Supreme Courtier: Relitigating Felix Frankfurter’s Liberal-ish Legacy

At the very first Federalist Society conference, Antonin Scalia offered a word of caution. For decades, conservatives had criticized the federal government, particularly Congress and the Supreme Court. “Unfortunately,” he told the assembled students in 1982, “a tactic employed for half a century tends to develop into a philosophy.”

It’s a recurring theme in American constitutional history. A political coalition bristles at the other side’s use of an institution for so long that eventually it develops a constitutional case against the institution itself. In 1982, conservative lawyers’ rightful criticism of the New Deal and Roe v. Wade risked leading them to mistakenly adopt a sweeping anti-federal philosophy. A generation earlier, conservatives’ arguments against FDR led them to philosophize a far-too-narrow view of the presidency itself.

Or consider, for that matter, the early 20th-century progressives’ arguments against the Supreme Court. In the “Lochner Era,” named for the case striking down New York’s bakery regulations, the Court held many progressive reforms unconstitutional under a broad view of economic liberty. Soon progressives made limiting the courts a central plank of their political platform; eventually progressive lawyers formulated a constitutional theory for strictly limiting—nearly eliminating—the judicial power itself.

Thus progressives’ anti-judicial tactic became a philosophy—and by midcentury, their top philosophizer was Justice Felix Frankfurter. Inspired by President Theodore Roosevelt, and then by Justices Louis Brandeis and Oliver Wendell Holmes Jr., Frankfurter played a central role in both the progressive political movement and its constitutional doctrines. When FDR appointed him to the Court in 1939, he helped to complete Democrats’ transformation of the federal judiciary. Yet by midcentury, when the Supreme Court itself became a tool for further progressive reforms, Frankfurter found himself significantly out of step with the new left. When he retired in 1962, just three years before his death, he was seen—scorned, even—as the Court’s most “conservative” justice.

“The standard story about Frankfurter is that he struggled to fill the seat once held by Holmes,” writes Brad Snyder, a Georgetown law professor. “Scholars have portrayed Frankfurter as a judicial failure, as a liberal lawyer turned conservative justice, and as the Warren Court’s

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