Legal Commentary

Frankfurter [was] put on the Court by Roosevelt in 1939 back when judicial restraint was considered a liberal position. By the time Frankfurter left the Court in 1962, the Supreme Court's changing caseload had reversed the political valence of Frankfurter's model of the judicial role. Deference to the elected branches had become a conservative position rather than a liberal one. Would Jack have instructed Frankfurter that "times have changed," and that he needed to abandon his deferential approach? If so, why -- because Frankfurter was put on the bench to be a liberal, because new social movements were afoot, or both?

Second, as I have tried to explain in agonizing detail, living constitutionalism is probably not best understood as a theory advising judges to "keep up with the times" or "adjust to changing conditions." There are usually many ways to do that, and they point in opposite directions. Nor is it best understood as a theory directed to judges and demanding that judges pay attention to or follow the demands of social movements or political mobilizations because there are usually multiple mobilizations often pushing on different sides of a question. Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time. Of course, judges may agree with particular political or social movements because of who they are-- which is why they may have been appointed in the first place-- and because they live in the same society as everyone else and therefore respond to changes in constitutional culture like everyone else. But that's not the same thing as saying that they should agree with one social movement or another. Again, this confuses a causal account of and a normative justification of systemic change with a normative obligation of a particular individual to behave in a particular way within the system.

So I don't see how my account of constitutional change gives Justice Frankfurter much advice at all other than to decide the cases consistent with the available tools of legal culture. I could certainly offer Justice Frankfurter substantive legal advice about how to decide particular individual cases. For example, I could explain why I think that the majority view in West Virginia State Board of Education v. Barnette is a better account of the purposes behind the First Amendment than the account he gives in the dissent. But I wouldn't tell him that he had to decide Barnette a particular way because he was required to decide the liberal way or the conservative way, or the way that Franklin Roosevelt who appointed him would have wanted him to decide it.

Full post as published by Balkinization on March 31, 2008 (boomark / email).