self-restraint.” He counseled judges to defer to Congress and the states, even where their actions seemed unwise; to be cautious in reading prohibitions into the Constitution; to respect history;to balance against the interest of the individual the interest of society. Justice Frankfurter warned that relying too much on judges to protect our freedoms sapped the strength of democracy by distracting attention from the political forum where unwise policies should be corrected. He felt the Court was often less equipped to deal with a problem than expert administrators or politicians closer to the public will. He was motivated also by a deep concern for the Supreme Court as an institution, a fear that it might destroy itself if it pressed its power too far. He and others remembered the 1930’s, when a self-willed Court tried to stand against history by stopping urgent economic and social measures and thus brought itself to the brink of drastic reform—reform which it avoided only by a political change of course. Not that Justice Frankfurter never found state or federal action unconstitutional. His vote to invalidate school segregation, his concern for the freedom of commerce from state barriers, and his careful scrutiny of police behavior and of state assistance to religion all testify to his acceptance of the Court’s role as enforcer of the Constitution. But right up to his retirement in 1962 his opinions preached judicial caution, self-examination and restraint. Since then his restraining role has been carried on by others, especially his friend Justice John Marshall Harlan, who in a notable speech in 1963 criticized what he called the “cosmic” view of the judicial function—the idea “that all deficiencies in our society which have failed of correction by other means should find a cure in the courts.”
Justice Black, by contrast, has emphasized the duty of judges to preserve individual liberty, and has argued that excessive deference to other branches of government amounts to abdication of that responsibility. In the Black view, the framers of the Constitution made the decision toprotect individuals from governmental repression, so a judge should not feel timid or self-conscious about doing so. Particularly obnoxious to Justice Black is the Frankfurter thesis that the Court must balance individual interests against the needs of government and uphold any reasonable governmental course of action. Justice Black argues that this weighing and balancing of what is reasonable leaves judges too much at large. He looks to history and finds definite rules in the Constitution—“absolutes,” as he has called them. His favorite example is the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.…” To Justice Black, as he has put it, “no law means
no law.”
Thus he has gone much farther in finding violations of the First Amendment than almost any other justice, past or present. He has argued, in dissent, that no government has the power to censor obscenity. And he has repeatedly dissented from decisions upholding federal action against the Communist party and its members, decisions in which the majority found the injury to free speech outbalanced by the need of society to protect itself against an international conspiracy.
Sometimes the debate between Justices Black and Frankfurter, or between the schools of thought they represent, has seemed abstract—more words than real ideas. No one, not even a Supreme Court justice, is always perfectly logical in applying his own theories, so it is dangerous to build too many expectations on stated judicial philosophies. Justice Frankfurter, for example, was willing when Justice Black was not to strike down wiretapping as unconstitutional and to forbid the use of state funds for parochial-school buses. But for purposes of the Gideon case the general
Justice Black, by contrast, has emphasized the duty of judges to preserve individual liberty, and has argued that excessive deference to other branches of government amounts to abdication of that responsibility. In the Black view, the framers of the Constitution made the decision toprotect individuals from governmental repression, so a judge should not feel timid or self-conscious about doing so. Particularly obnoxious to Justice Black is the Frankfurter thesis that the Court must balance individual interests against the needs of government and uphold any reasonable governmental course of action. Justice Black argues that this weighing and balancing of what is reasonable leaves judges too much at large. He looks to history and finds definite rules in the Constitution—“absolutes,” as he has called them. His favorite example is the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.…” To Justice Black, as he has put it, “no law means
no law.”
Thus he has gone much farther in finding violations of the First Amendment than almost any other justice, past or present. He has argued, in dissent, that no government has the power to censor obscenity. And he has repeatedly dissented from decisions upholding federal action against the Communist party and its members, decisions in which the majority found the injury to free speech outbalanced by the need of society to protect itself against an international conspiracy.
Sometimes the debate between Justices Black and Frankfurter, or between the schools of thought they represent, has seemed abstract—more words than real ideas. No one, not even a Supreme Court justice, is always perfectly logical in applying his own theories, so it is dangerous to build too many expectations on stated judicial philosophies. Justice Frankfurter, for example, was willing when Justice Black was not to strike down wiretapping as unconstitutional and to forbid the use of state funds for parochial-school buses. But for purposes of the Gideon case the general
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