SCORPIONS IN A BOTTLE:FDR’s Justices and the Theories of Constitutional Interpretation

Eric J. Williams, PhD.Dept. Chair of Criminology & Criminal Justice Studies, SSU

Overview of Today’s Lecture

Major theories of Constitutional

Interpretation originating from:

- Hugo Black

- Felix Frankfurter

- Robert Jackson

- William O. Douglas

Hugo Blackfrom Klansmen to Protector of Civil Rights

• As an Alabama Senator, Black was regarded as the most radical liberal in Congress

• Appointed by FDR as payback for Congress’ failure to support the Court Packing Plan

Hugo Blackfrom Klansmen to Protector of Civil Rights• Nominated Sunday, August 15,

1937 and Confirmed by the Senate Wednesday, August 18

• Rumors of his Klan membership were circulating before nomination

- Confirmed by Pittsburgh newspaper a month after confirmation

It is my belief that there are "absolutes" in our Bill of

Rights, and that they were put there on purpose by men who

knew what words meant, and meant their prohibitions to be

"absolutes.”

The historical and practical purposes of a Bill of Rights,

the very use of a written constitution, indigenous to America,

the language the Framers used, the kind of three-department

government they took pains to set up, all point to the

creation of a government which was denied all power to do

some things under any and all circumstances, and all power

to do other things except precisely in the manner prescribed.

Black’s Originalism

• Felt unprepared for the job of Supreme Court Justice despite legal background

• Created a Constitutional Law reading list

- Well-known for reading nearly a book a day for the rest of his life

Black’s Originalism

• Early in his tenure, began developing the theory the Constitution meant exactly what the Founders intended it to mean

• Used originalism to broaden individual liberties and civil rights

• Served for 34 years

Black’s Originalism

Felix Frankfurterfrom Radical Liberal Law Professor to Conservative Supreme Court Justice

• Born in Vienna, moved to US when he was 12

• Finished at the top of his class at City College and Harvard Law School

Felix Frankfurterfrom Radical Liberal Law Professor to Conservative Supreme Court Justice

• Referred to by Louis Brandeis as his “half-brother/half-son”

• Became famous while a Professor at Harvard Law for his radical writings and defending of Sacco and Vanzetti

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.

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.

But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores.

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.

Frankfurter’s Judicial Restraint

Frankfurter’s Judicial Restraint• Became close with FDR while

working for the US Attorney’s office in New York

• Often considered the intellectual force behind the New Deal

• Created the theory of Judicial Restraint to counteract the Radical Conservative justices who were overturning FDR’s New Deal policies

• Appointed to Court in 1939, served for 23 ½ years

• Stuck by his theory of Judicial Restraint despite change in Court’s membership and liberal leanings

• Dissented from many of the Warren Court era’s liberal decisions

Frankfurter’s Judicial Restraint

William O. Douglasa Part-Time Shepherd becomesthe Court’s Radical Liberal Voice

• Grew up in Eastern Washington

• Came to DC after graduating at the top of his class from Columbia Law School

• Joseph Kennedy’s assistant director at the SEC- Became regular member of

FDR’s weekly poker game

William O. Douglasa Part-Time Shepherd becomesthe Court’s Radical Liberal Voice

• Appointed to the Court in 1939 at age 40 because FDR said “he played an interesting game of poker”

• Served for 36 years and 7 months, longest term in Supreme Court history

William O. Douglasa Part-Time Shepherd becomesthe Court’s Radical Liberal Voice

• Early years on the Court were of little consequence because he really wanted to be President

• FDR’s choice as VP running mate in 1944, but party bosses chose Truman instead

William O. Douglasa Part-Time Shepherd becomesthe Court’s Radical Liberal Voice

• After failing to get VP Nomination, his personal life and politics underwent a massive shift

- First Justice to get divorced while on the Bench

- Also the second and third Justice to get divorced while on the Bench

• Well-known for his vicious temper, mistreatment of his clerks and massive intake of alcohol

The specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen…The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Douglas’ Aspirationalism

• Believed that the Constitution was meant to place individual rights and freedoms above all else

• Believed the Bill of Rights was just a starting point for the rights that should be protected

• Established the Ideals that Warren and Brennan later used to radically change the law

Douglas’ Aspirationalism

Robert Jacksonfrom Small Town Lawyer tothe Prosecutor of Nazis

• Filled the holes in FDR’s Admin left by Frankfurter and Douglas’ Court appointments

• Was the Solicitor General andAttorney General before being appointed to the Court in 1941

Robert Jacksonfrom Small Town Lawyer tothe Prosecutor of Nazis

• Took leave from Court in 1946 to become Chief Prosecutor of the Nuremburg War Crimes Tribunal

• Served on the Court for 13 years until 1954, when he died in awkward circumstances

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

Jackson’s Pragmatism

• Believed that a Justice needed to be guided not only by the Constitution, but by a broad knowledge of history and policy, and do what was best for the country

• Widely considered to be one of the finest writer’s in Supreme Court history

• Has been cited by 4 of the 9 current members as a judicial hero

Jackson’s Pragmatism

Scorpions in a Bottle

• Despite that all four Justices were appointed by FDR, their judicial theories varied widely

- Frankfurter and Jackson were often on one side of an issue with Black and Douglas on the other

• Douglas and Black threatened to resign effectively stopping Jackson from reaching his lifelong dream of becoming Chief Justice

Scorpions in a Bottle

• Douglas once fell while hiking over summer; when news got back to the Court a clerk was stated to have asked “Where was Frankfurter?”

• Felix Frankfurter’s law clerk, Alexander Bickel (who later became a famous Yale Law Professor) was the man to have claimed the Supreme Court was like “Nine Scorpions in a Bottle”

• This footnote was used in an obscure economics regulation that famously declared the new era of Supreme Court focus

• Claims the Court will now take a much closer look at state laws that infringe on “fundamental freedoms”

• Also claims that the Court will look very closely at the laws aimed at “discrete and insular minorities”

- Those groups that say they are consistent losers in the political process

US v. Carolene Products (1940), Footnote 4

• Originally argued in 1953; reargued in 1954 when Court could not reach a decision

• Over the summer of 1953, Chief Justice Vincent dies, is replaced by Earl Warren

Brown v. Board of Education (1954)

Black and Douglas most fervently argue that the case had to desegregate all aspects of Southern life in the broadest possible way

Brown v. Board of Education (1954)

Frankfurter and Jackson considered either dissenting from the case or writing separate concurrences because they thought the case went too far

• Eventually Earl Warren was able to get one unanimous decision

- This case ushers in the new Warren Court Era in which Frankfurter becomes a dissenter

- Black and Douglas see their liberal vision come to fruition

Brown v. Board of Education (1954)