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The Last Chance for a Supreme Court Appointment: The 1942 Vacancy

Gerald Gunther

in Learned Hand: The Man and the Judge

This chapter details Learned Hand's final opportunity to be appointed to the Supreme Court. Hand's opportunity to attain a seat on the United States Supreme Court came in the fall of 1942, when he ... More

This chapter details Learned Hand's final opportunity to be appointed to the Supreme Court. Hand's opportunity to attain a seat on the United States Supreme Court came in the fall of 1942, when he was nearly seventy-one. The nation was embroiled in a war whose outcome was still uncertain. The pervasive domestic impact of the war effort touched even the composition of the Supreme Court that fall, when at the beginning of October, President Roosevelt persuaded James F. Byrnes to resign from the Court in order to become director of the Office of Economic Stabilization. With the new vacancy created by Byrnes' resignation, several friends of Hand, led by Felix Frankfurter and Charles C. Burlingham, launched a massive campaign to persuade President Roosevelt to name Hand to the Court. But on January 11, 1943, the White House announced that Wiley Rutledge of Iowa was the president's choice. Rutledge was twenty-two years younger than Hand, only forty-eight years old in 1943. For the rest of their lives, both Frankfurter and Burlingham were convinced that Hand was not named to the Supreme Court in 1942 solely because of Roosevelt's preoccupation with the age issue and the constraints imposed by the hobgoblin of consistency.Less

Frankfurter and the Intellectualization of Judicial Restraint

Evan Tsen Lee

in Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented

This chapter focuses on Brandeis's most prominent protégé, Felix Frankfurter, who assumed his seat on the Supreme Court in 1939. It shows how Frankfurter's qualms about the vigorous use of judicial ... More

This chapter focuses on Brandeis's most prominent protégé, Felix Frankfurter, who assumed his seat on the Supreme Court in 1939. It shows how Frankfurter's qualms about the vigorous use of judicial review were a product of deep professional indoctrination as well as political expediency.Less

The Influence of Felix Frankfurter

Tracey Maclin

in The Supreme Court and the Fourth Amendment's Exclusionary Rule

The effect of Weeks and Silverthorne Lumber was that evidence obtained from an unreasonable search and seizure could not be used in a federal prosecution. This judgment—that the exclusionary rule is ... More

The effect of Weeks and Silverthorne Lumber was that evidence obtained from an unreasonable search and seizure could not be used in a federal prosecution. This judgment—that the exclusionary rule is part and parcel of the protection provided by the Fourth Amendment—would go unchallenged for nearly thirty years. The Weeks–Silverthorne Lumber interpretation of the amendment, however, vanished with the 1949 ruling in Wolf v. Colorado. This chapter examines Wolf v. Colorado and Felix Frankfurter's opinion in the case. After Wolf, a majority of the Court would never again embrace the Weeks–Silverthorne Lumber conclusion that the Fourth Amendment mandates the exclusion of evidence acquired through unreasonable searches and seizures.Less

Oral Arguments in a Landmark Case

Lawrence S. Wrightsman

in Oral Arguments Before the Supreme Court: An Empirical Approach

The case of Brown v. Board of Education (1954) is used as an example of the role of the oral arguments in deciding a case. A chronology of the case's development is provided. Excerpts from the oral ... More

The case of Brown v. Board of Education (1954) is used as an example of the role of the oral arguments in deciding a case. A chronology of the case's development is provided. Excerpts from the oral arguments are used to illustrate the thinking of the justices. The impact of the oral arguments on the eventual decision is evaluated.Less

World War and World Power: 1932–1946

Constance Jordan (ed.)

in Reason and Imagination: The Selected Correspondence of Learned Hand

News of Holmes's retirement and Franklin Roosevelt's election opens this chapter's correspondence. Felix Frankfurter worries about how the nation's wealth and resources are distributed, and Hand ... More

News of Holmes's retirement and Franklin Roosevelt's election opens this chapter's correspondence. Felix Frankfurter worries about how the nation's wealth and resources are distributed, and Hand alludes to the advent of National Socialism in Germany and of Communism in the Soviet Union. The interpretation of statutes leads Hand to articulate the seminal dictum of the sixteenth-century English common lawyer Edmund Plowden. In his subsequent essays, Hand considers Plowden's instruction with increasing emphasis on the role of the judicial imagination in reconstructing the legislative event. Letters to Bernard Berenson reveal Hand's fascination with the cultural landscapes of Italy. Letters to Louis Henkin, Hand's former clerk, reveal the vast distance that actually separates Hand from the war in Europe. The correspondence of this period ends with letters to and from Judge Henry T. Lummus of the Supreme Judicial Court of Massachusetts.Less

Denizens of a Center: Rethinking Early Cold War Grand Strategy

Ryan Irwin

in Rethinking American Grand Strategy

This chapter reviews the most commonly utilized historical example of grand strategy—the early Cold War—and revisits the period's most frequently analyzed protagonists: George Kennan, Walter ... More

This chapter reviews the most commonly utilized historical example of grand strategy—the early Cold War—and revisits the period's most frequently analyzed protagonists: George Kennan, Walter Lippmann, and Dean Acheson. However, it is not about that era's seminal strategic doctrine: containment. Instead, it explores the relationship between law and power and argues for a new understanding of the intellectual architecture of the early Cold War. At mid-century, American liberals shared a particular vocabulary about strategy—about realism itself—that reflected specific claims about natural law, sovereign interdependence, and World War I. Drawing on rarely examined primary documents, the chapter excavates this conversation and suggests that these assumptions informed how American leaders defined their aspirations and their capabilities. At a time when US leaders are profoundly divided over the country's foreign policy, there is value in revisiting the concepts that animated and circumscribed an earlier generation's strategic thought.Less

The United States and Europe: 1909–1920

Constance Jordan (ed.)

in Reason and Imagination: The Selected Correspondence of Learned Hand

This chapter examines Hand's correspondence from 1909 to 1920, showing his investment in the politics of the nation and his engagement with the policies of the European powers. His letters to ... More

This chapter examines Hand's correspondence from 1909 to 1920, showing his investment in the politics of the nation and his engagement with the policies of the European powers. His letters to Theodore Roosevelt on the Progressive movement convey both his hopes and despair that its programs of reform can be realized. His letters to Herbert Croly and his magazine, The New Republic, show how both Croly and the magazine lose force and credibility. In 1911, Hand opens his life-long correspondence with Felix Frankfurter by outlining the dangers of judicial review. In his first letter to Oliver Wendell Holmes, Holmes allows Hand to confront his own Puritan inheritance. In Hand's response to the government's challenge to Max Eastman, he begins his efforts to interpret the First Amendment law.Less

Freund and Frankfurter

Daniel R. Ernst

in Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940

One of the few Americans who looked to the European continent not just for programs to address the social ills of capitalism but also to constrain administrators was the German-educated law professor ... More

One of the few Americans who looked to the European continent not just for programs to address the social ills of capitalism but also to constrain administrators was the German-educated law professor Ernst Freund. A trusted advisor to Chicago’s reformers, Freund believed that America was a Rechtsstaat, in which bright-line rules distinguished legitimate from illegitimate administrative action. Most legal progressives believed instead that administrative discretion was inevitable and desirable. Their leader, the Harvard law professor Felix Frankfurter, revealed their disagreement when he and Freund jointly directed legal studies of agencies financed by the Commonwealth Fund. One monograph, by Gerard Henderson on the Federal Trade Commission, influentially argued that an agency’s authority turned on the quality of its findings of fact. By 1932, Frankfurter had prevailed. Henceforth reformers would look not to Continental Europe but to the common-law tradition for a rule of law better suited to American politics.Less

The New Deal Revolution and the Reconstruction of Constitutional Law 1937–1949

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

This chapter describes the new constitutional foundations marked out by three especially influential New Deal appointees, Felix Frankfurter, Harlan Fiske Stone, and Hugo Black. The justices faced a ... More

This chapter describes the new constitutional foundations marked out by three especially influential New Deal appointees, Felix Frankfurter, Harlan Fiske Stone, and Hugo Black. The justices faced a key choice point with a number of alternative visions of the judicial role available to them, during the immediate post-New Deal period. After the New Deal “switch in time,” Roosevelt sought to consolidate the new constitutional order by making a series of what Bruce Ackerman (1998) has called “transformative judicial appointments.” Though Black and Frankfurter would continue the First Amendment debate in the years to come, but their principal conflict during 1940 centered on whether the Court should apply the original Bill of Rights to the states.Less

BOSTON, 1926

Marion Elizabeth Rodgers

in Mencken: The American Iconoclast

This Prologue sets the theme for the entire book: the issue of freedom. It presents a scene, captured during a pivotal moment in Mencken's career when, at the height of his popularity, he was ... More

This Prologue sets the theme for the entire book: the issue of freedom. It presents a scene, captured during a pivotal moment in Mencken's career when, at the height of his popularity, he was arrested in Boston in 1926 or selling a copy of his censored magazine, The American Mercury.Less

Setting the Stage: 1940–1946

Steven K. Green

in The Third Disestablishment: Church, State, and American Culture, 1940-1975

This chapter examines the legal controversies and cases that provided the background for the modern Court’s early church–state cases. It pays particular attention to the activities and litigation ... More

This chapter examines the legal controversies and cases that provided the background for the modern Court’s early church–state cases. It pays particular attention to the activities and litigation involving Jehovah’s Witnesses—canvassing and flag-salute controversies—and how those cases impacted the justices’ thinking about church and state. Although representing distinct constitutional issues, the Witnesses’ free exercise and free speech claims laid the groundwork for the Court’s Establishment Clause decisions. The chapter then examines Protestant–Catholic relations during the war years and the church–state controversies that arose in its immediate aftermath. These events set the stage for the Court’s holdings in Everson and McCollum.Less

Advisory Opinions and Judicial Supremacy: Constitutionalism, a Politicized Judiciary, and the Eclipse of Civic Debate

Mel A. Topf

in A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

This concluding chapter argues that advisory opinions have contributed to politicization of the judiciary and to the eclipse of civic debate. Both have long been complaints about advisory opinion ... More

This concluding chapter argues that advisory opinions have contributed to politicization of the judiciary and to the eclipse of civic debate. Both have long been complaints about advisory opinion jurisdiction, prominently in a 1924 article by Felix Frankfurter. The politicization and eclipse has been aggravated in recent years by the adoption in some advisory opinion jurisdictions of a public importance exception, by which the advising justices waive their own restrictions on rendering advice. The exception is so vaguely and loosely applied that it threatens to devour the restrictions altogether. With the failure of the nonbinding doctrine (discussed in Chapter 5), together with the public importance exception sabotaging the restrictions on issuing advisory opinions, the advising justices are increasingly free to impose “advice” on legislatures and governors without limit. This contributes, this chapter argues, to the politicization of the judiciary and to the withdrawal of political issues from the civic realm, resulting in a substantial contribution to the growth of judicial supremacy.Less

Barenblatt, Uphaus, and the Court in Retreat: (October Terms 1958 and 1959)

Robert M. Lichtman

in The Supreme Court and McCarthy-Era Repression: One Hundred Decisions

This chapter discusses the U.S. Supreme Court’s decisions during its October 1958 and 1959 terms. The most important decisions were Barenblatt v. United States and Uphaus v. Wyman, in which the Court ... More

This chapter discusses the U.S. Supreme Court’s decisions during its October 1958 and 1959 terms. The most important decisions were Barenblatt v. United States and Uphaus v. Wyman, in which the Court decided in the government’s favor a constitutional issue it had nibbled at, but avoided deciding, for years: whether legislative committees may, consistent with the First Amendment, compel witnesses to disclose “Communist” associations. Barenblatt was another House Un-American Activities Committee contempt-of-Congress case, and, as in earlier cases, nonconstitutional issues were also presented. But this time the Court chose to decide on constitutional grounds. Uphaus seemed indistinguishable from Sweezy (it involved a New Hampshire adult-camp director’s refusal to provide information to Louis Wyman’s one-man committee). But Chief Justice Harlan F. Stone, who in Sweezy joined Felix Frankfurter in a concurring opinion that sustained the witness’ refusal to answer on First Amendment grounds, wrote for the Court in Uphaus reaching the opposite result.Less

To Follow the Argument where it Leads: An Antiquarian View of the Aim of Academic Freedom at the University of Chicago

Richard A. Shweder

in Who's Afraid of Academic Freedom?

This chapter examines academic freedom at the University of Chicago, which proudly thinks of itself as a Socratic, free-thinking, and contentious institution. More specifically, it considers the ... More

This chapter examines academic freedom at the University of Chicago, which proudly thinks of itself as a Socratic, free-thinking, and contentious institution. More specifically, it considers the antiquarian view of academic freedom associated with two constitutional conservatives, both of them famous for their advocacy of judicial restraint: Supreme Court Justice Felix Frankfurter and his former law clerk Alexander Bickel. The chapter explores the ancient Socratic ideal of freedom of thought and the application of the methods of critical reason as the ultimate ends of academic life. It also discusses the University of Chicago's conception of academic freedom as articulated in the Kalven committee report and whether faculty and administrative governance is a threat to academic freedom. It suggests that what makes a great university great is its commitment and willingness to nurture and protect the ardor and fearlessness of autonomous minds to follow the argument where it leads regardless of moral, political, or commercial interests or popular opinion.Less

From Repression to Prevention: The Uncertain Borders between Jurisdiction and Administration

Michele Pifferi

in Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries

The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law ... More

The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law framed by De Asúa on the dangerousness without crime, it compares the European solution of the measures of security with the US indeterminate sentence system, stressing the European attitude in favour of judicial sentencing jurisdiction. It examines the growth of penal administrative powers in the United States, focusing on the shift from legal rules to legal standards in sentencing discussed by Roscoe Pound, Felix Frankfurter, and Sheldon Glueck, and then describes the hybrid system of penal/administrative security measures provided for by the 1930 Italian Fascist Code. The chapter finally investigates the different positions on the powers of the judge in the sentencing phase debated at the Berlin Congress in 1930 and the ambiguities of the dual-track system.Less

“Puritan And Pagan”: 1959–1961

Constance Jordan (ed.)

in Reason and Imagination: The Selected Correspondence of Learned Hand

This epilogue presents letters written in the last three years of Judge Learned Hand's life. At the end of his life, the main features of Hand's character reveal him to be the double that Felix ... More

This epilogue presents letters written in the last three years of Judge Learned Hand's life. At the end of his life, the main features of Hand's character reveal him to be the double that Felix Frankfurter repeatedly identifies throughout their correspondence. The first represents the puritan with a humorous skepticism who continues to check on the truth of what he is told, even if that describes his own qualities as a person. The second represents the pagan with a dedicated passion for duty who continues to embrace the obligations he has always maintained, whatever the conditions in which he must perform them.Less

Conclusion: Politics or Law? Legacies of Lawyering in the Civil Rights Era

Peter Charles Hoffer

in The Search for Justice: Lawyers in the Civil Rights Revolution, 1950-1975

This concluding section asks whether the Civil Rights revolution should be seen as a legal or as a political movement. It assesses the impact of that movement on the careers and reputations of judges ... More

This concluding section asks whether the Civil Rights revolution should be seen as a legal or as a political movement. It assesses the impact of that movement on the careers and reputations of judges and justices like Earl Warren, Felix Frankfurter, Frank Johnson Jr., and Elbert Tuttle, state politicians like Richard Russell, John Patterson, and Richard Ervin, and academics like Alexander Bickel, Derrick Bell, and Herbert Wechsler. Finally, it weighs issues raised by judicial review, the "countermajoritarian dilemma" and the role of lawyers in political life.Less

The Duncan and White Cases

Harry N. Scheiber and Jane L. Scheiber

in Bayonets in Paradise: Martial Law in Hawai'i during World War II

Duncan v. Kahanamoku was joined for adjudication in the U.S. Supreme Court by White v. Steer, the parallel case of a stockbroker who had been given a heavy provost court sentence for embezzlement. ... More

Duncan v. Kahanamoku was joined for adjudication in the U.S. Supreme Court by White v. Steer, the parallel case of a stockbroker who had been given a heavy provost court sentence for embezzlement. Argument was scheduled for December 1945, that is, after the end of the Pacific war—and, ominously for the Army, after the high court had recently ruled against the government and the “military necessity” argument in the Endo case, ordering unconditional release of a Japanese American woman being held by the authorities in a mainland camp. The Court’s decision came down in March 1946, ruling against the Army, finding the use of provost courts and takeover of the judicial powers while barring review by the federal courts as being in violation of the Hawai’i Organic Act. In a concurring opinion, Justice Frank Murphy strongly condemned the Army’s contention that the presence of so many ethnic Japanese in Hawai`i constituted a security threat warranting its strict regime; dissenting justices reiterated the rationale of the Japanese-American Cases: that it was “their business, not ours,” when the military in wartime decided that emergency conditions warranted curtailment of liberties.Less