Today in Supreme Court History: January 30, 1939

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

Justice Felix Frankfurter

Comments

[JoeFromtheBronx]

Buckley v. Valeo was handed down fifty years ago today. Happy Birthday. My, that is an expensive cake. Is it a legitimate campaign expense? Oh. It says "Vote Morgan" on it. Free speech!

The opinion was unsigned with five justices disagreeing with some part of it. Stevens did not take part though his predecessor, William O. Douglas, tried to do so.

Burger's fourteen minute opinion announcement is here:

https://www.oyez.org/cases/1975/75-436

Burger, when he wrote an opinion, usually only announced the result without summarizing the opinion. Justice White also eventually followed that policy. Again, this was unsigned, but as Chief Justice, he was the voice of the Court.

[JoeFromtheBronx]

I checked out Robert Jackson's 1940 book The Struggle for Judicial Supremacy, after reading The Actual Act of Governing, a new book on his Steel Seizures Cases concurrence. It is over 300 pages and has a lot of commentary on a bunch of legal cases. After about 100 pages, I skimmed.

As his clerk, William Rehnquist, later noted, it is a product of its time. Jackson notes in his introduction that the approach taken in his time might not be appropriate in the future. He was not bound by originalism, which he compared to dream interpretation.

The book still has relevance, including its concern about government by lawsuit. The law has its place, but lawyers and judges, using the case method, have their limitations.

Jackson supported a strong presumption of constitutionality while leaving open more of a role for the courts in civil liberties. He, in effect, without saying so, supported Footnote 4 of Carolene Products. Nonetheless, Jackson did later note the limits of that too, thinking some actions against fascists and communists necessary, even if free speech and association were affected.*

Jackson supported the court expansion bill and briefly discussed the matter here. He includes FDR's message to Congress and a radio address. He was a justice a year after writing the book.

His concurrence in the Steel Seizure Cases, rejecting President Truman's policy, showed the complicated choices of so-called "judicial supremacy."

https://www.roberthjackson.org/wp-content/uploads/migrated-files/thecenter/files/bibliography/writings-about/19800400-whr-albany-lrev-article-on-rhj.pdf

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Note: Jackson was often found on the "Frankfurter wing" of the Supreme Court. They famously disagreed in the flag salute cases but were on the same side when funding of bus fares for religious schools were involved.

Jackson did think at times the Court went too far in its religious liberty cases involving religious groups in public places.

There is always that line drawing problem. After all, the "freedom of contract" could be framed as an individual liberty issue, too. This led Frankfurter, and often Jackson too, to often support judicial restraint even in civil liberty cases, at least, more often than people like Black (who ironically wrote the bus fares opinion) and Douglas.

[broderickson234]

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