Mr. Justice Frankfurter has expounded many times upon the obligation upon the court never to exceed its judicial powers. The question in Board of Education v. Barnette (319 U. S. 634), was whether West Virginia could compel its public school children to salute the flag. Five times, the Supreme Court had held that such a requirement was not in violation of the Constitution. Now, in 1943, with the shift of two justices, the holding was reversed. Frankfurter’s eloquent dissent provides a moving statement of the philosophy by which judges should be guided in contemplating their judicial power:
One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.... It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.
Much as he detested the West Virginia statute, Frankfurter found it impossible to deny that reasonable legislators could have passed the flag-salute law. He was guided to this conclusion by “the light of all the circumstances” and by “the history of this question in this court.” Thirteen Justices of the Supreme Court in other years had found such laws within the constitutional authority of the States. In view of this “impressive judicial sanction,” how could the power be now prohibited to the States? In the past, said Frankfurter:
this court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called “the spirit of the Constitution.” Such undefined destructive power was not conferred on this court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution. Equally inadmissible is the claim to strike down legislation because to us as individuals it seems opposed to the “plan and purpose” of the Constitution. That is too tempting a basis for finding in one’s personal views the purposes of the Founders.
The uncontrollable power wielded by this court brings it very close to the most sensitive areas of public affairs. As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantably enter social and political domains wholly outside our concern.
What had become of these views on the part of Mr. Justice Frankfurter in May 1954? By that time, not merely thirteen Justices, but more than thirty members of the court over a period of fifty-eight years had upheld the constitutionality of racially separate schools. More impressive judicial sanction scarcely could be imagined. And what is to be said of an opinion, in a highly sensitive area of public affairs, not even rationalized by “the spirit of the Constitution” or the “plan and purpose” of the Constitution, but rather by “the effect of segregation on public education” and “the extent of psychological knowledge”? These provided the rationale of the Brown decision, but Mr. Justice Frankfurter did not open his mouth in dissent.
Did the court have the power to do what it did? Mr. Justice Douglas, another of the nine, in other days had warned that long-run stability is best achieved when social and economic problems of the State and nation are kept under political management of the people. Writing in 49 Columbia Law Review some years ago, he observed sagely that “it is when a judiciary with life tenure seeks to write its social and economic creed into the Charter that instability is created.” In May 1954, Mr. Justice Douglas did his bit to create just that instability.
Did the court have the power? That was the essence of Question 3. It was the court’s most profound inquiry, for it probed the very soul of judicial limitation and responsibility. Serious consideration of Question 3 would have required of the judges a respect for the wisdom and integrity of scores of judges and hundreds of State and Federal legislators, all equally sworn to uphold the Constitution, who had preceded them. The question should have suggested the utmost restraint, the most selfless exercise of judicial discipline. “Is it within the judicial power, in construing the amendment, to abolish segregation in public schools?”
“What is truth?” said jesting Pilate; and would not stay for an answer.