Book Review: The Four Justices Who Built Modern U.S. Constitutionalism

It seems as if there’s a veritable slew of good books about Supreme Court justices this year. The latest, Noah Feldman’s Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, focuses on four of Franklin Roosevelt’s appointees: Felix Frankfurter, Hugo Black, Robert Jackson, and William O. Douglas. 

Each of these justices is fascinating and could merit an individual biography (and there are biographies on each). By writing a joint biography, however, Feldman is really able to compare and contrast these men and their jurisprudence. Frankfurter was the activist law professor who was reluctant to exercise judicial review. Hugo Black, a former KKK member, became a noted civil libertarian and read the constitution literally. Robert Jackson, a small-town lawyer and later Nuremberg prosecutor, usually judged cases with an eye towards pragmatic policy solutions. William O. Douglas pined for political office but settled for preaching liberal values. Together, these men developed or promoted the modern constitutional doctrines of judicial restraint, originalism, pragmatism, and liberalism. 

Outside the legal realm, these four justices often fought and bickered to a degree startling for four liberals appointed by the same president. Robert Jackson, who at law schools is portrayed as a reverential figure, got into a petty argument with Black over whether the latter should recuse himself in a case involving a former lawyer partner. Jackson even took his dispute public, sending cables from Nuremberg to impugn his colleague. Frankfurter viewed Black as an intellectual lightweight and relied on a network of mentees to conduct historical research against Black’s legal philosophy. Douglas comes off as boorish, especially to his law clerks. However, there are some heartening moments too, such as when Frankfurter defends Jackson against the latter’s former ungrateful law clerk, William Rehnquist. 

I haven’t been a fan of Feldman’s past work, particularly the lightweight The Fall and Rise of the Islamic State (Council on Foreign Relations Book). However, I think he gets Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices just about right. For law students like me, I can recognize some of the cases and legal debates to which the book refers. It certainly furthered my understanding of these cases. Perhaps best of all, having a passing familiarity with these justices, I was still genuinely shocked by some of the book’s anecdotes (particularly the petty fueds). However, it’s generally accessible enough for any reader interested in American history to understand and enjoy. 

My only “criticism” of Scorpions is that it’s not long enough to do the subject full justice. I know, that’s a common faux criticism. The main narrative essentially ends with Jackson’s death in 1954, after Brown v. Board. However, Feldman alludes to tantalizing hints of how the other justices behaved afterwards. For example, Black and Douglas, despite being ideological allies during the 1950s, stopped speaking to each other in the late 1960s. Yet, Feldman doesn’t really explain why. I felt like the book could really have benefitted from just a few more pages. 

Overall, I’d highly recommend this for readers interested in the Supreme Court in particular, or just U.S. history generally. I’d also recommend Jeff Shesol’s Supreme Power: Franklin Roosevelt vs. the Supreme Court, which covers FDR’s court-packing scheme and acts as a nice prequel to Scorpions.

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