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.
Q: You write about how Justice Felix Frankfurter, a liberal icon of his time, didn't act like a liberal judge would today. He even went along with the court's ruling that said the government could require schoolchildren to salute the flag. What did he believe?
A: He’s an amazing figure. He was the best known liberal in the United States, a famous superstar law professor. But his theory as a liberal was that the Supreme Court should keep its nose out of controversial affairs and be a neutral arbiter. Once he was on the court, he still believed that.
In a case about Jehovah's Witnesses and being required to salute the flag, he said it's not a smart law, but it's not the court's job to intervene. He thought that was the liberal position, and he was personally offended by people saying that as a Jew, he should never have made that vote.
A couple years later, the court reversed itself.
Q: Why was liberalism at that time so different from what it later became?
A: During the New Deal, people thought to be liberal was to reject socialism on one extreme and fascism on the other, and to preserve capitalism through regulation and a social safety net.
That was what liberalism was, and it said almost nothing about civil rights or civil liberties, which today we think of as very important parts of liberalism. They came to be part of the definition of liberalism in the second half of the '40s and into the 1950s and 1960s, as the Supreme Court took on questions of segregation and gradually supported free speech and protections for those who were arrested.
Then over the course of the '70s, '80s, and '90s, a lot of liberals who'd won victories in terms of regulating capitalism and supporting the protection of the safety net forgot about how those were the core values of liberalism in the New Deal. Today, we're just beginning to see a bit of a turn back in the old direction, as more liberals realize the regulation of capitalism and the protection of the least fortunate are crucial to making liberalism work.
The book reveals a period in which liberalism looks different than the past 20 to 30 years, but similar to what it will look like over the next decade. We're sort of done with civil rights; we've probably gone as far as we can go. It raises the question of what is liberalism for? Initially, it was about regulating capitalism and helping people out at the bottom of the pile.
Q: I can't end the interview without asking about Justice William O. Douglas, who had a thing for hot blondes. What was his story?