Critical Analysis of Law Workshop Series
presents
Brad Snyder
University of Wisconsin Law School
The Real Progressive Constitutionalist
Tuesday, October 9, 2012
12:30 – 2:00
Solarium (room FA2), Falconer Hall
84 Queen’s Park
Felix Frankfurter was not a judicial failure. Progressive constitutional theory owes an unacknowledged debt to his jurisprudence. Many progressive scholars have embraced Frankfurter’s less Court-centric, departmentalist approach by adopting theories including popular constitutionalism. Frankfurter believed in Thayer’s theory that the Court should overrule legislation only in extreme circumstances. He dissented from Warren Court decisions because he understood the long-term consequences of fleeting liberal majorities – judicial supremacy. He recognized that departmentalism provided a more enduring and democratic source of constitutional change. The conservative Rehnquist and Roberts Courts have led many progressive scholars to recognize what Frankfurter had known all along –– that the political process was more likely to produce progressive outcomes. His lifelong commitment to these principles made Felix Frankfurter a real progressive constitutionalist. Using newly discovered archival sources, this Article scrutinizes three of the most controversial constitutional moments of Frankfurter’s judicial career and highlights similarities between his jurisprudence and today’s progressive theory. Given these similarities and the renewed interest in judicial restraint after the Health Care Cases, the Article urges scholars to reconsider Frankfurter’s judicial reputation and to recognize his contributions to contemporary constitutional discourse.
A University of Wisconsin law professor, Brad Snyder teaches civil procedure, constitutional law, and constitutional history. He has written law review articles for the Law & History Review (forthcoming), Ohio State Law Journal, and Vanderbilt Law Review. Prior to teaching law, Snyder worked as an associate at Williams & Connolly LLP and wrote two critically acclaimed books about baseball including A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports (Viking/Penguin, 2006). A graduate of Duke University and Yale Law School, he clerked for the Hon. Dorothy W. Nelson on the U.S. Court of Appeals for the Ninth Circuit. Snyder is currently working on a book project about Felix Frankfurter, Walter Lippmann, and other young progressives who lived at and frequented a Dupont Circle salon known as the House of Truth.
A light lunch will be provided.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca
