Split Decisions

In a nation which allows its judges to create its constitutional law the boundary-line between judicial biography and constitutional history is not easily traced. Each of the five volumes under review is concerned with one or more phases of the career of powerful members of the Supreme Court of the United States. The succession of portraits provides something more than a gallery of Justices. It produces a picture of the Court and its functioning from 1921 when William Howard Taft became its Chief Justice, to 1962 when Felix Frankfurter resigned his post as Associate Justice.

The portrait that takes us back farthest in time—Professor Mason’s essay on Taft—is a mere miniature: all that it endeavors to reveal is the contribution which Taft made to the post for which he had always longed, that of Chief Justice of the United States. The work is evidently part of a larger study on which Professor Mason is engaged—a general review of the office and the powers of the Chief Justice. This segment of that larger whole provides a lively chapter in American constitutional history. Professor Mason valiantly seeks to subordinate his distaste for Taft’s political and constitutional convictions to a moderate regard for his administrative competence as Chief Justice. Building upon the Taft papers in the Library of Congress, the study not only reveals the effective use which Taft made of the quiet competence of Justice Van Devanter, the Court’s principal technician in matters of Federal jurisdiction, but exposes the exuberant, indiscreet, and misguided zeal with which the Chief Justice, as counsellor to his Republican successors to the office of President and as lobbyist before the Congress, pressed his advice upon the political agencies of government. It is at once an amusing and a scandalous chapter in constitutional history.

Professor Danelski’s monograph tells an even smaller story. It is, in a sense, an appendix to the account of Taft’s Chief Justiceship, for it describes the series of events and combination of influences which came together in 1922 to produce President Harding’s selection of Pierce Butler—Minnesota Democrat, Roman Catholic, staunch defender of the established order—as Associate Justice of the Supreme Court. The heavy hand of the Chief Justice pulled upon every strand of power that was within its reach, and if Taft achieved the worthy objective of keeping a less admirable Democratic Roman Catholic—Judge Manton—from securing a seat on the Supreme Court, the blessings that accompanied Butler’s integrity were not unmixed. The story of the processes by which Pierce Butler of the Ramsey County bar became Mr. Justice Butler of the Supreme Court of the United States provides such a revealing display of low politics in high places that one can only regret that Professor Danelski felt compelled by some academic impulse to provide an absurdly pedantic explanation of the appointment, in which “self-actional and interactional explanations” of Harding’s decision to nominate Butler to the Court are put aside in favor of a “transactional explanation” of Harding’s choice. From this almost meaningless finding there emerge a series of algebraic formulae, a set of schematic diagrams, and a “scalogram” of judicial cases—all designed, I take it, to show the vividness of “transactional” interpretations of political and constitutional history. The sociological jargon and pretentious trapings that encumber the concluding section of the book will not, it is hoped, keep the reader from appreciating the intelligence and learning of the volume’s earlier sections.

The collection of tributes to Justice Frankfurter which Professor Mendelson has assembled—the second such volume which he has edited—is made up of essays on the Justice’s achievements in different areas of Federal jurispudence. The essays, quite naturally, are of uneven merit. The best are those contributed by Judge Friendly, who considers the Justice’s attitudes towards problems of statutory interpretation, Professor Jaffe, who reviews the Justice’s academic and judicial contributions to administrative law, and Professor Nathanson who writes of Professor Frankfurter, Justice Frankfurter, and the separation of powers. So long as statesmen and scholars are interested in the problems of constitutional government in the United States they will read of the work, career, and character of Felix Frankfurter with engrossed attention. If he sometimes erred in judgment—and surely he did—he left in the pages of American history the unmistakable marks of his greatness. His imprint will not, perhaps, be found, as Marshall’s has been, in the basic frame and structure of American government. It will unmistakably be seen, however, in the shape of the American legal mind, the mind, that is, which seems destined to continue its effective domination of our constitutionalism. For twenty-three years Felix Frankfurter was the most powerful scholar and most effective intellectual to be wholly engaged in the administration of the public affairs of the nation. The effervescense of his spirit and the range of his interests is charmingly revealed in Professor Kurland’s collection of the Justice’s more recent occasional papers, a compendium of tributes to the men and institutions that captured Felix Frankfurter’s admiration and affection.

The most disappointing of the portraits in this gallery is, unhappily, that by the gifted hand of the late Fowler Harper. His subject, Mr. Justice Rutledge, who sat on the Court for six brief years in the 1940s, was a New Dealer of great moral force and impressive intellectual integrity. Yet Professor Fowler’s study fails as a biography, and amounts to little more than a discursive ramble across the admittedly vast range of problems which deeply concerned the Justice. Often the excursion seems to find its direction in the predilections of the biographer rather than in the commitments of the Justice himself. Scattered through the pages of the book are important and revealing excerpts from draft opinions, memoranda to associates on the Court, and other reflections on judicial work in progress. Whether there are many other unpublished materials of a similar sort we are not told, but one finishes the book with the uneasy feeling that all that Professor Harper has given us in this volume is a sample of materials from which an important judicial biography may some day be written.

Since most biographers are disciples, it is not surprising that current constitutional controversy is reflected from the surface of the volumes here reviewed. The turmoil or dispute in which the experts in constitutional law are nowadays engaged often seems to be more a conflict among angry disciples than a war between outraged masters. Alpheus Mason’s indignation with the Chief Justiceship of Hughes fattens upon his fidelity to Chief Justice Stone, and often reaches proportions which his hero would surely consider graceless and extreme. When Yale’s Professor Harper pays homage to the gifts and accomplishments of Justice Rutledge, he finds it natural to preface his expressions of devotion to the homespun Justice with words of scorn for the Law School from which Felix Frankfurter, the spokesman for restraint, set forth for the nation’s capital in 1939. Irving Brant, who provides an adulatory Introduction to Professor Harper’s volume on Rutledge assumes that Justice Murphy and Justice Rutledge were on the side of the angels when they insisted that the court play an active role in implementing certain “liberal” social policies, in opposition to those Justices who thought the Court should be a “neutral” or “modest” interpreter of the law. And he treats the Justices who did not join the enlightened alliance of “activists” not merely as innocently erring brethren but as willfully sinful rascals. Perhaps in all duels the seconds tend to become more belligerent than the principals. Surely this has been the tendency in the recent engagements which have been fought between the neutralists and the activists in constitutional law. Those scholars who have endorsed the effort of Justice Frankfurter to convince his progressive associates that restraint and humility are virtues in judges, have tended, sometimes, to see the moral muscularity of the “activists” as an irresponsible and dangerous exuberance. The disciples of the activists have, on their side, suggested that the restraint of Justice Frankfurter revealed the basically conservative inclinations of a Harvard academic.

In an earlier day there were Justices (even, it seems, Chief Justices) who discovered malevolence in the motivation of colleagues with whom they disagreed. The venomous ill-will which Justice McReynolds brought to his relationships with associates on the Supreme Court between 1914 and 1941 is both legendary and incontrovertible. Even the jolliest of all of our Chief Justices, Taft, looked upon the subtlety of Brandeis’s mind and the tolerance of Holmes’s temperament as malign forces which could do nothing more serviceable than ruffle the surface of restful principle. He said things about the shortcomings of his colleagues behind their backs reflecting more the passion of a disciple than the understanding of a master. The gentle charity of Wiley Rutledge seems, however, more characteristic of the antagonists in constitutional disputes between Justices. If the academic disciples of one or another master could emulate the manner of Rutledge and allow his tranquility to moderate their own acerbity, divergences of judicial attitudes towards moral principle might be seen for what, generally, they are: differences of opinion on close questions of constitutional law.

This observations does not mean that beneath the narrow differences of opinion there do not lie significant contrasts in judgment. It is a common assumption of our time that the most important of these contrasts is that between the activists, faithful to the progressive leadership of Justice Black, and the neutralists, committed to the guidance of Justice Frankfurter’s restraining hand. The assumption is warranted. Its validity, however, should not blind the student of the Court to the fact that, beyond the area of intense disagreement about the appropriate scope of the judicial power, lies a domain of constitutional law which, though it was once a battlefield, is now ruled by the comforting tranquility of consensus. There is nothing in the commitment of the neutralist to lead him to deny the broadest range of congressional power to regulate interstate commerce, or to restrict the power of the States to seek the economic well-being of their citizens. Justice Frankfurter was no less willing, I think, to recognize the lawfulness of the New Deal than were such activists as Rutledge, Black, and Douglas. Neither the logic of neutralism nor the presuppositions of activism can tell us how far its conception of the judicial power will affect the resolution of other important constitutional issues. In the last analysis, may it not be that neutralism and activism do nothing more momentous than provide alternative standards for interpreting those provisions in Article. Three of the Constitution which define the extent of the judicial power of the United States? They do not afford a measure, or even a mood, by which one may assess the limits of the power of Congress or the Presidency.

A reading of the live books here brought together sharpens the issues to which I have affixed the fashionable labels. It also serves to expose a related problem. Activists are generally thought to be those who believe that the judicial power should be made creatively and vigorously effective for the fulfillment of enlightened aspiration. By this definition, the conservative judges who, forty years ago, sought by judicial decision to safeguard their preferred liberty of self-governing ownership may fairly claim charter membership in the society of activists. Taft and Butler, like their progressive successors felt empowered to construct a scale of constitutional values and provide an especially vigilant judicial protection for those which they were sure stood at the top. Justices Rutledge and Black selected other values for preferential treatment than those which Chief Justice Taft and Justice Butler had chosen. To say that Rutledge and Taft, Black and Butler, have all known and submitted to the activist impulse is not, accordingly, to make them allies in all enterprises of government. The differences between the larger loyalties of Rutledge and Black, on the one hand, and of Taft and Butler on the other, are surely greater than those which in recent years have separated the activists and neutralists. Is it not obvious that for all the fury of discussion and debate, of decision and dissent there has been a very large sphere of basic agreement on certain crucial issues in recent years? Neither wing of the Court has brought seriously into question the other’s presuppositions with respect to the responsibilities of government. Justice Frankfurter, one may be sure, felt no less strongly than did Justice Black about the outrages of legislative malapportionment, and the extravagances of Senator McCarthy. The difference of opinion concerned the propriety of judicial intervention in the disgraceful failures of democracy. All the Justices share an indignation with the inadequacies and the excesses of Congressional accomplishment and the clumsy incompetence of State and local governments. This neglected sphere of agreement is surely more extensive than that which Taft and Brandeis, Holmes and Butler shared. I would suggest that the activism that seems to associate Taft and Rutledge does not, in fact, approach the closeness of commitment that a shared philosophy of government has produced between the Court’s activists and the Court’s neutralists in our own day.

These things being said, it may none the less be fitting to identify another link that incongruously binds the spirit of a Rutledge to the spirit of a Taft. This second link is forged in the faith that simplicity, not complexity, lies at the root of constitutional principle. When Irving Brant asked Justice Rutledge “how he approached the job of deciding a case,” the answer “suggested a judicial method quite unlike that of Justice Frankfurter.” When Rutledge received the briefs of opposing counsel he studied them

to determine if possible on which side justice lay. If that was clear, he searched for the law for a legitimate means of rendering justice. It was usually possible, he said, to find a route that satisfied both the requirements of the case and sound principles of law. A route that never failed was the Bill of Rights, faithfully upheld.

The notion that once the exploring mind finds itself traveling upon the road marked “Bill of Rights,” it is headed for a safe lodging was evidently taken quite seriously by Rutledge. It led him to suppose that whatever affiliations between Church and State Madison and Jefferson disapproved for Virginia, the draftsmen of the First Amendment condemned for the nation and the framers of the Fourteenth outlawed for New Jersey and all the other States. He found it wonderfully easy to disregard all those elements of political and intellectual history which make a nineteenth-century interpretation of the eighteenth-century’s chiseled phrases no less absurd than the twentieth-century reading that he gave to a nineteenth-century amendment. The happy illusion that short, blunt phrases—“freedom of speech,” “unreasonable searches and seizures,” “indictment of a grand jury”—defined neat concepts and compact traditions encouraged Justice Rutledge to undertake some thoroughly misguided excursions into history—inquiries which were sure to lead to the foregone conclusion which his refined sense of justice had already established. Taft, similarly, found it natural to take his simplicities for granted. He saw no need for marshalling historical evidence to support the proposition that “the cornerstone of our civilization is in the proper maintenance of the guarantees of the Fourteenth Amendment and the Fifth Amendment.” A simple syllogism sufficed to establish the unconstitutionality of a statute restricting the jurisdictions of courts of equity to issue injunctions against labor. When today’s activists seek to discover their simplicities in the text of the Constitution, they prefer to follow a more devious route towards the chosen conclusion, a route that involves circuitous journeys through the underbrush of Anglo-American history. The style of the judicial process has radically changed since the time of Taft. It is not certain, I think, that the change was for the better when the practice developed of having law clerks, as untrained in the arts of the historian as are the Justices themselves, hurriedly erect historical scaffoldings to sustain structures already built by strong men of strong conviction.

This contrast between the dogmatic and the historical method of adjudication, a contrast reflected in the difference between the idiom of Taft and Butler in an earlier day and that of Frankfurter and Rutledge in more recent years, suggests another question. Is not the method of the historian poorly adapted to the needs of those Justices who put their ultimate faith in the basic simplicities? It could be shown, I suspect, that Justice Brandeis played a large part in making elaborate historical investigation an instrument of decision. He brought the data of the past out into the open in order to reveal the complexity of a problem, rather than to indicate the simplicity of its answer. As time passed, his style of adjudication took hold of the minds and habits of his colleagues and successors, and before very long progressive elementary essays in American history—essays which displayed all the trappings of scholarship, but which were not the manifestations of true learning because they were tracts for the times. This tension between the complexities of confused reality and the simplicities of sure conviction has, very probably, always marked the divisions within the Court. Only within recent years, however, have the Justices who have discovered and embraced the solacing simplicities endeavored to persuade us that a careful reading of history confirms their confidence. If they have not always succeeded in this effort, they have at least taught us that a selective interpretation of history can provide much satisfaction to the interpreter.

Nothing in any of the books under attention more clearly reveals the strain which prevails between activists and neutralists than the letter in which Mr. Justice Clarke explained to Woodrow Wilson, in 1922, why he was resigning the judicial post to which Wilson, six years before, had appointed him. The letter is quoted at length in Professor Mason’s book on Taft. Though a number of personal factors contributed to Justice Clarke’s decision, the governing consideration was the mounting awareness that he and Brandeis, the two Wilson progressives, were agreeing less and less frequently. “One or the other of us,” Clarke said, “was shifting or had shifted his standards so that in critical or crucial cases we were seldom in agreement.” Between the saddened lines of Clarke’s letter one can see what had gone wrong. In his judgment, Brandeis was too frequently abandoning the progressive commitment of the activist, and, on some narrow ground, was joining the reactionaries to produce a regrettable decision. His willingness to join in those opinions of his brethren that denied injured workers adequate damages, and permitted industrial establishments to escape liability for injuries suffered by trespassing children, seemed to Clarke a reflection of the limpness of Brandeis’s progressivism. He had, in effect, become too much a neutralist. In such circumstances Justice Clarke saw no possibility that on the Supreme Court of the United States he could play a significant role in the advancement of liberal aims. Accordingly, he stepped down, creating the vacancy which Harding filled by appointing Senator Sutherland of Utah to the Court. One cannot help wondering whether in later years Justice Clarke asked himself whether a disappointed collaboration with the neutralist, Brandeis, might not have brought from him more effective contributions to the liberal cause than he ever made in the work that he chose in its stead—work for the League of Nations.

No one of the books which have stimulated these reflections is a work of major importance. Each takes a fitting place, however, in the mosaic of constitutional history. Other eyes than mine would surely discern another pattern than that which I have discovered. In the correlation of the fragments. I should suppose, however, that understanding of person and place, man and office, will be clear only if an effort is made to see them in the context of history.