Book Review

The constitutional history of the New Deal is hardly uncharted territory. There is the famous narrative of Roosevelt's battle with the Supreme Court and the ultimate triumph of national power over dual federalism and substantive due process. A second story recounts the struggle over the constitutional regime that would replace the old order. Traditionally, both stories were told in a rather Manichaean manner. The first story pits a backward-thinking and elitist Supreme Court against a progressive and pragmatic president. The battle between right and wrong is almost as clear in the second story. Justices Black and Douglas and Chief Justice Stone sought to preserve a role for an activist judiciary in the area of civil liberties (freedom of expression, for example) while Justices Frankfurter and Jackson tried to promote judicial restraint, characterizing judicial activism as antidemocratic. Of course, who the good guys and bad guys were in this story depended on your beliefs about the proper role of the judiciary, but the existence of the dichotomy scarcely seemed open to question.	1
In recent years, historians have begun to question these simple dichotomies. The first story has been complicated considerably by scholars who have examined both the content of laissez-faire constitutionalism and the nature of Roosevelt's struggles with the Court. In New Deal Justice, Jeffrey Hockett, a political scientist at the University of Tulsa, focuses on the second story. By examining the biographies of three of Roosevelt's appointees to the Court—Justices Black, Frankfurter, and Jackson—Hockett helps to redefine and complicate the history of the constitutional interregnum between the fall of substantive due process and the rise of Warren Court judicial activism.	2
Hockett's approach to his subject matter is simple. In three delightful biographical chapters he places each of his justices in a social and intellectual context. He then argues that these contexts defined their jurisprudence on the Court. Black's constitutional law decisions, for example, were driven by the "antihierarchical" ideology he was steeped in as a youthful participant in southern Populism (7). Similarly, Frankfurter's jurisprudence bears the mark of his commitment to Progressivism and its intense dislike of judicial abstractions. Finally, Hockett suggests that Jackson's opinions spring from his "traditional legal background" (17). This background gave the justice a Hamiltonian conception of judicial supremacy and a common lawyer's commitment to precedent, context, and case-by-case adjudication.	3
Thus, Black's absolutist First Amendment textualism arose from the justice's desire both to promote the antihierarchical value of free speech and to circumscribe the power of elite judges. Frankfurter, on the other hand, permitted the Court only a minimal role in protecting free speech. Black's absolutism was just the sort of abstraction that Progressives like Frankfurter distrusted. Instead, society had to be able to make public policy according to the needs of specific circumstances. Political and administrative institutions, not courts, were the most appropriate institutions for doing so. Jackson's commitment to judicial supremacy would not allow him to accept Frankfurter's complete passivity. Yet his common lawyer's "concern with context" would not permit him to adhere to Black's absolutism (254). Consequently, his First Amendment decisions ended up somewhere between those of his two colleagues in terms of protecting free speech.	4
Hockett takes his readers through a number of areas of constitutional law, demonstrating how the justices' commitments to Populism, Progressivism, and traditional legal culture shaped their judicial opinions concerning the incorporation doctrine, search and seizure law, and the judicial review of administrative actions. It is a very elegant argument—but, frankly, a little too elegant. Hockett does an excellent job of demonstrating that the struggle over the soul of New Deal constitutionalism was more than a debate about judicial activism versus judicial passivity. However, replacing two categories with three categories, while an improvement, still lacks the nuance that a description of these justices' actions deserves.	5
Hockett's justices are men of surprisingly static beliefs. Though they lived through the Great Depression, the rise of fascism, and World War II, their thinking emerged unscathed. Though all three played prominent roles in the New Deal and Roosevelt's battle with the Court, these events seem to have had little or no effect on them. Instead, Hockett returns to Black's Populism, Frankfurter's Progressivism, and Jackson's rather illusive "traditionalism" to explain their judicial decisions. There is no doubt that Populism and Progressivism helped make Hugo Black and Felix Frankfurter who they were. But is that all they were? Hockett's narrative becomes most convincing when he allows other causal factors to slip in—Frankfurter's background as a prosecutor or Jackson's experiences at Nuremberg. Similarly, Hockett's limited model of causation forces him to argue that his justices' beliefs did not change during the time they sat on the Court—that they were capable of superhuman consistency. Indeed, he has to make this argument with a great deal of vigor, in large part because so many scholars disagree with him, particularly with respect to Black and Jackson.	6
Thus, the problem with New Deal Justice is not that Hockett has incorrectly identified important elements of the legal thought of Black, Frankfurter, and Jackson. The problem is that the book often suggests that these elements alone can explain everything. Can Frankfurter and Jackson's increasing hostility toward administrative action or their votes in Brown v. Board of Education be explained simply by the former's Progressive jurisprudence and by the latter's common law traditionalism? I do not think they can be. These decisions were shaped by many factors: the justices' reactions to European totalitarianism, McCathyism, and racism or their desire to maintain the institutional integrity of the Court, for example. We can only begin to achieve an accurate picture of what made these men decide cases in the way they did when we expand upon the factors that Hockett does such an excellent job of highlighting.	7
New Deal Justice is tightly written and forcefully argued. It provides an excellent introduction for people interested in understanding Supreme Court decision making during the immediate postwar period. Hockett does a wonderful job of demonstrating how the tenets of both Populism and Progressivism made their way into the constitutional thought associated with the New Deal. This revelation, however, is but a single step to understanding New Deal constitutionalism, not the final one.	8
Reuel E. Schiller University of California, Hastings College of the Law

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