Democratic Justice: Felix Frankfurter,
the Supreme Court, and the Making of
the Liberal Establishment
by Brad Snyder
W. W. Norton
992 pp., $45.00
Was Felix Frankfurter a failure? Should anyone care if he were? This splendid new biography of the once celebrated Supreme Court Justice (on the Court from 1939-1962) seeks to answer these two questions.
Frankfurter was the darling of the liberal and progressive community in his early years, especially on the Harvard Law School faculty (1914-1939) and as an informal advisor to Franklin D. Roosevelt. Frankfurter arrived in New York at the age of 11 from his native Austria speaking not a word of English, but before long he had graduated from Harvard Law School with one of the highest grade-point averages in the history of the institution. He became the first person of Jewish ancestry to become a Harvard professor, and his jurisprudential philosophy of “judicial restraint” and deferring to the popular branches dominated its law school until the 1970s.
Frankfurter was arguably even more famous for his extra-judicial activities, which generally took two forms: sending former students and clerks into government service, and personally advising executive and legislative branch officials. The former practice is perhaps the highest calling of an academic, and one is nothing less than astonished to learn that virtually every important law professor and legal thinker of the past few decades seems to have been a Frankfurter student. His latter activity as a crony of politicians, which he indulged in both before and after he took the bench, is more problematic. We are supposed to have a constitutional structure of separation of powers, where the legislature composes and passes laws, the executive carries them out, and the judiciary simply judges. But if Justices advise and influence presidents and legislators, as Frankfurter unceasingly did, the checks and balances purportedly within the constitutional structure are mocked, and the potential for abuse—perhaps even tyranny—exists.
While this volume is generally favorable to Frankfurter, its author, Georgetown Law Professor Brad Snyder, is scrupulous enough to notice Frankfurter’s routine violations of the separation of powers, which he describes as an ethical lapse. He was not without personal failings as well. While possessed of considerable personal charm, Frankfurter had an ego of colossal proportions, which Snyder believes may have contributed to his wife’s mental illness.
Frankfurter was eventually awarded the Presidential Medal of Freedom (1963), America’s highest civilian honor, but Synder notes that Frankfurter’s achievements also came with his reputation of being something of a “vampire,” who sucked away the credit for the hard work of his proteges. Frankfurter was certainly not a great scholar, and the first drafts of his opinions, books, and articles were usually written by his students and clerks.
Nevertheless, there was probably no other single individual who did more than Frankfurter to mentor, inspire, and place brilliant lawyers in public and academic service. At one point, in a splendid analogy, Snyder remarks that just as the conservative legal establishment now has the Federalist Society, a network of thousands of lawyers and law students able influence the academy, the judiciary, and the executive, Frankfurter was for decades a one-man Federalist Society, and every bit as influential. The broad claim of Snyder’s now-definitive biography is that Frankfurter virtually single-handedly created the liberal establishment in the academy in the agencies, and on the bench and bar, that dominated American public policy for a significant part of the 20th and 21st centuries.
Frankfurter’s judicial career, however, is a bit trickier to defend. As Snyder acknowledges, it is his relatively conservative record on the Supreme Court, and his failure to join in the progressive efforts of more colorful Democrat appointees such as Hugo Black, William O. Douglas, Earl Warren, and William Brennan, that led several scholars to conclude that Frankfurter was the “principal villain” of the Warren Court. Snyder defends Frankfurter’s judicial conservatism as a democratic philosophy, which reserved legislation and policymaking for the two more popular branches, and, in this, Snyder sounds not unlike some paleoconservative judicial heroes, such as Antonin Scalia or Clarence Thomas, who also railed against replacing the Constitution with one’s own preferences.
Those who now disparage Frankfurter’s tenure as a Supreme Court justice point to two alleged failings. One is that he was insufficiently enthusiastic to use the Court to protect civil liberties, having gone along, in his early years on the bench, with some attempts by the executive to ferret out and punish anarchists and communists, as well as concurring in the wartime incarceration of Americans of Japanese ancestry. A second is that his extraordinary self-regard and habitual professorial pontification made him nearly intolerable to some of his colleagues on the Court.
With regard to the first charge, Snyder mounts something of a faint-hearted defense, praising the democratic aspects of judicial restraint, but, in something like a plea of confession and avoidance, emphasizing Frankfurter’s direct and indirect policy roles in advising presidents and others, and in staffing the executive branch and administrative agencies of the New Deal. Also properly noted by Snyder is that in his Harvard Law Professor years Frankfurter was deeply involved in founding the American Civil Liberties Union (ACLU) and the New Republic, notable progressive institutions, then and now.
It is in defending against the second charge—difficulty of getting along with his colleagues—that this book may make one of its greatest contributions. Snyder has done a remarkable job of research into the private notes of the justices and in interviews with many who knew them. He paints a vivid and engrossing picture of an FDR-appointed bench of essentially moral monsters and incompetents, consumed by their own egos and ambitions, and (save for Frankfurter and a few others, most notably Robert Jackson), bent on writing their own personal preferences into the nation’s fundamental law. Snyder here renders an analysis somewhatsimilar to Noah Feldman’s 2010 book, aptly titled Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. Perhaps no one could have successfully turned this bunch into advocates of sensible jurisprudence, so Frankfurter’s failure to get along with them cannot be faulted.
Lurking under the surface of this truly excellent description of Frankfurter’s career is the meaning of the legacy of the most famous chief justice under whom Frankfurter served, Earl Warren. Frankfurter retired in 1962, but he served with Warren for more than a decade and he participated in some of the famous Warren Court decisions, including the 1954 school desegregation decision, Brown v. Board of Education, and the 1962 legislative redistdricting opinion, Baker v. Carr—both of which upended decades of previous precedents. Frankfurter enthusiastically joined in Brown, although, it would seem, taking education out of the hands of the states and placing it, in effect, in the federal government, would seem to be the most blatant violation of federalism, and anything but judicial restraint. At least in the redistricting cases, Frankfurter’s essentially conservative judicial philosophy was employed to rail against the judges entering the “political thicket.”
There is really not much to criticize, as this is one of the most comprehensive judicial biographies ever written and is an absorbing and delightful revelation of almost three-quarters of a century of the intersections of personality, politics, and law, including some of the best accounts ever published of the internal workings of the Court and of the Senate confirmation process. It is safe to predict that the book will be the recipient of many prizes and will become something of an instant classic on the Hughes, Vinson, and Warren Courts.
Still, there might have been more of a recognition of the consequences of Frankfurter’s naïve belief, borrowed apparently from his mentor Justice Louis Brandeis, that “experts” could be trusted to make policy in administrative agencies; these are the same experts who in our own time have morphed into the uncontrollable managerial (or, if you prefer, “deep”) state. And there is just the mere hint by Snyder that Frankfurter’s philosophy of judicial restraint and nonintervention is conveniently praised by the left at a time when the current conservative majority on the Supreme Court is properly seeking to overturn the disastrous precedents set by the Warren and Burger Courts in the areas of race, religion, and abortion.
Snyder is scrupulous in declining overtly to advance his own political and cultural views (a sensible strategy in today’s legal academy), but I would have enjoyed more consideration of the failings in Frankfurter’s progressive worldview, in particular his apparent devotion to our purported separation of church and state. As a secular Jew (although one who was an ardent Zionist and who requested the traditional Kaddish at his funeral) one might wonder if Frankfurter’s attention to the nation’s Founding Fathers somehow missed their insistence that we could not have law without morality and morality without religion. Snyder might have also considered whether Frankfurter’s devotion to his purportedly liberal and progressive heroes, Brandeis and Oliver Wendell Holmes, Jr., sometimes led him astray.
These are quibbles, however, as Snyder has given us, in this big book (686 pages of text and hundreds of pages of supporting footnotes), one of the best guides to understanding how we’ve arrived at where we are in constitutional law, and, indeed, how the American law school faculty is often given to unwise and thoughtless hero worship, to which even Frankfurter occasionally succumbed.