AND THE CONSTITUTION A Review of his Twenty-five Years BY FELIX FRANKFURTER BYRNE PROFESSOR OF ADMINISTRATIVE LAW IN HARVARD LAW SCHOOL DUNSTER HOUSE BOOKSHOP 20 SOUTH STREET, AT DUNSTER Cambridge, Mass. Bist-amer nat Bib 9-27-37 34812 DUNSTER HOUSE PAPERS MR. JUSTICE HOLMES AND THE CONSTITUTION WHEN A REVIEW OF HIS TWENTY-FIVE YEARS ON THE SUPREME COURT I HEN the present Chief Justice was appointed, a leading New York newspaper gave utterance to a wide-spread public appreciation of his " tact and good humor " by remarking that "with Justice Taft as moderator, it is probable that not a few asperities that mar the harmony of the celestial chamber, the consulting room, will be softened, and that not quite so often in the future will the Court divide five and four." Such an exaggerated view of the power of camaraderie neglects the deeper influences behind constitutional adjudications. Divisions of the Court in decisive issues are not due to want of " tact and good humor" in the "moderator," nor is accord secured through genial and irenic personalities. A more lubricating humor and accommodating mind probably never presided over the Supreme Court than during the incumbency of Chief Justice Fuller. Yet divided opinions in cases involving public issues were plentiful during his time, as they were during the time of Chief Justice White, as they have been, and will continue to be, during the successive terms of Chief Justice Taft. The key to an understanding of the Court's attitude in cases of great public moment is not to be found in the tempera |