How the sausage was made

“Grow up.” According to his most recent biographer, Brad Snyder, that was Felix Frankfurter’s admonition to the United States Supreme Court’s idealistic clerks.

Over lunch with Justice Frankfurter, the clerks were griping about the Court’s dodging of school-segregation cases. They were zealous to eviscerate “separate but equal,” the revolting doctrine of white supremacy that the Court’s 1896 decision in Plessy v. Ferguson had passed off as constitutionally legitimate racial parity: the state could mandate the consignment of people from different races to separate public facilities, provided that there was rough equality in the public resources dedicated to each.

It was 1952 and Frankfurter, then seventy, was in his thirteenth year on the high court. In this gaggle of the nation’s most accomplished young legal scholars, so determined to change the world, he can only have seen his brash young self: a trailblazing progressive dynamo, a Harvard Law School graduate of such distinction as to be regarded as the peer of his idol, mentor, and eventual patron and collaborator, Louis Brandeis. But oh, the miles on those wheels, the scars of what for mortals lesser than Felix Frankfurter would have been multiple lives and careers—activist lawyer, political strategist, journalist, diplomat, Zionist, top confidant of the longest-serving president in American history during a global war, and, in his spare time, jurist.

He chided: “You think we’re going to decide those cases in an election year?”

Frankfurter was as well known for not suffering fools gladly as for deploying sycophancy when it suited his purposes.

The clerks were aghast at Frankfurter’s cynicism—though by the time one of them, Abner Mikva, neared his seventies, his own seamless transition from highly regarded federal appellate judge to White House counsel for scandal-ridden President Bill Clinton must have made Frankfurter seem a prophet. In Washington, political calculations are the coin of the realm, even in the government’s putatively nonpolitical branch. More to the point, although Frankfurter was as well known for not suffering fools gladly as for deploying sycophancy when it suited his purposes, he was not being churlish in posing his bracing question. As Snyder elaborates, the justice was engaged in an exquisitely reasoned strategy of delay. That, along with his characteristic insouciance about legal ethics and the separation of powers, resulted two years later in Brown v. Board of Education—one of the landmark achievements of American jurisprudence, in which the Court unanimously ruled that “separate but equal” is innately unequal and thus a violation of the Fourteenth Amendment.

Brown was not written by Frankfurter. Earl Warren, then the newly minted chief justice, gets that distinction. But Warren should not get all the credit, contends Snyder, a legal historian and constitutional scholar at Georgetown Law Center. The laboring oar was Frankfurter. The episode caps Snyder’s Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, an admiring though not hagiographical account of a singular life of enormous, underappreciated consequence, lavishly unfolded in over seven hundred pages of text (with another two hundred pages of notes, etc.).¹

The remarkable journey that led to Brown was already underway in 1892, when Frankfurter, then eleven, arrived in New York from Vienna, speaking not a word of English. A prodigy who mastered the written and spoken English word, he was forever grateful for the public-education system, particularly the no-nonsense Annie Hogan, his first American teacher, who refused to allow classmates in his Lower East Side primary school to converse with young Felix in his native German.

Frankfurter was the third of six children born to Emma Frankfurter and her traveling-salesman husband, Leopold. Judaism provided the family with a deeply felt cultural identity, though the Frankfurters were not especially devout. Felix was a secular Jew who read Hebrew but rejected organized religion and who, to his mother’s chagrin, married Marian Denman, a Christian minister’s daughter (they had no children, and Snyder’s biography gently details Marian’s struggles with mental and physical ailments). Frankfurter later strove, with Brandeis, to encourage the establishment of a Jewish state in Palestine, and his revulsion at Holocaust atrocities undoubtedly informed his jurisprudential deference to executive excesses during World War II—not least fdr’s Japanese internment, a “martial necessity,” as Frankfurter put it in joining the majority to sustain the decision in Korematsu (1944), which ranks with Dred Scott (1857) among the Court’s all-time lowlights.

Before coming to America, the Frankfurters had eked out a living in Austria (and for a time in Budapest). Felix became attached to his uncle Salomon Frankfurter, an accomplished University of Vienna philologist and librarian who lectured on Judaism and archaeology. The relationship etched in the child a love of language and the arts, as well as an appreciation of scholarly rigor and the “liberal outlook on life.” The Salomon connection endured even after Leopold, the family’s “black sheep,” moved his flock to America. Indeed, decades later, when the eighty-two-year-old Salomon was imprisoned after the Anschluss in 1938, Felix pressed his contacts in the Roosevelt State Department to secure his release. (Politically sensitive to the appearance of trading on his friendship with fdr, Frankfurter attributed Salomon’s liberty to the intercession of another old acquaintance, Lady Astor, an American-born British parliamentarian with contacts in the Reich.)

Growing up in Manhattan, Frankfurter excelled in his studies and became a superb debater at the City College of New York, where his precocious command of the Constitution was as patent as his gregarious nature: in 1902, at just nineteen, he delivered an honorary commencement oration entitled “The Perversion of the Law.” He was admitted to Harvard Law School. Until his confirmation as a Supreme Court justice, it was his home, as a student and eminent professor of law—except for stints as a federal prosecutor under his lifelong friend Henry Stimson (whom he followed into the Taft administration when Stimson was Secretary of War) and in the Wilson administration’s War Department, as well in Wilson’s “Mediation Committee,” established to address labor disturbances that threatened the war effort (an assignment that, as Snyder details, brought an acrimonious end to Frankfurter’s close relationship with the progressive icon and Wilson rival Theodore Roosevelt).

What Snyder’s tome most powerfully brings home is that Frankfurter’s time at Harvard, his decades of weaving seamlessly between the classroom, the publishing houses, and the corridors of power, has left a profound mark on modern America. As much as any political operative and legal scholar in history, Frankfurter is the father of the progressive movement that came to dominate our society in the latter half of the twentieth century, and of administrative law—the backbone of contemporary governance, with its sprawl of agencies simultaneously exercising rule-making, enforcement, and adjudicative powers in defiance of the Constitution’s careful division of authorities.

Frankfurter’s ability to spot, cultivate, and recruit talented lawyers for government service was unparalleled. Felix “did not care about money,” Snyder explains, and he quotes one of his subject’s close friends as saying that he did not “collect books or pictures. He collects people.” Frankfurter steered scores of the nation’s brightest young legal scholars into clerkships on the Supreme Court and other influential tribunals and into key government slots, especially New Deal cabinet departments and administrative agencies—such as the Securities and Exchange Commission (which his scholarship undergirded and whose enabling legislation his former students crafted under his guidance). Some of those he championed shaped the modern world, such as Dean Acheson, President Truman’s Secretary of State and a fixture of Democratic foreign policy in the Kennedy and Johnson administrations. Frankfurter’s suasion was so well known that, in a play on his first and last names, his New Deal protégés were branded the “Happy Hot Dogs”—though envious anti-Semites derided fdr’s administration as “the Jew Deal.” While many of Frankfurter’s rising stars were Jewish, many were not, his priorities being merit not ancestry, progressive ideals not religion.

In the long shadow of history, Frankfurter’s decades at Harvard decidedly outweigh his tenure on the high court in importance. While Snyder gamely endeavors to tease philosophical consistency out of Justice Frankfurter’s record, Adam White, a scholar of constitutional law and the administrative state at George Mason University’s Antonin Scalia Law School, rightly counters (in an excellent review of the book for The Washington Free Beacon) that Frankfurter simply did not have “a coherent judicial methodology.”

To earn the money he needed to attend Harvard, Frankfurter landed a civil-service job in the city’s new Tenement House Department, enforcing health and safety mandates. It marked the beginning of a career-long preoccupation with the struggles of working people, labor unions, and disfavored minorities. That preoccupation brings into sharp relief Frankfurter’s central contradictions.

First, though he was a fiercely patriotic American, Frankfurter was a fellow traveler with Communists and other anti-American radicals, to the point that he was widely regarded as dangerous. In fact, when fdr eventually nominated him to become a Supreme Court justice, Frankfurter was subjected to what might fairly be described as the first modern judicial confirmation hearing, at which the nominee is forced to testify and subjected to hostile interrogation. In 1939, this naturally included the question “Are you now, or have you ever been, a Communist?”

Frankfurter eloquently explained why he was not and could never be. In truth, he was a cutting-edge progressive in that movement’s American ascendancy: a political liberal and, later, a staunch New Dealer. An intimate friend of Herbert Croly and, in essence, a cofounder of The New Republic, Frankfurter was a social justice warrior of his time. He was the nation’s foremost critic of due-
process irregularities in the 1921 Massachusetts murder trial of the Italian anarchists Nicola Sacco and Bartolomeo Vanzetti. Similarly, as a member of the then-fledgling American Civil Liberties Union’s national committee, he exposed a pattern of procedural abuses in what is now remembered as the first “Red Scare”: the Palmer Raids, led by President Woodrow Wilson’s attorney general, A. Mitchell Palmer, under the direction of an ambitious young Justice Department agent, J. Edgar Hoover—later the powerful (now notorious) fbi director, with whom Frankfurter had decades of icy relations, although Hoover did take pains to warn him when the Bureau learned of a potential threat on the then-justice’s life.

Frankfurter believed America was at her strongest when she honored the ideals of due process even in proceedings against alleged enemies of the United States. While suspected by many of sympathizing with those enemies, Frankfurter argued that radicalism was stoked by the denial of due process and insufficient faith in democracy. Noble? Well, sure . . . but the fact remains that Frankfurter was also an anti-anti-Communist who did more than any influential American to promote the career of Alger Hiss (and of Hiss’s brother and fellow Communist Donald). This landed the Soviet mole at an influential State Department perch at the very time when Stalin’s alliance with the victorious Western powers was evolving into the post–World War II order, the establishment of the United Nations, and the Cold War. Even as the evidence of treachery mounted, the justice stood by his man.

Secondly, just as Frankfurter’s patriotism was at odds with his fellow-traveling, so too did his activist-lawyer passion for civil liberties sit uneasily with his progressive ideal of nigh-omnipotent government and its corollary that judges must restrain themselves from second-guessing the people’s democratic choices, embodied by the political branches.

Interestingly on this point, Frankfurter revered two Americans who had no use for one another: Abraham Lincoln and Roger Taney. The latter is best known as the chief justice who sowed the seeds of civil war in penning the afore-abominated Dred Scott decision, in which the Court held that (a) blacks could not sue in federal court because, whether enslaved or freed, they were not citizens under the Constitution and (b) the Missouri Compromise was an unconstitutional limitation on the property rights of slaveholders. There is no doubt that Frankfurter’s commitment to racial equality was “absolute,” as attested by William Thaddeus Coleman Jr., a Harvard Law standout and army veteran whom the justice hired in 1948—the first black law clerk in the Court’s history. Yet, as Frankfurter related in a 1936 lecture, he deemed Taney’s acumen in developing the constitutional law of the United States second only to that of legendary Chief Justice John Marshall. (As The New York Times contemporaneously reported, the emphasis in Frankfurter’s speech was on Taney’s role, mainly as Andrew Jackson’s treasury secretary, in dismantling the second Bank of the United States—a blow against “the growing power of finance” that Frankfurter fitted comfortably in the progressive political tradition of Robert LaFollette Sr., Theodore Roosevelt, and Woodrow Wilson.)

Lincoln, whom Frankfurter regarded as his great American hero, famously crossed swords with Taney over not only slavery but also the chief justice’s ruling in Ex Parte Merryman (1861). The case involved Lincoln’s suspension of the writ of habeas corpus in a corridor between Philadelphia and Washington, D.C., which enabled the detention of Confederate sympathizers who threatened to undermine wartime military operations. Taney, acting as a circuit judge, ruled the executive’s suspension of the writ an unconstitutional usurpation of congressional power. Consistent with his 1861 inaugural address—in which the new president rejected the notion that government policy upon vital public questions could be deemed “irrevocably fixed by decisions of the Supreme Court”—Lincoln refused to yield. Apart from believing Taney wrong on the law, the president famously inveighed, “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”

For most of his career, Frankfurter was a Lincoln man in this regard. Like young progressives of the early twentieth century, he was outraged at the Supreme Court’s consistent invalidation of progressive reform proposals by which legislatures sought to benefit organized labor. Ironically, in striking down these proposals, the Court relied on “liberty of contract,” a theory derived from the Fourteenth Amendment’s due-process clause. That is, the Court’s conservative majority relied on substantive due process, better known in our time, a century later, as the bête noire of conservative originalist jurists. In developing an argument against this theory, Frankfurter seized on an 1893 Harvard Law Review essay by James Bradley Thayer, which urged federal judges to defer to legislative and executive determinations unless they were proved wrong beyond a reasonable doubt—the daunting criminal-law standard for conviction. As Snyder observes, “with his immigrant’s faith in American democracy, Frankfurter embraced Thayer’s theory of limited judicial review and deference to elected officials in all but the most extreme circumstances.”

What truly animated Frankfurter was less an aversion to judicial imperialism than a yearning for progressive reform.

Nevertheless, what truly animated Frankfurter was less an aversion to judicial imperialism than a yearning for progressive reform. It was historical happenstance that the early twentieth-century Court had a conservative majority, which blocked reform. The adamancy of his pleas for judicial restraint notwithstanding, it is difficult, even impossible, to imagine that Frankfurter would have condemned an activist liberal Court that invoked substantive due process to impose progressive pieties over the objection of political branches dominated by conservatives. The imperative of strict judicial restraint that Frankfurter trumpeted as an overarching philosophy would more forthrightly have been pitched as a tactical legal argument that judges should give ground to administrative innovation.

Frankfurter liked to quote Marshall’s McCullough v. Maryland (1819) dictum that “it is a constitution we are expounding.” Any activist judge could construe that admonition to mean “anything goes,” or at least that our founding law’s injunctions are organic, that their meanings evolve with the times. Granted, Frankfurter instinctively preferred democratic self-determination to judicial oligarchy. But even so, he mainly advocated for judicial restraint not on its own merits but because the Court was blocking state legislatures and New Dealers from implementing his desired progressive reforms. That explains why, behind the scenes, Frankfurter tried to facilitate fdr’s court-packing scheme in response to the justices’ early nullifications of New Deal legislation. Although the scheme failed as a proposed bill, it succeeded as an intimidation measure that changed the trajectory of the Court, and hence of history—the “switch in time that saved nine.” The justices suddenly abandoned liberty of contract and overhauled the Court’s commerce-clause jurisprudence to give Congress virtual carte blanche. Meantime, having won an unprecedented third (then fourth) term, Roosevelt named Frankfurter and other progressives to fill the Court’s vacancies, cementing the New Deal expansion of government and ushering in the administrative state.

As Brown ultimately demonstrated, Frankfurter’s fidelity to judicial restraint fell away when faced with state laws that impeded black educational progress. In the end, it was reform, not restraint, that most mattered to the justice. True to form, he pursued it as a political operative more than a judge. He schemed to delay consideration of the case until the time for considering it was politically advantageous. And flouting both judicial ethics and separation of powers, he covertly lobbied his government contacts so the Justice Department would file a brief that would help steer the Court to the right result while locking the executive branch into an anti-segregation stance as it transitioned from the Democratic Truman administration to the Republican Eisenhower administration.

The paradox is this: having turbocharged the progressive movement, what would Felix Frankfurter make of its present iteration? Having empowered government and its bureaucracies as the fortifications of democracy, what would he make of a vast administrative state that is unaccountable to democracy? Remarkably, Frankfurter’s reward for forging today’s progressive liberal establishment is to be dismissed by many progressives as a conservative—too wedded to judicial modesty, too mindful of national security, too convinced of the essential goodness of America. I doubt he would recognize his descendants, but Brad Snyder’s rich portrait leaves them no excuse for failing to understand him in all his complexity.

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This article originally appeared in The New Criterion, Volume 41 Number 6, on page 55
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