Scorpions

This is my first book read on my Kindle. I am finding it a little hard to get my notes organized but am getting better at it as I continue on. I am also busy learning French using the 5-level Rosetta Stone course. I will post my review of the course when I am done--it requires a degree of tenacity that I am not confident I have. As our family matriarch often warned: "you can get too much of a good thing." Anyway, I have almost completed two of the five levels.

Noah Feldman, “Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices”, Kindle Edition, 2010, 513 Pages

Scorpions in the title of Noah Feldman’s book are four Supreme Court justices appointed by Franklin Delano Roosevelt between 1937 and 1941. These four: Felix Frankfurter, Hugo Black, Robert Jackson, and William Douglas had a very antagonistic relationship with each other—but they also left significant legacies in constitutional law. Committed New Dealers, they all embraced liberal goals, and all were extremely ambitious. Frankfurter aspired to the court's intellectual leadership. Jackson aspired to be Chief Justice and only after many years did Black and Douglas abandon notions about the presidency.
The pre-New Deal era Supreme Court, referred to as the Lochner Court after one of its famous decisions, was best known for a commitment to the free market and limited government. It struck down many state and federal laws that regulated working conditions on the grounds that these laws violated people’s constitutional right to enter contracts. The Court also interpreted the constitution to grant limited powers to Congress, leaving state governments with primary responsibility for regulating economic and social conditions. This Lochner doctrine did not lend itself to FDR’s New Deal ideas. FDR appears to have sufficiently scared this court with his ‘packing plan’ so that one justice changed his voting tendencies and resulted in a 5 to 4 coalition favoring FDR’s ideas. Ultimately, FDR would appoint 8 of the 9 justices beginning with Black in 1937.

This book clearly describes Frankfurter's judicial restraint, Black's originalism, Jackson's pragmatism, and Douglas's realism. These four judicial interpretive doctrines continue to reverberate in today’s decisions. The books description of the process of how these antagonistic justices put aside personal differences and individual philosophies to reach agreement in the historic 1954 Brown v. Board of Education is particularly enlightening.

My Notes (I read this book on my Kindle so do not have page numbers):

Location 1200: In 1929, 18 million Americans, out of a national population of some 122 million, owned securities. The market declined until it had lost a full 89 percent of its value. I do not know today’s comparable figures but many more are now affected by the market.

Location 1703: Nowhere did the Constitution specify the number of justices who would sit at any one time. Over the years, the number had ranged from as few as six to as many as ten. Thus Roosevelt felt his idea of “packing” the Court was not too far out of line: He proposed legislation that would empower the president to nominate a new federal judge-including a Supreme Court justice—for every sitting judge beyond the age of seventy. Six justices were then over seventy.

Lochner Era of Supreme Court: Lochner was one of the most controversial decisions in the Supreme Court's history, starting what is now known as the Lochner era. . In the Lochner era, the Supreme Court issued several controversial decisions invalidating progressive federal and state statutes that sought to regulate working conditions. During the quarter-century that followed Lochner, the Supreme Court generally upheld economic regulations, but also issued several rulings invalidating such regulations. The Court also began to use the Due Process Clause of the Fourteenth Amendment to protect personal (as opposed to purely property) rights, including freedom of speech and the right to send one's child to private school (which was the beginning of a line of cases interpreting privacy rights). The Lochner era is often considered to have ended in 1937 with West Coast Hotel Co. v. Parrish, in which the Supreme Court took a much broader view of the government's power to regulate economic activities.

Location 2284: Justice Hugo Black was the first justice to frame originalism as a definitive constitutional theory. Original meaning should be found by looking at the text of the Constitution as it would have been publicly understood when written.

Location 4897: The so-called Reconstruction amendments—numbers Thirteen, Fourteen, and Fifteen—had two purposes, according to Justice Black. One was to ‘make colored people citizens entitled to full equal rights as citizens.’ The other was to turn the Constitution into a truly national document by making the Bill of Rights apply to the states.

Location 4903: Black went on to describe that in 1868 the Fourteenth Amendment was ratified. But just four years later, the Supreme Court took up the first in a series of cases that would strip the amendment of its original meaning. Instead of acknowledging that the words ‘privileges or immunities’ and the concept of ‘due process’ were intended to incorporate the Bill of Rights by reference, the Court began to develop a new deviant approach. It refused to apply the specific guarantees of the Bill of Rights to the state courts. Instead it began, slowly but surely, to invent different rights—rights protecting property—that appeared nowhere in the Bill of Rights but were attributed to the vague words ‘due process of law.’ This trend, Black hinted, led directly to Lochner v. New York, and the hated doctrine of the 'liberty of contract.' Black never said exactly why the Supreme Court had suppressed the original meaning of the Fourteenth Amendment. But his implication was clear enough. During the presidency of Andrew Johnson, the process of Reconstruction had been abandoned. Segregation had replaced integration. At the same time, in the industrialized Northern states, big business had started to dominate the institutions of government. The Supreme Court had gone along with Congress’s abandonment of Southern blacks. And it had happily become an instrument of capitalism, using the Fourteenth Amendment to protect the property rights of corporations. Before Black, no one had carefully studied the history of how the Fourteenth Amendment was drafted.

Location 4936: Frankfurter truly detested Justice Douglas. He would never stop thinking that Douglas was entirely unprincipled, pursuing his presidential ambitions form the bench and deciding cases solely on the basis of how they would play politically.

Location 5864: The racially restrictive Nuremberg laws passed by the third Reich had been based on the model of American segregation laws, with their quantum-of-blood measurements and their bans on miscegenation.

Location 5879: The filibuster rule allowed senators to block any piece of legislation that did not receive a two-thirds vote. The Senate’s procedures, coupled with the numbers of Southern and Southern-sympathizing senators, made it all but impossible for Congress to take on the issue of desegregation up through the 1950s. Therefore, civil rights activists turned to the courts—the only branch of the federal government left.

Location 5984: Today, with a certainty that would gratify Justice Black, we believe the Constitution prohibits racial subordination. And segregation, as Black pointed out, was intended to subordinate African-Americans.