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The Justice Who Wanted the Supreme Court to Get Out of the Way

Felix Frankfurter warned that politicians, not the courts, should make policy.


An unlikely figure from the Supreme Court’s past loomed over the justices’ controversial decisions in June: In Dobbs v. Jackson Women’s Health, which overturned the right to abortion articulated in Roe v. Wade, at least four of the court’s five opinions vied for Felix Frankfurter’s legacy. Justice Samuel Alito’s majority and the concurrence by Justice Brett Kavanaugh harked back to Frankfurter’s fierce critique of judicial activism. Frankfurter believed legislatures, not judges, should enshrine new rights. Meanwhile, Chief Justice John Roberts (whose concurrence cited him by name) and the liberal dissenters took up the idea of judicial minimalism Frankfurter had helped create. It wasn’t the place of the court, Frankfurter believed, to make unnecessary alterations in existing law.

The resurgence of Frankfurter is one of the more improbable developments in U.S. law today. By the end of his tenure on the U.S. Supreme Court in 1962, the justice’s influence had reached a low point. Frankfurter seemed to have accomplished more in his earlier career as a progressive lawyer and as a New Deal insider than as a Supreme Court justice. In the bruising fight between reformers and the conservative judiciary a century ago, he had emerged as an indefatigable defender of progressive causes, labor unions, and civil rights. In the New Deal, he had served as an adviser to President Franklin Roosevelt, and as the hub in a network of allies and students who staffed the government’s new administrative agencies. In 1939, Roosevelt nominated Frankfurter to a seat on the Supreme Court, where he served long enough to age into a cranky conservativism. In his last two decades, he held less sway with each successive White House. His clout dwindled on the court, too. His final years found him issuing intemperate dissents from the holdings of his younger liberal colleagues.

Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment
by Brad Snyder
W.W. Norton & Company, 992 pp., $45.00

After Frankfurter’s death in 1965, biographers showed little interest in writing about his life. Would-be chroniclers came to dislike their subject as they researched him. Frankfurter was ambitious to a fault with strains of narcissism. He flattered superiors and exhibited venomous contempt for those who disagreed with him. A further problem was the sheer volume of material. Frankfurter wrote a dozen letters a day or more. He wrote hundreds of articles and drafted countless briefs, reports, and books. His vast papers in the archives at Harvard Law School and the Library of Congress amount to 500 boxes of material containing more than 110,000 items. To make matters worse, some of the most important files in Frankfurter’s archives were stolen from the Library of Congress in the early 1970s, and their whereabouts remain unknown.

Brad Snyder’s new book, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, is the first work to grapple with his life and legacy in full. Snyder, a law professor and historian at Georgetown, presents Frankfurter as an antidote to a court that has struck down campaign finance laws, crippled the Voting Rights Act, canceled gun control legislation, undermined the regulatory state, and removed the right to abortion. This is a degree of power, Snyder points out, that Frankfurter believed the court should never wield. And in Frankfurter’s belief that rights should not be left to the court, but established through democratic processes, Snyder sees a progressive path beyond today’s conservative court.

Snyder is not alone in finding hope for those on the political left of center in Frankfurter’s approach. Academics like my left-leaning Yale colleague Samuel Moyn and Harvard’s liberal Cass Sunstein have embraced the justice’s commitment to judicial restraint for the era of conservative courts. So have leading Democratic Party politicians, for whom Frankfurter is the judge who was appropriately skeptical of the power of judges. Yet the conservative justices on the court who claim him as one of their own offer a different figure: one who laid the groundwork for a critique of liberal judicial overreach that the conservative legal movement has spent the past half-century pursuing. Struggle for the meaning of Frankfurter’s legacy, it seems, has quietly become a contest over the future of the court.

Born into a middle-class Jewish family in Vienna in 1882, Frankfurter arrived in New York at 11 years old. His father, Leopold, was a traveling salesman. Neither Felix nor any of his four siblings spoke a word of English. But he learned quickly. His favorite teacher in the city’s public schools instructed his classmates not to speak to him in his native German, and before long, he was reading English-language newspapers obsessively in the Cooper Union reading room. In 1897, he entered the City College of New York, and in the fall of 1903, he enrolled at Harvard Law School, a diminutive bundle of intellectual and personal ambition. He made law review after his first year and graduated first in his class. He would later say that he had a “quasi-religious feeling” about Harvard Law.

At 24 years old, he was hired by Henry Stimson, the new United States attorney in Manhattan. President Theodore Roosevelt had charged Stimson with rebuilding the U.S. attorney’s office for the Southern District of New York as an elite, professional team of trustbusters. Even before Frankfurter’s new job had officially begun, Stimson reported to the attorney general that the young Frankfurter’s work was “conspicuously good.” He tried high-profile criminal cases, including the prosecution of the Sugar Trust for defrauding the United States of customs duties.

The young Jewish Frankfurter fell in love with the uber WASP Stimson and with the ideal of expert professional government service for which he stood. In 1911, when Stimson moved from Manhattan to Washington to become the secretary of war, he took Frankfurter with him. The capital quickly became the younger man’s social and intellectual playground. He met Louis Brandeis, then the nation’s leading progressive lawyer and a fellow Harvard Law graduate, Class of 1878. He lunched with Oliver Wendell Holmes Jr. (Class of 1866), who was then a decade into his long service on the Supreme Court. These senior jurists became mentors to the new government lawyer. They dined regularly at Frankfurter’s lodgings in “The House of Truth,” a home on D.C.’s Nineteenth Street in which Frankfurter and a rotating cast of residents (including the journalist Walter Lippmann, who co-founded The New Republic in 1914) debated the issues of the day.

From early on, Frankfurter identified active government as the solution to the social problems of the industrializing age. Courts, by contrast, loomed as the great threat. In 1905, when Frankfurter was a second-year law student, the Supreme Court struck down a New York law providing that workers in bakeries could not work more than 10 hours a day. In Lochner v. New York, five justices said the law was an unconstitutional interference with bakers’ individual right to freedom of contract. Frankfurter, who had worked briefly as a tenement inspector and had seen up close the squalor and indignity of modern industrial life, was outraged. He understood that the decision would allow employers to force unconscionably long days on workers with the least negotiating power.

In 1914, Frankfurter joined the faculty of Harvard Law School, but he remained involved in the reform world of Washington. Three years later, with the American entry into World War I, he returned to the War Department, where his work investigating labor unrest in key wartime industries took him to places like the forbidding copper mines of Arizona. President Woodrow Wilson appointed Frankfurter to chair the War Labor Policies Board. Frankfurter had little sympathy for radical labor factions, but he was sharply critical of the crude and often brutal conduct of employers toward their employees and the unions, as well as the arbitrary behavior of the government officials who supported them. Frankfurter drew critical attention to outrages such as the deportation of more than 1,000 striking miners from Bisbee, Arizona, who were dumped at the southern border of New Mexico with neither food nor water.

Above all, Frankfurter advocated the empowerment of rational state agencies and government experts to resolve social problems. Judges, he observed, were not equipped to resolve the social problems at issue in the cases they decided. What was the right mix of labor conditions, wages, and hours in the mines at Bisbee? The cloistered institutional position of the judiciary made it nearly impossible for jurists to know. Administrative agencies and commissions of experts, by contrast, could take notice of the facts and conditions on the ground and implement sensible policy. In this, Frankfurter drew heavily on his housemate Lippmann, who argued that modern society had grown too complex for nonexperts to manage. Laypeople, Lippmann contended, coped with the complexity of the modern world by crude stereotypes. Frankfurter applied the same idea to judges. When the Supreme Court struck down a minimum wage law for women workers in 1923 in a case called Adkins v. Children’s Hospital, Frankfurter complained that (as Snyder puts it) the justices had “outdated pictures in their heads.” Like Lippmann’s ordinary citizens, judges rarely know enough about the world to govern it effectively.

Frankfurter’s long relationship with Franklin Roosevelt, and Frankfurter’s early years on the Supreme Court, form the heart of the left-liberal case for resurrecting his legacy today. In the 1932 presidential race, Frankfurter served as an intimate if unofficial adviser to the Roosevelt campaign, arranging speeches and offering suggestions. When the newly elected FDR offered him the post of solicitor general, Frankfurter turned down the job—not because he wanted to cede authority to others, but because any one role in the government threatened to tie him down.

As Snyder persuasively puts it, Frankfurter stayed out of the administration so as to maximize his influence in it. Together with his most talented students—men like James Landis, soon to be a leading figure in the New Deal and later a boy-wonder dean at Harvard—Frankfurter drafted the Securities Act of 1933, regulating Wall Street. He did not stand for any particular approach to regulating the modern economy. In the fierce intra–New Deal ideological battle between Brain Trust corporatists like Rexford Tugwell and Adolf Berle, on the one hand, and trustbusters in the mode of Brandeis, on the other, Frankfurter played all sides. He placed his former students in key positions at Treasury, in the Labor Department, in the Interior Department, and in the Justice Department and the Solicitor General’s office. Like their teacher, they were energetic figures in the construction and maintenance of new modern state institutions. One contemporary critic derisively called them Frankfurter’s “happy hot dogs.” By 1939, Time magazine identified no fewer than 125 “hot dogs” working in Washington.

An obstructionist Supreme Court, however, stood athwart the New Deal’s path. In May 1935, the court struck down key pieces of FDR’s early program, including the National Industrial Recovery Act, and blocked the authority of the president to remove executive branch officials. Throughout the summer, Frankfurter helped the president construct a second round of reform legislation that might withstand the court’s sledgehammer. As a weekly visitor to the White House, Frankfurter shaped the National Labor Relations Act, the Social Security Act, the Public Utilities Act, and the Guffey Coal Act.

Better legislation alone could not save the New Deal from a hostile Supreme Court. Frankfurter also played a carefully concealed, behind-the-scenes role in Roosevelt’s famous court-packing plan in the spring of 1937. In the wake of a massive electoral mandate in the 1936 elections, with key parts of his second New Deal pending at the court, Roosevelt proposed to appoint one new justice for every member of the court over 70 years old. The plan would have allowed the president to nominate up to six new justices and thereby break the legal logjam blocking progressive legislation. The proposal was controversial; it seemed to threaten the independence of the judiciary from the other two branches of government. Frankfurter was silent or skeptical about it in public. But in private he offered FDR sympathetic words and gave him crucial language and ideas for his campaign. When the president used one of his radio fireside chats to tell the nation, “We must take action to save the Constitution from the Court and the Court from itself,” he was repeating a line Frankfurter had written.

In one view, the court-packing plan, which ultimately failed in the Congress, was a strategic error. Unbeknownst to the administration, Justice Owen Roberts had already cast the key vote in the court’s private conference to uphold a Washington state minimum wage law; court-packing would not be necessary to sustain at least some of the New Deal’s reforms. But in other respects, the New Deal’s battle with the court was a great success. Within months, the court switched not only on the minimum wage but on the entire package of New Deal reforms. In fast succession, the justices upheld the National Labor Relations Act and the Social Security Act. Roosevelt got his legislative agenda through. He had also made the case, with Frankfurter’s help, for a modern Constitution, one that adapted and evolved over time to meet the needs of society. The titanic struggle between the court and the New Deal had ended decisively in the New Deal’s favor.

Over the next four years, eight seats on the court became open, giving Roosevelt the chance to remake its membership, without court packing. Frankfurter was among the new justices. Roosevelt nominated the Harvard professor to what the president called the “scholar’s seat” on the court, which had been held by the thoughtful Benjamin Cardozo and by Holmes before him. But Frankfurter was, as his friend the political theorist Isaiah Berlin once observed, “a man of influence” more than an “academic figure.” Amid concerns that he was too deeply involved in progressive politics to be an impartial judge, Frankfurter’s confirmation became (in Snyder’s apt words) “a public spectacle unlike any the country had ever seen.” Opponents accused him of disloyalty and of associating with communists and radicals at the ACLU. Critics attacked him in the press as a foreigner and a Jew. Frankfurter was forced to testify at confirmation hearings, becoming only the second nominee in history to do so. In the end, after three days of hearings, the Judiciary Committee recommended him unanimously. The Senate confirmed him by voice vote without objection.

Frankfurter did not allow his new position to slow his networking and backroom influence peddling. Snyder effectively conveys the startling extent of Frankfurter’s continued role in Roosevelt’s White House, including on matters that sometimes came before the court. He advised and reassured Roosevelt on the questionable legality of the Lend-Lease Program in early 1941. He brokered the reappointment of his old mentor, Henry Stimson, to serve once again as secretary of war. Frankfurter worked with labor leader Sidney Hillman to organize wartime labor policy. He helped Stimson design the military commission that controversially tried and convicted eight German saboteurs who landed on beaches in Long Island and Florida in 1942. Frankfurter did not recuse himself when the saboteurs’ case reached the court weeks later.

Yet even as Frankfurter wielded new authority, fissures emerged in the foundations of his political power. He did not get along with his fellow Roosevelt appointees, many of whom bridled at his pedantic and domineering style. The temperament that had worked so well with students backfired more often than not. Colleagues on the court, like former U.S. Senator Hugo Black and presidential aspirant William O. Douglas, did not take kindly to Frankfurter’s didacticism. More than once, acrimony on the court made its way into the press. Frankfurter was often the source of leaks, though he was not alone among the justices, several of whom selectively leaked information on their colleagues’ behind-the-scenes conduct.

Snyder’s central contention is that Frankfurter’s approach to judging emphasized democracy over the authority of unelected judges. Snyder offers a sequence of famous wartime cases to illustrate the point. In Minersville School District v. Gobitis, decided in 1940, Jehovah’s Witnesses challenged a requirement that children in public school salute the flag. The Jehovah’s Witnesses believed that the Bible forbade such salutes. Frankfurter wrote the opinion for the court upholding the salute mandate as a reasonable means for the attainment of national unity and security in wartime. “The guardianship of deeply cherished liberties,” he explained, was committed “to the legislature no less than to courts”; leaving such questions “in the forum of public opinion and before legislative assemblies,” he continued, “serves to vindicate the self-confidence of a free people.” Three years later, in West Virginia v. Barnette, a nearly identical case also brought by Jehovah’s Witnesses, the court reversed course. But Frankfurter dissented, doubling down on his Gobitis position. “As a member of this Court,” he wrote, “I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.”

Snyder insists that we should sympathize with Frankfurter’s dissent. “Appeal lies not to the courts,” the justice wrote in Barnette, “but to the ballot and to the processes of democratic government.” Anything else, he contended, is the pursuit of liberal goals by a kind of shortcut: liberalism “on the cheap,” as Frankfurter put it to a former clerk in 1962.

But Frankfurter’s account of democracy and democracy-promotion is too thin to support Snyder’s defense. Some limits on the state’s ability to manage and compel public opinion are indispensable to the democratic control of the people over the state. Majorities are the lifeblood of democracy. But paradoxically they also have the power to shut democracy down. The court’s deference to the sovereign will of the people in Gobitis, for example, had unleashed a torrent of abuse and violence against members of the Jehovah’s Witnesses. Gobitis had undermined democracy, not served it.

Frankfurter sided with the state in other dubious wartime cases, too. In Korematsu v. United States, an American citizen challenged the legality of the Roosevelt administration’s ill-advised internment program for people of Japanese ancestry living on the West Coast. Frankfurter sided squarely with the majority of the court in upholding internment. The court’s opinion, written by fellow Roosevelt appointee Hugo Black, embraced Frankfurterian themes: “the properly constituted military authorities” asserted that internment was a “military imperative,” and the court could not say otherwise. Snyder contends that, at the time of the decision, few understood that the internees posed little security threat. But J. Edgar Hoover’s Federal Bureau of Investigation had opposed internment for precisely this reason. Internment was not driven by the national security experts to whom Frankfurter was so insistent on deferring, but by the opportunism of ambitious California politicians like future Chief Justice Earl Warren. The program was a politically motivated scapegoating operation from the beginning.

Frankfurter’s wartime decisions were not so much a sign of his democratic credentials as they were a signal of his patriotism and his adherence to a distinctive strand of early–twentieth-century expert-driven progressivism. Gobitis had led the justice to regale his colleagues on the court with the story of his own immigration and his devotion to his adopted country. His Barnette dissent and his vote in Korematsu likewise arose out of his ferocious commitment to his adopted country in wartime.

Frankfurter, it turns out, was less a democrat than an admirer of expertise and a devotee of elite institutions, which he believed could navigate a world that the mass of the people could not. (Harvard Law School, he mused late in his life, was “the most democratic institution I know anything about.”) Frankfurter’s sensibilities were refined. He drank good wines, preferred the best suits, and wore Oxford pince-nez spectacles. His close friend, the British socialist Harold Laski, called him “an aristocrat with an infinite sense of pity.” He had admirable caution about the institutional capacities of judges and courts. But his caution was in no small part dedicated to preserving a particular kind of role for the courts, which he thought would be impossible if courts got back in the Lochner-era business of making policy on the basis of the justices’ own views.

Episodes like the Jehovah’s Witnesses cases left Frankfurter increasingly isolated on the court. But he managed one last great balancing act in Brown v. Board of Education, the 1954 decision striking down formal segregation in public schools. Frankfurter had special interest in the case. A quarter-century earlier, he had helped set it in motion by recommending to the NAACP one of his favorite students, Nathan Margold, to design a strategy for challenging segregated schooling in the courts. When five consolidated primary school cases reached the court in 1952, Frankfurter once again exercised influence over the case behind the scenes. Through a back channel with his former law clerk Phil Elman, now a lawyer in the Solicitor General’s office, the justice persuaded the Eisenhower administration to express support for gradual desegregation. Along the way, Frankfurter almost certainly shared the private leanings of his fellow justices with the government litigators.

Brown posed a challenge to Frankfurter’s policy of judicial deference to the elected branches. Why not defer to the government in the schools cases? If deference to democratic decisions had been the proper approach with flag salutes and Japanese internment, why was Jim Crow different? State legislatures and elected school boards in the South had erected systems of separate schools for decades. What’s more, Frankfurter’s law clerk Alexander Bickel found that the 39th Congress, which had passed the Fourteenth Amendment, had not originally expected the provision to interfere with segregated public schools, which had existed at the time in the capital and around the country.

Frankfurter’s explanation, drawing on his clerk Bickel’s research, was that the history of the Fourteenth Amendment was “inconclusive.” While the framers of the amendment may not have expected it to desegregate schools, its broad language (“equal protection of the laws”) licensed judges to update its meaning for new circumstances. Nearly two decades earlier, Frankfurter’s defense of Roosevelt’s court-packing plan had produced the story of a Constitution that changes and adapts over time. Frankfurter now championed the idea anew in the school desegregation context. The Constitution, he insisted, was a broad outline for American life. It was, as others called it, a living Constitution, designed to grow over time.

Much of Frankfurter’s work on the Brown decision focused not on defending the rights of Black Americans, nor on promoting democracy, but on protecting the court and its institutional reputation in the wake of the court’s blockbuster ruling. In a case known as Brown II, Frankfurter worked closely with the new chief justice, Earl Warren. Warren and Frankfurter crafted a gradualist remedy that would accommodate the resistance of the white South to the court’s Brown order. Drawing on language first used by his hero Oliver Wendell Holmes, Frankfurter proposed that the decision in Brown I be implemented “with all deliberate speed.” No one quite knew what the phrase meant, which was one of its virtues. Ominously for the plaintiffs in Brown, however, Holmes had used the phrase to explain that states ordinarily move slowly in response to litigation. Warren took up the words and included them in the court’s Brown II decision.

Snyder contends that Frankfurter “could not have imagined” that Holmes’s old dictum would become “a touchstone for southern delay.” But this is too easy on the justice. From the very beginning of the dubious conversations with his former clerk Elman in the Solicitor General’s office, Frankfurter’s strategy had been to try to make the white South more amenable to desegregation over time. Snyder himself describes Frankfurter’s goal in the case as “delay, delay, delay.”

Snyder contends that the justice was “content to play the long game.” But the long strategy played into the hands of massive resistance and white supremacy. Allowing white-dominated state political bodies time to process Brown gave a pass to some of the most noxious features of Jim Crow. In 1955, the court was presented with a challenge to Virginia’s ban on interracial marriages. At Frankfurter’s insistence, the court let the law—titled the Racial Integrity Act—stand unaltered.

After Brown and Brown II, Frankfurter’s role on the court grew steadily more marginal. Warren soon tired of his colleague’s efforts to influence and cajole. As Snyder effectively shows, much of the problem was that the justice from Harvard Law School was less and less tightly connected to the changing Democratic Party coalition. The constitutional battle of the New Deal had been won, at least for the time being. The administrative state had been secured. And as new issues about civil rights and civil liberties arose, Frankfurter found himself increasingly out of step.

Detached from a political coalition, he angered erstwhile allies. Most strikingly for our own post–Roe v. Wade world, Frankfurter sustained a Connecticut statute banning contraceptives. A married woman who had given birth to children with fatal congenital abnormalities in three consecutive pregnancies sued together with her husband challenging the contraceptives law as unconstitutional. Frankfurter held that the couple lacked standing to sue because the state had not yet enforced its law against them. Justice John Marshall Harlan and Justice Douglas dissented, the former citing “privacy in the conduct of the most intimate concerns of an individual’s personal life.” Harlan’s right to privacy for contraceptives became the law of the land in 1965 in Griswold v. Connecticut, which eight years later supported the right to privacy theory inRoe.

Frankfurter’s final opinion came in dissent in the landmark case of Baker v. Carr, which challenged Tennessee’s legislative districts as unconstitutional. The state had not redistricted for more than a half a century. Its districts were badly malapportioned, such that rural voters had vastly more legislative authority than urban voters. Voters in the disempowered districts contended that a judicial solution was required. Electoral reform had been cut off by the very practice under challenge. Democracy, in other words, necessitated some kind of outside management of the political process.

Frankfurter did not agree. In 1946, in a case called Colegrove v. Green, he had written for the court that judges had no business engaging in the messy practice of districting. “Courts,” he had insisted, “ought not to enter this political thicket.” Districting would inevitably favor one side or another. How much malapportionment, Frankfurter asked, was too much? The Constitution did not say, and neither, he believed, should the court. But a decade and a half later, as Frankfurter’s health began to fade, a new generation of justices rejected his Colegrove opinion. In Baker v. Carr, Justice William Brennan wrote for six justices who set aside Frankfurter’s cautions and ruled that political malapportionment claims were subject to judicial review. Frankfurter castigated the majority for invoking a “destructively novel judicial power” and warned that only “complete detachment” from politics could sustain the court’s fragile institutional legitimacy.

Frankfurter’s angry dissent in Baker v. Carr is a grave liability for Snyder’s central thesis. Refusing to check legislative gerrymandering was not a democracy-promoting position at all. Snyder channels Frankfurter to warn that a “Supreme Court on judicial steroids, embroiled in electoral and other political disputes,” threatens to displace the people from their rightful place in managing their problems. But Frankfurter’s dissent invited the legislative fox to guard its own districting henhouse. To be sure, a Supreme Court with its own biases and its own politics is no perfect solution. Sometimes, however, judicial deference is merely judicial abdication.

When Roe was decided in 1973, eight years after Frankfurter’s death, Frankfurter’s disciples lined up against the decision, helping to produce central themes in what became the conservative critique of the decision. Two decades earlier, Frankfurter’s friend, the jurist Learned Hand, had attacked Brown v. Board as indistinguishable from Lochner. Now Frankfurter’s law clerk Alexander Bickel critiqued Roe on the same grounds.

It is unclear whether political movements in the U.S. constitutional model can successfully champion the model of deference at all. Justices tend to lose their taste for deference once they are in the majority. The New Deal’s coalition and the justices it produced passed quickly from Frankfurterian deference to Warren court activism. Today, the conservative legal movement that began by turning Frankfurter’s critique of Lochner against cases like Brown and Roe has abandoned deference in favor of a new aggressive role of its own. One day before adopting a Frankfurterian emphasis on legislative assemblies to overturn Roe, the court struck down New York state’s duly enacted licensing law for carrying concealed handguns in a case called New York State Rifle & Pistol Association v. Bruen.

The dissenters in Dobbs v. Jackson Women’s Health observed this contradiction. But, in one crucial way, the conjuncture of Dobbs and Bruen makes perfect sense: Juridical positions must reflect political coalitions if they are to lodge themselves durably in the law of the land. Frankfurter’s close connection to FDR’s New Deal illustrates the point. Today, guns and abortion are central issues for the political coalition from which six of today’s nine justices come. And as Frankfurter discovered in his old age, such coalitions have no intrinsic investment in juridical positions on the proper role of the court.

In this respect, Frankfurter was farsighted. “There will come a time,” he warned the liberals of the Warren court, “when there is a very different majority.” Conservatives, too, could wield the power of judicial review to carry out an aggressive political agenda. Frankfurter knew this from experience; he had come of age when conservative judges had exercised power with reckless abandon. But the point is more fragile than Frankfurter thought. Jurists of one political persuasion will leave aside the tool of judicial review only if they can be sure that future jurists of other political persuasions will show similar restraint when they control the courts. There is no mechanism for guaranteeing such future cooperation. It is no surprise that the conservatives on today’s court show no sign of holding back.

Critics of the judicial power in U.S. constitutional law face a giant prisoner’s dilemma. The court’s authority lies, like a loaded weapon, ready to be used by the justices who pick it up first.