Jeffrey Rosen is the president and chief executive of the National Constitution Center and a law professor at George Washington University. This is a assumed above the fray (honorary co-chairs: Breyer and Gorsuch) institution. It worked with C-SPAN on their Landmark Cases series. Rosen himself comes off as oh so "reasonable" and enthusiastic about constitutional measures when they air stuff with him in it.
Much of that is fine, even if you are more passionate about pushing a certain ideological point of view. There is a limit there and I was somewhat annoyed reading his review of a new Justice Frankfurter biography. It is somewhat selective though Rosen does note Frankfurter himself was an imperfect sort with a lack of self-awareness.
Frankfurter is put out as a warning, a liberal who support judicial restraint:
Ever since the New Deal era, Frankfurter had warned liberals that fighting their political battles in the Supreme Court would backfire, since conservatives would inevitably regain control of the court and reverse their judicial victories.
The book notes that this is a good time to remember his argument for “modest, incremental and democratic approach to judging." Again, that's fine, but Frankfurter was not soooo very restrained. The review makes it out like the ONLY time he didn't restrain himself (and even there he is given the credit for finding a way to delay judgment to get unanimity) is in school segregation. Brown. The ultimate exception that proves the rule.
Racial discrimination was a central political battle of the day. The courts supporting racial equality is a major reason there was backlash and conservatives used the courts to go another way. Brown was not the only ruling where racial equality was promoted, including with Frankfurter going alone. The review oversells the case even here.
The Supreme Court got involved in other battles for which Frankfurter did not feel was off limits. A famous case here is the Steel Seizure Cases in which the Supreme Court chose a side. It was possible, I suppose, for the Supreme Court to play keep away there as well, giving Congress, the steel mills/workers, and POTUS more time (events were already speeding along) to find a solution. He chose not to go that route.
Frankfurter famously argued for the constitutionality of the flag salute as a matter of national unity. Not noted and often forgotten was his strong belief in separation of church and state, basically for similar reasons. He went further than Justice Black on that (voting to reject bus fares) and did not have a "minimalist" view on the Establishment Clause in that fashion.
The bottom line then becomes what actually did Frankfurter warn the liberals about? The main "political" battle that seems to stand out is partisan gerrymandering. Was it really wrong there for the courts to step in to address something politically broken and hard to see being fixed without a push? The breadth of the approach might have been dubious in the end, but the basic principle to me was a sound bet.
Frankfurter also clashed with Black on how far to take the Bill of Rights, including regarding free speech vs. McCarthyism. I think it was ultimately a good thing to have conservative forces in the Supreme Court to balance what was a bit more complicated than Black/Douglas argued though their point of view is where my heart generally is.
But, even here, there is something of a case of degree. Frankfurter agreed in certain cases as did Justice Harlan, another conservative of the day. In that period, Brennan was a moderate liberal, willing to compromise and put forth middle positions on various issues. It's fine to have a conservative there to help caution and remind. At the time, however, it is unclear when the justices were going "too far," especially since they overall was not really going against the general tenor of the times.
Frankfurter is a useful tool to remind that there is a place for restraint. Still, it is also useful to note that the guy was a bit of a hypocrite. Restraint would be to keep one's hands out of the political cookie jar while on the Court. Frankfurter was fine with continue to be involved some way there, not giving up totally his years of being a power behind the scenes.
He also did not totally keep out of political battles in another way. Frankfurter's conservatism was at times motivated by the concern that the courts going too far would backfire. Courts have no power of the sword or purse, after all, and if those with power thought the courts were going off their skids or something, it might bite them. It also might be counterproductive to liberal causes.
So, for instance, Frankfurter from my understanding (along with Warren) did not want to touch cases involving miscegenation in the 1950s, even if the result was individual litigants were burned. Is this a sound use of judicial power? Perhaps, it is an honest accounting of the limits of judicial power and the realization that justice comes in various forms.
Still, it is a form of fighting political powers in the courts to factor in assumed political effects when judging. The op-ed is a tad simplistic about the balances of Frankfurter's approach. Rosen also notes that Roberts cited Frankfurter in Dobbs in support of an in between position:
The fact that Chief Justice Roberts could not persuade a single justice to join him in the court’s recent polarized Dobbs opinion suggests that neither liberals nor conservatives today are inclined to put institutional legitimacy above their vision of constitutional principle.
Again, of course, Roberts minimalism is selective. And, what is this "both sides" business? What value would the liberals gain by watering down Casey and having a 5-4 Court anyway? Isn't the path to "institutional legitimacy" a matter of upholding decades of precedent, which itself provided a moderate compromise position?
Kagan and Breyer repeatedly compromised to uphold principle even when their ideological priors would lead them to go another way. This comment is blatant bullshit on a basic level. Frankfurter fought political battles in the courtroom repeatedly. It is a matter of degree.
This can be shown even in a relatively brief book review.