FRANKLIN D. ROOSEVELT had no shortage of accomplishments. Among the most enduring were his appointments to the Supreme Court. Over his 12 years in office, he put up nine justices—the equivalent of an entire court—and he would have appointed many more, had his "court-packing" scheme not happily collapsed.
In "Scorpions", Noah Feldman offers a detailed account of the troubles and achievements of Roosevelt's four most notable appointees. All lasted long enough to be party to the unanimous 1954 decision in Brown v Board of Education that ordered the desegregation of American schools. The last survivor, William Douglas, appointed in 1939, did not depart the court until 1975 and still holds the record as the longest serving justice.
In contrast to the polished Ivy League law-school types that sit on the court today, Roosevelt's quadrumvirate was a varied lot. Hugo Black grew up in Alabama, attended his state university's law school, and used membership in the Ku Klux Klan as a means to a swift political rise. Robert Jackson (pictured above, third from left, with Roosevelt, left), later chief prosecutor at the Nuremberg war-crimes tribunal, attended just one year of law school.
Douglas, a poker-playing pal of Roosevelt's with a strong independent streak, fed sheep to earn money during a cross-country train journey from his native Washington state to Columbia Law School. Perhaps the only justice with a semi-conventional path was Felix Frankfurter, a Jew whose family emigrated from Austria when he was 12. He worked his way through Harvard Law School, served as its first Jewish professor and built political connections that helped him to reach the highest bench in the land.
Self-made men all, the Roosevelt appointees at first set about "functioning as a team", Mr Feldman writes. Soon, however, strong-willed personalities asserted themselves, and this FDR-era "Team of Rivals" dissolved into a bickering bunch. Some of their feuds badly breached decorum in the secretive court. In 1946 Jackson, stuck in Europe and desperate to become chief justice, made public two extraordinary cables he sent to the president and Congress attacking Black. Jackson never achieved his aim. Others were at loggerheads too; Frankfurter took to calling Douglas, Black and another justice, Frank Murphy, "the Axis".
As judges, they made some bad decisions too. The worst, of course, was upholding the executive order Roosevelt signed in February 1942, shortly after the attack on Pearl Harbour and not long after the justices began their bickering. The order led to the internment of Japanese-Americans in bleak, remote camps within America, supposedly to help prevent espionage and sabotage. Black's majority opinion found that government authorities had the discretion to act as they saw necessary to protect security. A famous and complex dissent from Jackson argued that whereas wartime did imply special military powers, it was dangerous from a constitutional perspective to have a racial discrimination order that "lies about like a loaded weapon". The internment decision rankled for decades afterwards.
Redemption came, most notably in Brown v Board of Education, and Mr Feldman gives a compelling account of the back room dealings in the case. Frankfurter, wanting to end segregation but fearing that "judicial activism" would lead to a drastic move by a divided court, successfully pushed his colleagues to stall the decision for two years. In the end, Chief Justice Earl Warren, an Eisenhower appointee, used skill and luck to shepherd the justices into unanimity. Mr Feldman argues that for Black, who became one of the strongest proponents of ending segregation, the decision served as a means of freeing his legacy from Klan baggage.
Mr Feldman, a Harvard Law School professor who once clerked for a recently retired justice, David Souter, clearly enjoys the intellectual sport of dissecting opinions coming out of the court. His discussions of Brown, as well as cases about flag salutes and the government's right to seize steel mills in wartime, are nuanced and interesting. He also dwells at length on why these four justices are remembered above Roosevelt's other appointees, singling out their highly distinctive approaches to the constitution, which continue to influence justices even on today's very different court.
Frankfurter was the father of "judicial restraint", a philosophy that when he began his service on the court put him in the liberal camp, but which has evolved into a conservative rallying-cry today. Mr Feldman could have devoted a little more space to discussing how this came to pass. Black put forward the theory of “originalism”, meaning that the literal wording of the constitution should form the basis for judicial decisions. Justice Antonin Scalia holds similar beliefs today. Douglas, a mercurial man who once aspired to the presidency, became a free-speech champion. Jackson, shaped by memories of Nuremberg, as well as prior service in the executive branch, was apt to consider the real-world application of his principles.
The main shortcoming of "Scorpions", though, is that each of its four subjects merits a book of his own, as do the landmark court cases, like Brown and the Japanese internment decision. Much ink has been spilled on these four justices before, not least by the men themselves. Jackson, in particular, could write well and produced a wonderful account, published posthumously just a few years ago, of his observations of Roosevelt. But for intellectual heft, it is hard to match Mr Feldman's portrait of America's most inscrutable institution—and the men who, sometimes despite themselves, carried it through one of history's most critical periods.