Felix Frankfurter

Born November 15, 1882

Vienna, Austria

Died February 22, 1965

Washington, D.C.

U.S. Supreme Court justice, legal scholar, and defender of civil rights

"It was a wise man who said that there is no greater inequality than the equal treatment of unequals."

F elix Frankfurter came to the United States in 1894 at the age of twelve, not speaking English but possessed with a lively imagination. He was part of a great wave of immigrants to the United States at the end of the nineteenth century. Within forty years of arrival, he had become a top advisor to the president and was appointed to the U.S. Supreme Court, a living testament to the promise of opportunity in the United States.

The immigrant on the Lower East Side

Felix Frankfurter was born in Vienna, Austria, on November 15, 1882. His father, Leopold, lived in Vienna, capital of the immense Austro-Hungarian empire that ruled central Europe. The Frankfurters were Jewish; Leopold had intended to become a rabbi but later decided to enter business. His business did not do well, however, and in 1894 he decided to bring his family to New York, along with hundreds of thousands of European Jews seeking new opportunities and an escape from ever-present hatred toward their religion throughout Europe.

In New York, the Frankfurters lived on the Lower East Side, a neighborhood of Manhattan largely populated by Jewish immigrants. Young Felix was enrolled in Public School 25, speaking only German, until a teacher, remembered only as Miss Hogan, lay down the law: no speaking in German! Frankfurter learned English quickly, and by 1902, he had graduated from the City College of New York in a combined high school–college program.

From Lower East Side to Harvard

From the Lower East Side, Frankfurter moved to the opposite end of the social and economic spectrum: Harvard Law School. There, the Austrian immigrant who had not spoken English just ten years earlier, was first in his class for three years.

Frankfurter had a reputation as a young man of boundless energy and curiosity and with a love for language and the law. After graduating first in his class from Harvard, he was offered a job with Hornblower, Byrne, Miller and Potter, a leading New York City law firm which, by reputation, had never hired a Jewish lawyer before Frankfurter. Frankfurter's religion has been a matter of dispute. Without doubt, his father was Jewish, having considered being a rabbi, but Felix Frankfurter did not practice his religion. Nevertheless, he was a strong supporter of Zionism, the movement launched in the late nineteenth century to establish a country in the Middle East just for Jews. For Frankfurter, religion was more a matter of social ties than of day-to-day religious practice.

Frankfurter did not remain long at Hornblower, Byrne, Miller and Potter. He was offered a job working for Henry L. Stimson (1867–1950), the U.S. district attorney (federal prosecutor) in New York. Frankfurter accepted a 25 percent pay cut to take the job.

The association with Stimson was an important turning point in Frankfurter's life. His new boss, who had been appointed to his position as U.S. attorney by President Theodore Roosevelt (1858–1919; served 1901–9), was prominent in the Republican Party. Initially, Frankfurter handled cases involving antitrust laws (laws barring large companies from having too much influence over their industry) and immigration, an important topic when the flood of immigrants from southern and eastern Europe was still enormous.

Man about town in Washington, D.C.

In 1910, Stimson resigned his position to run for governor of New York. Frankfurter managed his campaign. After Stimson lost the election, he moved to Washington, where President William Howard Taft (1857–1930; served 1909–13) appointed Stimson his secretary of war. Frankfurter followed Stimson to the nation's capital and was given a title of law officer in the Bureau of Insular Affairs, dealing with legal issues involving the War Department and America's possessions overseas. In reality, though, Frankfurter served as an advisor and assistant to Stimson.

It was an exciting time for Frankfurter. Thanks to introductions by a Harvard Law School professor, Frankfurter became friends with U.S. Supreme Court justice Oliver Wendell Holmes Jr. (1841–1935) and future justice Louis Brandeis (1856–1941).

In 1912, Democrat Woodrow Wilson (1856–1924; served 1913–21) was elected president; as a result, Stimson left the government to be replaced by Wilson's choice. But Frankfurter stayed in the department, although his duties did not hold his interest. The Wilson administration was a period of intellectual excitement for Frankfurter. He was one of the first contributing editors to a new magazine, The New Republic. The magazine was founded in 1914 as a journal of liberal political opinion during a decade in which the United States faced the dual challenges of social changes brought about by the rise of the industrial economy (economic activity dominated by factories, as opposed to farming), immigration, and a new role for the United States as a world power. Frankfurter was an energetic and active participant in debates about what the future of government policy should be with liberal journalists such as Herbert Croly (1869–1930) and Walter Lippmann (1889–1974), the cofounders of The New Republic.

Back to Harvard

It was thus somewhat surprising in 1914 when Frankfurter accepted an offer to become a law professor at Harvard. To some of his friends in Washington, it appeared that Frankfurter was giving up participation in public affairs for an academic life that would be remote and separated from the intense political and policy debates that Frankfurter loved. He proved his friends wrong.

At Harvard, Frankfurter introduced a new approach to teaching law. Instead of limiting courses to reviewing past judicial decisions, as a means of understanding what the law was and how it had been interpreted, Frankfurter included the arguments of lawyers in important cases, the biographies of the judges, and an understanding of how laws were written in Congress and administered by the executive branch. (The executive branch of the federal government is centered on the president and includes the various departments under the president.) As a close friend of Justice Holmes and, later, Justice Brandeis (appointed to the Supreme Court in 1916), Frankfurter recommended top Harvard Law students to be law clerks, or research assistants, to the two justices.

Frankfurter's academic career was interrupted when the United States entered World War I (1914–18) in 1917. He joined the U.S. Army's legal department (called the Judge Advocate General's Corps) and became a member of the president's Mediation Commission, appointed to try to settle labor disputes that might affect the country's war effort. He investigated the forcible removal of one thousand striking copper miners from Arizona to a deserted town in New Mexico and found that the action was unjustified, but he also found that an impartial system was needed to act as a go-between during labor grievances.

As part of the Mediation Commission, Frankfurter was ordered by President Wilson to investigate an incident in San Francisco in 1916, in which a bomb had exploded in a parade marking "Preparedness Day" in anticipation of the U.S. involvement in World War I. Two radical (in favor of extreme change) labor leaders were convicted of the bombing, but Frankfurter concluded that the public atmosphere in the case had made a fair trial difficult or impossible. Frankfurter was named chairman of the War Labor Policies Board, which tried to settle disputes between companies and workers in order to avoid disrupting the manufacture of supplies needed by the U.S. Army fighting in Europe.

Back at Harvard in 1919, Frankfurter married Marion Denman and resumed his teaching.

Reputation as a radical

Frankfurter continued to be active in affairs outside the university. In 1920, he was among the founders of the American Civil Liberties Union (ACLU), an organization dedicated to protecting the rights of individuals, especially the rights granted under the Constitution's first ten amendments (the Bill of Rights) against government interference.

The early 1920s were a confused time in the United States, especially after communists in Russia established a new government in November 1917. Afraid that communists could start a revolution in the United States, the federal government tried to crack down on activities and speech of which the Republican administrations of Republican presidents Warren G. Harding (1865–1923; served 1921–23) and Calvin Coolidge (1872–1933; served 1923–29) did not approve. According to the ACLU's official history of the organization, "[political] activists were thrown into jail for distributing anti-war literature. Foreign-born people suspected of political radicalism were subject to deportation [made to leave the country]. Racial segregation was the law of the land and violence against African Americans was routine. Moreover, the U.S. Supreme Court had yet to uphold a single free speech claim under the First Amendment." Frankfurter actively defended people arrested by federal agents on suspicion of being communists or otherwise politically dangerous. A federal judge in Boston appointed Frankfurter to help defend immigrants who had been arrested and ordered out of the country, solely on suspicion of their political beliefs.

Perhaps the biggest case in the 1920s involving immigrants and political beliefs was the murder trial of two Italian

immigrants, Nicola Sacco (1891–1927) and Bartolomeo Vanzetti (1888–1927). They were convicted of murdering a Brinks armored-car guard during a robbery in 1920 in Braintree, Massachusetts, near Boston. During their murder trial, the political philosophy of the two men played a prominent role. Both were anarchists, who believed that organized government should be replaced by voluntary associations. They were convicted and sentenced to death. In 1927, while the men awaited execution, Frankfurter closely examined their trial and published an article in the Atlantic Monthly magazine that was highly critical of their trial. Frankfurter's focus was on the way the trial had been carried out; he concluded that the procedures, including the introduction of the defendants' political beliefs, had violated their rights. His article attracted widespread attention but did not save the lives of Sacco and Vanzetti, who were executed in 1927.

During the first six years of the administration of President Franklin D. Roosevelt (1882–1945; served 1933–45),

Frankfurter served as an informal advisor to the president. He was influential in forming many programs devised by Roosevelt to combat the Great Depression (1929–41; a period, following a stock market crash in 1929, of depressed world economies and high unemployment), and was the author of the Securities Act of 1933, regulating trading stocks and bonds.

A justice in the making

In 1932, Frankfurter was nominated to serve on the Supreme Judicial Court of Massachusetts, but he turned down the nomination. He also told newly elected president Roosevelt that he did not want to be named solicitor general, who normally argues cases for the federal government before the Supreme Court. Frankfurter instead spent a year from 1933 to 1934 teaching at Oxford University in England.

In January 1939, Roosevelt appointed Frankfurter to the U.S. Supreme Court; he was unanimously confirmed by the Senate twelve days later and joined his friends Justices Holmes and Brandeis. (The U.S. Constitution requires that when a president nominates someone to become a justice of the Supreme Court, the Senate must vote to approve the nomination before the nomination takes effect; this process is called confirmation.). As a member of the Supreme Court, Frankfurter surprised many observers, who expected that the defender of Sacco and Vanzetti would be an enthusiastic supporter of Roosevelt's proposals for an expanded role of government.

As a justice, Frankfurter was guided by a philosophy called "judicial restraint," which held that judges should be careful not to overrule or conflict with the decisions of the two elected branches of government, Congress and the president. Rather than turning out as a "radical" justice as some thought likely, Frankfurter was a relatively conservative force on the Supreme Court during the period he served (1939–62).

Frankfurter's positions were not really new to him. As early as 1912, he had told a former roommate at Harvard Law School that "precedents [previous legal decisions], not underlying philosophic principles, form our legal habit of thought." On the Supreme Court, Frankfurter felt compelled to observe earlier decisions as his guide on how to proceed with cases that came before him.

Frankfurter retired from the Supreme Court in 1962 following a heart attack and a stroke. He died three years later in Washington, D.C.

—James L. Outman

For More Information

Books

Baker, Leonard. Brandeis and Frankfurter: A Dual Biography. New York: Harper and Row, 1984.

Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789–1993. Washington: Congressional Quarterly, 1993.

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

Parris, Michael E. Felix Frankfurter and His Times. New York: Free Press, 1982.

Urofsky, Melvin I. Felix Frankfurter: Judicial Restraint and Individual Liberties. Boston: Twayne, 1991.

Periodicals

Bryer, Stephen J. "Zion's Justice." The New Republic (October 5, 1998): p. 18.

Lacayo, Richard. "A Judge's Breach of Confidence: Did Felix Frankfurter Go Too Far to Secure a Famous Victory?" Time (April 6, 1987): p. 71.

Web Sites

Frankfurter, Felix. "The Case of Sacco and Vanzetti." The Atlantic (March 1927). http://www.theatlantic.com/unbound/flashbks/oj/frankff.htm (accessed on March 14, 2004).