Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts

Abstract

This article examines the classic work of Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (1928), comparing its approach and findings to those of leading histories of the lower federal courts that have appeared in the last quarter century. Although the Frankfurter and Landis book was a pathbreaking history of the jurisdiction and caseload of the lower federal judiciary, it was far more than that. In form and rhetoric an “objective” and “scientific” study of “the federal system,” it was in fact an elaborate historical justification for a set of reform proposals intended not only to make the federal courts more efficient but also to reshape their structure and jurisdiction to serve the Progressive political purposes that the authors shared with Justice Louis Brandeis. After explaining the book’s underlying political strategy and implications, the article traces its subsequent influence on thinking about the proper role and jurisdiction of the federal courts. Finally, the article reviews several dozen recent histories of the lower federal courts and outlines some of the ways in which the influence of the Frankfurter and Landis book continues and, more important, some of the ways in which recent works depart from it and substantially advance our understanding of the history and operation of the lower federal courts.

Keywords: Frankfurter, Brandeis, history of federal courts, federal jurisdiction, The Business of the Supreme Court, Progressivism