James Simon, author of an excellent biography of William O. Douglas, has just produced a masterpiece of biography and Supreme Court analysis. In The Antagonists Simon uses the conflict between two erstwhile friends as a metaphor for the larger philosophical debate on the role of the Supreme Court: judicial restraint v. judicial activism. Both entered the court with outstanding civil libertarian records. Frankfurter, the academic, having taught at Harvard for many years, and having been adviser to statesmen and Presidents, once on the court became a passionate advocate of judicial restraint. Let the legislature reform society. Ironically he firmly believed in the law as a mechanism to change society. His plea to young lawyers: "We make of the clever pleaders, but not lawyers, if they fail to glimpse the glorious vision of the law, not as a harsh Procrustean bed into which all persons and all societies must inexorably be fitted, but as a vital agency for human betterment."

Black, a product of a rather poor environment and former member of the KKK, arrived on the bench and proceeded to challenge most of the accepted judicial doctrines of the 20th century. He firmly believed that the due process clause of the 14th amendment, which had been used by previous conservative courts to impose their personally held economic beliefs on elected representatives, was intended to force the Bill of Rights on the states. Until his tenure on the bench it was widely accepted that the Bill of Rights was intended to apply to the federal government but not the states. Judge Cardozo had previously argued that the Bill of Rights applied only selectively to the states, i. e. only those rights which were fundamental could be enforced on a state level.

Black and Frankfurter, for a time became bitter foes during debates on these issues. Ultimately Black was the one who built majorities around his position while Frankfurter increasingly was forced into the minority position. During the early fifties, especially during the red-baiting days, both came together again in strong minority positions in favor of free speech. Both were virulent anti-communists, but unlike the McCarthyites, they refused to pander to the lowest common denominator, and tenaciously clung to the principles embraced by the Constitution. Both voted alone to stay the execution of the Rosenbergs (see my last issue for the Sharlitt review) and against the unseemly haste of Chief Justice Vinson to get them executed. (When Vinson died in 1953 Frankfurter is reported to have said this was the first evidence he had seen that there was a God.)

Despite the bitter wrangling, and despite the inevitable politicking, what is reassuring, and yet astonishing, is the depth of intellectual debate. Most of the justices have truly had the best interests of the country at heart and were deeply committed to their ideological positions. The Court was ultimately strengthened by the presence of Black and Frankfurter, who at the end became close friends, despite their differences. Their intellectual differences led to profound debates over the issues which ultimately led to stronger court decisions. ( )

3063 The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America, by James F. Simon (read 25 Mar 1998) The author is a law professor at N.Y.U., but this book panders to laymen and so wasn't as good as it started out to be. It tells of Black and Frankfurter and is good on their pre-Court years. The account of their disputes on the Court tends to be sort of shallow, I thought, though this book was very easy reading, and I really enjoy Supreme Court history, having fond memories of, e.g., the great biography of Justice Black by Roger K. Newman, which I read Feb 20, 1995. ( )