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Liberal vs. liberal in FDR's Supreme Court

Harvard University law professor Noah Feldman talks about his book 'Scorpions' and an era when liberal attacked liberal.

By Randy Dotinga / December 2, 2011

FDR 'wanted people who shared his views, he wanted liberals, and he wanted lots of them,' Harvard law professor Noah Feldman says of FDR's appointments to the US Supreme Court.

By Matthew Hutchins


We all like to think we can handle shades of gray. But when it comes to politics, a lot of us see the world in black and white. Liberals often think conservatives are all the same, and vice versa, while both sides prefer to believe moderates are just the other side in disguise.

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Ideology is much more complicated. Just ask four influential Supreme Court justices from the middle of last century.

Each was appointed by President Franklin Roosevelt and each carried the liberal label. But, as the title of one of 2010's best books puts it, their supposedly similar views didn't stop them from turning on each other.

Their sniping helped create legal doctrines – both conservative and liberal, by modern-day standards – that affect the rights we have (and don't have) today.

Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, by Harvard University law professor Noah Feldman, is now out in paperback. In an interview this week, I asked Feldman about the black-robed battles (Go Fightin' Justices!), the evolution of liberalism, and one judge's tawdry (but not just tabloid-y) personal life.
Q: The Supreme Court blocked many of FDR's New Deal reforms, prompting him to try – and fail – to expand and pack the court. Then its resistance began to wilt, and judges started retiring. What happened then?
A: Roosevelt got a chance to name an amazing nine justices of the Supreme Court.
He was not namby-pamby on this question. He wanted people who shared his views, he wanted liberals, and he wanted lots of them.

FDR's justices were allies while he was alive, but after he died, they developed four totally different theories of what the Constitution is, two of which are considered conservative and two of which are considered liberal.
Q: What does that tell us about how the court works?
A: Even if you put people on the court who have similar political perspectives, that doesn't mean they have the same deep values. If they're smart, ambitious, and have differing approaches, they will clash and productively come up with new ideas about what the Constitution will mean.


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