Justice Franfurter & Judicial Restraint The purpose of this research is t

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

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versight and regulation. It was this frustration that led to FDR's court-packing scheme, which was predicated of an attempt to force retirement of judges after age 70 but which actually was an attempt by FDR to force off the Supreme Court older conservative justices. Frankfurter advised FDR behind the scenes throughout the period of the attempt to do so: "Although he disagreed with the substance of the plan, his loyalty was such that he was wiling to overlook his objections and take part in the campaign" (Hirsch, 1981, p. 121). The motives for Frankfurter's participation were political loyalty and his adherence to the legacy of Wilsonian progressivism as opposed to what he saw as the activist conservatism of the majority Supreme Court FDR was facing in its pattern of striking down progressive federal legislation. That was the meaning conveyed when he wrote that "wholesome governmental programs had been frustrated in the past . . . 'not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution" (Parrish, quoting Frankfurter, 1982, p. 271). It was this rationale as well that he described in a letter to hi
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Approximate Word count = 7046
Approximate Pages = 28 (250 words per page)