Geof Stone, "Politics, the Constitution and the Roberts Court"

Politics, the Constitution and the Roberts Court
Geoffrey R. Stone
The Huffington Post
April 20, 2014

When I was a law student at the University of Chicago in the late 1960s, I had the great privilege as having Philip Kurland as one of my constitutional law professors. Kurland was one of the most distinguished constitutional scholars of his generation. He was also, by the standards of the day, quite conservative, and often a sharp critic of the Warren Court.

In 1970, Kurland published a much-heralded book, Politics, the Constitution and the Warren Court, in which he laid out his critique of the Supreme Court's work under the leadership of Earl Warren. A former law clerk to Justice Felix Frankfurter, Kurland echoed many of Frankfurter's views about the need for judicial restraint.

Frankfurter himself came to be suspicious of judicial "activism" in the early years of the 20th century when a clique of conservative Supreme Court justices took an aggressively "activist" approach to constitutional interpretation in a campaign to declare unconstitutional a broad range of progressive legislation -- including, for example, laws guaranteeing a minimum wage, establishing maximum working hours, prohibiting child labor and regulating the working conditions for women. The lesson Frankfurter drew from this era was that Supreme Court justices should be cautious in interpreting the Constitution, lest they fall victim to the temptation to impose their own personal value