Preview of a Justice

A MAN writes - an event transpires - the work is reset to another theme. Felix Frankfurter scribbles about :Mr. Justice Holmes; an advance sheaf of the opinions of :U!r. Justice Frankfurter is sought within his pages. Thus circumstance interposes to transmute what was to have been a review of a book into a preview of a justice. To search his printed word for the judge-to-be is a revealing adventure. Apropos of Holmes, Frankfurter speaks for himself.On other occasions he has written about :Marshall, Taney and Waite; about Mr. Justice Brandeis and Mr. Justice Cardozo. In reciting what other jurists have done, he cannot escape what he as a jurist might do. In attention to legal events of yesterday, he addresses himself to issues now current. A gallery of affectionate portraits reveals less of judgments to come than would an exhibition from the judicial workshop; and we may anticipate less clearly the concretions which to Frankfurter will be the Constitution than we could with Holmes and with Cardozo. But the new justice lives in a democracy; he has freely chosen his gods. His pieces arc appreciations rather than critical appraisals; his selection and comment have remade his subjects; another choice of items and a different text would have created another Marshall, Holmes or Brande.is. In citation, comment, concurrence we catch the potential jurist within the writer. In respect to fellow members of his craft, Felix Frankfurter recites his faith

The Constitution -- Apropos of Crosskey

IT IS UNFAIR to say that William Crosskey\u27s volumes on the Constitution are timely-and not add more. They are timely, in view of the crisis of 1953, but they are also, so far as any political system can be enduring, timeless. The larger meaning which they carry is as pertinent today as to the crisis of 1937-when part of the instant book was presented as a paper on The Language of the Fathers read before the American Historical Association at its commemoration of the !50th year of operation of our government under the instrument of 1787. And the chapters here in review are as applicable in the constitutional crises which have been muddled through as they will be valuable in the constitutional crises which the passing decades will bring. It is inevitable that judges should substitute doctrines of their own for those which the Fathers set down in the original document. And such a rewriting of the law-even of the enduring principles of the higher law-is as necessary as it is inevitable. For the values which fix the objectives of public policy must change as the aspirations of men are broadened with the process of the suns ; and, even as ends endure, they must be newly instrumented amid the changing circumstances of a dynamic culture or they will be betrayed. With the fact that there is substitution we can have no legitimate quarrel. But we may object-vocally, indignantly, rightfully at the specific substitute, at the uncritical way in which it is contrived, at the violence with which it is thrust into place, at the severity of its break with the past. Here lies the real contribution that Professor Crosskey\u27s volumes will make. They do not, they cannot, arrest the development of the body of law; but, if they are read and heeded, they will serve to make constitutional change a more intelligent, critical, and rational process than ever it has been

Property -- According to Locke

IN the history of ideas the names of John Locke and George Sutherland stand somewhat apart. The one was the author of a celebrated chapter on property ; 1the other was the voice of the United States Supreme Court in the declaration of the invalidity of the minimum wage law; and nearly a quarter of a millenium separates the two intellectual events. The passing of the crowded years belies a causal connection between them; a likeness in thought, and even an occasional turn of expression, betokens more than a coincidence. A comparison of the documents indicates that had it not been for the philosopher, the jurist would not have written as he did. Yet the bond-unless it be through the imperfect medium of Blackstone-is not personal influence. For Locke was only more plausible than other writers of his outlook and generation in setting down what they in common believed, and Sutherland spoke much as other justices might have done on that historic occasion-and had spoken before. The connection lies rather in a continuing stream of thought, comprehending both utterances, in which the principles of Locke and the dicta of Mr. Justice Sutherland are alike symbols

Common Right, Due Process and Antitrust

The Sherman Act is the great charter of American industry. It is the elementary ordinance about which the pattern of the public control of business has been woven. It expresses the general rule, against which other statutes are elaboration, qualification, exception, accommodation to circumstance. Over the centuries this fabric of control has been woven. Public policy, the common law, usages of trade, statutes of the realm, opinion popular and unpopular, decrees of judges have all left their impress upon it. As industry has evolved, as necessities have become evident, as ways of thought have changed, the process has continued. The larger adjustment has been made by the legislature; the detail has been worked out by the courts. The law of industry is the cumulative ,result of countless expediencies shaped· to countless occasions, a corpus distilled from myriads of decisions about everyday matters. Along a score of fronts its heritage of abstraction meets concrete situations and in the impact each is remade by the other. Its trim and tangled actuality is a product rather of the years than of intent. As a design it reveals a sprawling trimness, an order at peace with confusion, a surge towards diverse objectives. It has a beauty, a relevancy, an intricacy, an arresting quality which no blue print come to life could ever possess. Its logic is the logic of things that grow

Judicial Tolerance of Farmers\u27 Cooperatives

A decade and a half of judicial tolerance has been ended by a decision of the United States Supreme Court unfavorable to farmers\u27 cooperative associations. A legislative act declaring the ginning of cotton to be a public business has been made to invalidate another act of the same legislature providing for the granting of permits to gin to cooperatives upon the petition of one hundred citizens and taxpayers of the community. It is held by the Court that since the business is public, it cannot be entered without a license; that in form and purpose the association is a corporation; and that the legislative prescription of different conditions to individuals and corporations as a requisite for licenses is a denial of the equal protection of the law guaranteed by the Fourteenth Amendment. The judgment of the Court is alike of immediate import and of future significance; it necessitates the revision of tactics now employed in the conduct of cooperative associations; it may well lead to basic changes in the prevailing form of the organization or seriously retard the advance of the movement. An understanding of the meaning and import of the rule of law implicit in the decision demands a brief account of the ends, the forms, and the legal status of the cooperative association

On Dating Mr. Justice Holmes

I T HAS taken a decade to elevate Mr. Justice Holmes from deity to mortality. When he left the bench in 1932, he was an Olympian who in judgment could do no wrong. His opinions were norms by which to measure the departures of his Court from the true path of the law. A distinguished scholar, now in apostolic succession, reviewed his career upon the bench with but a single word of mild criticism. And the specialist, inclined to find technical fault or confusion, was careful to be soft-spoken. Questions about the breadth of Holmes\u27 reach, the factual foundations of his views, the stuff of time and place out of which his opinions were fashioned were not raised. The neat phrase, the deft thrust, the quotable line were ultimates; and beauty of form was commuted into wisdom of utterance. For the Court, but especially in dissent, thus spake Holmes and the subject was closed. After ten years it is no longer so. As months pass, the immediate recedes, the body of opinions takes on perspective. The leads he proferred are no longer new; utterances once fresh bear the taint of the antique; later jurists have taken trails on which his feet were never set. The course of events, with its vision from after the facts, has applied its discount to his prophetic vision. And as a liberalism-which he was far from professing- changes character and elaborates a new program, the Holmes of the law reports is remade. His Court divides on an issue he never raised; he is rescued from an aloofness in the skies, becomes a creature of his own circumstance, takes a human role in the blindly moving affairs of his own age. The myth becomes the man

The Jurist\u27s Art

If jurists have the feelings of other men, Monday, the fifth of January, nineteen hundred and thirty-one, must have been a day of consequence in the life of Mr. Justice Brandeis. On that day he handed down the judgment of the United States Supreme Court in the O\u27Gorman case. The cause was a simple suit in contract; the result depended upon the validity of a New Jersey statute regulating the commissions to be paid by insurance companies to their agents for securing business. The more general question was the tolerance to be accorded to legislative price-fixing under the Fourteenth Amendment. And, as the fortunes of litigation broke, the issue came to be the intellectual procedure by which the constitutionality of the acts which make up the public control of business are to be determined. Upon that day the views of Brandeis became the opinion of the court, and a new chapter in judicial history began to be written