'Democratic Justice' Review: Felix Frankfurter's Double Act
By: Charles S. Dameron (WSJ)
S E E D E D C O N T E N T
Felix Frankfurter's early years were itinerant. He was born in 1882, in Vienna, the third child of a lower-middle-class Jewish family. The Frankfurters soon moved to Budapest, where Felix struggled to adjust to Hungarian-language instruction in the local schools, and then moved back to Vienna. When Felix was 11, the Frankfurters immigrated to New York. Felix made the most of it. By the time he finished his studies at Public School 25 three years later, he had mastered English and begun cultivating a passionate interest in U.S. politics. He enrolled in a five-year accelerated high school and college program at City College of New York, got involved in the debating society on campus, and graduated third in his class at the age of 19. Frankfurter's next step on this meritocratic escalator, at Harvard Law School—where he graduated first in his class—further confirmed his talents. In 1906, less than 12 years after he landed at Ellis Island knowing not a word of English, Frankfurter was hired by one of Wall Street's leading law firms.
Frankfurter was just getting started, as the Georgetown law professor Brad Snyder makes clear in his biography, "Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment." Few Americans in the 20th century had as wide an influence on public affairs as Felix Frankfurter. As an adviser and friend to many of the nation's leading officials and intellectuals, and as a professor who mentored a formidable roster of ambitious students at Harvard Law School, he left an indelible—and indelibly progressive—stamp on American life through the careers of others. The irony of his career is that at its apex, during 23 years of service on the Supreme Court, he broke from his ideological allies by following a philosophy of judicial restraint that progressive critics regarded as a dead end.
Mr. Snyder’s book is a well-timed defense of Frankfurter’s hands-off approach to judicial review at the Supreme Court, and more broadly tells the stirring chronicle of Frankfurter’s life as a supremely engaged citizen of the United States. Frankfurter’s personality combined an unyielding curiosity and social energy—New Republic co-founder Herbert Croly described him as “one of the most completely alive men whom I have ever met”—with a deep commitment to the law and to public service, activated by what a friend described as his almost “childlike” patriotism. These qualities placed Frankfurter near the center of the national narrative for the better part of 50 years. His story is a testament to his capabilities and to the dynamism of a democratic society he revered.
Frankfurter’s career in government began at 24. Henry Stimson, who was at the time the U.S. Attorney in New York, asked Frankfurter to join his office as an assistant, to carry out President Theodore Roosevelt’s trustbusting agenda, and Frankfurter earned a name for himself through the prosecution of the Sugar Trust. When Stimson became Secretary of War in 1911, he brought Frankfurter with him as a senior lawyer at the War Department. These were formative years, as Frankfurter and his Dupont Circle housemates turned their home into a focal point for the “New Nationalism” movement around Roosevelt and entertained a diverse cast of guests, including Justice Oliver Wendell Holmes and the crusading lawyer (and future Justice) Louis Brandeis.
When an offer came, in 1914, to return to Harvard to teach law, Frankfurter received advice from Stimson, Roosevelt, Holmes and others not to take it, and to remain closer to political life in Washington or New York. But Brandeis told Frankfurter that he could use his professorship to inspire young people interested in public service, and that is what Frankfurter did. During his 25 years at Harvard, Frankfurter mentored students who went on to play prominent roles in public life, among them Dean Acheson (with whom Frankfurter later took daily walks to work in Washington), Benjamin Cohen, Henry Friendly, James Landis and John McCloy. Frankfurter’s placement in the academy afforded him the time to build lasting friendships with a remarkable range of personalities, including Isaiah Berlin, Robert Frost and Harold Laski.
On the side, Frankfurter took up all manner of ad hoc public causes. He defended Oregon’s minimum-wage law from a constitutional challenge in the U.S. Supreme Court; led mediation efforts to resolve labor strikes during World War I; attended the Paris Peace Conference to advance the cause of a Jewish state in Palestine; joined the ACLU as a founding member of its national committee, standing up for free speech and incurring the wrath of Harvard administrators; quarterbacked strategies seeking review of the convictions of immigrant anarchists Nicola Sacco and Bartolomeo Vanzetti; and served as an adviser to Franklin Roosevelt as Roosevelt rose from the governor’s office in New York to the presidency.
Justice Frankfurter, however, disappointed many allies. He had come of age in an environment where a conservative Supreme Court stifled progressive legislation at the state and federal levels, and had long felt that the Court should play a background role. In 1923, he wrote to Judge Learned Hand that the “possible gain” of an active Supreme Court “isn’t worth the cost of having five men without any reasonable probability that they are qualified for the task, determine the course of social policy for the states and the nation.”
Frankfurter adhered to this view even after changes in the Court’s composition through the 1940s and ’50s gave progressives the chance to achieve priorities through constitutional litigation. But his colleagues on the Court had a more expansive conception of the judicial role. It didn’t help that the personality traits that made Frankfurter such a force in the outside world—his conspicuous intellect and his volubility—often diminished his influence among his brethren. As Mr. Snyder acknowledges, Frankfurter “alienated his colleagues with long, pedantic conference remarks,” and generally proved ineffective as a “coalition builder.”
He still had his successes. Most striking was his push for reargument in the epochal desegregation case of Brown v. Board of Education. Frankfurter wanted to overrule the odious doctrine of “separate but equal,” but he was attuned to the hesitation of other members of the court. Mr. Snyder credits Frankfurter’s delaying tactics for helping the Court achieve unanimity, allowing it to speak with a clear voice against segregation. Brown was proof that Frankfurter was willing to push for bold judicial action when it counted most. But it was also the high-water mark of his influence with newly appointed Chief Justice Earl Warren. By the time Frankfurter retired in 1962, he had become a source of dissent on the Warren Court, most notably in the landmark case of Baker v. Carr. There Frankfurter issued his final opinion—one that Mr. Snyder describes as his “most prophetic”—urging the Court to stay out of the “political thicket” of legislative apportionment, the process by which state legislative districts are formed.
The judicial restraint championed by Frankfurter has its virtues, and Mr. Snyder’s biography ably articulates them. Frankfurter had an unshakable faith in the vibrant democratic culture that enabled his rise from obscurity, and he recognized that an overactive judiciary would distort that culture, compromising the Court in the process. The brutal confirmation battles of the modern era and sharp partisan splits in public opinion about the Court’s work attest to these dangers, and suggest that liberals and conservatives still have much to learn from Frankfurter’s example. Frankfurter’s “forbearance in the use of power,” his student Paul Freund eulogized, had “meaning and relevance far beyond the stage of his office and his time.”
Mr. Dameron is a lawyer in Washington.
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An excellent review of what is likely a worthy book. The subject from all accounts is an old fashioned liberal and a true intellectual who represents a certain culture that acquired liberal views through childhood & upbringing. I would hope that progressives take note of the last paragraph of that review. I wonder if any of them still care?
The Book is:
Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment