Friday, July 9, 2010

Felix Frankfurter on the "Switch in Time"

As I mentioned in my previous post, Felix Frankfurter urged his protege Charles Wyzanski to send a letter to the Boston Herald explaining why the Court's 1937 decisions -- the "switch in time" -- couldn't be explained on internalist grounds, with Frankfurter referring to "Roberts' political somersault" and saying that the "lawyer who won these cases is the lawyer who never argued them -- Franklin Roosevelt." At the same time he was writing letters indicating his ambivalence -- to Roosevelt, a telegram saying that Frankfurter "feel[s] like finding some honest profession to enter," in the very same letter to Wyzanski that Frankfurter felt a "poignant grief" because the switch contradicts the "disinterestedness of a tribunal and its freedom from responsiveness to the most obvious immediacies of politics."

That was Frankfurter as law professor. In 1955 Frankfurter as Justice had a different view. In a tribute to Justice Roberts Frankfurter fully endorsed the internalist account Roberts offered in a memorandum Frankfurter, by his own account, "wheedled out of him."

Which Frankfurter to believe? Probably, both or neither. As Justice Souter once suggested in referring to opinions expressed by James Madison on the meaning of the non-establishment clause, once as president and once in retirement, the different views are as much a result of a difference in role as of a change in views. As a Justice (and indeed to some extent as a law professor), Frankfurter was deeply invested in the view that judges were disinterested expositors of the law. But, in one part of his role as a law professor Frankfurter was an external analyst of the law, not a law-maker himself.

The general historiographical point is obvious, though sometimes overlooked: The sources, and the reasons for and circumstances of their creation must themselves be interrogated, and can't be taken at face value.

1 comment:

  1. Back in the fall of 1952, I asked Thomas Reed Powell, my ConLaw Professor, what law course he taught at Harvard Law School before Frankfurter's appointment to the Supreme Court, having assumed that Frankfurter taught ConLaw. Prof. Powell glared at me and said: "You young whippersnapper, I taught Constitutional Law and he taught a new fangled course called Administrative Law." There are stories out there back at the time of Frankfurter's nomination of his being needled by Prof. Powell who had a great sense of humor. I wonder if Powell had correspondence with Justice Frankfurter in the same vein as he had with Justice Douglas.

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