The purpose of this research is to examine the philosophy of judicial restraint of Justice Felix Frankfurter. The plan of the research will be to set forth the context in which Frankfurter's judicial philosophy emerged, and then to discuss the manner in which it developed and was applied during his career.
In order to appreciate how Frankfurter's philosophy of judicial self-restraint was enacted, one may profitably suggest a working definition of the concept as Frankfurter understood it. Kurland's examination and excerpting of Frankfurter's opinions suggests a frame of reference of the notion of judicial restraint that both describes the intrinsic features of the concept and positions such features with respect to Frankfurter's career.
The hallmark of that lonely crowd of jurists dedicated to "self-restraint," led by Holmes, Learned Hand, Brandeis, and Frankfurter, was their reluctance to exercise the judicial power to invalidate legislation. There are many aspects underlying this doctrine of self-abnegation as witnessed by these great judges. One is history and the obligation that constitutionalism imposes to adhere to the essential meaning put in the document by its framers. A second is the intrinsically undemocratic nature of the Supreme Court. A third is a corollary to the second, an abiding respect for the judgments of those branches of the government that are elected representatives of their constituents. A fourth is the recognition that judicial error at this level is more difficult of correction than other forms of judicial action. A fifth is respect for the judgments of earlier courts. But the essential feature of judicial restraint that has gained most attention and aroused the greatest doubts--probably because few men are themselves big enough to abide by its command--is the notion of rejection of personal preference. Over time, Frankfurter turned his judicial pen again and again to a treatment of each of these facto...