Proof of an Activist Court under FDR (Part III)

Frankfurter ended career and most historians view his legacy on the Court as being fairly inconsequential. Hence, he is not viewed well by history. This is because he did not believe in economic due process and he practiced judicial constraint. In my opinion, a judge we cannot remember, is a good judge. This means they did not get in way of the legislative process. I view a judge like an offensive linemen in football. An offensive linemen is doing a great job if you do not hear their name. But the real question is how can Frankfurter be known for judicial constraint but still rule in favor of FDR policies?

Black and Frankfurter unanimously agreed with FDR policies, but once he died they could not agree on any major cases outside of civil rights. In fact, it is not surprising that an originalist and a judge practicing judicial constraint agreed on FDR policies. What is surprising they agreed they were Constitutional instead of being unconstitutional? Some say special circumstances such as the Great Depression and World War II may lead Justices to give a President leeway in executive powers, but that is hardly excuse. Consider another wartime case (Korean War) decided in 1952: Youngstown Sheet and Tube Co. v. Sawyer. The court decided 6-3 that Truman could not use an executive action to have the government takeover steel plants around the country without congressional approval. However, this time, both Black and Frankfurter ruled with the majority against the government. This decision was really no different than the Korematsu decision since both were wartime executive actions made without congressional approval that consisted of confiscating property and liberty. Scholars claim the Sawyer case set limits on executive action and strengthened the separation of powers of government, but I do not know if I agree with that. Decisions such a Korematsu are still on the books and that is dangerous because it sets a bad precedent – meaning a similar ruling can happen again in our future. There is no excuse to make bad decisions. What’s worse, judicial activism has become common place in the Court. Today, Obama is using executive action to rule on illegal immigration. We have seen Court case decided on issues such as: ObamaCare, gay marriage, and abortion – social justice cases that are not mentioned in the Constitution. Ironically, Black and Frankfurter would have been on the same side and ruled against these laws, but unfortunately they set a bad precedent in allowing judicial activism to occur in the FDR years which has led to some really bad decisions since they left the court.

One final point, FDR claimed that the Court prior to his attempt to “pack” the courts was an “activist” court. So, does that mean FDR would have felt both Black and Frankfurter were activist judges after the FDR presidency? After all, they both ruled against similar types of FDR cases? Yet, Black and Frankfurter were on opposing sides of so many decisions that they did not like each other. They both had two vastly different viewpoints in interpreting the Constitution – Originalism and Judicial restraint. And history did not call either of these men an activist judge. It is very weird how these two men agreed on decisions to support FDR, united and voted against similar types of FDR cases after his death, and were on opposite sides of about every other decision. Strange indeed. I would say there had to be a great deal of corruption in the FDR administration for this happen.