Chapter

Frankfurters Failure: The Rise and Decline of Judicial Self-Restraint 1949–1962

in The Most Activist Supreme Court in History

Published by University of Chicago Press

Published in print October 2004 | ISBN: 9780226428840
Published online March 2013 | e-ISBN: 9780226428864 | DOI: http://dx.doi.org/10.7208/chicago/9780226428864.003.0003
Frankfurters Failure: The Rise and Decline of Judicial Self-Restraint 1949–1962

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There were continued signs that the modern Court might follow the lead of Stone and Black in adopting a distinctive new activist role, even as Frankfurter's doctrine of restraint became dominant. The core principle of American constitutional democracy Justice Frankfurter was majoritarianism and the chief danger was judicial tyranny. For him, the essence of the judicial function was the exercise of judgment in balancing competing values. The Warren Court responded to the New Deal constitutional revolution not by abandoning judicial power but by articulating a new set of constitutionally protected rights and liberties. This choice rendered Frankfurter's vision of judicial deference a relic of the past; the Court might someday recover it, but that was unlikely for the foreseeable future.

Keywords: Frankfurter; American constitutional democracy; Warren Court; New Deal; judicial deference

Chapter.  11882 words. 

Subjects: US Politics

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