The New Dealers’ Court

We have entered a new season of intense constitutional debate. Today’s Supreme Court will, in the next few years, face serious challenges to the unprecedented constitutional reach of Barack Obama’s health-care program—and likely to other ambitious federal ventures. As if to prepare the ground for a new confrontation, President Obama used his State of the Union address last January to scold the Supreme Court—with the chief justice and several other justices sitting right before him in the House chamber—for a decision giving free-speech protection to corporate political spending.

In this climate, Noah Feldman, Harvard law professor and prolific author, offers an overview of the intertwined careers of Justices Hugo Black, William O. Douglas, Felix Frankfurter and Robert Jackson. They were all appointed by Franklin Roosevelt in the aftermath of the bruising battle, in 1937, when FDR tried and failed to expand the size of the Supreme Court to ensure a pro-New Deal majority. Retirements in the next few years allowed him to appoint new justices who reinterpreted our constitutional doctrines to accommodate ambitious federal agendas.

Seven justices of the Supreme Court visiting the White House in 1939: (from left) Solictor General (and future justice) Robert H. Jackson, Felix Frankfurter, Hugo Black, Harlan F. Stone, Chief Justice Charles Evans Hughes, Owen J. Roberts, Stanley F. Reed, William O. Douglas, and Attorney General Frank Murphy.

So “Scorpions” might seem very timely. Mr. Feldman has certainly shown a knack for placing himself in the middle of great contemporary debates. On the strength of a brief period studying Arabic literature at Oxford, he was recruited in 2003 to advise on Iraq’s interim constitution—when he was, himself, only a few years out of law school. His subsequent book, “What We Owe Iraq” (2004), was a liberal plea for a continuing military effort to stabilize Iraq. As opposition to the war mounted, however, Mr. Feldman distanced himself from other democracy advocates with “The Fall and Rise of the Islamic State” (2008), depicting Sharia law as a historic and still promising check on abusive government.

He is certainly alert to the politics that surrounded (and often threatened to engulf) FDR’s Supreme Court appointees. Mr. Feldman devotes well over a third of the book to tracing the paths by which these “great justices” got to the court. Hugo Black (1886-1971) used his affiliation with the Ku Klux Klan in the 1920s to get himself elected to the Senate. Then, as a Supreme Court nominee, he reassured fellow senators with carefully worded (and misleading) disavowals of Klan connections. Roosevelt, grateful that Black had supported his court-packing plan, looked the other way.

Felix Frankfurter (1882-1965), a Harvard professor and Roosevelt confidant since the latter’s days as New York’s governor, was not consulted about the court-packing plan in advance. But he withheld public criticism—offending his long-time patron, Justice Louis Brandeis, an open opponent of FDR’s scheme. William O. Douglas (1898- 1980) had charmed Roosevelt with his bullying of Wall Street as SEC chairman in the mid-1930s. Robert Jackson (1892-1954) caught FDR’s eye arguing the administration’s dubious and partisan tax claims against former Treasury Secretary Andrew Mellon. Even after taking their seats on the court, both continued to attend intimate White House poker games. While a justice, Frankfurter was not invited to play cards, but he continued to offer private advice on all manner of subjects to the Roosevelt White House and the Justice Department.

The book offers a wealth of anecdotes but no revelations. Almost all the material in “Scorpions” is drawn from previously published accounts. Mr. Feldman tells these stories in a graceful narrative, cutting back and forth between different characters, situating personal doings in the great events of the era. It’s effective popular history.

For a scholar who holds a chair at Harvard Law School, though, Mr. Feldman is remarkably uninterested in legal analysis. The core of the book takes readers through a dozen or so landmark legal disputes of the 1940s and 1950s, but even here he keeps his focus on the interplay of personalities on the Supreme Court. He makes little effort to evaluate the weight of these cases as precedents and offers no discussion at all of the cases in the early 1940s, when the Roosevelt appointees repudiated all past limits on federal regulatory power. It is not much compensation to get two chapters on Justice Jackson’s dramatic moments as Nuremberg prosecutor—with no explanation of the actual charges in these cases and the simple assurance that “most historians consider the Nuremberg tribunal to have been a highly consequential historical event.”

The biggest problem with Mr. Feldman’s account is that, while all the Roosevelt appointees agreed that there should be broad constitutional scope for New Deal programs, they emphasized different reasons and followed the arguments to different results as they encountered new issues. Frankfurter, for example, consistently urged judicial deference to legislative judgments, while Black insisted that the courts must uphold the words of the Constitution—which in his reading allowed almost limitless scope for economic regulation but set sharp limits on government in other areas.

Over the years, their divisions became increasingly personal and acrimonious (so much so that Black and Douglas threatened to resign if Jackson were appointed chief justice after the war). Mr. Feldman acknowledges these differences—starting with his title (drawn from a Frankfurter law clerk’s characterization of the Supreme Court as “nine scorpions in a bottle”)—but tries to celebrate all four “great justices” equally, as if their negative estimations of each other were mere personal foibles. He acknowledges, for example, that some legal scholars view Douglas’s opinions as “arbitrary and outrageous”; others view him as “the most advanced exponent of liberal principle ever to sit on the Court.” Mr. Feldman is content to acknowledge that “there is truth in both propositions”; he is not interested in defining any possible boundary between “liberal principle” and “arbitrary” constitutional decisions.

At the end, Mr. Feldman assures us, whether “by principle, by pragmatism or by policy, the justices at their best make the Constitution their own.” And so, he thinks, do we all: “To interpret the Constitution by one’s own best lights is to be an American.” What if your best lights are dim or distorting? Do we have millions of constitutions or only nine?

If this was intended as a defense of liberal jurisprudence, it suggests that, even at Harvard, what liberals are mainly selling is nostalgia. There was a time when simply supporting the New Deal could earn a judge a great reputation. Those happy days don’t seem to be here again, now.

Mr. Rabkin is professor of law at George Mason University.


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