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A Savant and Servant of the Law


ISSUE:  Summer 1976
From the Diaries of Felix Frankfurter, with a Biographical Essay and Notes. ByJoseph Lash. Norton. $12.50.

The diaries of Felix Frankfurter were found by Joseph Lash among the Justice’s papers deposited in the Library of Congress. Frankfurter, an energetic extrovert, was almost proud of his lack of introspectiveness. He began his first entry in 1911 expressing his dislike of diaries, and his own are not notable as an intimate personal memoir. He kept his diaries intermittently until 1948, making detailed accounts for short stretches of time; he destroyed portions he decided should not be preserved. Law and politics have been so inter-twined in American history, and Frankfurter played such a significant role in the public life of his era, that anyone interested in intellectual history will relish Frankfurter’s fragmentary reflections. Joseph Lash’s lengthy introductory essay, especially because of its critical distance toward Frankfurter, is biographically fascinating.

Frankfurter repeatedly upheld the ideal of disinterestedness. Early on he had been repelled by what he saw as Woodrow Wilson’s doctrinaire approach to politics, and Frankfurter remained opposed to self-righteousness and moralism in public officials. During World War II he disliked what he called the “sentimental humanitarianism” of Henry Wallace. When it came to constructing standards for the Supreme Court, Frankfurter was an insistent defender of judicial self-restraint. Although he opposed activism by the Court and wanted judges to be impartial and restrained in order to safe-guard the law from excessively personal judgments, nevertheless Frankfurter was extraordinarily involved in behind-the-scenes politics, even while serving on the Court.

Frankfurter was known for his good-naturedness and talent for getting on with different kinds of people, yet in his diaries he could be rancorous. His judicial differences with Hugo Black did not lead to a personal break. But he accused him of having an “irascible and snarling tone of voice,” at his worst being “violent, vehement, indifferent to the use he was making of cases,” and capable of delivering “harangues” championing “justice and right and decency,” implying any opposition amounted to supporting the side of exploitation. In addition Frankfurter was exceptionally harsh about William Douglas’s non-judicial activities, and especially his presidential ambitions, on the ground that it interfered with the proper role of a Justice. A born teacher, renowned as one of the greatest law professors in our century, Frankfurter could not resist lecturing his colleagues on the Court and grading people in his diaries.

Many liberals who had considered Frankfurter solidly committed to social reform became disillusioned with him. Yet his defense of Sacco and Vanzetti in the 1920’s prefigured his later stress on procedural niceties; Frankfurter was chiefly offended that during the trial due process had been violated in defiance of the laws of evidence. In particular, he objected to the unprofessional conduct of the District Attorney, and Frankfurter held that both the judge and prosecutor had fostered prejudice against the defendants, associating them with the guilt of social radicialism rather than just convicting them of crime. To defend Sacco and Vanzetti as Frankfurter did threw him in opposition to the Brahmin establishment with which, Lash argues, Frankfurter ultimately sought to identify himself. But even when it came to Frankfurter’s later opposition to capital punishment, it was in characteristically narrow terms that he took his stand: he opposed the death penalty because it inherently sensationalizes the trial process.

During the New Deal, while Frankfurter was still a professor at Harvard Law School, he built a reputation that in the end contributed to the disappointment of many of his supporters. Although from 1933 until 1939 he held no official position in Roosevelt’s government, Frankfurter served as a one-man recruiting service for the New Deal. He spotted talent for public service, admiring the “Wisconsin Idea”; as he wrote in 1911: “the union between politics and the university energizing organized knowledge in the interest of the state as LaFollette has done in Wisconsin is to me one of the most vital contributions he has made.” But in a series of diary entries in 1928 we find Frankfurter objecting to having a political leader on his faculty because it was important to keep the university “free from the taint of suspicion of partisan or political motives.” It would not be enough for someone so committed to the life of reason to reconcile the inconsistency over the involvement of universities in politics, or the contradiction between his view of the Supreme Court as a “monastery” with his own extrajudicial role, by falling back for legitimacy on the particular kind of politics advocated. Frankfurter did distinguish between the merits of public service as opposed to the temptations of moneymaking in the practice of law. Nevertheless, the unresolved tensions in Frankfurter reflected a broader ambivalence toward power within American liberalism.

Even in the midst of the national emergency of the great Depression, Walter Lippmann had warned against the dangers for intellectuals associated with public life. In 1936 he opposed Frankfurter’s kind of political engagement, and according to Lash Frankfurter neither forgot nor forgave the implied criticism. In his diaries Frankfurter attacks Lippmann’s habitual detachment; Lippmann wrote in a sound-proof room, evolving drafts which might look worthy but did not need to be implemented in action, Also, Frankfurter was disgusted at what he considered Lippmann’s contempt and cynicism toward congressional committees, especially since Lippmann’s private opinions were at odds with the noble language in Lippmann’s newspaper columns. Frankfurter remained committed to the democratic faith in the rationality of the public, and for him publicity and openness were the prerequisites for sound policy-making. As a publicist, however, Lippmann continued to try to educate the public; and Frankfurter’s opposition to the Court’s taking part in overseeing the redistricting of gerrymandered congressional seats, because it supposedly short-circuited the public’s own responsibilities for correction, amounted to a self-destructive use of the philosophy of self-government.

Lash’s introductory essay does not make too much of the differences between Frankfurter and Lippmann, but it underlines a comparison with Morris Raphael Cohen that is unflattering to Frankfurter. Cohen was, like Frankfurter, a brilliant Jewish immigrant who had graduated from City College; he and Frankfurter were later roommates at Harvard Law School. Cohen named his first-born after Frankfurter. Cohen had the more academic interest in jurisprudence, and Lash effectively cites Cohen’s critique of Frankfurter’s judicial conservatism. According to Cohen, it was only by accident that men like Oliver Wendell Holmes, Jr. , Louis Brandeis, and Benjamin Cardozo got to sit on the Supreme Court, and then they were apt to be in the minority. For Cohen, it was dishonest for the Supreme Court to pretend it was saying what the Constitution requires, when it was in fact deciding what was good for the nation.

The rift between Cohen and Frankfurter was dramatized in their differences over the flag salute cases during World War II. Although Cohen visited the Supreme Court at this time, he did not see his old friend and instead asked to meet Hugo Black. According to Lash, Frankfurter had an immigrant’s gratitude behind his nationalism; committed to the assimilationist function of the public schools, Frankfurter held out for the right of the state to require flag saluting even over the objections of a religious minority, (Frankfurter’s stress on public education in a democracy helped lead him to play a notable role in ensuring unanimity in the Supreme Court’s desegregation decision. ) Lash objects to Frankfurter’s having held that the Supreme Court had no more scope to protect civil liberties than property rights. Lash’s imagery, however, makes one suspicious of the logic of his argument, even if one agrees with his overall judgment; for he tells us that Frankfurter’s stand in the flag salute cases “uncoupled him from the locomotive of history.” One can question whether anyone should be certain what the future will bring, and the decision of history is not necessarily a just one. Lash’s praise for the group led by Hugo Black is narrowly success-oriented. Black and his supporters were, Lash argues, “willing to take larger risks with the Court’s authority than was Frankfurter, and history thus far has proved them right.” Yet Frankfurter’s own experiences with activist courts led by conservatives between the World Wars may turn out to be equally relevant today.

Lash soundly distinguishes between the philosophies of Holmes and Frankfurter. Although Frankfurter hero-worshipped Holmes, Lash thinks this not so much an ideological affinity as a yearning in Frankfurter to become socially accepted. Undoubtedly Frankfurter, who came to the United States at the age of twelve, felt powerfully drawn to the ideal of the gentleman-scholar and public citizen. Frankfurter shared Holmes’s admiration for the British legal system and in particular for England’s procedures of criminal justice. But Holmes was a skeptical Olympian who never read newspapers, an ironist who enjoyed cosmic speculations, and a writer excelling in pithy utterances. Frankfurter, on the contrary, was a convinced democrat who devoured every bit of reading matter that came into his house, and his influence on the Court was weakened by the tendency of his opinions to be too discursive. Like Holmes, however, Frankfurter was childless, and both had a great need for legal disciples.

The need for followers in Frankfurter went hand-in-hand with a tendency to idolatrize, and Lash is highly critical of Frankfurter’s tendency to be sycophantic to Franklin Roosevelt. Frankfurter had not shared the anti-imperialist sentiment of the early 20th century and lacked a suspicion of presidential leadership. Until the New Deal Frankfurter had been independent, an “archetypal mugwump.” But during the court-packing controversy Frankfurter privately advised the President how to formulate his position, while remaining publicly neutral. According to Lash, there were “elements” of the courtier in Frankfurter’s relationship to Roosevelt; and the reward for loyalty, in this account, was Roosevelt’s nomination of Frankfurter to the Supreme Court seat previously held by Joseph Story, Holmes, and Cardozo. The significance of the role of the individual in history, and the influence which presidential choices for the Supreme Court can have over future generations, can be supported by the careers of any of these great Justices.

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