THE LOST LIBERAL LEGAL IMAGINATION / PROJECT SYNDICATE

The Lost Liberal Legal Imagination

Over the past few decades, the US Supreme Court has embraced methods of statutory interpretation that conveniently justify its radical rightward shift. As much as the progressive twentieth-century jurist Felix Frankfurter might lament this development, he bears much responsibility for it.

Nicholas Reed Langen

LONDON – The right-wing majority on the US Supreme Court holds the US Constitution in a vice-like grip. 

It took barely a moment to overturn Roe v. Wade, and with it, a half-century of jurisprudence. 

It is now engaged in a sustained assault on the “administrative state” (federal regulatory and enforcement agencies) and, if Justice Clarence Thomas gets his way, perhaps on contraception and same-sex consensual relations, too.

Anyone being introduced to the Court today would find it hard to believe that it was once a bastion of liberal values and a defender of basic dignity. 

Yet that was the case for much of the latter half of the twentieth century, when the court issued the first meaningful blow against segregation (in Brown v. Board of Education); recognized the right to privacy and paved the way for the sexual revolution (in Griswold v. Connecticut); and even, for a time, struck down the death penalty (in Furman v. Georgia). 

With Chief Justice Earl Warren presiding from 1953 to 1969, the Supreme Court ensured that the Constitution protected all Americans, not just the white majority.

This was a court that recognized its proper role in America’s constitutional firmament. 

Rather than seeing themselves as the arbiters of quasi-divine precepts ossified at the moment of decree, most justices understood that constitutional jurisprudence must respond to the realities of the day. 

Owing to the intellectual leadership of Justice William Brennan, the Warren Court made the dignity of the individual its constitutional lodestar. 

Those detained by the state and accused of crimes were guaranteed basic protections (as in Miranda v. Arizona). 

People could express their opinions more freely than ever, even if their views were considered “offensive or disagreeable” by most people. 

This legacy continued into the next generation of the Court, with a Brennan-led majority ruling in 1989 that even burning the American flag was fair game.

But this era of the Supreme Court looking out for the American everyman proved short-lived. 

Starting in the last two decades of the twentieth century, the politics around Supreme Court nominees and their confirmation hearings began to change, and Republican presidents such as Ronald Reagan and George H.W. Bush were able to push the court in a more rightward direction. 

Rather than consider the basic principles and ideals behind the Founders’ crafting of the Constitution, this new crop of judges adopted a much narrower view.

Under the influence of Justice Antonin Scalia, the Court became increasingly obsessed with determining the meaning of the text at the time it was written (originalism), or according to its “plain meaning” (textualism). 

Never mind that it is impossible to discern any singular motivation from a group as motley as the framers of the US Constitution, or that words mean practically nothing unless they are read in context. 

These methods of statutory interpretation served their political purpose, offering just enough intellectual cover to justify the court’s rightward shift.

A CONVENIENT PRECEDENT

Scalia and his acolytes (chiefly Thomas and Samuel Alito) took their inspiration from former Justice Felix Frankfurter’s more restrictive interpretation of the Constitution. 

While Frankfurter, who served from 1939 to 1962, might object to his legacy being used for outright politicking, it was almost inevitable that his principled deference to legislative authority would lead where it did. 

Through the 1990s and the early 2000s, the Court, under Chief Justice William Rehnquist, hacked away at the right to abortion, expanded the scope of the right to gun ownership, and, in 2000, intervened in a contested election to award the presidency to the Republican candidate.

Two decades later, the court’s increasingly naked partisanship has become impossible to ignore. 

All that matters to it now is the outcome that the supermajority wants. 

As Mark A. Lemley of Stanford Law School observes, America has been left with an “imperial” Supreme Court that is guided not by any particular judicial philosophy but by the sheer will to power.

“The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. 

And it has done so using a variety of (often contradictory) interpretative methodologies,” Lemley writes. 

“The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.” 

The implication is that the Court no longer has any respect for precedent, basic ethics, or even foundational constitutional values like the separation of powers. 

It is a court invested in itself.

The Court’s power lust shows how far America has fallen. 

The separation of powers is the hallmark of constitutional democracy. 

When Alexis de Tocqueville traveled across the US in 1831-32, he noted that a “completely democratic government is so dangerous an instrument that, even in America, men have been obliged to take a host of precautions against the errors and passions of Democracy.” 

Chief among these measures was the “establishment of … judges” with some degree of immunity against a majority’s whims and prejudices.

To curb majoritarian excesses and abuses, judges must be independent from the legislature, the executive, the people, and especially from any narrow faction or special interest. 

Were a Supreme Court justice to visit the White House and advise the president on policymaking, we would see that as a remarkable breach. 

It would be impossible to have any faith in that justice’s ability to decide cases involving federal government policies. 

No matter how independent-minded they claimed to be, they would have already nailed their colors to the mast for all to see.

We see a shadow of this in Thomas’s behavior. 

After supporters of then-President Donald Trump stormed the US Capitol on January 6, 2021, in an effort to overturn the 2020 election, the Supreme Court was asked to rule on whether a congressional committee investigating the incident could subpoena messages sent to and from members of the Trump administration. 

Thomas was the lone justice who answered “no.” 

Texts that were later made public show that his wife, Ginni, had been an active participant in the effort to scotch the election result.

Basic judicial ethics (which apply to Supreme Court justices, but with no external enforcement) dictate that Thomas should have recused himself. 

But, clearly, he had no problem participating in a case in which he had a flagrant conflict of interest and ruling in favor of that interest. 

The question now is how many other such cases have come before him. 

The recent scandal over his failure to disclose years of gifts worth hundreds of thousands of dollars from a billionaire Republican Party donor is merely the icing on a cake made with rotten eggs.

THE FRANKFURTER EXCEPTION

Yet Supreme Court history shows that Thomas has illustrious company. 

Justice Abe Fortas had previously been President Lyndon B. Johnson’s lawyer before serving on the court from 1965 to 1969, and Justice Louis Brandeis advised President Franklin D. Roosevelt on legislation during the New Deal era.

And then there’s Frankfurter, who was that hypothetical justice sneaking into the White House, advising the Roosevelt administration before – and even after – his elevation to the Supreme Court. 

In Democratic Justice, Brad Snyder of Georgetown University shows that Frankfurter “enjoyed unparalleled access to the president,” and sent him “nearly three hundred notes on Supreme Court memoranda pads” – a machination that made him “the most influential single individual in the United States” at the time.

As Snyder recounts, Frankfurter spent much of his career straddling the legal and political worlds, eventually making him the hidden colossus of New Deal America. 

Upon moving to Washington, DC, after graduating first in his class from Harvard Law School (with the highest marks since Brandeis, a future friend and colleague on the Supreme Court), Frankfurter found himself at the heart of US political life.

He lived at 1727 19th Street with Robert Valentine, a well-connected aide in the Taft White House. 

Owing to the two roommates’ progressive politics, professional connections, and bonhomie, the residence became a leading “Washington political salon” and hub of twentieth-century progressive thought, leading Justice Oliver Wendell Holmes, Jr. to christen it the “House of Truth” (the title and subject of Snyder’s earlier book). 

With such a powerful platform, Frankfurter was able to leverage to the fullest his natural talent as a networker.

In addition to Brandeis – a regular visitor – other residents and guests included the journalist and pundit Walter Lippmann, the British Ambassador James Bryce, the Federal Judge Julian W. Mack, and the sculptor Gutzon Borglum. 

But of all the august people whom Frankfurter “collected,” the most illustrious was FDR. 

Frankfurter had been moved by Roosevelt’s own deeply held political ambitions. 

As he later told the editor of his collected letters with FDR, “[l]et people see how much I loved Roosevelt … let them see how great a man Roosevelt really was.”

ROUGH JUSTICE

During his early days in Washington, Frankfurter worked in the War Department as an attorney and adviser to Henry Stimson, a Republican who would later serve as FDR’s secretary of war. 

But Frankfurter would not be defined by his official post, building a far broader brief for himself, much of it dedicated to advancing the principles of former President Theodore Roosevelt’s “New Nationalism” – a precursor to his tenacious efforts to support FDR’s agenda.

At this stage in Frankfurter’s career, it was far from obvious that his legacy would come to be championed by conservatives and bemoaned by liberals. 

Snyder makes clear that Frankfurter genuinely wanted the federal government to use its expansive powers to create a more progressive society, and he was willing to commit himself to whatever project would best advance that aim.

It was in this spirit that he accepted an invitation to serve as a professor at Harvard Law School after Theodore Roosevelt’s loss to Woodrow Wilson in the 1912 presidential election. 

Frankfurter calculated that an academic perch would enable him to identify and influence future policymakers, lawyers, and judges. 

He wanted to help shape the minds of those who would be responsible for developing the “jurisprudence to meet the social and industrial needs of the time.”

It is no surprise that Frankfurter came of age with a skeptical view of judicial power. 

The Supreme Court’s Dred Scott decision in 1857 had helped fan the flames of civil war, and Frankfurter grew up at a time when the egalitarian project of Reconstruction of the former Confederacy had given way to the reactionary project of Redemption – the restoration of white supremacy. 

Having moved from Austria to New York when he was 12 years old, Frankfurter’s formative years coincided with a period when the Supreme Court generally exerted a malign influence on American politics.

In 1896, two years after he arrived, the Court handed down its decision in Plessy v. Ferguson, which upheld the segregationist doctrine of “separate but equal” (a ruling Frankfurter later helped overturn, in Brown). 

Then, in Williams v. Mississippi (1898), the justices did very little to stop southern states from disenfranchising black Americans. 

And after the turn of the century, they continued to use the Fourteenth Amendment’s Due Process Clause to restrict government action. 

For example, in Lochner v. New York (1905), a narrow five-justice majority blocked an attempt by the state of New York to limit working hours, with Holmes crafting a stinging dissent in which he condemned the court for “embody[ing] [the Constitution with] a particular economic theory.”

Frankfurter owed his early skepticism of the Court to James Bradley Thayer’s theory of judicial restraint. 

Snyder sets out the depth of Frankfurter’s commitment to this philosophy, and to his belief that a law’s unconstitutionality must be “clear beyond a reasonable doubt.” 

For Frankfurter, there was no objective truth to the Constitution, and it was not the role of judges to create one. Instead, Snyder explains, he believed their job required “keeping their hands off [legislative] acts wherever it is possible to do so,” in order to “bring the people and their representatives to a sense of their own responsibility.”

POLITICS AND PROSE

Frankfurter’s faith in the American people rarely wobbled, despite constant efforts by Congress and the public to hurl themselves from the pedestal on which he had placed them. 

He tried to play his own role in shaping public opinion by helping to found The New Republic in 1914 with his then-friend Lippmann.

But Frankfurter’s first real exposure to mass public opinion came with the famous Sacco and Vanzetti trial, when two Italian immigrant anarchists were charged with murder committed during an armed robbery. 

The trial was highly politically charged and rife with constitutional violations, leading Frankfurter to advocate for a new trial and outline their defense in an article for Atlantic Monthly. 

But his efforts came to naught, and both men were sentenced to death and executed.

From his post at Harvard Law School, Frankfurter railed against judicial activism in the kind of language that one would later hear from Scalia and other conservatives. 

Frankfurter was especially incensed by the Lochner decision. 

Rather than accept that the states were free to set minimum wages and regulate working conditions, the Court argued that New York’s limits on workers’ hours interfered with the freedom of contract guaranteed by the Fourteenth Amendment’s Due Process Clause. 

As Frankfurter saw it, “no nine men are wise enough and good enough to be entrusted with the power which the unlimited provisions of the due process clauses confer,” and he accused the majority of impairing “that public confidence upon which the healthy exercise of judicial power must rest.”

In effect, Frankfurter regarded the separation of powers as a zero-sum game: any assertion of judicial authority must go hand in hand with a diminution of the elected branches of government, whether executive or legislative. 

Writing to Holmes, his mentor and judicial idol, Frankfurter lamented that the Court’s use of the Due Process Clause in decisions like Lochner would lead to a “weakening of the responsibility of our legislators.” 

The end point, as Frankfurter saw it, was a political system in which “we expect our Courts to do it all.”

THE LIBERAL JANUS

Given the current state of the Supreme Court, Frankfurter’s skepticism of judicial power resonates anew. 

Despite the promise of the 1908 “Brandeis brief” – a seminal document that established the role of social science in the litigation process – the early-twentieth-century Supreme Court was relentlessly hostile to government policy.

In a series of freedom-of-contract decisions culminating in Adkins v. Children’s Hospital (1923), the Court “destroyed” what faith in it Frankfurter still had.

After FDR was elected in 1932, however, Frankfurter’s appointment to the Court became a matter of “when,” not “if.” 

Initially, though, Roosevelt tried to pave Frankfurter’s path to the bench by appointing him as Solicitor General. 

Frankfurter, however, declined the offer, arguing that he would have more influence continuing as a professor at Harvard.

Had Frankfurter accepted the appointment, he would have been on the front line of one of the greatest clashes between the White House and the Court in US history. 

Throughout the 1930s, five justices (a conservative bloc known as the “four horsemen,” plus Justice Owen Roberts) were a legal thorn in FDR’s side. 

They struck down parts of the New Deal again and again, ultimately leading Roosevelt to announce a court-reform bill that would empower him to “pack” the court with more sympathetic justices. 

This broke the impasse: the justices allowed the New Deal to be enacted, and Roosevelt abandoned his court-packing proposal (which he had generally kept secret from Frankfurter for fear of his reaction to it).

Soon thereafter, Justice Benjamin N. Cardozo died, and Roosevelt appointed Frankfurter to fill the vacancy. 

Despite some controversy over Frankfurter’s politics, he was confirmed by the Senate in time for the January 1939 session. 

But although he had dedicated much of his professional life to the principle of judicial restraint, he was not an effective advocate for it on the bench. 

His “pedantic, persnickety, and at times paranoid personality,” Snyder explains, “alienated his colleagues and prevented him from building coalitions.” 

Moreover, he “wrote overlong, over cited opinions and never could turn a phrase like his idol Holmes.”

Unlike Frankfurter, Holmes, while also an advocate of judicial restraint, balanced this commitment with his support for individual rights and civil liberties. 

Crucially, he viewed democracy and the voting public with some suspicion. 

Frankfurter never could: his faith in “enlightened public opinion and the democratic political process,” Snyder writes, was constant, even though the people and their institutions let him down time and again.

The Supreme Court’s decision in Brown is perhaps the most illustrative example. 

While much of the credit for the Court’s unanimity in striking down racial segregation in public schools must go to Frankfurter and his “sensitivity to public opinion,” his impulse to genuflect before public bigotry tarnished his legacy. 

Despite acknowledging that “to have two schools is not equality. 

It can’t be made so,” he was reluctant to assert outright that the Fourteenth Amendment prohibits state-sanctioned racial segregation.

Mindful of the difficulties in securing “obedience from a state for a decision highly unpalatable to it,” Frankfurter bears responsibility for the decision’s vague language requiring that states end segregation “with all deliberate speed.” 

As Snyder shows, he was so deferent and trusting in executive power that he failed to foresee that this particular clause would become “a touchstone for southern delay.”

There is no doubt that segregation and anti-miscegenation laws – the issue taken up in Naim v. Naim, a ruling by the Virginia Supreme Court that Frankfurter discouraged the Court from hearing – were anathema to Frankfurter’s own sensibilities. 

Snyder’s account leaves little doubt about his subject’s progressive ideals and values, and the future that he and his friend Roosevelt wanted to achieve. 

But his stubborn refusal to accept that the judiciary must also play a part in shaping that future ultimately held him and the progressive legal project back.

Even as more Roosevelt appointees found their way onto the Court, and even as the institution changed direction under Warren, Frankfurter remained anchored to judicial restraint. 

As a result, he joined the majority in Korematsu v. United States (1944), which upheld the detention of US citizens of Japanese descent during World War II – a flagrant violation of the Fourteenth Amendment’s Equal Protection Clause. 

And in Minersville School District v. Gobitis (1940), he wrote the majority opinion upholding the expulsion of two Jehovah’s Witness children from school for refusing to salute the American flag. 

He later argued that it was not the Court’s role to “make accommodations” for groups like the Jehovah’s Witnesses, on the grounds that such matters are best left to the legislature and the democratic political process.

NAIVETY IS BLIND

Frankfurter’s faith in the political process was unshakable. 

His final major opinion, in 1962, was a dissent in the landmark case of Baker v. Carr. 

At issue was the drawing of congressional voting districts, and in a decision crafted by Brennan, the majority found that redistricting was not a purely political question; there was and ought to be room for judicial oversight.

Hailed by Warren as one of the “most important cases” decided during his tenure as chief justice, Baker led to the “one person, one vote” doctrine. 

But if Frankfurter had gotten his way, the Court would never have entered such a “political thicket.” 

He argued that relief from discriminatory voting practices must come from “an aroused popular conscience that sears the conscience of the people’s representatives,” rather than from justices in an ivory tower.

Frankfurter’s faith in people is understandably unrelenting. 

People and personal connections, after all, had made his career, much as he would go on to make the careers of others. 

Even accusations of communism and treason (at the height of the Red Scare) could not shake his faith in those he had “collected.” 

In the late 1940s, he testified as a character witness for Holmes’s former law clerk, Alger Hiss, whom he had recommended for the job, after Hiss was accused of being a Soviet spy.

In retrospect, Frankfurter’s faith in people looks rather naive. 

So, too, does his legal philosophy. 

Had the Supreme Court not emerged as a constitutional torchbearer, American civic life would be poorer for it, and the rights of its citizens far less evenly distributed than they are today.

Frankfurter had an abiding faith in “we the people.” 

But with America still teetering on the precipice of illiberalism, it is worth asking whether the people – not to mention some of the justices – are still deserving of it.

Nicholas Reed Langen, a 2021 re:constitution fellow, edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap.