Yale.

• Author: Spindelman, Marc
• Position: Michigan University Law School Professor Yale Kamisar - Testimonial

Yale does have, as Nancy King has said, a story for every occasion. (1) Many of my favorites--and I definitely have my share--reflect Yale's gaudium certaminis: his "joy of battle" in Gerald Gunther's helpful translation/ Some of Yale's battles I have only heard or read about. A few of the more memorable ones from over the years include Yale's confrontations with Glanville Williams, (3) Fred Inbau, (4) Joe Grano, (5) John Kaplan, (6) James Vorenberg, (7) Robert Bork, (8) Malcolm Wilkey, (9) Edward Barrett, (10) and Yale's former teacher Herbert Wechsler. (11) And let's not forget the numerous law-enforcement officials Yale caught in his sights at one moment or the other, among them Ronald Reagan's Attorney General Edwin Meese, (12) and one-time New York City Police Commissioner Michael Murphy. (13) As for Yale's more recent skirmishes (those from the last decade or so), I've had the privilege of witnessing them in real time: with Akhil Amar, (14) for instance, and of course Paul Cassell, (15) as well as Robert Sedler, (16) Sylvia Law, (17) John Robertson, (18) Laurence Tribe, (19) Guido Calabresi. (20)

Aside from their sheer number, (21) perhaps the most remarkable feature of Yale's battle-tales, and also one of the easiest to overlook, is that even in their most dramatic moments, they feature no enduring enemies, only adversaries, sometimes friends. (22) Yale has--or has come to have--something kind to say about practically everyone with whom he has crossed swords during his fifty-odd year career. But there are a few characters in the stories that Yale tells (and if you noodge him enough, retells) who never emerge entirely unscathed. On this roster, interestingly, are a few who have served as Justices of the Supreme Court, including someone who once described himself in the third person as "a fellow named Felix Frankfurter." (23)

In his published work, Yale has painted a complex, ambivalent portrait of Frankfurter. Its proportions can be gleaned from a careful study of decades of Yale's writings. But helpfully--almost as if someone had asked him to--Yale has sketched his thoughts on Frankfurter in miniature in an article that takes a full-length look back at his career. (24)

Yale opens with praise, casting Frankfurter as the "valiant" hero of McNabb v. United States, (25) the author of the opinion for the Court that established a federal exclusionary rule, as well as of Mallory v. United States, (26) where Frankfurter, again writing for the Court, reaffirmed McNabb "over strong criticism from law enforcement officials and politicians." (27) Yale also features Frankfurter as the "champion" of "what has been called the 'police methods' approach to coerced confessions--the view ... that the use of coerced confessions is constitutionally obnoxious not only because of their unreliability[,]" but also because of how they "offend the community's sense of fair play and decency." (28) Frankfurter, Yale reminds us, gave this test its first powerful articulation in Rochin v. California, (29) the famous "stomach pumping" case.

No less significantly, turning from doctrine to aesthetics, Frankfurter is, in Yale's estimation, the "author of some of the most memorable lines ever uttered by a Supreme Court Justice." (30) By way of illustration, Yale serves up a small fistful of the Justice's "beautifully rounded phrases of almost Victorian elegance," (31) including this from McNabb: "The history of liberty has largely been the history of the observance of procedural safeguards. And the effective administration of criminal justice hardly requires disregard of fair procedures imposed by law." (32) And this from Fisher v. United States: "A shocking crime puts law to its severest test. Law triumphs over natural impulses aroused by such crime only if guilt be ascertained by due regard for those indispensable safeguards which our civilization has evolved for the ascertainment of guilt." (33) And this from United States v. Rabinowitz: "It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." (34) I myself would only add that the lines Yale quotes--like some others he does not--seem to be far more memorable than actually remembered.

Having paid his respects, Yale finally starts "mixing it up" (35) a little. Hence we have Frankfurter "the seducer," giving us the Court's opinion in Wolf v. Colorado, (36) formally declaring our federalism to mean "that state courts are free, if they wish, to admit evidence seized in violation of the prohibition against unreasonable search and seizure." (37) Bringing to mind what this seduction actually did--all of the unconstitutionally seized evidence it allowed state courts to admit, and the unconstitutional police practices it did not lift a finger to stop (38)--would have been reason enough for Yale (or anyone else) to believe that "Justice Frankfurter's opinion for the Court in Wolf... deserves all the criticism it has received--and it has received quite a lot." (39) But Wolfs death (it has long since been formally overruled (40)) did not save us from its effects, nor it from Yale's criticism. Wolf, after all, stalks us from the grave. It was Wolf, as Yale notes, that "inject[ed] the instrumental rationale of deterrence of police misconduct into [the Court's] discussions of the exclusionary rule." using it as "support for [the Court's] refusal to apply the exclusionary rule to the states," thus "plant[ing] the seeds of [the exclusionary rule's] destruction ... in federal as well as state cases." (41) Substantively, from Yale's perspective, that's a devilishly bad thing for a judicial opinion--or an act of authorship--to do.

Frankfurter's opinion for the Court in Minersville School District v. Gobitis, (42) the famous "flag salute" case, later reversed over his very. very bitter (some might say, intemperate) dissent, (43) provides further evidence of his judicial manipulations. Gobitis, according to Yale. "is a good illustration of how Frankfurter often asked 'loaded questions,' [meaning:] framed the questions presented in such a way that they impelled the reader to want to answer them the way he did." (44) What's more, "[i]n ruling that children of Jehovah's Witnesses could be expelled from public schools for refusing to salute the flag, Justice Frankfurter inflated the governmental interests at stake [not just a bit, but] enormously." (45) Needless to say, this was neither the first nor the last time that one of Frankfurter's opinions reflected the patriotism born of a convert's zeal. (46)

Yale saves his strongest note of disapproval for his discussion of Dennis v. United Stales, (47) a case in which the Court ultimately rejected the free expression challenges that various communists had raised against their convictions for violating the Smith Act. Remarks Yale: "What [Frankfurter] would [have] call[ed] judicial humility, and what others (including me) would call an inclination to abdicate the Court's responsibility to interpret the Constitution, pervades Frankfurter's concurring opinion in [the] case." (48) To be sure, Yale's comments, like his description of "Mr. Justice Frankfurter" years earlier, as "the preacher of judicial caution and self-restraint," (49) sting, and are meant to. But they hardly scratch the surface when compared to the biting, even savage, attack Fred Rodell once launched against Frankfurter in the pages of Scanlan's magazine:

Frankfurter's philosophy of constitutional law always favored judicial inertia, a deliberate ducking of the big issues on whatever excuse he could fish up, from the picking of some procedural nit to an arbitrary fiat(as in the reapportionment cases) that an issue was too "political," meaning too hot for the Court to handle. This pusillanimous policy of "judicial restraint," of deference to the legislature even if the Constitution thus be damned, was in direct conflict with the ... drive for the righting by the Court of Constitutional wrongs. (50) Just so, it is tempting to think that, but for the seething and seemingly personal animosity towards Frankfurter that breaks through the surface of Rodell's text in a veritable rolling boil, Yale, who does not do ad hominem, might not have completely disagreed.

What has long struck me about Yale's views on Frankfurter is that they are and, for years, have been, so, well, "mixed." (51) At times, especially when Yale holds forth on them in person, the precise balance between cheer and faultfinding can seem a little uneven. Whatever their measure, and it varies from article to article as well as over time, my experience has been that Yale prefers not to pour Frankfurter's glories straight.

I do realize, of course, that Yale has probably never had a single feeling in his life that was not both intense--and, on close examination, complex. (52) But I have often wondered: Why does Yale have such persistently mixed feelings about this man? It may well be true that Yale has "mellowed" in certain respects, as Jesse Choper reports Yale says. (53) But not (or at least not a great deal) when it comes to Felix Frankfurter.

In an effort to figure out why, I decided to do some digging. I read some of what Frankfurter wrote--his opinions, his scholarship, his "reminiscences," his letters--and some of the volumes that have been written about him, by friend and foe alike. As I did, I discovered something both strange and strangely revealing. Although Yale will not be overjoyed to hear me say so, it turns out that, in a number of respects, he and Felix Frankfurter really are very much alike.

To take the obvious, biographically-speaking: Both Yale and Frankfurter spent a number of their formative years in the Jewish communities of New York City--Yale in the Bronx and Frankfurter on the East Side. (54) Both grew up in families of modest means. (55) As schoolboys, both excelled through hard work and native intelligence...