Finished Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices by Noah Feldman.

The liberal agenda was led by four justices appointed by Franklin Roosevelt, Felix Frankfurter, Robert Jackson, Hugo Black and William Douglas. These men who started off liberal justices who shared a vision which ultimately led to The Plessy vs. Ferguson decision which restarted the desegregation movement in the United States.

These men who started as friends ultimately had a breakdown in their relationship, as each developed their own constitutional theory.

Their theories on the constitution can ultimately be seen as originalism ( Original Intent), judicial restraint which boasts a theory in which government institutions are suited to different tasks, legal realism and pragmatism.

A hard endorsement of this epoch book on the court which ran from FDR to Warren Court and the Nixon years. ( )

I had heard about this book when it was published but the length of it, 513 pages, kept me from reading it. However, the events of the last years and the importance that conservatives have put on getting conservative judges appointed to fill court vacancies made me think that I should do more reading about how the system works and why so many people think it is failing. In short, I wanted to know how we got to now. That led me to this book.

Basically, this book is a history of the US Supreme Court from 1930 to 1960. It is about the judicial philosophies of four Supreme Court Justices. All were appointed by FDR because FDR wanted judges on the court who would advance his political aims. Each of the four men were selected because they had proved themselves valuable to FDR in political ways by finding legal arguments that would advance FDR's New Deal laws. The four justices were, William O. Douglas, Felix Frankfurter, Hugo Black, and Robert Jackson. Two of the three were Solicitor Generals and then Attorney Generals of the U.S. before they were appointed. Black was a senator from Alabama who was a progressive and had voted to advance New Deal policies while in the Senate. Only one, Frankfurter, was an academic, but he was also heavily entwined in New Deal legislation and in the political inner circle in Washington, D. C. Three of the four men had political aspirations. By that, I mean that three of them wanted to run for President.

Perhaps the most surprising thing I learned was that people serving on the Supreme Court did not see themselves as holding a lifetime appointment. They saw it as a stepping stone to higher office, whereas, we now, tend to see appointment to the Supreme Court as the highest job in the land. For instance, Chief Justice Charles Evens Hughes, was appointed to the Supreme Court twice. Twice. He resigned the first time so that he could run for President in 1916. He was then appointed as Chief Justice in 1930. Also surprising was that, while all of them started out as "liberal" - meaning that they supported New Deal ideas, laws, and initiatives, two of them ended up being judicial conservatives, while two of them became judicial liberals, with one, Douglas becoming more and more liberal due to his emphasis on individual rights over those of the states. Douglas was the only one of the four who was not trained in Eastern establishment law schools. He was from Yakima, Washington, and he laid much of the ground work for environmental laws, even going so far as to say that inanimate objects such as rock and rivers have a right to exist and that these rights shouldn't be ignored.

Lastly, all four of these judges believed that all Supreme Court decisions are political. Politics, for them was inseparable from the interpretation of the law. Justice was a different matter. Politics is personal, and while all four of these men came onto the court with different goals and objectives, they all ended up as judicial enemies. (scorpions, in a bottle - hence the title.). Only Black and Douglas remained on personal speaking terms by the 1950's and even that was tenuous.

I also learned that appointment to the Supreme Court was always a political matter. No president took selecting a judge lightly and always considered their political aims when making a selection. What has changed, is Congress. Congress now is so closely divided that it slows down appointment to judgeships to the extent that it now impedes the ability of the courts to implement and interpret laws. This is why the down ballot elections are as important as is the vote for president. That seems to be something that the present day electorate doesn't seem to understand.

This book was a very accessible academic book. It had extensive notes and indexing, but it read like a story. I would class this book as narrative nonfiction - whatever that is. Anybody who has an interest in history or has the desire to know how we got to now, should read this book. At times it was engrossing and at times infuriating, but it was always informative, instructive, and, I believe, important and timely. ( )

Solid book, interesting details about each of these very important men. Engagingly written, and detailed enough for an attorney (that's me!) to appreciate. ( )

My nine part review of three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

The Brethren: Inside the Supreme Court, by Bob Woodward and Scott Armstrong (1979)

The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin (2007)

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, by Noah Feldman (2010)

http://driftlessareareview.com/category/mondays-with-the-supremes/ ( )

My books do not live in isolation from each other, but as counterpoint or coincidence. They are always holding conversations behind my back. A recent contretemps between two books in my pile has forced me to resort to a double review, pairing two seemingly disparate works that together had a keen point to make on the writing of History. As I was reading Scorpions by Noah Feldman and Peter Green’s Xerxes at Salamis, I kept overhearing grunts and harrumphs and decided to pay closer attention to what was going on between the books.

Feldman’s excellent history of mid-20th c. American constitutionalism, framed as an examination of the experiences of four Supreme Court justices appointed by Franklin Roosevelt, shines a light on everything from racial profiling and segregation to executive power during wartime to the tension between civil liberties and national security, and illuminates far beyond the topics treated in the book. Feldman expertly situates his case studies in context, but in such a way that the reader may ponder the links between the particular and the universal. He knows that, in the real world, principle and ideology always submit to complexity and ambiguity, law-making is seldom rational (as apart from partisan interests or individual motives), and thinking people sometimes change their minds.

Green’s book is an extrapolation from scant material and will appeal to those who like their Ancient History told as a story with kings and warriors as dramatis personae. Lines from Aeschylus and passages from Herodotus or Plutarch are analyzed, supported or corrected with fragments of archaeology. Persian kings are posed as oriental despots, and three decades of 5th-c. Athenian life stand in for the roots of Western Civilization. A single battle in a long war between regional powers almost 3000 years ago becomes the Hinge of History, though this point is to be taken as a matter of faith. Moses Finley warned against treating ancient sources at face value, against supposing that we can know ‘how things really were,’ and against psychologizing the causes of ancient warfare. Would that Green had a copy of Ancient History: Evidence and Models.

Perhaps Aeschylus was able to do what even Shakespeare could not: embody the whole of a cultural mindset in a few lines of a dramatic script. But there is no way to know. Still, many strain to believe that—like good, real Americans—the classical Greeks ‘believed in freedom,’ and without their efforts on our behalf the History of Freedom in the World would have been smothered in the crib. Works like Xerxes at Salamis are stimulating of the imagination, but must be taken with lots of salt.

This is what I think my books were talking about: that Historiography is not just an academic exercise. It is the deployment of critical thinking in the judgment of evidence, assumptions, arguments and conclusions about the past. In disputes about the sources and bases and meanings of ‘freedom’ in American political discourse of the 21st c., for instance, the ‘lessons of history’ are frequently cited to bolster one side or another. The problem is that not everyone learns the same lessons.

One of the lessons from the classical Greeks, assumed by many and reaffirmed by Green, is that the History of the World is the story of the West v. the Rest, and that war makes us free. The evidence from Scorpions and Xerxes at Salamis suggests that the freedoms enjoyed by people in 'the West' are less the consequence of warfare (or strict adherence to ideology, or divine intervention) than the product of a flexible, pragmatic jurisprudence developed over the past one hundred and fifty years—and the gravest threat to those liberties are politicians and our fellow citizens, not foreigners.