Judicial deference and the progressive critique
In the episode devoted to Damon Root’s account of the libertarian legal movement, Bob Zadek framed judicial deference as the view that courts, and specifically the Supreme Court, should bend over backwards to find laws constitutional because those laws were passed by representatives of the people. On Zadek’s summary, deference gives courts a bias in favor of finding a law constitutional, and he grouped Felix Frankfurter with Oliver Wendell Holmes as figures who bought into a system of top-down control in which the courts defer to the wisdom of the legislature even where individual rights may be sacrificed Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root’s reply placed Frankfurter among the original progressives of the late nineteenth and early twentieth centuries, who wanted the courts to play a very small role in questions of the government’s role in the economy. In Root’s account these progressives thought the courts should almost never declare an act of a state legislature or Congress unconstitutional, and that the burden of proof for striking down an economic regulation was so high it could almost never be met. Root described Frankfurter as a progressive activist as well as a law professor and an advisor to Franklin Roosevelt’s New Deal, who was then appointed by Roosevelt to the Supreme Court, and who believed that the elected branches — lawmakers, legislatures, the president — should be given a wide degree of latitude by the courts Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
The Labor Injunction and the turn against freedom of contract
Richard Epstein returned to Frankfurter in two later episodes on labor law. In the episode on the morality of the modern administrative state, Epstein noted that the same Felix Frankfurter who had been optimistic about the federal government’s ability to regulate radio frequencies under the Federal Communications Act wrote a 1930 book with Nathan Greene called The Labor Injunction, which argued that organized labor had to be put into the situation so that an employer should never be allowed to get an injunction against a union prepared to organize its work. Epstein said that in 1983, on the fiftieth anniversary of the New Deal, he made himself something of a pariah at Yale Law School by defending the earlier regime and attacking what he called the Frankfurterian approach, arguing that government regulation of labor markets would not work as well as a free competitive system The Dubious Morality of the Modern Administrative State (2020).
Epstein set that book within a longer legal history. Before the New Deal, he said, the United States Supreme Court on several occasions struck down statutes requiring mandatory collective bargaining, in the federal case of Adair in 1908 and with respect to state unionization in Coppage v. Kansas, the latter an opinion by Justice Pitney that Epstein called one of the great opinions explaining how freedom of contract dominates such positions The Dubious Morality of the Modern Administrative State (2020). In the later episode on the California fast food legislation, Epstein repeated the sequence: Adair v. United States in 1908 by Justice Harlan, then the more elaborate and more effective Coppage v. Kansas by Mahlon Pitney in early 1915, after which, by the 1920s, people like Felix Frankfurter were so strongly pro-union that it was only a question of time before the earlier cases toppled Which Side Are You On? (2022).
From the Railway Labor Act to the National Labor Relations Act
Epstein’s chronology in the 2022 episode continued from Frankfurter’s stance to the statutes that followed. The earlier cases began to topple in 1926 with the passage of the Railway Labor Act, applied to railways only because federal jurisdiction under a narrow reading of the Commerce Clause was not in question. Then came 1930 and the Frankfurter and Greene book The Labor Injunction, which Epstein described as very strongly pro-union; Norris-LaGuardia was passed in 1932; and the National Labor Relations Act followed after a couple of failed attempts in 1937, undoing the structure built by the earlier cases Which Side Are You On? (2022).
Epstein’s account of what the National Labor Relations Act did turned on the findings attached to it. He said the findings declared that there was no actual freedom of contract between management and work, and he asked what the word “actual” could mean in that setting. In his telling, the drafters could not prove that the contracts were coercive, employers were often in competitive industries, and wages were rising at the time, so the conclusion rested on a philosophical belief that the moment there is an employer there is an inequality of bargaining power and the worker has no choice. Epstein said this had to be reconciled with the consistent rise in wages during the entire period in which workers were said to be oppressed Which Side Are You On? (2022).
The same material reappears in the January 2023 episode, where Bob Zadek recalled that when the National Labor Relations Act was enacted, Epstein had recited the necessary findings the legislature made, and Zadek paraphrased them as being that it is in the best interest of the country to have strong unions. Zadek asked where that was written and how such a finding could govern union-management relations for almost a century. Epstein’s answer repeated the Adair and Coppage history, the Frankfurter and Greene book, Norris-LaGuardia in 1932, and the National Labor Relations Act after failed attempts in 1937 California Passes the Worst Piece of Legislation Since AB 5 (2023).
The pre-New Deal baseline
Epstein’s larger argument in both labor episodes was that the period from roughly 1870 to 1940, when labor law was extremely hostile to unions, saw the single greatest improvement in human well-being, and that this was not an accident. He cited a book by Robert Gordon on the rise and fall of the American economic system, and in the earlier episode referred to the Lochner era as his own term for the case standing for freedom of contract, saying the improvement in material conditions during that period was greater than at any other time before or after and was largely driven by freedom of contract ideology The Dubious Morality of the Modern Administrative State (2020). In the 2022 episode he described the pre-New Deal period from the end of the Civil War to the Second World War as the time closest to a classical liberal constitutional framework, and said that after the war unions grew somewhat more powerful but the economy never reproduced that level of growth Which Side Are You On? (2022).
On safety, Epstein argued that firms have reputations, so that even without liability for damages the loss to reputation exceeds the cost of prevention, and that records of air safety and vehicle safety improved mightily during the same period. He reasoned that whether or not employers were liable for accidents, it was in the interest of a business with close consensual arrangements with workers to make the operation run better, and that the real concern was whether safety devices would have to be approved by a federal board or work rules changed through a union procedure Which Side Are You On? (2022). His one-sentence answer to why the old model was destroyed in the New Deal was that the macro situation deteriorated: Smoot-Hawley on tariffs and massive deflation under Hoover, after which the response compounded the felony California Passes the Worst Piece of Legislation Since AB 5 (2023).
Across episodes: the same question in three episodes
Frankfurter is treated consistently rather than developmentally. Damon Root, in the 2014 episode, presents him as a progressive who wanted courts to defer to the elected branches on economic regulation; Richard Epstein, in the 2020 and 2022 episodes, presents him as the co-author of The Labor Injunction and the namesake of the Frankfurterian approach to labor law that Epstein attacked at Yale in 1983. The 2023 episode repeats Epstein’s 2022 account almost verbatim, with the same cases, the same book and the same chronology, so the excerpts show no change in the argument between the earlier and later treatment, only repetition of it.
What the sources do not cover
The excerpts do not describe Frankfurter’s early life, his tenure as a law professor, the details of his appointment to the Supreme Court, or any of his judicial opinions. They do not state what Adair, Coppage v. Kansas or Lochner held beyond the general propositions Epstein attributes to them, nor which constitutional provisions those cases turned on. The excerpts also break off before Bob Zadek’s question in the 2014 episode is completed, so his follow-up on economic rights and the New Deal is not available.