Eric Posner Reviews Noah Feldman's Scorpions

The Four Tops
Eric A. Posner
The New Republic
October 14, 2010

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices

by Noah Feldman

Twelve Publishing, 528 pp., $30

The scorpions in the title of Noah Feldman’s book are four Supreme Court justices appointed by Franklin Delano Roosevelt between 1937 and 1941. Felix Frankfurter, Hugo Black, Robert Jackson, and William Douglas were frequently petty and vindictive in their dealings with each other—yes, like scorpions in a bottle—but they also left significant legacies in constitutional law.

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.

These doctrines did not auger well for the New Deal program of national economic regulation. The court struck down some central New Deal statutes, and several others hung in the balance. To defend the New Deal, Roosevelt tried to push through a law that increased the number of Supreme Court justices so that he would be able to appoint a majority. The law was never enacted but in the meantime, one justice changed his vote in these cases. The anti-New Deal coalition was now outnumbered 5 to 4.

That same year, 1937, a retirement presented the president with the chance to appoint his first justice. Roosevelt wanted someone who would uphold New Deal legislation and he could do this by appointing a committed New Dealer such as Hugo Black. He ended up appointing eight justices. These appointments, along with the political popularity of Roosevelt and his New Deal, killed Lochnerism—the clearest and most famous example of the way politics ultimately shapes the constitution.

Faculty: 
Eric Posner