SCORPIONS: Noah Feldman

This book explores the relationship between four of the most influential justices during the 1940's, all appointed by FDR, all seeming;y having the same liberal tendencies, though Frankfurter believed in , the  rest were literalists, taking in to account the time, cultural changes, and ideas of the times.  The four were Felix Frankfurther, a Jewish immigrant, confidant of FDR for most of the 30's, the intellectual of the court; Hugo Black, picked because he was from the South, unfortunately, he also had been a member of the Ku Klux Klan, mostly to get the white vote to become senator. Somehow he was confirmed.  William Douglas, by far the most precocious, hand picked by Roosevelt at the age of forty to sit on the court.  He became the longest serving justice, the champion of liberal causes and the environment, hated by conservatives, loved by liberals.  And finally, Robert Jackson, a small town lawyer from Jamestown, NY, who slowly became part of the state, then federal government, gaining the attention of FDR because of his views on the court, how it should decide cases.  He helped shape the attempts by FDR to pack the court in the 30's, became Solicitor General, then Attorney General, finally being appointed to the Supreme Court and, as his final act, presiding over the Nuremberg Trials at the end of WW II.  He is by far the most interesting, having little formal education other than a high school degree.  He mostly taught himself the law, passed the bar, and continued to grow, much different from Frankfurter, from Harvard Law School, Douglas from Yale.  Black was more similar to Jackson in that he was not part of the Eastern establishment.

Now all four are on the Supreme Court, all are ambitious, have wanted to be at the center of things and WW II begins with Pearl Harbor.  As a result, the court is pushed into the background and the war becomes the center, the Supreme Court and its decisions peripheral, unless a decision was central to the war effort, like the trying of 8 Germans who infiltrated our borders, with sabotage in mind.  It reminded me of the Guantanamo Trials, where no one is sure who had jurisdiction, what are the combatants rights, things like that.  FDR basically got his way, as they were tried by a military court, hung, and the Supreme Court figured out some way to go along with the President's right to decide this.  I can see how these four, seemingly liberals and friends, are beginning to develop different points of view and will be at each other's throats as the book continues, thus the title, SCORPIONS.

It's interesting reading how political everything is, how they, the justices, are maneuvering to gain power, win prestige, perhaps in the case of William Douglas, run for President.  Until 1952, he was abhor ed by his colleagues because his votes seemed political, inconsistent, whatever would be best for his career in the long run.  When he realized his dream of being President was not to be, he then developed his persona as the defender of individual rights, the environment, perhaps the most liberal and longest serving of any judge.  The section on Robert Jackson, his post as chief prosecutor at Nuremberg was also interesting, as it seemed he was out of his element, a bit of a joke to much of Europe, especially when prosecuting Goering, as if he were a Jamestown criminal.  He does not come off at all well, though its a brief section, and right in the midst of the trials, the Chief Justice dies, a post that Jackson was promised and lusted after, but it was not to be, as he was blocked by another justice, Hugo Black, as pay back for accusing his of favoritism in a case, when he should have recused himself. The dislike, even hatred this four develop towards each other is amazing in men who supposedly uphold the laws of the country.  We see how petty they can be, how quarrelsome, how they all end up with very different understandings of the court and the Constitution.  At this point, I cannot say who I respect the most, as all seem like little children as they try to gain power though most seem very serious about the cases, and their decisions, often disagreeing with each other, mocking each others defenses a puerile or silly or mistaken.

With FDR's death, there power wanes, as all four owe their positions to him, not Truman.  And they seem to have little respect for Truman, which does they little good, as they become marginalized to an extent, with no power in the White House. I about coming up to their most famous case, Brown vs. the Board of Education, though their decision on a case of how to treat enemy combatants, whether to extend the the rights of a  citizen or not, influenced the Guantanamo's trials, as precedent setting.

Jackson does stand out for his gift with the pen and he's often quoted for the clarity and conciseness of his opinions.  For example, when responding to Hugo Black's and current Justice belief in 'originalism,' the belief that  we interpret what the original writers of the Constitution intended, he says: " As for the original intent of the framers, what they envisioned 'or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams of Joseph was called upon to interpret for Pharaoh.'"  No more pithy dismissal of originalism appears in any document.

In the end, we see how human these 'immortals' are, often petty, hateful, ambitious, and power driven, worried about their legacies, lusting after power and influence, ultimately concerned as much about how they will be viewed in history as their briefs.  The four did manage to agree on their most important case, Brown vs. The Board of Education,  throwing out the 'separate but equal' clause, but also waffling by suggesting that change should be made incrementally, as they were afraid of chaos and rioting in the south if things changed to fast.  What  I took a way was how they were often restricted by their versions of the Constitution from doing something that made sense.  The Brown case was an example, as most knew that 'separate but equal' should be thrown out but they needed to find some way to rationalize their acquiescence.  The only one who was not troubled by this was Douglas who seemed to be a iconoclasts, with little judiciary consistency.  The other three all developed a philosophy which they used when deciding a case.  The final conclusion suggests that Jackson may have been the most influential for modern times, as he is often quoted and has gained more respect as the years have gone by, even regarding the Nuremberg Trials, where he struggled but ultimately it has set the state for a world court.