Egos on the Bench

by Dahlia Lithwick

Slate
November 17, 2010

Imagine an America plunged into a recession, with a president attempting to implement progressive reforms while an intransigent Supreme Court defiantly protects the interests of big business. Now imagine that same president is given the opportunity to fill not just one or two but nine Supreme Court seats over his tenure, and to fill those seats with some of the leading progressive lawyers and thinkers of the time. Quite a thought experiment, no? Imagine a present-day Supreme Court comprised of people like Pam Karlan, Harold Koh, Amy Klobuchar (insert your own "liberal Scalia" here).

Breathe deep, my Federalist Society friends. It's still just a thought experiment.

But this was precisely the scenario faced by Franklin Roosevelt in 1937 when he first tried to pack the Supreme Court with liberal jurists. He sought to replace the "nine old men" who persistently blocked progressive legislation with the great legal liberal minds of his time. And thus this is the thought experiment to which one can't help but return throughout Noah Feldman's terrific new book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. What does it mean when a president boldly attempts to reshape American constitutional thought? Did FDR's four "great" Supreme Court appointees, who all served together from 1941 through 1954—Felix Frankfurter, Robert Jackson, Hugo Black, and William O. Douglas—redefine liberal constitutional thought? Having been selected to constitute some kind of liberal dream team—an FDR-stamped and certified Miracle on Ice—did they vanquish conservative jurisprudential thought for all time?

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