Head and Heart in the Court
KONVITZ, MILTON
Head and Heart in the Court JUSTICES BLACK AND FRANKFURTER By Wallace Mendelson Chicago. 151 pp. $4.00. Reviewed by MILTON KONVITZ Professor of industrial and labor relations, Cornell...
...Justice Black is an idealist...
...Except in the four that were decided unanimously, Black voted consistently "prolabor," while Frankfurter upheld the workers' claims in 32 cases...
...It belongs with The People and the Court by Charles L. Black Jr., except that the latter was limited to the opposing constitutional philosophies of the two justices and left out all considerations of personality, including their names...
...His wisdom is the wisdom of experience...
...But the picture is not that simple...
...His characteristic tools are the great, unquestioned verities...
...During one period, Black voted to sustain the NLRB in 20 out of 21 instances, the ICC in two of 15, while Frankfurter voted for the NLRB in 16 of 21 cases and the ICC in 13 of 16...
...Frankfurter seemingly saw the same language in the light of [the] compromise which Congress had struck between the hopes of FLSA's friends and the fears of its opponents...
...His forte is reason, not hallowed bias or noble sentiment...
...The contrast is sharpened as Mendelson looks at the Supreme Court cases involving the Interstate Commerce Commission (ICC) and the National Labor Relations Board (NLRB...
...Mendelson's evaluation of the two Court members is clear from the following: "For Mr...
...it is also the expression of specific men whose judgments are formed— at least in part—by their values...
...So too, states Mendelson, in other cases where the contest was between a worker and an employer: Black was "generous with discretionary review at the request of injured workmen," but "a bit miserly with appeals as of right involving legal issues presented by businessmen...
...His idealism "is deeply colored (some might say compromised) by sympathy for what the New Deal called 'the forgotten man.' " Frankfurter, at the opposite pole, "is a pragmatist...
...In a later period, Black favored the ICC in two out of 10 cases and the NLRB in only eight out of 18...
...In short, Black was on the side of the worker, the consumer and "the forlorn criminal-case defendant...
...But if the Constitution is what the judges say it is, then judicial review is not only the operation of abstract legal philosophy...
...The niceties of the skilled technician are not for him...
...yet it was he who wrote the Court's opinion in the Lincoln Federal case (1949), in which the so-called Right-to-Work laws were upheld as constitutional...
...He draws no subtle distinctions...
...Thus the record shows that Black has at times disregarded "the plight of the 'needy' " and the commands of "absolute" constitutional guaranties, and that Frankfurter has looked beyond the "neutral" law to justice...
...The Taft-Hartley Act had intervened...
...Mendelson implies that Black almost always voted in favor of unions...
...Black apparently read FLSA in the spirit of its sponsors' aspirations...
...Black's book was criticized for what it omitted...
...On the other hand, despite Frankfurter's deference to legislative enactments, his leaning toward "regularity and uniformity" and his belief that "a democracy need not rely on the courts to save it from its own unwisdom," he voted with the other eight Justices to overrule Plessy vs...
...Justice Black, plainly the essence of law is Justice—as he sees it...
...Frankfurter "accepts our compromises with eternity as the essence of the law—and leaves us free to grow with experience...
...In a word, Mr...
...Ferguson (1896...
...His target is the heart, not the mind...
...After a painstaking study of Supreme Court opinions, Mendelson describes Black as a man who "understands the power of the elemental...
...Mendelson's is being criticized for what it does not leave out...
...Justice Frankfurter is regularity and uniformity...
...He insists that we live up to our highest aspirations—and when we fail to do so he would save us from ourselves...
...In the Hughes case (1950), he joined the rest of the Court in upholding an injunction on the picketing of a place of business conducted to compel employment of Negroes in proportion to the Negro customers...
...And he sees it with benign sensitivity to the plight of the 'needy.' In contrast, the essence of law for Mr...
...Reviewed by MILTON KONVITZ Professor of industrial and labor relations, Cornell University Wallace Mendelson's interesting study, subtitled Conflict in the Court, contrasts the judicial temperaments and constitutional philosophies of Justices Hugo L. Black and Felix Frankfurter...
...Black is not all heart and Frankfurter is not all head...
...If the Justice's attitude in the one area remained constant, in the other it seems to have changed...
...to learn the lessons that come with self-inflicted wounds...
...This decision declared unconstitutional the school segregation statutes of 17 states and an act of Congress which compelled segregated schools in the District of Columbia...
...He has little confidence in the capacity of judges to sit in judgment upon the community, to erase its errors—if such they be...
...And it was Black who wrote the Court's opinion in Giboney (1949), in which an injunction on peaceful picketing was upheld when the purpose of the picketing was found to be in furtherance of restraint of trade, although clearly the ultimate objective of the union was to better wages and working conditions...
...Mendelson examined the Supreme Court decisions in the 59 cases from 1941-59 that involved the Fair Labor Standards Act (FLSA...
...His wisdom is the wisdom of the great idea...
...He counts more on man's ability to learn than to be taught...
Vol. 44 • November 1961 • No. 37
