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.

Comments

[fyodor]

Um, FDR didn't make it to the end of his fourth term.

[fyodor]

Of course, I guess that means he only needed the three and change he had!

[Colin Fraizer]

Yeah, he died less than three months into that fourth term.

[?]

It was still "the end" of his term.

[Colin Fraizer]

Really? I guess I'd think of it as Harry Truman filling out the rest of FDR's term, then winning his own term in 1948.

[?]

Not to beat a dead Roosevelt, but FDR's term ended when he ended.

[?]

Obama has two already and when Ginsburg croaks it'll be three. A re-election will give him a shot at four or five. Have a nice day!

[Jaybird]

"... and recognized the unenumerated right to privacy among the "penumbras" and "emanations" of the Constitution."

I'd be 100% behind this if they realized that people still had it.

Imagine the problems that could be solved!

Abortion? "Right to privacy."
Marijuana? "Right to privacy."
Income taxes? "Right to privacy."

The problem isn't that they discovered penumbras and emanations in the Constitution, it's that they *ABANDONED* such things.

[Colin Fraizer]

Uh, the 16th Amendment specifically authorizes Congress to implement an income tax. Penumbrate your way around that!

When you let the Supreme Court make up whatever it wants just to get what you want--even if what you want is really good and just--you free them to make up other stuff that can take away other freedoms.

Folks who want the Supreme Court to find, for example, a "right to same-sex marriage" don't understand the dangers of a court freed from all restraint. (That is, they aren't old enough to remember 'busing'.)

[Some Guy]

You don't have to look very far, actually. It says "equal protection under law."

So either we no longer have the government involved in marriage (which seems like a very reasonable idea to me) or we stop telling people which consenting adults can be married.

[John Thacker]

we stop telling people which consenting adults can be married.

I'm curious, under your reading, why do you think it should be limited to "adults?" I don't see any mention of "adults" in the Fourteenth Amendment, only "persons" who should be given equal protection under law. Are not children people?

[John Thacker]

And don't say it's because the Constitution contemplates age restrictions on voting and serving in Congress, so that implies it-- it also has restrictions on citizens who are not native born serving as President, but I'm assuming that you agree that that doesn't mean that the Fourteenth Amendment doesn't apply to citizens born abroad.

[Barely Suppressed Rage]

The Constitution does not answer every question of public policy. And most of these questions are ones of public policy.

In fact, I might go so far as to say the Constitution does not answer MOST public policy questions.

Unfortunately, people tend to want to run right to the Constitution and the SCOTUS to find "THE" answer to every question somewhere in the Constitution, rather than allowing the political process to sort it out.

[Some Guy]

Because for good reason, minors cannot enter into contracts. There is an actual articulable reason for this that doesn't involve "because God said it was icky."

I would also find it acceptable to say that no couple without children can be civil married and it would fit within equal protection. Of course adopted children would still cause you to complain about that.

Now a two part question for you. Answer at least one. What basis do you find that is constitutional to have the state recognize some peoples' marriages and not others? Otherwise, what rights DO you think are protected under the equal protection clause?

[John Thacker]

Because for good reason, minors cannot enter into contracts. There is an actual articulable reason for this that doesn't involve "because God said it was icky."

I'm completely unsatisfied by your arguments on the minors question.

First, you've failed to articulate the reason why minors should not be allowed to enter into contracts, particularly those of sound mind, other than "because I say it is icky" or "because the law does it that way and it has good reason." Surely such a clear articulable reason should be articulated in a sense that would make it seem clear and just to all the minors out there who believe that they should be allowed to enter into legal contracts without their parents' permission.

Second, you're also inaccurate on the particulars of minors and contracts-- minors CAN enter into contracts, however most, but all, contracts can be voided by the minor, not the adult. If they void the contract, then minors have to return any benefits they have already received from the other party to the extent possible (not possible in the case of consumed goods or many services).

Third, and perhaps more importantly, a emancipated minor is treated exactly the same as an adult for contracts, and one way that a minor becomes emancipated is to become married.

Also note that quite a few states allow minors to be married, with some states allowing with parental and/or judicial consent down to ages like 14 or 12. Since the state concedes that marriage is appropriate in some conditions, why does the equal protection of laws allow some to be married but not others, and it to depend on a judge for some?

You also haven't articulated the clear reason why the age for being a minor is totally arbitrary and has been changed in the past, other than "the State says so."

I would also find it acceptable to say that no couple without children can be civil married and it would fit within equal protection. Of course adopted children would still cause you to complain about that.

You seem to have me confused with someone complaining about policy prescriptions, instead of law. If you're talking about a legal basis, I believe that you've rather conceded an enormous part of one typical anti-gay marriage argument, by arguing that marriage is essentially about children.

However, most of those who argue that marriage is a better stable environment for children would also prefer that parents marry before having children, rather than the other way around. It makes sense to allow those for whom children can be an "accident" to be married before they accidentally have children, but not necessarily so those for whom adoption is a choice and a long drawn out process. Therefore your logic implies that nearly any heterosexual couple be allowed to marry because they may unexpectedly have children, whereas gay couples should be limited to those who have already adopted or have signed a contract to begin the process.

What basis do you find that is constitutional to have the state recognize some peoples' marriages and not others?

Note that this isn't a fact that we're disagreeing about. You believe that it is constitutional for the state to recognize some people's marriages but not others, but you imagine that your restrictions are logical and perfectly obvious-- after all, they're the law, "for good reason."

I would say strictly on the basis of what the 14th Amendment (and the rest of the Constitution) were understood to mean when adopted and its logical consequences, combined with the wisdom of long experience that suggests that such changes are best addressed legislatively. Legislation allows us to make the distinction between legalizing gay marriage (which I favor), and opposing marriage of the youngest minors (and opposing things like the Great Ape Personhood movement.)

[Some Guy]

First, you've failed to articulate the reason why minors should not be allowed to enter into contracts, particularly those of sound mind

Because age is a proxy being used to approximate sound mind. There are many 30 year olds who have the same comprehension and reasoning skills than an everage 14 year old, but I don't know of any other practical way of drawing the line. Do you have any suggestions?

Second, you're also inaccurate on the particulars of minors and contracts-- minors CAN enter into contracts, however most, but all, contracts can be voided by the minor

Do you really consider that a contract, then?

Third, and perhaps more importantly, a emancipated minor is treated exactly the same as an adult for contracts, and one way that a minor becomes emancipated is to become married.

So how is that relevant to my point?

Also note that quite a few states allow minors to be married, with some states allowing with parental and/or judicial consent down to ages like 14 or 12. Since the state concedes that marriage is appropriate in some conditions, why does the equal protection of laws allow some to be married but not others, and it to depend on a judge for some?

Because no one has bothered to challenge those laws.

You also haven't articulated the clear reason why the age for being a minor is totally arbitrary and has been changed in the past, other than "the State says so."

See above. I never said 18 was a magical number, I am just using it because that's our bright line for many other things, including other forms of contracts.

You seem to have me confused with someone complaining about policy prescriptions, instead of law.

I'm sorry you were confused by my bringing up a policy suggestion which would allow for the legal question to be sidestepped.

However, most of those who argue that marriage is a better stable environment for children would also prefer that parents marry before having children, rather than the other way around.

Do those people believe that marriage did not exist prior to state recognition of marriage?

It makes sense to allow those for whom children can be an "accident" to be married before they accidentally have children, but not necessarily so those for whom adoption is a choice and a long drawn out process. Therefore your logic implies that nearly any heterosexual couple be allowed to marry because they may unexpectedly have children, whereas gay couples should be limited to those who have already adopted or have signed a contract to begin the process.

Actually I was saying that in my system, until you actually have a child, you aren't married in the eyes of the law. Of course some sort of civil union could be constructed to allow property rights, etc, for childless couples.

Note that this isn't a fact that we're disagreeing about. You believe that it is constitutional for the state to recognize some people's marriages but not others, but you imagine that your restrictions are logical and perfectly obvious-- after all, they're the law, "for good reason."

Actually if you can invent some way of determining who is of sound mind and capable of making a decision like marriage that doesn't involve age, I'd be for removing all other restrictions.

I would say strictly on the basis of what the 14th Amendment (and the rest of the Constitution) were understood to mean when adopted and its logical consequences, combined with the wisdom of long experience that suggests that such changes are best addressed legislatively. Legislation allows us to make the distinction between legalizing gay marriage (which I favor), and opposing marriage of the youngest minors (and opposing things like the Great Ape Personhood movement.)

The problem here is that there is no distinction which gives a reason to ban one and not the other, whereas it's pretty easy to make a logical case for why someone can't marry a 4 year old.

[John Thacker]

Do you really consider that a contract, then?

The adult isn't allowed to void it. Do you assume that marriages aren't contracts because people can divorce, and can write pre-nuptial agreements so that everything does return to the status quo ante?

Yes, I do think that a contract that one or both parties have the option to void is still a contract. How would it not be?

[John Thacker]

Please don't fall for the mistake that when a minor voids a contract that they're not required to return any tangible goods they obtained from the other side. It's plainly obvious that it is a form of contract.

See above. I never said 18 was a magical number, I am just using it because that's our bright line for many other things, including other forms of contracts.

But you are defending the idea of a magical arbitrary number, and you're completely unable to articulate your "obvious articulable reason" for why we have it, other than arbitrariness, and tradition, and obviousness.

You are full of exactly the same sort of arbitrary reasons that you deplore in others.

I reject great ape personhood and animal rights, but I certainly have to admit that those views are logically consistent and I am not more rational for rejecting them, simply arguing from different non-rational preferences than those people.

We all have entirely arbitrary non-rational first principles.

[RyanXXX]

"Great" Justices who probably did as much as anyone else in power to shape the course our country is now on.

May they rot.

[sloopyinca]

...in hell.

(You forgot to finish your last sentence)

[sloopyinca]

I thought the Griswold case had to do with transporting a dead person across state lines on the top of a station wagon.

Meh. Lives and learns I guess.

[MNG]

Ok, that was funny. +1

[MNG]

"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."

Good for him. Maybe he leaves it up to his readers to draw their own conclusions about which views were right and wrong. I wish there was more of that.

[Cyto]

I picked up on that phrase, but for an entirely different reason. Their opinions fall under "liberal" not because of their legal views, but because of their political views. The common thread is that they understood the benefit of the outcome they sought, and found a legal reasoning to hang that outcome on. The same can be said of many "conservative" legal scholars.

This is a dangerous and counter-constitutional viewpoint which is unfortunately shared by the majority on the court and by the President. Lest it be unclear: The job of the court is to rule on the law as written, not to opine as to the policy implications (other than as relates to conflicts between laws).

This is why the expansion of the commerce clause is so fundamentally evil. It eviscerates the entire meaning and purpose of the constitution and replaces it with "because we said so" - which works for your mom and dad, but as a government construct, not so much. There's a reason our founders spent so much time worrying over tyranny as they built a divided government.

[MNG]

Wickard and Griswold. It's a great dichotomy because the former embodies what libertarians seem to detest about modern liberalism while the latter seems to hold out the promise of shared ground between the two.

[Jeffersonian]

They were both violence done to the Constitution, usurpations of state power.

[juris imprudent]

While Griswold represented an extremely silly and intrusive STATE law actually rooted in the general police power properly reserved to the states, Wickard (and it's bastard progeny) allow virtually unlimited FEDERAL power (so long as the proper incantation is given during the Congressional sausage-making).

Never mind Kelo.

[John Thacker]

In Griswold that's "an extremely silly and intrusive STATE law that was only around because it was never enforced."

I don't disagree that archaic state laws can be a problem if someone gets it in their head to enforce them, but as a practical matter they're not my top concern. Nor is choosing judges who will boldly strike down laws that have become massively unpopular and are now no longer enforced.

[John Thacker]

I think that together they perfectly demonstrate the uselessness of libertarians allying with liberals. The statute in Griswold was almost never enforced, whereas Wickard was. In both cases the Court merely went with majority opinion.

I think that the important role of the Court is to constrain the majority by protecting the rights of minorities, and protecting rights in general from attempts to restrain them in particular. The Griswold case was nothing like that.

In the case of Griswold, like with the Snopes case, the law was never really enforced, and it took the concerted effort of someone who wantd to be arrested along with a compliant prosecutor to get the case to the Court. (In the case of Griswold, previous challenges had been dismissed on the basis of standing and ripeness.)

It's an astonishingly poor bargain to trade striking down never enforced laws once they've become ignored and unpopular (although in some cases not repealed simply because of inertia and symbolism) in exchange for allowing new and popular usurpations of rights.

So even aside from the very real jurisprudence issues (e.g., declaring unConstitutional laws that were uncontroversial when the Constitution and relevant amendments were adopted), from a practical standpoint it's also near useless.

That's not to say that in the one particular case at issue in Lawrence v. Texas (the most similar case to Griswold) the law wasn't abused by a nosy neighbor with a grudge (who later served 15 days for his false report). But if the only way to formally overturn judicially these almost never enforced now unpopular laws is to allow terrible things like Wickard that are enforced, no thank you.

[MNG]

I agree that an important role for the Court is to be a counter-majoritarian force, but I disagree that the court in question was one defined by deference to majorities. In fact that court is decried by many conservatives for being an example of an "imperial" judiciary that "usurps" power that lies "properly" in the hands of elected officials. The court and justices in question often ruled for tiny minorities who were being daily effected by actually enforced laws. Think of cases like West Virginia State Board of Education v. Barnette.

[John Thacker]

I agree that an important role for the Court is to be a counter-majoritarian force, but I disagree that the court in question was one defined by deference to majorities.

Be that as it may for some cases, Griswold is not one of those cases, which was my point.

Now, if you had mentioned Barnette originally instead of Griswold, then I would have agreed with you that Wickard and Barnette formed a apposite pair for your point-- and it perhaps would have been worth discussing against exactly how much Justice Frankfurter hated that decision (which overruled his earlier decision from 3 years prior). That's one of those cases where the justices mentioned have diametrically opposing views.

[shrike]

Rand Paul just released a statement in support of earmarks:

In a bigger shift from his campaign pledge to end earmarks, he tells me that they are a bad "symbol" of easy spending but that he will fight for Kentucky's share of earmarks and federal pork, as long as it's doled out transparently at the committee level and not parachuted in in the dead of night. "I will advocate for Kentucky's interests," he says.

[capitol l]

Why are you so in love with Rand Paul, shrike?

You want to have his little white babies, you racist scum.

May the AquaBuddha have mercy on your soul.

[shrike]

Fuck you, you depraved shitskin.

[Episiarch]

capitol, I think you hit a nerve with shriek. Not that it would be hard considering that he's all nerves.

[juris imprudent]

Hit a nerve like Olivier in Marathon Man.

Yeah, go ahead and try to sleep tonight.

[capitol l]

I don't care if I frazzled every racist fucking nerve in his bigoted body. Having racist motherfuckers like him around bugs me.

Also, he did not deny that he wanted to have Rand Paul's little white babies. Did he?

[John Thacker]

Actually, that's not "releasing a statement" that's "conducting an interview." It was in the Wall Street Journal. You can tell it's an interview from phrases like "he tells me" that rarely appear in statements released by someone. You've never been very good with using words to have the same meaning that most other people do.

This isn't surprising, considering that it's precisely his father's opinion on earmarks. I'm more concerned with the areas where he deviated from his father, even though I don't particularly agree with either of them here.

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