DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE AND VINSON, 1941-1953. By Melvin I. Urofsky. (1) University of South Carolina Press. 1997. Pp. xv, 298. $39.95 cloth; $21.95 paperback.
If either a colleague or a student asked me to recommend a book on the Supreme Court between the Court-packing crisis and the Warren years, I would unhesitatingly select Melvin I. Urofsky's Division and Discord. Part of the University of South Carolina Press series on the Chief Justiceships of the United States Supreme Court, Division and Discord admirably describes the justices and the cases of the Stone (1941-46) and Vinson (1946-53) Courts, (3) emphasizing it was an era of transition from the old order to the Warren Court.
Never does naming a Court after its chief justice look sillier than during this era, and Urofsky knows it. Thus he focuses on the major players, Hugo Black and Felix Frankfurter, primarily, and William O. Douglas and Robert H. Jackson, secondarily. These major intellects--attached to huge egos--were simply too much for Harlan Fiske Stone and, especially, Fred Vinson to keep calm, much less tame. (4) The book opens with an excellent chapter on the men, their personalities, and their battles--both jurisprudential and personal. In that era, the Court was filled with men with broad and extensive public service (rather than simply experience on a court of appeals), and the justices were able to write their own opinions (rather than delegate them to twenty-seven year-old law review alums). (5)
Black and Frankfurter were strong advocates and ceaseless proselytizers who took losing hard and personally. Both shared the New Deal revulsion at the old order. Their conflict brought out the best in each other as each created a jurisprudence that was intended to limit judicial discretion.
Black came to the Court with a strong populist record in the Senate, and his populism continued on the Court, where he found a jurisprudential style that fit his views. He saw the Constitution as a Protestant document to be read and understood according to its original intent. It turned out that (in Black's reading of history) the Framers had populist views, too, nicely matching his own. His demand that the First Amendment be interpreted literally and the Fourteenth Amendment be deemed to incorporate the Bill of Rights counterbalanced Frankfurter's view that all constitutional provisions save one (6) be interpreted with a deferential reasonableness standard.
Frankfurter brought with him enormous experience and the not unreasonable view that he was the intellectual heir to Holmes and Brandeis and therefore the natural leader of the Court. It just didn't work out that way. As Urofsky shows, had Frankfurter displayed better (any?) interpersonal skills, he might well have been more persuasive within the Conference. (7) Instead, his "rage at the failure of the other justices to follow his lead often turned splenetic." (p. 34) Because he knew so much about both the Court and constitutional law, he believed reasonable men could not differ with him; instead they were "the Axis" (8)--"enemies." (p. 40) Frankfurter never understood how his notes and diaries would read to those who did not know and like him personally, and Urofsky consistently lets Frankfurter hang himself with his own words.
The Douglas of this era is not as ascerbic, as liberal, (9) or as much a soloist, as the Warren era Douglas was. Instead he is a younger (10) man wanting to get back to the Executive Branch, preferably as FDR's successor. (11) Until the domestic security cases arise, Douglas looks like the center of the Court, albeit more liberal on business regulation and federalism (12) and more conservative in the wartime disloyalty cases. (13) With the exception of his creativity in Skinner, (14) Douglas plays a strong second-fiddle to the Hugo Black who was like a needed older brother.
If for no other reason, this book would be welcome because it necessarily reminds us what fun it can be to read a Jackson opinion. They are just delights; perhaps he was fortunate in never completing law school--the last such Justice in our history. His time on the Court was nevertheless marred by his ambitions and his conflicts with the equally combative Black. Jackson believed that FDR's promise that he would be Chief Justice (p. 9) should have been fulfilled by Truman; he went to Nuremberg as chief American prosecutor and then blew up when Truman selected...