Frankfurter, Felix (1882–1965)

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The immigrant son of Austrian Jews, Felix Frankfurter acquired a legendary reputation as a lawyer, law professor, intellectual gadfly, and presidential adviser even before President franklin d. roosevelt named him to the Supreme Court in 1939. Unable to speak or write a word of English when he entered the public schools of New York City in the 1890s, he was graduated with honors from City College of New York and compiled a distinguished record at the Harvard Law School, where he fell under the influence of Dean James Barr Ames's historical methods, absorbed the constitutional theories of james bradley thayer, and generally adopted the social and cultural trappings of the New England Brahmins, without their intellectual boorishness or political conservatism.

As a law professor at Harvard, Frankfurter introduced several generations of students to constitutional and administrative law, and invented a new field of study: the jurisdiction of the federal courts. His students and protégés, including Dean Acheson, james landis, David Lilienthal, and Tom Corcoran, populated the federal bureaucracy from the days of woodrow wilson to those of john f. kennedy. His 1917 report on the deportation of striking miners from Arizona by local vigilantes and his severe criticism of the procedural unfairness of the commonwealth v. sacco & vanzetti (1921) showed his deep concern for civil liberties and political reform. That he should come to be known, at the end of his judicial career, as a conservative on many of these issues reflected not a weakening of personal convictions, but a strongly held view about the proper limits of the judicial function.

Frankfurter served on the Court between the two great periods of judicial activism in this century. He arrived on the bench two years after the hughes court, retreating from its activism of 1935–1936, laid to rest the due process clause and the commerce clause as instruments of judicial control over legislative economic regulation. His retirement and replacement in 1962 by arthur j. goldberg permitted the Warren Court to enter its most activist phase through the expansion of due process and equal protection to provide Americans with extensive new constitutional remedies against governmental encroachments upon personal liberties.

Frankfurter deplored both the conservative activism of the Hughes years and the liberal activism of the Warren era. From 1939 until 1962, he attempted to discover some middle ground for the Court to occupy that would be intellectually respectable, politically defensible, and morally satisfying. Although his ultimate posture of institutional self-restraint won him few plaudits from liberals and captured the fancy of only a minority among the legal intelligentsia, it had the virtue of predictability.

He rejected the preferred freedoms doctrine articulated by Justice harlan fiske stone in united states v. carolene products co. (1938), where the latter urged the Court to adopt a two-tiered system of judicial review that would take the justices out of the business of shaping economic policy at large but expand their role as the arbiters of civil liberties, race relations, and criminal justice. When passing upon all constitutional questions, Frankfurter responded, the Justices should always act with restraint, avoid ultimate issues of power, and insist only upon a rational basis test for legislation, whether the challenged law concerned filled milk, labor relations, freedom of speech, or criminal procedure. This judicial posture led Frankfurter to uphold a broad range of social and economic measures adopted by the states and the federal government after 1940, but it also earned him the enmity of constitutional liberals when he applied the same tolerant standards to less enlightened manifestations of the political process, including the smith act, the McCarran Act (see internal security act), a group libel statute, and the investigative techniques of the house committee on un-american activities.

Frankfurter also spurned Justice hugo l. black's arguments for incorporating the bill of rights into the fourteenth amendment's due process clause. Like Frankfurter, the Alabama-born justice wished to chain the arbitrary power of judges in the wake of the Great Depression's constitutional crisis, and he urged the Court to replace "the vague contours of due process" with the specific prohibitions and guarantees of the first nine amendments. But beneath Black's façade of positivistic neutrality, Frankfurter suspected, there beat the heart of a judicial fundamentalist, moved by the plight of the poor and the oppressed but no less unbending than pierce butler's or george sutherland ' s. Frankfurter eschewed mechanical formulas such as Black's, and he believed that the incorporation doctrine lacked any historical basis in theFourteenth Amendment. Incorporation, he feared, would encourage the Supreme Court to impose a single code of criminal procedure upon the states and would establish a more rigid judicial tyranny than even the conservative "Four Horsemen" had espoused during the 1930s.

From betts v. brady (1942) to mapp v. ohio in 1961, he insisted that the framers of the Fourteenth Amendment had not intended to subject state criminal proceedings to the precise requirements of the federal Bill of Rights. That amendment, he argued in Adamson v. California (1947), was "not the basis of a uniform code of criminal procedure federally imposed.… In a federal system it would be a function debilitating to the responsibility of state and local agencies."

But this did not mean for Frankfurter that the Supreme Court of the United States had no obligation to review state criminal convictions under the due process clause. That clause, he believed, represented no explicit commands, but a requirement of fairness and reasonableness, above all, a prohibition against official conduct that "shocked the conscience" or offended contemporary standards of civilized behavior. Within this broad, subjective framework, the states had flexibility to manage their own affairs in the realm of criminal justice. Police officers could not, in the absence of friends or counsel, interrogate a suspect for days and claim that his confession had been voluntary; they could not recover physical evidence with the aid of a stomach pump (as in rochin v. california, 1952); or place a listening device in a suspect's bedroom (as in irvine v. california, 1953, dissenting opinion). But due process did not require, in Frankfurter's judgment, that the state provide legal counsel in all felony cases; exclude evidence seized illegally by the police; or refrain from executing a person after a first attempt had failed, although he had strong personal objections to all of these practices (Louisiana ex rel. Francis v. Resweber, 1947, concurring opinion; Mapp v. Ohio, 1961, dissenting).

An early high point of Frankfurter's doctrinal influence came in the summer of 1940, when, over Stone's lone dissent, the Justices rejected a first amendment—due process attack on the mandatory flag salute in the public schools of West Virginia. Within a year of that decision, however, Frankfurter's majority disintegrated. (See flag salute cases.) Led by Black and william o. douglas, a coalition of from five to six Justices carved out a generous area of constitutional protection for both religious and political minorities under the First Amendment and the due process clause. This same majority also began to impose sharp limitations upon the conduct of state criminal trials and local police methods and to afford state prisoners greater access to federal courts by means of habeas corpus proceedings.

Throughout his judicial career, Frankfurter remained skeptical of absolutes. He preached a gospel of relativism and "balancing" that usually encouraged judicial modesty and retrenchment, yet, he too could be a fundamentalist on many constitutional questions. Few Justices took more literally the First Amendment's prohibition against an establishment of religion, and his views in everson v. board of education (1947) and mccollum v. board of education (1948) remained as uncompromising as Black's on freedom of speech. He abhorred capital punishment and used every weapon in his considerable legal arsenal to set aside convictions that carried the death penalty.

Moreover, he consistently championed the fourth amendment by refusing to bend its language to accommodate searches and seizures made without a valid warrant or probable cause as demonstrated by his dissenting opinion in united states v. rabinowitz (1950). Finally, although he resisted the extension of the exclusionary rule to the states via the due process clause, he expected federal judges, prosecutors, and law enforcement officials to follow a strict code of fairness and decency when confronting persons accused or suspected of crimes (McNabb v. United States, 1943, see mcnabb-mallory rule; Nye v. United States, 1941; Rosenberg v. United States, 1953, dissenting opinion).

In addition to institutional self-restraint, Frankfurter found in federalism—perhaps the oldest of our constitutional values—a major, articulate premise of his jurisprudence. His concern for maintaining the vitality of local governmental units distinguished him sharply from most other post-1937 Justices. "The states," he wrote, nine years before joining the Court, "need the amplest scope for energy and individuality in dealing with the myriad problems created by our complex industrial civilization.…For government means experimentation. To be sure, constitutional limitations confine the area of experiment. But these limitations are not self-defining and were intended to permit government. Opportunity must be allowed for vindicating reasonable belief by experience. The very notion of our federalism calls for the free play of local diversity in dealing with local problems." From 1939 until 1962, he attempted to apply these convictions.

A great many of Frankfurter's conflicts with other Justices, often viewed as disputes over civil liberties or judicial self-restraint, actually focused for him upon questions of federalism. A good example is the famous 1941 case of bridges v. california, which, many scholars agree, marked a turning point in his relationship with Justice Black and remains a landmark in the Court's post-1937 concern for civil liberties. In Bridges, speaking through Black, the Court reversed contempt sentences imposed by California judges upon a militant union leader and the Los Angeles Times for out-of-court publications that the local courts believed had disrupted pending cases. Unless such statements represented a clear and present danger to the orderly administration of justice, Black wrote, the due process clause (incorporating the First Amendment's protection of speech and press) prohibited judicial punishment of this kind.

Frankfurter took issue with Black on several points, but the heart of his dissenting opinion reflected powerful federalist concerns for the independence and autonomy of local courts. "We are, after all," he noted, "sitting over three thousand miles away from a great state, without intimate knowledge of its habits and its needs, in matters which do not cut across the affirmative powers of the national government.… How are we to know whether an easy-going or stiffer view of what affects the actual administration of justice is appropriate to local circumstances?" Nine months earlier, in a similar contempt case that did not raise the problem of a direct conflict with state courts, Frankfurter had no difficulty in joining an opinion by Justice Douglas in Nye v. United States (1941) that sharply curtailed the power of federal judges to punish disruptive litigants. For Frankfurter, what distinguished Nye from Bridges was not the First Amendment, "the clear and present danger" test, or the degree of judicial misconduct involved, but the simple matter of the constitution's limited reach into the processes of state courts.

A passionate New Dealer, Frankfurter consistently upheld the power of Congress, acting under the commerce clause, to regulate the nation's economic affairs, even when these regulations touched activities within the traditional domain of the states. He sustained, for example, the judgment of the National Labor Relations Board that local newspaper boys, employed by the Hearst chain, were "employees" within the coverage of the wagner (national labor relations) act, and he agreed that the administrator of the fair labor standards act could entirely prohibit homework in the embroidery industry as a reasonable means to enforce minimum wage decrees.

At the same time, he tended to read congressional regulation of commerce as permitting complementary state legislation, except where the national legislature acted with clarity to preempt local regulations. He insisted that Congress speak with precision on this matter, and he abhorred judicial expansion of congressional intentions, especially where the results limited local authority. In Cornell Steamboat Co. v. United States (1944), for instance, he rejected Black's interpretation of the 1940 Transportation Act that gave the Interstate Commerce Commission authority to fix the rates of tugboats operating on the Hudson River, where ninety-five percent of their business took place between New York ports, but where they passed briefly over the territorial waters of New Jersey. He rejected the idea that Congress had intended in the Wagner Act to exempt union officials from state regulation that did not touch directly upon the employee-employer relationship. In close cases, he often supported a solution that expanded federal authority the least.

In commerce clause cases, despite his concern for maintaining local authority, he refused to endorse the extreme views of Justice Black and others, who mechanically endorsed state economic regulations in the absence of specific federal legislation preempting certain fields. He voted to overturn, for example, Arizona's Train Limit Law and he likewise objected to a local milk ordinance that discriminated against competing products pasteurized beyond five miles of the city. On the other hand, he often allowed the states considerable latitude when they attempted to tax or regulate other aspects of interstate commerce, and he did not support wholeheartedly the economic nationalism of Justice robert h. jackson, with whom he disagreed in cases such as Duckworth v. Arkansas (1941); Northwest Airlines v. Minnesota (1944); and H. P. Hood & Sons v. DuMond (1949; dissenting). Frankfurter believed that federalism required the national judiciary, above all the Supreme Court, to respect the autonomy, sagacity, and integrity of state courts. He was a strong supporter of Justice louis d. brandeis's views (which had become law in erie v. tompkins, 1938) that required federal judges to apply state law in cases involving diversity of state citizenship, and he often voted to restrict the role of federal courts in this area. (See diversity jurisdiction.) State courts, he believed, could efficiently and honestly protect the interests of nonresidents. The Supreme Court should not construe federal statutes in such a manner as to preempt local judicial procedures unless that construction seemed inescapable. For instance, he rejected the idea that Congress intended in the federal bankruptcy laws to strip local courts of their control over their own procedures. "The state courts belong to the States," he wrote. "They are not subject to the control of Congress though of course state law may in words or by implication make the federal rule for conducting litigation the rule that should govern suits to enforce federal rights in the state courts."

America's continuing racial ordeal probably tested the limits of his deference to state authority more severely than did any other constitutional issue. An early member of the NAACP and the first Justice to hire a black clerk, he detested racial discrimination in all of its forms. Yet he refused to interpret the Reconstruction-era civil rights acts to impose criminal and civil penalties on local officials who abused their authority and acted in a hostile manner against minorities. In screws v. united states (1945), Frankfurter, dissenting, argued that Congress had intended in the Reconstruction statute to attack only discrimination sanctioned by positive state laws, not the abuse of authority by local officials. "We should leave to the States," he said, "the enforcement of their criminal law, and not relieve States of the responsibility for vindicating wrongdoing that is essentially local or weaken the habits of local law enforcement by tempting reliance on federal authority for an occasional unpleasant task of local enforcement."

Two decades later, Frankfurter still reaffirmed these views in monroe v. pape (1961), when the Court sustained a civil action against several Chicago police officers who invaded a black family's home and illegally arrested a member of the household without a search warrant. The conduct of the police infuriated him, but in Frankfurter's judgment they had not acted with the approval of state law and therefore they could not be sued under the federal statute for damages. "To be sure," he wrote, "this leaves certain cases unprotected.… But the cost of ignoring the distinction in order to cover those cases—the cost, that is, of providing a federal judicial remedy for every constitutional violation—involves preemption by the National Government … of matters of intimate concern to state and local government."

History treated neither Justice Frankfurter nor his federalism kindly. By means of the commerce clause and its taxing and spending powers, the federal government continued to absorb more and more authority at the expense of the states, usually with the Supreme Court's approval. Horrified by local police brutality and by the failure of local political elites to eradicate racial segregation, the federal judiciary became a powerful instrument of social reform in the decade after Frankfurter left the bench. Even during his tenure, American society was not usually prepared to pay the price of his attachment to federalism. As the Screws and Monroe cases demonstrated, the price could be very high: the inability of the national government to correct glaring denials of constitutional rights that the states themselves refused to correct, and the failure of the states to correct local ills of a kind already eliminated in the conduct of the national government.

From the perspective of many of his colleagues, Frankfurter too often sacrificed efficiency, uniformity, and morality on behalf of an archaic devotion to localism. They hoped to create a new world of prodigious economic growth and humanitarian social policy, where the enlightened judiciary helped to sweep away the provincial forces of commercial and political reaction. For Justice Frankfurter, however, federalism remained both a constitutional command as well as a viable method for ordering American life through the slower process of self-education and social experimentation.

Frankfurter enlivened American politics and immeasurably enriched the nation's legal literature for a half-century. "There is some talk here of replacing him on the Supreme Court," James Reston wrote when he retired in 1962, "but this is as silly as the doctor's bulletins. They may eventually put somebody in his place, but they won't replace him."

Michael E. Parrish


Freedman, Max, ed. 1967 Roosevelt and Frankfurter: Their Correspondence, 1928–1945. Boston: Little, Brown.

Hirsch, Harry N. 1981 The Enigma of Felix Frankfurter. New York: Basic Books.

Lash, Joseph P. 1975 From the Diaries of Felix Frankfurter. New York: Norton.

Parrish, Michael E. 1982 Felix Frankfurter and His Times. Volume One. New York: Macmillan.

Phillips, Harlan B., ed. 1960 Felix Frankfurter Reminisces. New York: Reynal & Co.

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Frankfurter, Felix (1882–1965)

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