Felix Frankfurter, renowned as a public intellectual fighting for justice, became as a member of the Supreme Court a figure proclaiming his devotion to the rule of law and its corollary, judicial self restraint, even when its results conflicted with his deepest beliefs. Yet an analysis of several of his leading opinions suggests that his famous balancing tests had little to do with law. In sacrificing his policy and ethical goals in the service of law, he often failed to serve the law, and in that sense, his well publicized sacrifices were for nothing.
The first amendment does not protect all speech. Should it protect lies? Some argue that the state should intervene to prevent and punish lying because the people are insufficiently rational (they are too emotional, and, therefore vulnerable) or excessively rational (they find it too costly to investigate claims and are, therefore, vulnerable). Others retort that state officials are not neutral or objective, but have their own interests to advance and protect, and, therefore, cannot be trusted. Though certain kinds of lying, like fraud and perjury, are clearly not protected speech, courts have recently seemed sympathetic to the view that the proper response to lying is not government action, but the workings of the marketplace of ideas. The distinguished economist, Ronald Coase, has taken this argument much farther, applying it to commercial speech, but thus far his views have not prevailed.
This essay analyzes the response of one of America’s pre-eminent judges, Henry Friendly, to one of the most far reaching constitutional developments of his time and our time, the incorporation of the Bill of Rights into the Fourteenth Amendment’s Due Process Clause. In the course of addressing the issue, Friendly raised profound concerns about constitutional construction, federalism, the rule of law, and individual liberty that continue to resonate decades later.
Most judicial opinions, for a variety of reasons, do not speak with the voice of identifiable judges, but an analysis of several of John Marshall’s best known opinions reveals a distinctive voice, with its characteristic language and style of argumentation. The power of this voice helps to account for the influence of his views.
The Constitution’s declaration of war requirement, superficially straightforward but actually full of ambiguities, originated in a fear of presidential usurpation and recklessness. Yet Congress has responded to political incentives and has declined the assertive role assigned to it. The check on usurpation and recklessness has eroded almost to the vanishing point.
William O. Douglas, venerated by some and reviled by others, was very much his own man, disdaining his colleagues on the bench and the work they produced. For him, the point of judging was simply to do justice. However, justice is not always self evident, and legal norms and values, like objectivity and stare decisis, are ignored at a high cost. Nor, as it turns out, was his carefully carved authentic persona more than a mask of lies.