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‘The Battles’ of Justices Shows Drama in Court’s Votes

To many in the United States today, the Supreme Court is invisible.
Its members are appointed and it operates behind closed doors, making it nearly impossible to learn much about the justices. The opinions of the court are written and filed away and read by only lawyers and historians, save for the occasional Citizens United case. We know next to nothing about the nine individuals responsible for interpreting our Constitution.

But 60 years ago, the Supreme Court’s justices were political actors, and what went on in their chamber was very much political theater.

In “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” Harvard law professor Noah Feldman tells the story of four of the most important Supreme Court justices in modern history: Felix Frankfurter, Hugo Black, William O. Douglas and Robert Jackson. All four were nominated to the court by President Franklin Delano Roosevelt because of their liberal leanings and support of New Deal policies. But by the end of their tenure at the bench, they consistently disagreed with each other about the role of a Supreme Court justice.

Feldman said in an interview that the dynamic among the four justices — and the increasingly antagonistic relationships between them as time passed — was one of the main reasons he chose to spend five years putting this book together.
“I’m interested in how people react to each other in groups — not just a ‘great man theory,’ but a ‘great men theory,’” he said. “This is a group of people who started as allies and staunch FDR supporters, and within three or four years they were vicious enemies. How does it happen that a bunch of people who are aligned politically and personally end up falling apart personally and professionally?”

Each of the four justices reached the Supreme Court under unique circumstances, and Feldman ambitiously tackles each of their stories to kick off the text. Frankfurter emigrated from Austria as a young man and fell in love with Constitutional law; Jackson was a lawyer in western New York despite never having graduated from law school; Douglas grew up in Washington state and always harbored political ambitions; and Black, perhaps the most interesting of the four, was a member of the Ku Klux Klan and represented Alabama in the Senate before joining the court.

Once the men were confirmed as associate justices, the Court was presented with case after case that still resonates in American history. Jackson was the lead prosecutor at the Nuremberg trial of top Nazi war criminals after the war, and all four took part in the decisions to permit the internment of Japanese-Americans during World War II and the unanimous decision to end segregation in the case of Brown v. Board of Education.

Feldman’s description of the four individuals is intriguing because of the way their judicial positions changed over time. Frankfurter, for instance, began his career as a champion of liberalism and ended as one of the most conservative men on the court. And Black, who had never served as a judge before joining the Supreme Court and was from the Deep South, became an eloquent justice and a champion of desegregation.

In particular, Feldman was fascinated by the court’s complete reversal from the early 1940s, when Japanese internment was upheld, to 1953, when segregation was overturned.

“Here you have just under 10 years apart, probably the most humiliating decision of the modern Supreme Court and the most inspiring, and the personnel is heavily overlapping,” he said.

Feldman describes each of those cases and many others in engaging detail, and he deserves credit for making a text that could have been a dry legal history into an emotional story of the interaction between people and the laws that govern them.

The author described one interview with a Harvard colleague, Andrew Kaufman, who had clerked for Frankfurter many years ago. As the two walked together, Kaufman described the way Frankfurter would grab the arm of the person he was speaking with. At that moment, Kaufman grabbed Feldman’s arm, giving the author a small insight into Frankfurter’s character and personality.

In addition, because of his range of professional experiences and interest in Constitutional law, Feldman felt he was able to build a connection with each of the justices as he wrote about them.

“When Frankfurter was a law professor, I could see it from his perspective, and when Jackson was in Nuremberg, I could make analogies to when I had been in Iraq,” said Feldman, who was an adviser to the authority developing Iraq’s new constitution. But he joked, “I had no analogy with Black because I had never been in the Senate or the Ku Klux Klan.”

During a 1951 case, Jackson wrote a particularly articulate opinion, and in Feldman’s words, “It transcended the politics of the moment to say something of lasting value.” In this era of the Supreme Court’s relative obscurity, the same goes for “Scorpions.”