Evening star., 1939-01-08

article:
The most casual reader Of the press
comments on the appointment Of Felix
Frankfurter to the Supreme Court will
have been impressed by the repeated
characterization Of the new justice as
the heir to Holmes -Brandeis-C Cardozo
tradition. Mr. Frankfurter brings to the
Supreme Court many qualities Of high
order-keenness Of intellect, breadth Of
social vision, technical legal ability, pro-
found learning, stout heart and a
vigorous faith in democracy. Yet, even
this rare coincidence Of virtues in q
single personality Is overshadowed by
the place he occupies in lineage which
is the proudest boast of American juris-
prudence. The surest index to Frank
furters performance on the Supreme
Court will be found in the elements Of
that tradition, elements too complex to
be comprehended under such lazy
minded terms as liberal" or "conserva-
tive"
A Living Force of Government.
The first of these elements is the con-
ception of the Constitution as an Or
ganic, living force Of government rather
than as a mere lawyers instrument.
This conception springs from the very
fountain head Of constitutional interpre-
tation, from Chief Justice Marshall,
who said: 1--WE must never forget that
it is constitution we are expounding
constitution intended to en-
dure for ages to come, and, consequent
ly, to be adapted to the various crises
of human affairs" Many years later
Mr.. Justice Holmes reiterated this doc
trine: when we are dealing with
words that also are constituent act,
like the Constitution of the United
States, we must realize that they have
called into life being the development
Of which could not have been foreseen
completely by the most gifted Of its be-
getterS. The case before JUS
must be considered in the light of our
whole experience and not merely in
that Of what was said hundred years
ago." It is easy to misunderstood these
words. There are those who have be-
lieved that the conception of flexible"
Constitution is somehow sinister, that
it implies warping of plain language
into something which it does not mean.
Such belief is a betrayal OF the very
essence of the Constitution. Those who
hold it would in effect confine vigorous
growing nation to Procrustean bed of
legal phraseology. This is not what its
trainers intended. In the words of Mr..
Frankfurter. they Intentionally bounded
it with outlines not sharp and contem-
porary. but flexible and prophetic"
The Role Of the Supreme Court.
The second element of the great ira
dition is an understanding of the role
Of the Court in our national life and
respect for that role. The Supreme Court
Is not "a brooding omnipresence," 1t is
an integral part of the Government of
the United States. It does not enun-
ciate abstract principles, it decides cases
which influence every step of the gov
ernmental process. The Courts part in
that process is not that of initiation but
OF veto, not the bold writing Of policy
but the subtle reshaping and changing
OF 1t through decision from case to case.
When the judge interposes his veto he
may strike down not only the statute
which he finds repugnant to the Con-
stltution but all future development, as
the decision in the District of Columbia
minimum wage case inhibited similar
legislation for 13 years. The words of
the Constitution are few, the situations
IN which they must be applied are
myriad. In such circumstances it is
easy Tor the Judge to be misled into
reaolng his own fears and predictions
into the constitutional text. The avoid
ance OF this is what Frankfurter has SO
frequently referred to as judicial state
craft" This quality he admired most in
Mr. Justice Holmes, who, though him.
sen unsympathetic with much of the
legislation which came before him. vet
avoided the imposition of personal be-
lief on the policy of the Nation.
A Special Function,to Perform
The last few years have underscored
the OLD lesson that the Supreme Court
is a unique institution, that it has spe-
clal junction to perform, in the words of
Mr.. Frankfurter: ITO mediate between
the individual and government and to
mark the boundaries between State and
national action" The performance of
this function needs understanding of the
ways OF government, knowledge of the
structure OF society, and, above all. a
sense OF the necessity of judicial self
limitation.
An important phase of this element ~
the Holmes es-Brandeis- -Cardozo traditio,,
Is concern for the preservation of the
functions of the individual States of tho
Union. Nothing disturbed Mr.. Justice
Holmes more than the use of the d,,e
process clause of the Fourteenth Amend
ment by the Court ito prevent the max
ing OF social experiments -. in the in
sulated chambers afforded by the severa,
States" Mr.. Justice Brandeis stands as
one OF the foremost living advocates of
decentralization. Whether the new Justice
will follow him all the way on this mint
is matter Of conjecture. There can hs
no question Of his belief that. "the verv
notion OF our federalism calls for the fra
China'S 1913 divisions ara nou s,,,,