Felix Frankfurter

Justice

• Born: November 15, 1882
• Birthplace: Vienna, Austria
• Died: February 22, 1965
• Place of death: Washington, D.C.

Associate justice of the United States (1939-1962)

Throughout Frankfurter’s tenure on the United States Supreme Court, he was committed to the principle of judicial restraint. As a teacher at Harvard Law School for more than twenty-five years, he was one of America’s greatest constitutional scholars.

Areas of achievement Law, scholarship

Early Life

At the age of twelve, Felix Frankfurter emigrated from Vienna to New York City with his father, Leopold, his mother, Emma, three brothers, and two sisters. It was 1894. His father was outgoing and gregarious and something of a romantic dreamer, who was also not very ambitious but always likable. His mother was hard-driving and serious, instilling in her children a sense of responsibility and obligation. “Hold yourself dear,” she told her children, by which she meant: Set for yourself worthy goals and be proud of your cultural roots in Judaism. Frankfurter had the skills necessary to do well in the best schools in New York, but his family’s means were so meager that he had to be content with a public education. He started at Public School 25 in the heart of the city and completed school at City College of New York (CCNY) in 1902. He was third in his class at CCNY and was graduated at the age of nineteen. At the urging of friends, he competed for admission to Harvard Law School, was accepted in 1903, and was graduated in 1906, having been editor of the Harvard Law Review. Though he began his career with a prestigious Wall Street law firm, within the year his penchant for social causes led him to accept a government job with Henry Lewis Stimson, Theodore Roosevelt’s federal attorney for the Southern District Court of New York. Henry Stimson was later to become Franklin D. Roosevelt’s secretary of war. Because of the close connection Frankfurter had with these powerful and influential governmental leaders and his extraordinary skills in administrative law, his alma mater soon sought to entice him back to the law school.

Frankfurter returned to Harvard in 1914, where he established himself as an outstanding constitutional lawyer. He remained there until 1939, when he was appointed to the United States Supreme Court by President Roosevelt. Many conservative members of the United States Senate were fearful of his appointment, for during his years at Harvard he had a history of supporting unpopular Progressive causes. He was a legal adviser to both the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU). In addition, he was a major contributor to Roosevelt’s New Deal policies during their formative years in the Depression.

Three specific events led political conservatives to conclude that Frankfurter was a dangerous radical not to be trusted to sit on the highest court in the land his Bisbee and Mooney opinions and his defense of Nicola Sacco and Bartolomeo Vanzetti. Bisbee was a small copper-mining town in Arizona. One hot day in July, 1917, on the orders of the mine owners, the sheriff of Bisbee rounded up nearly twelve hundred striking mine workers and hauled them away in trucks to a remote spot in the Arizona desert, where they remained without food or shelter for two days. Frankfurter, as a member of the United States commission investigating the incident, wrote a scathing report accusing the mine owners of acting without legal authorization. His report eventually led to the trial, although not the conviction, of many mine owners.

The Mooney opinion arose from the activities of Tom Mooney, a radical labor agitator accused of exploding a bomb that killed nineteen people in a labor parade in San Francisco in 1916. Because of Mooney’s history of violent labor agitation, he was falsely convicted and served twenty years in prison for a crime he did not commit. Frankfurter’s stinging condemnation of the San Francisco authorities rested on the argument that they had convicted Mooney not on the basis of evidence but on the basis of his political views. Conservatives perceived this report as clear evidence of his bias in favor of the labor union movement.

However, it was Frankfurter’s book The Case of Sacco and Vanzetti (1927), written while he was still at Harvard, which most incensed his critics. In the book, he accused Judge Webster Thayer, the presiding judge at the Sacco-Vanzetti trial, of distorting the proceeding’s legal perspective. In 1920, Sacco and Vanzetti had been charged with the robbery and murder of the paymaster and guard at the Slater Morrill Shoe Company in South Braintree, Massachusetts. Sacco was an employee of the shoe factory, and Vanzetti was a fish peddler; more important, both were Communists, anarchists, draft dodgers, labor radicals, and, perhaps worst of all, Italians. According to Frankfurter, Thayer presided over a legal lynching in which the grounds for conviction were not evidence beyond reasonable doubt but public dislike for foreigners and political radicals. Despite Frankfurter’s efforts, both men were convicted and executed, and as in the case of Mooney, Frankfurter’s defense of these two Italians gave him a reputation as a “radical,” even “communist,” law professor. This he clearly was not: He was a jurist with an unwavering commitment to the rule of law and the institutions of constitutional democracy.

Life’s Work

Those who might have hoped for radicalism on the bench were quickly disappointed, and those who had feared radicalism had very little to trouble them. From the moment he took his place on the Court, it was evident that Frankfurter did not have the doctrinaire passions of a radical. In private life, Frankfurter was an energetic, vivacious, ebullient personality, constantly in demand at social functions. He was a voluminous correspondent and an incessant, albeit captivating, conversationalist. It is fair to say, even though while on the Court he took a narrow view of the judiciary’s role in government (a view often dismaying to civil libertarians), his legal influence as a jurist, a scholar, and a teacher made as great an impact on American lawyers and public officials as any justice in the twentieth century. On the Court, he became an advocate of what he called “judicial restraint.” Senators and congressional legislators make the laws, he declared, and however unwise judges might think them to be, judges have only the limited obligation to interpret them. A Supreme Court justice must cultivate, he argued, “disinterest and detachment” on the bench.

Frankfurter maintained that it is the judge’s responsibility to seek “judicial balancing.” This meant that it was the Court’s duty to find a balance between the collective interests of government represented by legislators and the individual citizen’s personal liberties and aspirations, and to find this balance without doctrinaire juridical presuppositions or biases. “He must not step into the shoes of the lawmaker,” he wrote, nor, he maintained, should it be the judge’s role to act as the individual’s personal advocate.

The history of Frankfurter’s decisions on the Court reflects a lifelong commitment to the concept of judicial balancing. In 1951, on the issue of loyalty versus security, he supported the government’s contention that it was unconstitutional to advocate the forcible overthrow of the United States (Dennis v. United States). Many opponents of the government’s position had argued that taking overt action against the government was a constitutional prohibition, but merely advocating its “overthrow” was protected by the First Amendment right to free speech. Unless there was a “clear and present danger,” as Justice Oliver Wendell Holmes, Jr., had argued in 1919 and advocacy in peacetime was not such a danger then a person’s liberty to speak in favor of changing the government was to be constitutionally protected. People have a right to advocate their “fighting faiths,” Holmes said.

Frankfurter also supported the right of the Congress to hold people in criminal contempt for refusing to answer questions about their alleged subversive affiliations (Uphaus v. Wyman, 1959). Nor could government employees refuse to answer questions about their political views and affiliations (Beilan v. Board of Education, 1958). In these cases, Frankfurter came down on the government’s side, insisting that the right to free speech, the right to assemble, and the Fifth Amendment right not to be a witness against oneself had not been abrogated. Yet against these positions he balanced his opinions in favor of the individual’s freedom from government interference when he believed that the constitutional protections of one citizen were being sacrificed to meet the personal preferences of others. For example, he held as unconstitutional a Michigan obscenity law banning the sale of all books judged “inappropriate for children” as much too ambiguously defined (Butler v. Michigan, 1957). He also voted to uphold the doctrine of academic and political freedom as protected by the framers of the Constitution (Sweezy v. New Hampshire, 1957). He defended the notion of placing limits on the congressional investigation of subversion (Watkins v. United States, 1957) and took a strong stand in favor of the Fourth Amendment’s restriction against “unreasonable search and seizure” (Harris v. United States, 1947).

On the question of racial equality, he consistently supported the demands of black Americans for constitutional protection under the “equal protection clause” in the Fourteenth Amendment. He, along with Chief Justice Earl Warren, led the legal fight against the doctrine of“separate but equal” for racial minorities (Brown v. Board of Education, 1954). Moreover, it was Frankfurter who authored the “all deliberate speed” clause in Brown II (1955), a clause intended to prevent states and school boards from obstructing and delaying the implementation of the law (Cooper v. Aaron, 1958). The elected leaders of democratic government, he declared, are not to inflame public feeling by obstructive measures but are to help lead the public into compliance with the supreme law of the land.

Dedication to constitutional balancing is also to be found in Frankfurter’s opinions on religious freedom. On the one hand, he supported the controversial notion that compulsory flag saluting laws do not violate the First Amendment right to the freedom of religion, even though the religious beliefs of some citizens forbid saluting the flag because it violates God’s injunction against taking “oaths” (Minerville v. Gobitis, 1940). He concurred with the State of Maryland’s so-called blue law provision forbidding certain kinds of Sunday commerce (McGowan v. Maryland, 1961). On the other hand, he had no aversion to balancing these opinions against a very strict interpretation of the “separation of church and state doctrine” in 1947, when he opposed payments from the state for the transportation of parochial schoolchildren (Everson v. Board of Education, 1958). He also objected to the release-time programs for religious indoctrination for public school children (McCollum v. Board of Education, 1948).

Frankfurter’s concern with the balance of powers among the three branches of government is vividly illustrated in one of the last opinions he handed down before retiring from the Supreme Court, Baker v. Carr (1962). In this case, voters in the state of Tennessee had asked for Court assistance in redressing unjust congressional district representation. Citizens in various counties throughout the state were receiving unequal representation. One state official, for example, might represent one million people and have one vote in the state legislature, while another official representing ten thousand votes would have the same one vote. Generally speaking, rural areas were overrepresented, while city dwellers were vastly underrepresented. Justice William J. Brennan, Jr., who had been Frankfurter’s student at Harvard, spoke for the majority of the Court in 1962, when he argued that such population imbalances denied “equal protection of the laws” for large population centers in the United States. Frankfurter disagreed passionately with this legal conclusion and wrote a vehement minority report, declaring that the judiciary had not been granted the constitutional power to order the legislative branch of government to correct its own malapportionment mistakes. Usurpation of such power by the judiciary could only have the effect of undermining public confidence in the Court’s role as wholly detached from political influences. Taking on tasks that were not its inherent responsibility could only serve to drag the courts into political entanglements that would eventually end in compromising political settlements.

Baker v. Carr, coming at the end of Frankfurter’s long tenure on the bench, represented his lifelong commitment to the principle of judicial restraint. It is true that both liberals and conservatives talk much about judicial restraint, particularly when they lack a voting majority in their favor on the Court. However, for Frankfurter, there was no posturing; his constant allegiance was to the principle when he wrote,

There is not under our Constitution a judicial remedy for every political mischief . . . for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused so to enthrone the judiciary.

On April 5, 1962, in his court chambers, the justice suffered a stroke; and although he anticipated returning to the Court, his health never permitted it. With regret, President John F. Kennedy accepted his resignation on August 28. The justice and his wife, Marion Denman Frankfurter, continued to live in Washington, D.C., until his death of a heart attack three years later.

Significance

It is generally true that liberal and conservative politicians alike talk much about judicial restraint (particularly when their viewpoint lacks a favorable majority on the Court), but for Frankfurter there was never any posturing; his constant allegiance was to the principle. It was at times a narrow, almost noninterventionist, view of juridical power a view frequently dismaying to civil libertarians but, be that as it may, his influence as a jurist, scholar, and teacher made as great an impact on public officials and lawyers as any American justice in the twentieth century.

Bibliography

Baker, Liva. Felix Frankfurter. New York: Coward-McCann, 1969. This biography is a detailed account of Frankfurter’s life and career, with much of the emphasis on those years before his appointment to the United States Supreme Court. Particular attention is paid to tracing his youthful beginnings, his law school days, and his contributions to Franklin D. Roosevelt’s New Deal policies.

Domnarski, William. The Great Justices, 1941-1954: Black, Douglas, Frankfurter, and Jackson in Chambers. Ann Arbor: University of Michigan Press, 2006. Domnarski examines the inner workings of the Supreme Court by focusing on Frankfurter and three other jurists who were appointed by Franklin D. Roosevelt.

Hirsch, H. N. The Enigma of Felix Frankfurter. New York: Basic Books, 1981. This text attempts to explain Frankfurter’s complex personality in psychological terms. Hirsch finds the ideological core of Frankfurter’s judicial personality rooted in his poor and struggling beginnings and his later need for acceptance and belonging. It is difficult not to be somewhat dubious about this sort of interpretation.

Jacobs, Clyde E. Justice Frankfurter and Civil Liberties. Berkeley: University of California Press, 1961. This book concentrates on Frankfurter’s view of the democratic rights embodied in the First Amendment to the Constitution; in particular, his perception of the freedom of religion, speech, press, and assembly clauses. Includes an extended analysis of Frankfurter’s stand on the notion of personal liberty and national security.

Kurland, Philip B. Mr. Justice Frankfurter and the Constitution. Chicago: University of Chicago Press, 1971. This is a condensed version of Frankfurter’s opinions on the Court. It also includes Kurland’s marginalia. It is a helpful, efficient guide to those wishing a concise, accurate account of Frankfurter’s most important cases.

Lash, Joseph P., ed. From Diaries of Felix Frankfurter. New York: W. W. Norton, 1975. One-third of this volume is a personal biographical sketch by Lash. The other two-thirds contains Frankfurter’s reflections in diary form of his days at Harvard and his encounters with President Harry S. Truman and General Douglas MacArthur. He also discusses his views on the relation between church and state.

Parrish, Michael E. Felix Frankfurter and His Times: The Reform Years. New York: Free Press, 1982. This book concentrates on Frankfurter’s years as a Harvard law professor and the specific events that led to conservative distrust and liberal disappointment. Parrish offers interesting analyses of the Bisbee and Mooney reports, the Sacco and Vanzetti trial, and Frankfurter’s interests in Zionism and the New Deal.

Pederson, William D., and Norman W. Provizer, eds. Leaders of the Pack: Polls and Case Studies of the Great Supreme Court Justices. New York: P. Lang, 2003. Examines the personalities and decisions of the Court’s greatest members, including Frankfurter.

Shaw, Stephen K., William D. Pederson, and Frank J. Williams, eds. Franklin D. Roosevelt and the Transformation of the Supreme Court. Armonk, N.Y.: M. E. Sharpe, 2000. Includes the essay “Felix Frankfurter’s Transition to the Judicial Role.”

Related Articles in Great Events from History: The Twentieth Century

1901-1940: April 9, 1923: U.S. Supreme Court Rules Against Minimum Wage Laws.

1941-1970: June 14, 1943: Supreme Court Rules That States Cannot Compel Flag Salutes; May 3, 1948: Antitrust Rulings Force Film Studios to Divest Theaters; March 26, 1962-February 17, 1964: Supreme Court Requires Population to Determine Voting Districts.