Frankfurter, Felix

Frankfurter, Felix (b. Vienna, 15 Nov. 1882; emigrated to U.S. 1894; d. Washington, D.C., 21 Feb. 1965; interred Mt. Auburn Cemetery, Cambridge, Mass.), associate justice, 1939–1962. Small in stature, wiry in youth, of boundless enthusiasm for liberal causes and indefatigable political energy before and, after his appointment to the Supreme Court, Felix Frankfurter was the most controversial justice of his time. Though he denied having any party affiliation, and served under both Democratic and Republican administrations, his politics were openly progressive. Justice Louis Brandeis, whom Professor Frankfurter aided with research and other services, called Frankfurter the most useful lawyer in America. Despite, or perhaps because of this accolade, Professor Frankfurter was feared by conservatives and corporate spokesmen as a dangerous radical. Seated on the Court, Frankfurter acted with restraint, mixing deference to popularly elected executive and legislative branches of government and reasoned, precise elucidations of the rights of minorities, causing some scholars to accuse Frankfurter of changing his stance on many issues. Frankfurter himself lamented that a judge could not write his personal preferences into the law, though Frankfurter decried some of his brethren for just such license (See Judicial Activism.) Accused by Senator Patrick McCarran of being a friend of known communists, Frankfurter was in war and peace a patriot.

The essence of this most complex man was a sense of intellectual commitment. Frankfurter was first and foremost a teacher in the rabbinic style. He welcomed complexities, balanced truths, entertained questions, and understood puzzles. He brought to law a sense of history, comparison, and respect for law's sister disciplines. In front of his classes at Harvard Law School, in his chambers at Court, he demanded reasoned discourse. The job of the teacher was to speak, not to be silent; hence his many thoughtful and fulsome concurrences and dissents and his lectures to the conference that his brethren sometimes resented. The Supreme Court itself he conceptualized as a tutor to the lower courts and Congress. Opinions were part of a continuing dialogue within the hierarchy of courts. Like a good teacher, the Court had to choose among cases, seeking those that best made its points, hearing only those cases that were ripe for decisions and whose parties had suffered real injuries that the courts could remedy.

Frankfurter's vision of his role on the court thus was the culmination of a vision of himself. He always believed that he rose in the world from an immigrant lad of twelve who spoke no English to Supreme Court justice through intellectual achievement, and his opinion had much factual support. His intellectual curiosity, precociousness, and diligence marked his stay at the City College of New York and at Harvard Law School, where he graduated first in his class. He was a brilliant scholar, speaker, and negotiator in the public service. Whether ferreting out corporate wrongdoers as assistant to the federal attorney for the Southern District of New York, or as Woodrow Wilson's labor troubleshooter in the dangerous years of 1916–1918, Frankfurter demonstrated that intellect could solve practical problems and make the world a fairer place. A professor from 1913 until 1939, he loved Harvard Law School as the most egalitarian place on earth—an aristocracy of talent and intellect. During his quarter century of service on its faculty he became the friend and tutor of two generations of government servants, in class, on the walkways around Langdell Hall, and in his own home inculcating in students a love of the law and of service to government. No person was a better mentor, friend, or ally, but every friendship, no matter how high or how low the status of the recipient, was cemented with ideas. His law clerks, many of whom went on to distinguished government and academic careers, remembered with fondness and awe the justice's appetite for intellectual discourse, new ideas, for sheer pleasure as well as use.

In his memoirs he admitted as well his skill in courting people whose views he supported. These contacts, assiduously cultivated and loyally maintained, were not sinister or cynical. Instead, he genuinely sought mentors and in his turn nurtured and placed many younger lawyers and law scholars. Indeed, it can be argued that he was the model of the modern mentor. Early in his career he developed an affection for Henry L. Stimson, whose disinterested public spiritedness, personal courage, and work habits Frankfurter admired. Frankfurter also attached himself to Justice Oliver Wendell Holmes, whose intellectual appetites were as voracious as the younger man's, and to Justice Louis Brandeis, whose social conscience needed a strong right arm unencumbered by the restraints that a justice of the Supreme Court felt. Brandeis helped defray medical expenses in the Frankfurter household and Frankfurter carried on research and political advocacy for the justice throughout the 1920s and 1930s. Frankfurter also courted Franklin Delano Roosevelt, a courtship that made the professor one of the president's most trusted and most avid advisers. Frankfurter, who introduced the course in administrative law in American law schools, used his connection to Roosevelt to place many of his former students, so‐called hot dogs, in the New Deal. Frankfurter himself continued to advise Roosevelt. Indeed, even after his appointment to the Court, Frankfurter was a constant visitor to the White House.

Frankfurter's zeal as a teacher on and off the Court rested on his personal faith that policy must be based on reasoned balancing of interests by political leaders. His opinions in First and Fourteenth Amendment cases rested on precise calculations of balancing. Frankfurter conceived claims in terms of group interests—here he betrayed the influence of the early work of Roscoe Pound, work that attracted him to the faculty at Harvard Law School—rather than individual rights. He was never a formalist, a literal reader of the Constitution or of statutes, much less of judicial precedents. He balanced the many sources of law just as he balanced the claims of interest groups and of agencies of government. Frankfurter added to the balance conditions external to the Court. For example, he joined in Korematsu v. United States (1944) and maintained his commitment to the flag salute requirement in West Virginia State Board of Education v. Barnette (1943) because the United States was engaged in a war with a horrific foe, and the claims of government, based upon any reasonable construction, must trump individual rights, unless those rights were essential to the broader historical framework of republican constitutionalism.

More than some abstract and rigid set of “ordered liberties” Frankfurter insisted that the Constitution rested upon an historical evolution of basic notions. Its terms resonated with multiple overlapping meanings that the judge must discern and apply in each case. He was unwilling, thus, to follow Justice Hugo Black's theory of the wholesale incorporation of the Bill of Rights in the Fourteenth Amendment. Not only did Black's formulation violate Frankfurter's understanding of the historical origins of the amendments to the Constitution, Frankfurter suspected that Black's theory was a screen for blatantly political aims.

Not that Frankfurter was apolitical once he reached the Court; quite the opposite was true. Frankfurter believed that the political process was a vital part of the evolution of law but that the Court should defer to the politics of elected assemblies. He did his own politicking in person, through intermediaries, and through the mails. Frankfurter also believed that the High Court must educate public opinion on constitutional issues. Although his opinions often deferred to the prior decisions of elected state judges and legislatures and the Congress, he always explained why deference should be paid. He never hid or dismissed the policy considerations behind such deference. To this extent he was one of the “progressive pragmatists” who transformed law teaching in the 1910s and 1920s from the inculcation of a set of formulae to the open‐ended study of public values. His own commitment to deference was an early part of his jurisprudence, perhaps the influence of the theories of Holmes and Brandeis.

Frankfurter's strong attachment to coordinate federalism, expressed in his dissents in Mapp v. Ohio (1961) and Baker v. Carr (1962), was of a piece with his deference to popularly elected assemblies. An aroused citizenry could do what no court might venture, and the court must not squander its always limited and precious reserve of political influence by entering into political questions (See Judicial Self‐Restraint).

On the bench, Frankfurter was a formidable adversary and a fulsome ally. He was ever trying to build majorities around his positions, an echo of his political organizing efforts over the preceding two decades. Initially close to younger progressive justices like Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge, Frankfurter found himself increasingly estranged from the liberal wing of the court. In part the estrangement was owing to Frankfurter's progovernment stance in the flag salute cases, a stance that he maintained throughout his tenure. When the integrity of the courts or the bar was threatened by government, Frankfurter joined his liberal brethren. This philosophy came to have a shape distinct from deference in the work of Frankfurter protégés and students at Harvard Law School. “Process jurisprudence,” filled out in the writings of Henry Hart and Albert Sacks at Harvard Law School, was Frankfurter's inspiration. Its central principle was a rational, balanced, system‐conserving restraint. The courts could not save the world, but neither would they stand by when government threatened the process of adjudication itself. The doctrines of mootness, ripeness, standing, and a “second look” in constitutional questions—reasons for avoiding reaching constitutional questions—that Brandeis pioneered and Frankfurter popularized fit perfectly into this jurisprudence.

On the Court, no one had more concern for legal craftsmanship than Frankfurter. He never forgot his origins, how far he had come, and thus never lost his respect for his office. This, perhaps more than anything else, explains why Frankfurter privately criticized the opinion of Douglas, whom Frankfurter believed to be brilliant but lazy, and Black, whose commitment to abstract first principles and correct political outcomes Frankfurter lamented. Frankfurter's strongest allies on the court were craftsmen like Robert H. Jackson and John M. Harlan. In his last years Frankfurter reconciled with Black. In their opinions on the bench and in their personal lives both men rediscovered their initial affinities.

Both men believed, for example, that desegregation was constitutional, and must come. (See Brown v. Board of Education.) Both men feared the practical consequences of an immediate desegregation order. Both men worked behind the scenes to fashion rules that would allow localities to move toward desegregation in a lawful manner. They joined, thus, in rejecting legal segregation of housing, political primaries, and schools and other public facilities.

Before he died, Frankfurter asked that a Jewish prayer be recited at his death. This was the Kaddish, not mentioning death but extolling the glory and the justness of God. Frankfurter remarked, in explanation, that he was born a Jew and wished to die a Jew. Though not conventionally religious in adulthood, he came from an Orthodox Jewish family—indeed his father had trained as a rabbi in Vienna—and Frankfurter spoke Yiddish and Hebrew before he spoke English. Throughout his career, he was a Zionist and a supporter of secular Jewish causes.

The rabbinical scholarship of the Talmud speaks of obligations, not of rights. The Jew is commanded to do justice, love mercy, and walk humbly with God. The way to understand these and the many other mitzvot (God's laws) is study—study of law. Frankfurter's belief in duty, the duty of one individual to another, of the government to individuals, of individuals to government, is all of a piece with Jewish law. Process jurisprudence is a philosophy of obligations.

Frankfurter's most controversial opinions, in Minersville School District v. Gobitis (1940), for example, upholding the suspension from public school of Jehovah's Witnesses for their unwillingness to salute the flag, an action they claimed violated their right to free exercise of religion, and his dissent in Everson v. Board of Education of Ewing Township (1947), in which the majority of the Court upheld a state law permitting state funds to underwrite religious education, fit the ideal of a law of obligation. No one was entitled to special treatment, special exemptions, or special subsidies under the law. Frankfurter's opinions on labor union practices in strikes and controversial concurrence in Cooper v. Aaron (1958) restated this theme: the obligations of law precede and create rights.

If one concedes that this rabbinic fidelity to law lay deep in Frankfurter's consciousness, his life and career no longer appear marked by contradiction. He labored in fidelity to the great principle of obligation. He owed public service and patriotic devotion to the land that had adopted him, the school that entrusted him to teach, and to his fellow citizens who allowed him to hold high office. Throughout his life, he honored the obligation to teach, to study, and to live by law, and he exalted this principle on the eve of his passing. He died three years after suffering a debilitating stroke, leaving his widow, the former Marion A. Denman.

Bibliography

Leonard Baker , Brandeis and Frankfurter, A Dual Biography (1984).
Bruce Allen Murphy , The Brandeis/Frankfurter Connection (1982).
Michael E. Parrish , Felix Frankfurter and His Times: The Reform Years (1982).
James F. Simon , The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America (1989).
Mark Silverman , Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making (1984).

Peter Charles Hoffer