Scorpions: The Battles and Triumphs of FDR's Great Four Supreme Court Justices

Their names do not roll off the tongue with the familiarity of, say, John, Paul, George and Ringo—the Fab Four Beatles.  But in their day, as architects of the New Deal and later as justices of the Supreme Court, their names were nearly as well known. The Fab Four of New Deal crusaders shaped the American political and legal landscape as few ever have.

Four different men could hardly have been imagined: Felix Frankfurter, a Jewish intellectual born in Vienna and raised in the U.S.; Hugo Black, a former member of the Ku Klux Klan; Robert Jackson, a folksy country lawyer from upstate New York; and William Douglas, a Westerner with a penchant for cowboy hats and a burning desire to be president. They began as friends and members of President Franklin Delano Roosevelt’s inner circle, and ended as bitter rivals on the Supreme Court—as “scorpions,” as the author would have it,

Author Noah Feldman tells their stories with zest and remarkable insight, and the singular role each played during an incredibly turbulent 30-year era of American history, from the Great Depression, to World War II, to Brown v. Board of Education.  At the same time, he shows FDR to be a man of unsinkable determination and of considerable charm, blessed with an eye for picking talent.

The book is really two stories.  The first is about the rise of the Fab Four, their relationship with FDR, with each other, and the pivotal roles they played in advancing New Deal policies.  Each of them knew FDR in some capacity prior to his election as President in 1932.

— Felix Frankfurter was the first to capture FDR’s attention.  Frankfurter was a progressive and a founding member of the American Civil Liberties Union with a seat at Harvard Law School.  From Cambridge, he drafted New Deal legislation and staffed New Deal agencies. Insiders described him as “the most influential single individual in the United States.”

— Born and raised in the Deep South, Hugo Black joined the Ku Klux Klan to further his political career.  After being elected to the U.S. Senate, he distanced himself from the Klan and gained national attention as head of a Senate subcommittee investigating corporate corruption.

— Robert Jackson, from the back country of upstate New York, rose to fame as a superb trial lawyer, despite never having graduated from law school.  His increasingly prominent role in the American Bar Association brought him to Washington, and to the attention of FDR, who appointed him first as solicitor general and then as attorney general.

— William Douglas, like Frankfurter, made his name in academic circles: first as a student at Columbia law school, and then as a Yale law professor.  Intensely ambitious, Douglas was appointed head of the newly formed SEC (Securities and Exchange Commission) and uncovered considerable Wall Street corruption.  He told the management of the New York Stock Exchange that they had to reorganize themselves to his satisfaction or else.

“If you produce a plan of reorganization,” he told them, “I’ll let you run the Exchange.  But if you just go on horse-trading, I’ll step in and run it myself.”

The second part of the story involves the court, two courts actually, the court of public opinion, and the Supreme Court.  On trial was New Deal legislation designed to create new jobs for the twenty-five percent of the nation out of work, and the creation of government agencies designed to regulate financial markets.  The feeling among many was that the Roosevelt administration had gone too far, with policies that smacked of socialism.  In fact, the goal of the New Deal was to preserve market capitalism by regulating its potentially corrupt features, and it acquired a name—liberalism. On the other hand, Socialism and communism called for transfer of the ownership of the means of production to the people, which mean; in effect, to the state. Liberals flatly rejected that proposition. They wanted to save capitalism by fixing it.  The court of public opinion ruled in favor of the New Deal, by reelecting President Roosevelt in 1936 and in 1940.

  The Supreme Court, on the other hand, did not.  In a number of 5-4 decisions, the High Court struck down various New Deal policies as unconstitutional.  This led to “court packing,” Roosevelt’s threat to increase the size of the court from nine to as many as a fifteen justices, in order to make way for new court appointees more favorable to his policies. The Supreme Court got the message: in the next case they ruled in favor of the New Deal.

Hugo Black was the first of Fab Four to be appointed to the Supreme Court, filling a vacancy created by the death of a justice, in 1937.  Frankfurter and Douglas were next to fill court vacancies, in 1939; Jackson was the last appointed to the bench, in 1941.  In time, every justice on the Supreme Court would be appointed by FDR, and the High Court would become known as "The Roosevelt Court".  Once the best of friends, as Supreme Court justices the Fab Four soon became rivals and enemies.

One of them—Justice Frankfurter—paradoxically, became a judicial conservative. Despite their New Deal heritage, the four did not always agree, but on the important decisions they usually did.  The author discuses these cases in detail, but the thrust of their court years, indeed, the thrust of the book, is the case that changed the course of the nation—Brown v. Board of Education.  Racial segregation in the South was a blight on America made painfully clear at the close of World War II.

Writes the author:  “The Nazis’ racial codes became archetypes of the evil character of the Third Reich. By the time the war was over and the overtly racist powers of Germany and Japan had been defeated, it had become increasingly difficult to justify race-based segregation in the United States.”

The case came before the High Court in 1952.  The Fab Four, while initially divided on whether this was the right time or not to render a favorable decision, correctly recognized that this would be the most important decision of the Roosevelt Court.  Rather than act immediately, they sat on the case for over a year.  During that time, Earl Warren was appointed as Chief Justice and he wasted little time in pushing for an immediate and favorable decision.  In fact, he wanted a unanimous decision, and spent his first months on the bench getting all the justices to agree—no mean feat.  Warren also wrote the ground-breaking decision. The Brown Court decision makes for a fascinating story, not to be missed, and is the culmination of the book.  Justices Black, Douglas, Frankfurter and Jackson would go down in American history as among the most influential justices to have ever sat on the bench.  The court, meanwhile, would never be the same after Brown, focusing more on decisions that favored the right of minorities and advanced individual freedom.

“There is no one way to interpret the Constitution,” writes the author, “and the lives of the greatest justices reflect that reality.  Driven by prudence, by principle, by pragmatism, or by policy, the justices at their best make the Constitution their own.  Arguing about its true meaning, striving to make sense of its contours and its commands, is the essence of what makes us loyal to it.  To interpret the Constitution by its own best light is to be an American.”

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