The Roosevelt Court Divided

By the end of his fourth term in office, President Franklin Roosevelt had appointed nine justices to the U.S. Supreme Court, a number surpassed only by President George Washington. Four of FDR's picks—Hugo Black, Felix Frankfurter, William O. Douglas, and Robert Jackson—are the subject of Harvard law professor Noah Feldman's sprawling new hagiography Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. The book's subjects are certainly well-chosen, since together or apart these four men produced some of the 20th century's most consequential opinions, ranging from Justice Jackson's majority decision in Wickard v. Filburn (1942), which granted Congress nearly unlimited regulatory power under the Commerce Clause, to Justice Douglas' opinion in Griswold v. Connecticut (1965), which struck down a state law banning the sale of contraceptives to married couples and recognized the unenumerated right to privacy among the "penumbras" and "emanations" of the Constitution. It's no exaggeration to say we're living in a world shaped by their views.

Yet despite their common roots as New Deal supporters (and their reliable votes to uphold New Deal laws), the four differed wildly over legal philosophy. Justice Frankfurter, for example, championed judicial restraint, which had been the position favored by liberals whenever economic regulations came before the Court. Yet once the Court turned its attention to laws that liberals didn't support, Frankfurter's inconvenient belief in judicial deference fell out of favor. Suddenly those same liberals wanted the Court to intervene on behalf of "discrete and insular minorities," something Frankfurter wasn't so keen about.

So many on the left turned to Justice Black as their standard bearer, since he believed the Supreme Court should actively apply the protections in the Bill of Rights against the states. Yet Black had some drawbacks of his own, including his youthful membership in the Ku Klux Klan and his famous dissent in Griswold, where he rejected the idea of unenumerated rights.

In other words, there were profound legal divisions among these liberal giants. It's an essential point that Feldman manages to emphasize and yet miss at the same time. He spends hundreds of pages detailing the justices' feuds and complaints, yet never weighs in on the merits of their often diametrically opposed legal views. As George Mason law professor Jeremy Rabkin noted in a very sharp Wall Street Journal review, Feldman "tries to celebrate all four 'great justices' equally, as if their negative estimations of each other were mere personal foibles." If you're looking for a critical account of the Roosevelt Court's strengths and weaknesses, you won't find it in Scorpions.