Frankfurter Letter to Roosevelt, 2/18/37

NDN | Photo Gallery | Documents | Classroom | Search

Frankfurter Letter to Roosevelt, 2/18/37
Felix Frankfurter

Publishing Information

February 18, 1937

Dear Mr. President:

Here are some notes dealing with what is the heart of the difficulty about the Supreme Court. These observations, in elaboration of what I wrote you, may or may not be of use to you. But I have a deep conviction that the problem is essentially an educational one—to make the country understand what the real function of the Supreme Court is and how, for a long stretch of years, it has been exercising it.

It is a creditable aspect of human nature that it wants some object of veneration, and veneration to no small degree thrives on mystery and mysticism. A majority of the Court have, as it were, been exploiting the public's devotion because they have been exploiting the mystery which so largely envelops the Court. People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand.

T.R. did it in his Eighth Annual Message. You will recall these sentences which go to the root of the business:

"The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions."

Ever faithfully yours,
F.F.

Dissatisfaction with a few isolated judicial decisions would never have given rise to deep and widespread disquietude concerning the relation of the Supreme Court to the national welfare. With accumulating disregard of its own settled canons of constitutional construction, the Supreme Court for about a quarter of a century has distorted the power of judicial review into a revision of legislative policy, thereby usurping powers belonging to the Congress and to the legislatures of the several states, always by a divided court and always over the protest of its most distinguished members. With increasing frequency a majority of the Court have not hesitated to exercise a negative power on any legislation, state or federal, which does not conform to their own economic notions. In 1923, Mr. Chief Justice Taft protested against the Court's invalidation of the Congressional minimum wage regulation for the District of Columbia because, as he said, "it is not the function of this court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound." (Adkins v. Children's Hospital, 261 U.S. 525, 562.) In 1924, Mr. Justice Brandeis was obliged to note that the Court was assuming the "exercise of the powers of a super-legislature—not the performance of the constitutional function of judicial review." (Burns Baking Co. v. Bryan, 264 U.S. 504, 534.) And by 1930, Mr. Justice Holmes was compelled to exclaim, "As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights (the constitutional rights of state legislatures) if they happen to strike a majority of this court as for any reason undesirable. I cannot believe that the (due process) Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions." (Baldwin v. Missouri, 281 U.S. 586, 595.) Such was the condition created for the law-making bodies of the country—for both the Congress and for the state legislatures—before the depression came and before the Congress, by three successive and increasingly emphatic popular mandates, was called upon to deal with the depression, both in achieving recovery and in avoiding the recurrence of future disasters.
The unfortunate situation thus created by the judiciary long before the depression has been intensified by the events of the depression. In 1935, Mr. Chief Justice Hughes had to protest a decision of a majority of the Court who refused to confine their decision to the statute actually before the Court, in accordance with the traditional limits of judicial review, but, disregarding all judicial restraint, declared by judicial fiat that the Congress was without power by any form of legislation under the Commerce Clause to devise any pension system for railroad workers. The Chief Justice described the action of the Court as "a departure from sound principles" and "an unwarranted limitation upon the Commerce Clause of the Constitution." (Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 375.) In protesting the decision of the majority of the Court invalidating the Agricultural Adjustment Act, Mr. Justice Stone, who had been President Coolidge's Attorney General, felt impelled to remind the Court that while legislative power may be unwisely used, "So may judicial power be abused," and that "A tortured construction of the Constitution is not to be justified." (United States v. Butler, 297 U.S. 1, 87.) The climax of a generation of experience with judicial disregard of the proper distribution of governmental powers under the Constitution was reached when a majority of the Court decided that a "State is without power by any form of legislation to prohibit, change or nullify contracts between employers and adult women workers as to the amount of wages to be paid." (Morehead v. New York ex rel Tipaldo, 298 U.S. 587, 611.) That decision arbitrarily brushed aside as unconstitutional the New York Minimum Wage Act which had been most carefully drafted to meet the objections theretofore raised by the Court to that type of legislation, objections which, according to Mr. Chief Justice Taft, Mr. Justice Holmes and Mr. Justice Sanford (Mr. Justice Brandeis was not sitting in that case), could not be found in the Constitution. In vain did the minority of the Court protest that "it is difficult to imagine any grounds, other than our own personal, economic predilections, for saying that the contract of employment is any the less an appropriate subject of legislation than are scores of others, in dealing with which this court has held that legislatures may curtail individual freedom in the public interest." (298 U.S. at 633.)
The Minimum Wage decision exposed the extent to which personal economic views were attributed to the impersonal Constitution. If we should allow this situation to continue, we shall have abandoned a constitutional government of law for a government of men. Thus, the Supreme Court has twice declared minimum wage legislation invalid, once in 1923 and again in 1936. Thirteen Justices have recorded their views on such legislation: seven Justices have sustained such legislation while six have found it unconstitutional. Yet the legislation has been thrown out simply because a bare majority of a particular set of Justices who happened to sit on the Court on each occasion did not like that kind of legislation.
I am not expressing a personal or party view. Ten days after the Court had thrown out the New York Minimum Wage Act on the ground that the state was "without power by any form of legislation" to establish minimum wages for women, the Republican party, in convention assembled, expressed its belief that such legislation could be enacted "within the Constitution as it now stands."
By reason not of a few erratic decisions but of a long course of adjudications, it has become evident that an inflexible majority of the Court has frustrated and will continue to frustrate legislative action by the states as well as by the nation, and not because anything in the Constitution so requires.
The states have properly been allowed by the Court to protect the good will of manufacturers from unauthorized price-cutting, but the states have been denied the right to protect labor by minimum wage legislation. The states have been denied the right to protect union workers from discrimination and to protect the unemployed from exploitation by private agencies. The states have been denied the right to encourage local investments and local industries by a rational tax policy. The Congress has very properly been allowed to use the Commerce Clause to protect the children of the rich from kidnappers, but the Congress has been denied the right to use the same power to protect the children of the poor from the terrible exploitation of child labor.
These decisions, and many more that I could cite, cannot be justified by anything in the Constitution. They are explained by the fact that some of the Justices have identified the Constitution with their private social philosophy.
It is the duty of the Chief Executive and of the Congress, no less than that of the Court, to protect and defend the Constitution. "Interpretation of our great charter of government which proceeds on any assumption that the responsibility for the preservation of our institutions is the exclusive concern of any one of the three branches of government, or that it alone can save them from destruction is far more likely, in the long run, 'to obliterate the constituent members' of 'an indestructible union of indestructible states' than the frank recognition that language, even of a Constitution, may mean what it says." These are not my words. They are the characterization by Mr. Justice Stone of the decision of a majority of his Court. (United States v. Butler, 297 U.S. 51, 87-88.)
And so, the aim is not to impair the authority of the Constitution or the independence of the Court, but to protect the Constitution which, as John Marshall told us, was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." (McCulloch v. Maryland, 4 Wheat. 316, 415.) Once we acquiesce in spurious and arbitrary constructions of the Constitution never intended by its makers, once we degrade the Constitution to a body of rules unadaptable, except by specific and constant amendments, to the changing conditions of a dynamic society, the Constitution loses its strength and its meaning as the symbol of the orderly continuity of our national life. Nor is it admissible that we should yield our constitutional destiny to the personal judgment of a few men, however sincere.
It is necessary not only to protect the Constitution but to protect the judiciary itself from losing its essential safeguards. For its security depends ultimately upon the confidence of the people. Only thus will the necessary independence of the judiciary be assured. But the first requirement of an independent judiciary is that judges should be intellectually free to make impartial judgments. Judges who cannot rise above their private views are not free judges. A Court which wields the delicate and enormous power of reviewing the legislative acts of a nation must not justly be deemed to have its judgments determined by its own economic predilections. In the famous language of Mr. Justice Holmes, "A Constitution is not intended to embody a particular economic theory.... It is made for people of fundamentally differing views." (Lochner v. New York, 198 U.S. 45, 75-76.)