Noah Feldman scrutinizes FDR's Supreme Court in Scorpions.

Reading between the lines.
Nov. 17 2010 2:25 PM

Egos on the Bench

The unexpected legacy of FDR's court packing.

(Continued from Page 1)

Jackson wanted only to be named chief justice. Douglas was single-mindedly focused on being elected to higher office, which drove Frankfurter and Jackson nearly crazy. Then Black refused to recuse himself in a case brought by his former law partner, and so Jackson very publicly called him out for it. Frankfurter came to loathe Douglas, calling him one of the "two completely evil men I have ever met." Douglas called Frankfurter "der Fuehrer." To the extent that there is a happy ending to all this, it is the fact that the four managed to come together in 1954 to achieve a unanimous result in Brown v. Board of Education, the high-water mark of progressive legal jurisprudence. And perhaps that is enough.

Feldman has been criticized for privileging the personalities of his great justices over their ideologies in his book, but if Scorpions has anything to teach about judicial philosophy, it's that personality and conflict can sometimes overmaster ideology. Perhaps these four great men could never have overcome their marked philosophical differences to work together—although their strained cooperation in Brown suggests otherwise. But with his emphasis on petty grudges, inflexibility, egos, and public barbs and humiliations, Feldman reminds us that sometimes intellectual greatness just isn't enough to get you five votes for anything.

Feldman's surprising conclusion is that these four competing and irreconcilable constitutional theories were in fact more than enough: The lengthy, fretful case conferences may not have been pleasant or even all that fruitful, but they created an "ideal set of conditions for the emergence of comprehensive theories of constitutional law." Notes Feldman of his four jurists: "Their greatness came to pass precisely because each went his own way, each developing a constitutional vision distinctive to his own personality and worldview." In Feldman's eyes, while ideological consensus can be a worthy goal, "the justices of the Roosevelt Court also demonstrate that agreement is not the most important value for the members of the institution charged with interpreting the Constitution." Feldman ultimately prefers four robust, even conflicting views of progressive jurisprudential theory to a unitary theory that answers every question every time.


The case that's most emblematic of this conclusion is Brown itself, which was born of a hodgepodge of half-realized theories and compromised values. Writes Feldman, "Liberal and results-driven, it was shaped by Black's moral clarity, Frankfurter's aspiration to judicial leadership, Douglas' political instincts and Jackson's frank pragmatism." Acknowledging that the patchwork result was "confusing" and "incoherent" and laid the groundwork for the decades of liberal constitutional turmoil that followed, Feldman nevertheless calls it the greatest accomplishment of the Roosevelt justices. They may not have provided a coherent game plan for progressive justices who followed, but their combined ideas continue to occupy the field.

In his thoughtful review, professor Jeremy Rabkin concludes that by failing to put his philosophical money on any one of these four competing theories, Feldman proves that "what liberals are mainly selling is nostalgia." Perhaps. Or perhaps what Feldman is suggesting is that the decades-long search for a single, simple, unified progressive constitutional theory—a theory to rival the tidiness of originalism or strict construction—is misplaced. Perhaps the country is better off—and the Constitution itself is better off—with less intellectual tidiness and more philosophical struggle. It's hardly clear that this kind of constitutional messiness is ever going to be good for liberals. Feldman's point, I think, is that it's good for the Constitution.

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