Frankfurter

[Keith E. Whittington]

One relevant study is Harold Spaeth's "The Judicial Restraint of Justice
Felix Frankfurter -- Myth or Reality," Midwest J. of Political Science 18
(1964): 22, available on JSTOR, looking at business regulation and labor
cases during the Warren Court involving possible deference to state action
or agency decision.  Unsurprisingly (I think), Frankfurter was not
particularly deferential to states.  More surprisingly, he tended to defer
in labor cases but not in business cases.  Same pattern with regard to
deference to federal agencies.  Segal and Spaeth's The Supreme Court and
the Attitudinal Model reports that Frankfurter was relatively deferential
in cases (covering years 1953-1989) in which the Court overturned
congressional legislation (voting w/ majority 50% of time, which puts him
among the four most deferential justices during the period) but more
deferential than the average in cases in which the Court overturned state
legislation (voting with majority 76% of time, 7 of the 25 justices during
period were more deferential) (Table 8.7 on page 321).  They don't tabulate
data for constitutional cases in which the Court upheld the legislation, or
break the data down by type of case.  In Table 6.6 (p. 246) ranking Warren
Court justices by "liberal policy output" in various issue areas,
Frankfurter is 10th of 17 on criminal procedure and civil rights, 11th on
First Amendment, 13th on due process, and 16th and 15th on unions and
business respectively.  For what its worth . . .

Keith Whittington

Mark Tushnet wrote:

> Frank Cross writes:  "However, [Frankfurter] was quite ready to strike
> down liberal actions, without restraint."  I'm curious to know which
> such actions Frankfurter struck down.  I know that he was a bear on the
> Fourth Amendment, and ended up on the "liberal" side of school
> desegregation, albeit after resolving some internal ambivalences that
> didn't go to policy but that did go to his understanding of the proper
> judicial role.
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