Review of “Scorpions” by Noah Feldman

Harvard Law professor Noah Feldman has given us a thoroughly researched, well written, solid analysis of the inner workings of the U.S. Supreme Court during the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the Scorpions of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court packing scheme; how testimony by Jackson (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

“Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

Review of “Inventing George Washington” by Edward G. Lengel

Edward G. Lengel is editor in chief of the Washington Papers Project and thus has spent hours and hours “in the company” of George Washington. As someone who therefore has had the truth in hand, he has marveled over the tenacity of falsehoods about Washington. The purpose of this book is to explore both the myths and the mythmakers to determine what purposes these distorted memories of “The Father of Our Country” have served for Americans.

The study of collective memory is incredibly interesting, because, as Yael Zerubavel points out:

[It] continuously negotiates between available historical records and current social and political agendas. In this process of referring back to history, collective memory shifts its interpretation, selectively emphasizing, suppressing, and elaborating different aspects of those records. History and memory, therefore, do not operate in totally detached, opposite directions; their relationships are underlined by conflict as well as by interdependence.” In Representations 45 (Winter 1994), at 73.

Lengel presents various examples of the metamorphosis of Washington’s memory, arguing that the changes reflected whatever contemporary collective self-image Americans wanted to reinforce. I should emphasize that Lengel is not talking about the “horizon of understanding” of different eras, nor about the inevitable influence of a historian’s own conceptual lenses. Rather, he refers to intentional manipulation in the interest of serving social and political agendas.

He starts with The Life and Memorable Actions of George Washington by “Parson” Mason Locke Weems, first published in 1800, averring “it contained some of the most beloved lies of American history, including the famous cherry tree myth, and spawned scores of imitators.”

As he takes us on a tour of the historical representation of Washington through the ages, he also comments on the cultural factors that probably contributed to the ways in which Washington was portrayed. Perhaps most interesting to readers will be his analysis of the current situation, in which “spurious Washington quotations, disseminated in the name of politics and religion, have also gained renewed popularity at the beginning of the twenty-first century.” He cites misquotations by gun rights advocates, by Senator John McCain, by former Vice President Al Gore, and in the most egregious example, by Congresswoman Michele Bachmann. He also recounts anecdotes of stories about Washington and marijuana, Washington and ghosts, and of course, Washington and aliens.

George Washington and Blue Tooth

He concludes by noting:

History is always in danger of growing stale through repetition. No one wants to hear the same old tale repeated over again. … Unfortunately, the temptation to veer from the straight and narrow in the search for historical truth is well-nigh overwhelming, and nowhere more so than in the search for the truth about George Washington.”

Evaluation: Lengel has written a very readable book that dispels some of the most popular, and erroneous, myths about George Washington. He also offers insights into why the historical representation of our first president has been deemed too important to be left to just the truth.

Rating: 3.5/5

Review of “Year of Meteors” by Douglas R. Egerton

The United States presidential election of 1860 was possibly the most seminal in our history. Egerton follows the election with great care, giving the bulk of his attention to Democratic party politics. He articulates the positions of Stephen Douglas, John Breckenridge, and John Bell, and describes what happened at the various party conventions held to select these candidates.

Egerton posits several theses about the election that I believe he proves quite adequately in this book.

One is that the “fire-eating” Southerners were determined to brook no compromises; they wanted to split the Democratic party vote. Their stated goal was to get a Republican elected, so that the South would have an “excuse” to secede. The two chief engineers of this plan were the rabid secessionists William Yancey of Alabama and Robert Rhett of South Carolina. Both of them had been publicly calling for secession for years.

The second is that, in spite of what later revisionist historians claimed about the motives of Southerners, it was never about “states’ rights”; it was always about slavery. As the Vice President of the Confederate States, Alexander Stephens, declared of the new government:

…its corner-stone rests upon the great truth that the negro is not equal to the white man; that slavery – subordination to the superior race – is his natural and normal condition.”

(It should also be noted that southern planters rejected northern offers to free blacks and then colonize them in Liberia or elsewhere so the southerners wouldn’t have to deal with them. Southern “Yanceyites” had no interest in freeing blacks. In fact, they wanted more enslaved workers, not fewer, and even lobbied to get the Atlantic slave trade re-opened to “stock” the western territories.)

At the time of the 1860 election, as Egerton points out:

[white southern planters] saw no reason to disguise their message; it would only be in later years, after the Confederacy had collapsed under northern guns, that statesmen writing their memoirs would think it necessary to point to more morally acceptable causes such as economic grievances.”

Even President Buchanan, trying to diffuse the secession crisis, made a speech in which he admonished that talk of liberty and equality by northerners could cause servile insurrections and terrify plantation mistresses in dread of what could happen to them. [No one of course was concerned about the terrified young black girls in the slave quarters, whose fears were actually based on reality. This best-ever example of projecting your worst characteristics onto your enemies was repeated over and over again in the South in the reconstruction years.] (Buchanan, who wasn’t even our worst or our most racist president, endorsed Breckinridge for president in the 1860 race because Breckinridge was the only one to favor a federal slave code for the territories, as opposed to letting the territories decide based on popular sovereignty, and thereby taking the risk that some of them would be – gasp – free.)

A third theory Egerton advances is that even had the Democratic party stayed united behind Stephen A. Douglas, Lincoln still would have won. He includes an analysis of the electoral and popular voting to support his position.

Stephen A. Douglas

Stephen Douglas, no matter what else he might have been, was a staunch unionist, and when Lincoln won the election, he backed him all the way, meeting with him often to consult on the deteriorating national situation. In fact, they got on so well that Secretary of State Seward, who wanted to exert the most influence over Lincoln, was disturbed over “the growing intimacy between the senator and the president.” As it happened, Seward needn’t have worried. At President Lincoln’s request, Douglas undertook a mission to the Border States and to the Northwest to rouse Unionist sentiments among their citizenry, but the non-stop schedule and non-stop drinking wore him down. He died of typhoid fever on June 3, 1861, at the age of forty-eight.

Discussion: This excellent book covers only a small slice of antebellum politics, but is rich in detail. It is especially valuable for its focus on Douglas and his southern rivals rather than on Lincoln. I enjoyed it a great deal, but I wouldn’t recommend it to a reader unfamiliar with the broader context, or with the constitutional, territorial, and sectional issues that were roiling the nation.

Rating: 3.5/5