Supreme Power: Franklin Roosevelt vs. the Supreme Court
By Jeff Shesol
W.W. Norton, 2010, 656 pages
$18.45 hardcover, $15.37 Kindle

In Franklin Roosevelt’s first term, which began in 1933 in the depths of the Great Depression, the Supreme Court struck down a series of his New Deal programs as unconstitutional. After his landslide re-election in 1937, FDR attempted to “pack” the Court by adding six more justices, to make sure his legislative agenda would not be destroyed further. His attempt, codified in the Judiciary Reorganization Bill of 1937, was interpreted by some legal scholars as a declaration of war against the Court, whose chief justice was Charles Evans Hughes. Some call it “the Constitutional revolution of 1937.” It was a severe political miscalculation by the President.

Although the bill failed, the “revolution” nevertheless may have influenced the older members of the Court to be more lenient toward FDR’s bills over the ensuing  years.

The author, Jeff Shesol, is a historian (he wrote Mutual Contempt, about the relationship President Lyndon Johnson and Robert Kennedy) and former speechwriter for Bill Clinton.

Shesol’s book is “a fascinating reconstruction of one of the great political and legal battles of the twentieth century,” said Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court (2008). It is “an easy-to-read tale that unfolds like a thrilling novel,” said Christopher Malone, political science professor at Pace University.

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
By Noah Feldman
Twelve (Hatchette Book Group), November 2010, 528 pages
Hardcover $19.80

Four larger-than-life justices who served under FDR, despite their mutual animosity (or perhaps because of it), helped to steer the USA through the Great Depression, World War II, the Cold War, and the civil rights movement. Feldman calls them the “founding fathers of the Constitution we have today.” Each was a self-made man who came from humble beginnings. Each was, in his own way, a genius. They are:

• Louis Brandeis, a tiny, ebullient Jew who started as America’s leading liberal and ended as its most famous judicial conservative.

• Hugo Black, a Ku Klux Klansman who became an absolutist advocate of free speech and civil rights.

• William O. Douglas, a tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.

• Robert Jackson, a back-country lawyer who started off trying cases about cows and went on to conduct the Nuremberg trial, the most important international tribunal ever.

Scorpion tells the story of these four great justices, their relationship with Roosevelt, and with each other. Feldman is a professor at Harvard University, a contributing writer for the New York Times Magazine, and an adjunct senior fellow at the Council on Foreign Relations. He is the author of Divided by God: America’s Church-State Problem—and What We Should Do About It.

Here are the definitive biographies of Justices Louis Brandeis and Thurgood Marshall. Both are inspiring. [Click on the book images for details or to purchase.]

Louis D. Brandeis: A Life
By Melvin Urofsky
Pantheon, 2009, 976 pages
$26.40 hardcover, $21.12 Kindle

Louis Brandeis was appointed to the Supreme Court in 1916 by President Wilson, and served until 1939. He is considered an extraordinary justice because of his mastery of procedural details, his comprehensive research of the facts and the law in each case, and the great clarity and logic of his opinions.

Brandeis was born and raised in Louisville, Kentucky, the son of Jewish immigrants. He entered Harvard Law School when he was eighteen, and graduated in 1877 with the highest grade average in the school’s history.

As a “people’s lawyer” he championed individual rights, defended worker protection and labor laws, and fought against powerful corporations, monopolies, and public corruption. He also helped create the Federal Reserve System.

His nomination to the Supreme Court was bitterly contested not only because he was Jewish, but also because, as Justice William O. Douglas noted, he was incorruptable.  As Supreme Court Justice, Brandeis’s opinions famously included a strong defense of free speech and the right to privacy.

He wrote hundreds of opinions, but the one with the greatest impact on the law—particularly American federalism—may have been Erie Railroad v. Tompkins in 1938. In Erie, the plaintiff brought a personal injury action in federal court because Pennsylvania law was more favorable to the defendant. Erie established the modern doctrine of diversity jurisdiction for federal courts, which essentially says a federal judge can’t make new common law in contradiction to judge-made state law. So the decision prevents the federal government from stealing powers that the Constitution reserved to the states. Erie also discouraged “forum shopping” by plaintiffs in civil actions.

Brandeis was active in the Zionist movement, seeing it as a solution to antisemitism in Europe and Russia, while reviving “the Jewish spirit.” He died in 1941.

Thurgood Marshall: American Revolutionary
By Juan Williams
Three Rivers Press, 2000, 504 pages
$8.24 paperback

Thurgood Marshall was appointed to the Supreme Court in 1967 by President Johnson, and served until 1991. He was admired more as a civil rights litigator than as a justice. His greatest achievement may have been winning the Brown v. Board of Education decision, which he argued before the U.S. Supreme Court in 1954. Brown overturned the “separate but equal” system of apartheid in education that had been established by Plessy v. Ferguson in 1896.

“He led a civil rights revolution in the 20th century that forever changed the landscape of American society,” writes Williams, a Washington Post correspondent and TV commentator. By working through the courts “to eradicate the legacy of slavery and [destroy] the racist segregation system of Jim Crow,” Marshall “had an even more profound and lasting effect on race relations than either…Martin Luther King Jr. or Malcolm X.” (Williams is also the author of Eyes on the Prize: America’s Civil Rights Years, 1954-1965.)

Marshall was born in Baltimore in 1908. His great-grandfather was a slave. He graduated first in his class from the historically black Howard University School of Law—having been rejected by the University of Maryland School of Law because of its segregation policy. Years later he successfully sued the University of Maryland for that policy (Murray v. Pearson, 1936).

As an NAACP lawyer, he won his first case (of many to come) before the Supreme Court in 1940, at the age of 32. Later that year he was appointed chief counsel for the NAACP. John Kennedy appointed Marshall to the U.S. Court of Appeals for the Second Circuit in 1961; and Lyndon Johnson appointed him solicitor general in 1965, in preparation for the high court nomination.

Williams respectfully glosses over Marshall’s history of heavy drinking and womanizing.

As a Supreme Court justice, he compiled a liberal record that included support of affirmative action and abortion, opposition to the death penalty, and protection of the rights of criminal suspects. But the Supreme Court years are anticlimactic in a heroic, combative, and courageous life, and this part of the biography is slow. Marshall died in 2001.

The fourth chief justice of the U.S. Supreme Court served from 1801 to 1835, the longest term in history. Marshall wrote the Madison v. Marbury decision, which established judicial review (the ability of the Court to declare an act of Congress unconstitutional), and made the judicial branch equal in stature to the executive and legislative branches. [Click on the book images for details, or to purchase.]

John Marshall: Definer of a Nation
By Jean Edward Smith
Holt 1998, 752 pages, $16.50 paperback

Marshall’s life was as full and adventurous as his term as chief justice. He fought in the Revolutionary War, served in the U.S. House of Representatives, and was secretary of state under President Adams. A moderate Federalist, he was bitterly at odds with his cousin and fellow Virginian Thomas Jefferson. Marshall (1755-1835) was a warm, gregarious, modest man, with keen political acumen. Smith’s is the most comprehensive and enjoyable among the dozen-plus biographies of Marshall, but it leaves room for more scholarship on the subject. The author is a University of Toronto political scientist.

The Great Chief Justice: John Marshall and the Rule of Law
By Charles F. Hobson
University Press of Kansas 2000, 256 pages, $14.35 paperback

Albert J. Beveridge, who wrote a four-volume biography of Marshall (published between 1916 and 1919), portrayed Marshall as willfully ignorant of legal precedent, which allowed him to craft his jurisprudence according to his political affiliations. Hobson, on the other hand, shows Marshall as having a masterful understanding of precedent. “Hobson’s research is impressive and his writing clear,” said Publishers Weekly. This book focuses on Marshall’s political and judicial life, not his personal life. Hobson is a historian at the College of William and Mary.

The Chief Justiceship of John Marshall, 1801-1835
By Herbert A. Johnson
U. of South Carolina Press 1998, 340 pages, $24.95 paperback

A portrait of the Marshall Court’s activities and accomplishments, including the establishment of the supremacy of the federal government, and its interpretation of the commerce and contract clauses as foundations for economic development. Johnson is professor of constitutional law at University of South Carolina Law School.

Marbury was the 1803 landmark case that gave the Supreme Court the power to declare an act of Congress or the President unconstitutional, also known as judicial review. In doing so, the Court made itself equal in stature to the other two branches of government. (Click on the book images to see more details or to purchase.)

The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court
By Cliff Sloan and David McKean
Public Affairs 2009, 288 pages
$17.79 hardcover, $14.82 Kindle

Sloan and McKean “paint a vivid picture of intense political conflicts between the Federalists and Jeffersonians,” said the Wasington Post. “In so doing, they skillfully present the reader with a political thriller. Less successful are the authors’ attempts to answer the crucial questions of how and why Chief Justice Marshall fashioned his brilliant holding in the case.”

Marbury v. Madison : The Origins and Legacy of Judicial Review
By William E. Nelson
University Press of Kansas 2000, 160 pages
$11.65 paperback

Nelson clarifies how the Marshall court sought to preserve what was best in 18th-century constitutionalism while accommodating 19th-century political realities. He also traces the gradual transformation of Marbury-style judicial review since Marshall’s time.

The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review
By Lawrence Goldstone
Walker 2008, 304 pages
$17.16 hardcover

Chief Justice John Marshall’s reasoning was laughable, writes Goldstone, a popular historian who has a Ph.D. in American constitutional studies. The Constitution does not grant the Supreme Court a power of judicial review. Goldstone does acknowledge Marshall’s statesmanship and political brilliance in crafting the Marbury decision, to be fair. “The result is a readable, if opinionated, tour of the origins of judicial review,” said Publisher’s Weekly.

(Click on the images to see more details or purchase a book.)

A History of the Supreme Court
By Bernard Schwartz
Oxford 1995, 480 pages
$22.45 paperback

A History of the Supreme Court is written by a constitutional scholar with a moderate-liberal slant. The book “provides a thorough, balanced and readable” chronology, in which Schwartz “mixes biographical sketches of justices like John Marshall with insightful analyses of major decisions,” said Publishers Weekly. Particularly interesting is how the early court’s decisions “contributed vitally to an expanding federal economy and the rise of corporations.”

The Supreme Court
By William H. Rehnquist
Vintage 2002, 336 pages
$10.85 paperback, $9.99 Kindle

The Supreme Court, by the late Chief Justice Rehnquist, was first published in 1987 and substantially updated in 2001. It “gives lay readers a clear understanding of U.S. Supreme Court decisions and the manner used to decide cases,” said Library Journal. Those decisions range from Marbury v. Madison (1803) and Dred Scott v. Sandford (1857) through the “New Deal Court” and the Warren Court.

The Supreme Court: The Personalities and Rivalries That Defined America
By Jeffrey Rosen
Holt 2007, 228 pgs
$10.88 paperback, $9.99 Kindle

The Supreme Court: The Personalities and Rivalries is written by a law professor and legal affairs editor at the New Republic. The book “profiles four pairs of contrasting personalities” (said Publishers Weekly):

• President Thomas Jefferson and Chief Justice John Marshall
• Justices Oliver Wendell Holmes and John Marshall Harlan
• Justices William O. Douglas and Hugo Black
• Justice Antonin Scalia and Chief Justice William Rehnquist

For example, Marshall, Harlan, Black and Rehnquist were more collegial and willing to “compromise and subordinate their own agendas to the prestige of the Court,” said PW.

Other books about the U.S. Supreme Court
U.S. Supreme Court: 1970 to 2008 (mini-reviews of 3 books)
2 Radical Views of the Supreme Court (mini-reviews)

Men in Black: How the Supreme Court is Destroying America
By Mark R. Levin
Regnery 2006, 256 pages
$13.22 paperback, $9.99 Kindle

Men in Black, written by a conservative constitutional lawyer and radio talk show host, argues that “activist judges” on the Supreme Court are steering the country on the road to tyranny. “Levin traces trends in judicial activism through some of the Supreme Court’s most famous cases,” from Marbury v. Madison (1803) to Roe v. Wade (1973), according to Publishers Weekly. “Levin is an ardent advocate, but at times his strident tone gets in the way of objective analyses of the system’s flaws.” [Click on the book image for details or to purchase.]

Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court
By James MacGregor Burns
Penguin 2009, 336 pages
$18.45 hardcover, $9.99 Kindle

Packing the Court is a polemic by a liberal, Pulitzer Prize-winning historian. The “coming crisis” in the subtitle refers to the author’s fear that “a pro-business court composed of ‘formidable free-marketeers’ [will] strike down progressive economic legislation,” said The Washington Post. Burns weakens his argument by mistakenly asserting that Marbury v. Madison (1803) established judicial supremacy, when in fact it upheld judicial review, the Post said. [Click on the book image for details or to purchase.]

Other books about the U.S. Supreme Court:
3 Histories of the U.S. Supreme Court (mini-reviews)
U.S. Supreme Court: 1970 to 2008 (mini-reviews of 3 books)

Click on the book images for details or to purchase.

The Brethren: Inside the Supreme Court
By Bob Woodward and Scott Armstrong
Simon & Schuster 2005, 592 pages
$12.21 paperback

The Brethren examines the Burger Court in the 1970s, during the Nixon through Reagan Administrations. Originally published in 1979, The Brethren is an “eye-popping look into the closed world of the Supreme Court under then-Chief Justice Warren Burger,” said Edward Lazarus in the Washington Post (where Woodward famously worked along with Carl Bernstein during Watergate). “Through interviews with several justices and dozens of former law clerks, the authors captured the personalities, rivalries, politics and principles that drove the court’s decisions.”

The Nine: Inside the Secret World of the Supreme Court
By Jeffrey Toobin
Anchor 2008, 480 pages
$10.85 paperback, $9.99 Kindle

The Nine surveys the Rehnquist and Roberts Courts, from the Reagan Administration onward. During this period, the justices “wrestled with abortion, affirmative action, the death penalty, gay rights, and church-state separation,” said Publishers Weekly. “Despite a Court dominated by Republican appointees, Toobin (a legal journalist) paints not a convervative revolution but a period of intractable moderation.” He considers the Court’s intervention in the 2000 election between Bush and Gore “inept and unsavory.”

Supreme Conflict: the Inside Story of the Struggle for Control of the United States Supreme Court
By Jan Crawford Greenburg
Penguin 2008, 368 pages
$10.88 paperback, $9.99 Kindle

Supreme Conflict covers the Rehnquist and Roberts Courts during the George W. Bush Administration. It focuses on the retirement of Sandra Day O’Connor in 2005, the death of William Rehnquist, and the appointments of John Roberts and Samual Alito. Greenburg also dishes out the “crash-and-burn” nomination of Harriet Miers.

Other books about the U.S. Supreme Court:
3 Histories of the U.S. Supreme Court (mini-reviews)
2 Radical Views of the Supreme Court (mini-reviews)