public, the Court thereby showing war-time loyalty to FDR.

In 1943 the Government tried to strip the secretary of the Communist Party, California of citizenship. Frankfurter who was, like the defendant, a naturalised Jew, and whose Americanism had replaced his Judaism, and who lived the creed of a convert who is more zealous than one born to the faith, would have no truck with the Communist’s purported unpatriotic activities. The majority of the Court disagreed and Frankfurter was left to join in the dissenting opinion by Stone CJ.

In a case concerning the Jehovah’s Witness right to be exempt from a tax on the distribution on pamphlets, Black, Douglas and Murphy filed an unusual dissent, openly regretting their earlier votes in the 1940 flag salute-case. A year later the Court overturned Frankfurter’s judgment. In an opinion written by Jackson (not on the Court when the 1st case had been decided) the court held that the children should be protected against having to declare a believe which they did not hold. Frankfurter took the reversal of his opinion as a personal and professional calamity, especially because Jackson used the flag salute as a metaphor for Nazi’s oppression of Jews. Frankfurter responded with the most agonised and agonising opinion recorded anywhere in the US reports, defending his jurisprudence, liberalism and Jewishness. Several Justices unsuccessfully begged him not to publish the opening lines of his opinion expressing these sentiments which they thought too personal.

In the 1950 German radio operators case the Court had to deliberate an issue that would resonate 60 years later in the Guantanamo detentions: ‘Did the power of the US Courts extend overseas to protect persons who are not US citizens, yet have been tried under the auspices of the US Government?’ Jackson replied in the negative. Black and Douglas dissented, in favour of the principle of equal justice not for citizens alone, but for all persons coming within the ambit of US power.

In Dennis v US the defendants (Communists) were charged with violating the Smith Act. The question which the Court had to decide was whether the First Amendment permitted Congress to pass a law that in essence made it a crime to belong to the USACP. Frankfurter (applying his judicial restraint doctrine) and Jackson joined the majority in upholding the convictions. Black and Douglas dissented—Black of course expounding his absolutist free speech doctrine, which was his hallmark.

In Brown v Board of Education (1954) the Court revisited Plessy v. Ferguson (1896) in which the constitutionality of State laws applying racial segregation had been upheld on the ground of the ‘separate but equal’ doctrine. The scorpions would sit together as a quartet for the last time. It was also the 1st time these fiercely independent Justices agreed in a case of such great moment. They joined in the unanimous opinion delivered by Earl Warren CJ, striking down school segregation. FDR’s team had the opportunity to show their mettle as custodians of liberalism, and they rose in unison to the occasion in the most liberal of swansongs.

Related Audible.com books—‘The Majesty of the Law: Reflections of a Supreme Court Justice’ by Sandra Day O’ Connor, ‘The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court’ by Cliff Sloan & David Mckean and ‘Freedom for the Thought that We Hate: A Biography of the First Amendment’ by Anthony Lewis. Related material available through Amazon.com—‘The Supreme Court’ (4 DVD box set) narrated by David Strathairn.

Scorpians: behind the scenes of the Supreme Court

This was a fantastic book. Not just for fans or those interested in the Supreme Court, but to anyone who is interested in the legal history of the United States and the Supreme Court. It is amazing how the Supreme Court works and makes critical decisions that effect the lives of the entire country. The Justices cooperate, bicker, side with others, side against each other, and at times it almost comes down to using their fists, but they struggle with the unknown consequences of their decision. A great book about how F.D.R. chose his picks for the court and the impacts they left.

Narrated as admirably as it is written!

I won't attempt to review the substance of this absolutely outstanding book--for that you can find many worthy examplars at amazon.com. What I will say is that, contrary to what is stated by audible, the book is not narrated by the author (whom I have heard speak) but by someone sounding entirely different. That person, it must be said, does a fabulous job. He has a deep, authoritative, and very pleasing voice. That and the cadence and diction are just right, notwithstanding the very occasional and probably inevitable mispronounciations (as, for example, calling the Massachusetts town "STOUT-AN" and not "STOW-TON.") I simply can't recommend this audible book too highly!

Insightful and entertaining

While I enjoyed the "first part" of the book which familiarizes the reader with the main characters and their backgrounds, I found the "second part" the real joy. Well known cases with enough detail to make you comfortable with the issues and an unbiased approach to each character's role in the case. A really good listen for those interested in the Superme Court itself and, as an extra bonus, some familiar names come into play to give you an all around feel for the era and what is to come.
Sandra (Houston, Texas) 4/19/2011

Fascinating and Compelling

Not being a lawyer, I was a little hesitant about buying a book of legal history, but was intrigued from the very first sentence. Feldman writes with grace and clarity about the court that FDR built and four important justices who worked it. He describes the legal concepts and issues of the era with subtlety, yet in terms easy to grasp, and adds the juicy personal and political detail we need to understand where justices Frankfuter, Black, Jackson and Douglas came from and why they acted as they did.

I liked that he explained the different approaches to constitutional law, the crucial components of a number of important cases of the era, and included the political vectors affecting the court. This is a rich history and compelling "read".

He does a wonderful job as a narrator, too. I wish every non-fiction audiobook were read with such ease, simplicity, and complete lack of hype. Congratulations Noah Feldman!

a great work by a great scholar

Noah Feldman is an incredible scholar. This book is a wonderful story about 4 great minds--and 4 great egos--colliding with each other. It's hard to underestimate the impact that these men have had on 20th Century history and Feldman does a great job telling their stories.

Great Book- Well Written and Well Presented

This is a very well written and well narrated book. As has been pointed out by previous reviewers the book is narrated by Cotter Smith and not Professor Feldman. The book focuses on the lives of four of FDR's Supreme Court Justices- Jackson, Douglas, Frankfurter and Black- all of whom had a very significant impact on the history of the Supreme Court from the New Deal era to the current day. Professor Feldman does an excellent job discussing the backgrounds of the four justices and how their education, social and political experiences framed their view of jurisprudence. For readers who are very interested in the Supreme Court and how it has become so important in the modern day political era this is a great listen. I would also recommend that after listening to this volume, readers may also want to listen to Jeff Shesol's well written and narrated book "Supreme Power" which focuses on FDR's attempt to pack the Supreme Court. While the court packing scheme is discussed in Professor Feldman's book, it is justifiably given less space than in Mr. Shesol's book. I would strongly recommend both books. Great additions to the Audible Library

Highly reccomended!

I admit to being a bit of a Con Law obsessive. So, this is right down my ally, but I think it has a much broader appeal!

The Penumbrae in Douglas's Private Life Chaos

I read history avidly, have practiced law since 1986, and at one time or another have read most of the Supreme Court cases Dr. Feldman discusses in his book. I am in the textualist/originalist camp(s) of Constitutional interpretation myself, viewing judges who "discover" things not written in the Constitution as suspect, usurping the role of Congress or the people. Dr. Feldman is of another school and I respect his opinions because they are in the open and well supported.

Dr. Feldman is a very careful and well respected scholar (google his Harvard Law School faculty bio where he teaches). He appears to believe that the proper way to interpret the Constitution is as a "living constitution." There is more nuance to his philosophy, and I may have it wrong (he is a Harvard Constitutional Law professor and I have only read this one book of his) but a "living constitution" appears to be an important part of that philosophy.

In addition, my conclusion that Dr. Feldman supports a "living constitution" is based on his seeing a great hero for new, individual Constitutional rights in William O. Douglas who pioneered the "living constitution." Which is how Douglas in Griswold v. Connecticut located privacy rights in the "penumbra" of other individual rights in the Constitution which in turn lead to and Roe v. Wade a few years later and the judicial activist approach in recent years. (Interesting discussion in the book about judicial activism circa post-Civil War which was at the other end of the pendulum.)

Chp. 33 of the book makes one wonder about the "genius" of Douglas's living constitutional views which Dr. Feldman traces to Douglas's amoral personal life. The first Justice to divorce. Serially unfaithful with many affairs. Four divorces and marrying women decades younger than himself to whom he was also unfaithful. Dr. Feldman praises Douglas's living constitution discoveries and opines that what lead Douglas there appeared to be Douglas's "breaking the bonds of his personal obligations" and the accompanying "chaos in his personal life." This is what a scholar who supports Douglas's penumbra discoveries says.

There is much much more to the book to ponder, in every chapter. The book is worth reading at least twice. Dr. Feldman makes many shrewd, thought-worthy observations about the Court in the 1930s to 1950s which lead to the Warren Court and to which the current Court is making adjustments.

Thank you Dr. Feldman for your book. Thank you for your candor in your judgments that make it easy for someone with somewhat different views to chew on, consider, reconsider, and be able to go back to and consider again. And I will, e.g. =

1) How does Brown v. Board of Education, which I support and believe is the second most important Supreme Court decision, and possibly the result of judicial activism, square with a textualist/originalist interpretation of the Constitution?
2) Is Brown in the middle of the judicial activism pendulum and therefore excused?
3) And is there a slippery slope there to avoid?

planters and seeds of Justice(s)

Both the content and narration of Scorpions makes listening to this audio book well worth the investment.

Superbly written accessible legal history

Fascinating book written in direct and clear prose. Highly recommendable even if you have no particular interest in law.