Scorpions

Noah Feldman's Scorpions: The Battle and Triumphs of FDR's Great Supreme Court Justices was one of my Christmas gifts this year.  The title alone is good (based on a remark by Alexander Bickle ("The Supreme Court is nine scorpions in a bottle")); the book is even better.

This is casual history of the best sort--a highly readable book, paced with enough detail that you learn a lot in every chapter, but not so much detail that the casual reader gets bogged down.  And, I learned a lot in this book--much more than I would have thought I could learn in a book of this sort.  I actually know a fair amount of 20th century history and I know a decent amount about legal theory, but this book made me rethink all sort of things.  That is about the highest praise I can give a book.

The book centers on the lives of Hugo Black, Felix Frankfurter, Robert Jackson and William O. Douglas; all four were put on the Supreme Court by FDR in the wake of the "switch in time that saved nine."  They were all put there because FDR believed they would help turn the court in a direction he wanted it to go.  All four disapproved of the pre-FDR court.  Yet, as they matured on the bench, these four ended up a very bitter rivals.  Very bitter.  Their constitutional philosophies evolved to be remarkably different from one another.  But, in their Last Act, they were all part of the unanimous Brown decision.  Then, Jackson died, and the rest wandered off into the twilight.

The most amazing insight from the book--the reason the Supreme Court is such a mess these days and has been for the last 40 years is the direct result of FDR's decision to put these four guys on the Court.  The Brown decision is the root of the problem.  But to see that, we need to back up a bit.

As noted, these four Justices developed separate theories of jurisprudence.  In slogan form: Frankfurter developed the theory of "judicial restraint;" Black developed "originalism;" Jackson developed "legal pragmatism;" and Douglas was a pure politician.  They all started reacting negatively to a Holmes-era decision (Lochner) and worked out reasons why that decision was bad.  By the time they had been on the Court for a few years, their theories were pushing them into disagreement.  Now that alone would make an interesting tale.  But, a fascinating thing happened when the Brown case came before them.  All four knew the conclusion they wanted to reach--all four wanted to end segregation.  Yet, none of their legal theories led to that conclusion.  So, they all tortured their theories around to make them support Brown.  After that, the Court was unambiguously politicized, and legal theory was a mess.

The basic problem is that for all four of these Justices, the conclusions they wanted to reach in the case were always first; the legal theory was secondary.  So, rather than starting with the case, the legal theory, and the relevant law and proceeding to the conclusion, they started with the case, the relevant law, and the conclusion and worked toward the legal theory that connected them.  Such a process can work for a few cases, but over time, the problems multiplied.  If you think you need theory A to reach a particular conclusion, then what do you do if later in order to reach a different conclusion in a different case, you find that Theory A stands in the way?  Well, as it worked out, you torture Theory A to make it fit the conclusion you want.  This process was becoming apparent as the cases multiplied, but by Brown, the whole idea that the Theory had any independent relevance to deciding the case was manifestly an obstacle to reaching the desired conclusion.

The problem here is pretty interesting.  Looking back, we are all glad that segregation has ended (well, at least everyone outside the fever swamps is glad that segregation has ended).  But, here is the problem--there are two statements:
1) I think segregation is a really bad thing and should not be legal.
2) The Constitution of the United States prohibits segregation.
The problem is that it is entirely possible to agree with the first sentence but not the second.  So, what do you do if you are on the Supreme Court faced with a decision about segregation?  Your choice is:
a) say that even though you think segregation is a bad thing, there is nothing you can do about the laws in particular states, or
b) say that segregation is a violation of the Constitution.
The first makes you, de facto a supporter of segregation.  You don't want to be a supporter of segregation.  So, you opt for Option 2.

But, then, once you have done that, you have opened the floodgates--now replace "segregation" with anything else in the above.  What is to stop you from simply ruling anything you don't like is a violation of the Constitution?  You have already abandoned any pretense that you are reaching your conclusion based on a legal theory.  So, why not simply issue a ruling based on your preferences?  And suddenly, we have an unelected legislature.

Until now I never understood why the Brown decision became a test of the viability of a legal theory.  I have seen a steady stream of articles in my life in which an author tries to show that the reasoning in Brown is a disaster, but the same end result would be reached in a nice, legally coherent manner using the author's own legal theory.  The problem is that I have never seen how the new argument for the same end result in Brown was any better than the original reasoning. 

Why is it seemingly impermissible to say that the Constitution of the United States allows for bad laws, and that it is the responsibility of the electorate to get rid of bad laws?  (Slavery was bad, after all, but it was pretty obviously constitutionally allowed before the 13th amendment.  The fact that the Constitution didn't prohibit it is not an argument that it was somehow morally acceptable.) And similarly, why it is seemingly impossible to say that the Brown decision was not well argued, but that it is still a good thing that segregation has ended?  The reason is because of the FDR court--by blurring the distinction between legal reasoning and moral reasoning, it has become difficult to express a legal opinion without people hearing it as a moral judgment.  That is not good for legal theory or moral discussion.