Tuesday, March 4, 2014
The received wisdom is that, nowithstanding his enormous intellect and brilliance, Justice Frankfurter's overbearing personality in combination with his 'on-the-wrong-side-of-history' position in Minersville v. Gobitis was enough to do him in as an influential voice on the Supreme Court. Gobitis does seem universally reviled; Professor Sherry in this article lists it alongside Plessy v. Ferguson, Buck v. Bell, and some others as among the wrongest of the wrong. Justice Frankfurter has long been associated with judicial restraint in constitutional adjudication, and Gobitis certainly could be classified as a judicially restrained decision. Indeed, it could be taken to support Professor Sherry's thesis--that what we need is more judicial "activitism" and less judicial restraint.
In our article, Kevin and I note how common it is for both Judge Posner and Judge Wilkinson to discuss judicial greatness in constitutional adjudication not by reference to constitutional theory, but instead by considering personalities, styles of thought, dispositions, and character traits. When they talk about judicial excellence, these judges are wont to engage in intellectual portraiture more than abstract theorizing. And we observe that Judge Wilkinson often lists Justice Frankfurter as one of his most admired examples of the "school" (Wilkinson's term--evoking a community of practitioners, such as a school of artists) of judicial restraint--one which Wilkinson claims as his own.
How, then, to explain Justice Frankfurter's widely perceived fall from grace? "The tragedy of Mr. Justice Frankfurter," the historian Melvin Urofsky has written, was that he became "prisoner to an idea--judicial restraint." But if we are right, the tragedy was not Frankfurter's, but judicial restraint's. Frankfurter's error was not in pledging allegiance to an idea, but to the wrong idea. To use Wilkinsonian imagery, from the time of Thayer it was already plain to see that judicial restraint could not bear the cosmic burden laid on it in the face of the coming challenge of legal realism. Judicial restraint was a rearguard defensive action--an apologetic strategy--and its adaptation in the hands of each of its subsequent adherents (Frankfurter, Bickel, and so on) served to illustrate its weakness as a persuasive response to the problematics of twentieth century constitutional adjudication.