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FRANKFURTER, FELIX

Felix Frankfurter (November 15, 1882–February 21, 1965) was associate justice of the U.S. Supreme Court from 1939 to 1962. He was born in Vienna, Austria, one of six children of Leopold and Emma (Winter) Frankfurter. In 1894, the family moved to New York. Financial fortune proved elusive to Frankfurter's father; selling linen door-to-door and from their apartment, the kindhearted tradesman managed only a meager living and often spent any extra money he acquired on fruit baskets for less fortunate neighbors.

EARLY LIFE AND CAREER

Felix's two older brothers had to work to supplement their father's income, but the future justice was largely spared that fate. Leopold's brother Solomon had become a successful scholar in Vienna, and Emma seemed determined to give Felix the same opportunity, allowing her precocious son to attend lectures and spend hours in the Cooper Union library. After graduating third in his class at the City College of New York, Felix attended Harvard Law School, ranking first each of his three years there. One of his Harvard examinations was so impressive that a faculty member regularly read it aloud to classes over the years.

In 1906, Frankfurter joined Hornblower, Byrne, Miller and Potter, becoming the first Jewish person ever hired by that New York firm. He quickly became bored with private practice, however, and when an opening became available in the office of the U.S. attorney for New York's southern district, Frankfurter jumped at the opportunity. Despite marked differences in their backgrounds, Frankfurter and Henry Stimson, the patrician federal attorney for the district, worked well together, pursuing corporate misconduct and more mundane law violators with equal zeal. When President William Howard Taft named Stimson secretary of war, Frankfurter also went to Washington, becoming counsel in the War Department's Bureau of Insular Affairs.

A master at flattery, the diminutive and effusive Frankfurter, with his piercing bird-like eyes and keen intellect, cultivated many new and influential Washington friends, not least among them justices Oliver W. Holmes and Louis D. Brandeis. The Washington house he shared with several friends became a center for nightly gatherings and frank intellectual discussions—Holmes, apparently, dubbed it "The House of Truth." There Frankfurter met the love of his life, Marion Denman, the Congregational minister's daughter he would marry in 1920, over his mother's intense opposition, after a six-year courtship. The couple would have no children, and Marion suffered periodic bouts of depression, but Frankfurter remained totally devoted to her throughout their marriage.

In 1914, Frankfurter took a position on the law faculty at Harvard. A natural teacher (to both willing and unwilling students), he enjoyed his new role immensely, particularly the opportunity his professorship offered him for continued involvement in contemporary political and policy issues. Like Brandeis before him, Frankfurter represented clients defending wage and hour legislation before the Supreme Court. On special assignments for the Wilson administration, he filed a report charging that the conviction and death sentence handed labor leader Tom Mooney for a San Francisco bombing was based on perjured evidence and he concluded that Arizona copper miners had been subject to gross brutality and injustice. He also spoke out vehemently against Wilson attorney general Mitchell Palmer's raids on suspected subversives, became a very vocal critic of the Sacco and Vanzetti convictions and executions, and urged U.S. diplomatic recognition of the Soviet Union.

ADVISER TO ROOSEVELT

As the nation became preoccupied with the Depression, Frankfurter was again a figure of influence in Washington. He and Franklin D. Roosevelt had first met when Frankfurter was working in the War Department and Roosevelt was assistant Navy secretary. Frankfurter became a close friend and adviser to the future president during Roosevelt's tenure as governor of New York. When Roosevelt went to the White House in 1933, he offered Frankfurter the post of solicitor general, chief representative of the United States before the Supreme Court. Frankfurter declined, explaining that he could make a more substantial contribution as a source of personnel and ideas for the New Deal.

The future justice quickly became a major Washington figure. He played a prominent role in drafting and pushing recovery legislation through Congress. Holding Wall Street and big business primarily responsible for the nation's economic woes, Frankfurter relished the opportunity to over-see drafting of the Securities Act, subjecting the stock market to extensive federal control. Although others were primarily responsible for writing that legislation, Frankfurter mounted a brilliant defense of its provisions in testimony before Congress.

The future justice obviously had competition in his efforts to influence the direction of New Deal policies. James Farley and certain others in Roosevelt's inner circle were essentially political tacticians, largely unconcerned with substantive policy. But three Columbia University academics—Raymond Moley, Adolph Berle, and Rexford Tugwell—became Frankfurter's major intellectual rivals. The trio contended that continued domination of the economy by giant businesses was inevitable and favored the administration's use of centralized planning to channel that power toward service of the public interest. Frankfurter, on the other hand, was suspicious of concentrated economic power and the notion that national affairs could be managed best by Tugwell and other Washington experts. Instead, he favored heavy spending for public works and substantial corporate taxation as major weapons of economic recovery. Roosevelt never became the complete captive of either side, but Frankfurter would gradually gain influence over his Columbia counterparts.

Frankfurter became what one administrative official termed "the most influential single individual in the United States," largely through his recruitment of talented individuals—who were called Felix's "Happy Hot Dogs"—for the new administration. He brought Benjamin V. Cohen and James M. Landis, principal authors of the Securities Act, to the administration's attention. Tommy Corcoran, one of Frankfurter's Harvard students in the 1920s and a clerk to Justice Oliver Wendell Holmes largely on Frankfurter's recommendation, was the future justice's most spectacular "hot dog," becoming one of the most influential players in Depression-era Washington.

Frankfurter also assumed a key role in Roosevelt's growing attachment to the ideas of British economist John Maynard Keynes, who considered massive deficit government spending a major remedy for a stagnant economy. Long a supporter of balanced budgeting, Frankfurter came to know Keynes and admire his economic philosophy while teaching as a professor at Oxford in 1933 and 1934. Back in the United States, Frankfurter helped persuade Roosevelt to partially embrace Keynesian economics, especially during the 1937 recession. In fact, as a result of his immense knowledge and contacts, not to mention his constant flattery of the president, Frankfurter became one of Roosevelt's closest advisers. He even lived in the White House during much of the summer of 1935.

During Roosevelt's first term, Congress enacted much recovery legislation. But a laissez-faire Supreme Court coalition rejected most of those statutes, including the National Industrial Recovery Act (NIRA) and Agricultural Adjustment Act (AAA). To a degree, such rulings played into Frankfurter's hands. Drawing on the thinking of Moley, Berle, and Tugwell, the early New Deal had emphasized the development of a planned economy through, among other things, business participation in the creation of industry codes. Suspicious of business leaders, Frankfurter favored legislation directly imposing federal controls over the economy and creating social programs. The Court's invalidation of the National Industrial Recovery Act in Schechter Poultry Corporation v. United States (1935) helped to convince Roosevelt that the administration should pursue Frankfurter's approach.

Frankfurter privately opposed and refused to defend publicly, however, Roosevelt's 1937 plan to enlarge the judiciary in an effort to defeat conservative domination of the bench. Ever optimistic, Frankfurter suggested patience, hopeful that the justices might alter the Court's course; if not, a constitutional amendment could be passed modifying the Court's composition and powers. When the president opted for Court-packing legislation rather than the more time-consuming amendment process, Frankfurter assured his friend and political benefactor that he would take no public stance on the controversial measure, then privately suggested ways Roosevelt might get it through Congress. But Frankfurter resented Roosevelt's failure to inform him of the plan until the eve of its submission to Congress.

SUPREME COURT JUSTICE

Although the Court-packing plan failed, Roosevelt was given the opportunity, beginning early in his second term, to fill all but one seat on the high bench. His first choice was Senator Hugo Black of Alabama, his second Stanley Reed of Kentucky, his solicitor general. With the untimely death of Frankfurter's esteemed friend Justice Benjamin N. Cardozo in 1938, the president had a chance to name a third justice. Whether out of a sincere concern for regional balance or simply because he wanted to keep the supremely confident Frankfurter dangling for a time, Roosevelt at first told his friend that since the current Court was composed entirely of easterners, Cardozo's successor must come from the West. Roosevelt even asked Frankfurter to compile files on prospective candidates. But members of the president's inner circle were virtually unanimous that Roosevelt choose Frankfurter for the position. On the evening of January 4, 1939, the president telephoned Frankfurter's home to offer him the seat, but only after a lengthy, and for Frankfurter exasperating, conversation in which Roosevelt appeared determined not to appoint his adviser to the bench.

In those days, Supreme Court nominees rarely attended Senate judiciary committee confirmation hearings, and none had done so since Harlan F. Stone's brief appearance in 1925. But after a parade of anti-Semitic witnesses appeared, viciously misrepresenting Frankfurter's views, the committee decided to ask the nominee to appear as a witness. Only Senator Pat McCarran subjected Frankfurter, though, to extensive interrogation. Twelve days after the nomination was announced, the Senate, by voice vote, unanimously confirmed Roosevelt's choice.

Once on the bench, Frankfurter readily joined in the dismantling of the Court's laissez-faire precedents that a majority had begun in 1937. The new justice had long been firmly convinced that policy issues should be left to elected representatives and that judges should overturn statutes only when they lacked any rational basis. He thus had no difficulty affirming Roosevelt's New Deal program and comparable state recovery legislation.

The Roosevelt Court not only rejected the pre-1937 Court's laissez-faire precedents, but in a footnote to United States v. Carolene Products Co. (1938), decided the year before Frankfurter's appointment, Justice Stone laid the foundation for a constitutional double standard: The courts would defer to the political branches of government in economic cases, but would subject laws impinging on non-economic personal rights, such as the guarantees of the Bill of Rights, to close judicial scrutiny.

Contrary to the expectations of his liberal friends, however, Justice Frankfurter was almost equally willing to defer to the political branches when non-economic civil liberties were at stake as he was in economic cases; he had little use for the notion that the Constitution contained clear constitutional commands invulnerable to countervailing societal interests. In Minersville School District v. Gobitis (1940), he spoke for the Court in upholding compulsory school flag programs over the objections of Jehovah's Witness parents who considered such exercises contrary to their religious beliefs. When the Court overturned Gobitis in West Virginia Board of Education v. Barnette (1943), Frankfurter dissented, emphasizing his sensitivity as a Jew to religious liberty claims, but also insisting that in wartime individual freedom must yield to society's overriding interest in promoting patriotism.

Frankfurter assumed the same stance in cases involving free speech claims, repeatedly attacking the First Amendment absolutism of Justice Black, his principal jurisprudential antagonist on the bench. A staunch apostle of federalism, Justice Frankfurter accorded state laws and proceedings particularly broad latitude. Justice Black, convinced that the Fourteenth Amendment's first section was intended by its framers to apply the Bill of Rights to the states, first set forth his total incorporation thesis extensively in his dissent for Adamson v. California (1947). Frankfurter was equally certain that the states would never have ratified the Fourteenth Amendment had they thought it would bind their officials to the specifics of the Bill of Rights—that "eighteenth century straitjacket," as Frankfurter characterized those fundamental guarantees.

Frankfurter was especially reluctant to interfere in state criminal proceedings. In Wolf v. Colorado (1949), he spoke for the Court in concluding that the Fourteenth Amendment's due process clause included within its scope a right of privacy comparable to the Fourth Amendment's guarantee against unreasonable searches and seizures. But he refused to extend the exclusionary rule to the states, preferring instead that states adopt their own devices for deterring police misconduct. In Rochin v. California (1952), the Court, per Frankfurter, overturned a conviction based on morphine extracted from the defendant with a stomach pump, but only because he found such conduct "shocking to the conscience" and thus in violation of the right of the accused to a fair trial. When the Court, in Mapp v. Ohio (1961), ultimately rejected Frankfurter's "shock-the-conscience" standard as, among other things, highly subjective, the justice dissented, emphasizing once again his regard for state autonomy and rejection of the incorporation doctrine.

But Frankfurter's deference to the states was not absolute. When a five-four majority, speaking through Justice Black, espoused a separatist interpretation of the religious establishment guarantee in Everson v. Board of Education (1947), yet upheld state reimbursement of bus fares for parochial school students, Frankfurter dissented. Although reluctant to have the federal judiciary interfere in local education, he ultimately joined Chief Justice Earl Warren's unanimous school desegregation decision in Brown v. Board of Education of Topeka (1954). In an effort to underscore the Court's unity on the issue, all nine justices signed the opinion in Cooper v. Aaron (1958), rejecting further delay in the desegregation of Little Rock's high school and underscoring the final authority of the courts to determine the Constitution's meaning. Characteristically, however, Frankfurter insisted on filing a concurrence, outraging, among others, Black and William J. Brennan (Frankfurter's former law student), who prepared but ultimately withdrew an opinion indicating that Frankfurter's concurrence should in no way be viewed as a "dilution" of the Court's firm stance in the case.

Frankfurter spoke for the Court in Gomillion v. Lightfoot (1960), striking down on Fifteenth Amendment grounds Alabama's racial gerrymander of the city of Tuskegee, which excluded all but a few of the community's African-American voters from local elections. The justice was unwilling, however, to join the Court's reapportionment revolution of the sixties. Speaking for a plurality in Colegrove v. Green (1946), he had rejected judicial intervention in that "political thicket." When the Court, in Baker v. Carr (1962), rejected such thinking, declaring that malapportioned governmental bodies raised justiciable constitutional questions, Frankfurter filed one of his most caustic dissents, reiterating his Colegrove stance and warning—forcefully, if not prophetically—that courts would be unable to force reapportionment on unwilling legislators.

Frankfurter's Baker dissent would be his last opinion. Shortly after the decision was announced, he suffered a serious stroke. On August 28, he sent President John F. Kennedy his letter of retirement. Through much of his tenure, Frankfurter had often been able to muster majorities to defeat civil liberties claims, especially in national security cases. The 1955 appointment of Justice John M. Harlan had given him another ally on the bench. Gradually, however, Frankfurter's principal judicial antagonists—Black, Warren, and Brennan—had come to dominate the Court. With his 1962 retirement, and replacement with Arthur Goldberg, the Court was poised to embark upon the most ambitious expansion of civil liberties in its history, including substantial incorporation of Bill of Rights safeguards into the Fourteenth Amendment.

Even in retirement, however, Frankfurter sought to influence the Court's work. Concerned that, without his presence at the Court, Justice Harlan might falter in his opposition to court-ordered reapportionment, he even attempted to enlist Harlan's clerks in a campaign to strengthen his colleague's resolve, an effort neither Harlan nor his clerks appreciated. Frankfurter also encouraged Justice Black to file a dissent from rulings overturning the trespass convictions of restaurant sit-ins. And when Black registered vigorous dissents in two 1964 sit-in cases, arguing that even bigoted restaurant proprietors had the right to choose their clientele, absent a valid statute to the contrary, Frankfurter wrote his old adversary an admiring letter. Less than a year later, Frankfurter died. Along with Black, he had been the most controversial justice of his era.

See Also: BLACK, HUGO; DOUGLAS, WILLIAM O.; HOLMES, OLIVER WENDELL, JR.; HUGHES, CHARLES EVANS; SUPREME COURT.

BIBLIOGRAPHY

Baker, Leonard. Brandeis and Frankfurter: A Dual Biography. 1986.

Frankfurter, Felix, and J. E. Landis. The Business of the Supreme Court. 1927.

Hirsch, H. N. The Enigma of Felix Frankfurter. 1980.

Lash, Joseph P. From the Diaries of Felix Frankfurter. 1975.

Murphy, Bruce A. The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices. 1982.

Parrish, Michael E. Felix Frankfurter and His Times: The Reform Years. 1982.

Silverstein, Mark. Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making. 1984.

Simon, James F. The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America. 1989.

TINSLEY E. YARBROUGH