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This was a fantastic book. Not just for fans or those interested in the Supreme Court, but to anyone who is interested in the legal history of the United States and the Supreme Court. It is amazing how the Supreme Court works and makes critical decisions that effect the lives of the entire country. The Justices cooperate, bicker, side with others, side against each other, and at times it almost comes down to using their fists, but they struggle with the unknown consequences of their decision. A great book about how F.D.R. chose his picks for the court and the impacts they left.
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‘The Supreme Court is 9 scorpions in a bottle’—Alexander Bickel, law clerk to Justice Frankfurter 1952-53.
Of these 9 Justices (all FDR appointees) Hugo Black, Felix Frankfurter, William Douglas and Robert Jackson would become great Justices. This audio book is dedicated to them. They were allies and close associates of FDR, contributed in essential ways to FDR’s New Deal, were all influenced by Justice Louis Brandeis, had taken on Wall Street and considered themselves liberals. Eventually their visions would diverge, their personalities would clash and they would become enemies. Each with his own theory about how to understand the constitution, they nevertheless reinvented this document, albeit along 4 diverging paths.
Black hailed from the Deep South and obtained his seat as Senator by wooing the KKK, even becoming a member—an association which dogged his Supreme Court appointment. He had a stint on the Bench as Magistrate in a Birmingham Police Court handling misdemeanours. For all his past KKK associations, he became a Supreme Court Justice who espoused noble human causes, most notably in the field of free speech. He maintained an absolutist view in this regard, i.e., Congress shall make NO law abridging free speech; the Constitution says NO law, and this means NO law.
Frankfurter, an Austrian born Jew arrived in the US aged 12 without a stitch of English. A Harvard law Professor, he had been, before his appointment to the Supreme Court the country’s foremost liberal, but he would become the leading Conservative on the Bench.
Douglas left his post as Yale law Professor to join the SEC, and became an adviser and friend of FDR. Douglas had Presidential aspirations and narrowly missed the Presidency. He became the most unabashedly liberal, results driven Justice ever to have sat on the Supreme Court.
Jackson, a back country lawyer, started off trying cases about cows. He was appointed Solicitor-General, and thereafter Attorney-General by FDR and played a seminal role advising the President on the legality of aiding the UK during WWII at a juncture when such assistance might have jeopardised America’s neutrality—Congress also having barred such assistance He would take an unprecedented leave of absence as Supreme Court Justice to conduct the most important International Criminal trial ever as Chief Prosecutor at Nuremburg.
Between 1937 and 1939 FDR appointed Black, Frankfurter and Douglas. In 1940 the Court had to decide on the legality of the expulsion from school of 2 Jehovah’s Witness siblings for refusing to salute the flag on religious grounds. In an opinion written by Frankfurter (Black and Douglas concurring), the Court upheld the school’s decision.
Jackson was appointed in 1941. The 4 Justices sat together for the 1st in the case of 8 German saboteurs. The Court, in a single unanimous order, had rejected their objection to a trial before a Military Commission. Their opinion would be delivered after the execution of 6 saboteurs. The Military Commission had not followed the Congressional Articles of War Rules, also FDR ordered that no court would have the authority to review the verdict. The Justices were hard-pressed to give a unanimous opinion as they had acted highly unusually by summarily approving the Military Commission. The Court might be embarrassed if it turned out that there were good reasons to doubt the constitutionality of the trial—6 defendants having already been executed already. Black felt that FDR had overstepped the bounds. Jackson disagreed, maintaining that the Court had no business reviewing FDR's decision. Frankfurter intervened proposing his judicial restraint punch-line: it is a wise requirement of Courts not to get into needless rows with other branches of Government by talking about things that need not be talked about if the a case can be disposed of with intellectual self-respect on grounds that do not raise such rows. Following Frankfurter’s circulation, the Justices decided not to make the disagreements public, the Court thereby showing war-time loyalty to FDR.
In 1943 the Government tried to strip the secretary of the Communist Party, California of citizenship. Frankfurter who was, like the defendant, a naturalised Jew, and whose Americanism had replaced his Judaism, and who lived the creed of a convert who is more zealous than one born to the faith, would have no truck with the Communist’s purported unpatriotic activities. The majority of the Court disagreed and Frankfurter was left to join in the dissenting opinion by Stone CJ.
In a case concerning the Jehovah’s Witness right to be exempt from a tax on the distribution on pamphlets, Black, Douglas and Murphy filed an unusual dissent, openly regretting their earlier votes in the 1940 flag salute-case. A year later the Court overturned Frankfurter’s judgment. In an opinion written by Jackson (not on the Court when the 1st case had been decided) the court held that the children should be protected against having to declare a believe which they did not hold. Frankfurter took the reversal of his opinion as a personal and professional calamity, especially because Jackson used the flag salute as a metaphor for Nazi’s oppression of Jews. Frankfurter responded with the most agonised and agonising opinion recorded anywhere in the US reports, defending his jurisprudence, liberalism and Jewishness. Several Justices unsuccessfully begged him not to publish the opening lines of his opinion expressing these sentiments which they thought too personal.
In the 1950 German radio operators case the Court had to deliberate an issue that would resonate 60 years later in the Guantanamo detentions: ‘Did the power of the US Courts extend overseas to protect persons who are not US citizens, yet have been tried under the auspices of the US Government?’ Jackson replied in the negative. Black and Douglas dissented, in favour of the principle of equal justice not for citizens alone, but for all persons coming within the ambit of US power.
In Dennis v US the defendants (Communists) were charged with violating the Smith Act. The question which the Court had to decide was whether the First Amendment permitted Congress to pass a law that in essence made it a crime to belong to the USACP. Frankfurter (applying his judicial restraint doctrine) and Jackson joined the majority in upholding the convictions. Black and Douglas dissented—Black of course expounding his absolutist free speech doctrine, which was his hallmark.
In Brown v Board of Education (1954) the Court revisited Plessy v. Ferguson (1896) in which the constitutionality of State laws applying racial segregation had been upheld on the ground of the ‘separate but equal’ doctrine. The scorpions would sit together as a quartet for the last time. It was also the 1st time these fiercely independent Justices agreed in a case of such great moment. They joined in the unanimous opinion delivered by Earl Warren CJ, striking down school segregation. FDR’s team had the opportunity to show their mettle as custodians of liberalism, and they rose in unison to the occasion in the most liberal of swansongs.
Related Audible.com books—‘The Majesty of the Law: Reflections of a Supreme Court Justice’ by Sandra Day O’ Connor, ‘The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court’ by Cliff Sloan & David Mckean and ‘Freedom for the Thought that We Hate: A Biography of the First Amendment’ by Anthony Lewis. Related material available through Amazon.com—‘The Supreme Court’ (4 DVD box set) narrated by David Strathairn.
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