Barry Cushman, University of Virginia School of Law, has posted
Lost Fidelities, his article, originally published in
William & Mary Law Review 41 (1999), on Owen Roberts and whatever did or did not happen in 1937. Here’s the abstract:
Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert Jackson, insisted that the Court’s farewell letter include the encomium, “You have made fidelity to principle your guide to decision.” Justices Black and Douglas balked at the inclusion of the sentence, with the result that no letter was ever sent. This article, prepared for the William & Mary symposium on “Fidelity, Economic Liberty, and 1937,” seeks to understand how Stone, Jackson, and Frankfurter may have come to see a consistency and integrity to Roberts’ jurisprudence that others did not detect. It does so by identifying and analyzing continuities in Roberts’ performance in cases involving Fifth and Fourteenth Amendment restraints on economic regulation that persisted after 1937. This examination aims to provide an improved understanding not only of Roberts’ jurisprudence, but also of the mechanisms of constitutional change in the 1930s. In addition, the paper attempts to offer a richer understanding of the contemporary significance of his landmark 1934 opinion in Nebbia v. New York.
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