Today in Supreme Court History: January 30, 1939

1/30/1939: Justice Felix Frankfurter takes oath.

Justice Felix Frankfurter

Comments

[Dan Schiavetta]

Probably the biggest disappointment in the history of the Court, considering the qualifications he had going in.

[Krayt]

He has a cool name!

[Cal Cetín]

And when he was sick he want to the Mayo clinic.

And he relished a good argument.

[Dilan Esper]

I would put it differently. He got on the Court because he was a huge advocate of judicial restraint as an academic, and FDR wanted people like that on the Court because the big concern was conservatives striking down all sorts of liberal legislation. So he did what he was put there to do. He also, just like Black and Douglas, went along with FDR's despotic impositions on civil liberties in Korematsu and Quirin.

What happened is that unlike Black and Douglas he wasn't a careerist hypocrite. So when it was no longer about ensuring FDR could harm whoever he wanted, Frankfurter continued to espouse a judicial philosophy that deferred to legislatures.

[Dan Schiavetta]

Good point.

But he remained a law professor, lecturing the other Justices, making no attempt to cobble together consensus, engaging in juvenile tiffs with Douglas, and I can't think of a single important decision that he authored, aside from that idiotic "outcome determinative test" for the Erie doctrine. He was also on the wrong side on most issues, particularly in regard to personal liberty.

[Cal Cetín]

But if he was on the wrong side, then it would be *good* that he wasn't able to fashion consensus in favor of wrongness.

"The food is terrible, and the portions are too small."

[Dilan Esper]

To be clear, I don't think he was a very good justice for the reasons you indicate. The most important skill is putting together 5 justices, and FF as you point out was bad at it.

[Eric VonSalzen]

Personal opinion: The most important skill of a Justice is to decide a case in the way that I favor. The second most important skill is to write up that decision in a way that future Justices will cite in deciding cases in the way that I favor. FF is a mixed bag in those regards. He's still usually a pleasure to read, which is skill #3.

[Dilan Esper]

If you don't get 5 votes you can't do either of those things.