A tiny, ebullient Jew who started as America's leading liberal and ended as its most famous judicial conservative. A Klansman who became an absolutist advocate of free speech and civil rights. A backcountry lawyer who started off trying cases about cows and went on to conduct the most important international trial ever. A self-invented, tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.
Four more different men could hardly be imagined. Yet they had certain things in common. Each was a self-made man who came from humble beginnings on the edge of poverty. Each had driving ambition and a will to succeed. Each was, in his own way, a genius.
They began as close allies and friends of FDR, but the quest to shape a new Constitution led them to competition and sometimes outright warfare. Scorpians tells the story of these four great justices: their relationship with Roosevelt, with each other, and with the turbulent world of the Great Depression, World War II, and the Cold War. It also serves as a history of the modern Constitution itself.
As a conservative Supreme Court flexes its muscles against a Democratic president for the first time since the New Deal, a series of recent books has explored the constitutional battles of the Roosevelt era and their contemporary relevance. Harvard law professor Feldman's Scorpions focuses more on the battles of the 1940s and 1950s, and it is distinguished by its thesis that the "distinctive constitutional theories" of Roosevelt's four greatest justices, all of whom began as New Deal liberals Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson have continued to "cover the whole field of constitutional thought" up to the present day. Feldman argues that Black, the liberal originalist; Douglas, the activist libertarian; Frankfurter, the advocate of strenuous judicial deference; and Jackson, the pragmatist; achieved greatness by developing four unique constitutional approaches, which reflected their own personalities and worldviews, although they were able to converge on common ground in Brown v. Board of Education, which Feldman calls the last and greatest act of the Roosevelt Court. The pleasure of this book comes from Feldman's skill as a narrator of intellectual history. With confidence and an eye for telling details, he relates the story of the backstage deliberations that contributed to the landmark decisions of the Roosevelt Court, including not only Brown but also cases involving the internment of Japanese-Americans, the trial of the German saboteurs, and President Truman's seizure of the steel mills to avoid a strike. Combining the critical judgments of a legal scholar with political and narrative insight, Feldman is especially good in describing how the clashing personalities and philosophies of his four protagonists were reflected in their negotiations and final opinions; his concise accounts of Brown and the steel seizure case, for example, are memorable. And he describes how the rivalries and personality clashes among the four liberal allies eventually drove them apart: Hugo Black's determination to take revenge on those who offended his Southern sense of honor led him to retaliate not only against Jackson and Chief Justice Harlan Fiske Stone but also against the racist Southerners who had disclosed his former Ku Klux Klan membership to the press. Not all readers will be convinced by Feldman's thesis that the judicial philosophies of the Roosevelt justices continue to define the Court's terms of debate today: on the left and the right, there are, for example, no advocates of Frankfurter's near-complete judicial abstinence or of Douglas's romantic libertarian activism. And in the political arena, the constitutional debates of the 1940s and '50s seem less relevant today than those of the Progressive era, when liberals first attacked the conservative Court as pro-business, and conservatives insisted that only the Court could defend liberty in the face of an out-of-control regulatory state. But Feldman does not try to make too much of the contemporary relevance of the battles he describes: this is a first-rate work of narrative history that succeeds in bringing the intellectual and political battles of the post-Roosevelt Court vividly to life. Reviewed by Jeffrey Rosen, a law professor at George Washington University, is the author of The Supreme Court: The Personalities and Rivalries That Defined America.