Nine Men Against America is a conservative critique of the U.S. Supreme Court, specifically the court that President Franklin D. Roosevelt appointed as well as the Warren court. The edition that I read was the fourth edition, which dates to 1961, but the book was originally published by the conservative Devin Adair publishing house in 1958. The John Birch Society published it in 1966. The most that I could find about Rosalie Gordon herself was that she was a writer and a research assistant to John T. Flynn, a journalist who wrote anti-FDR books and other conservative works.
Here are some thoughts about the book:
A. Some of what Gordon says will be familiar to people who have read other conservative critiques of liberal judicial activism. I think of Robert Bork’s The Tempting of America (1990) and Phyllis Schlafly’s The Supremacists (2004). Like Bork and Schlafly, Gordon holds that the Roosevelt court misinterpreted and misapplied the Interstate Commerce clause of the U.S. Constitution to justify a grand, sweeping federal intervention into the U.S. economy. Unlike Bork and Schlafly, however, Gordon seems to trace the origins of judicial activism to the Roosevelt court. Bork and Schlafly traced it further back, to the Dred Scott decision in 1857, which treated Dred Scott as property to be returned to his former master. Bork also criticized the conservative U.S. Supreme Court decisions of the nineteenth century that struck down state regulations of businesses.
B. The book profiles the justices of the FDR and Warren courts. Gordon gets into their temperaments, backgrounds, and professional records. Some of her analysis is personal: she argues, for instance, that one of the justices, Frank Murphy, was unsuited for the quiet, solitary, reclusive life of a Supreme Court justice. She also evaluates their backgrounds, noting such factors as Hugo Black’s draconian (even McCarthyite, though she likes McCarthy) anti-business record before his appointment, Black’s time in the KKK, Earl Warren’s support as California Attorney General for confining Japanese-Americans in concentration camps during World War II, and William Douglas’s strange propensity for attending celebrations by the Soviet embassy, even when that was controversial (i.e., after the Soviet suppression of the Hungarian revolt in the late 1950’s). She critiques their decisions on the bench, as when she argues that Felix Frankfurter’s decisions have been inconsistent with each other and lack a clear standard. Her overall conclusion is that the justices, by and large, lacked experience as judges when they were appointed to the Supreme Court, so they did not know how to interpret law as opposed to making it.
C. How does Gordon believe that the U.S. Supreme Court has attacked American liberties? She believes that the New Deal attacked private property rights in an authoritarian manner. She thinks that segregation, right or wrong, should be decided by the states rather than the U.S. Supreme Court, so she opposes the 1954 Brown vs. the Board of Education decision. She opposes a Supreme Court decision that required a school for orphans to admit African-Americans, even though the man who established the charity wanted it to be for whites only. More prominently, she maintains that the U.S. Supreme Court has hampered governmental and private attempts to fight Communist subversion. The Warren Court undermined states’ acts against Communism because there was already an anti-Communist national law, the Smith Act, then the court went on to undermine the Smith Act. Public schools can no longer inquire if a teacher is a Communist, the ABA cannot disbar Communist lawyers, and legislative committees must inform possible Communists at the outset of the nature of their investigation and the purpose of their inquiry. Gordon sees such decisions as unreasonable: how can committees tell Communists what the nature of the investigation is, when the committees do not know beforehand what they will find? She also argues that the decisions flagrantly violate and disregard judicial precedent and original intent: according to Gordon, the framers of the Fourteenth Amendment and courts before Brown never interpreted the Fourteenth Amendment to be inconsistent with racial segregation.
D. This book was written before many of the Warren Court’s decisions about the rights of the accused, but she does comment on the Mallory vs. U.S. decision. Gordon finds that decision to be unreasonable, for it fails to establish a clear standard as to when the police can actually question a suspect. She quotes Senator William Tenner: “a suspect cannot be questioned before his arrest unless he agrees, and if he is arrested he cannot be questioned afterwards.” Gordon also notes that the suspect in that case was not unduly pressured to provide a confession.
E. Gordon actually praises the liberal justice Louis Brandeis, seeing him as different from the liberal justices of the Roosevelt and Warren courts. Brandeis not only opposed big business, for which liberals love him, but he also opposed big government and wanted to protect individual rights from government infringement.
F. Something else that I learned from this book is that the renowned African-American author, Zora Neale Hurston (i.e., Their Eyes Were Watching God), was a staunch critic of the Brown decision. I then read wikipedia’s article about her and learned that she was a conservative and supported Robert Taft in his presidential run.
G. William Rehnquist, who would later serve as the conservative Chief Justice of the U.S. Supreme Court, has a cameo in this book. Gordon argues that Supreme Court justices rely heavily on their clerks, who lack judicial experience and tend to be liberal. She quotes Rehnquist, then a lawyer in Arizona, to support that point. Rehnquist had previously served as a clerk to Justice Robert Jackson and was relaying his own experiences.
H. As Phyllis Schlafly would later do in The Supremacists, Gordon offers suggestions as to what can be done to restrain judicial activism. Some of what she said overlapped with what Schlafly later wrote: her observation that Article III allows the U.S. Congress to set restrictions on the Supreme Court’s jurisdiction, the idea of term limits for judges, etc. Some things were different. Gordon, for example, proposes that the U.S. Senate, not the President, appoint justices. Senators would represent their states, lessening the possibility that justices would infringe on states’ rights, plus Senators would be less inclined to make political appointments (i.e., Earl Warren being rewarded for delivering California to Dwight Eisenhower at the 1952 Republican Convention). Gordon supports relying on judicial precedent, but she proposes that the Court only look at precedents prior to the Roosevelt and Warren courts. Gordon believes there are some things that can legally be done now, whereas some things may require a constitutional amendment. But, as she notes, constitutional amendments have been passed in the past, so it is possible.
I. In terms of my evaluation of the book, it is elegantly written, informative, and interesting. Gordon’s portrayal of the liberal justices is negative but it is not a caricature, for they come across as real people, with complex motivations and disagreements with one another. Gordon is adept as a storyteller, in terms of her narrative style. Gordon also gets into the details of particular cases. Some questions deserved more consideration. For instance, while Gordon believes that the Supreme Court should respect Plessy vs. Ferguson’s “separate but equal” decision, what if the facilities (i.e., schools) are manifestly unequal?