The US Supreme Court had the power to overturn FDR’s internment order, but two main factors prevented it. Justice Felix Frankfurter worked hard to persuade his colleagues to keep the policy in place. Simultaneously, Frankfurter’s close friend, Assistant Secretary of War John McCloy, the most prominent official advocating internment, engaged in a cover-up. He collaborated with officials inside the War Department to suppress information and falsify records crucial to the Hirabayashi case. If the Court had known that the evidence of Japanese-American sabotage had been doctored, the Court might have struck the President’s order down. Chapter 4 unpacks the cover-up and shows how a small group of officials actively undermined the majority’s will.

Felix Frankfurter invented the field of federal jurisdiction. It concerned the occasions for the proper exercise of federal judicial power under Article III. The Hughes Court endorsed the Declaratory Judgment Act as a mechanism for efficient dispute adjudication. And, though the Court did not follow his advice consistently, in Ashwander v. TVA Justice Brandeis developed a comprehensive list of rules that should limit the number of cases in which the federal courts exercised their power. Among those doctrines was a newly invigorated law of standing that, Brandeis and Frankfurter may have hoped, would have insulated New Deal legislation against constitutional challenge.

This chapter outlines the Progressive theory of administrative agencies and their relation to the other branches of government. They were specialized and flexible enough to adapt to rapid change, and for that reason could not be bound tightly to judicial-like procedures.

This chapter uses examples from the United States to sketch these and other aspects of toweringness as a relational concept. It examines toweringness as a relation between one judge and his or her colleagues, using brief case studies from the New Deal era, which show judges as dependent upon the historical circumstances in which they find themselves, and a case study of the relation between William J Brennan and Earl Warren, showing an aspect of a court’s bureaucratic or institutional organization with a discussion of law clerks and opinion-drafting, and as subject to re-evaluation using Felix Frankfurter as an example.