Ms.pegasus's Reviews > Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices

Scorpions by Noah Feldman
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Apr 11, 12

bookshelves: history, nonfiction, supreme-court
Recommended for: all students of American history or political science; anyone opining on today's Court
Read in April, 2012 — I own a copy, read count: 1

The power of the Supreme Court is in its words, not its rulings. Feldman focuses as much on the words of dissent as the actual rulings of the Court between 1939 (the Gobitis flag salute case) and 1954 (Brown v. Board of Education). In doing so, he demonstrates that dissenting opinions carry a huge potential for historic significance. The arguments of the Supreme Court are part of a specialized language – an argot steeped in both political and social history, and its terminology leads to non-intuitive results. Thus, for example, when commentators speak of “originalists” – it is a rubric that includes Hugo Black's support for free speech as guaranteed by the Bill of Rights as well as the politically conservative views of Antonin Scalia – so much for easy categories! Feldman is sensitive to the irony. He begins with a long recital of Felix Frankfurter's progressive credentials, which include active support for Sacco and Vanzetti, and pro-Labor opinions under the Roosevelt administration, but ended in a trail of Supreme Court decisions affirming the restriction of individual rights based on his philosophy of “judicial restraint.”

In framing his story, Feldman selects four eminent jurists: Felix Frankfurter, Hugo Black, Robert Jackson and William Douglas. Extensive biographical details help illuminate the motivations – both intellectual and political behind their decisions. Those seeking the actual case citations are guided by the footnotes. Feldman focuses the reader on the issues of a dozen key cases, and the reasoning behind each of the decisions. His writing is most witty when adopting some of the quips of the era: “The switch in time saves Nine” summarizing the finale of Roosevelt's court packing scheme; Jackson's “loaded gun” admonition in his tepid dissent in Korematsu.

It is also enlightening about historical context. When Roosevelt entered office, the Court was still in the “Lochner” era and had struck down restrictions to the length of the work day, child labor protection, and the idea of a minimum wage -- rights we take for granted today. It was the end of the “gilded age” when Andrew Mellon was able to legally evade taxes by creating a shell foundation to which he “donated” parts of his art collection each year. (The National Gallery of Art may have come about as part of Mellon's legal strategy in the tax case). The extent of anti-semitism was illustrated by the motive behind Harvard University's establishing geographical entrance quotas: Not to enhance equal opportunity, but to restrict the admission of urban Jews.

The four great jurists of the era were not great because they were right. They were great because they struggled with a complex and contradictory set of ideas and feelings. This book offers no predictions about the future, but instead, a lens for appreciating the past. I have given it 4 stars because the subject matter is so difficult to convey effectively to the layperson. Feldman has done an excellent job of balancing scholarship with readability.
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