MR. JUSTICE FRANKFURTER: A STUDY OF

SELECTED JUDICIAL VALUES

by

VIRGINIA LEE CROUNSE, B.A.

A THESIS

IN

GOVERNMENT

Submitted to the Graduate Faculty of Texas Technological College

in Partial Fulfillment of the Requirements for

the Degree of

MASTER OF ARTS

Approved

Chairlllan oftihe Committee

-, //

---r-...1------r"'---- - - - ---- ---

Accepted

Del'n

MR. JUSTICE FRANKFURTER: A STUDY OF

SELECTED JUDICIAL VALUES

by

VIRGINIA LEE CROUNSE, B.A.

A THESIS

IN

GOVERNMENT

Submitted to the Graduate Faculty of Texas Technological College

in Partial Fulfillment of the Requirements for

the Degree of

MASTER OF ARTS

Approved

Accepted

De n of the Graduate

August, 1967

80£' T3 19~7 No. J) I Qop/2

ACKNOWLEDGMENTS

I am very much indebted to Professor Ralph G. Jones for his guidance

in directing this thesis and to the other members of my conunittee,

Professors Roy L. Meek, William E. Oden, and George S. Robbert, who

were so cooperative in helping me throughout the preparation of this

study. I am also indebted to my family and friends, whose patience and

helpful criticism made completion of this project much easier.

V. L. C.

Texas Technological College

Lubbock, Texas

August, 1967

CONTENTS

ACKNOWLEDGEMENTS • . • • • • • • • • • • • • • • • c . . • • • • ii

LIST OF TABLES . • . . • • • • • • • • • • • • • • • • • • • • • iv

I .. INTRODUCTION . . . . . . . • • • • • • • • • • • • • 1

Frankfurter's Pre~Judicial Career • • • • • • • • • • • • 2

The Traditionalist-Behavioralist Debate . • • • • • . . ' 10

The Approach of This Study • • • • ' • • c ' • • • • • • 15

II. CIVIL LIBERTIES • I I I t I I I ' I t I t I I ' I • • • 22

III ..

The Statistical Distribution of Frankfurter's Votes , ' . 23

First Amendment Freedoms . . . . . . . . . . . ' ' . . . 27

Rights of the Criminal Defendant e I e e e 9 e I I • I • 38

Equal Protection of the Laws • • • • • • • • • • • • • • 44

Conclusions . . . • . . . . . . • • • • • • • • • • • • • 49

ECONOMIC REGULATIONS • • G • I • • • • . . . . . . . • • ' . 56

The Statistical Distribution of Frankfurter's Votes • • • 58

The Business Regulation Opinions C'tlftlC•41tll 64

Administrative Agency Actions . . • . , • • • . . • . 65 The Antitrust Cases . • • . • . . . • . • . • . • . . 69 State Regulations of Business , , . . • • . . • • • . 72

The Labor Regulation Opinions • • . . . . ' . . . . . . . 75

The FELA Cases • . • • . • • . . . . • . . • • • . , . 75 National Labor Relations Board Actions ~ , . • • . • . 78 State Regulations of Labor • . . . • . . • • • • , . • 82

Conclusions . . . . . ' . . . . . . • • • • • • • • • • • 85

IV. CONCLUSIONS • • • • • • • • • • • • • • • • • • • • • • • • 92

BIBLIOGRAPHY . • . . I I I I • • • • • ' . . . . . ' . . . . • • 101

iii

LIST OF TABLES

1. Frankfurter's Votes in First Amendment Cases . • • • • • • • 24

2. Frankfurter's Votes on Rights of the Criminal Defendant • • 25

3. Frankfurter's Votes in Equal Protection Cases . • • • • • • 26

4. Frankfurter's Votes in All Civil Liberties Cases • • • • • • 50

5. Frankfurter's Votes in Administrative Agency Cases . • • ... 58

6. Frankfurter's Votes in Antitrust Cases • • • . • . • • • . • 59

7. Frankfurter's Votes on State Regulation of Business • • • . 60

8. Frankfurter's Votes on FELA Cases • • • • • • • • • • • • • 61

9. Frankfurter's Votes on NLRB Cases • • • • • • • • • • • • • 62

10. Frankfurter's Votes on State Regulation of Labor • • • • • • 64

11. Frankfurter's Votes on All Business Regulations • • • • • • 86

12. Frankfurter's Votes on All Labor Regulations • • • • • . . • 87

13. Frankfurter's Votes in All Economic Cases • • • • • • • • • 88

14. Frankfurter's Votes in All Cases • . • • • • • • • • • • • • 94

iv

CHAPTER I

INTRODUCTION

'

Felix Frankfurter had two legal careers of almost equal length, first

as a professor at the Harvard Law School and later as an associate justice

of the Unit~d States Supreme Court. Neither his personality nor his activ~

ities were such as to let him escape notice in either capacity. Interest

in his career was heightened by the fact that he had to adjust to his new

role on the Court at a time when the Court itself was having to adjust to

its position in the political structure of the post=New Deal period. 1

President Roosevelt's nomination of Frankfurter to the Supreme Court

was confirmed unanimously by the Senate on January 17, 1939. Comparable

unity was not found, however, in the press or among certain segments of

the American public. Despite his reputation as a legal scholar, several

groups and individuals raised questions as to whether he possessed the

judici?l temperament.2 He had been thought of as a supporter of liberal

causes over the years, and this in itself was enough to establish him as

a figure of controversy in some quarters before and during the New Deal

period. There was, indeed, some speculation as to whether Frankfurter's

talents could be best utilized on a Court which seemed to have yielded

already to liberal pressures in upholding such New Deal measures as the

Wagner Act.3 Certain aspects of Frankfurter's pre-judicial career received

1cf., Alpheus T. Mason, The Supreme Court from Taft to Warren (Baton Rouge~ Louisiana State University Press, 1958).

2 Post, pp. 8=10.

3cf., National Labor Relations Board v. Jones and Laughlin Steel Corporation, 301 U.So 1 (1937).

1

2

particular attention. A brief survey of his activities before taking

his seat on the Court will point up the issues in question.

Frankfurter's Pre-Judicial Career

Frankfurter was born on November 15, 1882, in Austria, the third son

in a Jewish family of four sons and two daughters. 4 One of the objections

subsequently raised in 1939 was that Frankfurter was a "foreigner." Actu-

ally, Frankfurter lived in Austria only twelve years. In 1894 Frankfurter

his mother, and his brothers and sisters followed his father Leopold, a

businessman, from Vienna to the United States. Frankfurter studied in

the New York public schools_, being graduated in 1901 from the College of

the City of New York. Subsequently, in 1906, he took a law degree with

highest honors at the Harvard Law School.

Frankfurter's career in active practice was limited. Following gradu­

ation he was associated with a New York law firm.5 This was the time

when Henry L. Stimson, United States Attorney for the Southern District

of New York, was recruiting young lawyers to assist him in this trust-

busting duties under the impetus of President Theodore Roosevelt. Accept-

ance of an appointment from Stimson opened the door for Frankfurter to

what was to become a life-long interest in public service.

When Stimson became Secretary of War in 1911, Frankfurter went with

him to Washington, but in 1914 Frankfurter joined the Harvard Law School

faculty as a specialist in administrative law. His continuing active

interest in public affairs led to subsequent charges of extreme liberalism

4The major sources of the biographical material used here are: Helen Shirley Thomas, Felix Frankfurter: Scholar on the Bench (Baltimore: John Hopkins Press, 1960), pp. 3-41; C. Herman Pritchett, The Roosevelt Court (New York: Macmillan Company, 1948), p. 10; Who's Who in America, Vol. XXXIII (Chicago: A. N. Marquise Company, 1964), p. 683.

5Frankfurter was on the staff of Hornblower, Byrne, Miller, and Potter.

3

even radicalism--when he was nominated to the Court in 1939.

After returning to Harvard, Frankfurter formulated arguments and filed

briefs in such important wages and hours cases as Bunting v. Oregonf) and

Adkins v. Children's Hospital.7 When World War I broke out, he rendered

various services in support of the national effort. At one timE he was

counsel for the President's Labor Mediation Commission, and he was also

chairman of the War Labor Policies Board. While with the Mediation Com­

mission, he was called upon to investigate both the trial of Tom Mooney

and the matter of the Bisbee Deportations. Labor leader Mooney h3d been

convicted of participating in the fatal bombing of a San Francisco Pre­

paredness Day parade in 1916. On the basis of his findings, which indi­

cated to him questionable procedures in the conduct of the trial, Frank­

furter recommended reconsideration of the official action taken.

The charges made against Frankfurter because of such "radical" incli­

nations extended to his handling of the Bisbee Deportations. These depor­

tations resulted from the calling of a copper miners' strike in the Warren

District of Arizona in 1917. Nearly 1,200 men werE: "deported" by local

authorities to prevent work stoppages potentially dangerous to the nation'~

war effort. This action was illegal under both state and federal law,

and Frankfurter suggested a strict accounting from those officials involve<

in the deportations.

Another "proof" put forward with respect to Frankfurter 9 s "radicalism"

was his support of Sacco and Vanzetti. Their trial took place at a time

when a wave of anti~radical and anti-communist feeling was sweeping the

6Bunting v. Oregon, 243 U.S. 426 (1917).

7Adkins v~ Children's Hospital, 261 U.S. 525 (1923).

4

country. Because of this climate of public antagonis~ to Sacco and Van­

zetti and because of procedural irregularities in their trial, Frankfurter

contended that their convictions wer~ based on reversible error$ aQd that

more consideration should be given their situations. His efforts proved

futile, however, for the two men were executed in 1927.

Frankfurter's efforts in behalf of a different kind of cause also met

defeat, at least as far as immediate results were concerned. At the end

of World War I,. one of the problems confron~ing the Paris Peace Conference

was the Jewish issue. The Zionist Movement, which had been organized in

the late nineteenth centu~y, was pressing for reconstruction of Palestine

as the national home of the Jews. In 1919 Frankfurter appeared as a per­

sonal representative of the Movement in Paris. No immediate restoration

occurred; but after World War II, the efforts of Frankfurter and the

Zionists were finally rewarded.

In the meantim~ Frankfurter returned to the United States, continuing

his active public life. In association with ~ group of individuals includ~

ing Helen Keller and Jane Addams he helped organize the American Civ~l

Liberties Union in 1920 as the ·successor to the old National Civil Liber~

ties Bureau. The original organization had strongly defended the rights

of conscientious objectors during World Wa;r I, and Frankfurter's asso­

ciation with the new ACLU was further proof to some that he was indeed

a "radical."

Another manifestation of Frankfurter's liberal views was his associa·

tion with the New Republic. This publication was founded to be a means

of expressing liberal ideas. Frankfurter was one of its founders; others

included the author Herbert Croly, Charles Booth, and Willard and Dorothy

Straight. Frankfurter also served as an early trustee and editorial board

5

member and continued in later years as a contributor to the publication

and a stockholder in the corporation.

By this time the nation was entering the perie:d of the Ne'ii· Deal. Frank=

furter became closely associated with this program and its most famous

exponent, Franklin Roosevelt. The two men had first met in New York when

they were young practicing attorneys. They renewed their ac·quaintance

when both were associated with the World War I Labor Policies Board; and

in 1932 Frankfurter joined the national committee of the National Progres~

sive League, an organization formed to help Roosevelt capture the Prebi­

dency. Thereafter Frankfurter participated actively in the New Deal.

In 1932 he refused an appointment to the Massachusetts Supreme Judi­

cial Court, saying that he felt that college teaching still presented him

with the best opportunity for public service. Later he also turned down

the post of Solicitor~General of the United States in order that he might

continue to advise top administration officials on New Deal legislation,

particularly the. Securities Act of 1933 and the Public Utilities Holding

Company Act of 1935. Frankfurter constantly warned administration forces

against too much haste in making drastic changes, and his advice on legis~

lative matters was one of his major contributions to the New Deal. The

other kind of service commonly noted as a significant Frankfurter contr1~

bution earned him the title "America's most famous legal employment ser­

vice." 8 His position as a college professor brought him ir..to contact

with many ambitious young lawyers and aspiring public servants, and he

was instrumental in placing a substantial number of these individuals in

governmental posts during the New Deal.

8Thomas, Scholar on the Bench, p. 27.

6

Another part of the New Deal with which Frankfurter had 5ome dealings

was the Brain Trust. How closely he was associated '.Nith them was a mat-

ter of some discus·sion. Some observers list him as a member of the group.

Others point to the disagreements he sometimes had with the Brain Trust

and to the fact that he occasionally acted as a mediator between this and

other factions in internal disputes arising among the Roosevelt forces.

On these bases, they characterized Frankfurter, at most, as only a nominal

member of the Brain Trust. 9

The New Deal facet of Frankfurter's public career, as well as some of

his pre-New Deal activities, occasioned concern when his name was presented

to the Senate for its approval of his Supreme Court nomination. The nomi-

nation was no great surprise to those familiar with public affairs. As

early as 1932 Frankfurter had been mentioned as a prospective justice.

As various men among the Nine Old Men left the Court, Frankfurter's name

was brought up with increasing frequency. When Justice Van Devanter

retired in 1937, Justice Stone wrote Frankfurter that he wished the latter

would be given the vacant seat.10 Instead, Senator Hugo L. Black was

named to the post. One year later Justice Sutherland retired; but Frank-

furter was again bypassed, this time in favor of Solicitor-General Stanley

Reed. At last, in 1938, Roosevelt had a chance to make his third Court

appointment upon the death of Justice Cardozo. Frankfurter staunchly main-

tained that until 1938 he had never given any serious consideration to a

possible future on the Court.11 But his supporters had.

9cf., Ibid., pp. 24~25.

lOstone to Frankfurter, May 28, 1937, in Alpheus T. Mason, Harlan Fiske Stone (New York: Viking Press, Inc., 1956), pp. 462=463.

llHarlan B. Phillips, Felix Frankfurter Reminisces (New York: Reynal Company, 1960), pp. 278-288.

7

The opening moves in his behalf were led by an old friend and progres­

sive, Senator George Norris. Joining him were other public figures includ­

ing Senator Sherman Minton,·Solicitor-General Robert Jackson, and Justice

Stone. In this preliminary stage, three major issues were rai~ed. There

was one suggestion that Roosevelt should wait until Justice Brandeis resign

and give Frankfurter his seat. But Brandeis himself qu~stioned the wisdom

of this. As a matter of fact, he appeared to think it entirely possible

that Frankfurter should never be appointed to the Court because he could

render a greater service to the legal profession and the nation by ·remainin:

at an academic post.12 A second point raised was the need for a justice

who could be dominant enough to neutralize the almost hypnotic effect of

Chief Justice H4ghes's personality. Evidently Solicitor-General Jackson

assured Roosevelt that Frankfurter had the qualifications needed in this

regard. Finally, some individuals objected to Frankfurter's appointment

since he was an Easterner and the Court was already loaded with Eastern

representatives. The support of Midwesterners like Senator Norris helped

stifle this objection.

The leaders of the Frankfurter supporters could point to some signifi­

cant signs of public approval of Frankfurter as their efforts continued.

In a Gallup Poll conducted among American lawyers, Frankfurter received

a favorable vote percentage five times greater than his closest opponents

listed, Judge Learned Hand and former Presiqential candidate J. W. Davis.

Especially surprising was the finding that over 60% of those polled indi·

cated opposition to Roosevelt and ~he New Deal, and yet they chose a New

Deal supporter over other candidates listed.13

12Brandeis, in Thomas, Scholar on the Bench, pp. 34-35.

13New York Times, September 23, 1938, p. 15.

8

With this kind of backing, Frankfurter's friends 3ucceeded in getting

his name submitted to the Senate.14 When the nomination was given~ as a

matter of procedure, to a subcommittee of the Senate Juciiciary Committee,

several individuals appeared to object to the appointment, Some of those

voicing opposition concentrated on Frankfurter's past activities as clear

indications of his "extreme" political views. Among this group were

Collis O. Redd, national director 9f the Constitutional Crusaders of Amer-

ica; John B. Snow, director of the League for Constitutional Government;

and Elizabeth Dilling, an authoress and "America! citizen devoted to non­

communist activities at my own expense. 1115 As far as these witnesses were

concerned, Frankfurter's association with such organizations and events as

the Mooney case, Sacco and Vanzetti, and the ACLU proved him to be a radi-

cal liberal, if not an outright communist.

Sometimes related to this charge of radicalism was the objection that

Frankfurter's foreign birth made him unfit to sit on the Court. George E.

Sullivan, a lawyer and author;l6 and Allen A. Zoll, executive vice-presi­

dent of the American Federation against Connnunism, 17 made this point.

The subcommittee gave little attention to this second charge. What time

was spent in examining t~e opposition to Frankfurter was devoted to the .. allegation that he was a political radical. On J~nuary 12, Frankfurter

himself appeared before the subcommittee to answer this charge, 18 Thereafte:

14January 5, 1939. See u.s., Congress, Senate, Subco~ittee of the Committee on the Judiciary, Hearings, The Nom;nation of Felix Frankfurter to be an Associate Justice of the Supreme Court, 76th Cong., 1st Sess., 1939

15Ibid., pp. 29-74.

16 Ibid. , p. 8.

17 Ibid., p. 74.

18 rbid., pp. 107~108.

9

on January 17, the Senate as a whole approved his appoiµtment.

When Frankfurter took the oath of office on January 30, liberal leaders

and liberal publications applauded. The New Republic assured its readers

that the liberal cause now had a new champion on the Court.19 It was

generally agreed among non-liberal elements as well that Frankfurter would

determine the majority of his votes in a manner favorable to liberalism.

Only one or two writers of national circulation ventured to suggest that

I

Frankfurter was more a pragmatist than a consistent New Deal philosopher

and that he might therefore prove a disappointment to his liberal

20 supporters.

In looking at Frankfurter's background, both liberals and non-liberals

could find bases for their respective predictions concerning Frankfurter ,·s

judicial behavior. Liberals could point to Frankfurter's association

with New Dealers and ea~lier progressives. This camp also drew hope from

Frankfurter's friendship with B;andeis, \\7hose opposition to a legalistic

approach to jurisprudence and crusading zeal in the realm of social and

economic reforms contributed to the liberal program.2 1

On the other hand, non-liberal forces hoped Frankfurter might achieve

a more balanced view in his judicial.decisions. There was some ground

for these hopes. At Harvard Frankfurter had become familiar with the ideas

of James Bradley Thayer, a strong advocate of a limited role for the judi-

ciary. Furthermore, Harvard carried on the tradition of James Barr Ames,

19 11Justice Frankfurter," New Republic, LXXXXVII, No. 1259 (January 18, 1939), p. 298.

20cf., New York Times, January 8, 1939; p. 6E.

21The technique developed by Brandeis of injecting such non-legal considerations as sociology and economics into judicial consideration of a case was known as the "Brandeis Brief."

10

who placed his faith in the power of legal reasoning, the use of all

sources of legal precedent, the development of a broad approach to law,

and the importance of leaving choices of action to non-judicial agencies.

Furthermore, Frankfurter had had some contact with Holmes, the great advo-

cate of judicial restraint. If the ideas of these men had gained a foot­

hold in Frankfurter's thinking before 1939, perhaps they could counter-

act part of the influence that the liberal ideology might have on Frank­

furter after he joined the Court.~2

The Traditionalist-Behavioralist Debate

These divergent hopes concerning Frankfurter's judicial decisions have

been translated into divergent views as to just what kind of votes and

opinions Frankfurter did produce during his twenty-three years on the

Bench~ The debate over the nature of Frankfurter's judicial decisions

has been heightened in recent years by the dispute between the tradition-

alist and behavioralist approaches to the study of political science and

the judicial process. The traditionalists claim that Frankfurter was

primarily an exponent of judicial restraint; the behavioralists contend

that Frankfurter's decisions were above all conservative in nature. One

leader of the traditionalist camp is Wallace Mendelson. Frankfurter, he

says, viewed the Constitution as an allocation of power and processes

whereby the people choose the ends of their government. Most choices in

a democracy fall in the realm of the political processes; the political

branches of government must therefore be accorded great respect by the

judiciary. That is, courts must restrain themselves from unwarranted

22For a discussion of the impact of these ideas upon Frankfurter, see: Thomas, Scholar on the Bench, pp. 5-61, pp. 10-11; Samuel J. Konefsky, The Legacy of Holmes and Brandeis (New York: Macmillan Company, 1957).

11

interference in the political processes. 23

Mendelson also attacks specific behavioralist findings concerning

Frankfurter's views on civil liberties and economic regulations.24 He

contends that one leading behavioralist, Harold J. Spaeth, misinterprets

statistics in concluding that Frankfurter was anti=union. 25 Mendelson

also interviews several prominent men who knew Frankfurter intimately

and who testify that Frankfurter was definitely not pro-business.26 As

for the behavioralist hypothesis that Frankfurter in later years became

increasingly conservative on civil liberties issues, Mendelson says that

any shift that did occur was due to a change in issues before the Court,

not in Frankfurter's basic approach. 27

The behavioralist approach in general is unacceptable to Mendelson

because he says it is an attempt to reduce the motivation of Supreme

Court justices to two variables (response to issues of civil liberties

and to issues of economic regulation). In the traditionalists' view,

this is a gross oversimplification of the complex problem of trying to

consider scientifically an institution such as the Supreme Court. This

oversimplification leads behavioralists to disregard other important

factors such as judicial response to issues of federalism and judicial

adherence to legal rules. Furthermore, since justices sometimes say in

their opinions that their decisions are based on elements other than

23wallace Mendelson, Justices Black and Frankfurter (Chicago: Uni­versity of Chicago Press, 1961), pp. 47~51.

24Mendelson, "The Neo=Behavioralist Approach to the Judicial Process: A Critique," American Political Science Review, LVII, No. 3 (September, 1963), pp. 593-603.

2 5 lb id • ' p • 5 9 9 •

26 Ibid.

27rbid., PP· 597-598.

12

civil liberties or economic regulation issues, for the behavioralists

to contend that these two elements alone determine judicial behavior is

to charge the justices with being a band of frauds and hypocrites.

Mendelson's conclusions are supported in part by another writer, C. Her-

man Pritchett. In his study of Frankfurter and the Roosevelt Court (1937-

1947), Pritchett says there is a definite tendency for Frankfurter to

defer to the administrative agencies in cases of administrative law and

to accept broad legislative limitations on access to the courts and the

process of judicial review.28 As for Frankfurter on the Vinson Court

(1946-1953), Pritchett concludes that judicial restraint continued to

pervade Frankfurter's decisions in the civil liberties cases.29

Similar conclusions are reached by a third student of constitutional

law, Samuel J. Konefsky. Among his works is an examination of the impact

of Holmes and Brandeis on later Courts; and in this book Konefsky suggests

that Frankfurter was influenced by the support given judicial restraint

in the writings of Holmes.30

In the traditionalists' view, then, Frankfurter was above all an expo-

nent of judicial restraint. It is their contention that ideology was of

only secondary importance to Frankfurter; and what ideological traces can

be found in his opinions are traces of liberalism. The behavioralists

disagree. They contend that ideology was of primary importance in Frank-

furter's decisions, and that he leaned toward conservatism rather than

28c. Herman Pritchett, The Roosevelt Court (New York: Macmillan Company, 1948), pp. 193-195.

29pritchett, The Vinson Court and Civil Liberties (Chicago: University of Chicago Press, 1954), p. 201.

30Konefsky, The Legacy, p. 142.

13

liberalism.

Illustrative of the behavioralists' outlook and use of jurimetrics is

a portion of Pritchett's study of the Roosevelt Court (so named because

most of its members were Roosevelt-appointed and New Deal-oriented). In

the first place, Pritchett places Frankfurter in the conservative category

in cases of civil liberties. He bases this conclusion on statistics show­

ing that in personal liberties cases Frankfurter voted for the individual

and his claim of liberty only 34% of the time, while the Court majority

voted for the individual in 49% of these cases. 31 Secondly, Frankfurter

appears to belong in the conservative camp in cases of economic regulation

Here he voted pro-labor and pro-competition 39% of the time, while the

majority voted for labor interests and increased competition in 49% of

the economic cases.32 Frankfurter's apparent anti-civil liberties, anti­

labor, and anti-competition attitude leads Pritchett to label him as a

conservative on the Roosevelt Court.

With the gradual dissolution of the Roosevelt Court, the retirement

of Chief Justice Hughes, and the death of Chief Justice Stone, new Courts

appeared under Chief Justices Vinson and Warren. By this time jurimetrics

were becoming increasingly popular. The behavioralists came to be more

accepted by their fellow political scientists and more adept in the use

of their statistical techniques. Court decisions were consequently sub­

jected with increasing frequency to statistical analyses. One present

behavioralist leader and student of the judicial process, Glendon A. Schu­

bert, has studied the whole span of activity of the Vinson and Warren Court

to 1962 and concludes that Frankfurter was conservative to moderate in case

3lpritchett, The Roosevelt Court, p. 260.

32Ibid., p. 254.

14

of civil liberties and conservative where issues of economic regulation

were concerned.33

Studies by Spaeth also suggest the conservative nature of Frankfurter's

decisions. Spaeth states clearly the view that the Warren Court has

responded to two major factors--civil liberties issues and economic ques-

tions--and that the best clue to a justice's attitude is his voting record,

not his opinions. 34 In examining judicial voting records, Spaeth sets up

a scale for measuring a justice's ideological bias; a score of 1.00 means

that a justice always voted pro-civil liberties and pro-economic liberalism.

Conversely, a score of -1.00 describes a justice who voted conservative in

evPr y cast- ?5 On this scale Frankfurter ranked - .89 on civil liberties and

-.31 on economic issues, which places him in the strongly conservative

camp on civil liberties and in the conservative camp on economic issues.36

Spaeth and his colleagues aired their views in a series of articles

published mainly in the Journal of Politics.37 Several of the articles

33Glendon A. Schubert, The Judicial Mind (Evanston: _Northwestern Uni­versity Press, 1965), p. 123.

34Harold J. Spaeth, The Warren Court (San Francisco: Chandler Publish­ing Company, 1966), p. 17.

351bid., p. 19.

36 lb id. ' p. 32.

37Spaeth, "Warren Court Attitudes Toward Business: The 'B' Scale," in Schubert, Judicial Decision-Making (New York: Macmillan Company, 1963), pp. 79-108; Spaeth, "An Analysis of Judicial Attitudes in the Labor Rela­tions Decisions of the Warren Court," Journal of Politics,:XXV, No. 2 (May, 1963), pp. 290-311; Spaeth, "Views and Opinions--Jurimetrics and Professor Mendelson: A Troubled Relationship," Journal of Politics, XVII, No. 4 (November, 1965), pp. 875-880; Mendelson, American Political Science Review LVII No. 3, pp. 593-603; Mendelson, "Communications--'Neo-Behav­Torali~m 1 and Public Law: Replies and Comments," American Political Science Review, LVII, No. 4 (December, 1963), pp. 948-953; Mendelson, "The Untroubled World of Jurimetrics," Journal of Politics, XXVI, No. 4 (November, 1964), pp. 914~922.

15

were written in support of the traditionalists and in reply to Spaeth's

detailed examination of the Warren Court and economic regulations. This

interchange, however, has produced no single set of conclusions, for

neither side would concede that the other had better proof of its argu­

ments. Mendelson and his colleagues still contend that Frankfurter was

first of all a supporter of judicial restraint; Schubert, Spaeth, and

their followers still contend that the most important element in Frank­

furter's judicial decisions was conservatism.

The Approach of This Study

Determining the nature of Frankfurter's judicial behavior is the pur­

pose of this study. The problem involves more than simply setting up a

single scale with restraint on one end and conservatism on the other.

In the first place, there are two dimensions involved in the problem

as dealt with in the following pages. One dimension is that of ideology.

The ideological scale measures a judge's conservative vote vis-a-vis his

liberal vote. The second dimension is that of judicial participation,

of the justice's view of the role of the judiciary in American politics.

This participation scale measures a judge's support of judicial restraint

as compared to his support of judicial activism.

In the following pages, statistical surveys of Frankfurter's votes

and doctrinal analyses of selected opinions are used in conjunction with

these ideological and participation scales to formulate some conclusions

about Frankfurter's decisions. The two scales have to be handled sepa­

rately at first in order to decide whether conservatism or liberalism

and restraint or activism were most important in Frankfurter's decisions.

When Frankfurter's position on the two scales taken separately has been

16

determined, it will be necessary to determine whi~h of these scales rep-

resents the factor more apparent in Frankfurter's decisions, that is

whether he was mainly concerned with the Court vs role or with ideology.

Of the four values considered in this study--judicial restraint, activism,

conservatism, and liberalism--one should emerge as the predominant ele-

ment in Frankfurter's votes and opinions.

The statistical analysis used in this study includes a survey of 903

votes cast by Frankfurter in selected classes of cases.38 Each vote is

recorded on a table showing whether that vote represents activism/con-

servatism, restraint/conservatism, restraint/liberalism, or activism/

liberalism. Percentages derived from these tables indicate the propor-

tion of conservative votes as compared to liberal votes and of restrained

votes as compared to activist votes. On the ideological scale, if Frank-

furter 9s percentage of conservative votes falls between 0% and 20%, he

will be labeled strongly liberal; if it falls between 20% and 40%, he

will be labeled liberal; if it falls between 40% and 60%, he will be

considered moderate or neutral; if it lies between 60% and 80%, he will

be considered conservative; and if it lies between 80% and 100%, he

will be labeled strongly conservative. On the judicial participation

scale, if his percentage of votes supporting judicial restraint lies

between 0% and 20%, Frankfurter will be ranked as strongly activist; if

it falls between 20% and 40%, he will be considered activist; if it lies

between 40% and 60%, he will be ranked as moderate or neutral; if it falls

between 60% and 80%, he will be ranked as restrained; and if it lies

between 80% and 100%, he will be labeled as a strong exponent of judicial

38some cases involved multiple issues; in these cases Frankfurter is considered to have voted two, or even three, times.

17

restraint. Statistics, however, are not the onl:y tool used. The sta­

tistical analysis is used in conjunction with a doctrinal analysis of

271 opinions written by Frankfurter in selected cases during his twenty­

three years on the Court. Since each of the 271 opinions cannot be

quoted at length here, fifty-one cases that are considered by constitu~

tional scholars to be "landmark" cases or good sununari.eR of the kind of

decisions made by Frankfurter are used as the basis of discussion. None

of these 271 opinions and 903 votes includes decrees, per curiam opinion~,

or memorandum cases.

The choice of types of cases to use was governed by several consider­

ations. Cases were selected in order to illustrate instances of both

national and state action, of executive and legislative actions vis-a­

vis the judiciary, of governmental actions both supporting and opposing

the object regulated, and of governmental actions relating to both indi­

viduals and groups. Cases were selected also in such a manner as to

minimize the complications produced by very technical points of law not

relevant to this study.

The cases so chosen are of two types-=civil liberties cases and eco­

nomic regulation cases. The civil liberties cases present issues of

First Amendment rights, criminal defend.ants' rights, and equality before

the law (rights of raci~l and ethnic groups and problems of reapportion­

ment). The economic cases concern regulation of business and labor-­

decisions of the administrative agencies, antitrust cases, state regula­

tions (excluding taxation), cases arising under the Federal Employers'

Liability Act, and National lahot Relations Foard actions.

The label:::; "restraint," "activism," "co~servatism," and "liberalism"

are defined in relation to the issues presented by these cases. Restraint

18

and activism, the extremes on the judicial participstion ~ca.le, involve

"the propriety of the Court's exercise of its legal power."39 The central

issue is how much the Court is going to parti~ipate in tnt nation's govern-

mental processes and how much it is going to interfere with, or overturn,

the actions of other branches and levels of government. The activist jus-

tice would allow the Court a substantial amount of activity in the polit-

ical processes and would not be too much inclined to limit the Court's

supervision over other agencies of government. If a judge is inclined to

place frequent limitations on Congressional actions or actions of the

states, he would be considered an exponent of activism. Conversely, the

supporter of judicial restraint would confine Court activities to a rela-

tively narrow range of power. The belief that the Court should exercise

much self-control over its actions may manifest itself in numerous ways--

deference to Congressional or state actions, support of the concept that

the people are the source of power, recognition of judicial incompetence

in many areas, use of the political question doctrine, demands that all

possible remedies be exhausted before the Court acts, etc. A vote or

opinion is thus characterized as a vote of restraint if it supports the

act of another agency of the national government or of the states.

The bases for determining conservatism and liberalism are different.

In the broadest sense, these ideologies include a num~er of components. 40

39 Spaeth, The Warren Court, p. 220

40The materials for this discussion are taken from: Jacob S. Schapiro, Liberalism: Its Meaning and History {Princeton: Van Nostrand Company, 1958); George B. Vetter, "What Makes Attitudes Liberal or Conservative," Journal of Abnormal Psychology, XLVII, No. 1 (January, 1947), pp. 25-30; Samuel P. Huntington, "Conservatism as an Ideology," American Political Science Reyiew, LI, No. 2 (June, 1957), pp. 454-473; Willmoore Kendall and George w. Carey, "Toward a Definition of Conservatism," Journal of Politics, XXVI, No. 2 {May, 1964), pp. 406~422.

19

Atheism, naturalism, and rationalism are said to characterize liberalism,

while moralism, supernaturalism, and belief in the Divine foundation of

society mark one as a conservative. Furthermore, the liberal is typi­

cally described as looking to that which is "new" and to a democracy

"of the living," while the conservative relies more on the "old," on

tradition and orthodoxy and a democracy "of the dead," with only slow

and cautious change being desiredo

The two ideologies also differ in their views of the nature of man.

Liberalism includes a belief in equalitarianism and the ability of man

to progress toward a better life. In contrast, the conservative believes

that there is a natural aristocracy in the human race, that mankind pos­

sesses a basically religious and emotional nature, and that all men have

a tendency to sin that arises from the evil rooted in their natures.

Related to these concepts are divergent beliefs concerning the nature

of society and government. Libe~als support plebiscitary democracy, con­

sent and equality in government, and peaceful and political settlement

of all kinds of conflicts-~both domestic and international. And they

are more tolerant of deviant beliefs than are the conservatives. The

latter contend that morality and hierarchy, not equality, are the bases

of good government. And they support settled schemes of societal organi­

zation, believing society to be the natural and organic result of slow

historic development.

Liberals and conservatives also disagree on the kind of relationship

that should exist between the individual and society. Liberalism stresses

individual freedom, believing this to be essential to achieving numerous

desirable goals. But the conservative holds that individual interests

should be subordinate to the interests of society as a whole. Order and

20

leadership are of supreme importance.

These general patterns of belief underlie specific premises supported

by liberals and conservatives in the United States.41 For the liberal,

these value·j include marital and family planning, cri~inal rehabilita-

tion, internationalism and pacifism, working class and socialistic advance-

ment, civil liberties and equality before the law, intellectual freedom,

political freedom (First Amendment), religious freedom (First Amendment),

right to fair trials (Fifth, Sixth, Eighth, and Fourteeneh Amendments),

right to individual privacy (Fourth and Fifth Amendments), and positive

governmental action in general to enhance individual freedom. On the

other hand, the conservative often stresses punishment for the criminal

rather than rehabilitation. He is prone to be nationalistic and upper

class in sympathy and to believe that equality befo;e the law cannot be

unlimited since law is not intended to remove every inequality among

human beings. The conservative's concern for maintaining societal inter-

ests above all else is evident.

These beliefs are the components upon which th~ ideological scale for

measuring judicial behavior is based.42 A justice ranked on the liberal

end of the scale would be expected to support religious an~ political

freedoms, protection of rights of the criminal defendant, and equality

41For a discussion of liberalism and conservatism !n the United States, consult: Stuart Nagel, "Off-the-Bench Judicial Attitudes," in Schubert, Judicial Decision-Making, pp. 29-53; Hans Eysenck, Psychology of Politics (London: Rugledge and Keagan Paul, 1954), as cited in Nagel, "Off-the­Bench Attitudes," p. 30; w. A. Kerr, "Correlates of Political-Economic Liberalism~Conservatism," Journal of Social Psychology, XX, First Half (August, 1944), pp. 61-77.

42For a detailed consideration of judicial liberalism and conservatism, see: Spaeth, "The 'B' Scale," in Schubert, Judicial Decision-Making, p. 79; Spafth, Journal of Politics, XXV, No. 2; Spaeth, The Wa;ren Court, .PP· 17-22; Pritchett, The Roosevelt Court, p. 9; Schubert, The Judicial Mind, pp. 275~280; Fred Rodell, Nine Men {New York: Random House, 1964), p. 255.

21

before the law. In the economic realm he would generally be pro-union,

·pro~competition, anti-business, and sympathetic to fiscal claims made

by individual workers. The conservative justice would be inclined to

protect the interests and wishes of the majority groups in society and

of the business community vis-a-vis the labor community.

Which of these sets of values Frankfurter was more sympathetic to in

his decisions and whether his votes supported judicial restraint or judi­

cial activism are the two preliminary questions that must be answered

in order to reach the final issue--the nature of Frankfurter's decisions.

One key to understanding these decisions is the body of votes and opin­

ions recorded by Frankfurter in civil liberties and economic regulation

cases. Were his opinions a defense of judicial restraint? of activism?

of liberalism? of conservatism? The civil liberties cases offer a

partial answer to these questions.

CHAPTER II

CIVIL LIBERTIES

Two of the basic principles of the American political system are li111~

ited government and judicial review. The people are to retain many rights

,and guarantees against governmental action; and when conflicts between

the individual and government do arise, the courts are one mechanism

provided for arbitration of the disputes. Civil liberties have conse-

quently been a thorny problem for the Supreme Court. This has been espe-

cially true since 1937. The Courts before that time had been more con-

cerned with the nature of the union and with economic regulations. Since

1937 many of the Court's most crucial and most publicized decisions have

come in the area of civil liberties. Cases of other types seem to pre-

sent routine problems of adjusting specific rules so that they agree

with major constitutional principles already laid out. In the area of

civil liberties, however, the Court has been struggling recently to decide

just what the major constitutional principles are.43

The issues raised in these civil liberties cases can be grouped into

three sub-categories: (1) First Amendment freedoms of religion, speech,

press, assembly, petition, and association; (2) rights of the criminal

defendant resting on the Fourth, Fifth, Sixth, and Eighth Amendments and

raising such issues as double jeopardy, self=incrimination, and unrea-

sonable searches and seizures; (3) and guarantees of equal protection of

the laws, which underlie the problems of equality of ethnic and racial

43cf0

, Samuel Krislov, The Supreme Court in the Political Process (New York: Macmillan Company, 1965), po 86, po 106; Pritchett and Alan F. Westin, The Third Branc.h of Government (New York: Harcourt, Brace, and. World, Inc., 1963), pp. 1~10.

22

23

groups. Actions of both state and national governments may be involved;

when the states are parties to a case, an additional constitutional prin­

ciple brought into play is the Fourteenth Amendment.

During his tenure on the Court, Frankfurter voted 508 times on these

civil liberties questions. At the same time he'wrote a substantial num­

ber of opinions; twenty-two opinions are surveyed here in order to observe

the kinds of questions brought before the Court and the kinds of answers

Frankfurter providedo The twenty-two opinions were selected on the basis

of their position in American constitutional law. Many are cases gener­

ally classified as "landmark"; others are well-known also because of the

publicity they received and because they, too, present with particular

clarity important questions of constitutional law. These opinions and

votes will be used to determine the nature of Frankfurter's decisions.

In regard to the ideological scale, Frankfurter will be considered liberal

if he favors the claims of religious and political freedom, rights of the

criminal defendant, and guarantees of equal protection. He will rank as

conservative if he generally appears to oppose these claims in favor of

other values such as national unity and the superiority of societal inter­

ests over individual interests. As for the question of judicial partici­

pation, he will be ranked as a supporter of activism if he. appears rather

consistently to support Court supervision of the other agencies of govern­

ment and to be willing to overturn their actions. Conversely, he ranks as

an adherent of judicial restraint if he seeks to minimize the Court's

power vis-a~vis the other agencies of government and to defer to those

agencies.

The Statistical Distribution of Frankfurter's Votes

An initial view of Frankfurter's judicial behavior can be obtained by

24

examining the- 508 votes cast in the area of civil liberties. Following

this statistical analysis will be an examination of the selected opinions

which Frankfurter wrote to explain his voteso

A

c

T

I 42.9%

v

I

s

M

TABLE 1

FRANKFURTER'S VOTES IN FIRST AMENDMENT CASES

59% C 0 N S E R V A T I S M

4

41

1 I B E R A L I S M 41%

58

2

R

E

s

T

R 57.1%

A

I

N

T

The first sub-class of civil liberties votes are the First Amendment

cases. These 105 votes show that Frankfurter's votes on the ideologi-

cal scale were more conservative than liberal. His 59% mark on conserv-

atism here is the largest conservatism percentage recorded in any of the

classes of cases studied. Both it and his percentage on liberalism, how-

ever, fall between 40% and 60% so that he appears neutral on the· ideo-

logical scale. His votes also fall in the neutral category on the judi-

cial participation scale, although they appear more restrained than

25

activist. One complicating factor evident here is that the largest bloc

of votes is the restraint/conservatism quadrant; neither traditionalist

nor behavioralist could claim a clear victory on the ba~i~ of this table.

Furthermore~ there is a large group of activism/liberalism votes regis-

tered. Neither traditionalist nor behavioralist gives activism any con-

sideration as being an important element in Frankfurter's decisions, and

liberalism is regard as only a secondary factor by the traditionalists,

A

c

T

I 50.3%

v

I

s

M

TABLE 2

FRA.m<.FURTER'S VOTES ON RIGHTS THE CRIMINAL DEFENDANT

44.5% C 0 N S E R V A T I S M

12 143

163 30

1 I B E R A 1 I S M 55.5%

OF

R

E

s

T

R 49.7%

A

I

N

T

A somewhat similar distribution of votes appears on the table showing

votes on rights of the criminal defendant. The similarity extends only

so far, however, as the faet that again the two largest blocs of votes

are the restraint/conservatism and activism I liberalism quadrants. Unlike

26

the first table, this one shows Frankfurter to be more liberal than con-

servative on the ideological scale and more activist than restrained on

the judicial participation scale. However, there is not a great differ-

ence between the percentages on either scale; and Frankfurter's votes

still fall in the neutral or moderate area on both scales. This table is

unique in several respects. Of the nine sub=classes of cases studied .·

(three in the civil liberties area and six in the realm of economic regu-

lation), this group of criminal cases is the largest-=348 votes. It is

also one of the two sub~classes in which the activism/liberalism bloc

is the largest of the four groups on the table. And it is one of the

three sub~classes in which Frankfurter votes in support of activism more

often than restraint, percentage~wise.

A

c

T

I 50.9%

v

I

s

M

TABLE 3

FRANKFURTER 9S VOTES IN EQUAL PROTECTION CASES

47.3% C 0 N S E R V A T I S M

1

26

• ......... _.~ -L I B E R A L I S M

52. 7%

25

3

R

E

s

T

R 49.1%

A

I

N

T

27

As for the equal protection cases, this group is the other one in

which the activism/liberalism quadrant is the largest on the table. This

sub-class also shows Frankfurter voting in favor of judicial activism more

often than judicial restraint and in favor of liberalism more often than

conservatism. The activism/conservatism vote here is the smallest activ-

ism/conservatism total registered among the nine sub~classes of cases.

The equal protection cases as a whole, however, are a relatively small

group as far as total number of votes cast is concerned. I

Like the other

two sub-classes of civil liberties votes, the equal pro~~ction votes sug-

gest that on both ideological and judicial participation scales Frankfurter's

votes are moderate or neutral.

Before reliable conclusions can be drawn in regard to these statistics

and their bearing on the question of the nature of Frankfurter's judi-

cial decisions, however, consideration must be given to the most signifi-

cant and representative opinions written by Frankfurter in these three

areas of civil liberties. Note will be made in each case of how Frank-

furter voted, whether he was in the majority, and whether the Court split

5-4 (or 4-3) in making its decisions. In such close decisions each jus-

tice's vote is of special importance, so it might be expected that each

justice would make as clear as possible the nature of his vote.

First Amendment Freedoms ____________ , The first sub~class of civil liberties cases, the First Amendment

cases, involve two types of freedoms~~religious freedom and the politi-

cal freedoms (or "freedom of expression"). In the religious freedom

cases Frankfurter wrote several opinions in which both ideology and judi-

cial participation are given consideration. In regard to the ideological

28

scale, it appears that Frankfurter wrote opinions in which both conserv-

atism and liberalism are mentioned. One of his earliest opinions, written

for the majority, was in Minersville v. Gobit13.44 Thib famous First

Flag Salut~ C~se involved a claim by some Jehovah's Witnesses that their

religious freedom was violated by a state requirement under which their

children were required to salute the United States flag in the public

schools of West Virginia. Frankfurter favored upholding the state law

rather than the claim of religious freedom. The opinion which accompa-

nied this conservative vote devotes considerable time to the theme sug-

gested by these words~

We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security • • • • Situations like the present are phases of the profoundest problem confronting democ­racy • . • . 45

The importance of the interests of society as a whole reflected here

and throughout the rest of Frankfurter's opinion is a concern generally

considered to be conservative in nature.

A conservative outcome also resulted in Frankfurter's minority opin·

ion in the Second Flag Salute Case, West Virginia Board of Education v.

Barnette.46 The majority reversed the stand it had taken in Gobitis,

but Frankfurter continued to vote in favor of conservative values. Part

of his opinion suggests that there are definite limitations on the consti-

tutional guarantees of religious liberty:

The constitutional protection of religious freedom termi­nated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence

44Minersville v. Gobitis, 84 L.Ed. 137S (1940).

451bid., pp. 1379-1380.

46west Virginia Board of Education v. Barnette, 87 L.Ed. 1628 (1943).

is freedom from conformity to religious dogma, not freedom from conformity to law because of religiou3 dogma.47

29

The overriding importance of civil authority in some instances where

even religious liberty may be circumscribed sugge3ts conservatism. This

line of reasoning is extended when Frankfurter explained that if all

matters of religion were outside the sphere of government, there would

not be separation of church and state. Instead, there would be subor­

dination of the state on any matter deemed to be religious in nature. 48

These anti=religious freedom statements indicate that Frankfurter's

votes fall on the conservative end of the ideological scaleo But his

religion opinions also contain suggestions of liberalism. Interspersed

with his apparently conservative comments in Barnette are statements

such as this:

Were my purely personal attitude relevant I should whole­heartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime.49 (Italics mine.)

These "general libertarian views" appear in Frankfurter's concurring

opinion in Mccollum v. Board of Educationo50 Casting a liberal vote,

he favored the claims of those who contended that an Illinois released

time program for religious education, a program utilizing public school

facilities and time, violated religious freedom guarantees. In agreeing

with the plaintiffs, Frankfurter made this comment:

In no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep

47 Ibid., p. 1645.

48 Ibid. -- ' p. 1646.

49Ibid. , p. 1642.

50McCollum v. Board of Education, 92 L.Ed. 649 (1948).

apart. "The great American principle of eternal separation [of church and stat~ • • • is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. 51

30

This support for secularizing the public schools to prevent establish-

ment of religion is indicative of liberalism. The same is true of

Frankfurter's comment that the First and Fourteenth Amendments "have

a secular reach far more penetrating in the conduct of Government than

merely to forbid an 'established church. 11152 To reach this conclusion,

Frankfurter relied µpon a tool he often used--the legislative.and judi-

cial history of the issue under consideration.

These opinions in the religion cases, as far as they related to the

ideological scale, seem to show Frankfurter's votes falling on both ends

of the spectrum. The same opinions contain numerous references to., the

issue of judicial participation. In Gobitis Frankfurter made this obser-

vat ion:

The influences which help toward a common feeling for the common country are manifold. Some may seem harsh and others no doubt are foolish. Surely, however, the end is legiti­mate. And the effective means for its attainment are still so uncertain and so unauthenticated by science as to preclude us CThe CourIJ from putting the widely prevalent belief in flag-saluting beyond the pale of legislative power. 53

His denegration of judicial power in this area, a sign of judicial

restraint, was reiterated later:

Judicial review, itself a limitation on popular govern­ment, is a fundamental part of our constitutional scheme. But to the legislature no less than to courts is

4committed

the guardianship of deeply-cherished liberties. 5

This respect for legislative authority is closely related to another

5lrbid., p. 669.

52 rbid., p. f-59.

53Gobitis, p, 1381.

54rbid., p. 1382.

31

facet of judicial restraint, the view of restraint as a vehicle for pro-

rooting democracy:

Where all the effective means of inducir:g political changes are left free from interference, education in the abandon­ment of foolish legislation is itself a training in liberty. ~~ fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies ratiter than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people.55 (Italics mine.)

Finally, Frankfurter highlighted another characteristic of judicial

restraint:

To stigmatize the legislative judgment in providing for this universal gesture of respect for the symbol of our national life {Jhe flag salut~ in the setting of the conunon school as a lawless inroad on that freedom of conscience which the Constitution protects, would amount to no less than the pronouncement of pedagogical and psychological dogma in a field where courts possess no marked and certainly no controlling competence.Sb (Italics mine.)

In other words, judges possess competence only in certain areas; it is

their responsibility to observe carefully the limits of their ability

and to refrain from making decisions in the numerous areas where they

are unqualified to act.

Frankfurter's vote of self-restraint in Gobitis was followed by a

similar vote in the Barnette Case. Adherence to judicial restraint is

evidenced in this passage:

As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its gene­eral competence or that of an individual to refuse obedi­ence because of the demands of his conscience, is not that

55Ibid.

56Ibid., pp. 1380-1381.

of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether wheit one is doing one's duty on the bench.57

32

In expressing these views Frankfurter presented an argument not used

before in his religion opinions--his opposition to the concept that the

First Amendment occupies a "preferred position" in constitutional adjudi-

cation. He claimed that the Constitution nowhere grants the Court more

veto power over regulations of one kind of liberty than of another,58

To hold otherwise would evidently be to read one's own predilections into

the Constitution. 59

Frankfurter's apparent observance of the rules of judicial restraint

took a new turn in his opinion in Zorach v. Clauson.60 Like the McCollum

Case, this case involved a state released time program. Here, however,

the Court majority felt that the relationship between the public schools

and religious instruction was so indirect that the program did not consti-

tute an unconstitutional establishment of religion, Frankfurter dissented

and voted activist/liberal. The explanation he gave for his vote, though,

suggests that something other than activism was most important in his

decision. The crux of his reasoning was this:

When constitutional issues turn on facts, it is a strange procedure indeed not to permit the facts to be established .. Even on a more latitudinarian view, I cannot see how a finding that coercion was ab-sent [in this progra~ deemed critical by this Court in sustaining the practice {]f released tim!J, can be made here, when appellants were prevented from making a timely showing of coercion because the courts below thought

57Barnette, p. 1642.

58Ibid., PP· 1642-1643.

59Ibid., p. 1644.

60zorach v. Clauson, 96 L.Ed. 954 (1952).

33

it irrelevant.61

In other words, Frankfurter accused his colleagues of making a precipi-

tous decision based on insufficient evidenceo It can be suggested that

the majority in effect decided the issue before it was "ripe." The rule

of ripeness as a means of refusing jurisdiction in a case can be an effec-

tive tool in the hands of a supporter of judicial restraint.

Judicial participation and ideology both appear to be important in

Frankfurter's decisions in the religious freedom segment of the civil

liberties cases. Both also appear in the political freedom portion of

the civil liberties group. These free expression cases raise several

types of issues. One problem, that of interference with the administra­

tion of justice, was illustrated in Bridges v. California.62 Contempt

of court convictions had been levied against several newspaper editorial

writers and a labor leader during a period of labor unrest; these convic-

tions were struck down by a majority of the Court in a 5-4 decision.

Frankfurter dissented, voting for judicial restraint and conservatism.

That portion of his opinion that relates to ideology, however, indicates

respect for free expression:

• . • to assure the impartial accomplishment of justice is not an abridgement of freedom of speech or freedom of the press, as these phases of liberty have heretofore been con­ceived by the stoutest libertarians. In fact, these liber­ties themselves depend upon an untrammeled judiciary whose passions are not even unconsciously aroused and whose minds are not distorted by extra-judicial considerations.63

Defense of free expression as related here to an impartial judiciary

appears as more a liberal value than a conservative one.

6lrbid., p. 966.

62Bridges v. California, 86 L.Ed. 192 (1941).

63Ibid., p. 214.

34

Frankfurter appears to fall again on the liberal side of the ideologi­

cal scale in Saia v. New York64 and Kovacs v. Cooper.65 Involved in both

cases were regulations of the use of amplification devices. In the Saia

Case the majority held the city ordinance to be too broad to sa:tisfy

requirements of the First and Fourteenth Amendments. Frankfurter dis-

sented in this 5=4 decision, basing his views on protection of the right

of privacy:

. • . modern devices for amplifying the range and volume of the voice, or its recording, afford easy, too easy, oppor­tunities for aural aggression. If uncontrolled, the result is intrusion into cherished privacy. The refreshment of mere silence, or meditation, or quiet conversation, may be disturbed or precluded by noise beyond one's personal contro1. 66 (Italics mine.)

Frankfurter maintained these same views in the Kovacs Case and joined

four other justices to uphold the ordinance involved in this case. One

major theme of his opinion was protection of privacy and recognition of

the need of a free society for reflection, which in turn demands quiet

and order.67 His other theme was opposition to the "preferred position"

concept in regard to the First Amendment, which concept he said "has

never commended itself to a majority of this court. 1168

Frankfurter struck still another liberal note in the famous subversion

case, Dennis v. United States.69 Frankfurter concurred with the majority

in upholding the convictions of several American communist leaders alleged

64saia v. New York, 92 L.Ed. 1574 (1948).

65Kovacs v. Cooper, 93 L.Ed. 513 (1949).

66saia, p. 1579.

67Kovacs, pp. 527-558.

68rbid., p. 524.

69nennis v. United States, 95 L.Ed. 1137 (1951).

35

to have violated the Smith Act. But his opinion stressed the importance

of free expression:

We must not overlook the value of reh~ interchange [:9,f ideas lo Freedom of expression is the well-spring of our civilization--the civilization we seek to maintain and fu.rther by recognizing the right of Congress to put some limitations upon expression. Such are the paradoxes of life. tor social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes. 10

The lib~ral's concern for freedom of thought and expression is also

reflected in Frankfurter's concurring opinion in Burstyn v. Wilson.71

New York had banned any showing of the motion picture, The Miracle,

because it was "sacrilegious." Frankfurter and the rest of the major-

ity found this term too vague a standard to meet due process require-

ments. Agreeing that motion pictures are "speech" within the meaning

of the First and Fourteenth Amendments, frankfurter commented on the

deleterious effects of censorship:

To allow such vague, undefined powers of censorship to be exercised is bound to hav~ stultifying consequences on the creative process of literature and art~=for the films are derived largely from literatu.reo72

The case of Shelton Vo Tucker73 presented the problem of a different

aspect of political freedom, freedom of association. Arkansas required

701bid 0, po 11740

71 Burstyn Vo Wilson, 96 LoEda 1098 (1952).

72Ibid., p. 1121.

73shelton v. Tucker, 5 L.Ed.2d 110 (1960).

36

teachers employed by the state to reveal certain information about their

past associations as a necessary condition of employment. Shelton claimed

that the state law violated Fourteenth Amendment guarantees. Five of the

justices agreed with him. Frankfurter disagreed. But he seemed to empha-

size that he did not personally approve of measures such as Arkansas had

passed, for he described himself as "one who has strong views ag_ainst

crude intrusions by the state into the atmosphere of creative freedom in

which alone the spirit and mind of a teacher can fruitfully function. 1174

Academic and associational freedom, generally held to be values of lib-

eralism, are supported here.

In addition to the ideological implications of these cases, the Shelton

Case and Frankfurter's other political freedo~ opinions have implications

in the realm of judicial participation. Frankfurter's opinion in the

Bridges Case appears to emphasize the judicial restraint end of the scale:

We are charged here with the duty, always delicate, of sitting in judgment on state power. We must be fastidiously careful not to make our private views the measure of consti­tutional authority. . . . the u.tmost protection to be accorded to freedom of speech and of the press cannot displace our duty to give due regard also to the state's power to deal with what may essentially be local situations.75

This injunction against judges' incorporating their own views into the

Constitution and the accompanying reference to state power states in

different words the view Frankfurter had expounded earlier:

There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore gudges must be kept mindful of their limitations .... 7

74rhid., p. 238.

75Bridges, p. 219.

76rbid., p. 217.

37

Judicial restraint is suggested again in Frankfurter's opinion in

the.Kovacs Case, where he deferred to the wisdom of the New York Legis-

lature:

These [loudspeaker regulation]] are matters for the legis­lative judgment controlled by public opinion. So long as a legislature does not prescribe what ideas may be noisily expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is ~,...__-.~ not for us to supervise the limits the legislature may impose in safeguarding the s7,adily narrowing opportunities for serenity and reflection. (Italics mine.)

The reference to power that public opinion should rightfully exercise

over governmental actions recalls other opinions such as Gobitis, in

which Frankfurter indicated his respect for democracy.

The problem of judicial review in a democratic system seemed to lead

Frankfurter to another position supporting judicial restraint in the

Dennis Case. Repeating his concern for an impartial judiciary as stated

in the Bridges Case, Frankfurter made this observation:

Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts are embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.78

\

This argument was used by Frankfurter in urging the Court to stay out

of the emotion-charged debate over internal communism which occurred

during the McCarthy Era. Frankfurter also took the opportunity to

\

repeat his opposition to the clear and present danger doctrine, finding

it an outmoded legal concept not useful in new situations such as that

77Kovacs, pp. 527-528.

78nennis, pp. 1160-1161.

38

presented in Dennis.79

Shortly after the Dennis Case, a different kind of free expression

problem arose-=the problem of libelo The case was Beaunarnais v. Illi­

nois .BO The views of the majority in this 5-4 decision were stated by

Frankfurter in an opinion in which he explained again the need for judi-

cial restraint in the face of state legislative power:

. . • it would be out of bounds for the judiciary to deny /, the legislature a choice of policy, provided it is not '~·: __ _ unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might · itself raise new problems, would only manifest once more I the paradox of reform. It is the price to be paid for the trial=and=error inherent in legislative efforts to , deal with obstinate social issues.Bl

The same kind of respect was suggested in Frankfurter's opinion in the

Shelton Case. After indicating his personal opposition to the state

regulation involved, he went on to say this:

But in maintaining the distinction between private views and constitutional restrictions, I am constrained to find that it J1he state regulatio!Lf does not exceed the permis­sible range of state action limited by the Fourteenth Amendment.82

Shelton and its companion political freedom cases, as well as the

religious freedom cases, then, seem to show Frankfurter's opinions

giving consideration. to issues of both ideology and judicial participation.

Rights of the Criminal Defendant

The second sub=category of civil liberties cases includes those dealing

80Beauharnais v. Illinois, 96 L.Ed. 919 (1952).

8l1bid.' p. 930.

82shelton, p. 238.

39

with rights of the criminal defendant. Despite fact that many of

the Court's most publicized opinions in this ±ield ~1ave come since Frank-

furter's ill health limited his participatjo~ in decisions and eventually

forced his retirement, he participated in more of these criminal defend-

ant cases than in any of the other eight sub=classes of cases studied

here. The issues raised in this sub-class are derived from the guaran-

tees of the Fourth, Fifth, Sixth, Eight, and Fourteenth Amendments; and I .l-

they present problems of both ideology and judicial participation.

A. The issue of ideology was referred to in frankfurter's famous opin­

ion in Wolf v. Colorado.83 He wrote the majority opinion in this 5-4

decision involving the Fourth Amendment and unreasonable searches and

seizures. Like a majority of the Court, Frankfurter consistently

rejected the view that the Fourteenth Amendment "incorporated" as guaran-

tees against the states all those protections guaranteed against national ,-

governmental action by the Bill of Rights. Instead, he argued that the

Fourteenth Amendment guarantees include only those rights essential to

"ordered liberty." In Wolf Frankfurter had the opportunity to define

"ordered liberty" and to state his support for the Fourth Amendment in

a manner suggesting a vote for liberalism:

The security of one's privacy against arbitrary intru­sion by the police==which is at the core of the Fourth .Amendment--is bas.ire to a free society. It is therefore implicit in "the concept of ordered liberty" and as such enforceg~le against the States through the Due Process Clause.

This libertarian concern for the right of privacy has been noted in pre-

vious opinions such as the Saia and Kovacs Cases. Frankfurter further

83wolf v. Colorado, 9J L.Ed. 1782 (1949).

84rbid., pp. 9785-1786.

40

ruled in Wolf, however, that the exclusionary rule used on the federal

level to protect this right did not have to be adopted by the states

to protect the same right under the Fourteenth Amendment.

Another vote for liberalism seemed apparent in Frankfurter's majority

opinion in Ullmann v. United States.85 Congress had passed the Inununity

Act of 1950 to displace the protection against self-incrimination guar-

anteed by the Fifth Amendment. Frankfurter and his colleagues upheld

the Act, and Frankfurter made this defense of the self-incrimination

guarantee:

Time has not shown that protection from the evils against which this safeguard [1he Fifth Amendmen~ was directed is needless or unwarranted. This constitutional protec-

v/ tion must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or conunit perjury in claiming the privi­lege. Such a view does scant honor to the patriots who sponsored the Bill of Rights.86

:This broad view of the Fifth Amendment self=incrimination guarantee

implies a liberal's support for rights of the criminal defendant.

There is a similar implication in Griffin v. Illinois. 87 In this

case the Court voted 5-4, Frankfurter concurring with the majority.

Illinois had denied the request of an indigent criminal defendant who

wanted a free transcript of his trial in order to appeal his convic-

tion under ..Illinois law. The Court held the state's denial of this

request to be unconstitutional, and Frankfurter made this conunent:

I. To sanction this state denial of the transcriEI] would

85ullmann v. United States, 100 L.Ed. 511 (1956).

86Ibid., p. 518.

87Griffin v. Illinois, 100 LoEd. 891 (1956).

justify a latter=day Anatole France to add one more item to hisl"" ironic comments on the "majestic equality of the law."• "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal . o •• '~8

41

.. /"Equalitarianism and a concern for the individual whatever his economic

condition==values promoted by liberalismbeare implied in this remark.

t3 This Griffin Case and other cases concerning rights of the criminal

defendant include opinions bearing on the issue of judicial restraint

and activism as well as conservatism and liberalism. The question of

double jeopardy was raised in one of Frankfurter's earlier opinions,

Louisiana ex rel. Willie Francis v. Resweber.89 Frankfurter concurred

with the majority in the 5=4 decision, approving the execution sentence

levied against a Negro defendant already subjected unsuccessfully to

one electrocution attempt. Part of Frankfurter's opinion was devoted to

the "incorporation" argument concerning the Fourteenth Amendment. In ~ · ··

rejecting this concept of "incorporation," he seemed to place himself \\

on the restraint end of the judicial participation scale because of his .~/

concern for upholding state authority vis=a=vis judicial interpretations

limiting that authority:

On this [incorporation] view, the States would be confined in the enforcement of their criminal codes by those views for safeguarding the rights of the individual which were deemed necessary in the eighteenth century • . . . The Fourteenth Amendment did not mean to imprison the State8 into the limited experience of the eighteenth century. 9

\ )

Frankfurter took the same position on the "incorporation" issue

in Adamson v. California.91 In this case the self-incrimination guarantee

88Ibid., p. 901.

89L~uisiana ex rel. Willie Francis v. Resweber, 99 L.Ed. 422 (1947).

gQibid., p. 428. 91

Adamson v. California, 91 L.Ed. 1903 (1947).

-··

42

was invoked against a state law allowing judicial comment on, and jury

consideration of, the failure of a d~fendant to testify at his own trial.

Frankfurter concurred with the majority on the 5-4 decision and presented

one of the clearest refutations of the "incorporation" concept found in

Supreme Court records. After citing extensively from accounts of the

histori-r:al development of the Fourteenth Amendment, he appeared to urge

judicial rEstraint and rejection of the "incorporation" argument because

the latter would unreasonably limit state power:

A construction [9f the Fourteenth Amendmet!11 which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights would, as has been noLed, tear up by the roots much of the fa~ric of law in the several States, and would deprive the State5 of opportunity for reforms in legal process [e~ designed for extending the area of freedom.92

After rejecting the "incorporation" argument, Frankfurter explained that

judges are not left free to read their own views into the meaning of due

process~

r··

·--~ The judicial judgment in applying the Due Process Clause ~-; [Qf the Fourteenth Amendme~ must move within limits of accepted notions of justic~ and is not to be based upon the idiosyncrasies of a merely personal judgment. The fact that judges among themselves may differ whether in a particular case a trial of fends accepted notions of justice is not disproof that general rather than idio­syncratic standards are applied. An important safeguard against such merely individual judgment is an alert deference to the judgmeP-t of the State court under review.93 (Italics mine.)

The interrelationship between judicial restraint and support for state

power suggests again the importance of judicial restraint in Frankfurter's

judicial decisions.

Exercises of state power were also disputed in two later cases where

92rbid., pp. 1916~1917.

93rb~~., p. 1917.

43

the central issue was unreasonable searches and seizures. In one of

these, Wolf v. Colorado, Frankfurter held that the guarantee against

unreasonable searches and seizures was a part of the Fourteenth Amend-

ment. One means of enforcing this guarantee against the federal govern-

ment has been the exclusionary rule, which prohibits the use in federal

courts of evidence gained in an illegal search or seizure. In Wolf

it was argued that the Fourteenth Amendment demanded use of a similar

rule by the states. Frankfurter disagreed. Even though the guarantee

itself applied against the states, the means of enforcing the guarantee

should be left to the states:

• • • the exclusion of evidence is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found. We cannot, there­fore, regard it as a departure from basic standards to remand such persons, together with those who emerge scathe­less from a search, to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public,, opinion, may afford. 94

The second search and seizure case was Rochin v. California.95 :Here

evidence had been obtained by stomach pumping; and Frankfurter, in writing

the majority opinion, found this method to be "conduct shocking the con-

science" and a violation of the search and seizure guarantee. But although

he decided against the state in this case, he indicated reluctance in

doing so~

• . • in reviewing a State criminal conviction under a claim ~-:> of right guaranteed by the Due Process Clause of the Four­

teenth Amendment, • • • , H•we must be deeply mindful of the responsibilities of the States £or the enforcement of crimi­nal laws, and exercise with deep humility our merely nega­tive function in subjecting c0nvictions from state courts to the very narrow scrutiny [!uthorized ~~ the Due Process

94wolf v. Colorado, p. 1787.

95Rochin v. California, 96 L.Ed. 183 (1952).

44

Clause • . • • 1196

Frankfurter repeated his view, as stated in Adamson, that this approach

to the meaning of the Fourteenth Amendment does not leave judges with-

out standards to use as guides in interpreting due process:

\ /=) The vague contours of the Due Process Clause do not leave judges • • . ~ith no guideline!) . We may not draw on our ~ merely personal and private notions and disregard the limits that bind judges in their judicial function.97 /'

Rochin and the opinions preceding it in the area of rights of the

criminal defendant indicate the support given judicial restrain~ by

Frankfurter's decisions. But in at least one major instance, there is

a hint of judicial activism in his opinions. The case was Griffin v.

Illinois. Here Frankfurter was willing, not only to vote to invalidate

Illinois' action, but to take the state to task for what it had done:

. neither the fact that a State may deny the right of appeal altogether nor the right of a State to make an appropriate classification, based on differences in crimes and their punishment, nor the right of a State to lay down conditions it deems appropriate for criminal appeals, sanc­tions differentiations by a State that have no relation to a rational policy of criminal appeal or authririzes""the i~po­sition of conditions that offend the deepest presuppositions of our society.98

In dealing with issues involving rights of the criminal defendant,

as with issues of the First Amendment freedoms, Frankfurter thus appears

to have given consideration to questions of both ideology and judicial

participation.

Equal Protection of the Laws

This pattern of response continued in the last sub-class of the civil

96rbid., p. 188.

9 7 lb id. ' p. 189.

98Griffin v. Illinois, p. 900.

45

liberties cases. The third sub=category, the equal protection cases,

raise the varied problems of racial and ethnic equality and reapportion-

ment.

Unlike the political freedom cases and those concerning rights of the

criminal defendant, the equal protection cases show that Frankfurter's

decisions had relatively little impact in the area of ideology. It is

not unusual to find Frankfurter referring to the "power of the people"

and to the people as the final resort in handling situations facing the

nation. Such references suggest respect for a kind of plebiscitary democ-

racy, a value characteristic of liberalism, An illustration of this view

is found in Fr·ankfurter's majority opinion in C9legrove v. Green.99

Here the Court, in a 4=3 decision, refused to take jurisdiction of a

dispute over Illinois 8 handling of its Congressional districts. In sug-

gesting a solution for the problem of unfair districting, Frankfurter

made these observations:

~ The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the Popular House and left to that House determination whether States have fulfilled their responsi­bility. If Congress failed in exercising its power> ••• , the remedy ultimately lies with the people.100 (Italics mine.)

\ \

Ideology appears as far lf·s~ important in the other equal protection

cases than does the issue of judicial participation. The Court faced

the relatively unusual problem of accommodating judicial power and mili-

tary authority based on Congressional grants of power in Korematsu v.

United States.101 Korematsu, an American citizen of Japanese descent,

99colegrove v. Green, 90 L.Ed. 1432 (1946).

lOOibid., p. 1434.

101Korematsu v. United States, 323 U.S~ 214 (1944).

46

was convicted of violating an exclusion order ir. t~aliforr:.ia during World

War II. He claimed the classification basic to the order was not ration-

ally enough related to a legitimate objectLve and therefore violated guar-

antees of equal protection. Frankfurter concurred with the majority in

rejecting this claim and discussed the problem of military v. judicial

authority:

The respective spheres of action of military authorities and judges are of course very different. But within their sphere, military authorities are no more outside the bound of obedience to the ,,;onstitution than are judges within theirs • . . . To recognize that military orders are "reasonably expedient military precautions" in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic sub­tleties. • •• being an exercise of the war power expli­citly granted by the Constitution for safeguarding the ""' national life by prosecuting war effectively,1 1 find ~ nothing in the Constitution which denies to Congress the

:> power to enforce such a valid military order' [is that applied against Korematsi) ,)02. .. -..J

This minimization of judicial power in the face of what Frankfurter con- '\. \

sidered to be a valid military order appears to be still another sign of

judicial restraint in Frankfurter's decisions.

The problem of reapportionment seemed to provide Frankfurter with a

special opportunity for expounding the philosophy of judicial restraint.

When the judicial branch is asked to interfere with the basic processes

by which the other branches of government are chosen and frequently con-

trolled, the issue of judicial action becomes particularly significant.

In the Colegrove Case it was claimed that Illinois' Congressional dis-

tricts were drawn so unfairly that many of the state's citizens were

deprived of equal protection of the laws. In denying this claim, Frank­

furter made one of the classic statements of the political question doctrine:

102rbid., p. 224.

[lhe Court has refused to rule on questions of con­gressional redistrictiniJ because due regard for the effective working of our government revealed this issue to be of a peculiarly political nature and therefore not meet for judicial determination. • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

\

\

47

\ \ \

\ \ i I

Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active rela­tions with party contests. From the determination of such issues this Court has traditionally held aloof. ~It is hostile to a democratic system to involve the judi­ciary in the politics of the people. And it is not less pernicious if such judicial intervention in an essen­tially political contest be dressed up in the abstract phrases of the law U,uch as "equal protection" or "equal­ity before the law~ :J03

\ I

/ /

By definition, this concept of political questions leads to judicial

restraint.

The problem of reapportionment arose again, this time in regard to

state legislatures, in Baker v. Carr.104 A majority of the justices

ruled that federal courts could entertain suits concerning legislative

reapportionment because they were justiciable issues under the Equal

Protection Clause. But Frankfurter dissented, explaining at length seve-

ral aspects of judicial restraint and the political question doctrine:

lnisregard of inherent limits in the effective exercise of \, the Court's "judicial power" may well impair the Court's position as the ultimate organ of the "supreme Law of the Land" in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pro­nounce. The Court's authority--possessed of neither the purse nor the sword--ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by absten­tion from injecting itself into the clash of political forces in political settlements.105

This statement of concern for the integrity of the judicial process,

103colegrove, p. 1434.

104Baker v. Carr, 7 L.Ed.2d. 663 (1962).

105rbid., pp. 714-715.

48

reminiscent of Frankfurter's Bridges opinion, is followed by a passage

reiterating another reason for judicial restraint:

To charge the courts with the task of accommodating the incom­mensurable factors of policy that underlie these mathematical ) puzzles [£"f reapportionmenI} is to attribute, however flat­te~ing~y, omni~ompetence :o judges. The Framers of the Con- ~ st1tut1on persistently rejected a proposal that embodied / th . . 106 ' ' is assumption . . . .

For the Court to intervene in Tennessee·'s legislative reapportionment

controversy would be to make the Constitution a compilation of the jus-

tices' personal views:

\ Unless judges, the judges of this Court, are to make \ their private views of political wisdom the measure of the Constitution--views which in all honesty cannot but give the appearance, if not reflect the reality, of involve­ment with the business of partisan politics so inescap-ably a part of apportionment controversies--the Fourteenth Amendment, ... a provides no guide for judicial oversight of the representation problem.107

·~Frankfurter flatly rejected the judicial claim to power in the appor-...---.

tionment area and also denied the Court the right to strike down state

laws in certain cases involving economic regulations. Since the collapse

of substantive due process, equal protection has been the major, although

relatively weak, argument raised against state economic regulations. This

trend and Frankfurter's position in regard to it was illustrated in the

case of Morey v. Doud.108 The Court majority struck down an Illinois

law which regulated money order firms in the state but which gave special

dispensations to the American Express Company. Frankfurter dissented, .. holding that the Court must be very careful in its use of the Equal

Protection Clause:

106rbid., p. 715.

107Ibid., pp. 734-735.

108Morey v. Doud, 1 L.Ed.2d 1485 (1957).

Sociologically one may think what one may of the State's recognition of the special financial position obviously enjoyed by the American Express Company. Whatever one may think is none of this Court's business. (In applying the Equal Protection Clause, we must be fastidiously careful to observe the admonition of Mr. Justice Brandies, Mr. Jus­tice Stone. and Mr. Justice Cardozo that we do not "sit as a super-legislature.•~09 (Italics mine.)

49

Frankfurter's apparent position on the restraint end of the judicial

participation scale seemed to shift abruptly with his concurring opinion

in Cooper v. Aaron.110 In this school segregation case he defended the

Court's exercise of its power~

Our kind of society cannot endure if the controlling author­ity of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is "the supreme Law of the Land" . . . .

Particularly is this so where the declaration of what "the supreme Law" commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a longmmatured deliberative process. The Constitution is not the formulation of the merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters.111

This claim of Supreme Court power in relation to state power is one of

the strongest statements of judicial activism found in any of Frankfurter's

opinions.

Conclusions

These opinions and the 508 votes cast by Frankfurter in the realm of

civil liberties suggest several conclusions about his position on the

ideological and judicial participation scales. When the votes in the

three sub-classes of the civil liberties cases are recorded on a single

109rbid", p. 1497.

llOcooper v. Aaro~, 3 L.Eda2d 5 (1958).

lllrbid., pp. 21-22.

table, an interesting distribution appears.

A

c

T

I 48 .6%

v

I

s

M

TABLE.4

FRANKFURTER'S VOTES IN ALL CIVIL LIBERTIES CASES

47.8% C 0 N S E R V A T I S M

'

17

230

. L I B E R A L I S M

52 .2%

226

35

50

-

R

E

s

T

R 51.4%

A

I

N

T

In regard to ideology Frankfurter voted liberal more often than con-

servative. As for judicial participation, he voted for judicial restraint

more often than activism. And the difference in his liberal and conserv-

ative percentages (4.4%) is slightly larger than the difference in hi~

restrained and activist votes (2.8%). The vast majority of Frankfurter's

votes fall into either the activism/liberalism or restraint/conservatism

blocs. Only fift~-two of the 508 votes support activism/conservatism or

restraint/liberalism. On the basis of statistics, then, there appears

to be almost a one-to-one correlation between activism and liberalism . and between restraint and conservatism. But all four of the percentages

51

on the table fall in the neutral or moderate category. It is consequently

extremely difficult, on the basis of statistics alone, to draw a reason­

able conclusion as to which of the four variables best describes Frank·

furter's decisions.

What Frankfurter said in his opinions becomes very important at this

point in determining the impact of his judicial behavior. Twenty-two

opinions that most clearly illustrate the major civil liberties issues

before the Court and Frankfurter's reaction to those issues have been

studied. Thirteen of the opinions appeared to reveal Frankfurter's

responding to ideological issues. One opinion contained both liberal

and conservative elements. Of the remaining twelve opinions, eleven

were liberal in tone, and one was conservative in tone. The twelve lib~

eral statements supported a variety of liberal values--religious freedom,

the right to privacy, freedom of thought and expression, intellectual

and artistic freedom, academic and associational freedom, the right to

protection from self-incrimination, the right to protection against

unreasonable searches and seizures, and respect for plebiscitary democ­

racy. On the other hand, the major signs of conservatism appearing in

Frankfurter's opinions were a concern for national unity and security

and an emphasis on general societal interests over the interests of the

individual.

As far as the judicial participation issue was concerned, Frankfurter

wrote eighteen opinions that showed concern for this problem of the role

of the Court. Sixteen of these opinions supported judicial restraint.

Varied aspects of judicial restraint were involved--respect for legis­

lative and Congressional power, concern for preserving the power of popu­

lar opinion, recognition of judicial incompetence in numerous areas, use

52

of the concept of ripeness in refusing jurisdiction of a case, rejection

of the right of judges to read their personal views into the co·nstitution,

and use of the political question doctrine. Other elements also seemed

to contribute to the idea of restraint. Frankfurter opposed the clear

and present danger doctrine and the concept of the "preferred position"

of the First Amendment, seemingly because their use would "fasten fetfers

of unreason upon the states" and because they have no real legal or con­

stitutional basis. To say that they are part of the Constitution would

be to read one's own views into the Constitution. As for Frankfurter

and the issue of judicial participation, the two opinions in which he

appeared to fall on the activist end of the scale were cases where he was

willing to lecture a state for its poor criminal procedure and where he

upheld the right of the Court to supervise state actions when the "Law

of the Land" has been clearly expounded by the Court.

This summary of the statistical and doctrinal analyses of Frankfurter's

decisions suggests several conclusions. In the first place, both statis­

tics and opinions reveal a significant scarcity of activism/conservatism

opinions in the area of civil liberties. A look at the tables of Frank­

furter's votes suggests that if Frankfurter were a conservative as the

behavioralists claim, a substantial number of his votes should fall in

the activism/conservatism quadrant. The same thing should have happened

if activism were the most important element in Frankfurter's decisions.

Apparently neither activism on the judicial participation scale nor con­

servatism on the ideological scale received much support from Frankfurter.

Frankfurter's opinions support this hypothesis. Of the total of twenty­

two opinions studied, only two gave any substantial indication of a con­

servative outlook. Likewise, of this same group of twenty-two, only two

53

opinions revealed much concern for values of judicial activism. There-

fore~ it can be concluded that neither judicial activism nor conserve•

tism was very important as an element in Frankfurter's decisions. The

next question to be considered, then, is which of the two r~maining values,

restraint and liberalism, was more important in Frankfurt.r:~r '~ votes and

opinions.

The tables showing Frankfurter's votes are of little help in answering

this question. But in comparing Frankfurter's opinions supporting pre~

cepts of liberalism and those supporting precepts of judicial restraint,

it appears that his longest and clearest expoaitions were written in sup~~

port of judicial restraint. Classic statements of liberalism are diffi·

cult to find in Frankfurter's opinions; but the same opinions contain

some of the most famous defenses of judicial restraint found anywhere.

Sixteen of the twenty-two opinions studied here included views of

self-restraint. Twelve included liberal views, also. But seven of the

liberal opinions also contained comments characteristic of judicial

restraint; and in all seven Frankfurter himself indicated that the judi~

cial participation issue was more important than the ideological ques~

tion. In the nine other opinions supporting restraint there was no

suggestion of ideology, or the conservative element that was present was

apparently subordinate to the issue of judicial restraint. ln other

words, in sixteen of Frankfurter's opinions judicial restraint appeared

to be the most important factor. In only five did liberalism seem to

be predominant. And the remaining opinion appeared to be activist.

The twenty-two opinions examined included ~ight split (5-4 or 4·3)

decisions. Six of these were in cases where re8traint appeared basic;

two were in cases where liberalism seemed most important. The second

54

conclusion suggested by these analyses, then, is that the judicial parti­

cipation issue was more important in Frankfurter's decisions than the ideo-

logical issue. The predominance of restraint and liberalism on the sepa-

rate scales having already beeq indicated, this second hypothesis suggests

that Frankfurter's decisions supported judicial restraint more than activ-

ism, liberalism, or conservatism. • i

-----....i Another point needing consideration, then, is why the tables of Frank-

fJrter's votes showed such a large activism/liberalism vote and such a

small restraint/liberalism vote. Because of the apparent importance of

liberalism in Frankfurter's decisions, it is likely that most of his

activism/liberalism votes were more liberal than activist. Furthermore,

the civil liberties cases seem to present with unusual clarity the prob-

lem of liberalism v. conservatism. These cases raise the question of

the relationship between the individual on the one hand and society and

government on the other; the nature of this relationship is one of the

major points of difference between liberals and conservatives. In other

words, it is quite plausible to conclude that civil liberties issues, by

their very nature, presented th~ issue of ideology in bolder relief than

the issue of judicial participation. Therefore, Frankfurter could be

expected to produce a large number of votes on ideology in this area.

Statistics thus yielding such a large percentage of activism/liberalism

and restraint/conservatism votes, it was a mathematical impossibility

for Frankfurter to register a large percentage of restraint/liberalism

votes. The smallness of this blo~ is simply a function of numbers.

The civil liberties cases consequently suggest the following conclu-

sions about the nature of Frankfurter's decisions: (1) Frankfurter falls

into the liberal area on the ideological scale; (2) he falls into the

55

judicial restraint classification on the jupicial participation $Cale;

(3) judicial restraint was a more important component in Frankfurter's

decisions than liberalism was; (4) and the large activism/liberalism and

small restraint/liberalism blocs are due mainly to Frankfurter's lipetal

bias, to the nature of the civil liberties cases, and to mathematical

limitations. These hypotheses can be put to addition~l tests by observing

Frankfurter's votes and opinions in the economic regulation c~ses.

CHAPTER III

ECONOMIC REGULATIONS

In the decades immediately before and after 1900 a large bulk of liti­

gation before the Supreme Court concerned various governmental regulations

of the economy. During these years the concept of substantive due proc­

ess was frequently used by a majority of the Court to strike down the

various governmental actions being disputed. But the Great Depression

occurred, and by 1937 even the Court appeared to yield to the various

regulatory measures designed to pull the country out of the Depression.

With this capitulation came the decline of substantive due process as a

barrier to governmental economic regulations. The broad principles

accepted by the Court since 1937 have allowed governments a broader

range of powers in regard to the economy, but the details of the economy­

governmenta.l relationship have remained to be worked out. A world war~

the economic recovery following it, international developments, and the

continuation of the technological revolution are factors that have helped

to keep the problem of governmental economic regulations a live issue

before the Court. The Court's surrender near the end of the Depression

did not remove such occasionally conflicting principles as free enter­

prise and equal opportunities for all from the American philosophy. These

and other precepts have continued to give rise to the body of economic

regulation cases which sparked the debate recently between the tradi­

tionalists and the behavioralists over the nature of Frankfurter's judi-

cial behavior.

There are several constitutional bases for the governmental regulations

pertaining to economic matters. Major provisions are found in the list of

56

57

congressional powers as outlined in Article I, section 8, and in the

vague grant of powers to the states as set forth in the Tenth Amendment.

Of the varied types of regulations that exist, six are considered here.

Three sub-classes of business regulations are included: (1) cases involv-

ing the national administrative agencies, (2) antitrust suits, (3) and

state regulations of business (excluding taxation). Three sub-classes

of labor regulations are also studied: (1) cases arising under the Fede-

ral Employers' Liability Act; (2) cases involving the National Labor

Relations Board, an agency established by the Wagner Act to protect the

rights guaranteed labor by the Act and to handle labor-management griev-

ances; (3) and state regulations of labor.

During his tenure on the Court Frankfurter cast 395 votes in cases

of economic regulation. These were accompanied by numerous opinions,

twenty-nine of which are examined in this study in order to determine

Frankfurter's position on the ideological and judicial participation

scales and to suggest the nature of his decisions concerning economic

regulations.112 In regard to ideology, Frankfurter will be ranked as

liberal if he appears pro-union, anti-business, pro-competition, sympa-

thetic to fiscal claims made by individual workers, and sympathetic to

civil liberties claims. If his decisions seem to be predominantly anti-

union, pro-business, anti-competition, or unsympathetic to workers' fis-

cal claims or civil liberties claims, he will be labeled as a conserva-

tive. As for the judicial participation scale, Frankfurter's votes should

show a definite inclination to respect the actions of the other agencies

112Because of the nature of the economic regulation issue in general since 1937, these opinions are not often classed as "landmark." But they do represent the kinds of economic questions handled by the Court in the last thirty years.

58

of government and of the states if he is to be considered a supporter of

judicial restraint. If his votes appear instead to extend Court super­

vision over the other bodies of government and to overturn their actions,

he will be labeled a supporter of activism.

The Statistical Distribution of Frankfurter's Votes

A

c

T

I 29.3%

v

I

s

M

TABLE 5

FRANKFURTER'S VOTES IN ADMINISTRATIVE AGENCY CASES

33.3% C 0 N S ERV AT I S M

25

11

L I B E R A L I S M 66.7%

16

71

R

E

s

T

R 70. 7%

A

I

N

T

The table of Frankfurter's votes in the first economic sub-class, the

administrative agency cases, shows an interesting distribution. The

agencies most frequently involved here were the Interstate Commerce Com-

mission, the Federal Power Commission, and the Federal Trade Commission.

Some of the cases involving the FTC were antitrust cases; these cases

will be considered later. Any actions of the Commission included here,

59

consequently, relate to matters such as trademarks and misleading adver-

tising rather than to antitrust suits.

Frankfurter cast more votes in this sub-class than in any of the other

five groups of cases of economic regulation. The strong activism/liber-

alism and restraint/conservatism blocs of the civil liberties cases are

missing. In their places are large blocs of activism/conservatism and

restraint/liberalism votes. This sub-class is one of the two in which

the activism/conservatism quadrant registers enough votes to make it the

second biggest quadrant on the table. Despite this showing, the two

liberal quadrants still garner enough votes to place Frankfurter in the

liberal classification on the ideological scale. Liberalism and judi-

cial restraint appear to be the predominant values on this table.

L I B E R A L I S M 42.9%

60

The antitrust cases register a different distribution. On the ideo-

logical scale Frankfurter voted conservative more often than liberal,

making this one of the three sub-classes out of the nine studied where

Frankfurter's conservative vote percentage exceeded his liberal vote per•

centage. This is also the largest conservative vote percentage recorded

in any of the six sub-classes of economic regulations. In spite of these

conditions, both the liberal and conservative percentages fall between

40% and 60% so that Frankfurter falls in the neutral or moderate category

on the ideological se;ale. On the judicial participatior scale, judi-cial

restraint makes a strong enough showing to place Frankfurter well into

the restraint classification.

L I B E R A L I S M 63.9%

61

Frankfurter's pattern of votes shifts again in the sub-class of state

regulation of business. As was the situation with the administrative

agency cases, the restraint/liberalism bloc registers more votes than

the other three quadrants taken together. The quadrants relating to

self-restraint show the second largest percentages of restraint found

among the nine sub-classes of cases; Frankfurter's vote here leaves him

less than 1% away from the classification of strong restraint on the judi-

cial participation scale. On the ideological scale liberalism outstrips

conservatism enough to place Frankfurter in the liberal range. Judicial

restraint and conservatism therefore appear predominant, as they did on

the administrative agency table.

A

c

T

I 51.4%

v

I

s

M

TABLE 8

FRANKFURTER'S VOTES ON FELA CASES

35.1% C 0 N S E R V A T I S M

8

11

L I B E R A L I S M 64.9%

5

13

R

E

s

T

R 48.6%

A

I

N

T

62

In addition to these cases of business regulation, the Court has con-

sidered varied types of labor regulations, one of which is the group

including suits arising under the Federal Employers' Liability Act. This

sub-class is the smallest of the nine sub-classes surveyed. Frankfurter's

vote for judicial restraint is the lowest restrained percentage found

among. any of the nine .tables of . sub-classes studied; this is one of the

three sub-classes in which the activist percentage exceeds the restrained

percentage. As for the ideological issue, Frankfurter's liberal vote on

the FELA cases is the second largest liberal percentage found among the

nine sub-classes; and this percentage places him in the liberal category

on the ideological scale.

TABLE 9

FRANKFURTER'S VOTES ON NLRB CASES

29% C 0 N S E R V A T I S M

A

c

T

I 20.3%

v

I

s

M

12

2

L I B E R A L I S M 71%

8

47

R

E

s

T

R 79. 7%

A

I

N

T

63

A different distribution is evident in the National Labor Relations

Board cases. This sub-class is interesting in several respects. It is

one of the two sub-classes in which the activism/conservatism bloc is

the second large&t bloc on the table; the other instance in which this

situation occurs is in the administrative agency cases, where business

is the object of regulation. But in spite of this unusually strong quad­

rant, liberalism registers the strongest percentage of votes here that

it receives on any of the tables of the nine sub-classes. Frankfurter's

liberal vote places him well into the liberal range on the ideological

scale. As for judicial participation, this sub-class records the largest

percentage in supp·ort of judicial restraint found in any of the nine sub­

classes. Frankfurter's vote leaves him only .3% away from the classifi­

cation of strong restraint on .the. judicial participation scalt~. The top

percentages of both liberalism and judicial restraint found among all

the sub-classes thus occur in the same sub-class; but the difference in

restraint and activism on this table is larger than the difference in

liberalism and conservatism.

The pattern of votes shifts again in regard to state labor regulations.

The large restraint/conservatism and activism/liberalism blocs are remi­

niscent of the civil liberties tables. On the ideological scale, conserv­

atism outstrips liberalism, making this the third sub-class of the nine

studied where Frankfurter's votes appear more conservative than liberal.

His conservative percentage here, however, is so small that he remains

in the neutral or moderate category on the ideological scale. On the judi­

cial participation scale Frankfurter scores a sufficiently high percent­

age to place him in the restraint classification. Conservatism and judi­

cial restraint thus appear to be most important in these cases.

L I B E R A L I S M 46.7%

64

Frankfurter's economic regulation votes were accompanied by numerous

opinions. Twenty-nine of these opinions are studied below.113 As was

true of the civil liberties opinions, examination of these economic regu-

lation opinions will include mention of how Frankfurter voted and what

his relationship to the majority of the Court was. These opinions indi-

cate the major kinds of issues facing Frankfurter; they, plus the sta-

tistical analyses of Frankfurter'svotes, provide the data from which

conclusions can be drawn as to the nature of Frankfurter's decisions.

The Business Regulation Opinions

113For a list of these opinions, see post, pp. 103-105.

65

Administrative A.gency Actions

In regard to ideology, the two representative opinions in which Frank-

furter indicated his views were different in nature. The first opinion,

written for the majority, was in National Broadcasting Company v. Federal

Communications Commission.114 Here the Court upheld the licensing system

established in the Communications Act of 1934. In discussing this system,

Frankfurter made this comment concerning the right of free speech:

The right of free speech does not include, ••• , the right to use the facilities of radio without a license. . • • Denial of a station license on [Ihe ground of public interest, convenience, or necessitjJ, if valid under the Act, is not a denial of free speech.115

Frankfurter's apparent willingness to approve of limitations on this

particular civil liberty suggests a conservative sympathy.

The second case bearing on the issue of ideology was United States v.

Federal Power Commission.116 The United States Government claimed that

it had exclusive power over an area in which the Power Commission had

granted a license to a private hydroelectric company. Frankfurter and

the rest of the majority upheld the power of the FPC in granting the

license. What is notable about this kind of opinion is what Frankfurter

did~ say. Here was an instance of the national government's wanting,

not to regulate private enterprise, but to forbid it completely in a

given area. Under such circumstances, a conservative judge might well

be expected to make a strong defense of the rights of business; but

Frankfurter made no such defense, suggesting the weakness of conserv~

atism as an element in his judicial behavior.

ll4National Broadcasting Company v. Federal Communications Commission, 87 L.Ed. 1344 (1943).

115rbid., 1368.

116united States v. Federal Power Commission, 97 L.Ed. 918 (1953).

66

As for the issue of judicial restraint v. activism, several admin~

istrative agency cases drew comment from Frankfurter. In one of his

earliest opinions, he dissented in Columbia Broadcasting System v. Fedem

ral Communications Commission.117 The network protested certain,regula-

tions laid down by the Commission. In upholding the Commission's action,

Frankfurter discussed the respective powers of the regulatory agencies

and the courts:

To say that the courts should reject the doctrine of admin­istrative finality and take jurisdiction whenever action o.f an administrative agency may seriously affect substantial business interests, regardless of how intermediate or incom­plete that action may be, is, in effect, to imply that the protection of legal interests is entrusted solely to the courts. The unbroken current of this Court's decisions .•. repel such a contention.118

\

The idea of judicial restraint received support from this denial of court

power and support of administrative agency power.

In the case of United States v. Federal Power Commission, Frankfurter

again upheld the action of the regulatory body involved:

Once recognizing, as we do, that the (Xederal Powe£! Com­mission was not deprived of i~s power to entertain this application for a license, we cannot say, within the limited s~ope of review open to us, that the Commission's findings were not warranted·. Judgment upon these conflicting engi­neering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid ·of reasoµ.119

Frankfurter's deference to the Commission's technical expertise in matters

of engineering and economic policy seems to parallel similar references

in other cases where he held that courts possessed little competence and

where he pressed for judicial restraint.

117Columbia Broadcasting System v. Federal Communications Commission, 86 LeEd. 1563 (1942).

118Ibid., p. 1586.

119united States v. Federal Power Commission, pp. 932-933.

67

Frankfurter's view of the administrative agencies in general was

summarized in the case of Federal Maritime Board v. Isbrandtsen.120

Frankfurter dissented and voted in favor of the Board's action approving

a dual system of rates for international freight. He explained the nature

of the regulatory agency system in this manner:

The utilization of these administrative agencies is a legis­lative realization, judicially respected, that the regula~ tory needs of modern society demand law-enforcing tribunals other than the conventional courts. The doctrine of pri­mary jurisdiction, based as it is on the discharge of func~ tions for which courts normally have neither training and experience nor procedural freedomsi is an essential aspect of this modern administrative law. 21

The only function of the courts, he continued, is to see that the agency

involved "acted within its statutory bounds" and satisfied "the consti-

tutional requirement of due process."122 The denial of judicial compe-

tence again suggests the impact of judicial restraint in Frankfurter's

decisions.

Frankfurter's response to the judicial participation issue is less

easily determined in three other administrative agency cases. Frankfurter's

comments in these cases suggest that although his vote resulted in the

overturning of three regulatory agency rulings, consideration was still

given to judicial restraint. He dissented in Federal Trade Commission v.

Motion Picture 'Advertising Service Company,123 voting to void a Com-

mission order. He felt that the order was unclear. In order for courts

to act, it was necessary for the regulatory agencies to be explicit in

120Federal Maritime Board v. Isbrandtsen, 2 L.Ed.2d 926 (1958).

121Ibid., p. 949.

122Ibid., pp. 949-950.

123Federal Trade Commission v. Motion Picture Advertising Service Company, 97 L.Ed. 426.

their findings:

If judicial review is to have any meaning, extention of principle to meet new situations must be based on some minimum demonstration to the courts that the Commission has relied on relevant criteria to conclude that the new application is in the public interest.124

68

This opinion seems to parallel Frankfurter's opinion in Zorach v. Clauson,

where he urged the Supreme Court to stay its hand until the lower courts

handled the case so as to make the issues clear. In this agency case

Frankfurter appeared to feel that the Court should refrain from acting /

\ until the case could be properly presented to it. The concept of ripe~ \

ness is therefore suggested, the result being that the Court restrain

itself in deciding the case, at least for the time being.

The same line of reasoning is indicated in Frankfurter's dissenting

opinion in New York v. United States.125 He voted to overturn a group

of class rate orders issued by the Interstate Commerce Commission and

made this comment:

I am not unmindful of the complicated nature of the problem which confronted the Commission, of the empiric character of the process of rate-making, of the limited scope for judicial review in this process, of the respect to be accorded the Commission's conclusions. • . • But when the outcome of legal issues is bound to cut deeply into economic rela­tions • • • , it is not asking too much to ask the Com­mission to be explicit and definite in its findings •.•• 126

Frankfurter's initial reference to limitations on the judiciary plus the

repeated suggestion of the rule of ripeness imply that concern for judi-

cial restrain was shown in this case.

A third case where Frankfurter voted to overturn an administrative

124rbid., p. 434.

125New York v. United States, 91 L.Ed. 1492 (1947).

126Ibid., p. 1538.

69

agency's decision was Federal Trade Connnission v. Bunte Brothers, Inc.127

This case presented a paradox i~ regard to the issue of judicial partici-

pation. Frankfurter did indeed oppose the agency's ruling, but he did

so on the grounds that the agency had exceeded the powers granted it by

Congress:

An inroad upon local conditions and local standards ~s resulted from the agency ruling in this cas~ • • • , ought to await a clearer mandate from Congress • • • • This case presents the narrow question of what Congress did, not what it could do. And we merel~hold that to read [:!he statute involved as the FTC di~ ••• requires, in view of all the relevant considerations~ much clearer manifestation of intention,.,than Congte-ss -bas furnished .128

Strict adherence to, and respect for, the will of Congress--often signs

of judicial restraint--in this particular case underlie an activist vote,

one where Frankfurter and the rest of the majority overturned an admin-

istrative agency decision.

The Antitrust Cases

The paradoxes just discussed were not so evident in the antitrust

cases. In regard to the ideological issue, there is one representative

opinion in which Frankfurter appeared to respond to values of liber­

alism. The case was Ih Re Summers.129 The Associated Press had pro-

mulgated a set of by-laws which were alleged to violate the Sherman Act.

In concurrence, Frankfurter voted to void the by-laws and discussed the

issue of freedom of the press:

A free press is indispensable to the workings of our

127Federal Trade Commission v. Bunte Brothers, Inc., 85 L.Ed. 881 (1941).

128Ibid., p. 885.

129rn Re Summers, 89 L.Ed. 199·5 (1945).

democratic society. The business of the press, and there­fore the business of the Associated Press, is the problem of the truth regarding public matters by furnishing the basis for an understanding of them. • . .

A public intetest· ~o essential· to the vitality of our democratic government may .be de~eated by private restraints no less than by public censorship.130

70

This defense of a civil liberty suggests the liberal nature of this

decision.

Other representative antitrust opinions related to the problem of -

judicial participation. Frankfurter voted with the majority in Far East

Conference v. United States.131 His opinion was favorable to an exer-

cise of P.9wer by the. Feder"'l. Maritime Board:

The Court (ihould apply the principli] • . • now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subj'ect matter should not be passed over. • • • Uniformity and consistency in the regu­lation of business entrusted to a particular agency are secured, and the limited functions of review by the judi­ciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances under­lying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.132

Frankfurter consequently felt that the Supreme Court should not hear

this case, at least until the Maritime Board had dealt with the issues

as fully as possible. This respect for the administrative agencies

repeatedly appeared as an indication of judicial restraint.

Another case bearing upon the judicial participation issue was United

States v. Frankfort Distilleries. 133 Frankfurter, in his majority opin-

ion, concentrated on the issue of state power:

130Ibid., p. 2034.

131Far East Conference v. United States, 96 L.Ed. 576 (1952).

132Ibid., p. 582.

133united States v. Frankfort Distilleries, 89 L.Ed. 951 (1945).

As a matter of constitutional law, the result of the Twenty-first Amendment is that a State may erect any barrier it pleases to the entry of intoxicating liquors. Of course, if a State chooses not to exercise the power given it by the Twenty-first Amendment and to continue to treat intoxicating liquors like other articles, the operation of the Commerce Clause continues. Since the Commerce Clause is subordinate to the exercise of state power under the Twenty-first Amendment, the Sherman Law, deriving its authority from the Commerce Clause, can have no greater potency than the Commerce Clause itself. It must equally yield to state power drawn from the Twenty­first Amendment.134

71

""' Frankfurter's defense of state authority indicated another recurring

sign of judicial restraint--respect for the states. In this particular

case, however, Frankfurter found no conflict with state power and so

upheld the conviction of the company under the Sherman Act.

In a third case Frankfurter and the majority held that the company

charged with violating the Sherman Act was innocent. The case was United

States v. DuPont DeNemours Company.l35 It was claimed that Dufpnt con-

trolled such a large pa~t of the cellophane market that it constituted

an illegal trust. The Court, however, found that cellophane was only

part of the larger market for !lexible packaging materials, not a ciosed I

mark.et in itself. Considering DuPont's contr4>1 of cellophane production '

in relation to the whole flexible packaging materials market, the Court

found that DuPont had been acting within the Sherman Act. The essence

of Frankfurter's opinion concerned the interpretation of the Sherman Act,

which he felt should be handled in this manner:

Any consideration of "monopoly" under the Sherman Law can hardly escape judgment, even if only implied, on social and economic issues. It had best be withheld until a

11 f . 136 case inescapably ca s or it.

134tbid., p. 957.

135united States v. DuPont DeNemours Company, 100 L.Ed. 1264 (1956).

136Ibid., PP· 1290-1291.

72

Frankfurter felt that some of the justices had delved into economic and

social issues and decided matters that were not essential to disposition

of this case. Frankfurter's call for court abstention in deciding all

but the most essential issues suggests again an inclination toward judi­

cial restraint.

State Regulations of Business

'nlis emphasis on discretionary abstention in decisions appeared in

some of Frankfurter's discussions of state regulation of business. 'niis

sub-cla~s of cases gives little evidence of any ideological bias. But

it does include numerous references that relate to the issue of judicial

participation. One of Frankfurter's earliest opinions came in D~iscoll.v.

Edison L~ght and Power Company.137 The majority upheld a state statute

and action under it; Frankfurter concurred but felt the majority's opin-

ion was unnecessarily broad:

That this Court should not "decide an issue of consti­tutionality if the case may justly and reasonably be decided under a construction of the statute under which the act is clearly constitutional" is, as an abstract J?_ro~sition, basic to our judicial obligation. . • • L.'nl~ rationale []or this propositio~ is avoidance of conflict with the legislature.138

Frankfurter was urging the Court not to decide constitutional issues

except when absolutely necessary--another indication of judicial restraint.

Shortly after this case, Frankfurter and a majority of the Court upheld

another state regulation, with Frankfurter writing the majority opinion.

'nle case was Osborn v. Ozlin.139 Here Frankfurter explicitly denied any

137nriscoll v. Edison Light and Power Company, 83 L.Ed. 1134 (1939).

1381bid., p. 1147.

139osborn v. Ozlin, 84 L.Ed. 1074 (1940.

73

right of the Court to adopt either a conservative o~ a liberal attitude

toward economic policy:

It is equally immaterial Uo the cour::~ t:hat sue:. :;tate action (!s that involved her]] may run counter to the eco­nomic wisdom either of Adam Smith or of John Maynard Keynes, c·1 ri.ay be ultimately mischievous even from the point of view of avowed state policy.140

He added emphasis to this statement of judicial restraint by concluding, ,,

"it can never be emphasized too much that ont's own opinion as to the

wisdom of a law must be wholly excluded when one is doing one's judicial

duty.11141

Frankfurter's majority opinion in Osborn v. Ozlin was followed imme-

diately by a similar opinion in Texas Railroad Commission v. Rowan and

N~chols Oil Company.142 In this instance the Court upheld an oil pro-

ration order issued by the Texas Railroad Commission. Deferring to the

expertise of this state administrative agency, Frankfurter said:

••• it would be presumptuous for courts, on the basis of conflicting expert testimony, to deem the view of the [!tat~ administrative tribu9al, acting under legislative authority, offensive to the Fourteenth Amendment.143

In such instances, the courts must be reminded not to "substitute their

notions of expediency and fairness for those which have guided the agencies\

to whom the formulation and execution of policy have been entrusted. 11 144 )

Frankfurter's desire to limit judicial participation in policy-ma.king

here again suggests the importance of judicial restraint in his decisions.

140Ibid., p. 1078.

141Ibid., p. 1080.

142Texas Railroad Commission v. Rowan and Nichols Oil Company, 84 L.Ed. -----1368 (1940).

143Ibid., p. 1372.

144rbid.

74

The Texas Railroad Commission was also before the Court in the second

case of Texas Railroad Commission v. Rowan and Nichols Oil Company.145

Writing another majority opinion indicating respect for state power in

the face of judicial incompetence, Frankfurter made this observation:

' ••. a state's interest in the conservation and exploitation/ of a primary natural resource is not to be achieved through .__ assumption by the federal courts of powers plainly outside / their province and no less plainly beyond their special competence.146 /

Support for judicial restraint was further indicated in Republic

Natural Gas Company v. Oklahoma. 147 In his majority opinion dismissing

the Company's appeal from an Oklahoma regulation, Frankfurter invoked

a jurisdictional rule frequently used by justices in this kind of case:

Ever since l789, Congress has granted this Court the power of review in State litigation only after "the highest court of a State in which a decision in a suit could be had" has rendered""a final judgment or decree." ••• Close observance of this limitation upon the Court is not regard for a strangling technicality. History bears ample testimony that it is an importanf

4gactor in securing har­

monious State-federal relations.

This requirement of finality of state judgment before the Court can hear\

a case from the states can be put to good use by an advocate of judicial

restraint.

This apparent pattern of self-restraint when state actions were involved

seemed evident also in H. P. Hood and Sons v. DuMond!49 The state of New

York had refused to grant a request by Hood for a new milk receiving

145Texas Railroad Commission v. Rowan and Nichols Oil Company, 85 L.Ed. 358 (1941):.

146 rbid., p. 363.

147Republic Natural Gas Company v. Oklahoma, 92 L.Ed. 1212 (1948).

148rbid., p. 1219. -"·

149H. p0

Hood and Sons v. DuMond, 93 L.Ed. 865 (1949).

75

station in the state. New York claimed the new station would have dele-

terious effects on the milk market of the Troy, New York, area. The

Court majority supported Hood's request; Frankfurter dissented and sup-

ported New York:

If the Court's opinion has meaning beyond deciding this case in isolation, its effect is to hold that no matter how important to the internal economy of a State may be the pre­vention of destructive competition, and no matter how unim­portant the interst~te commerce affected, a State cannot as a means of preventing such competition deny an applicant access to a market within the State if that applicant happens to intend the out-of-state shipment of the product that he buys.150

The Court should therefore have refrained from intervening and overturning

the New York action.

The Labor Regulation Opinions

The FELA Cases

Frankfurter's opinions in those cases arising under the Federal Employ-

ers' Liability Act presented an interesting situation. It is generally

known that Frankfurter personally objected to the Act. One of the major

reasons for this attitude appeared to be that he felt the Act was based

on outmoded legal concepts which led to inefficient handling of the com-

pensation claims made by individual workmen. He explained this view in

Tiller v. Atlantic Coast Line Railroad Company: 151

The phrase "assumption of risk" which is central to action under the FELA is an excellent illustration of the extent to which uncritical use of words bedevils the law. • • •

Such ambiguity necessarily does harm to the desirability of clarity and coherence in any civilized system of law. But the greater mischief was that in one of its aspects the phrase "assumption of risk" gave judicial expression to a

150rbid., p. 888.

151Tiller v. Atlantic Coast Line Railroad Company, 87 L.Ed. 610 (1943).

76

social policy that entailed much human misery.152

Although some aspects of the concept of "assumption of risk" had been

swept away by the FELA, the idea still maintained enough life to elicit

objections from Frankfurter. Despite this situation, there is a notice-

able lack of evidence in his opinions that Frankfurter tried to urge

Congress to change the workmen's compensation scheme or criticized Con~.

gress for not changing the Law. There also appears to be little refer-

ence\to conservatism or liberalism in Frankfurter's FELA opinions.

Instead, the justice seemed to be concerned primarily with either pro-

tecting state court power under the Act or with the question of certio~

rari; and these issues relate to the subject of judicial participation.

One case illustrating Frankfurter's attitude toward the state courts

was that of Baltimore and Ohio Railroad Company v. Kepu&r.153 The F.ELA

allows state courts to exercise jurisdiction in workmen's compensation

suits, but in this case a federal court had allowed a change of venue.

The Court majority upheld the change; Frankfurter dissented:

To be sure, under the guise of applying local doctrines of equity jurisdiction, a state court cannot defeat the proper assertion of a federal right. Resort to this Court may always be had to lay bare such an unwarranted frustration. • • • But such supervisory power by this Court over the determination of federal rights by state courts does not imply the denial of power in the state courts to make such determinations in the first instance.154

The same line of thought appeared in Frankfurter's dissent in Miles v.

Illinois Central Railroad Company.155 He made this comment on Congress'

is21b1d., PP· 618-619.

153Baltimore and Ohio Railroad Company v. Kepner, 86 L.Ed. 226 (1941).

154rbid., p. 238.

155Miles v. Illinois Central Railroad Company, 86 L.Ed. 1129 (1942).

77

attitude toward the state courts:

The mere fact that a federal right is the basis of a suit cannot therefore deprive the state courts of the power to use their customary procedures for the achievement of jus­tice. In simply taking advantage of the facilities afforded by th~ courts of the states Congress cannot be deemed to have altered the settled jurisprudence of the states so.as to operate mo·re favo:rably for ,federal rights. .. ·tnan for similar rights .cr,ated by the states themselves. Such,:draatic· inroads upon the~·,auttiority of the states should be made only upon·:: clear~Congressional :mandate.156, -

Frankfurter went on to explain what, in his view, Congress had meant in

pas·sing the jurisdiction provisions of the FELA:

The concurrent jurisdiction of the state courts was expli­citly defined in order to dissipate an unwarranted doubt as to the right and duty of state courts to entertain suits arising under the Act. Congress wanted to avoid an implication of denial to the state courts of power to entertain cases under the Act, and not to create an impli­cation of denial to the state courts of their traditional powers in dealing. with such cases.157

Frankfurter's respect for the state courts, which suggests judicial

restraint on the part of a national judge, was one. major element in his

FELA opinions. The other major element involved was the question of )

/

grants of certiorari. Frankfurter felt that in many instances the Supreme

.Court should have. refused to grant certiorari to the parties in an FELA

suit. In one of the relatively recent FELA cases, Frankfurter dissented

and explained at length his attitude toward certiorari and the FELA cases.

The case involved was Rogers v. Missouri Pacific Railroad Company: 158

For many years, I reluctantly voted on the merits of these negligence cases that had been granted review. In the last ten years and more particularly within the past few years, the Court has been granting more and more of these petitions.

156Ibid., p. 1139.

157rbid., PP· 1139-1140;.

158Rogers v. Missouri Pacific Railroad Company, 1 1.Ed.2d 493 (1957)·.

78

I have found it increasingly difficult to acquiesce in a practice that I regard as wholly incompatible with the certiorari policy embodied in the 1916 Act, the Judiciary Act of 1925, 43 Stat 936, and the Rules formulated by the Court to govern certiorari jurisdiction for ics own regulation and for the guidance of the bar. I have there­fore felt compelled to vote to dismiss petitions for certio= rari as improvidently granted.159

Frankfurter then explained why the peti ti.ans were "improvidently granted":

• • • experience leaves no doubt, though the fact cannot be established statistically, that by granting review in these cases, the Court encourages the filing of petitions for certiorari in other types of cases raising issues that likewise have no business to be brought here. Mereover, the considerations governing discharge of the Court's func­tion involve only in part quantitative factors. Finally, and most important, granting review in one or two cases that present a compassionate appeal on this ground and one or two that present a compassionate appeal on that ground and one or two that present a compassionate appeal on a third ground inevitably makes that drain upon the available energy of the Court that is so inimical to the fullest investigation of, the amplest deliberation on, the most effective opinion-writing and the most critical exami­nation of draft opinions in, the cases that have unquestioned claims upon the Court.160

In addition to the overload on the Court produced by these grants, Frank-

furter also complained that they forced the Court to review factual issues;

this, he felt, violated the Court's own strictures to the bar that it would

not review matters of evidence and fact.161 A narrow interpretation of

the certiorari rule, which is urged in these cases, can be another power-

ful tool in the hands of an advocate of judicial restraint.

National Labor Relations Board Actions

Like the state business regulation and FELA cases, the NLRB cases show

little evidence that Frankfurter gave substantial consideration to the

159rbid., pp. 520-521.

160rbid., PP· 531-532.

16l!Qid., p. 527.

79

ideological issue. Judicial participation appeared to continue to be

an outstanding factor in his decisions.

In his majority opinion in Polish National Alliance .. National Labor

Relations ~B2!_rd,162 Frankfurter discussed the powers of both Congress and

the NLRB. In regard to the NLRB, Frankfurter said:

By the Wagner Act, Congress gave the .[liational Labor Rela­tion~ Board authority to prevent practices "tending to lead to a labor dispute burdening or obstructing connnerce or the free flow of commerce." . • . Congress therefore left it to the Board to ascertain whether proscribed prac= tices would in particular situations adversely affect com­merce when judged by the full reach of the constitutional power of Congress.163

In this case the NLRB had taken action against a fraternal insurance

company, and the company claimed the action violated the Tenth Amendment.

The rest of Frankfurter's answer to this argument related to the powers of

Congress and was summarized in this passage:

• • • the old admonition never becomes stale that this Court is concerned with the bounds of legal power and not with the bounds of wisdom in its exercise by Congress. When the con­duct of an enterprise affects commerce among the States is a matter of practical judgment, not to be determined by abstract notions. The exercise of this practical judgment the Constitution entrusts primarily and very largely to the Congress, subject to the latter's control by the electorate.164

There is a dual suggestion of judicial restraint in Frankfurter's defer-

ence, first to the NLRB, and then to Congress.

A different aspect of judicial restraint was suggested in National

Labor Relations Board v. Cheney, California Lumber Company.l65 The Board

162Polish National Alliance v. National Labor Relations Board, 88 L.Ed. 1509 (1944).

163Ibid., p. 1515.

164Ibid., p. 1516.

165National Labor Relations Board v. Cheney, California Lumber Company, 90 L.Ed. 739 (1945).

80

had issued a cease and desist order against the Company, commanding it

to refrain from certain unfair labor practices. A United States Court

of Appeals had modified the order; Frankfurter, writing for the majority

of the Supreme Court, upheld the Board's order in full:

Justification of such an order which necessarily involves consi.deration of the facts which are the foundation of the \,"'­order, is not open for review by a court if no prior objec- \ tion has been urged before the case gets into court and there is a total want of extraordinary circumstances to excuse "the failure or neglect to urge such objection." Congress desired that all controversies of fact, and the allowable inferences from the facts, be threshed out, cer­tainly in the first instance, before the Board. That is what the Board is for. It was therefore not within the power of the court below to make the deletion it made.166

In the process of defending the Board, then, Frankfurter brought into

his discussion the need for judicial restraint by lower courts as well

as by the Supreme Court.

A somewhat similar issue was presented in National Labor Relations

Board v. Donnelly Garment Comeany.167 In this case a Court of Appeals

had invalidated the entire order issued by the NLRB. In reversing the

lower court, Frankfurter cited a famous quotation from English law: \

According to an early English judge, "The devil himself knoweth not the mind of man," and a modern reviewing court is not much better equipped to lay bare unexposed the mental process.168

Then he continued:

It is not the function of this Court to review in the first instance the sufficiency of evidence on which the Board's order is based. Congress placed that function in the Cir­cuit Court of Appeals. And this case is peculiarly not one in which we should do the unusual and pass on evidence with­out its prior consideration by the lower court. It is not

166Ibid., p. 742.

167National Labor Relations Board v. Donnelly Garment Company, 91 L.Ed. 854 (1947) •

. 168Ibid., p. 863.

for us to make an independent examination of this entire record.169

81

In calling for additional lower court consideration of this case before

any decisions should be made, Frankfurter made a point similar to one

made i~ cases such as Zorach v. Clauson--that the case was not ripe for

Supreme Court consideration because of inadequate processing of the fac-

tual issues by lower courts and other governmental agencies. A denial

of Supreme Court power resulted and seemed to give a tone of self=restraint

to the opinion.

Of the representative opinions studied in this sub-class of NLRB

actions, only one seemed to show a tendency toward activism; even then,

the opinion contained a suggestion of self-restraint. The case was Uni-

versal Camera Corporation v. National Labor Relations Board.170 Here

Frankfurter and a majority of his colleagues found that the Administrative

Procedure Act and the Taft•Hartley Act required reviewing courts to assume

more responsibility for the reasonableness and fairness of NLRB decisions

than some courts had been willing to assume in the past. Frankfurter's

majority opinion stated:

Congress has imposed on them [!ederal reviewing court~ responsibility for assuring that the Board keeps within reasonable grounds. • • • The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified •• 171

• •

There were, however, limitations upon the courts' power in this area:

To be sure, the requirement for canvassing "the whole

169rbid., p. 868.

170universal Camera Corporatio~ v. National Labor Relations Board, 95 L.Ed. 456 (1951).

171Ibid., pp. 468-469.

82

record" in order to ascertain substantiality ~f evidenc~ does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to nega~ tive the function of the Labor Board as one of those agencieR presumably equipped or informed by experience to ical with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do i10~ ~ossess and therefore must respect. Nor does it mean 1hat even as to matters not requiring expertise a court may dis­place the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.172

These qualifications of judicial power indicate support for judicial

restraint.

State Regulations of Labor

Like the other sub-classes of labor regulations cases, this last sub=

class includes opinions which give little indication of an ideological

bias. The judicial participation scale continues to be the primary one

applicable in examining these cases.

One type of problem of state power vis-a-vis Congressional power was

presented in Hill v. Florida!73 A majority of the Court held that the

National Labor Relations Act had pre-empted the field of labor union

regulation so that Florida's regulations were void. Frankfurter dis-

sented and commented on the relationship between the two governments

involved:

The States, in short, may speak on matters even in the gene­ral domain of commerce so long as Congress is silent. But even when Congress has spoken, although not as fully as the Constitution authorizes, that is, when a Federal enactment falls short of the Congressional power to legislate touching commerce, the States may still speak where Congress is still silent.174

172rbid., p. 467.

173Hill v. Florida, 89 L.Ed. 1782 (1945).

174rbid., p. 1788.

83

In regard to judicial responsibility in this kind of situation, Frank-

furter declared:

In truth, when a State statute is assailed because of \ alleged conflict with federal law, the same considerations of forebearance, the same regard for the lawmaking power of States, should guide the judicial judgment as when this Court is asked to declare a statute unconstitutional out- /I righ t.175 /

Applying these principles to the specific issues at hand, he concluded:

When Congress purposely dealt only with the employer aspect of industrial relations and purposely abstained from making any rules touching union activities, the internal affairs of unions, or the responsibility of union officials to union members 4nd to the public, Congress certainly did not sponge out the States' police power as to these matters. It wipes out State power and distorts Congress' intention to disregard the limited policy explicitly set forth by Congress.176

Frankfurter's emphasis on a broad interpretation of state power in

case seems to place him on the restraint end of the judicial part1cipa-

tion scale.

State power was upheld by the Court in the next case, Railway Mafl

Association v. Corsi. 177 The state of New York had forbidden labor unions

to deny membership and equal treatment to anyone because of race, color,

or similar characteristics. The Court upheld the state. In concurring

with the majority, Frankfurter stated:

.•• a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indul­gence in racial or religious prejudice to another's hurt. To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment. Certainly the insist­ence by individuals on their private prejudices as to race, color or creed in relations like those now before us, ought ' ' . not to have a higher constitutional sanction than the determination

175Ibid., p. 1792.

17 6 Ib id . , p . 17 94 .

177Railway Mail Association v. Corsi, 89 L.Ed. 2072 (1945).

of a State to extend the area of non-discrimination beyond that which the Constitution itself exacts.178

84

The problem of union membership also arose in American Federation of

Labor v. American Sash and Door Company.179 Under the state constitu­

tion and state laws, the open shop was protected. The majority upheld

the state laws, and Frankfurter concurred:

Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophecy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. · Such an assertion of judicial power deflects responsibility from those on whom in a demo­cratic society it ultimately rests--the people.180

The idea of protecting the power of public opinion in government appears

again as a suggestion of judicial restraint.

Issues similar to those raised in Hill v. Florida appeared again in

Amalgamated Association ·of s·treet, Electric Railway, and Motor Coach

Employees of America, Division 998 v. Wisconsin Employment Relations

Board.181 Wisconsin had prohibited strikes against public utilities.

The union claimed this law was invalid because of federal pre-emption

of the field through the National Labor Relations Act and the Labor-

Management Relations Act. The majority agreed with the union. Frank-

furter dissented:

A stoppage in utility service so clearly involves the needs

178rbid., p. 2079.

179American Federation of Labor v. American Sash and Door Company, 93 L.Ed. 222 (1949).

180rbid., p. 231.

181Amalgamated Association of Street, Electric Railway and Motor Coach ............. Employees of America, Division 998 v. Wisconsin Employment Relations Board,

95 L.Ed. 364 (1951).

85

of a COIIllllunity as to evoke instinctively the power of govern­ment. This Court should not ignore history and economic facts in construing federal legislation that comes within the area of interacting State and federal control. To derive from the general language of the federal act a "right" to strike in violation of a State law regulating public utilities is to strip from words the limits inherent in their context.182

Here, as in past cases where Frankfurter faced the problem of balancing

federal and state powers, he appeared to want to give wide latitude to

the states as well as to the federal government. On this basis he again

seems to decide in favor of judicial restraint.

Conclusions

On the basis of these opinions and the statistical data accompanying

them, several hypotheses can be suggested in regard to Frankfurter's

judicial attitude toward the economic regulation cases.

In regard to statistical information, the tables of the economic sub-

classes appear to follow a certain pattern. Of the six sub~class tables,

four show the restraint/liberalism bloc to bt the largest quadrant on

the table; two tables show the restraint/conservatism bloc to be the

largest. The connnon element here is obviously judicial restraint. These

tables taken individually also suggest one other observation. The NLRB

table registered the largest percentage of votes for judicial restraint

found among any of the nine civil liberties and economic regulation sub~

classes. The same table also registered the largest percentage of liberal

votes on the ideological scale found among all nine sub~classes. No ..

activist or conservative p.ercentages registered on any table were nearly

as large as these percentages supporting judicial restraint and liber­

alism. What is particularly significant, though, is that the difference

182Ibid., p. 381.

86

between the restrained and activist votes was substantially greater than

the difference between the liberal and conservative votes. There was a

gap of 59.4% between the extremes of the judicial parti~ipation scale and

a gap of only 42% between the extremes of the ideological scale on the

NLRB table.

These six sub-class tables of economic regulation can be combined into

two tables showing business regulation votes and labor regulation votes.

A

c

T

I 27.9%.J

v

I

s

M

TABLE 11

FRANKFURTER' VOTES ON ALL BUSINESS REGULATIONS

38.9% C 0 N S E R V A T I S M

43

25

L I B E R A L I S M 61.1%

52

124

R

E

s

T

R 72 .1%

A

I

N

T

The two tables are quite similar as far as the general distribution of

votes is concerned. In regard to ideology, Frankfurter voted liberal

more often than conservative on both tables. And his liberal percentages

place him in the liberal category on the ideological scale of each table.

87

As for judicial participation, Frankfurter's votes supported judicial

restraint to a significantly greater degree than judicial activism on

both tables. Furthermore, on both tables he supported judicial restraint

vis-a-vis activism more than liberalism vis-a=vis conservatism. And on

each table the largest bloc by far was the restraint/liberalism bloc.

A

c

T

I 30.5%

v

I

s

M

TABLE 12

FRANKFURTER'S VOTES ON ALL LABOR REGULATIONS

37.8% C 0 N S E R V·A T I S M ~

23

23

L I B E R A L I S M 62.2%

34

71

R

E

s

T

R 69.5%

A

I

N

T

In addition to an analysis of the six separate sub-class tables and

the two larger tables of business and labor regulations, a summary of

the statistical data on economic regulations should include a table showing

the distribution of all economic regulation votes cast by Frankfurter. The

pattern of votes shown on this table appears to support the hypotheses

already suggested. On the. ideological issue Frankfurter voted more liberal

88

than conservative; on the issue of judicial participation he voted more

for self-restraint than for activism. His percentages are large enough

to place him in the liberal category on the ideological scale and in the

restraint category on the judicial participation scale. And the-differ-

ence between judicial restraint and activism still remains larger than

the difference between liberalism and conservatism. The largest bloc

is the restraint/liberalism bloc, while the second largest is the restraint/

conservatism bloc; and the smallest is the activism/liberalism bloc. The

first conclusion that can be suggested in regard to Frankfurter's votes

on economic regulation, then, is that on the basis of statistics, his

decisions supported liberalism on matters of ideology, judicial restraint

on matters of judicial participation, and judicial restraint above all

other values considered here.

A

c

T

I 28.9%

v

I

s

M

TABLE 13

FRANKFURTER'S VOTES ]NALL ECONOMIC CASES

38.5% C 0 N·~S ;ERV AT ISM

66

48

L I B E R A L I S M 61.5%

86

195

R

E

s

T

R 71.1·%

A

I

N

T

89

The major summary of Frankfurter's opinions rerr.ains to be considered.

Twenty-nine opinions have been examined. Only three of these appeared

to bear upon the problem of ideology. Two op~nions indl~ated a liberal

inclination. One of these involved the civil liberties issue of protec=

tion of freedom of the press. The other was a case in which Frankfurter

failed to defend'a business enterprise against destruction by the govern-

ment; this failure suggests an anti-conservative tendency. Frankfurter's

general attitude of opposition to the FELA also seemed to denote liber-

alism because he felt the Act did not really help the individual workers

whose interests it was in part designed to protect; and concern for the

fiscal claims of individual workmen is a sign of liberalism. The other

of the three opinions seemed to suggest a conservative bias; the hint of

conservatism came, not from a pro-business attitude, but from an anti-

free speech attitude.

In regard to the judicial participation scale, twenty-seven opinions

appeared significant. Twenty-three of these seemed to advocate judicial

restraint, while four related to both restraint and activism. There were

numerous signs of judicial restraint in Frankfurter's opinions. These

included concern that cases be ripe for Court hearing, respect for the

expertise of the administrative agencies, respect for Congress and the

states, pleas for use of the rule of necessity in deciding constitutional

issues, concern that all other remedies be exhausted prior to a Court

hearing, pleas for fewer grants of certiorari, and respect for the people

as the ultimate repository of responsibility in a democracy. As for

activism, all the activist views were presented in the administrative

agency cases, where Frankfurter supported some judicial supervision of

the agencies in order to see that they applied the correct standards as

90

set forth by Congress, were explicit in their findings, and stayed within

the limits of their powers.

A second conclusion that can consequently be suggested at this point

is that Frankfurter's opinions supported liberalism on the ideological

scale, judicial restraint on the judicial participation scale, and judi­

cial restraint more than liberalism.

Assuming the first two conclusions to be reasonable, it follows in the

third place that statistics and opinions agree on the matter of what

Frankfurter's attitude toward economic regulations was. The statistical

analysis and doctrinal analysis support each other in the conclusion

that Frankfurter's decisions supported judicial restraint.

The problem then remains of explaining why, on three tables, Frank­

furter voted either more conservative than liberal or more activist than

restrained. The first situation occurred in the antitrust and state labor

regulation cases. Since the restraint{conservatism quadrant was the

strongest bloc on each table, it is likely that judicial restraint

accounts for the show of strength by conservatism; conservatism was only

an adjunct to the concept of self-restraint. As for the problem of activ­

ism's outweighing restraint, this occurred only in the FELA cases. One

probable reason for this situation was the strong influence of liber­

alism; Frankfurter's concern for the plight of the individual worker

under the FELA (an indication of liberalism) has already been noted.

And the percentage of liberal votes is significantly higher than the per­

centage of conservative votes on this table. There is another possible

explanation for the strength of activism, and it relates to the problem

of definitions. In several cases state courts refused to take jurisdic­

tion of suits under the FELA, claiming that they did not have the power

91

to do so. Frankfurter said that they did have power and voted there-

fore to overturn the initial decision by the state court. On this basis

he was an advocate of activism. And yet he decided as ~e did because of

respect for state power--a sign of judicial restraint. Considerations of

judicial restraint therefore appear to underlie what would otherwise be

clearly activist decisions.

Analysis of the economic regulation cases thus yields these conclu-

sions about the nature of Frankfurter's judicial behavior: (1) statistics

and opinions agree on the nature of Frankfurter's decisions; (2) Frank-

furter's decisions supported liberalism on the ideological scale: (3)

his decisions supported judicial restraint on the judicial participation

scale; (4) deviations from this pattern of emphasizing judicial restraint

over activism and liberalism over conservatism were probably due to the

impact of restraint (where conservatism outweighed liberalism) or the

impact of liberalism (where activism outweighed restraint) or to defini-.

tional matters; (5) and Frankfurter's decisions supported judicial

restraint above activism, liberalism, or conservatism. The final problem

of this study, then, is to compare these hypotheses with those concerning

the civil liberties cases in order to determine the general nature of

Frankfurter's judicial behavior.

CHAPTER IV

CONCLUSIONS

The years since the 1930's have produced changes in American consti~

tutional law. Due process as a judicial tool for incorporating Spencer's

social statics into the Constitution has been disappearing, but the details

of the relationship between government and the economy have remained to

be worked out. The Court has also been increasingly concerned with civil

liberties cases, which have become the most publicized group of case3

now handled by the Court.

The methods of studying constitutional law have shown some changes as

well. The traditionalist approach to public law has had to face the devel­

opment of the newer behavioralist school, with its emphasis on statistics

and the use of jurimetrics to explain and predict judicial behavior. One

of the many results of the confrontation between the traditionalists and

behavioralists has been a dispute concerning Frankfurter's judicial behav­

ior. The traditionalists claim that Frankfurter was chiefly an advocate

of judicial restraint, while the behavioralists say that he was above all

a supporter of conservatism. The debate between the traditionalists and

behavioralists served as the springboard for this study, the purpose of

which has been to determine the nature of Frankfurter's judicial decisions.

Part of the basis for this determination was a group of tables on which

903 of Frankfurter's votes were recorded as supporting judicial restraint,

activism, liberalism, and conservatism. Accompanying this analysis was

a doctrinal analysis of 271 opinions; fifty-on~ we-re quoted here as r~rye­

senting the types of issues facing the Court and the important points of

law developed in two major categories of cases.

92

93

One major category of cases considered was the civil liberties group-­

First Amendment freedoms, rights of the criminal defendant, and equal pro­

tection of the laws. The second category was the econou,ic regulation

group--governmental regulation of business (administrative agency actions,

antitrust suits, and state regulations, excluding taxatioµ) and governmental

regulation of labor (FELA cases, National Labor Relations Board actions,

and state regulations).

Two scales were set up to measure Frankfurter's responses in these cases.

The ideological scale involved the issue of conservatism v. liberalism.

Frankfurter was ranked as conservative if his votes appeared to be pre­

dominantly pro-civil liberties, pro-labor, pro-fiscal claims of individ­

ual workers, and anti-business. He was ranked as a liberal if his votes

displayed the opposite tendencies. The second scale was the judicial par­

ticipation scale. It measured Frankfurter's votes concerning the role of

the judiciary and the type of participation in politics in which the judi­

ciary in a democracy should engage. The extremes on this scale were judi­

cial restraint and activism. If an exponent of activism, Frankfurter

would have supported a substantial amount of judicial activity in the

political processes of government and would have upheld broad judicial

supervision of other branches and levels of government. As a supporter

of judicial restraint, he would have sought to limit judicial activity

and would have deferred often to the actions of other branches and levels

of government. Frankfurter's position on each scale had to be established

first. Then determination had to be made as to whether ideology or judi­

cial participation elicited the greater response from him. C}Jl the basis

of this procedure a final conclusion can be suggested as to what the nature

of Frankfurter's decisions was in the cases studied.

A

c

T

I 40%

v

I

s

M

TABLE 14

FRANKFURTER'S VOTES IN ALL CASES

43.7% C 0 N S E R V A T I S M

83 312

278 230

L I B E R A L I S M 56 .3%

94

R

E

s

T

R 60%

A

I

N

T

As a final step in statistical analysis, Frankfurter's votes in all

cases studied should be recorded on a single table. On the basis of

these statistics and the opinions accompanying them, three major con-

clusions can be drawn concerning Frankfurter's judicial decisions.

First, in regard to ideology, Frankfurter's decisions supported liber-

alism more than conservatism. Although his :conservative :and liberal

voting percentages are small enough to leave him in the neutral or moder-

ate classification on the ideological scale, his liberal percentage is

substantially larger than his ~onservative percentage. The liberal per-

centage is also greater than the conservative percentage on the four

tables showing all civil liberties votes, all economic regulation votes,

all business regulation votes, and all labor regulation votes. As for

95

the nine tables showing the votes in each individual sub-class studied,

the liberal percentage is greater than the CL''q~·t.;rua.tive percentage in

six sub-classes. Eight voting tables also :•how the act:-,;ism/conserva~

tism bloc to be the smallest quadrant on the table. If conservatism were

of much importance in Frankfurter's decisions, this activism/conservatism

bloc could be expected to make a stronger showing.

Frankfurter's opinions also suggest that Frankfurter's judicial behav- .,

ior produced liberal results. Sixteen opinions related to ideology 0

Thirteen were liberal in tone, two were conservative; and one contained

both liberal and conservative comments. Conservative statements are

noticeably absent, both in number and forcefulness, from Frankfurter's

opinions. As for liberalism, the major indications of support for liber­

alism were support for religious freedom, for the right to privacy, for

freedom of thought and expression, for intellectual and artistic free-

dom, for academic and associational freedom, for the right to protection

from self-incrimination, for the right to protection against unreason-

able searches and seizures, for plebiscitary democracy, and for efficient

handling of workmen's compensation cases.

A second conclusion suggested by Frankfurter's votes and opinions is

that, in regard to judicial participation, Frankfurter's de~isions sup~

ported judicial restraint above activism. The table showing all of his

903 votes indicates that decisions favoring restraint exceed decisions

favoring activism to a significant degree; the percentage supporting judi­

cial restraint is large enough to put Frankfurter in the restraint classi­

fication on the participation scale. The percentages of votes supporting

selfxrestraint were greattr than the percentages supporting activism on

the tables relating to all civil liberties cases, all economic regulation

96

cases, all business regulation cases, and all labor regulation cases.

And judicial restraint surpassed activism on six of the nine sub-class

tables. Furthermore, the observation previously made in regard to the

weakness of the activism/conservatism blocs applies also in regard to

judicial participation. If activism were of more importance than restraint

in Frankfurter's decisions, more activism/conservatism votes should have

been registered.

Frankfurter's opinions strongly supported these statistical ohserva~

tions. Forty-five of the opinions studied contained elements of either

judicial restraint or activism. Thirty-nine opinions appeared to support

self-restraint; two appeared to support activism; and four contained hints

of both activism and restraint. Judicial restraint appeared in various

forms-=respect for legislative and Congressional power, concern for pre=

serving the power of public opinion, recognition of judicial incompetence

in numerous areas, use of the concept of ripeness in refusing jurisdic=

tion over cases, use of the political question doctrine, respect for the

regulatory agencies, use of the rule of necessity in reaching constitu-

tional issues, exhaustion of all other remedies before resorting to judi=

cial action, and limited use of grants of certiorari.

Assuming these conclusions to be true, one big question left is which

scale was more important in Frankfurter's decisions. In other words, was

he mainly an advocate of judicial restraint or of liberalism? Statistics

and opinions seem to agree that he supported judicial restraint above all.

The table showing all 903 votes cast by Frankfurter reveals that judicial , restraint registered the largest percentage of the four variables involved--

judicial restraint, activism, liberalism, and conservatism. Frankfurter

falls farther into the restraint classification on the participation

97

scale than into the liberal classification on the ideological scale.

This suggests the greater strength of judicial restraint. The same

situation in regard to the predominance of percentages of judicial

restraint over all other precentages occurred on the tables of Frank­

furter's economic regulation votes, business regulation votes, and

labor regulation votes. As for the nine individual sub-class tables,

judicial restraint outranked the other three values on five tables; liber­

alism was predominant in three; conservatism was predominant in one; and

activism was predominant in none. The distribution of votes on the table

showing actions of the NLRB was especially significant in discussing

restraint v. liberalism. The highest liberal percentage found on all nine

sub-class tables occurred on this table; the highest restrained percent­

age found on all nine sub-class tables also occurred on the NLRB table.

But the percentage supporting judicial restraint was greater than the

percentage supporting liberalism.

Statistics and opinions agree on the matter of restraint v. liber­

alism. Of the fifty-one opinions studied, forty-five related to judi­

cial participation; sixteen related to ideology. Thirty-nine opinions

supported judicial restraint; thirteen supported liberalism. Eight sup­

ported both restraint and liberalism, and in all eight Frankfurter indi­

cated that judicial restraint was the more important element. In other

words, thirty-nine opinions supported judicial restraint above all; only

five supported liberalism.

Accepting these three hypotheses as reasonable conclusions, it is

necessary to consider one final problem--the deviations Frankfurter seemed

to register on the voting tables. There are four apparent deviations from

the pattern of liberalism over conservatism, judicial restraint over activism,

98

and judicial restraint over liberalism. The first deviation involves

the table relating to First Amendment freedoms. On it, conservatism out­

ranked liberalism. The most likely explanation for this is the impor­

tance of judicial restraint. The restraint/conservatism bloc was the

largest bloc on the table; and in the area of civil liberties conserva­

tism and judicial restraint generally appeared together. By the very

nature of the issues and regulations involved, conservatism usually

accompanied judicial restraint.

The second deviation concerns the large activism/liberalism bloc in

the civil liberties tables. If restraint were uppermost in Frankfurter's

votes, why this large activism/liberalism vote? The importance of liber­

alism seems to be the main answer. By their very nature, civil liberties

issues are especially adapted to measurements on·the iqeological· scale.

Civil liberties cases often present issues that embody problems of liber­

alism v. conservatism more clearly than problems of restraint v. activ­

ism. Even in the economic regulation cases, much of Frankfurter's ideolog­

ical bias related to civil liberties issues rather than to economic issues.

Frankfurter's civil liberties decisions could therefore be expected to

show a particularly strong element of liberalism rather than of judi-

cial restraint.

Related to this deviation is the problem of the small restraint/lib~r­

alism bloc on the civil liberties tables. There are at least two explana­

tions for this condition. One involves mathematical necessity; given

the obvious predominance of the activism/liberal~sm and restraint/con­

servatism blocs, it is mathematically impossible for the restraint/liber­

alism quadrant to register more votes. Furthermore, the nature of the

civil liberties cases is important. It has already been observed that

99

if a civil liberties vote is restrained, it has to be conservative as

well in most cases. Assuming judicial restraint to be most important

in Frankfurter's decisions, he would vote in any manner that promoted

judicial restraint. Ideological results would simply have to follow along;

and in the civil liberties cases, these results have to be mostly conser­

vative.

A fourth deviation, this one in the area of economic regulations, is

the dominance of conservatism over liberalism on the antitrust and state

labor regulation tables. The same situation occurred in the First Amend­

ment cases, and the reason seems to be much the same. Judicial restraint

was most in important in Frankfurter's decisions. In the antitrust and

state labor regulation areas ~onservatism seemed to accompany restraint;

therefore, conservative percentages got a boost.

The last major deviation is the predominance of judicial activism over

restraint on the FELA voting table. One explanation for this situation

is the impact of liberalism. Liberalism recorded the largest percentage

of votes among the four values on the FELA table. Many activist votes

are consequently nothing more than adjuncts to the liberal votes. There

is also a slight definitional problem. Frankfurter is labeled as a sup­

porter of activism if he overturned state court decisions; he is labeled

a supporter of judicial restraint if he supported state power. In seve­

ral FELA cases state courts decided they had no jurisdiction over the suits

involved. Frankfurter often decided that they did possess jurisdiction,

on which basis he overruled the decision made initially by the state court.

Consequently, his vote would be recorded as activist. But his reason for

the vote was support for state power. Because of this reason his vote

would support judicial restraint. Opinions thus indicate that Frankfurter's

100

activist percentage on the FELA cases is not so reliable an explanation

of his behavior as might be thought.

Explanation of these various deviations appears, then, to support the

three major conclusions of this study: (1) Frankfurter's decisions sup­

ported liberalism more than conservatism; (2) they supported judicial

restraint more than activism; (3) and they supported judicial restraint

more than liberalism. In other words, this study indicates that, in the

cases studied, Frankfurter's judicial decisions supported judicial restraint

above all other values considered.

BIBLIOGRAPHY

Books

Frankfurter, Felix. Law and Politics. Edited by Archibald MacLeish and E. F. Prichard, Jr. New York: Harcourt, Brace and Company, 1939.

Konefsky, Samuel J. (ed.) The Constitutional World of Mr. Justice Frank­furter. New York: Macmillan Company, 1949.

Konefsky, Samuel J. The Legacy of Holmes and Brandeis. New York: Mac­millan Company, 1957.

Krislov, Samuel. The Supreme Court in the Political Process. New York: Macmillan Company, 1965.

Mason, Alpheus T. Harlan Fiske Stone. New York: Viking Press, 1956.

Mason, Alpheus T. The Supreme Court from Taft to Warren. Baton Rouge: Louisiana State University Press, 1958.

Mendelson, Wallace. Justices Black and Frankfurter. Chicago: University of Chicago Press, 1961.

Phillips, Harlan B. Felix Frankfurter Reminisces. New York: Reynal Com­pany, 1960.

Pritchett, C. Herman. The Roosevelt Court. New York: Macmillan Company, 1948.

~Pritchett, C. Herman. The Vinson Court and Civil Liberties. Chicago: University of Chicago Press, 1954.

Pritchett, C. Herman, and Westin, Alan F. The Third Branch of Government. New York: Harcourt, Brace and World, Inc., 1963.

Rodell, Fred. Nine Men. New York: Random House, 1964.

--Schapiro, Jacob S. Liberalism: Its Meaning and History. Princeton: Van Nostrand Company, 1958.

Schubert, Glendon A. (ed.) Judicial Decision-Making. New York: Mac­millan Company, 1963.

Schubert, Glendon A. The Judicial Mind. Evanston: Northwestern Univer­sity Press, 1965.

Sp~eth, ijarold J. The Warren Court. San Francisco: Chandler Publishing Company, 1966.

Thomas, Helen Shirley. Felix Frankfurter: Scholar on the Bench. Balti­more: Johns Hopkins Press, 1960.

101

102

Who's Who in America. Vol. XXXIII. Chicago: A. N. Marquise Company, 1964.

Articles and Periodicals

Baltimore Sun. 1939.

Huntington, Samuel P. "Conservatism as an Ideology," American Political Science Review, LI, No. 2 (June, 1957), pp. 454-473.

"Justice Frankfurter," New Republic, LXXXXVII, No. 1259 (January:l8, 1939), p. 298.

Kendall, Willmoore, and Carey, George W. "Toward a Definition of Conserv­atims," Journal of Politics, XXVI, No. 2 (May, 1964), pp. 406-422.

Kerr, W. A. "Correlates of Political-Economic Liberalism-Conservatism," Journal of Social Psychology, XX, First Half (August, 1944), pp. 61-77.

Mendelson, Wallace. "Connnunications--'Neo-Behavioralism' and Public Law: Replies and Connnents," American Political Science Review, LVII, No.4 {December, 1963), pp. 948-953.

Mendelson, Wallace. "The Neo-Behavioralist Approach to the Judicial Proc­ess: A Critique," American Political Science Review, LVII, No. 3 {September, 1963), pp. 593-603.

Mendelson, Wallace. "The Untroubled World of Jurimetrics," Journal of Politics, XXVI, No. 4 {November, 1964), pp. 914-922.

Nagel, Stuart. "Off-the-Bench Judicial Attitudes," in Judicial Decision­Making. Edited by Glendon A. Schubert. New York: Macmillan Company, 1963' pp. 29-53.

New York Times. 1938.

New York Times. 1939.

Spaeth, Harold J. "An Analysis of Judicial Attitudes in the Labor Rela­tions Decisions of the Warren Court," Journal of Politics, XXV, No. 2 {May, 1963), pp. 290-311.

Spaeth, Harold J. "Views and Opinions--Jurimetrics and Professor Mendel­son: A Troubled Relationship," Journal of Politics, XXVII, No. 4 (November, 1965), pp. 875-880.

Spaeth, Harold J. "Warren Court Attitudes Toward Business: the 'B' Scale," in Judicial Decision-Making. Edited by Glendon A. Schubert. New York: Macmillan Company, 1963, pp. 79-108.

Ulmer, s. Sidn~y. "Supreme Court Behavior and Civil Rights," Western Political Quarterly, XIII, No. 2 {June, 1960), pp. 288-311.

103

Vetter, George B. "What Makes Attitudes Liberal or Conservative," Journal of Abnormal Psychologx, XLVII, No. 1 (January, 1947), pp. 25-30.

Documents

U.S. Senate, Subcommittee of the Committee on the Judiciary. Hearings, The Nomination of Felix Frankfurter to be an Associate Justice of the Supreme Court. 76th Cong., 1st Sess., 1939.

Cases

Adamson v. California, 91 L.Ed. 1903 (1947).

Adkins v. Children's Hospital, 261 U.S. 525 (1923).

Amalgamated Association of Street, Electric Railway, and Motor Coach Emploxees of America, Division 998 v. Wisconsin Employment Relations Board, 95 L.Ed. 364 (1951).

American Federation of Labor v. American Sash and Door Companx, 93 L.Ed. 222 (1949)1

Baker v. Carr, 7 L.Ed.2d 663 (i962).

Baltimore and Ohio Railroad Companx v. Kepner, 86 L.Ed. 28 (1941).

Beauharnais v. Illinois, 96 L.Ed. 919 (1952).

Bridges v. California, 86 L.Ed. 192 (1941).

Bunting v. Oregon, 243 u.s. 426 (1917).

Burstyn v. Wilson, 96 L.Ed. 1098 (1952).

Colegrove v. Green, 90 L.Ed. 1432 (1946).

Columbia Broadcasting System v. Federal Communications Conunission, 86 L.Ed. 1563 (1942).

Cooper v. Aaron, 3 L.Ed.2d 5 (1958).

Dennis v. United States, 95 L.Ed. 1137 (1951).

Driscoll v. Edison Light and Power Company, 83 L.Ed. 1134 (1939).

Far East Conference v. United States, 96 L.Ed. 576 (1952).

Fedetal Maritime Board v. Isbrandtsen, 2 L.Ed.2d 926 (1958).

Federal Trade Commission v. Bunte Brothers, Inc., 85 L.Ed. 881 (1941).

104

Federal Trade Conunission v. Motion Picture Advertising Service Company, 97 L.Ed. 426 (1952).

Griffin v. Illinois, 100 L.Ed. 891 (1956).

Hill v. Florida, 89 L.Ed. 1782 (1945).

H.P. Hood and Sons v. DuMond, 93 L.Ed. 865 (1949).

In Re Sununers, 89 L.Ed. 1795 (1945).

Korematsu v. United States, 323 u.s. 214 (1944).

Kovacs v. Cooper, 93 L.Ed. 512 (1949).

Louisiana ex rel. Willie Francis v. Resweber, 99 L.Ed. 422 (1947).

Mccollum v. Board of Education, 92 L.Ed. 649 (1948).

Miles v. Illinois Central Railroad Company, 86 L.Ed. 1129 (1942).

Minersville v. Gobitis, 84 L.Ed. 1375 (1940).

Morey v. Doud, 1 L.Ed.2d 1485 (1957).

National Broadcasting Company v. Federal Communications Commission, 87 L.Ed. 1344 (1943).

National Labor Relations Board v. Cheney, California Lumber Company, 90 L.Ed. 739 (1945).

National Labor Relations Board v. Donnelly Garment Company, 91 L.Ed. 845 (1947).

National Labor Relations Board v. Jones and Laughlin Steel Corporation, 301 u.s. 1 (1937).

New York v. United States, 91 L.Ed. 1492 (1947).

Osborn v. Ozlin, 84 L.Ed. 1074 (1940).

Polish National Alliance v. National Labor Relations Board, 88 L.Ed. 1509 (1944).

Railway Mail Association v. Corsi, 89 L.Ed. 2072 (1945).

Republic Natural Gas Company v. Oklahoma, 92 L.Ed. 1212 (1948).

Rochin v. California, 96 L.Ed. 183 (1952).

Rogers v. Missouri Pacific Railroad Company, 1 L.Ed.2d 493 (1957).

Saia v. New York, 92 L.Ed. 1574 (1948).

105

Shelton v. Tucker, 5 L.Ed.2d 110 (1960).

Texas Railroad Conunission v. Rowan and Nichols Oil Company, 84 L.Ed. 1368 (1940).

Texas Railroad Connnission v. Rowan and Nichols Oil Company, 85 L.Ed. 358 (1941).

Tiller v. Atlantic Coast Line Railroad Company, 87 L.Ed. 610 (1943).

Ullmann v. United States, 100 L.Ed. 511 (1956).

United States v. DuPont DeNemours Company, 100 L.Ed. 1264 (1956).

United States v. Federal Power Connnission, 97 L.Ed. 918 (1953).

United States v. Frankfort Distilleries, 89 L.Ed. 951 (1945).

Universal Camera Corporation v. National Labor Relations Board, 95 L.Ed. 456 (1951).

West Virginia Board of Education v. Barnette, 87 L.Ed. 1628 (1943).

Wolf v. Colorado, 93 L.Ed. 1782 (1949).

Zorach v. Clauson, 96 L.Ed. 954 (1952).