• Tag Archives Felix Frankfurter
  • Grocers and Beware of Abstract Ideas

    Samain                               Moon of the Winter Solstice

    Kate and I went to the grocery store together.  OF alert!  As I do most of the grocery shopping, I often notice older couples on what appears to be their big outing of the week.  Buying food.  And here we were, wandering the aisles of Festival Foods, a Kowalski burb grocery name.

    It was nice to have her along and she prefers to drive the cart.  Read:  she always drives the cart.  Just like I do the car.  Gender insensitive on both our parts, I know.  Still.

    We loaded up for the week, going over budget some, probably because there were two sets of eyes to be sucked in by the clever marketers behind grocery stores.  Low margin business along the walls:  veggies, fruit, meat, dairy, bread.  Higher margin grocery items in the center aisles:  soda, cereal, coffee, baking goods, oils and mustards and mayo and pickles.  Highest margin items on the endcaps of aisles and the impulse purchases parked conveniently by the checkout lanes.

    Message here.  Just shop the outside walls.

    Still reading Scorpions, about the Roosevelt star Supremes:  Felix Frankfurter, Hugo Black, Robert Jackson and William O. Douglas.  The big news to me so far is the astonishing reversal of roles evident from this court to the current one.  Let me give you two examples, but first one thought to undermine them all

    As the book reminded me, there is no place in the constitution that empowers the Supreme Court to decide cases in the way that it does.  Go back to Marbury vs. Madison, a hoary lesson from US History at one level of education or another.  Marshall created judicial review.

    Example #1:  Judicial restraint.  Felix Frankfurter was an early, liberal, advocate of judicial restraint.  He specifically wanted the reigning conservative notion of liberty of contract, a legal idea that kept unions down and decided all cases in the interest of individual property rights, struck down and its source, a judicial interpretation of the 14th amendment stoppered.  In order to advance progressive ideas, Frankfurter said, justices should restrain themselves from intervening in matters decided by Congress and state legislatures.  Guess who’s in favor of judicial restraint now?

    Example #2:  Originalism.  Hugo Black, a former radical member of the senate, known for his populist agenda, contended that justices should not make up ideas that were not in a plain reading of the Constitution.  This was aimed at the conservative invention of liberty of contract, also Frankfurter’s target.

    Both Frankfurter and Black continued to expand their Constitutional philosophies as their terms extended.  Now, it is the Scalia’s and the John Roberts of the current court who advocate judicial restraint and originalism.  Beware of an abstract idea, it may not produce the result you expect.

    Said he, an abstract thinker.  Me.  Beware.