Felix Frankfurter—law professor and associate justice of the U.S. Supreme Court—had been known as one of the country’s leading reformers when Franklin Roosevelt named him to the high court in early 1939. By the time he retired, forced off the bench by a debilitating stroke in 1962—he had become the beˆte noire of most judicial liberals and the most conservative member of the Warren Court. There is an irony here, because the two men—the supposedly ‘‘liberal’’ Professor Frankfurter and the supposedly ‘‘conservative’’ Justice Frankfurter—did not differ that much. Both adhered to a single judicial philosophy—judicial restraint—but whereas that view made a man a liberal in the 1930s, by the 1950s, at least in terms of civil liberties, it stood for the notion that the Bill of Rights could be restricted by the government provided it could offer a minimalist justification.
Born in Austria, Frankfurter came to the United States as a child. His ambitious mother dominated his young life, urging him to excel so he could rise up in the world; she fully believed in the American dream, and it was her drive that got the family out of the immigrant slums and into a better neighborhood. The brilliant Frankfurter easily excelled in public school and at City College, and then went to the Harvard Law School. There he learned a very important lesson, namely, that intelligence did matter, that there was a world in which those who could think clearly, logically, and quickly could do well. At Harvard, he later claimed, he discovered the democracy of merit, an idea that to him epitomized what America was all about.
After graduation he worked briefly—and unhappily— in a private law firm, and then eagerly accepted FRANK, JOHN P. (1917–2002) an offer to become an assistant to U.S. Attorney Henry L. Stimson. The patrician New Yorker would be an important influence in Frankfurter’s life, opening to him the possibility of how exciting and rewarding a career in public service could be. He followed Stimson to Washington during the administrations of Theodore Roosevelt and William Howard Taft. Stationed in the War Department, the gregarious Frankfurter soon met all the movers and shakers in the capital. He lived in a house on ‘‘I’’ Street with other young men, where people like Oliver Wendell Holmes, Jr., and Louis D. Brandeis would stop by to visit at what soon became known as the House of Truth. Both Holmes and Brandeis would become mentors to the young Frankfurter, and it was the latter who convinced him to accept an appointment at the Harvard Law School.
From the time Frankfurter joined the Harvard Law faculty in 1914 through the constitutional crisis of 1937, conservatives on the courts used the notion of substantive due process to strike down economic reform legislation they did not like. Led by Holmes and Brandeis, liberals called for judicial restraint, that is, for allowing legislatures wide discretion in policymaking provided no specific constitutional bar prohibited it. Frankfurter stood as the leading academic champion of judicial restraint, and at the time of his appointment, his friends expected—correctly—that he would not allow his personal economic views to thwart legislative will.
But what Frankfurter never understood—and Holmes and Brandeis had made very clear—was that whereas judges ought not to thwart legislative policy in economic matters, they had a special role to play in protecting individual liberties. This showed up in its most explicit form in the famous Footnote Four in the Carolene Products case, in which Harlan Fiske Stone said the courts should impose much higher scrutiny on legislation affecting civil rights and civil liberties than on economic regulation. Despite his great reverence for Holmes and Brandeis, Frankfurter did not absorb this lesson.
Frankfurter’s earlier reputation is well deserved. Brandeis called him the ‘‘most useful lawyer in America.’’ He had opposed A. Mitchell Palmer’s Red Scare after World War I; he had taken over Brandeis’s role as chief litigator for the Consumer’s Union in defending protective legislation for workers; he had been the chief advocate in the most sensational case of the 1920s, the trial of two Italian immigrants, Sacco and Vanzetti, for payroll robbery and murder. Although there is still controversy over whether or not the two men were guilty, it was clear at the time that the two men had been arrested because they were immigrants and anarchists, and the trial was marked by gross prejudice on the part of the presiding judge. Frankfurter thought the entire episode a travesty of justice, and in his view either there should be a new trial with a fair and impartial judge or the two men should be pardoned. His defense of the two men made him a hero to liberals, but many misunderstood his position. The real crime, he believed, had been the perversion of the justice system; to some extent the guilt or innocence of the two men was secondary.
With the arrival of Franklin Roosevelt in the White House in 1933, he became one of the president’s closest advisors and a one-man personnel agency stocking New Deal agencies with his former students from Harvard. He had been a member of the American Civil Liberties Union, as well as the National Association for the Advancement of Colored People, and he had used the columns of the New Republic to attack judges deciding cases on personal predilection rather than the law.
Yet during most of this time Frankfurter had said little and written less about issues such as freedom of speech. In part this is understandable, since the Supreme Court’s agenda through the early 1930s consisted mainly of economic matters; that agenda changed at about the time Frankfurter went on the Court, and so neither he nor his admirers would have expected the types of cases he would confront. However, one might get an idea of his views on this from a letter he wrote to Ellery Sedgewick, the editor of the Atlantic Monthly, regarding the attacks on him during the Sacco and Vanzetti controversy. He believed that his criticism of the judge and other public officials opened him to charges of seditious libel. He argued that while it would probably be politically unwise for the state to do so, he believed that it had the right and the power to act against those who attacked the actions of the state.
While on the Court, Frankfurter engaged in a running battle with Hugo Black for more than twenty years on two issues key to civil liberties—the incorporation of the Bill of Rights through the Fourteenth Amendment to apply to the states and the preferred position of the First Amendment, especially freedom of speech in the constitutional pantheon.
Brandeis had first suggested the Fourteenth Amendment’s Due Process Clause included noneconomic liberties, and by 1939, the Court had made freedom of speech and press, as well as counsel in capital cases, applicable to the states. Then in Palko v. Connecticut (1938), Justice Cardozo had suggested that not all of the protections in the Bill of Rights should be incorporated, but only those that were fundamental to a free society. Frankfurter, who succeeded Cardozo on the Court, took up this theme and thus fought against any notion that all of the Bill of Rights applied to the states. In part, this belief stemmed not only from conservatism but also from a strong belief in federalism, and that under a federal system states ought to be given as much leeway as possible. Just as judicial restraint meant that judges did not interpose their economic views against Congress and state legislatures, so it also meant that states had the authority to limit rights in a manner denied to the national government.
In 1942, Frankfurter joined with a majority of the Court in declining to extend the right of counsel in Betts v. Brady and continued to oppose incorporation of that right throughout his years on the Court. Not until after he retired did the Court unanimously overrule Betts in the landmark decision of Gideon v. Wainwright (1963).
In 1947, the Court was asked to over rule Twining v. New Jersey (1908), in which it had held that a state law permitting comment on a defendant’s refusal to testify did not violate procedural due process. Since that time, the Court had begun to incorporate parts of the Bill of Rights to apply to the states, and Frankfurter, in Adamson v. California, argued that the Fifth Amendment protection against testifying against oneself, or having the prosecution comment on it, did not apply to the states. The right against selfincrimination, he declared, did not constitute one of those fundamental principles inherent in ‘‘the concept of ordered liberty.’’ In a concurring opinion that defined the notion of selective incorporation for the next two decades, Frankfurter spelled out his ideas of federalism, judicial restraint, and the notion that even in the areas of individual liberties courts should not second-guess the legislature.
Opposing him was Hugo Black, who after initially agreeing with Cardozo’s Palko opinion, had come to the conclusion that the due process clause of the Fourteenth Amendment incorporated totally all of the protections in the first eight amendments. The Court nominally followed the Cardozo–Frankfurter notion of ‘‘selective’’ incorporation, but in the end it was Black who triumphed, because the Court incorporated practically every protection in the Bill of Rights. In 1964, the Court overturned Adamson and incorporated the right against self-incrimination in Malloy v. Hogan and then a few years later carried it to even greater length in Miranda v. Arizona (1966).
Even when Frankfurter was willing to incorporate a provision, he did so in as restricted a manner as possible. He wrote the majority opinion in Wolf v. Colorado (1949), which in effect applied the warrant clause to the states but did so in as crabbed a manner as possible. Refusing to come right out and declare the Fourth Amendment protection incorporated, he found that unreasonable searches and seizures on the part of state officials violated the sue process clause of the Fourteenth Amendment. Although that clause was the basis of incorporation, here Frankfurter emphasized the procedural process elements. He also refused to apply the exclusionary clause, the only means of truly enforcing the warrant clause, against the states. Here again, his view was eventually rejected by the Court in Mapp v. Ohio (1961).
In terms of free speech, Frankfurter rarely voted to support the individual against efforts by the state to restrict it. In Carpenters’ and Joiners’ Union v. Ritter’s Cafe´ (1942), he held that peaceful picketing enjoyed no immunity from state regulation, although the Court had earlier extended free speech protection in labor disputes. In what is perhaps his most notable speech opinion, he concurred with the majority in Dennis v. United States (1941), a case that has been universally condemned ever since. The Court convicted Communist Party leaders not of attempting to overthrow the government of the United States by force but of conspiring to teach about the idea of overthrowing the government. Although he personally abhorred the McCarthy witch hunt and the various loyalty programs, he believed that the First Amendment posed no barrier to Congress and the executive putting such programs into place.
Unlike Hugo Black and William O. Douglas, who took an absolutist view of the First Amendment Speech Clause, Frankfurter in effect saw no difference between the government’s right to regulate economic activity and the regulation of expression. When Black suggested that the First Amendment held a ‘‘preferred position,’’ Frankfurter wrote to Stanley Reed ‘‘Please tell me what kind of sense it makes that one provision of the Constitution is to be ‘preferred’ over another? The correlative of ‘preference’ is ‘subordination,’ and I know of no calculus to determine when one provision of the Constitution must yield to another.’’
To Frankfurter, as William O. Douglas correctly observed, the First Amendment was little more than a caution for moderation. This can be seen when a friend reminded him that during the 1920s, Frankfurter had voiced extremely unpopular opinions in defense of Sacco and Vanzetti. Frankfurter shot back that while it would have been poor policy for the Commonwealth of Massachusetts to have put him in jail for what he did, it was clear to him that the state did in fact have the power to do so.
Although Frankfurter strongly believed in separation of church and state, and voted accordingly in Everson v. Board of Education of Ewing Township (1947), Illinois ex rel. McCollum v. Board of Education (1948), and Zorach v. Clausen (1952), he apparently had little interest in the free exercise clause, as he displayed in the series of cases launched by Jehovah’s Witnesses in the early 1940s.
In these cases, Frankfurter is best known for his opinions in the two flag salute cases. In Minersville School District v. Gobitis (1940), he ruled for an eightto- one Court that the state could force school children to salute the American flag, even if it went against their religious principles. He dismissed the free exercise argument out of hand, and in a telling phrase wrote: ‘‘To the legislature no less than to courts is committed the guardianship of deeply cherished liberties.’’ In essence, courts should accept that legislatures were rights-protective and defer to their judgment. There has been a great deal of comment over this case, and a number of scholars have suggested that the real key to understanding Frankfurter’s position is the fact that he was an immigrant and a super-patriot. America had been good to him; in Europe his brilliance would have done him little good, and doors would have been closed to him solely for the reason that he was a Jew. He had had his innate patriotism reinforced in his public school days, and he saw no reason why schools should not continue to do so, especially with the chances so high that the United States would soon be involved in another war. The socalled religious rights of a small and insignificant sect mattered little when balanced against the needs to promote love of country.
The resulting uproar over the Gobitis case, the increase on attacks on Witnesses, and the determination of the Witnesses to fight for their civil liberties brought one case after another to the high court, and in every one of them Frankfurter voted against the free exercise claim. Then in Jones v. Opelika (1942), Black, Douglas, and Murphy indicated that they had voted wrongly in Gobitis, and the following year the Court reheard the flag salute issue, this time finding for the Witnesses in West Virginia Board of Education v. Barnette (1943). Justice Jackson wrote a ringing endorsement of the right of free thought, and Frankfurter wrote an anguished dissent noting that, although he belonged to ‘‘the most vilified and persecuted minority in history,’’ the courts had no special business protecting minorities. The Framers of the Bill of Rights, he said, ‘‘knew that minorities may disrupt society.’’
Twenty years later Frankfurter still had no sympathy for minorities and voted against making exemption for religious Jewish merchants from Sunday closing laws in Braunfeld v. Brown (1961) and Gallagher v. Crown Kosher Market (1961). Frankfurter was not a complete enemy of civil liberties, and even while opposing incorporation of the Fourth Amendment often wrote opinions denouncing the police for going too far in their zeal. A good case in point is Rochin v. California (1952), in which he chastised the police for forcibly pumping a suspect’s stomach to get incriminating evidence of drugs. And in the notorious Rosenberg case, Frankfurter throughout the ordeal was the only member of the Court to consistently argue that the two had not had a fair trial, and that the Court should review the proceedings.
Frankfurter was also a champion of civil rights and voted in every case that came before the Court during his tenure in support of the rights of black Americans. He named the first African-American clerk to the Court and worked out the strategy that led the Court to reconsider the Brown case so that Chief Justice Earl Warren would be able to develop a unanimous opinion. Unfortunately, Frankfurter also imposed the ‘‘all deliberate speed’’ formula on Brown II, although it is clear that by it he did not mean it to serve as an excuse for delay. And in Gomillion v. Lightfoot (1960), Frankfurter wrote the opinion striking down an Alabama gerrymandering scheme designed to deny black voters their rights.
That opinion, however, led to the overturn of an earlier Frankfurter opinion and in the end marked his departure from the Court with one of the great reversals of his career. In 1946, the Court heard a case challenging the failure of the State of Illinois to reapportion its election districts as required under the state constitution. The result was that although there had been great population shifts into the cities and their suburbs, the now under-populated rural areas still controlled the legislature, and refused to reapportion. In Colgrove v. Green (1946) Frankfurter, for a bare four to three majority, held the issue to be a ‘‘political question,’’ and therefore not amendable to judicial resolution. He warned the courts to stay out of ‘‘the political thicket.’’ In fact, four of the seven justices who heard the case did believe the matter justiciable, but Wiley Rutledge joined Frankfurter’s opinion, because he did not believe there was sufficient time before the next election to resolve the case.
Then Frankfurter wrote the Gomillion opinion, and now people wondered why it was all right to strike down laws that discriminated against African Americans but not against urban residents. For Frankfurter the answer was clear—the Fifteenth Amendment addressed the issue specifically. But with the Warren Court’s attack on segregation (in which Frankfurter joined) and the beginning of its due process revolution, it was only a matte of time before the question of apportionment came up before the high court again.
In Baker v. Carr (1962), the Court agreed that the question of mal-apportionment was justiciable and set the case down for argument on its merits in the following term. Frankfurter entered a bitter dissent, accusing the majority of going where it should not go. The answer, he said, lay with the legislature, completely ignoring the fact that a majority of the people could not get their way because the minority controlled the legislature and would not yield that power. What must have made his defeat even more galling was the fact that the majority opinion was written by his one-time student, William Brennen, who with great skill and craftsmanship completely demolished Frankfurter’s argument in Colgrove.
Frankfurter had a stroke later in the year and was off the Court when it heard the apportionment cases and handed down a series of decisions requiring the states to reapportion on the basis of ‘‘one person, one vote.’’ Frankfurter had warned that there was no judicially manageable formula by which courts could oversee reapportionment, but his longtime foe on the Court, William O. Douglas, came up with the catch phrase that not only garnered public support but also provided the judicial formula necessary.
Frankfurter’s place in the history of civil liberties is mixed at best. A prisoner of the idea of judicial restraint that he and other reformers championed before the Court crisis of 1937, Frankfurter could never grasp the fact that rights belonging to the people, be they civil rights or civil liberties, are in a different class than simple economic regulations. Practically all of Frankfurter’s opinions concerning incorporation and the Bill of Rights—especially relating to the First Amendment—have been overruled or otherwise discarded. Even conservative jurists now agree that, even if they do not use the phrase, the First Amendment does occupy a preferred position and that courts have to be vigilant in the protection of people’s liberties. Frankfurter’s great heroes— Holmes and Brandeis—understood that; regrettably he never did.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited