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f P R E F A C E In 1937 Franklin Roosevelt was ‹nally able to make his own appointments to the Court. He eventually appointed eight new justices to what he expected would be a Court sympathetic to his values and ambitions. Hugo Black (1937), Felix Frankfurter (1939), William O. Douglas (1939), and Robert Jackson (1941) were among the ‹rst group of appointees, and with the exception of Black, all were Roosevelt intimates and administration insiders. Under three different chief justices and amid several other personnel changes, they served together and formed the core of the Court from Jackson’s appointment in 1941 until his death in 1954, the period principally under discussion here. Black, the ‹rst to be picked, was appointed for his liberal record and as a statement to the Court that the sort of change Roosevelt wanted was on its way. Frankfurter, Douglas, and Jackson were also appointed for their liberal , progressive views. Liberalism was the theme of Roosevelt’s program, and these four justices were expected to be its principal exponents. Black, Frankfurter, and Douglas more than ful‹lled their expectations in the years before Jackson’s appointment in 1941. These four justices then, for a brief time, proceeded to vote and write in ways consistent with a simultaneous commitment to reviewing civil rights legislation expansively and economic legislation narrowly, thereby freeing themselves from the misdirections of their predecessors. But within a few terms, the once solid group of four justices fractured. First Frankfurter, in contrast to earlier statements and votes, began to oppose the preferred position doctrine, which provided for closer scrutiny of legislation involving individual rights found to be fundamental. This in turn led him to pursue a narrow jurisprudence and to refuse to follow positions that he had embraced prior to his transformation. Jackson for a few terms brilliantly argued and described the liberal positions he had urged before his appointment, but then he began to follow Frankfurter’s move to the right. His embrace of conservative positions deepened when he returned from Nuremberg in 1946 following his stint as America’s lead prosecutor in the war crimes trials. He now markedly disavowed earlier positions, such as his belief in the preferred position doctrine , and exchanged his liberalism for a conservatism that, with rare exceptions , followed Frankfurter’s. The fractured group of four justices now had Jackson and Frankfurter on the right and Black and Douglas on the left. The liberalism of the latter pair was both constant and consistent, though it did not control the Court throughout the 1941–54 period as it had in the beginning. Black, with Douglas at his side, staked out the centerpiece of this liberalism: the argument for the total incorporation doctrine. This doctrine held that the due process clause of the Fourteenth Amendment made all of the provisions of the Bill of Rights applicable to the states. The appointments of conservatives Harold Burton and Fred Vinson meant the rejection of the total incorporation doctrine, and with the subsequent appointment of additional conservatives Tom Clark and Sherman Minton the liberals were further outstripped by the conservatives, with Frankfurter now shaping the broad outlines of judicial restraint that the Court followed. By the end of the 1950s, however, with the appointment of liberals Earl Warren and William Brennan, to be coupled with the later appointment of additional liberals, Frankfurter’s argument for judicial restraint was overwhelmed and rejected. All that he opposed was adopted. Douglas grew to accept the selective incorporation doctrine that implemented under a different name that which the total incorporation doctrine had tried to achieve.1 He maintained his absolutist First Amendment vigilance following the 1941–54 period and continued with an interpretation of constitutional rights that went beyond the explicit language of the Constitution and considered its penumbras. Black, while implicitly accepting the selective incorporation doctrine, never retreated from his advocacy for its total incorporation counterpart and the argument that the basis for selective incorporation was jurisprudentially illegitimate. He insisted that constitutional x Preface and Acknowledgments rights had a textual pedigree and that he could not follow Douglas and the Court in looking to the implications of fundamental rights ‹rst and to the text of the Constitution only second. The problem that these events sketch as it relates both to the justices and to the Supreme Court as an institution can be distilled into this question, important in itself and its implications: How could it happen that these justices , sharing core jurisprudential beliefs...

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