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1. Introduction
- University of Michigan Press
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f C H A P T E R 1 Introduction When the characters are large and the jurisprudential stakes high, an approach favoring personal pro‹le over full-blown biography or constitutional history does its best work. This is true on both fronts here. The period principally under review, the 1941–54 Supreme Court terms, charts the time Frankfurter, Black, Douglas, and Jackson served together. This period ranged from Jackson’s appointment to his death, but it also has its own jurisprudential de‹nition. Not by coincidence, Jackson’s appointment also marked the new critical mass that the Roosevelt appointments achieved in their liberal response to what can be called the Old Court of the 1930s and its refusal to ‹nd all sorts of economic legislation constitutional under the banner of judicial restraint. It includes the jurisprudential responses to the issues that the Second World War and the Cold War raised, and has as a backdrop the debate over individual rights under the heading of the preferred position doctrine and the doctrines of selective and total incorporation . The period ends with the triumph of civil rights jurisprudence in the form of the desegregation case of Brown v. Board of Education.1 Put differently, the jurisprudential stakes of the period were as high as they could be, since the result of what was then debated led the Court in our time to knock down the levees to federalism and ›ood the states with constitutional interpretations applicable to them and their citizens. The great Henry Friendly thought that what the Court did went “to the very nature of our Constitution” and had “profound effects for all of us.”2 Observations from such a preeminent source aside, even a casual look at our contemporary culture reveals the handiwork either directly or indirectly of the 1941–54 period in such areas as voting rights, criminal procedure, reproductive rights, welfare rights, and school desegregation. This meant that the stakes for American democracy were also high. The work of the Court from the 1940s and 1950s continuing on into the 1970s has marked a great judicial age. This is in contrast to our own age, which more surely is a legislative age. Changes in the way we live today come more from Congress than from the courts. The Constitution, to be sure, explicitly provides for the legislature to affect the way we live. But what the Court did during its heyday affected the nation in ways perhaps more profound—consider desegregation, for example—than what the legislature has done before or since, leaving for us the question of how well democracy is served by such an assertion of authority. The answer must lie in part in both what the judicial age accomplished and in the nature of the methods it employed, which is but another way of looking into the nature of judging and, in our case, the relationship between judging and personality. The contrast on this Court was between judicial activism and judicial conservatism, though the activism label misleads in the sense that judicial conservatism can be seen as activism by another name. Frankfurter, with Jackson joining him after an initial association with the opposing camp, agreed not just that the Court should decide constitutional issues only when forced to but also that the Court should defer to state legislatures and ‹nd their legislation unconstitutional in only the most compelling circumstances . In contrast, Black and Douglas, the judicial activists, were eager for the Court to use its power to temper the power of the states and the federal government against the individual. Held in the balance in the ‹ght between the two factions and their philosophies was the jurisprudential course the Court would follow in the war years of the 1940s, the Cold War years of the early 1950s, and the years beyond into the contemporary era. The Players But just who were these judicial giants and where did they come from? We can start with thumbnail sketches. Black, the ‹rst of the group to be appointed, took his seat in 1937. He would be the only one of the four to come to the Court with judicial experience, albeit as a police court judge in 2 The Great Justices 1941–54 Birmingham, Alabama. Raised in rural Alabama and marginally educated, Black was a remarkably successful lawyer, handling personal injury and labor law matters, and eventually parlayed his success with juries into success with the electorate, winning a seat in the U.S. Senate in...