The Many Faces of Felix Frankfurter: On Brad Snyder’s “Democratic Justice”

FELIX FRANKFURTER was a public servant, legal activist, civil libertarian, opponent of segregation, law professor, key advisor to Franklin D. Roosevelt, active member of the NAACP and the Federation of American Zionists, cofounder of the ACLU, and a Supreme Court justice. He wrote books, articles, “ten to fifteen letters a day,” 247 majority opinions, 132 concurring opinions, and 251 dissents. Brad Snyder ploughed through all of this for his engaging and very impressive book. Readers will learn much from it; I certainly did.

Somewhat defensively, Snyder writes: “The standard story about Frankfurter is that he struggled to fill the seat once held by Holmes. Scholars have portrayed Frankfurter as a judicial failure, a liberal lawyer turned conservative justice, and as the Warren Court’s principal villain.” Asserting “[n]one of these narratives rings true,” Snyder vigorously argues that Frankfurter made “major contributions to twentieth century America’s liberal democracy” because of his commitment to “the democratic political process” and judicial restraint, as well as his mentoring of “a who’s who of American liberals in law and politics.”

However, despite his relentless praise for Frankfurter in this gracefully written book, the “standard story” seems accurate. Snyder applauds Frankfurter for his commitment to “democracy” without explaining how Frankfurter’s opposition to “one person, one vote” furthered democracy. Nor does he explain how democracy benefited by Frankfurter’s refusal to use his legal skills and brilliant mind to protect minorities from majoritarian bigotry or outrageous police behavior, or by the justice’s support for warrantless searches by the police and his willingness to uphold criminal convictions when the accused did not have attorneys to defend them. Similarly, Frankfurter supported repressive McCarthy-era statutes that infringed freedom of expression (although Snyder ignores this aspect of Frankfurter’s jurisprudence). Frankfurter’s allies in these cases, when he had them, were invariably the most conservative members of the court, underscoring he had in fact “turned [into a] conservative justice.”

That does not make Frankfurter unimportant. He clearly is important. Snyder’s impressive book details his captivating and varied career.
 
I. Introducing Frankfurter

In 1894, the Vienna-born, German-speaking, 11-year-old Frankfurter passed through Ellis Island. Quickly acculturating, he finished City College at age 19 and then graduated first in his class from Harvard Law School. He served on the Law Review, but not as president, likely because he was Jewish. He then began a long career of public service.

Although an extraordinarily influential policy maker, Snyder asserts that “Frankfurter made his greatest contribution to twentieth century America’s liberal democracy as a talent scout,” with his students and protégés becoming federal judges, major policy makers, and important legal scholars. He was also an engaging conversationalist, famous for mixing great cocktails (even during Prohibition), and quirky. For example, he never learned how to drive a car.

Frankfurter is best known as a justice (1939–62), but Snyder persuades me (even if it is unintended), that his court career was the least successful part of his life. Frankfurter served with a liberal majority, where the “Democratic Justice” should have thrived. Instead, for all his gregarious charm, he constantly pontificated as only a professor can, fought with liberal colleagues, and allied with conservatives. Frankfurter wrote more dissents than majority opinions, persistently disagreed with his colleagues in often tedious concurrences, and rarely built jurisprudential coalitions. The once-progressive activist became increasingly conservative, even reactionary. When his colleagues voted against him, he denigrated their honesty and intelligence with snide and nasty comments. During World War II, he called those who disagreed with him “the Axis” and absurdly accused William O. Douglas of being anti-Semitic, merely because Frankfurter despised him.

Frankfurter was too often on the wrong side of the law, liberty, and history. Great justices will admit their mistakes, either explicitly or by silently changing their jurisprudence. For example, in early 1919, Justices Holmes and Brandeis shocked their friends by upholding convictions and draconian jail sentences for nonviolent critics of American participation in World War I. While they never explicitly recanted their position, beginning in the fall of 1919, their opinions, usually as dissents, supported free speech and eviscerated the idea that peaceful opposition to government policies should be punished.

Frankfurter seems to have never changed his mind. In Minersville School District v. Gobitis (1940), he upheld the expulsion of elementary students who, as Jehovah’s Witnesses, would not salute the flag, which they believed was the equivalent of idol worship. (At the time, Frankfurter’s beloved uncle was in jail in Vienna because of his religion, and the justice used all his contacts in the United States and Europe to get him released.) Frankfurter absurdly compared expelling school children for their religious beliefs to Lincoln’s suspension of habeas corpus in the Civil War in order to arrest pro-Confederate terrorists who were destroying railroad tracks and bridges. While unintended by Frankfurter, Gobitis unleashed persecution, violence, and new laws punishing Jehovah’s Witnesses for not “bowing down” to the flag. In West Virginia State Board of Education v. Barnette (1943) the court reversed course, with three justices who had voted with Frankfurter in Gobitis now supporting free speech and religious liberty. Furious, and without any sense of irony while the Holocaust was going on, Frankfurter doubled down, using his Jewish background to justify expelling children and incarcerating their parents for their religious beliefs. He wrote: “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.” But then, in fact, he remained insensible to the persecution of young children who were being vilified for their religious beliefs. The majority opinion in Barnette is one of the most eloquent statements on liberty in American constitutional law. Its author, Justice Robert Jackson, would later be the chief prosecutor at Nuremberg.

Similarly, in 1943, a unanimous court approved curfews for Japanese Americans. A year later, three justices dissented in Korematsu v. United States, refusing to condone the “imprisonment in a concentration camp” of a citizen “solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Frankfurter wrote a separate concurrence. No one could miss the Jewish justice’s support for sending minorities to concentration camps.

Snyder persuasively demonstrates that, in his pre–Supreme Court career, Frankfurter “refused to sacrifice civil liberties […] in the name of patriotism.” But in Gobitis, Barnette, and Korematsu, this is exactly what Frankfurter did, oppressing elementary school children for their religious beliefs, jailing their parents, and sending law-abiding American citizens to concentration camps guarded by armed soldiers and encased in barbed wire. These opinions illustrate why most “[s]cholars have” accurately “portrayed Frankfurter as a judicial failure, as a liberal lawyer turned conservative justice.”
 
II. The Pre-Court Years

Brilliant and extraordinarily hard-working, Frankfurter was the first Jewish attorney at an elite Wall Street firm, before joining Henry Stimson’s staff in the US Attorney’s office in New York. He followed his boss when Stimson became secretary of war. In 1912, he supported Teddy Roosevelt’s presidential campaign, but remained in the War Department until 1914, when he became the first full-time Jewish professor at Harvard Law School.

As a professor, Frankfurter taught, wrote, supported progressive causes, and helped found The New Republic. He anonymously published editorials praising his hero, Justice Oliver Wendell Holmes Jr., and supporting the Supreme Court nomination of Louis D. Brandeis. Frankfurter continued this pattern throughout his life — quietly, secretly, and anonymously supporting public issues. Some of this was strategic, such as his assertion during the Brandeis confirmation “that no Jews should make the slightest peep about” Brandeis’s religion. But Frankfurter clearly relished secretly pulling strings, maneuvering, and placing friends and former students into government positions, creating an army of protégés to lobby for his causes.

During World War I, Frankfurter was a special assistant in the War Department and a major in the Army reserves. This was one of his finest hours. With an uncanny ability to cultivate the “right” people, Frankfurter befriended Assistant Secretary of the Navy Franklin Delano Roosevelt. This eventually led to Frankfurter’s Supreme Court seat. He went on a failed diplomatic mission to negotiate a separate peace with the Ottoman Empire and later met with Saudi Arabia’s Prince Faisal and Colonel T. E. Lawrence (a.k.a. Lawrence of Arabia), in an unsuccessful attempt to secure peaceful coexistence between Jews and Arabs in Palestine. While personally nonreligious, he worked closely with Brandeis on the Zionist cause. Snyder sorts out this complicated history with great skill.

As the head of the War Labor Policies Board, Frankfurter established fair wages and decent working conditions in defense industries, limited child labor, mediated labor strikes, and exposed the barbaric and illegal treatment by a local sheriff of striking miners at Bisbee, Arizona. He proved that the murder conviction of labor activist Tom Mooney, for a bombing in San Francisco, was based on perjured testimony. His support for fair treatment for strikers and radicals had its costs. Theodore Roosevelt, once a friend and ally, questioned his patriotism, denouncing him as a Bolshevik.

As Snyder accurately explains, by this time Teddy Roosevelt “was a sad, jingoistic reactionary, a far cry from the inspiring” progressive Frankfurter supported in 1912. But Snyder fails to explain why, after Roosevelt’s “vicious attacks” on him, Frankfurter still had “faith in him” and “believed that the country needed Roosevelt’s leadership.” Snyder leaves us wondering: what was it about Frankfurter that led him to crave the affirmation of Roosevelt, after the ex-president so viciously and dishonestly defamed him?

In the 1920s, Frankfurter helped found the American Civil Liberties Union and devoted enormous energy in a failed attempt to save the lives of Nicola Sacco and Bartolomeo Vanzetti, convicted in an outrageously unfair trial for a murder that neither one of them may have committed. On the Supreme Court he would later courageously support a full review of the espionage convictions of Ethel and Julius Rosenberg. These failed attempts to save the lives of unpopular “radicals” illustrate Frankfurter’s willingness to support justice in some tough cases. He worked with the NAACP on civil rights, argued Supreme Court cases to support minimum wages, and helped draft the Norris–La Guardia Act, the first federal law to protect organized labor. In this part of the book, Snyder accurately describes Frankfurter as “The Most Useful Lawyer in the United States.”

At the same time, Frankfurter became increasingly conservative. He denounced the Supreme Court’s decision in Meyer v. Nebraska (1923), overturning a state law prohibiting teaching modern foreign languages to schoolchildren. Meyer had taught German in a private Lutheran school, which used Martin Luther’s German translation of the Bible. Frankfurter castigated the court for interfering in state laws, even to protect religious freedom. Two years later, Frankfurter anonymously denounced a 9–0 decision striking down Oregon’s Ku Klux Klan–inspired law banning parochial schools, arguing the court should not interfere with the democratic process. Throughout his career Frankfurter stubbornly refused to protect minorities (except sometimes against racial segregation) from majoritarian “democratic” oppression. Snyder justifies Frankfurter’s persistent support of repressive state laws, praising Frankfurter’s “prescient theory of limited judicial review.” It is not clear what was “prescient” about supporting truly repressive legislation aimed at religious minorities and immigrants. Prescient for “what,” we might ask? Does Snyder believe we should go back to religious intolerance and bigotry? Labeling Frankfurter a “liberal,” a civil libertarian, and a “Democratic Justice,” Snyder praises Frankfurter’s view that the court should not interfere when governments ride roughshod over minorities. Snyder claims that “Frankfurter understood the need to protect free speech, fair criminal trials, and racial and religious minorities,” but the evidence really demonstrates the opposite. With the exception of his admirable (although inconsistent) support for Black civil rights, Frankfurter’s record on civil liberties on the court is appalling. His reaction to Meyer v. Nebraska was simply an appetizer for the repressive jurisprudence he would offer, and which Snyder relentlessly defends, while on the court.

Starting in 1932, Frankfurter advised FDR, helped draft legislation, and vigorously supported, sometimes anonymously, the New Deal. He declined FDR’s offer to make him United States solicitor general, believing he could better serve his friend “Frank” (as he called him when they were alone) as a less conspicuous advisor.

In that role, he placed at least 60 former students and friends in New Deal agencies. Snyder asserts that Frankfurter’s “greatest contribution” was his was “eye for talent” which “was second to none.” In many cases this was true. Dean Acheson ended up as secretary of state, Archibald MacLeish (the lawyer/poet) became the librarian of Congress, and Nathan Margold, William Hastie, and Charles E. Wyzanski Jr. became federal judges. Frankfurter protégés Benjamin V. Cohen, Thomas Corcoran, and Joseph L. Rauh Jr. formed FDR’s “brain trust.” The chairs of both the Tennessee Valley Authority and the Securities and Exchange Commission were Frankfurter students. Many of these young lawyers were Jewish, which infuriated some conservatives, isolationists, and assorted anti-Semites. In an age when most large law firms refused to hire Jews, the federal government, with an endorsement from Frankfurter, offered equal opportunity. This was also true for a few African Americans, like William Hastie.

Many of Justice Frankfurter’s law clerks were equally important. William T. Coleman was the first Black Supreme Court clerk and, as secretary of transportation, was the second Black man to serve in a presidential cabinet. His co-clerk that year, Elliot Richardson, served with great honor as attorney general during Watergate, playing a key role in saving the nation by standing up to Richard Nixon and refusing to corrupt our legal system for political gain. These Frankfurter students and clerks support Snyder’s subtitle, “Making the Liberal Establishment.” On the other hand, Frankfurter rejected the clerkship application of Ruth Bader Ginsburg, lamely claiming this was because he had recently had a heart attack and did not want to burden Mrs. Ginsburg, as he referred to her. He could have an African American clerk, but not a female clerk.

But some of his protégés were problematic. Alger Hiss went to prison for perjury, Edward Prichard for election fraud, and James Landis for tax evasion. As the assistant secretary of war, Frankfurter’s former student John McCloy planned and implemented the Japanese internment. When a Justice Department lawyer challenged its constitutionality, McCloy declared that “the Constitution is just a scrap of paper.” Interior Secretary Harold Ickes believed that McCloy was “more or less inclined to be a Fascist.” When Jewish Americans pleaded with McCloy to authorize the bombing of the gas chambers at Auschwitz, he categorically rejected the idea. As US high commissioner in postwar Germany, he pardoned Nazi mass murderers and war criminals, restored property to German industrialists who had used slave labor during the war, and brought ex-Nazis into the government. Snyder ignores this well-known evidence about McCloy, while singling him out for great praise.
 
III. The “Democratic Justice”?

Frankfurter was on the court from 1939 to 1962. His jurisprudence on racial equality was generally progressive. He played an important role, but not the key role, in obtaining a unanimous decision in Brown v. Board of Education (1954). His landmark decision in Gomillion v. Lightfoot (1960) struck down the attempt by Tuskegee, Alabama, to prevent almost every African American in the city from voting in municipal elections. But he supported outrageous police brutality against Black Americans. Frankfurter was the sole dissenter in Monroe v. Pape (1961), where the police, without a warrant, invaded and ransacked a home, forced the Black family to stand naked during the raid, and then held Monroe incommunicado for 10 hours. Weirdly — I have no other words to describe it — Snyder defends Frankfurter’s 53-page memo trying to get the court to side with police. Two months later, Frankfurter dissented to support segregation in a restaurant on city property. Snyder ignores this segregationist dissent and later defends Frankfurter’s support for warrantless searches on the grounds that the Supreme Court should not impose due process protections on the states.

As a justice, Frankfurter violated ethical rules and practices without batting an eye. Remaining one of FDR’s closest advisors, he had “back door” access to the White House without any record of him coming and going. They discussed law, policy, appointments, and probably the constitutionality of planned legislation and pending litigation. Frankfurter remained in constant contact with his former students, advising them on legislation, policy-making, and the law. We do not know if he talked to  McCloy when he was planning the Japanese internment or if this led to Frankfurter’s unconscionable support for sending innocent Americans to concentration camps. We do know that Frankfurter discussed with Acheson the firing of state department officer John Service, and then refused to recuse himself when Service’s case came before the court. Both the conversations with Acheson and sitting on the case were ethically problematic.

Frankfurter advised his former student Alger Hiss, when it was clear that Hiss’s legal problems might land him before the Supreme Court. He surreptitiously (but unsuccessfully) pressured the journalist Edward R. Murrow to “keep his mouth shut” about the Hiss case. He stubbornly defended Hiss, even though more than a decade earlier, as Snyder points out, “Frankfurter began to overlook Hiss’s small deceptions.” This tells us a lot about Frankfurter, and Snyder has done a superb job of ferreting out these details.

However, Hiss’s case undermines Snyder’s relentless praise of Frankfurter’s judgment of “talent.” Mentors can misjudge their students. I wonder, although Snyder did not, why Frankfurter pushed Hiss forward knowing he was dishonest. Perhaps the problem is that “talent” for Frankfurter did not include “character” or “honesty,” which reflects Frankfurter’s own slippery notions of judicial ethics. These are issues I wish Snyder had explored. Instead, he notes that Frankfurter remained loyal to Hiss, calling him “one of the very best men we have in many a day.”

Snyder argues that Frankfurter’s commitment to civil liberties and “democracy” guided his jurisprudence. The Sunday closing and reapportionment cases in his last two years on the court undermine this claim.

Oddly, Snyder does not discuss the 1961 cases challenging state Sunday closing laws. Two of the cases, Braunfeld v. Brown and Gallagher v. Crown Kosher Supermarket, involved Orthodox Jews, whose faith required them to be closed on Saturday. Thus, they sought the right to remain open on Sundays so, like other businesses, they could operate six days a week. Braunfeld, who owned a small clothing store, asserted he would “be unable to continue in his business if he [could] not stay open on Sunday.” Crown Kosher sold kosher food, which, under Jewish law, would not have been kosher if sold on Saturday. But if the store was not open on Sundays, Orthodox customers who worked a traditional five-day week would have had difficulty buying food. The court upheld these laws.

Justice William J. Brennan, a Roman Catholic, dissented, noting that under these laws “no one may at one and the same time be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen.” Brennan argued that “this state-imposed burden on Orthodox Judaism” was unconstitutional. Protestants Potter Stewart and William O. Douglas (who Frankfurter called an anti-Semite) defended the rights of Jews.

Frankfurter wrote a massive 84-page concurrence supporting this discrimination, followed by a 30-page appendix listing all colonial and postrevolutionary Sunday laws and a second nine-page appendix of all current statutes. He defended laws forcing Jews to observe the Christian sabbath by not working.

Frankfurter’s narrow notion of democracy left no space to protect minorities, except in some (but not all) cases involving discrimination against Black citizens. He saw no constitutional problem with Massachusetts requiring all businesses to close in “observance of the Lord’s Day,” even if it was not the “Lord” of the Jews or their sabbath. Under Frankfurter’s “originalism,” based on colonial statutes, nothing in constitutional law, except equal protection for Black Americans, had changed since 1787 or 1791. As with Jehovah’s Witnesses or Japanese Americans, Frankfurter refused to protect the fundamental liberties of minorities.

In his last court opinion, Frankfurter dissented in Baker v. Carr (1962), opposing reapportionment on the basis of population — what is called “one person, one vote.” The case came from Tennessee, which, in violation of the state constitution, had not reapportioned the state legislature since 1901, making a mockery of democracy. For example, Hamilton County (which included Chattanooga) was 19 times larger than Moore County, but each had the same number of state legislators.

Snyder claims that Frankfurter’s dissent was his “most prophetic” but never explains why. Should we have a future (a prophecy) where representation is not based on population? Snyder explains: “Frankfurter insisted that the best way to protect people’s rights was through the democratic political process.” But Snyder does not tell us how this could happen when the democratic process was rigged by legislative districts that disenfranchised the majority of the people. Frankfurter and, to an extent, Snyder both ignore the reality that without judicial intervention there was no path to change. The state legislature refused to redistrict because the existing system protected incumbent officeholders. In a 6–2 decision, the court supported democratic apportionment across the nation. The “Democratic Justice” opposed this.

Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), condemning segregation, was “prophetic.” Justice Oliver Wendell Holmes’s dissent in Lochner v. New York (1905), supporting state protections for working people, was “prophetic.” So too was Justice Hugo Black’s dissent in Betts v. Brady (1942), where Black argued that due process of law and the sixth amendment required that all criminal defendants be provided with counsel. Snyder never mentions this case, where Frankfurter was in the majority supporting the absurd conclusion that a fair trial with due process could be achieved even when there was no lawyer defending an accused person. Indeed, Black was so “prophetic” that he was able to write the opinion reversing that rule in Gideon v. Wainwright (1963). In the case asserting the right of “one person, one vote,” Frankfurter was not “prophetic” — he was simply a reactionary, opposed to the essence of democracy: the right to vote and have your vote count.

If Frankfurter had been a maker of “the Liberal Establishment,” he would have consistently protected minorities, such as Jehovah’s Witness, Japanese Americans, and religious Jews, from oppression. He did not. If he had been the “Democratic Justice,” he would have worked to make sure that the political process gave the people a meaningful vote. He refused to do so. He would have supported the right to counsel for indigent defendants, but he did not. Having said all this, I reiterate my praise for the enormous research and scholarship in this elegantly written book. It gives us a great picture of Justice Frankfurter, but I do not think the picture is nearly as pretty as Snyder does.

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Paul Finkelman is the Robert E. and Susan T. Rydell Visiting Professor at Gustavus Adolphus College in St. Peter, Minnesota, and a research affiliate at the Max and Tessie Zelikovitz Centre for Jewish Studies, Carleton University, Ottawa, Canada.  He is a historian and the author or editor of more than 50 books, including Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard University Press, 2018).