Jefrey D. Hockett. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman & Littlefeld Publishers, 1996. x + 322 pp. $93.00, cloth, ISBN 978-0-8476-8210-2.
Reviewed by Richard D. Friedman
Published on H-Pol (January, 1999)
The question of how to account for the consti‐ 144 (1938)--were the extent to which, and the the‐ tutional transformation of the 1930s has generat‐ ory on which, this development left leeway for the ed signifcant academic controversy for decades. Court to impose constitutional restrictions in oth‐ [1.] On one point, however, there should be no er realms on the political branches of govern‐ controversy: Much of the change was consolidat‐ ment. Black, Frankfurter, and Jackson took very ed and advanced by Franklin Roosevelt's appoint‐ diferent approaches to this problem. ment of a slew of justices, beginning with Hugo L. Black came to read the Fourteenth Amend‐ Black soon after the Court-packing battle of 1937 ment as incorporating the entire Bill of Rights and eventually constituting virtually the entire against the states. This understanding allowed Court. Jefrey Hockett has written a study of three him to advocate a great degree of activism across of the most able of those justices --Black, his ideo‐ a broad range of issues, and at the same time to logical foe Felix Frankfurter, and Robert Jackson. advocate an extreme degree of judicial restraint-- The idea of comparing Black and Frankfurter is substantially more than had been articulated by not at all original. [2.] Throwing Jackson--who the time he joined the Court--on economic mat‐ took an ideological stance between Black and ters. This approach enabled him to put tremen‐ Frankfurter, but usually closer to Frankfurter-- dous weight on the text of the Constitution, and into the mix is an interesting choice. The book is not only with respect to questions involving civil well written and has some good insights. But it de‐ liberties. livers less than one might hope. In contrast to the sharp lines and absolutism Once the Supreme Court made clear that it of Black's approach, Frankfurter read the Four‐ was going to take a largely hands-of approach teenth Amendment as having broader bounds but with respect to economic legislation, the great less categorical demands. In his view, the scope of questions--highlighted by the famous footnote 4 of the Amendment was not limited by that of the Bill United States v. Carolene Products Co., 304 U.S. of Rights. But neither did it automatically con‐ H-Net Reviews demn state action that would fall afoul of the Bill Co. v. Sawyer, 343 U.S. 579 (1952), the steel seizure of Rights had it been taken by federal actors, nor case and still one of the leading cases on Presiden‐ did the Bill of Rights speak in absolutist terms. tial power but one not mentioned at all by Hock‐ Such an analytical framework could be applied in ett, Black wrote the opinion for the Court, brief, ways more or less deferential to governmental ac‐ simple, and categorical. Frankfurter joined the tors. Frankfurter usually acted with deference, re‐ opinion, but wrote that "the considerations rele‐ fusing to condemn state action that had a rational vant to the legal enforcement of the principle of basis or that did not ofend accepted notions of separation of powers seem to me more complicat‐ justice. This latter aspect of Frankfurter's ju‐ ed and fexible than may appear from what Mr. risprudence was consonant with his general em‐ Justice Black has written." He then ofered a 36- phasis on the need for judicial self-restraint; thus, page opinion, plus a famous fold-out appendix he openly embraced the need for a judge to toler‐ plowing through the entire history of Presidential ate, across the gamut of constitutional contexts, seizures. And Jackson presented with seeming ef‐ results that he found extremely distasteful. fortlessness an analytical framework that has Jackson's approach lacked the ideological ever since played a signifcant role in discourse near-purity of either Black's or Frankfurter's on separation-of-powers issues. ("near-purity" because, as Hockett shows, neither Similarly, a comparative understanding of the Black nor Frankfurter adhered without fail to his jurisprudence of the three justices might be ad‐ theory, though both were willing to allow their vanced by a careful look at West Virginia State theories to pinch rather hard without being tem‐ Board of Education v. Barnette, 319 U.S. 624 porarily abandoned). Perhaps Jackson's votes (1943), the second fag-salute case. There, Jackson were guided by a consistent approach running so wrote for the Court, overruling its decision of deep that it is barely observable to others [3.], but three years before in Minersville School District v. so far as appears he tended to view hard cases rel‐ Gobitis, 310 U.S. 586 (1940), and holding that chil‐ atively unconstrained by any overarching theory dren of Jehovah's Witnesses attending a public or even by his votes in prior cases. Such an ap‐ school could not be compelled to salute the fag. proach poses obvious problems for any court, giv‐ Black, together with William O. Douglas, wrote a en that consistency and predictability are general‐ brief opinion explaining their turnabout. Frank‐ ly considered two critical, even if not universally furter, the author of Gobitis, wrote an impas‐ indispensable, attributes of law. Those problems sioned dissent; the case seems to have had a pro‐ are magnifed in a court of last resort. And yet the found and lasting impact on him. [4.] approach is appealing to some, as it has been to Consider also one case in which none of the Justices Potter Stewart and Sandra Day O'Connor. three wrote a published opinion, but in which all Jackson himself, a person of superb intelligence, three played signifcant roles--Brown v. Board of erudition, and a glittering pen, was such a virtu‐ Education, 347 U.S. 483 (!954), arguably the most oso that his opinions, each taken on its own, have historic Supreme Court ruling not only of the joint great persuasive and explanatory force. tenure of these three justices but of all time, and It thus would have been interesting to com‐ strangely one that Hockett mentions only once pare the contributions of these three towering fg‐ and in passing. Black contributed early on by ures across a range of issues and contexts. Cer‐ lending authority, as a voice of the enlightened tainly, there were signifcant cases in which each South, to the view that segregated schools were of them, or at least two of them, played signifcant unconstitutional. Frankfurter shared that view-- roles. For example, in Youngstown Sheet & Tube though squaring it with his general jurisprudence
2 H-Net Reviews was not easy--but characteristically was less forth‐ was surrounded by Populism as a youth, he was, right in expressing it. Ever the inside player, he as Hockett acknowledges, raised in modestly priv‐ worked hard to build a unanimous court, manag‐ ileged circumstances and in an anti-Populist ing to postpone decision from the 1952 Term and, household.[7.] Even as a Senator from Alabama, with his law clerk Alexander Bickel, drafting the Black showed some signs of progressivism on questions that the Court posed in asking for rear‐ racial matters, and once he was freed from his gument. And Jackson seemed to point the way as segregationist constituency he was quite consis‐ early as December 1952 to the resolution the tently liberal in that realm. [8.] Hockett does es‐ Court eventually adopted, a decision holding seg‐ sentially nothing to explain why this proud son of regation unconstitutional but not suggesting that the South took such a dramatic, and historically the South had been acting illicitly all along, and crucial, course. Moreover, Hockett does not help giving the South considerable time to adjust. Char‐ much in explaining the intellectual cast of Black's acteristically, he wanted the Court "to admit that it jurisprudence, his tendency (like Justice Scalia, was making new law for a new day." [5.] who--perhaps ironically--is his closest intellectual Much of the beneft that might be gained by heir on the contemporary Court) to draw sharp, looking at these and other important cases and is‐ simple lines. [9.] Hockett seems correct that sues in a genuinely comparative way is lost by the Black's "total incorporationist" interpretation of organization of Hockett's book. [6.] After an intro‐ the Fourteenth Amendment achieved results that, ductory chapter, Hockett embarks on a two-chap‐ for the most part, Black found appealing. But the ter summary of the political, social, intellectual, same intellectual style transcended the area of in‐ and economic history of the United States begin‐ dividual liberty, as suggested by opinions such as ning in the early nineteenth century. This portion Youngstown. I am thus not inclined to construe of the book is well done and will fll in lacunae in Black's rather idiosyncratic reading of the history the knowledge of many readers--or, in the case of of the Fourteenth Amendment as motivated en‐ some readers such as myself, great yawning gaps. tirely, or even primarily, by his result orientation. But the added value of this discussion to this par‐ I believe it probably also ft well with his intellec‐ ticular book strikes me as minimal. To be sure, tual orientation and his views of the nature of jus‐ connections can be drawn, link to link, between tice, the role of the judiciary [10.], and of Ameri‐ this earlier history and the jurisprudence of the can history. A Constitutional Faith was the title three justices that Hockett discusses, but the same that Black gave to a book that he wrote near the could be said if one began back at Creation. Hock‐ end of his life, and it expressed his view that pret‐ ett then ofers substantial portraits of each of the ty much everything we need to know about Amer‐ three justices, in each case with a biographical ican constitutionalism we learned from the sketch up to the time of the justice's appointment Framers. to the Court and then an analysis of his jurispru‐ Frankfurter -- As Hockett shows, Frank‐ dence. To be sure, Hockett does draw some com‐ furter's jurisprudence--in stark contrast to parisons, particularly in a brief closing chapter, Black's--was characterized by an antipathy for ab‐ but the weight of the book is in the individual por‐ straction, decisions based on generality without traits. taking the facts of the particular case into ac‐ Black -- Hockett argues persuasively that count. Hockett seeks the roots of this attitude in Black was motivated in large part by a desire to Frankfurter's background in Progressivism, with achieve antihierarchical results. He is less suc‐ its emphasis on social interdependence. Perhaps cessful in explaining the motivation; though Black he has a point here, but I doubt the hypothesis can bear the weight Hockett puts on it. Frank‐
3 H-Net Reviews furter's reluctance to impose constitutional limits seemingly ad hoc basis, nor is that the approach on the states, and so restrict the degree to which prescribed by the common law. Jackson himself they may adopt divergent solutions to social prob‐ drew a distinction between the roles of precedent lems, seems hardly to be based on a perception of as "a force for stability and predictability" in com‐ the critical nature of interdependence. It seems to mon law adjudication but as "the most powerful me that complexity was a more important factor infuence in forming and supporting reactionary than interdependence in shaping Frankfurter's ju‐ opinions" in constitutional law. [14.] His sense of risprudence; in a passage quoted by Hockett (p. freedom from the constraining force even of his 193), he said, "An extremely complicated society own prior opinions helped make him "the most inevitably entails special treatment for distinctive intellectually charming member of the Court," but social phenomena." It may have been this sense of it also leads to the impression that no stable set of complexity that shaped Frankfurter's jurispru‐ principles or values guided his decisions. [15.] Not dence along two diferent dimensions. One was that this particularly bothered Jackson; he seems his unwillingness to allow "doctrinal short-hand to have had a strong sense of whimsy that afect‐ statements of complicated ideas" to govern judi‐ ed his jurisprudence. "If there are other ways of cial decision-making. [11.] The second was his be‐ gracefully and good-naturedly surrendering for‐ lief in the importance of judicial self-restraint, be‐ mer views to a better considered position," he cause judges are so often unlikely to have the in‐ wrote in one case, after listing several such ways formation necessary to make sound decisions. from old cases, "I invoke them all." McGrath v. Frankfurter may have had an inclination to per‐ Kristensen, 340 US 162, 177-78 (1950) (concur‐ ceive and emphasize complexity because it satis‐ ring). And in a memorandum quoted by Hockett fed his own psychological needs; complexity puts (p. 287), he wrote, "If it should become necessary more of a premium on intellectual ability, and to revise my views I shall prove that I am then Frankfurter, who frequently lectured his col‐ right by declaring that I have theretofore been leagues, clearly relished the chance to show of wrong. I would not be without precedent." Anoth‐ his intellect. An understanding of Frankfurter's ju‐ er, related aspect of Jackson's judicial perfor‐ risprudence may therefore require a good under‐ mance is that, though not an ideological extrem‐ standing of his psychological makeup. [12.] One ist, like Justice Stevens today he frequently wrote faw of Hockett's account is that it leaves Frank‐ separate opinions, speaking for nobody but him‐ furter's personality almost completely out of the self. Perhaps deep-seated aspects of Jackson's per‐ picture; this is a remarkably dry account of an ex‐ sonality may explain his tendency to treat cases traordinarily vivid person. [13.] nearly as stand-alone projects, with relatively Jackson -- Hockett does a nice job of showing slight need to tie his decision making either to that Jackson's experience as Nuremberg prosecu‐ earlier cases or to the views of his colleagues. I tor had some impact--leftward in some contexts, doubt that the fact that Jackson was lived and rightward in others--on his decision making, but practiced law in small-town upstate New York has that this impact did not pervade his jurispru‐ much explanatory power. dence. Beyond that, I am not sure that Hockett's Hockett's overall conclusion -- that there is "a analysis makes Jackson any more predictable, strong connection between the justices' ideologi‐ though that goal may be unattainable. Hockett at‐ cal backgrounds and their judicial performances" tempts to explain Jackson's seeming inconsistency (p. 289)--should strike most readers as utterly un‐ as the pragmatic jurisprudence of a traditionally surprising, though one should also recognize that trained common lawyer. But there is nothing par‐ other factors, such as intellectual orientation, will ticularly pragmatic about deciding cases on a also play a signifcant role. The three justices he
4 H-Net Reviews has chosen to help make this point are all fasci‐ dissent. Hockett does discuss Adamson v. Califor‐ nating and important subjects. Even though they-- nia, 332 U.S. 46 (1947), and a few other cases in especially Black and Frankfurter--have been stud‐ which Black and Frankfurter squared of against ied a great deal, they are well worth the attention each other. But the justice-by-justice organization Hockett has given them. His book accomplishes makes the discussion somewhat repetitive and less than one might wish, but the juxtaposition of disjointed and the comparative analysis less the three is in itself worthwhile, for they present salient than it might be. three very diferent approaches, each with signif‐ [7]. Some insight on this problem may be cant merits and faws, to the most enduring prob‐ gained from two recent and substantial works on lem of American constitutional law--how to deter‐ Black: Howard Ball, Hugo L. Black: Cold Steel mine when the Supreme Court should exercise its Warrior (1996); and Roger K. Newman, Hugo power of using the Constitution to invalidate con‐ Black: A Biography (1994), though neither concen‐ duct of the political organs of government, and trates on it very much. It is clear that Black's sym‐ when it should stay its hand. pathies with underdogs developed early; by age Notes 15 he was actively working on a local Populist [1]. I have written on this subject in Switching newspaper. Perhaps being the youngest of eight Time and Other Thought Experiments: The Hugh‐ children contributed to this orientation, as well as es Court and Constitutional Transformation, 142 to his defant nature. Perhaps also his ambivalent U.Pa. L. Rev. 142 (1994). Barry Cushman, Rethink‐ relationship with his father -- a well-to-do mer‐ ing the New Deal Court: The Structure of a Consti‐ chant who benefted from the hated crop-lien sys‐ tutional Revolution (1998), is a carefully re‐ tem but who seems to have had generous impuls‐ searched book with ample references to the aca‐ es and a more progressive racial outlook than demic literature. most of the community -- had some impact in this direction. [2]. See, e.g., James F. Simon, The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties [8]. Kluger, Simple Justice, at 749. in Modern America (1989). [9]. I suspect that two factors mentioned but [3]. Hockett, at 274, quotes Jackson's own rec‐ not analyzed or emphasized by Hockett--Black's onciliation of his free speech opinions from his Baptist upbringing and the devastating efects on separate opinion in American Communications his family of alcohol, an experience that presum‐ Ass'n v. Douds, 339 U.S. 382, 443-44 (1950). ably led to his avid prohibitionism early in his po‐ litical career--account in part for this orientation. [4]. H.N. Hirsch, The Enigma of Felix Frank‐ furter 210-11 (1981). [10]. Hockett says that Black did not distrust judicial discretion. I think it is more accurate to [5]. E Barrett Prettyman, Jr., a Jackson clerk say that he did not distrust the exercise of judicial from the 1953 term, in a 1971 interview reported power, if the circumstances in which that power in 2 Richard Kluger, Simple Justice: The History of was to be exercised were clearly demarcated. But Brown v. Board of Education and Black America's clearly he was afraid that judicial discretion Struggle for Equality 771 (1975). Much of this would lead to excessive exercises of power in paragraph is drawn from Kluger's book, at 749-78. some contexts and insufcient exercises of power [6]. Other cases that could provide the basis in other contexts. See, for example, his separate for useful comparative analysis include Everson v. opinion in Rochin v. California, 342 U.S. 165 Board of Education, 330 U.S. 1 (1947), in which (1952). Black wrote the majority opinion and Jackson the
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[11]. Helen Thomas, Felix Frankfurter: Schol‐ ar on the Bench 182 (1960). [12]. At least to this extent, I am in agreement with Hirsch, Enigma, at 5, who said that "Frank‐ furter can only be understood politically if we un‐ derstand him psychologically." Hirsch further says "that we can understand him psychologically as representing a textbook case of a neurotic person‐ ality," id. That strikes me as at least plausible, and nothing in what I am arguing is inconsistent with it. [13]. See id. at 211 ("Judicial outcomes cannot be wrenched out of the context of a man's life; a member of the Court is not a composite of juridi‐ cal abstractions but a complex individual of fesh and blood."). [14]. The Struggle For Judicial Supremacy 295 (1941). [15]. Kluger, Simple Justice, 764-65. Copyright (c) 1999 by H-Net, all rights re‐ served. This work may be copied for non-proft educational use if proper credit is given to the au‐ thor and the list. For other permission, please con‐ tact [email protected].
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Citation: Richard D. Friedman. Review of Hockett, Jefrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. H-Pol, H-Net Reviews. January, 1999.
URL: https://www.h-net.org/reviews/showrev.php?id=2625
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