Rabkin Book Review Appears in Wall Street Journal

The November 6 edition of The Wall Street Journal contains a book review by Professor Jeremy Rabkin entitled "The New Dealers' Court."

Reviewed by Rabkin is Harvard law professor and author Noah Feldman's Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, an overview of the careers of Justices Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson. The justices were all appointees of President Franklin Delano Roosevelt in the aftermath of a failed effort by FDR to expand the size of the Supreme Court to ensure a pro-New Deal majority.

The New Dealers' Court, The Wall Street Journal, November 6, 2010. By Jeremy Rabkin.

"The book offers a wealth of anecdotes but no revelations. Almost all the material in 'Scorpions' is drawn from previously published accounts. Mr. Feldman tells these stories in a graceful narrative, cutting back and forth between different characters, situating personal doings in the great events of the era. It's effective popular history.

"For a scholar who holds a chair at Harvard Law School, though, Mr. Feldman is remarkably uninterested in legal analysis. The core of the book takes readers through a dozen or so landmark legal disputes of the 1940s and 1950s, but even here he keeps his focus on the interplay of personalities on the Supreme Court. He makes little effort to evaluate the weight of these cases as precedents and offers no discussion at all of the cases in the early 1940s, when the Roosevelt appointees repudiated all past limits on federal regulatory power. It is not much compensation to get two chapters on Justice Jackson's dramatic moments as Nuremberg prosecutor—with no explanation of the actual charges in these cases and the simple assurance that 'most historians consider the Nuremberg tribunal to have been a highly consequential historical event.'

"The biggest problem with Mr. Feldman's account is that, while all the Roosevelt appointees agreed that there should be broad constitutional scope for New Deal programs, they emphasized different reasons and followed the arguments to different results as they encountered new issues. Frankfurter, for example, consistently urged judicial deference to legislative judgments, while Black insisted that the courts must uphold the words of the Constitution—which in his reading allowed almost limitless scope for economic regulation but set sharp limits on government in other areas."

Read the book review