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The Great Justices 1941-54
Black, Douglas, Frankfurter & Jackson in Chambers
By William Domnarski
The University of Michigan Press
Copyright © 2006
University of Michigan
All right reserved.
Chapter One Introduction
When the characters are large and the jurisprudential stakes high, an approach favoring personal profile over full-blown biography or constitutional history does its best work. This is true on both fronts here. The period principally under review, the 1941-54 Supreme Court terms, charts the time Frankfurter, Black, Douglas, and Jackson served together. This period ranged from Jackson's appointment to his death, but it also has its own jurisprudential definition. Not by coincidence, Jackson's appointment also marked the new critical mass that the Roosevelt appointments achieved in their liberal response to what can be called the Old Court of the 1930s and its refusal to find all sorts of economic legislation constitutional under the banner of judicial restraint. It includes the jurisprudential responses to the issues that the Second World War and the Cold War raised, and has as a backdrop the debate over individual rights under the heading of the preferred position doctrine and the doctrines of selective and total incorporation. The period ends with the triumph of civil rights jurisprudence in the form of the desegregation case of Brown v. Board of Education.
Put differently, the jurisprudential stakes of the period were as high as they could be, since the result of what was then debated led the Court in our time to knock down the levees to federalism and flood the states with constitutional interpretations applicable to them and their citizens. The great Henry Friendly thought that what the Court did went "to the very nature of our Constitution" and had "profound effects for all of us." Observations from such a preeminent source aside, even a casual look at our contemporary culture reveals the handiwork either directly or indirectly of the 1941-54 period in such areas as voting rights, criminal procedure, reproductive rights, welfare rights, and school desegregation. This meant that the stakes for American democracy were also high. The work of the Court from the 1940s and 1950s continuing on into the 1970s has marked a great judicial age.
This is in contrast to our own age, which more surely is a legislative age. Changes in the way we live today come more from Congress than from the courts. The Constitution, to be sure, explicitly provides for the legislature to affect the way we live. But what the Court did during its heyday affected the nation in ways perhaps more profound-consider desegregation, for example-than what the legislature has done before or since, leaving for us the question of how well democracy is served by such an assertion of authority. The answer must lie in part in both what the judicial age accomplished and in the nature of the methods it employed, which is but another way of looking into the nature of judging and, in our case, the relationship between judging and personality.
The contrast on this Court was between judicial activism and judicial conservatism, though the activism label misleads in the sense that judicial conservatism can be seen as activism by another name. Frankfurter, with Jackson joining him after an initial association with the opposing camp, agreed not just that the Court should decide constitutional issues only when forced to but also that the Court should defer to state legislatures and find their legislation unconstitutional in only the most compelling circumstances. In contrast, Black and Douglas, the judicial activists, were eager for the Court to use its power to temper the power of the states and the federal government against the individual. Held in the balance in the fight between the two factions and their philosophies was the jurisprudential course the Court would follow in the war years of the 1940s, the Cold War years of the early 1950s, and the years beyond into the contemporary era.
But just who were these judicial giants and where did they come from? We can start with thumbnail sketches. Black, the first of the group to be appointed, took his seat in 1937. He would be the only one of the four to come to the Court with judicial experience, albeit as a police court judge in Birmingham, Alabama. Raised in rural Alabama and marginally educated, Black was a remarkably successful lawyer, handling personal injury and labor law matters, and eventually parlayed his success with juries into success with the electorate, winning a seat in the U.S. Senate in 1927. There he succeeded as well, through shrewd choices, a gift for persuasion, and the commitment of a firebrand liberal. He was a self-made man, and with his appointment his ascendency was complete, though not the rigors of his self-education, which continued throughout his more than three decades of service.
Frankfurter, appointed in 1938, was the intellectual's liberal, a Harvard Law School professor and frequent contributor to the New Republic. He had been marginalized as an immigrant Jew in New York, but in Cambridge and then in Washington as a member of Roosevelt's brain trust Frankfurter moved elegantly and pugnaciously in the highest governmental and social circles. He was as academically and professionally polished as Black was self-made.
Douglas was from Yakima, Washington. Like Frankfurter, he had been a star academic and law professor (precociously so), but he had tempered his academic experiences with high-level government service. As the head of the Securities and Exchange Commission, he set out to enforce the Securities Exchange Act of 1934, which Frankfurter had largely drafted. Again like Frankfurter, Douglas was both an outspoken liberal and a member of Roosevelt's inner circle. Here he went beyond Frankfurter and was also one of Roosevelt's weekly poker buddies. He was named to the Court in 1939 at the age of forty.
Jackson played poker with the president also and was, in 1941, the last of the four appointed. Like Black, he had little professional education and was a dazzling courtroom advocate. He made his way from western New York state to take a series of positions in Roosevelt's administrations, rising to attorney general and then to the Supreme Court. He frequently took to the stump during election years on Roosevelt's behalf and was a stand-in for the president with his approved liberalism and political-judicial views, such as his endorsement of Roosevelt's Court-packing plan.
There was much that linked and distinguished the four justices. They certainly had Roosevelt in common, though Black was not as close to Roosevelt as the others. They were all outstanding liberals, though, which mostly explained their appointments. This liberalism transcended their respective backgrounds. Once on the bench and serving together, they were, to be sure, the leading influences on their Court and exerted an unprecedented lasting influence. They expounded the clashing liberal and conservative jurisprudential philosophies on the Court. Black and Frankfurter, in particular, articulated the dispute over whether the Fourteenth Amendment incorporated fully the Bill of Rights and made these rights applicable to the states or whether the rights made applicable to the states were only those selective rights found to be fundamental by the Court.
But beyond this, the four justices had intensely personal clashes that were a function of both their membership in the two competing factions and their personalities. Their political ambitions clashed, as did their gifts as great writers. Partly in response to their rivalries, they attempted in various ways to shape their own images and legacies, and as part of this effort they propelled the academic debate between the theorists of the Legal Realism and Legal Process schools. Most of all, they provided an unparalleled look into the inner workings of the Court, with their accounts and with their personalities that figured prominently in their tragic failings on the Court.
One way to appreciate the careers of Jackson, Frankfurter, Black, and Douglas is to consider by way of contrast the career of Stanley Reed. He, like the others, was appointed by Roosevelt, and he served with the four throughout. Indeed, his service with Frankfurter, Black, and Douglas stretched from Douglas's appointment in 1939 to Reed's retirement in 1957. Reed, however, was never central to the Court during the time of Jackson, Frankfurter, Black, and Douglas or beyond. He often held a swing vote, but this vote held influence of a sort different from the influence of the other four. They were leaders while he was a follower. It is not a coincidence that Reed has attracted so little scholarly attention and Jackson, Frankfurter, Black, and Douglas so much. To understand these four is to understand the Court.
By far the most talented group of writers ever to sit simultaneously on the Court, these four justices used that talent as a weapon in their individual campaigns. Every one was a gifted writer. Jackson was the best writer of the group and was, after Holmes, perhaps the finest writer ever to sit on the Court. They could and often did write their own opinions, a fact essential to the force of their jurisprudential positions. With the exception of Frankfurter, who thought that the justices should be writing only for lawyers and other judges, the members of the group recognized that opinions were a form of communication with the public at large and used them toward three purposes: to advance themselves individually, to advance the positions they were staking out on the Court, and to advance the Court itself as a platform for political advancement.
As a group, the justices were intent on making sure that the ground others gained did not come at their expense. They consistently wrote dissenting and concurring opinions to find fault with a majority decision and to suggest that true judicial wisdom lay instead with their opinions. The result was more than just fractured voting patterns; it was a proliferation of concurring and dissenting opinions with messages rooted in the personal and the ideological that were ammunition in the ongoing war between what developed into the liberal and conservative factions on the Court.
They were the most controversial justices, the most famous, and the most important of their time. They were also the most talented. Only Chief Justice Stone, who served part of the 1941-54 period with them, rivals the four for either talent or significance. Beyond being the most important justices of their particular Court, they became the justices who exerted the most enduring influence on both the Court's jurisprudence and the jurisprudence of the U.S. Court of Appeals. We know this in two ways. The first is that the jurisprudence that Black and Douglas set into motion-a jurisprudence that clashed directly with that of Frankfurter and Jackson-became the jurisprudence that shaped the work of our current Court. Douglas is primarily responsible for this, since Black, who had charged ahead with his liberalism in the 1940s and 1950s, shrank from that liberalism's implication and could not embrace the unenumerated rights jurisprudence articulated most fully by Douglas in the 1960s.
The second mark of the enduring influence of Frankfurter, Jackson, Black, and Douglas is that other judges and justices have elevated them to the pantheon of great justices. Even a casual reader of the opinions from the U.S. Supreme Court and from the U.S. Court of Appeals recognizes that Jackson, Frankfurter, Black, and Douglas are cited in a tip-of-the-hat fashion as often as any other judge or justice, save perhaps Holmes and Hand. The tip of the hat comes when an admiring judge or justice puts the justice's name in parentheses following the citation being used as way to acknowledge the work of one of these four and to mark that justice's voice as one to remember, as in, for example, ( Jackson, J.) following a citation to a Jackson opinion. There is no greater honor in the language of the law, and these four continue, decades after their service, to receive it.
The four justices had national political ambitions that mixed with their judicial ones. It is perhaps hard for us to recognize the significance of this fact, given that today Supreme Court justices invariably come from the U.S. Court of Appeals and have no distinguishable political ambitions. Not true with these four. It is a striking fact that of these four justices, only Frankfurter did not think seriously about running for president. He wanted the same power but in a different way. He preferred the presidential adviser role. In contrast, Jackson, Black, and Douglas had each caught the presidential bug, moving in the highest political circles and believing that they could in fact be elected president. Against this backdrop, the justices wanted to use their public visibility on the Supreme Court as a way of enhancing their political possibilities. There had been the example of Charles Evans Hughes, who had resigned from the Court to run for president in 1916, only to be reappointed as chief justice fourteen years later. These political ambitions made the judicial stakes even higher and prompted some of the group to extend their influence within the Court itself as far as they could.
Black, more than the others, kept his attempt at influence within the corridors of the Court. He roamed there looking for votes in cases in which he was advancing his particular ideology. He was equaled, if not surpassed, at this by Frankfurter, whom Douglas considered the most vigilant proselytizer of all. Black's and Frankfurter's methods were strikingly different. Black relied only on his passion, conviction, and skills of persuasion to convince his brethren to follow him. Frankfurter, in contrast, engaged in calculated flattery as his chief tool, and if that did not work, he excoriated his foes with gossip in attempts to divide and conquer the Court. Frankfurter took his influence beyond the Court itself, however, and enlisted the help of his former law clerks, many of whom had gone on to academic careers, to push his judicial philosophy in their books, articles, and teaching and to attack the philosophies of the brethren with whom he was at war. Douglas and Jackson, on the other hand, worked mostly outside the Court. Douglas wrote extensively off the Court to advance his individual concept of liberty, while Jackson gave countless speeches to bar associations and civic groups to define his core beliefs, which favored individual liberties and federalism and disfavored big business.
Their individual stories take us into their chambers and into the conference room of the Court and allow us to see and assess the forces at work. The Court during the 1941-54 period knew a level of animosity unequaled in Court history, with the feuding factions providing the most volatile fuel. Frankfurter hated Black and Douglas most but also Frank Murphy and Fred Vinson, and he did not think highly of several other justices. Jackson hated Douglas and Black. Douglas saw Frankfurter as a mischievous force determined to divide the Court as part of his plan to conquer it. Only Black did not let on, either in public or in conference at least, as to any dislike of his brethren he might have had. For the others, especially Frankfurter and Jackson, their dislike of other justices was all too obvious.
The personal conflicts between the justices led to occasional fireworks at the weekly conference run by the chief justice when the Court was in session to discuss the way the justices were voting on particular cases. Douglas's accounts of these conferences in the 1940s and 1950s, given in a series of revealing interviews from the early 1960s, sketch a picture of the Court at work that is strikingly at odds with the way we typically think the justices deliberate. Douglas describes conferences in which the justices pound on the tables, threaten fisticuffs, and berate each other with insults aimed at their intelligence and integrity. Frankfurter perhaps understated the problem when he complained to Rutledge following the 1944 term that the justices resembled schoolboys throwing spitballs at each other.
Jackson, Frankfurter, Black, and Douglas dominated in part because of their talent and ambition and in part because of circumstances. With the exception of their last year or so together, when they fell under the leadership of Chief Justice Earl Warren, the four justices worked together on the Court under the ineffectual personal leadership of Chief Justices Stone and then Vinson. The combination of their individual strengths and the weaknesses of the chief justices helped make the group of Jackson, Frankfurter, Black, and Douglas the dominant force on the Court for a dozen years. Truman's appointments of Vinson, Harold Burton, Tom Clark, and Sherman Minton had been the weakest group of appointments in the Court's history, which made the contrast between Jackson, Frankfurter, Black, and Douglas on the one hand and their brethren on the other even more striking.
Excerpted from The Great Justices 1941-54 by William Domnarski Copyright © 2006 by University of Michigan . Excerpted by permission.
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