Rehabilitating Felix Frankfurter

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.

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