The Vinson Court and the Idol of Restraint

Abstract

The Vinson Court and the Idol of Restraint Fewjudicial characteristics gamer greater praise than that of judicial self-restraint. Yet the most restrained Court of the twentieth century, that of ChiefJustice Fred M. Vinson, is largely considered a failure. Using the Vinson Court as a historical case study, this article questions the merit ofthisjudicial ideal. I. Judicial restraint is generally contrasted with judicial activism. Indeed, it has become commonplace to criticize the latter while extolling the former.1 Such criticism has come from scholars, politicians, and judges alike.2 Perhaps more notably, the vitriol has come from both the Left and the Right.3 Despite its frequent usage, judicial activism has no clear definition. Some believe it a vacuous phrase, used merely to dismiss decisions one seeks to paint as politically partisan.4 Since judicial decisions are rarely, if ever, transparently political, however, proving such partisanship is far from straightforward. Regardless of what makes an activist judge, the parameters ofjudicial restraint have usually been easier to draw. If activist judges interpret the law as they please, restrained judges are seen as impartially deferring to ZACHARY BARON SHEMTOB other authorities whenever possible. James Bradley Thayer, perhaps judicial self-re­ straint’s most influential advocate, argued that the best judges should avoid nullifying executive and legislative acts unless they are clearly unconstitutional.5 Richard Posner succinctly summarizes judicial self-restraint as a judge’s reluctance to “declare legislative or executive action”6 void, and such deference “at its zenith when action is challenged as unconstitutional.”7 Indeed, while “judicial activism” was originally invoked as a form of judicial abuse,8 praise for a restrained judiciary has existed since our nation’s very founding. Alexander Hamilton warned against judges enshrining their own values into law by overturning legislative or executive prerog­ atives.9 Chief Justice John Marshall was cautious not to nullify legislative enactments, openly decrying the appearance of judicial partisanship.10 Indeed, up until the Dred Scott decision, today largely recognized as “the worst imaginable case ofjudicial activism,”11 the Court only once overruled a federal statute and declared state statutes void a mere handful of times.12 134 JOURNAL OF SUPREME COURT HISTORY With the turn-of-the-century and the Industrial Revolution, the idea of an unre­ strained (and thereby more activist) Court began to grow increasingly prominent.13 Interestingly, although today judicial activ­ ism is widely associated with the Left, this label was first used to denounce conserva­ tive jurists during the Progressive Era. These conservatives—today perhaps better conceived as classical liberals—sought to support property claims and the newly rising industrial elite, and nullified state and legislative statutes through implicit, immutable property rights and a nebulous “freedom of contract.”14 In Baldwin v. Missouri (1930), Oliver Wendell Holmes, Jr., an advocate ofrestraint, complained that his activist brethren’s political support for industry, and its refusal to respect legisla­ tive or executive prerogatives, had “hardly any limit but the sky.” Louis D. Brandeis agreed, chastising the Court for acting as a sort of“super legislature” in New State Ice v. Liebmann (1932), a decision preventing state legislatures from demanding busi­ nesses have licenses in order to sell ice. The Court’s activism reached its peak during President Franklin D. Roosevelt’s first term. The President had been elected on a platform ofeconomic reform, and shortly after taking office attempted to pass a package of sweeping financial measures.15 When the Justices struck a number of these, Roosevelt threatened to retaliate by packing the Court with his own Democratic appointees. Al­ though the President’s plan fizzled, the Court majority became markedly less willing to overturn executive and congressional stat­ utes. 16 When a number of the more conserva­ tive Justices died or retried shortly thereafter, Roosevelt crafted a Court almost entirely loyal to his progressive economic agenda. The resulting Court, led by Chief Justice Harlan F. Stone, soon became splintered between the judicial ideologies of Felix Frankfurter and Hugo L. Black.17 While The author argues that the Vinson Court (pictured in 1953) was perhaps the most restrained of the twentieth century in terms of judicial activism. It had the lowest nullification rate of federal, state, and local...