Our Must-Reads Featuring the High Court
When President Barack Obama scolded the U.S. Supreme Court over the Citizens United case during last year’s State of the Union address, some historians had a sense of déjà vu.
Obama’s remarks conjured up President Franklin D. Roosevelt’s crusade against the aging justices who, by 1937, were denying his New Deal legislation.
But 2010 proved to be an excellent year for Supreme Court histories, and four recently published books are must-reads. Read in sequence, they chronicle how FDR won the battle and how his policies endured through the novel legal philosophies of his high court appointees. Those policies eventually spurred a conservative response and a bid to revive progressive thinking.
Scorpions, Harvard law professor Noah Feldman’s superb narrative about FDR’s most impressive justices, should be first on the reading list. Scorpions intertwines stories about the odd foursome of Justices Hugo L. Black, Felix Frankfurter, Robert H. Jackson and William O. Douglas. One was a Southern senator and former Ku Klux Klan member; one was a Jewish Harvard professor; one was a country lawyer from upstate New York; and one was a Westerner who traveled east to go to law school. Feldman recounts how they courted Roosevelt, how they dealt with the postwar and civil rights eras, and how their ambitions ultimately undermined their collegiality. Feldman manages to make a highly accessible and entertaining read out of a complicated political and legal time in the country’s history.
For a different take on FDR’s court fight, grab Jeff Shesol’s stirring Supreme Power. Shesol’s writing is stark, and his research is profound. He divides this period in history into two: the high court’s face-off with FDR and the resolution of the fracas through politics.
The first half may appeal more to lawyers because of the detailed reporting it provides of events. Shesol writes, for instance, of a confrontation between Justice Louis D. Brandeis and two FDR aides after the court blasted the National Recovery Act:
‘‘ ‘You have heard,’ [Brandeis] gasped, ‘our three decisions. They change everything. … The president,’ Brandeis said, in the most damning judgment delivered that day, ‘has been living in a fool’s paradise.’ ”
From Supreme Power, continue to Justice Brennan: Liberal Champion, the long-awaited biography of the point guard of the Warren court by Seth Stern and Stephen Wermiel.
The biography reveals how William J. Brennan Jr.’s civil rights decisions often conflicted with his personal conservative philosophies. Stern and Wermiel expose his complicated family life, which forced him to barter with himself over legal questions about pornography and abortion. The famously liberal justice also was not accepting of women on the court and once rejected a potential law clerk because of the student’s leftist political views.
The most interesting stories, though, involve Brennan’s relationships with his colleagues. None is more illuminating than his renowned friendship with Earl Warren. The pair regularly met on Thursday afternoons, raising suspicions among their brethren. Said Brennan: “People jumped to the conclusion that I must have been telling him how to decide cases, … that he was a politician and not an intellect. Well, they’re just dead wrong about that.” It was a rap session, Brennan said, resulting in dynamic case law.
Wrap up your Supreme Court reading list with Justice Stephen G. Breyer’s Making Our Democracy Work. It’s a step-by-step lesson on the construction of the federal government and the role courts play. Breyer’s workable democracy theory supposes that the three branches of government can gather and form “practical” solutions.
Breyer eschews originalism in favor of understanding what each branch intends. It’s a paean for the return of a moderate viewpoint.
Yet Breyer asks a more fundamental question, one that underlies all four books: What is the power of American courts? “A chief justice,” relates Breyer, “of an African nation struggling to maintain an independent judiciary asked me directly, ‘Why do Americans do what the courts say?’ ”
It’s a question that exists long after the antagonism of 1937 and the debates over the Warren court. As Breyer shows, it continues today.
