Felix Frankfurter | |
|---|---|
 Official portrait, 1939 | |
| Associate Justice of the Supreme Court of the United States | |
| In office January 30, 1939 – August 28, 1962[1] | |
| Nominated by | Franklin D. Roosevelt |
| Preceded by | Benjamin Cardozo |
| Succeeded by | Arthur Goldberg |
| Personal details | |
| Born | (1882-11-15)November 15, 1882 Vienna, Austria-Hungary |
| Died | February 22, 1965(1965-02-22) (aged 82) Washington, D.C., U.S. |
| Resting place | Mount Auburn Cemetery |
| Spouse | |
| Education | City College of New York (BA) Harvard University (LLB) |
| Awards | Presidential Medal of Freedom (1963)[2] |
| Signature |  |
| Military service | |
| Allegiance | United States |
| Branch/service | United States Army |
| Years of service | 1917–1918 |
| Rank | Major |
| Unit | United States Army Judge Advocate General's Corps |
| Battles/wars | World War I |
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an American jurist who served as anAssociate Justice of the Supreme Court of the United States from 1939 until 1962, advocatingjudicial restraint.
Born in Vienna, Frankfurter immigrated with his family to New York City at age 12. He graduated fromHarvard Law School and worked forHenry L. Stimson, theU.S. Secretary of War. Frankfurter served asJudge Advocate General duringWorld War I. Afterward, he returned to Harvard and helped found theAmerican Civil Liberties Union. He later became a friend and adviser of PresidentFranklin D. Roosevelt. AfterBenjamin N. Cardozo died in 1938, Roosevelt nominated Frankfurter to the Supreme Court. Given his affiliations and alleged radicalism, the Senate confirmed Frankfurter's appointment only after itsJudiciary Committee required him to testify in 1939, a practice that became routine in the 1950s.
His relations with colleagues were strained by ideological and personal differences, likely exacerbated by someantisemitism. His judicial restraint was first seen as relatively liberal, as conservative justices had used thederogation canon andplain meaning rule againstProgressive economic legislation during the 1897–1937Lochner era.[3][4] It became seen as somewhat conservative incivil liberties dissents as the Court moved left. His dissent inWest Virginia State Board of Education v. Barnette (1943) refers to hisminority-group background as immaterial and was prompted by the new majority's repudiation ofMinersville School District v. Gobitis (1940), in which he had penned the restrained majority opinion.
In 1948, he hiredWilliam Thaddeus Coleman Jr., the first black law clerk at the Court, though in 1960 Frankfurter declined to hireRuth Bader Ginsburg, citinggender roles. InBrown II (1955), he suggested the phrase "all deliberate speed" to endorse gradualracial integration. He held that redistricting wasnonjusticiable inColegrove v. Green (1946) andBaker v. Carr (1962), and his majority opinion inGomillion v. Lightfoot (1960) only upheld review under theFifteenth Amendment. Frankfurter's other decisions include the majority opinion inBeauharnais v. Illinois (1952) and dissents inGlasser v. United States (1942) andTrop v. Dulles (1958). He retired after a 1962 stroke, and was replaced withArthur Goldberg.
Frankfurter was born into anAshkenazi Jewish family on November 15, 1882, in Vienna (then part of Austria-Hungary). He was the third of six children of Leopold Frankfurter, a merchant, and Emma (Winter) Frankfurter.[5] His father died in 1916. His mother died in January 1928 after a prolonged illness. His uncle, Solomon Frankfurter, was head librarian at theVienna University Library.[6][7] Frankfurter's forebears had beenrabbis for generations.[8] In 1894, twelve-year-old Frankfurter and his family immigrated to the United States, settling in New York City'sLower East Side, a dense center of immigrants. Frankfurter attendedP.S. 25 andTownsend Harris High School, where he excelled at his studies and enjoyed playingchess and shootingcraps on the street. He spent many hours reading atThe Cooper Union for the Advancement of Science and Art and attending political lectures, usually on subjects such astrade unionism,socialism, andcommunism.[9][10]
After graduating in 1902 fromCity College of New York, where he was inducted intoPhi Beta Kappa,[11] Frankfurter worked for the Tenement House Department of New York City to raise money for law school. He applied successfully toHarvard Law School, where he excelled academically and socially. He became lifelong friends withWalter Lippmann andHorace Kallen, became an editor of theHarvard Law Review, and graduated first in his class with one of the best academic records sinceLouis Brandeis.[9][12]
Frankfurter's legal career began when he joined the New York law firm of Hornblower, Byrne, Miller & Potter in 1906. In the same year, he was hired as the assistant toHenry Stimson, theU.S. Attorney for the Southern District of New York.[13] During this period, Frankfurter readHerbert Croly's bookThe Promise of American Life, and became a supporter of theNew Nationalism and ofTheodore Roosevelt.
In 1911, PresidentWilliam Howard Taft appointed Stimson as hisSecretary of War, and Stimson appointed Frankfurter as law officer of theBureau of Insular Affairs. Frankfurter worked directly for Stimson as his assistant and confidant. His government position restricted his ability to publicly voice his Progressive views, though he expressed his opinions privately to friends such as JudgeLearned Hand.[14] In 1912 Frankfurter supported theBull Moose campaign to return Roosevelt to the presidency but was bitterly disappointed whenWoodrow Wilson was elected. He became increasingly disillusioned with the established parties, and described himself as "politically homeless".[15]
Frankfurter's work in Washington had impressed the faculty at Harvard Law School, who used a donation from the financierJacob Schiff to create a position for him there after Louis Brandeis suggested that Schiff do this. He taught mainlyadministrative law and occasionallycriminal law.[16] With fellowprofessorJames M. Landis, he advocated judicial restraint in dealing with government misdeeds, including greater freedom for administrative agencies from judicial oversight.[17] He also served as counsel for theNational Consumers League, arguing for Progressive causes such asminimum wage and restricted work hours.[8][16] He was involved in the early years ofThe New Republic magazine after its founding byHerbert Croly.[8][18]
When the United States entered World War I in 1917, Frankfurter took a special leave from Harvard to be commissioned amajor in theUnited States Army Reserve, where he supervised militarycourts-martial as aJudge Advocate General in 1917 and served as special assistant to the Secretary of WarNewton D. Baker until 1918.[19][20][21]
In September 1917, he was appointed counsel to a commission, the President's Mediation Committee, established by President Wilson to resolve major strikes threatening war production. Among the disturbances he investigated were the 1916Preparedness Day Bombing in San Francisco, where he argued strongly that the radical leaderThomas Mooney had beenframed and required a new trial.[22] He also represented theLabor Department on the priorities board of theWar Industries Board[23][24] and examined thecopper industry in Arizona. There, industry bosses solved industrial relations problems by having more than 1,000 strikers forcibly deported to New Mexico.[25]
Frankfurter thus learned firsthand about labor politics and extremism, includinganarchism, communism andrevolutionary socialism. He came to sympathize with labor issues, arguing that "unsatisfactory, remediable social conditions, if unattended, give rise to radical movements far transcending the original impulse." His activities led the public to view him as a radical lawyer and supporter of radical principles.[22] Former PresidentTheodore Roosevelt accused him of being "engaged in excusing men precisely like the Bolsheviki in Russia".[26]
As the war drew to a close, Frankfurter was among the nearly one hundred intellectuals who signed a statement of principles for the formation of the League of Free Nations Associations, intended to increaseUnited States participation in international affairs.[27]
Frankfurter was encouraged by Supreme Court JusticeLouis Brandeis to become more involved inZionism.[8] With Brandeis, he lobbied President Wilson to support theBalfour Declaration, a British government statement supporting the establishment of a Jewish homeland inPalestine.[8] In 1918, he participated in the founding conference of theAmerican Jewish Congress inPhiladelphia, creating a national democratic organization of Jewish leaders from all over the U.S.[28] In 1919, Frankfurter served as aZionist delegate to theParis Peace Conference.[8]
In 1919, Frankfurter married Marion Denman, aSmith College graduate and the daughter of a Congregational minister. They married after a long and difficult courtship, and against the wishes of his mother, who was disturbed by the prospect of her son marrying outside the Jewish faith.[26][29] Frankfurter was a non-practicing Jew and regarded religion as "an accident of birth". Frankfurter was a domineering husband and Denman suffered from frail health. She suffered frequent mental breakdowns.[26] The couple had no children.
Frankfurter's activities continued to attract attention for their alleged radicalism. In November 1919, he chaired a meeting in support ofAmerican recognition of the newly createdSoviet Union.[30] In 1920, Frankfurter helped to found theAmerican Civil Liberties Union.[8] Following the arrest of suspected communist radicals in 1919 and 1920 in thePalmer Raids, Frankfurter and other prominent lawyers such asZechariah Chafee signed an ACLU report which condemned the "utterly illegal acts committed by those charged with the highest duty of enforcing the laws", noting entrapment, police brutality, prolonged incommunicado detention, and due process violations. Frankfurter and Chafee also submitted briefs to ahabeas corpus application to theMassachusetts Federal District Court. JudgeGeorge W. Anderson ordered the discharge of twenty aliens, and his denunciation of the raids effectively ended them.[31][32][33]J. Edgar Hoover began following Frankfurter as "the most dangerous man in the United States", a "disseminator of Bolshevik propaganda".[34][35]
In 1921, Frankfurter was given a chair at Harvard Law School, where he continued Progressive work on behalf of socialists and labor, as well as minorities. WhenA. Lawrence Lowell, the President of Harvard University, proposed to limit the enrollment of Jewish students, Frankfurter worked with others to defeat the plan.[26][36]
In the late 1920s, he attracted public attention when he supported calls for a new trial forSacco and Vanzetti, two Italian immigrantanarchists who had been sentenced to death on robbery and murder charges. Frankfurter wrote an influential article forThe Atlantic Monthly and subsequently a book,The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen. He critiqued the prosecution's case and the judge's handling of the trial; he asserted that the convictions were the result of anti-immigrant prejudice and enduring anti-radical hysteria of theRed Scare of 1919–20.[8][37] His activities further isolated him from his Harvard colleagues and from Boston society.[26]
Following the inauguration ofFranklin D. Roosevelt in 1933, Frankfurter quickly became a trusted and loyal adviser to the new president. Frankfurter was considered to be liberal[38] and advocated progressive legislation.[39] He argued against the economic plans ofRaymond Moley,Adolf Berle andRexford Tugwell, while recognizing the need for major changes to deal with the inequalities of wealth distribution that had led to the devastating nature of theGreat Depression.[40]
Frankfurter successfully recommended many bright young lawyers toward public service with theNew Deal administration; they became known as "Felix's Happy Hot Dogs".[40][41] Among the most notable of these wereThomas Corcoran,Donald Hiss andAlger Hiss, andBenjamin Cohen. He moved to Washington, D.C., commuting back to Harvard for classes, but felt that he was never fully accepted within government circles. He worked closely withLouis Brandeis, lobbying for political activities suggested by Brandeis. He declined a seat on theSupreme Judicial Court of Massachusetts and, in 1933, the position ofSolicitor General of the United States.[41]Long ananglophile, Frankfurter had studied at Oxford University in 1920. In 1933–34 he returned to act as visiting Eastman professor in the faculty of Law.[41][42]
A 1935 newspaper article describes the Happy Hot Dogs as:[43]
Other "Frankfurter men" in the New Deal included:[43]
Even after his appointment to the Supreme Court, Frankfurter remained close to Roosevelt. In July 1943, on behalf of the President, Frankfurter interviewedJan Karski, a member of the Polish resistance who had been smuggled into the Warsaw ghetto and a camp near the Belzec death camp in 1942, in order to report back on what is now known as the Holocaust. Frankfurter greeted Karski's report with skepticism, later explaining: "I did not say that he was lying, I said that I could not believe him. There is a difference."[44][45]
Following the death ofSupreme Court associate justiceBenjamin N. Cardozo in July 1938, President Roosevelt turned to Frankfurter for recommendations of prospective candidates to fill the vacancy. Finding none on the list to suit his criteria, Rooseveltnominated Frankfurter.[46] Frankfurter's nomination quickly became highly controversial, and a number of witnesses gave testimony in opposing the nomination during theconfirmation hearing before theSenate Judiciary Committee. In addition to the objection that he was considered to be the president's unofficial advisor, that he was affiliated with special interest groups, that there were now no justices from west of the Mississippi, opponents pointed to Frankfurter as foreign-born and deemed to be affiliated with an anti-Christian movement viewed as part of a broaderCommunist infiltration into the country.[47] As a result, the Judiciary Committee requested that Frankfurter appear before it and answer questions from the committee. He agreed, but only to address what he considered to be slanderous allegations against him. He was only the second Supreme Court nominee ever to testify during hearings on their nomination (the first wasHarlan F. Stone in 1924), and the first to be requested to do so.[48][49] Even so, he was confirmed by theU.S. Senate byvoice vote on January 17, 1939.[50]
Frankfurter served from January 30, 1939, to August 28, 1962.[1] He wrote 247 opinions for the Court, 132 concurring opinions, and 251 dissents.[51] He became the court's most outspoken advocate ofjudicial restraint, the view that courts should not interpret theConstitution in such a way as to impose sharp limits upon the authority of thelegislative and executive branches.[52] He also usually refused to apply the federal Constitution to the states.[53] In the case ofIrvin v. Dowd, Frankfurter stated what was for him a frequent theme: "The federal judiciary has no power to sit in judgment upon a determination of a state court ... Something that thus goes to the very structure of our federal system in its distribution of power between the United States and the state is not a mere bit of red tape to be cut, on the assumption that this Court has general discretion to see justice done".[54]
In hisjudicial restraint philosophy, Frankfurter was strongly influenced by his close friend and mentorOliver Wendell Holmes Jr., who had taken a firm stand during his tenure on the bench against the doctrine of "economicdue process". Frankfurter revered Justice Holmes, often citing Holmes in his opinions. In practice, this meant Frankfurter was generally willing to uphold the actions of those branches against constitutional challenges so long as they did not "shock the conscience". Frankfurter was particularly well known as a scholar ofcivil procedure.
Frankfurter's adherence to the judicial restraint philosophy was shown in the 1940 opinion he wrote for the court inMinersville School District v. Gobitis, a case involvingJehovah's Witnesses students who had been expelled from school due to their refusal to salute the flag and recite thePledge of Allegiance. He rejected claims thatFirst Amendment rights should be protected by law, and urged deference to the decisions of the elected school board officials. He stated that religious belief "does not relieve the citizen from the discharge of political responsibilities" and that exempting the children from the flag-saluting ceremony "might cast doubts in the minds of other children" and reduce their loyalty to the nation. JusticeHarlan Fiske Stone issued a lone dissent. The court's decision was followed by hundreds of violent attacks on Jehovah's Witnesses throughout the country.[55] It was overturned in March 1943 by the Supreme Court decision inWest Virginia Board of Education v. Barnette. A frequent ally, JusticeRobert H. Jackson, wrote the majority opinion in this case, which reversed the decision only three years prior in poetic passionate terms as a fundamental constitutional principle, that no government authority has the right to define official dogma and require its affirmation by citizens. Frankfurter's extensive dissent began by raising and then rejecting the notion that as a Jew, he ought "to particularly protect minorities," although he did say that his personal political sympathies were with the majority opinion.[56] He reiterated his view that the role of the Court was not to give an opinion of the "wisdom or evil of a law" but only to determine "whether legislators could in reason have enacted such a law".[57][58]
InBaker v. Carr, Frankfurter's position was that the federal courts did not have the right to tell sovereign state governments how to apportion their legislatures; he thought the Supreme Court should not get involved in political questions, whether federal or local.[59] Frankfurter's view had won out in the 1946 case precedingBaker,Colegrove v. Green – there, a 4–3 majority decided that the case was non-justiciable, and the federal courts had no right to become involved in state politics, no matter how unequal district populations had become.[59][60] But, in theBaker case, the majority of justices ruled to settle the matter – saying that the drawing of state legislative districts was within the purview of federal judges, despite Frankfurter's warnings that the Court should avoid entering "the political thicket".[61]
Frankfurter had previously articulated a similar view in a concurring opinion written forDennis v. United States (1951). The decision affirmed, by a 6–2 margin, the conviction of eleven Communist leaders for conspiring to overthrow the US Government under theSmith Act. In it, he again argued that judges "are not legislators, that direct policy-making is not our province."[62] He recognized that curtailing the free speech of those who advocate the overthrow of government by force also risked stifling criticism by those who did not, writing that "[it] is a sobering fact that in sustaining the convictions before us we can hardly escape restriction on the interchange of ideas."[62]
A pivotalschool desegregation case came before the court inBrown v. Board of Education. The case was scheduled for re-argument when Chief JusticeFred M. Vinson, whose crucial vote appeared to be opposed to overruling the pro-segregation precedent inPlessy v. Ferguson, died before the court's decision was made. Frankfurter reportedly remarked that Vinson's death was the first solid piece of evidence he had seen to prove the existence of God, though some believe the story to be "possibly apocryphal".[63]
Frankfurter demanded that the opinion inBrown II (1955) order schools to desegregate with "all deliberate speed".[64] Some school boards used this phrase as an excuse to defy the demands of the firstBrown decision.[64] For fifteen years, schools in many states of the South remained segregated; in some cases systems closed their schools, and new private schools were opened by white parents for their children.[65] InAlexander v. Holmes County Board of Education, the Court wrote, "The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools."[66] Frankfurter's "all deliberate speed" formula was intended to constrain the federal judiciary toward a gradualist approach to school integration, but his formula backfired. By divorcing the plaintiff's injury from the remedy afforded,Brown II gave birth to modern Public Law Litigation, which today affords federal courts broad power to reform state institutions.[67]
Frankfurter was hands-off in the area of business. In the 1956 government case againstDuPont, started because DuPont seemed to have maneuvered its way into a preferential relationship withGM, Frankfurter refused to find a conspiracy, and said the Court had no right to interfere with the progress of business.[68][69] Here again, Frankfurter opposed – and lost out to – the views of the court majority made up of Justices Warren, Black, Douglas and Brennan.[70] Later in his career, Frankfurter's judicial restraint philosophy frequently put him on the dissenting side of ground-breaking decisions taken by theWarren Court to end discrimination.
Frankfurter believed that the authority of the Supreme Court would be reduced if it went too strongly against public opinion: he sometimes went to great lengths to avoid unpopular decisions, including fighting to delay court decisions against laws prohibitingracial intermarriage.[71]
For the October 1948 court term, Frankfurter hiredWilliam Thaddeus Coleman Jr., the first African American to serve as a Supreme Courtlaw clerk.[72]
In 1960, despite a recommendation from thedean of Harvard Law School, Frankfurter turned downRuth Bader Ginsburg for a clerkship position because of her gender. She later became an associate justice of the Supreme Court herself, and was the first Jewish woman to do so.[73]
Frankfurter's specific seat later came to be informally known as the "Jewish seat," as between 1932 and 1969 it was occupied by four consecutive Jewish justices: Cardozo, Frankfurter, Goldberg, andAbe Fortas. From 1994 to 2022, the seat was occupied byStephen G. Breyer, who is also Jewish.[74]
Frankfurter generally attempted to influence any new justice[75] and succeeded with many, includingTom C. Clark,Harold Hitz Burton,Charles Evans Whittaker, andSherman Minton.[76] ButWilliam J. Brennan Jr. resisted[77] after some initial ambivalence,[78] and Frankfurter turned against Brennan afterIrvin v. Dowd. Other justices who received the Frankfurter treatment of flattery and instruction were Burton,Fred M. Vinson, andJohn Marshall Harlan II.[79] With Vinson, who became Chief Justice, Frankfurter feigned deference but sought influence.[80] Some (possibly apocryphal) reports[63] have Frankfurter remarking that Vinson's death in 1953 was the first solid piece of evidence he had seen to prove the existence of God.[81]
Feuding with liberal colleaguesHugo Black andWilliam O. Douglas, Frankfurter became seen as a conservative figure.[59] He criticized them for starting "with a result" and producing "shoddy," "result-oriented," and "demagogic" work.[80] He even panned the work of Chief JusticeEarl Warren as "dishonest nonsense".[82] Frankfurter increasingly saw colleagues, includingFrank Murphy andWiley Blount Rutledge, as part of a liberal "Axis" opposed to judicial restraint.[83] Led by Black, they agreed that theFourteenth Amendment entailedBill of Rights protections, shapingWarren Court decisions.[84] Frankfurter feared thisincorporation theory usurped state control of criminal justice, limiting innovation in due process.[85]
Colleagues disliked Frankfurter's argumentative style. "All [he] does is talk, talk, talk," Warren complained. "He drives you crazy."[52][86] According to Black, "I thought Felix was going to hit me today, he got so mad."[52] In the Court's biweekly conference sessions, traditionally a period for vote-counting, Frankfurter habitually lectured his colleagues for forty-five or more minutes at a time, with his book resting on a podium. In turn, his opponents would read their mail or leave the room.[87]
Frankfurter was close friends with JusticeRobert H. Jackson.[88] The two exchanged much correspondence over their mutual dislike for JusticeWilliam O. Douglas.[88] Frankfurter also had a strong influence over Jackson's opinions.[89]
Frankfurter was universally praised for his work before coming to the Supreme Court, and was expected to influence it for decades past the death of FDR.[90] However, Frankfurter's influence over other justices was limited by his failure to adapt to new surroundings, his style of personal relations (relying heavily on the use of flattery and ingratiation, which ultimately proved divisive), and his strict adherence to the ideology ofjudicial restraint. Michael E. Parrish, professor at UCSD, said of Frankfurter: "History has not been kind to [him] ... there is now almost a universal consensus that Frankfurter the justice was a failure, a judge who ... became 'uncoupled from the locomotive of history' during the Second World War, and who thereafter left little in the way of an enduring jurisprudential legacy."[91]
Frankfurter retired in 1962 after suffering a stroke and was succeeded by Arthur Goldberg.[74] The former justice was awarded thePresidential Medal of Freedom by PresidentJohn F. Kennedy in 1963. Frankfurter died fromcongestive heart failure in 1965 at the age of 82. His remains are interred inMount Auburn Cemetery inCambridge, Massachusetts.[92][93]
There are two extensive collections of Frankfurter's papers: one at the Manuscript Division of theLibrary of Congress and the other at Harvard University. Both are fully open for research and have been distributed to other libraries on microfilm. However, in 1972 it was discovered that more than a thousand pages of his archives, including his correspondence withLyndon B. Johnson and others, had been stolen from the Library of Congress; the crime remains unsolved and the perpetrator and motive are unknown.[94]
Frankfurter was elected to theAmerican Academy of Arts and Sciences in 1932 and theAmerican Philosophical Society in 1939.[95][96]
Frankfurter published several books, including,The Business of the Supreme Court: A Study in the Federal Judicial System (1927),Mr. Justice Holmes and the Supreme Court (1938),The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen (1927), andFelix Frankfurter Reminisces, recorded in talks with H.B. Phillips (1960).
Singer, Isidore; et al., eds. (1901–1906)."Frankfurter, Solomon".The Jewish Encyclopedia. New York: Funk & Wagnalls.
| Legal offices | ||
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| Preceded by | Associate Justice of the Supreme Court of the United States 1939–1962 | Succeeded by |
