Thursday, February 5, 2015

FDR's Supreme Court

In 1933 Franklin Delano Roosevelt replaced Herbert Hoover as President of the United States. At that time, the progressive democratic movement had hit a barrier in the Supreme Court. A number of progressive legislative initiatives had been declared unconstitutional, as were significant portions of Roosevelt's first wave of New Deal legislation. To counter that, Roosevelt sought judicial appointments who were more sympathetic to his legislative ends.

This is the story Noah Feldman, professor at Harvard Law School, addresses in his book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. Specifically, Feldmon focuses on four particular appointments: Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson. These four men would influence the legal system for decades--Justice Douglas served until 1975.

As Feldman shows, however, each of these four men solved the issue of disliked Supreme Court precedent in his own way--and by so doing laid the foundation for nearly the entire spectrum of what we now consider judicial philosophies. Black took an originalist route, focusing on ideas such as historical research and original intent to correct the errors that had crept into the Court's jurisprudence. Douglas ended up taking a rights-based tack, using the court to further individual rights (more liberal than libertarian, although Feldman conflates the two). Jackson (who took a break from the Court to be a prosecutor at the Nuremberg trials) took a pragmatist approach, using the balance of powers as his guide in determining disputes between the governmental branches. And finally, Frankfurther took a position of deference to the legislature--a position that guaranteed liberal outcomes when a liberal legislature was in power yet ended up affirming much more conservative outcomes as the makeup of the legislature changed (allegations that he was inconsistent reveal more about the changing political landcape than his own changes in philosophy). So although they were all appointed by Roosevelt, and although during Roosevelt's administration they were all fairly reliable votes for him, after his death their various strands of jurisprudence diverged. One of the Justices' clerks referred to them as scorpions fighting in a bottle (hence FEldman's somewhat odd title.)

What was most surprising to me (well, besides the fact that neither FDR nor Jackson graduated from law school) was that although all four were deemed "liberal" in their day, in hindsight they largely encompass the entire spectrum of judicial philosophies used today, be they liberal or conservative, activist or deferential. In this sense, then, we are all "liberals" now in our thinking about judicial philosophy at all.

Yet this reveals one of the key elements missing from the book. Although Feldman does an excellent job of tracing the constitutional legacy of these Justices, and of introducing the reader to their individual histories, he does not nearly pay enough attention to any judicial philosophies that existed prior to their appointment. One is left with the impression that Black invented originalism, or that Frankfurther was the first to view judicial review through a lens of deference to the legislature. However, as the Court was over 150 years old at the time of their appointment, there were plenty of prior Justices who had also left their interpretative mark. Yet Feldman leaves the impression that (apart from Holmes and Brandeis) FDR's Justices largely stepped into a vacuum. In short, while he is quite insightful of the downstream effects of the FDR Court, he could have spent more time developing the upstream influences.

Be that as it may, it was not the emphasis of the book, and is only a side critique. Apart from that, Feldman's book makes a good guide for anyone seeking an introduction to the constitutional thought of the FDR Court and its lasting legacy. It also reveals the individual personalities of the various Justices and lets the reader see past their judicial opinions into how they thought.

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