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Judicial Review, Flag Salute, Judicial Restraint, Birth Control, Constitutional Law


Washburn Law Journal (forthcoming 2008).


Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in those cases. Connecticut’s experience with birth control suggests that one consequence of deep political divisions may be no clear policy at all, with substantial discriminatory consequences. Barnette suggests that the Court, when deep divisions exist, does not act unilaterally but with the support of prominent members of the dominant national coalition. Professor Rosen’s analysis of Brown illustrates some problems with too sharp a distinction between legitimate judicial activism and judicial unilateralism. Exposing Justice Frankfurter’s false modesty in cases involving birth control and flag salutes introduces further complications. What Justice Frankfurter insisted would be judicial unilateralism in Poe was, in effect, a judicial effort to make policy in the face of legislative paralysis. What Frankfurter regarded as judicial unilateralism in Barnette was the justices siding with the national executive against a few state legislatures. Judicial modesty may still have been appropriate in both instances, but that would have required a more honest assessment of the underlying constitutional politics than Frankfurter offered.


Constitutional Law