Monday, April 1, 2013

Daily Read: Snyder on Frankfurter's Popular Constitutionalism

Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"?  Was Justice Felix Frankfurter such a judge?

In his forthcoming article, Frankfurter and Popular Constitutionalism, ConLawProf Brad Snyder answers both questions with an enthusiastic and erudite "yes." 

Newsweek_Jan_16_1939_Felix_Frankfurter

Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound.  Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943);  Brown v. Board of Education and its progeny; and Baker v. Carr (1962). 

Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."  

While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.

RR
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