Scorpions:
BOOKS
The Battles and Triumphs of FDR’s
Great Supreme Court Justices
Twelve/Hachette Book Group
Noah Feldman, Author
COMMITTEE COMMENTARY
Scorpions by Harvard law professor Noah Feldman weaves together the lives, politics, and judicial approaches of four great justices
nominated to serve on the Supreme Court by President Franklin Delano Roosevelt—Hugo Black, William Douglas, Felix Frankfurter,
and Robert Jackson. The book takes its title from a quote by Alexander Bickel, who clerked for Justice Frankfurter: “The Supreme
Court is nine scorpions in a bottle.” Feldman uses this metaphor to characterize the creative ferment of the justices’ interactions on the
Court. He explores what they shared and, ultimately, what separated them. Linked to FDR and the New Deal, they were each self-made
men who had great intellect and ambition. Yet, as Feldman persuasively argues, “Their greatness came to pass precisely because each
went his own way, each developing a constitutional vision distinctive to his own personality and worldview.” The author also makes a
convincing case that the judicial philosophies they developed—Frankfurter’s judicial restraint, Black’s originalism, Douglas’s “autonomyexpanding living Constitution,” and Jackson’s pragmatism—“live on” today, representing the range of ways to interpret the Constitution.
Feldman does not shy away from presenting these justices as “real” men, as flawed but remarkable individuals. His intent is to enhance
understanding of their accomplishments, not to detract from them. Feldman shows how the great progressive, Felix Frankfurter, whose
view of judicial restraint green lighted FDR’s New Deal legislation, came to be seen as a conservative brake on the judicial activism of the
later Warren Court. Hugo Black, once a member of the Ku Klux Klan, became a champion of civil liberties and civil rights. Feldman’s
collective biography of the Roosevelt justices is both educational and entertaining and written in a lively, accessible style that can be
enjoyed by all readers.
INTERVIEW with Noah Feldman
Nina Sabin
Noah Feldman, the author of Scorpions, is Bemis Professor of International Law at Harvard Law School. He wrote Scorpions over
a five-year period. Feldman is also the author of Fall and Rise of the Islamic State, Divided by God: America’s Church-State
Problem, and What We Should Do About It.
Where did the initial idea for your book come from?
I wanted to write a book about how modern constitutional law came
into being. In teaching, I’ve always been fascinated by how the justices’
personalities and life stories shaped their ideas. Theory is great, but
theory is shaped by actual human beings and their real-world circumstances. In the book I talk about constitutional philosophies—but
always through the lens of the individual.
How do you think your book treats or offers insights or
perspectives on legal issues and legal institutions?
I show a key legal institution—the Supreme Court—in action. I
demonstrate, I think, that putting ambitious, brilliant, talented people
in a small setting and making them duke it out can produce results of
genius. My nine scorpions are in a bottle, and the bottle is the Supreme
Court itself.
What resources were required to develop Scorpions?
I got great research help from a dozen students at NYU and Harvard.
I got tremendous help and feedback from colleagues and friends
who read and discussed the manuscript. I interviewed people who
had known and clerked for the Roosevelt justices. And I read and
researched like crazy!
How does Scorpions foster public understanding? What do you see
as its public impact?
The public idealizes the Supreme Court—and that is a bad thing. It
gives us the mistaken impression that justices must be monks or saints.
They never were—including the greatest of them. History as presented
in the book should free people to accept riskier, more outspoken, even
controversial, nominees. My motto is “Flawed people—we need them!”
6 | 2011 Silver Gavel Awards
What does winning the Silver Gavel Award from the ABA
mean to you?
A big part of my job is to make legal ideas accessible to the general public.
I’m thrilled with the award because its creators, I think, share my belief
that a healthy democracy needs to communicate constitutional and legal
ideas to all citizens.
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices retails for
$29.99 hardcover. It is available from Twelve Books and booksellers nationwide. For more
information, go to www.twelvebooks.com/books/scorpions.asp
EXCERPT
Chapter 1: In the Club
The mingled smells of oiled mahogany paneling, polished brass, and
good tobacco were familiar ones to Franklin Delano Roosevelt. Folding
his slim frame into a leather-upholstered chair in the new, three-story
clubroom of the Harvard Club of New York, the recent graduate was
exactly where he belonged. He had a job working in an elite Wall Street
law firm, intended as a brief interlude before he sought political office.
His starting position was enviable. The previous year he had married his
cousin Eleanor, the favorite niece of the president of the United States.
Joining Roosevelt for lunch at the club on that
spring day in 1906 was another twenty-fouryear-old New Yorker, also a newly minted
lawyer eager to become involved in politics.
There the similarities came abruptly to an
end. Rich and impeccably bred, Roosevelt
was a favored child of the Hudson Valley
aristocracy, education at Groton, Harvard
College, and Columbia Law School. His
ancestors had come to what was then New
Amsterdam before 1650. Felix Frankfurter
had arrived in the United States from Austria
at age twelve—in steerage, without a word
of English. A dozen years later, after City
College and Harvard Law School, he still
spoke his acquired language with a noticeable
Austrian accent.
But speak he did—and with a passionate
intensity that exempted no one. Frankfurter
would grab his listener by the upper arm,
squeezing hard on the bicep while pressing
a point. Argument was his favored, almost
constant mode of expression. He argued so
well, in fact, that he had finished first in his
law school class. That was his entrée into
the corridors of power. It was the only way a
recent immigrant could have been lunching
on terms of equality with a Roosevelt.
The paths that Roosevelt and Frankfurter
had followed to New York legal practice were as divergent as their
backgrounds. … While Roosevelt was averaging a gentleman’s C at
Harvard, Frankfurter finished third in his class at City College and left
college (like Roosevelt) with the vague plan of becoming a lawyer.
An obsessive newspaper reader interested in politics and public affairs,
Frankfurter did not yet aspire to an active role on the American stage. As
a recent immigrant, it would have been odd if he had. Few Jews were then
prominent in national affairs, and although Frankfurter had ceased to
be religiously observant—he walked out of Yom Kippur services during
his junior year and never looked back—his ethnic identity was obvious
and permanently fixed. That he would soon become one of the country’s
best-known and most influential public figures was unimaginable.
Chapter 4: Upstate/Chapter 10: Art and Taxes
Robert Houghwout Jackson was a decade younger than Roosevelt and
Frankfurter, and he too was a New Yorker—raised in the small town of
Frewsburg, in the extreme western part of the state near the Pennsylvania
border. Like Frankfurter, he met Roosevelt early, without forming
a close attachment to him. The reason again was the stark difference
in background. Ethnically, Jackson
was not so distinct from Roosevelt.
He even had some Dutch ancestors,
as his middle name hinted. But if
Roosevelt’s family were rich people
who moved in the highest echelons
of American society, Jackson’s were
small-time farmers in a distant,
poor corner of the Empire State.
The eighteen-year-old Jackson met
the twenty-eight-year-old Roosevelt
for the first time in Albany in 1911.
… The impression Jackson made on
Roosevelt at this first meeting cannot
have been much. Though pleasantlooking with even features, high
cheekbones, and wavy dark hair, the
youthful Jackson was by his own
account a “countryman” compared to
the polished Roosevelt. …
When [legendary criminal-defense
attorney Frank J.] Hogan remarked
to the press that Jackson was “ just a
country lawyer,” Jackson “immediately picked that up and said, ‘Yes,
that’s what I am. That’s just what I
am.’” The “country lawyer” sobriquet
became a Jackson trademark. In
Jackson’s appropriation of the phrase
country did not imply simplicity; after all, he got the name trying an
enormously complex tax case. Country meant common sense. For
Jackson, the term became part of a narrative that also included his lack
of a law school degree and the trials he had conducted in the justice
of the peace courts. Eventually, invoking country common sense would
provide context and cover for Jackson’s willingness to dismiss accumulated doctrinal precedent when he did not think it led to results that
were pragmatically sound.
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