Ten Take-Aways From The Book “Scorpions”

From 1960 until 1976 I flirted with becoming a lawyer, even attending law school at night for several years before discovering that community destination marketing as my true calling. It fell to my daughter to finish law school and pass the bar in two states.

Part of what stoked my interest in law during those 16 years were the towering figures on the Supreme Court including Frankfurter, Black, Douglas, Brennan, Warren and Marshall - all contemporaries bracketing by birth both my paternal and maternal grandfathers.

I smiled when just retired Justice John Paul Stevens, who was appointed to replace Douglas near the end of my 16 year flirtation with law, had to correct the news media by stating that he was not a “liberal” while illustrating how far the Court has shifted to the right.

Looking back, along with President John F. Kennedy, these men were part of my introduction to the deep and powerful roots of progressive/liberalism in this country’s history and in many ways part of the reason I transformed from the politics of my parents and grandparents to those of my maternal great grandfather.

So as you can imagine, when it was recently released, I devoured the new book by Noah Feldman titled Scorpions, The Battles and Triumphs of FDR’s Great Supreme Court Justices. I first became aware of Feldman, whose background is Orthodox Judaism, from a speech he made at Princeton about Mitt Romney, closely related to a prior speech I had heard of his on TED where he treated religion and politics as technologies.

The title comes from a quote by a Frankfurter clerk characterizing the Supreme Court as “nine scorpions in a bottle.”

As was another book, published last year (this year in paperback) by Adam Cohen, titled Nothing To Fear: FDR’s Inner Circle and the Hundred Days That Created Modern America Feldman’s new book not only puts a lot of our current events into perspective but it illustrates the ridiculous nature of today’s polarized sound bites.

Here are 10 of my take-aways from this excellent book:

• While the four Justices at the center of the book, Black, Douglas, Frankfurter and Jackson (who died right after the unanimous Brown vs. Board of Education decision broke the back of segregation,) were progressives steeped in liberalism and they each evolved during their lifetimes and their terms on the Supreme Court.

• Frankfurter became one of the Court’s most conservative justices. Black, elected to the Senate through a brief membership in the Ku Klux Klan became an ardent champion of free speech and civil rights. Douglas became a libertarian on issues of privacy and individual freedom. Jackson, a back-country lawyer, the last appointed to the Court without a formal law degree conducted the most important International trial ever, Nuremburg.

• While they each rose from very humble beginnings, they ardently believed in capitalism but that to be saved it needed to be regulated. Douglas who headed the SEC was first to demand that Wall Street be much more transparent and that independent audits be required.

• While today’s court is more conservative, ironically that wing relies on the constitutional philosophies of two of these great liberal predecessors: Frankfurter’s Judicial Restraint, Black’s Original Intent; and the Court as a whole is informed by Douglas’s emphasis on individual privacy and civil liberty and environmentalism as well as Jackson’s pragmatism.

• The book interweaves the stories of many others preceding, during and following that era and related issues including how Justice Warren, who had supported “internment” of Japanese Americans during WWII but was then nominated for governor of California by all three major parties, Republican, Democrat and Progressive and was then later appointed Chief Justice by President Eisenhower, spearheaded the belief that the Constitution embodied natural rights as well as the belief that the Court had a role in actively protecting them.

• In late October, traveling across country, I heard an interview on Satellite radio during which an expert demonstrated that the Supreme Court made the mistake in an opinion that opened the flood gates to unlimited corporate contributions to political campaigns that led to copious, anonymous campaign advertising because the majority mistakenly believed regulations were in place to prevent that outcome. As the book illustrates, even great Supreme Court justices make mistakes.

• Feldman also details the medical treatment and philosophy that empowered FDR to overcome his mid-career paralysis from polio and the transformation of his politics prior to becoming President of the United States during 12 years of economic and wartime crisis.

• Eras such as FDR’s illustrate that regardless of ideology, things are never as tidy as history or the all-to-often dualistic bent of today’s news coverage make them out to be and that the polarized, hearing-driven, “safe” approach for appointments to the Court today may not result in the greatness of the past.

• One of my favorite Justices on the Supreme Court today is Ruth Bader Ginsburg. It is ironic that her application to clerk was rejected by Justice Frankfurter because she was a woman but her pragmatism would make Justice Jackson proud. She doesn’t fit a “mold” and nor did the Scorpions in this book.

• Labels such as Liberal, Libertarian and Conservative are all honorable and the polarizing and demonizing rhetoric of today’s talk-show fueled hyperbole and distortions are of no service to true Americans or our Founding Fathers. It recalls a humorous idiom I learned in law school – “When the law is against you, argue the facts. When the facts are against you, argue the law. When both are against you, rant and rave and call the other side names.”