(2 of 3)
Landis. To many of the New Deal's enemies. Professor Frankfurter seemed downright sinister. His outspoken interventions on behalf of Sacco and Vanzetti and other unpopular defendants in the 19205 had led Chief Justice William Howard Taft to remark that he "seems to be closely in touch with every Bolshevist, Communist movement in this country." As late as 1945, a Southern Congressman told the House that "practically every department is now infested with those who see eye to eye with Frankfurter—the Rasputin of this Administration." ∙ But fears that Frankfurter would be a flaming radical on the bench proved to be groundless. Instead, he became the Supreme Court's most consistent and articulate advocate of "judicial restraint" —the concept that the lawmaking function rests with the legislatures, not the courts. He liked to quote a remark that his friend and hero, Oliver Wendell Holmes, made in his gos: "About 75 years ago, I learned that I was not God.
And so when the people want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, 'Goddammit, let 'em do it.' ' In his own fashion, Frankfurter expressed that doctrine most eloquently in his dissenting opinion in 1943's West Virginia State Board of Education v. Barnette, a milestone case in which the majority ruled that it is unconstitutional for a state to require schoolchildren to salute the nation's flag. Frankfurter argued that since the state law aimed toward "a legitimate legislative end, namely the promotion of good citizenship the court should not interfere. "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. But 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." During his early years on the Supreme Court, Frankfurter's judicial restraint operated as a liberal doctrine, opposing the court conservatives, who used strict constitutional interpretations as weapons against New Deal legislation. But under Chief Justice Earl Warren, the court has leaned to sweepingly liberal interpretations of the Constitution's civil liberties clauses, and judicial restraint has acted as a conservative brake. Under Warren, Frankfurter repeatedly dissented from majority opinions upsetting federal or state laws. His last major dissent was from the majority opinion that brought apportionment of seats in state legislatures under the review of federal courts. He called the decision "a massive repudiation of our whole past in asserting destructively novel judicial power."