Today in Supreme Court History: November 15, 1882

11/15/1882: Justice Felix Frankfurter's birthday.

Justice Felix Frankfurter

Comments

[Dan Schiavetta]

Unable to grow, listen, change. Pretty much a law student’s idea of how a disliked Con Law professor would act if he got his fantasy of being put on the Court.

[Cal Cetín]

I'm going to guess that grow/listen/change means unashamedly joining the judicial Left. But to be fair, he didn't leave the Left, he simply belonged to one branch of it, the branch which insisted on broad federal power and judicial deference toward legislative bodies (except state legislatures when they defied Congress).

Even there he wasn't all about deference. Not only did he join Brown v. Board, he lobbied for it behind the scenes (if he'd lobbied for anything else it would have been considered inappropriate). He endorsed the "shock the conscience" test. And he would give federal statutes a civil-libertarian interpretation if there was enough ambiguity for him to insert such principles.

[Bob from Ohio]

"I'm going to guess that grow/listen/change means unashamedly joining the judicial Left. "

Yes, of course. Living constitutionalism.

[Cal Cetín]

And the thing is, he *remained* in the judicial left.

There was a catfight among progressive judges about how to do progressive judging. One faction wanted to enforce some of the non-economic rights in the Constitution (and some that weren't there). Frankfurter was more consistent with his New Deal origins, seeing no reason to exalt one set of rights over another - they should all be limited, not just the economic rights which he and his colleagues agreed should be gutted.

[Michael D]

Have a hot dog to celebrate

[Syd Henderson]

I'd rather have a Burger or Salmon, two more justices who were eaten by their colleagues.