Felix Frankfurter and Muzak
I was astonished to read in this week’s New Yorker about a case decided by the Supreme Court in the 1950s. In Public Utilities Commission of the District of Columbia v. Pollak, the Court upheld a municipal transit system’s authority to play music through loudspeakers (basically, muzak) for riders. Justice Douglas was in dissent arguing that “the right to be let alone” barred compelling people to listen to state broadcasting.
What astonished was that Justice Frankfurter recused himself in the case. Why? He said that he hated Muzak so much that he could not judge the case fairly. Here is his explanation in full:
The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.
This case for me presents such a situation. My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this case because I have for some time been of the view that it is desirable to state why one takes himself out of a case.