YALE Marc Spindelman* Yale does have, as Nancy King has said, a story for every occasion.' 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, Robert Bork,' Malcolm Wilkey,9 Edward Barrett,"0 and Yale's * © 2004 by Marc Spindelman. All rights reserved. Assistant Professor of Law, The Ohio State University Moritz College of Law. - Ed. Many thanks to Sarah Cole, Sharon Davies Joshua Dressier, Alan Michaels, and Bill Miller for comments on earlier drafts, to Jerry Israel for a few key leads, to Bruce Frier for a quick Latin lesson, and to Peter Debelak for research assistance. 1. Nancy J. King, Inspiring Generations,1 02 MICH. L. REV. 1728, 1729 (2004). 2. GERALD GUNTHER, LEARNED HAND 391 n. (1994) (translating expression used by Felix Frankfurter about his own). 3. See Yale Kamisar, Some Non-Religious Views Against Proposed "Mercy-Killing" Legislation, 42 MINN. L. REV. 969 (1958) (reviewing GLANVILLE WILLIAMS, THE SANCTITY OF LIFE AND THE CRIMINAL LAW (1957)). For Williams' reply, see Glanville Williams, "Mercy-Killing" Legislation - A Rejoinder, 43 MINN. L. REV. 1 (1958). 4. See, e.g., Yale Kamisar, Public Safety v. Individual Liberties: Some "Facts" and "Theories," 53 J. CRIM. L. C. & P.S. 171 (1962) (responding to Fred E. Inbau, Public Safety v. Individual Civil Liberties: The Prosecutor'sS tand, 53 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 85 (1962)); Yale Kamisar, Some Reflections on Criticizingt he Courts and "Policing the Police," 53 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 453 (1962) (discussing Fred E. Inbau, More About Public Safety v. Individual Civil Liberties, 53 J. CRIM. L. CRIMINOLOGY & POLICE Sci. 329 (1962)); Yale Kamisar, What is an "Involuntary" Confession?: Some Comments on Inbau and Reid's Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728 (1963) (offering, shall we say, some critical thoughts on Fred E. Inbau's work). 5. See, e.g., Yale Kamisar, Remembering the "Old World" of Criminal Procedure: A Reply to Professor Grano, 23 U. MICH. J.L. REFORM 537 (1990). 6. See, e.g., Yale Kamisar, "Comparative Reprehensibility" and the Fourth Amendment Exclusionary Rule, 86 Mich. L. Rev. 1, 3 n.4, 12, 15-16 (1987) [hereinafter, Kamisar, Comparative Reprehensibility] (engaging Kaplan's work). 7. Yale disagreed with Vorenberg on constitutional criminal procedure matters, as well as the "right to die." In the constitutional criminal procedure arena, some disagreements with Vorenberg surfaced during deliberations on the ALl Model Pre-Arraignment Code, for which Vorenberg was the Chief Reporter. Cf infra note 11. On the "right to die," Yale and Vorenberg once duked it out on the op-ed page of the New York Times. See James Vorenberg, Going Gently, with Dignity, N.Y. TIMES, Nov. 5, 1991, at A25; Yale Kamisar, An Unraveling of Morality, N.Y. TIMES, Nov. 5, 1991, at A25. 8. See, e.g., Kamisar, Comparative Reprehensibility,s upra note 6, at 1-5, 43. 9. See, e.g., Yale Kamisar, Is the Exclusionary Rule an 'Illogical' or 'Unnatural' Interpretation of the Fourth Amendment?, 62 JUDICATURE: J. AM. JUDICATURE SOC'Y 66 1747 HeinOnline -- 102 Mich. L. Rev. 1747 2003-2004 1748 Michigan Law Review [Vol. 102:1747 former teacher Herbert Wechsler.1 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 (1978); Malcolm Richard Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 JUDICATURE: J. AM. JUDICATURE SOC'Y 214 (1978); Yale Kamisar, The Exclusionary Rule in Historical Perspective: The Struggle to Make the Fourth Amendment More Than 'An Empty Blessing,' 62 JUDICATURE: J. AM. JUDICATURE SOc'Y 337 (1979); Malcolm Richard Wilkey, A Call for Alternatives to the Exclusionary Rule: Let Congress and the Trial Courts Speak, 62 JUDICATURE: J. AM. JUDICATURE SOC'Y 351 (1979). Part of what launched this exchange was Malcolm Richard Wilkey, Why Suppress Valid Evidence?, WALL ST. J., Oct. 7, 1977, at 12. 10. See Kamisar, Comparative Reprehensibility,s upra note 6, at 4-5, 11, 32-33, 38-39, 43. 11. Ever the well-known student of substantive criminal law (not only did he write a classic casebook on substantive criminal law, JEROME MICHAEL & HERBERT WECHSLER, CRIMINAL LAW AND ITS ADMINISTRATION (1940) (1410 pages), also the Chief Reporter for the American Law Institute's (ALI's) Model Penal Code), Wechsler had become "conservative" on constitutional criminal procedure by the time he served as the Director of the ALI, perhaps because of civil disorders and student demonstrations. Over the years, particularly when Yale was an Advisor to the ALI's Model Code of Pre- Arraignment Procedure Project, he and Wechsler had some small tussles. One story Yale tells goes something like this: While sitting in the first meeting of the Advisory Committee, for which James Vorenberg was nominally the Chief Reporter, Judge Walter Schaefer, directing his comments to Wechsler, said, "Herb, unless you delete this third provision, I'm going to have to vote against you on this issue." Wechsler replied, "OK, we'll take care of that, we'll delete the third provision." Judge Roger Traynor spoke up next to similar effect: "Herb, if you don't add this modifying clause, I'm going to have to vote against you." Wechsler replied, "Alright, we will add the modifying clause you want." When Yale, follow- ing the judges' pattern, chimed in, "Professor Wechsler, if you don't delete subpart (a) of the second provision, I'll have to vote against you." Wechsler quipped: "So, vote against me." Another story takes place several years later. Toward the end of the sixties, the Advisory Committee was considering the implications of the Line-up Cases. See United States v. Wade, 388 U.S. 218 (1967), Gilbert v. California,3 88 U.S. 263 (1967), and Stovall v. Denno, 388 U.S. 293 (1967). Yale was, not surprisingly, reading the cases broadly. Wechsler was trying to read them narrowly, placing some considerable weight on the fact that, in them, the men in the line-ups already had lawyers. Yale insisted that the cases could not be read that way in light of existing Supreme Court precedent, chiefly Gideon v. Wainwright, 372 U.S. 365 (1963). A conservative judge who was attending this particular meeting insisted that he didn't believe that the cases had to be read with Yale's kind of "fanatical devotion to equality." Wechsler agreed. After the lunch break, Judge Henry Friendly announced to the group, "Herb, over lunch I went back to my chambers and re-read the Line-up Cases. There's no way you can limit them to the defendant who already has a lawyer." Wechsler relented: "OK, I guess we can't." 12. Yale Kamisar, Meese Fails to Honor His Obligation to Be Accurate, L.A. TIMES, Sept. 3, 1985, pt. II, at 5. 13. Yale tells the story in Yale Kamisar, A Look Back on a Half-Century of Teaching, Writing, and Speaking About CriminalL aw and Criminal Procedure,2 OHIO ST. J. CRIM. L. 73, 77-79 (2004) [hereinafter Kamisar, A Look Back]. There were, of course, others. In Yale Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 CORNELL L.Q. 436 (1964), Yale took on a number of them in one fell swoop. Jerry Israel has suggested that Duane R. Nedrud should be included in this category. HeinOnline -- 102 Mich. L. Rev. 1748 2003-2004 August 2004] Yale 1749 them in real time: with Akhil Amar,4 for instance, and of course Paul Cassell,15 as well as Robert Sedler,6 Sylvia Law,17 John Robertson,18 Laurence Tribe,19 and Guido Calabresi.0 14. See Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929 (1995) [hereinafter Kamisar, The "Fruits" of Miranda Violations] (challenging the reconstruction of the "first principles" of the Fifth Amendment provided in Akhil Reed Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857 (1995)); Yale Kamisar, The Writings of John Barker Waite and Thomas Davies on the Search and Seizure Exclusionary Rule, 100 MICH. L. REV. 1821, 1846-48 (2002) [hereinafter Kamisar, Writings of Waite and Davies] (engaging Amar on the exclusionary rule). 15. See, e.g., Paul Cassell & Yale Kamisar, The Reaffirmation of Miranda: What's Next?, Debate at the Association of American Law Schools 2001 Annual Meeting, Section on Criminal Justice (Jan. 6, 2001); Yale Kamisar, Miranda Thirty-Five Years Later: A Close Look at the Majority and Dissenting Opinions in Dickerson, 33 ARIZ. ST. L.J. 387, 388 n.6 (2001) (mixing it up again with Cassell); id. at 404 (same). See also Yale Kamisar, Forward: From Miranda to § 3501 to Dickerson to... 99 MICH. L. REV. 879, 882 n.13 (2001) (taking exception to some of the observations in Paul G. Cassell, The Path Not Taken: The Supreme Court's Failures in Dickerson, 99 MICH. L. REV. 898, 926-27 (2001)). Yale also took exception to the Fourth Circuit's decision in United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999), see Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. R. 883 (2000) [hereinafter Kamisar, Can (Did) Congress Overrule Miranda?], a decision that Cassell was in no small part behind. See Alan Cooper, 4th Circuit Narrows Role of 'Miranda' Warnings, NAT'L L. J., Feb. 22, 1999, at A9 (noting that the Fourth Circuit's Dickerson decision relied on 18 U.S.C. § 3501, a statute that Paul Cassell's brief on behalf of the Washington Legal Foundation and Safe Streets Coalition, Brief of the Washington Legal Foundation and Safe Streets Coalition as Amici Curiae in Support of Appellant United States, United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) (No. 97-4750), highlighted for the court). 16. See Yale Kamisar, The "Right to Die": On Drawing (and Erasing)L ines, 35 DUQ. L. REV. 481,508-13 (1996) [hereinafter Kamisar, Drawing Lines] (challenging Sedler's views on physician-assisted suicide); Yale Kamisar, Against Assisted Suicide - Even A Very Limited Form, 72 U. DET. MERCY L. REV. 735 (1995) [hereinafter Kamisar, Against Assisted Suicide] (arguing against Sedler's proposals for a constitutionally-based "circumscribed right" to assisted suicide on the ground that any such right cannot, as a matter of principle, remain "circumscribed" for long). 17. See Yale Kamisar, Physician Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case, 88 J. CRIM. L. & CRIMINOLOGY 1121, 1129-1133 (1998) [hereinafter, Kamisar, The Compelling, Heartwrenching Case] (responding to Law's insistence that a rule of law permitting physician-assisted suicide treats all people alike by arguing that such a rule will have class-based effects). 18. See Yale Kamisar, When Is There a Constitutional "Right to Die"? When Is There No Constitutional "Right to Live"?, 25 GA. L. REV. 1203, 1230-42 (1991) (analyzing the short- comings of Robertson's "best interests of the patient" test), 19. For several years, Yale and Tribe, along with Jesse Choper, presented an annual Supreme Court Term "wrap-up." See 1-5 JESSE J. CHOPER, YALE KAMISAR & LAURENCE H. TRIBE, THE SUPREME COURT: TRENDS AND DEVELOPMENTS (Dorothy Opperman, ed., 1979-1984). While Yale and Tribe agreed on many things, their positions on physician- assisted suicide differ quite dramatically. They were on opposite sides in the assisted suicide cases decided by the Supreme Court in 1997. See Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997); Brief for Respondents, Vacco, 521 U.S. 793 (1997) (No. 95-1858) (signed by Tribe as counsel for the respondent); see also Yale Kamisar, On the Meaning and Impact of the Physician-Assisted Suicide Cases, 82 MINN. L. REV. 895 (1998). HeinOnline -- 102 Mich. L. Rev. 1749 2003-2004 1750 Michigan Law Review [Vol. 102:1747 Aside from their sheer number," 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." 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." 3 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 20. Yale Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 119 (2003) [hereinafter, Kamisar, In Defense of the Search and Seizure Exclusionary Rule] (responding to Guido Calabresi, The Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 111 (2003)); Yale Kamisar, The Reasons So Many People Support Physician- Assisted Suicide - And Why These Reasons Are Not Convincing, 12 ISSUES L. & MED. 113, 126 n.63 (1996) (engaging Judge Calabresi's concurrence in Quill v. Vacco, 80 F.3d 716, 731- 43 (2d Cir. 1996) (Calabresi, J., concurring)). 21. The list I have given is only partial. Excluded from it is John Barker Waite. Even his death did not keep Yale from quarreling with him, see generally Kamisar, Writings of Waite and Davies, supra note 14, though it did, unremarkably, if sadly, keep Waite from offering a reply. At one point when I ran the list past Yale to see if there was anyone I should have included but inadvertently left out, Yale said, "Well, there's [Joseph] Cardinal Bernadin." "Oh?," I asked, "What was that one all about?" "Well," Yale replied with a laugh, "I was once on a panel with him after the Quinlan case was decided and told him that I thought he was 'soft on euthanasia.' I think I'm probably the only guy who ever told a Cardinal that." 22. Jerold H. Israel, Seven Habits of a Highly Effective Scholar, 102 MICH. L. REV. 1701, 1717-18 (2004) (describing the ways that Yale "respect[s] the other side"); accord Francis A. Allen, Yale Kamisar: Warrior Scholar, 102 MICH. L. REV. 1689, 1692 (2004) ("Despite the thunder of battle, Yale is able to admire the strong points made by his opponents and to respect able adversaries. He has himself gained the admiration of many of those who most strongly oppose his views."); Albert W. Alschuler, Hail Yale, 2 OHIO ST. J. CRIM. L. 31, 33 (2004); cf Eve Silberman, Yale Kamisar on Guard,A NN ARBOR OBSERVER, Nov. 3, 1992, at 31, 39. 23. LAURA KALMAN, LEGAL REALISM AT YALE 1927-1960, at 281 n.57 (1986) (quoting Letter from Felix Frankfurter to E.M. Morgan (Nov. 10, 1947) (on file with Harvard Law School archives)). 24. Kamisar, A Look Back, supra note 13, at 95-98 & n.96. Yale's sketch of Frankfurter comes in a larger discussion of legal academic norms that regard "advocacy scholarship" as an oxymoron. Frankfurter is Yale's prime counter-example, a once-living illustration of the proposition "that one could lead the life of the advocate as well as that of the scholar, and do both very well, indeed." Id. at 95. In saying so, Yale comes perilously close to suggesting his own career has been forged in Frankfurter's image. No sooner does that idea take shape than it is qualified: Frankfurter, Yale adds, "was not one of my favorite Justices[.]" Id. A long footnote - discussed in the text, see notes 25-50 infra - explaining why, "[flrom [his] HeinOnline -- 102 Mich. L. Rev. 1750 2003-2004 August 2004] 1751 Yale opens with praise, casting Frankfurter as the "valiant" hero of McNabb v. United States2,5 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 ...th at 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. California2,9 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."3 By way of illustration, Yale serves up a small fistful of the Justice's "beautifully rounded phrases of almost Victorian elegance,"'" vantage point, Felix Frankfurter has a mixed record as a Supreme Court justice[,]" follows. Id. at 95 n.96. 25. 318 U.S. 332 (1943). 26. 354 U.S. 449 (1957). 27. The published version is: "The McNabb-Mallory rule was a valiant effort to bypass conflicts over the nature of the secret interrogation and to minimize both the 'temptation' and the 'opportunity' to obtain confessions by impermissible means." Kamisar, A Look Back, supra note 13, at 96 n.96. 28. Id. (internal quotation marks omitted); see also Kamisar, The "Fruits" of Miranda Violations, supra note 14, at 942 (calling Frankfurter "the leading proponent of the police methods test for admitting confessions") (footnote omitted). 29. 342 U.S. 165 (1952). 30. Kamisar, A Look Back, supra note 13, at 96 n.96. 31. Fred Rodell, Felix Frankfurter, Conservative, HARPERS MAGAZINE, Oct. 1941, at 449, 457 [hereinafter, Rodell, Frankfurter, Conservative]. Rodell consistently described Frankfurter from the perspective of what he himself called "the Axis" of William 0. Douglas and Hugo Black. See, e.g., MELVIN I. UROFSKY, FELIX FRANKFURTER: JUDICIAL RESTRAINT AND INDIVIDUAL LIBERTIES 56 (John Milton Cooper, Jr. ed., 1991). Laura Kalman traces Rodell's ill feeling toward Frankfurter in KALMAN, supra note 23, at 158-59 (2001). Frankfurter pulled no punches when describing Douglas and Black. Douglas, according to Frankfurter, was "'malignant,' 'narrow minded,' 'the most cynical, shamelessly amoral character I've ever known,' and a 'mommser' [bastard]." Melvin Urofsky, Conflict Among the Brethren: Felix Frankfurter, William 0. Douglas, and the Clash of Personalities and Philosophieso n the United States Supreme Court, 1988 DUKE L.J. 71, 106 (1988) (footnotes omitted). Likewise, Frankfurter once wrote of Douglas that: Except in cases where he knows it is useless or in cases where he knows or suspects that people are on to him, he is the most systematic exploiter of flattery I have ever encountered in my life. He tried it on me when he first came on the Court - every opinion of mine that he returned, he returned with the most extravagant praise, all of which ceased after I left him no doubt that I did not come on to the Court to play politics on the Court but to vote in each case as my poor lights guided me. HeinOnline -- 102 Mich. L. Rev. 1751 2003-2004 1752 Michigan Law Review [Vol. 102:1747 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."3 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 JOSEPH P. LASH, FROM THE DIARIES OF FELIX FRANKFURTER 175 (1975) (entry for Jan. 30, 1943). For an engaging account of some of the intemperate remarks by Frankfurter about Black, as well as some deeply human and mutually-understanding ones, see generally JAMES F. SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA (1989). Frankfurter's feelings were, not surprisingly, returned in various ways. Douglas, for instance, seemed to take some pleasure in taunting - or should I say, tormenting - Frankfurter. See, e.g., ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY 327-328 (1994) (telling the story of Douglas giving Frankfurter a Nazi salute, and exclaiming "Heil, Fuhrer!" when Frankfurter entered the Conference room); BRUCE ALLEN MURPHY, WILD BILL: THE LEGEND AND LIFE OF WILLIAM 0. DOUGLAS 301 (2003) (cataloging Douglas's nicknames for Frankfurter, including "the Little Giant," the "little bastard" or "Der Fuhrer"); id at 354 (Douglas offering that he had become "more and more suspicious of the good faith of [Frankfurter], his intellectual honesty."). One of the more amusing stories is found in Fred Rodell, As Justice Bill Douglas Completes His First Thirty Years on the Court: Herewith A Random Anniversary Sample, Complete with Casual Commentary, of Divers Scraps, Shreds, and Shards Gleaned from a Forty-Year Friendship, 16 UCLA L. REV. 704, 705-06 (1969) (recounting the story of the lip-readers who supposedly told the lawyers for whom they worked, "Sorry, ... but all we got was when Justice Frankfurter kept asking that lawyer all those questions and Justice Douglas turned to Justice Reed and what he said was, 'Why can't the little bastard keep his big mouth shut and let us get on with it?'). Douglas later described the story as "apocryphal." Urofsky, supra, at 106. Black's feelings toward Frankfurter do not seem to have been as hard as Douglas's. Id. at 90 n.121. See generally SIMON, supra. Without a doubt, Frankfurter could - and did - get under Black's skin. See NEWMAN, supra, at 485 (commenting to his wife privately after Frankfurter had been particularly hostile in conference, Black said "'Why, I could beat that little thing up with one arm tied behind my back."'); id. at 520 (quoting Black as saying, after finishing a draft of his tribute to Frankfurter for the Harvard Law Review, "'Well, now that I have written about my deep and sincere friendship for Felix, I feel free to write my views on how mistaken his views were."'). And not only Black's, but Earl Warren's, as well. See, e.g., G. EDWARD WHITE, EARL WARREN: A PUBLIC LIFE 184 (1982) ("Warren ... 'turn[ing] crimson, then purple,' [in reaction to an oral dissent Frankfurter delivered] ...s napp[ed] 'That was not an opinion. That was a lecture."') (footnote omitted); WILLIAM 0. DOUGLAS, THE COURT YEARS 1939-1975: THE AUTOBIOGRAPHY OF WILLIAM 0. DOUGLAS 228 (1980) (recalling that "[o]nly one other time did Warren lose his composure at Conference": when, after hearing of Frankfurter's attempt to interfere with his selection of the Clerk of the Court, "Warren ...i n a loud voice denounced him at the next Conference and threatened to take reprisals if Frankfurter ever repeated such a mission."). 32. Kamisar, A Look Back, supra note 13, at 96 n.96 (quoting McNabb v. United States, 318 U.S. 332, 347 (1943)). 33. Id. (quoting Fisher v. United States, 328 U.S. 463, 477 (1946) (Frankfurter, J., dissenting). HeinOnline -- 102 Mich. L. Rev. 1752 2003-2004 August 2004] Yale 1753 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. Colorado3,6 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 stop38 34. Id. (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1949) (Frankfurter, J., dissenting). Yale quoted Frankfurter favorably on a number of occasions over the years. Without pretending exhaustiveness, see, for example, Kamisar, In Defense of the Search and Seizure Exclusionary Rule, supra note 20, at 122 (quoting Frankfurter's opinion in Wolf v. Colorado, 338 U.S. 25 (1949)); Kamisar, Writings of Waite and Davies, supra note 14, at 1827 (quoting Frankfurter in Rogers v. Richmond, 365 U.S. 534, 541 (1961), on the "totality of circumstances" and "voluntariness" tests for admitting confessions); Kamisar, Can (Did) Congress Overrule Miranda?, supra note 15, at 911, 915 (quoting Frankfurter's opinion for the Court in Columbe v. Connecticut, 367 U.S. 568, 571 n.2 (1961), and Watts v. Indiana, 338 U.S. 49, 51 (1949)); Kamisar, Drawing Lines, supra note 16, at 506 (quoting from Frankfurter's dissent in West Virginia Board of Education v. Barnette, 319 U.S. 624, 660-61 (1943)); Kamisar, Against Assisted Suicide, supra note 16, at 735-36, 750 (quoting Frankfurter to set up a response to Sedler); Kamisar, The "Fruits" of Miranda Violations, supra note 14, at 940-42 (quoting from Frankfurter's opinions); Kamisar, Comparative Reprehensibility, supra note 6, at 20 (quoting Frankfurter's dissent in Fisher v. United States, 328 U.S. 463, 477 (1946)); and Yale Kamisar, Miranda: The Case, the Man, and the Players, 82 MICH. L. REV. 1074, 1091 n.65 (1984) (reviewing LIVA BAKER, MIRANDA: CRIME, LAW AND POLITICS (1983) ("I can think of no person, on or off the Court, who has underscored the importance of the [F]ourth [A]mendment more forcefully and more eloquently than did Frankfurter ...".)). 35. The expression is one that Yale likes to use. See, e.g., Andy Daly & John Fedynsky, Caught on Tape: Yale Kamisar Talks About End of Teaching Career, RES GESTAE, Oct. 28, 2003, at 1, 10 ("I don't know, it may be the students are prepared, but they don't want to mix it up, so they say they're unprepared."). The interview is reprinted as You Have the Right to Remain Silent: An Interview With Yale Kamisar, LAW QUADRANGLE NOTES, Spring 2004, at 22. 36. 338 U.S. 25 (1949). 37. Kamisar, A Look Back, supra note 13, at 96 n.96. 38. Yale made a not entirely dissimilar point a number of years ago in a review of Anthony Lewis's Gideon's Trumpet, one of only two articles (both book reviews) he published in the Harvard Law Review. (The other was a review of The Horsky Report on police arrests for Investigation, Yale Kamisar, Book Review, 76 HARV. L. REV. 1502 (1963).) In Gideon's Trumpet, Lewis noted that, from his deathbed, Frankfurter agreed that Betts v. Brady should have been overturned when it was, in Gideon. ANTHONY LEWIS, GIDEON'S TRUMPET 221-22 (1964). As Yale wrote in his review: Lewis informs us Mr. Justice Black believed that if Mr. Justice Frankfurter, the preacher of judicial caution and self-restraint, had still been on the Court in 1963, by then he, too, would have found this [right to assigned counsel] "absolute." And Mr. Justice Frankfurter, we are also told, was quick to agree: "Of course I would." For all the talk, suggests Lewis, the difference between Justices Frankfurter and Black may "have come down to a question of timing." In 1942, continues Lewis, "Justice Frankfurter might have said, the country was not ready for a universal requirement of counsel in serious criminal cases; the bar was not prepared for such a burden; the states would have resisted and the decision would have been HeinOnline -- 102 Mich. L. Rev. 1753 2003-2004 1754 Michigan Law Review [Vol. 102:1747 - 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 Wolf's death (it has long since been formally overruled') 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 Districtv . Gobitis4,2 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."' 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 widely ignored." Twenty-one years (and hundreds of thousands of convictions of unrepresented defendants) later, suggests Lewis, Mr. Justice Frankfurter probably would have recognized that society had advanced in its standards of "what is deemed reasonable and right" to the point where it was now ready for the Gideon principle. Yale Kamisar, Book Review, 78 HARV. L. REV. 478, 479 (1964) [hereinafter Kamisar, On Gideon's Trumpet] (reviewing LEWIS, supra) (citations omitted) (emphasis added). That may be so, Yale allowed, but that the Court and the country were ready by 1963 - if not before - for the Gideon principle was no thanks to Frankfurter, with his "warnings about the dire consequences of overruling Betts." Id. at 479-80 (citing "especially" Foster v. Illinois, 332 U.S. 134, 139 (1947)). For a little history on what followed Yale's publication of this review, see Bruce Jacob, Memories of and Reflections About Gideon v. Wainwright, 33 STETSON L. REV. 181, 244 n.261 (2003). 39. Kamisar, A Look Back, supra note 13, at 96 n.96. 40. See Mapp v. Ohio, 367 U.S. 643 (1961) (overruling Wolf). 41. Kamisar, A Look Back, supra note 13, at 97 n. 96 (internal quotations omitted). 42. 310 U.S. 586 (1940). 43. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting). 44. Kamisar, A Look Back, supra note 13, 97 n.96. 45. Id. HeinOnline -- 102 Mich. L. Rev. 1754 2003-2004 Yale 1755 August 2004] 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 States4,7 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 ...d rive for the righting by the Court of Constitutional wrongs.5° 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."'" At times, 46. See, e.g., ROBERT A. BURT, Two JEWISH JUSTICES: OUTCASTS IN THE PROMISED LAND 40 (1988) ("It is well known that a convert is more zealous than one born to the faith." (quoting Frankfurter)). 47. 341 U.S. 494, 517 (1951) (Frankfurter, J., concurring). 48. Kamisar, A Look Back, supra note 13, at 97 n.96. 49. Kamisar, On Gideon's Trumpet, supra note 38, at 479 (referring to "Mr. Justice Frankfurter, the preacher of judicial caution and self-restraint," and criticizing him for just that in the context of the right to counsel). On judicial restraint as humility, generally, see WALLACE MENDELSON, JUSTICES BLACK AND FRANKFURTER: CONFLICT IN THE COURT 124 (1961) ("Mr. Justice Frankfurter is deeply humilitarian. Plainly this is an acquired characteristic, a judicial mold superimposed upon a powerfully active and thoroughly libertarian personality. If to some his modesty seems exaggerated - breast-beating it has been called - that may the measure of the struggle within him or within the Court."). 50. Fred Rodell, Alexander Bickel and the Harvard-FrankfurterS chool of Judicial Inertia, SCANLAN'S, May 1970, at 76 (book review of ALEXANDER BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1970)) [hereinafter Rodell, Alexander Bickel and the Harvard-FrankfurterS chool]. 51. Kamisar, A Look Back, supra note 13, at 95 n.96. HeinOnline -- 102 Mich. L. Rev. 1755 2003-2004 1756 Michigan Law Review [Vol. 102:1747 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." 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.5 As ' schoolboys, both excelled through hard work and native intelligence, rising from public educational institutions to be schooled in the Ivy League;56 at one time or another, both even attended New York University.7 After law school, both practiced anti-trust law for a while before moving,58 if Yale somewhat more quickly than Frankfurter, into the legal academy.9 As academics, both Yale and Frankfurter quickly 52. Cf Kamisar, The Compelling, Heartwrenching Case, supra note 17, at 1146 ("But I never promised, or at least I never meant to promise, that I could always show how simple seemingly subtle and complex problems really are. Sometimes, I am afraid, what appear to be agonizingly subtle and complex problems turn out to be just that."). 53. Jesse H. Choper, Yale Kamisar: Collaborator, Colleague, and Friend, 102 MICH. L. REV. 1698, 1700 (2004). I have heard Yale say the same thing. He has, apparently, been saying it for years. See, e.g., Silberman, supra note 22, at 38. 54. UROFSKY, supra note 31, at 1. 55. H.N. HIRSH, THE ENIGMA OF FELIX FRANKFURTER 13 (1981). 56. UROFSKY, supra note 31, at 1-2. 57. HARLAN B. PHILLIPS, FELIX FRANKFURTER REMINISCES RECORDED IN TALKS WITH DR. HARLAN B. PHILLIPS 15 (1960) [hereinafter PHILLIPS, FRANKFURTER REMINISCES]. 58. Compare Kamisar, A Look Back, supra note 13, at 73, with Rodell, Frankfurter, Conservative, supra note 31, at 451. 59. UROFSKY, supra note 31, at 8. HeinOnline -- 102 Mich. L. Rev. 1756 2003-2004