A Compelling Study
Brickner, Paul, Judicature
A compelling study The Great Justices 1941-54: Black, Douglas, Frankfurter and Jackson in Chambers, by William Domnarski. University of Michigan Press. 2006. xii, 206 pages. $35.00.
William Domnarski, a practicing member of the California bar with a scholarly inclination, has written a compelling study of four great justices who served together during an important period in Supreme Court history, a period that begins after the Court had concluded its struggles with the constitutionality of FDR's depression era programs and ends on the eve of the Court's deciding the most important case of the 20th Century, Brown v. Board of Education (1954). The author holds a law degree from the University of Connecticut as well as a Ph.D. in English from the University of California. The doctorate leads to interesting observations that other attorneys and legal historians might omit. For example, one bibliographic reference is Shakespeare, W., Julius Caesar, 1599!!
The book is about four justices appointed by President Franklin Delano Roosevelt. A fifth justice, Chief Justice Charles Evans Hughes, who preceded them, appears as a shadowy but strong figure. The first of Domnarski's four greats is also the first of FDR's eight Supreme Court appointees, Hugo Lafayette Black, who was appointed in 1937. Black, a man of humble origins, was a senator from Alabama, His nomination would not have survived in today's media glare because of his background as a member of the Ku Klux Klan. Fortunately for Black, that revelation to the public did not occur until after he had taken his oath of office. He addressed the nation over the radio and defused the issue. Although a Southerner of conservative inclinations, Black was quite a liberal jurist.
Felix Frankfurter joined the Court in 1939. He considered himself an heir to the legacy of Holmes and Brandeis. His professorial background at Harvard Law School made him a pedantic jurist, and his inclination to preach and lecture and his arrogance compromised his leadership role on the Court.
William Orville Douglas also joined the Court in 1939. Born in Minnesota, he grew up primarily in Washington State. He had a distinguished academic record at Columbia Law School. A hero for many, others see Douglas as a scoundrel. Three of his four marriages and all three of his divorces occurred while he was on the Court.
Domnarski writes favorably of Douglas. Perhaps Douglas is endued to some praise after the beating he took a few years ago from Professor Bruce A. Murphy. Murphy's study of Douglas, like his earlier study of the relationship between Brandeis and Frankfurter, contains a distressing number of erroneous conclusions. (see review of Murphy's "Brandeis/ Frankfurter Connection" by U.S. Court of Appeals Judge Myron H. Bright and David T. Smorodin, 16 Loyola Los Angeles Law Review (1983) and review by Paul Brickner of Murphy's "Wild Bill" in Judicature, MarchApril 2005).
Robert H. Jackson joined the Court in 1941. His formal law school education was limited to one year at Albany. Like Black, he was a skilled practicing lawyer. Jackson took time off from the Court to serve as a Nazi war crimes prosecutor in the Nuremberg Trials. Black and Jackson were rivals for the position of chief justice when it opened up in early 1946. To his discredit, Jackson sent an intemperate telegram from Germany that raised questions about Black's failure to recuse himself in the Jewell Ridge Coal case, because his former law partner was counsel for one of the parties. Black cast the deciding vote.
Domnarski tells us that each of the four great justices "was a gifted writer. Jackson was the best writer of the group and was, after Holmes, perhaps the finest writer ever to sit on the Court." He writes of Jackson's "glorious prose," his "dazzling opinion" in the second flag salute case, and his "powerfully articulated" dissent in Korematsu.
Although Black did not like to use figurative language because of imprecision, Domnarski says that "two of Black's most memorable opinions use powerful figurative language. …