Justice for the Justice

The conventional take on Justice Felix Frankfurter is that he was a brilliant law professor, a well-connected, behind-the-scenes political operative who was friends with both Teddy Roosevelt and Franklin Roosevelt, and an intellectual leader of progressive causes, for whom great things were predicted when he ascended to the Supreme Court bench — but who ultimately disappointed. Frankfurter was never a leader. His professorial style alienated many of his colleagues (due to his lecturing them as if they were law students during the Court’s conferences). He also proved to be more conservative than other liberal members of the Court (Black, Douglas, Warren, Murphy, etc.), which hindered his effectiveness. In the end he was generally unable generate consensus. At least, that is the conventional take. Professor Brad Snyder does much to correct this caricature, though, in his new book — and the first major biography of the Justice — Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment

Democratic Justice:

To begin, even before his appointment, Frankfurter had an extraordinary career and impact on American politics and law, such that he would be of interest to historians. Born in Vienna in 1882, Frankfurter and his family came to the United States when he was 12 years old, knowing not a word of English. Yet he graduated first in his 1906 Harvard Law School class. In an age of pervasive anti-Semitism, Frankfurter was the first Jewish lawyer hired by Hornblower, Byrne, Miller & Potter (today’s Wilke, Farr & Gallagher), although he was there only a few months before receiving a call from the U.S. Attorney for the Southern District of New York, Henry L. Stimson — thus beginning a lifelong career of public service and teaching.

By Brad Snyder

Norton & Co., 2022

Frankfurter was a top campaign aide to Stimson when he ran unsuccessfully for Governor of New York, and, during that campaign, Frankfurter got to know Teddy Roosevelt (he would later work on Roosevelt’s 1912 presidential campaign, not the last Roosevelt presidential campaign on which he would work). Frankfurter came to Washington, D.C. in 1911 and took a job in the War Department when Stimson was named Secretary of War. Already friends with Louis Brandeis before moving to Washington, during Frankfurter’s time in the nation’s capital he was introduced to, and became friends with, Justice Oliver Wendell Holmes, Jr. The boarding house in which Frankfurter, and other young idealistic lawyers and professionals, lived was dubbed the “House of Truth,” and became known as one of the leading intellectual gathering places in the capital.

With the end of the Taft administration, Frankfurter became a professor at Harvard law, where he remained a professor until his appointment to the Supreme Court in 1939. But even during his time at Harvard, Frankfurter would be called back periodically to Washington. He worked in the War Department during the First World War, and President Wilson appointed the still only 35-year-old Frankfurter head of the newly-created War Labor Policies Board, a move praised by the press. It was also during this time that Frankfurter got to know Franklin Roosevelt, who was then serving as Secretary of the Navy (they had met years before, but were only acquaintances). During the 1920s, Frankfurter was a founding member of the American Civil Liberties Union (although he was never particularly active in it). He worked behind the scenes on the Sacco and Vanzetti murder trial and later wrote a book criticizing the trial and its outcome. He continued to write articles and was generally recognized as one of the country’s leading lawyers.

With Franklin Roosevelt’s election to the presidency in 1932 (Frankfurter had been an advisor to the campaign), Frankfurter’s influence reached its greatest heights. He was a frequent visitor to the White House, offering the President views on numerous policy matters. The President offered to appoint Frankfurter Solicitor General, but the Harvard law professor said “no,” recognizing that the position would be too time-consuming for all his various pursuits and interests. Finally, in 1939, after passing over Frankfurter for two previous openings on the Court, Roosevelt nominated Frankfurter. Great things were expected.

But Frankfurter’s sin, so to speak, was that while he was a liberal progressive in political and legislative matters, he was also an ardent supporter of “judicial restraint,” believing that the political process should be honored, except in the most extraordinary of cases. Lochner had been decided while Frankfurter was still in law school, and, no doubt, greatly influenced his lifelong conviction that the Court should respect the political process, and resist the notions of substantive due process and judicial activism, except in the most glaring of circumstances.

One of those circumstances, and one where Frankfurter’s role is often overlooked, was Brown v. Board of Education. After the initial arguments, when it appeared as though the Court would decide the matter with multiple opinions and dissents, it was Frankfurter who first suggested, and successfully pursued, the idea of re-argument, so as to give the Court time to focus on the case even more and to see if a fractured Court, with multiple opinions and dissents, could be avoided. Re-argument was ordered for t he next term, and, during the summer recess, Chief Justice Vinson suffered a fatal heart attack and was replaced by Earl Warren. Upon hearing the news of Vinson’s death and recognizing what it would mean for Brown , Frankfurter is supposed to have told one of his former clerks that “this is the first solid piece of evidence I’ve ever had that there really is a God.” Warren would go on to write the Court’s unanimous decision in Brown, but he only had that opportunity because of Frankfurter’s efforts. Although Warren usually receives the praise and credit for the decision in Brown, Snyder’s behind- the-scenes account rightly restores much credit to Frankfurter.

No one will agree with every Frankfurter opinion or vote, nor should that necessarily be the case; but Snyder’s biography is compelling and interesting throughout, and there is much that can be learned from the life of Justice Felix Frankfurter, not just on the Court, but off it as well.