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

Felix Frankfurter

Born November 15, 1882 (Vienna, Austria) Died February 22, 1965 (Washington, D.C.)

Supreme Court justice

Felix Frankfurter was one of America's more powerful people in the legal profession who sought increased protection for criminal defendants in the early twentieth century. As a Supreme Court justice, he was a major force behind the creation and validation of President Franklin Delano Roosevelt's (1892–1945; served 1933–45) New Deal legislation. The New Deal was a collection of federal programs created in the 1930s to assist those most affected by the economic hardships of the Great Depression (1929–41).

"It is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people."

As a legal scholar, Frankfurter was keenly interested in politics, and as a political progressive (one who seeks social reform though government action) he looked to create new legal means of tackling problems. He worked to expand the concept of equal protection under the laws for all, including those in the criminal justice system. Serving on the U.S. Supreme Court from 1939 to 1962, he and his colleagues were on the bench throughout the difficult years of the 1950s as racial segregation was challenged in the courts and brought an end to racially segregated public schools in America.

Coming to America

Felix Frankfurter was born in Vienna, Austria, in 1882. He was the third of six children born to Emma and Leopold Frankfurter. Leopold was an unsuccessful Jewish merchant and in 1893 he set sail for America to search for greater economic opportunity and to escape Vienna's rising anti-Semitism (prejudice against Jews).

Emma Frankfurter and her six children arrived at Ellis Island in New York one year later aboard the Marsala. Felix did not speak a word of English when he began school at PS25 (Public School 25) on Fifth Street in New York City at the age of twelve. Emma was the dominant influence in Felix's life and she encouraged him to succeed as a scholar. He was an eager student who eagerly read books on literature, politics, and history. Felix spent hours reading journals from all over the world as he showed an early interest in world affairs.

Felix thrived on learning and went to the Free Academy of New York, now called City College. There he completed a program combining part of high school and all of his college requirements. In 1902, at the age of nineteen, he graduated third in his class of 775. Felix had long known that he wanted to be an attorney. He attended Harvard Law School where he was at the top of his class all three years before graduating in 1906.

While at Harvard, the philosophy of Professor James Bradley Thayer (1831–1902) impressed Frankfurter and became the foundation of his own jurisprudence (theories in law). Thayer counseled that, as a general principle, the courts should defer to Congress and the state legislatures whenever possible since legislators were directly elected by the public to solve social issues.

Dissenting views

Frankfurter began private practice with a New York law firm. During his first year he was appointed Assistant U.S. Attorney for the Southern District of New York under Henry Stimson (1867–1950). From Stimson, Frankfurter learned the art of trial preparation, which stressed not only to prepare for your own case but for the opposition's case as well. With his fondness for details, Felix gathered large amounts of credible evidence to support his oral arguments in court. Analyzing legal problems from multiple perspectives became Frankfurter's specialty. Stimson also taught him how to coax reluctant colleagues toward his point of view, a talent he perfected over time. When Stimson was appointed Secretary of War in 1910, Frankfurter accompanied him to Washington, D.C., to work as legal counsel for the Bureau of Insular Affairs.

Frankfurter had an exuberant style and a meticulous legal mind as well as a great deal of confidence in his own abilities to bring about consensus in any situation. Using his personality and keen intellect, he formed close relationships with those in power and used flattery and praise on those he most wanted to please.

In 1914 Frankfurter accepted an appointment to the faculty of Harvard Law School as professor of administrative law. From 1916 until 1918 President Woodrow Wilson (1856–1924; served 1913–21) called on him to investigate a growing number of labor disputes. Because of his outspoken support of individual civil rights and the protection of defendants' rights in criminal trials, he was often viewed as a staunch liberal (believing in the natural goodness of human beings and favoring civil liberties, democratic reform, and social progress).

In 1920 Frankfurter was a founding member of the American Civil Liberties Union (ACLU). The organization was created in response to the Red Scare (the American government and public fear of communism and its perceived threat to American democracy that led to mass arrests of foreigners) following World War I (1914–18; war in which Great Britain, France, the United States, and their allies defeated Germany, Austria-Hungary, and their allies). Communism was seen as a serious threat to American democracy and greatly feared by the public. Government agents arrested large numbers of people and held them indefinitely because of their political beliefs. The ACLU worked to defend the civil rights guaranteed in state and federal constitutions for those detained by law enforcement.

The case of Sacco and Vanzetti

One criminal trial that symbolized Frankfurter's advocacy of reform in the criminal justice field was the Sacco-Vanzetti case. In April 1920, at the height of the Red Scare, a payroll clerk and guard were murdered and robbed in the small industrial town of South Braintree near Boston, Massachusetts. Three weeks later two Italian immigrants, Nicola Sacco and Bartolomeo Vanzetti, wandered into a trap set by police to capture the suspects.

Neither Sacco nor Vanzetti had a previous criminal record, but they were known to authorities for their support of local labor strikes, antiwar activities during World War I, and associations with other political radicals. Though not considered suspects at first, police found that the two were armed and carried politically radical literature. Suspicion grew as the two
did not answer questions directly about their current activities, perhaps trying to protect others.

Both Sacco and Vanzetti were taken into custody and eventually charged with the crimes. The resulting court case was one of the most notorious political trials in the United States during the twentieth century. Their defense attorney aggressively attacked the police for focusing primarily on the defendants' political activities and involvement in the Italian anarchist (opposing structured governments) movement, rather than on evidence pertaining to the robbery and murders. Considerable publicity from the trial caught international attention. After a long six-week trial, the jury found them guilty on July 14, 1921.

Numerous attempts to appeal the verdict based on potential flaws in the trial's proceedings and even possible confessions to the crime from others in custody were rejected. The case grew in notoriety. Demonstrations were held in the United States as well as Europe on Sacco and Vanzetti's behalf for a retrial. These efforts failed too and the two men were sentenced to death on April 8, 1927.

The Supreme Court of the United States

The U.S. Supreme Court is located in Washington, D.C. It is the highest court in the United States and has ultimate judicial authority to interpret and decide questions of both federal and state law. As a result of this authority, it has had some of the greatest impacts on the nation's criminal justice system. The Supreme Court is the only court required by the U.S. Constitution. All other federal courts are created by Congress with intentionally limited jurisdiction. The Supreme Court has original jurisdiction in suits between states but most of its work consists of reviewing appeals from state supreme courts or lower federal courts.

The justices of the Supreme Court are appointed for life by the president and confirmed by a majority vote of the Senate. As of 2004, nine justices sat on the Supreme Court with one being appointed chief justice and the remaining members designated as associate justices. The U.S. Constitution provides, in Article I, Section 3, that if a president is impeached (charged formally with misconduct in office), "the Chief Justice shall preside" over the Senate trial.

On September 24, 1789, the Judiciary Act became law. In addition to establishing the Supreme Court, the act divided the country into three circuits, and established three circuit courts: Eastern, Middle, and Southern. The act did not provide separate judgeships for the circuit courts but directed that each was to consist of two Supreme Court justices and one district judge.

The Judiciary Act also established thirteen district courts and judgeships, providing at least one district court for each state then in the Union. The district courts functioned as trial courts, while the circuit courts served as trial courts for certain kinds of cases but also heard appeals from the lower courts. The Supreme Court was the highest appellate court and had the jurisdiction to review all appeals from the lower courts.

The Supreme Court first met on February 2, 1790. Since they still had no cases on the docket, the justices spent the first session attending to administrative matterssuch as the adoption of Rules of the Court and the admission of attorneys to the Supreme Court bar. The Court was to define what would be law and to invalidate any legislative or executive act that would be contrary to the Constitution.

During the first decade of the Court, the justices devoted most of their time to organizing the federal judicial system and riding circuit, visiting a series of federal courts located around a particular geographic area to hear appeals of cases, to hear cases as trial and appellate judges. Civil disputes between citizens of different states as well as controversies concerning national government and its laws comprised most of the early cases heard. Previously there had only been state courts and the concept of the "United States" was relatively new, so many were initially reluctant to accept the new federal authority.

Although the circuit-riding of justices played an important role in educating citizens about their federal government, it took a heavy toll on those serving. Justices wrote to family and friends recounting the physical challenges of riding the circuit by horseback, stagecoach, and steamboat while lodging in taverns and public houses for long periods of time each year. Finally, in 1891, Congress passed the Circuit Court of Appeals Act establishing nine Circuit Courts of Appeals with permanent judgeships.

For the next 170 years, the Court issued few rulings related to rights of defendants or victims in the criminal justice system. The Court would make its mark in criminal law in the 1960s under the leadership of Justice Earl Warren (1891–1974). The Court made several landmark decisions between 1961 and 1966 affirming the rights of the accused in the criminal justice system from such police actions as illegal search and seizure (known as the exclusionary rule) and advising suspects of their rights before interrogations (Miranda rights).

The exclusionary rule states that evidence illegally obtained by the police cannot be used in a court of law. Miranda rights state that police must advise a person being arrested that they have the right to remain silent, that anything they say can be used against them in court, they have the right to have a lawyer, and that a lawyer will be provided if the person cannot afford one.

Frankfurter stepped forward to rally public support by claiming that justice had not been served. With pressure from Frankfurter and other influential people, the governor of Massachusetts formed a committee that included the president of Harvard University. The committee was to determine if the governor should grant clemency (reduce the severity of the sentence) for the defendants. After a quick review, the committee determined clemency was not in order.

Sacco and Vanzetti were executed on April 23. Frankfurter protested what he claimed was the unjust nature of the entire case. He charged that the trial was driven by a strong bias against immigrants and political radicals. Decades later after several reviews, researchers could still not find sufficient evidence to support the guilt of either Sacco or Vanzetti.

A Harvard legal adviser

After a six-year courtship, Felix had married Marion Denman in 1920. The couple had no children together. Although he remained at Harvard, Frankfurter continued to exert his influence in Washington, D.C. When Franklin Delano Roosevelt (1892–1945; served 1933–45) became president, he often consulted Frankfurter, a fellow Democrat, about the legal implications of his New Deal legislation. As a result of this work, Frankfurter placed many of his Harvard students in important positions as law clerks in the new agencies Roosevelt created. These young people earned the name "the Happy Hot Dogs of Felix Frankfurter."

Supreme Court justice

When Roosevelt was given the opportunity to refill a number of the Supreme Court justice positions after a series of retirements, he nominated Frankfurter. Frankfurter was sworn in as an associate justice on January 30, 1939. Frankfurter's passion for the democratic process dominated his case deliberations. He dedicated his twenty-three years on the Supreme Court as a leading proponent of judicial restraint, meaning he believed the country's best hope for the protection of democratic values rested within the elected branches of government —the legislative and executive branches—not the judicial branch. (The legislative branch makes laws; the executive branch puts the laws into effect; and the judicial branch enforces the laws by administering justice.)

Frankfurter argued in favor of leaving it to the legislative branch to pass the nation's laws, which the courts would then interpret. This legal position angered and frustrated many of those who had initially been pleased with his appointment to the Supreme Court. Many wanted Frankfurter to be much more aggressive in expanding the constitutional safeguards for defendants in criminal cases, as he had during the Red Scare of the 1920s.

Nonetheless Frankfurter remained true to his earliest convictions of judicial restraint throughout his career. He retired from the Court on August 28, 1962, following a stroke. Felix Frankfurter died on February 22, 1965, at the age of eighty-two. The Supreme Court adopted many of his earlier beliefs concerning defendants' rights to fair trials after his death. The Court passed a series of rulings in the late 1960s greatly altering the criminal justice process.

For More Information

Books

McWhirter, Darien A. The Legal 100: A Ranking of the Individuals Who Have Most Influenced the Law. Secaucus, NJ: Citadel Press, 1998.

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

The Supreme Court of the United States: Its Beginnings and Its Justices—

1790–1991. Washington, DC: Commission on the Bicentennial of the United States Constitution, 1992.

Web Sites

"Biographies of Supreme Court of the United States Justices: Felix Frankfurter." Wikipedia: The Free Encyclopedia.http://en.wikipedia.org/wiki/United_States_Supreme_Court (accessed on August 15, 2004).

"Felix Frankfurter." The National Archives Learning Curve.http://www.spartacus.schoolnet.co.uk/USAfrankfurter.htm (accessed on February 20, 2004).

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).

FRANKFURTER, FELIX

FRANKFURTER, FELIX (1882–1965), U.S. jurist. Frankfurter, who was born in Vienna, was taken to the United States at the age of 12. His parents settled on the Lower East Side of New York, where his father, scion of a long line of rabbis, was a modest tradesman.

Early Years

Frankfurter graduated with distinction from the College of the City of New York in 1902; his real education, however, as he liked to recount, was derived from the books and newspapers that he devoured at the Public Library, Cooper Union, and the coffee shops of the city. Throughout his life he had a compulsive passion for reading, and he regularly scanned the newspapers of several continents. These he absorbed in no merely passive spirit; he came to have a wide acquaintance among journalists and publishers, and frequently he would pepper them with notes of compliment or rebuke. At Harvard Law School, from which he received his degree in 1906, Frankfurter developed his deep, indeed reverent, attachment to the values of the Anglo-American system of government under law, and as the leading student in his class found new horizons of achievement opened to him. On the recommendation of Dean Ames of Harvard Law School, he was invited by Henry L. Stimson, then United States Attorney in New York, to become an assistant in that office. Henceforth his professional life was divided between public service and teaching. The association with Stimson was one of the most significant experiences in Frankfurter's life, constituting living proof for him that the effective enforcement of the criminal law need not compromise the scrupulous standards of procedural decency that are encompassed in the guarantee of due process of law. When Stimson was appointed secretary of war in the administration of President Taft, Frankfurter became his personal assistant, with special responsibility for the legal affairs of overseas territories of the United States and the conservation of water resources. At this time his friendship began with Justice Oliver Wendell Holmes of the Supreme Court, which became a deep intellectual discipleship despite their disparity in background and temperament. Frankfurter admired not merely the style of Holmes – learning worn with grace – but his fastidiousness of mind and disinterestedness of judgment; and they shared an ardent love of country, instilled in the one by arduous service in the Civil War, in the other by the experience of seeing the vistas of opportunity opened to a gifted immigrant boy.

Professor and Public Servant

In 1914 Frankfurter accepted an appointment to a professor-ship at Harvard Law School, which he held until his appointment to the Supreme Court 25 years later. As a teacher and scholar he concentrated on the procedural aspects of law – the administration of criminal justice, the jurisdiction of the federal courts, the process of administrative tribunals, and the ill-starred use of the injunction in labor disputes. He earned a reputation as a radical reformer, but his concern was for the integrity of the law's processes, upon which a reasoned approach to the maintenance of a just society depended. Misunderstanding of his concern – its mistaken identification with the particular causes that motivated the victims of injustice – led some observers to conclude that Frankfurter was a radical who became a conservative on the bench. During World War i Frankfurter was called to Washington as legal officer of the President's Mediation Commission, charged with investigating and resolving serious labor disturbances. In that capacity he inquired into the vigilante action against strikers in the Arizona copper mines, finding that the companies' refusal to accept unionism was the root cause of the troubles, and he investigated the conviction of Tom Mooney on a bombing charge in California, finding that the trial had been vitiated by improper tactics of the prosecution. These were a forerunner of Frankfurter's involvement in the Sacco-Vanzetti murder case in Boston, the most bitter experience in his life, in which he fought unsuccessfully to have the verdict set aside on grounds of prejudicial conduct by the trial judge and prosecuting attorney, and thereby provoked against himself the burning hostility of the entrenched interests in the community. He was one of the founders of the American Civil Liberties Union, a legal adviser to the National Association for the Advancement of Colored People, and counsel to the National Consumers' League.

Zionist

Frankfurter became closely associated with Louis D. *Brandeis, who practiced law in Boston until his appointment to the Supreme Court in 1916. This association brought Frankfurter deeply into the Zionist movement, and in 1919 he went to Paris with the Zionist delegation to the peace conference. Through T.E. Lawrence he met Emir Feisal, head of the Arab delegation, and in consequence of their talks he received from Feisal the historic letter of 1^st March, 1919, stating that the Arab delegation regarded the Zionist proposal as "moderate and proper," that they "will wish the Jews a most hearty welcome home," and that the "two movements complete one another" and "neither can be a real success without the other." In 1921 Frankfurter withdrew from formal participation in the Zionist movement, when the Brandeis-Mack-Szold group seceded over issues of organization and fiscal autonomy for American Zionism. Thereafter, nevertheless, he maintained his active interest in the upbuilding of the Jewish national home in Palestine, and in 1931, disturbed by the tendency of Britain to shirk its responsibility as the mandatory power, he published a notable and much-cited critical article in Foreign Affairs (9 (1931), 409–34), entitled "The Palestine Situation Restated." Despite the break with the formal Zionist organization, his relations with Weizmann remained cordial.

In Politics

In politics Frankfurter was more concerned with men and policies than with party labels. He served under Stimson in a Republican administration, was an admirer of Theodore Roosevelt, and in 1924 supported Robert M. La-Follette, the Progressive third-party candidate, for the presidency. In 1928 he campaigned for Alfred E. Smith, to whom he had been an informal adviser on problems of public-utility regulation when Smith was governor of New York. In 1932, quite predictably, he warmly supported Franklin D. Roosevelt. Roosevelt, as assistant secretary of the Navy, served with Frankfurter on an interdepartmental board concerned with wartime labor relations. When Roosevelt became governor of New York, he called on Frankfurter for counsel, and upon his election as president, Roosevelt asked Frankfurter to become solicitor general, intimating that if he held this post it would be easier to appoint him in due course to the Supreme Court. Frankfurter declined, however, on the ground that he could be more useful to the President's program without an official place in the administration. He continued to teach at Harvard while advising Roosevelt on certain appointments and lending a hand in speech writing and in the drafting of legislation, notably in relation to the regulation of securities and the stock exchange. When, in 1938, Justice Benjamin N. *Cardozo died, there was widespread sentiment that by virtue of intellect and philosophy – not for reasons of religion – Frankfurter was the rightful successor to this chair, which had been occupied before Cardozo by Justice Holmes. Disregarding the advice of some timorous Jewish friends who pointed to the fact that Justice Brandeis was still on the Court, Roosevelt made the nomination, which was confirmed on January 17, 1939.

Supreme Court Justice

Upon assuming judicial office, Frankfurter's roving commission in law and public affairs was ended, but the gravity of the world situation made it impossible for him to become a judicial recluse. He had recognized the menace of Hitler before most of his compatriots, and when war came, his insight, experience, and judgment were drawn upon. Perhaps his most notable service in this regard was his recommendation of his old mentor, Henry L. Stimson, to be secretary of war. As a judge Frankfurter conceived his role to be more complex than that of a teacher or publicist, since a judge on the Supreme Court must subordinate his merely personal views when judging the validity of the acts of a coordinate branch of government. He rejected the claims of absolutism for even the most cherished liberties of speech, assembly, and religious belief, maintaining that they must be weighed against the legitimate concerns of society expressed through government. When those concerns were relatively tenuous or could be satisfied in a less intrusive way, the liberty of the individual must prevail. Thus when a state attorney general conducted an investigation into the teaching of a college lecturer, Frankfurter wrote a powerful opinion upholding the sanctity of the university classroom against the threat of domination by the state (Sweezy v. New Hampshire, 354 u.s. 234 (1957)). When a school board introduced released-time instruction in religion in the public schools, on a voluntary basis, Frankfurter joined in condemning the program as a breach of the "wall of separation" between church and state (Mc-Collum v. Board of Education, 333 u.s. 203 (1948)). But when a compulsory flag-salute exercise in the public schools was resisted by Jehovah's Witnesses as a profanation of their religious tenets, Frankfurter concluded that the government had not gone beyond permissible bounds in seeking to inculcate loyalty and national pride in schoolchildren (West Virginia State Board of Education v. Barnette, 319 u.s. 624 (1943)). His dissenting opinion begins with his most explicit and deeply felt statement of his judicial philosophy in the troubled area of individual freedom:

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedom guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime.

But as judges we are neither Jew nor gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard…. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.

He joined wholeheartedly in the decisions holding legally segregated public schools to be a denial of equal protection of the laws (Cooper v. Aaron, 358 u.s. 1 (1958)). But in another pathbreaking action of the Court, upsetting malapportionment in legislatures, he dissented vigorously, on the ground that the courts were entering a "political thicket" that would enmesh them in party politics (Baker v. Carr, 369 u.s. 186 (1962)).

Retrospect

In 1962 Frankfurter suffered a stroke, and resigned from the Court. Though invalided, he was able the following year to receive the Presidential Medal of Freedom, the highest civilian honor within the bestowal of the President. The citation read: "Jurist, scholar, counselor, conversationalist, he has brought to all his roles a zest and a wisdom which has made him teacher to his time." The citation suggested the many-sided liveliness of the man, but could not capture the full measure of what he liked to call the Blue Danube side of his nature: the bouncy step, the love of argumentation, the steely grip on his interlocutor's elbow, the roars of laughter, what Dean Acheson called affectionately the "general noisiness" of the man. Nor could the citation capture his astonishing range of friendships, which embraced statesmen, scholars, artists, former students, and writers around the world. His correspondence was prodigious. He was refreshed by uninhibited communication as others are refreshed by solitude. Although not an observing Jew ("a believing unbeliever," he called himself), he retained a familiarity with Jewish lore, and toward the end of his life he felt drawn closer to his heritage.

Writings

Frankfurter's own talk and writings of interest to the general reader include: Felix Frankfurter Reminisces (1960); Law and Politics (1939); Of Law and Men (1956); Of Law and Life (1965); Roosevelt and Frankfurter; their Correspondence 1928–1945; Felix Frankfurter on the Supreme Court (1970).

bibliography:

H.S. Thomas, Felix Frankfurter: Scholar on the Bench (1960); L. Baker, Felix Frankfurter (1969); W. Mendelson (ed.), Felix Frankfurter: A Tribute (1964); idem, Felix Frankfurter: The Judge (1964); Jaffe, in: Harvard Law Review, 62 (1949), 357–412; P.A. Freund, On Law and Justice (1968), 146–62; For further bibliography see R. Dahl and C. Bolden (eds.), American Judge (1968), nos. 4274–92 and 6366–437; P.B. Kurland, Felix Frankfurter on the Supreme Court (1970). add. bibliography: J.D. Hockett, R.E. Morgan, and G.J. Jacobsohn (eds.), New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (1996); J.F. Simon, Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America (1989); N.L. Dawson, Louis D. Brandeis, Felix Frankfurter and the New Deal (1980; M.I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (1991).

[Paul A. Freund]

FRANKFURTER, FELIX

Felix Frankfurter served as a government attorney in the early nineteenth century and then taught law at Harvard Law School. In the 1920s and 1930s, he supported a number of liberal causes, including President franklin d. roosevelt's new deal. In 1939, he was appointed to the U.S. Supreme Court as an associate justice. Throughout his twenty-three years on the Court, he was known for consistently applying the theory of judicial self-restraint.

Frankfurter was born November 15, 1882, in Vienna. At the age of twelve, he emigrated from Vienna to the United States with his parents and four siblings. The Frankfurters, like many other Jews in Vienna, had lived in Leopoldstadt, the center of the Jewish Ghetto, where they faced an undercurrent of hostility and a future of economic uncertainty. Along with 18 million other Europeans who immigrated to the United States between 1890 and 1920, the family sought a fresh start.

Upon his arrival in the Lower East Side of Manhattan in 1894, Frankfurter could not speak a word of English. Yet, twelve years later, after earning his undergraduate degree from City College, in New York, Frankfurter graduated first in his class from Harvard Law School. Following a short stint with a private law firm on Wall Street, where he represented corporate interests, Frankfurter was appointed to serve for the next four years as assistant U.S. attorney in the Southern District of New York, prosecuting white-collar criminals. In 1911, he was named solicitor to the federal Bureau of Insular Affairs.

Frankfurter enjoyed working as an attorney for the government much more than representing corporations in private practice. He stressed that "the American lawyer should regard himself as a potential officer of his government and a defender of its laws and Constitution." He predicted that "if the time should ever come when this tradition ha[s] faded out and the members of the bar … become merely the servants of business, the future of our liberties would be gloomy indeed."

In 1914, Frankfurter returned to his alma mater Harvard Law School, as professor of law. Frankfurter's tenure as professor was marked by his intellectual honesty and rigor. Teaching only students of high academic standing, he tirelessly explored the law's complexities and reveled in its nuances, helping his classes see both the gray areas and the bright lines. He also took a personal interest in his students, helping many of them obtain a clerkship with one of the United States' leading judges, including oliver wendell holmes jr., louis d. brandeis, and learned hand.

Brandeis, a Supreme Court justice from 1916 to 1939, was one of Frankfurter's closest friends. The two met after a lecture Brandeis gave before the Harvard Ethical Society during Frankfurter's days as a law student. Brandeis, who never had a son of his own, acted as a father

and mentor to Frankfurter, who was twenty-six years his junior. During the 1930s, acting as an informal adviser to President Roosevelt, Frankfurter cajoled the president into supporting liberal causes espoused by Brandeis.

Although Frankfurter claimed that he was not a member of any political party, he supported many liberal causes. In 1920, he became a charter member of the newly founded american civil liberties union, an organization created to protect the constitutional rights of members of ethnic, religious, and racial minorities. During the 1930s, Frankfurter served as an adviser to the National Association for the Advancement of Colored People (naacp). Frankfurter also helped develop many aspects of President Roosevelt's New Deal programs. For example, he brought together the legislative engineers who drafted the Securities Act of 1933 (15 U.S.C.A. § 77a to 77z, 77aa), which today remains a prominent piece of federal law regulating the trading of stocks and bonds.

"The history of liberty has largely been the history of the observance of procedural safeguards."
—Felix Frankfurter

Frankfurter's contribution to the case of Nicola Sacco and Bartolomeo Vanzetti identified him as an activist for liberal causes in the mind of many U.S. citizens. sacco and vanzetti, two Italian immigrants who spoke only broken English, were indicted for killing a guard and a paymaster from a shoe company in Massachusetts in 1920. The physical evidence presented against Sacco and Vanzetti was tenuous. For the jurors who heard the case, the most incriminating information may have been the defendants' radical political beliefs: both were known anarchists who opposed the military draft. Sacco and Vanzetti were convicted and executed for the two murders.

Writing an article for the Atlantic Monthly, a venerable national publication with a wide readership, Frankfurter accused the prosecuting attorney and trial judge of appealing to the jurors' prejudice against the defendants' political activities and immigrant status. Frankfurter also accused the prosecutor of conspiring with the government's ballistics expert to mislead the jury. Finally, Frankfurter suggested that the court-appointed interpreter nefariously misrepresented the defendants' testimony in order to enhance the prosecution's case. Frankfurter supported each accusation with passages from the trial record. His article was later published as a book titled The Case of Sacco and Vanzetti (1927). The article and the book have served as a starting point for subsequent generations examining the role that passion, prejudice, and politics played in the trial of Sacco and Vanzetti, as well as in the trials of members of other unpopular minorities in the United States.

In light of Frankfurter's unyielding support for civil rights and individual liberties, as a lawyer and professor of law, many liberals rejoiced when President Roosevelt appointed him to serve as an associate justice on the U.S. Supreme Court in 1939. However, by the time Frankfurter retired twenty-three years later, many of these same liberals were disappointed by his failure to embrace every religious and political minority that presented a claim before the Supreme Court. In retrospect, Frankfurter's actions as a Supreme Court justice cannot adequately be characterized as liberal or conservative but are most accurately described as exhibiting a consistent pattern of judicial self-restraint.

Judicial self-restraint is a theory by which a judge decides cases according to the express legal rules contained in constitutional and statutory provisions as well as common-law precedent, independent of the judge's own personal predilections. According to this theory, state and federal legislatures are the only legitimate government bodies empowered to make laws under the U.S. Constitution, which separates the powers delegated to each branch of government.

The role of the judiciary in this system of checks and balances is simply to interpret and apply the laws passed by legislatures, and decide cases based on politically neutral principles regardless of how insensitive the outcome may seem. Advocates of judicial self-restraint believe that judges, many of whom are appointed to the bench for life and are therefore not accountable to the electorate, upset the democratic authority of the people when they overturn laws passed by elected officials in order to achieve politically palatable results.

Many observers point to the two flag salute cases—Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940), and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943)—as evidence that Frankfurter was a steadfast adherent to the philosophy of judicial self-restraint. Separated by only three years, the two cases presented the same issue: whether the government could compel schoolchildren who were Jehovah's Witnesses to salute the U.S. flag in violation of their religious beliefs, which prohibited

them from engaging in any form of idolatry other than worshipping the Almighty. In both cases, Frankfurter resolved the issue in favor of the government. In the first case, only one justice dissented from Frankfurter's majority opinion, which upheld the expulsion of students who had refused to salute the flag. In the second case, Frankfurter was one of three justices dissenting from the Supreme Court's invalidation of a state law requiring all schoolchildren to salute the flag.

Writing for the majority in Gobitis, Frankfurter recognized the first amendment right of members of religious minorities to exercise their religious beliefs free from government intimidation or coercion. But "the mere possession of religious convictions," Frankfurter cautioned, "does not relieve the citizen from discharge of political responsibilities." He reasoned, "National unity is the basis of national security," and exempting some schoolchildren from their duty to salute the flag "might introduce elements of difficulty into the school discipline … [and] cast doubts into the minds of other children." Because he saw no indication that the Framers of the First Amendment explicitly intended to protect the Jehovah's Witness children in these circumstances, Frankfurter concluded that the legislature, not the judiciary, must be permitted to select the "appropriate means" to establish "the binding tie of cohesive sentiment" that forms the "ultimate foundation of a free society."

In Barnette, the Supreme Court overruled Gobitis and held that the First Amendment prohibits the government from compelling school-children to salute the U.S. flag when such activity violates their religious beliefs. Many observers attribute the shift in the Court's opinion to a decrease in the perceived need for patriotic obeisance: the outcome of world war ii, which was in doubt when Gobitis was decided in 1940, was clearer when Barnette was decided in 1943, as the Allied powers moved closer to victory.

Yet Frankfurter, who had been excoriated in the newspapers and by his former colleagues in academia for his decision in Gobitis, remained unwavering in his commitment to judicial self-restraint. In a vituperative dissenting opinion to Barnette, Frankfurter wrote,

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should whole-heartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard… .In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review.

Frankfurter was again assailed for his failure to protect political minorities, in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), where he concurred with the Court's majority opinion permitting the U.S. government to confine over one hundred thousand U.S. citizens of Japanese descent to "relocation centers" (essentially concentration camps) across the United States during World War II. These relocation centers were authorized pursuant to joint presidential and congressional action initiated as part of an effort to tighten internal security in the United States following the December 7, 1941, Japanese attack on Pearl Harbor. The Court's determination that these centers represented a "reasonably expedient" exercise of the government's power "to wage war successfully," Frankfurter wrote, "d[id] not carry with it [the justices] approval of that which Congress and the Executive did" because "[t]hat is their business, not ours."

Frankfurter retired from the Supreme Court in 1962, and died three years later on February 22, 1965, in Washington, D.C. His legal career spanned over 50 years. Perceived as an advocate of liberal causes at the beginning of his career, Frankfurter is now remembered as much for his conservative judicial style. Regardless of political labels, Frankfurter remains one of the most respected Supreme Court justices in U.S. history.

further readings

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

Hockett, Jeffrey D. 1996. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman & Littlefield.

Henderson, Lynne M. 1987. "Legality and Empathy." Michigan Law Review 85.

Kaufman, Andrew L. 2001. "Frankfurter and Wellington." New York Law School Law Review 45 (winter): 141–47.

Kelso, R. Randall. 1994. "Styles of Constitutional Interpretation and the Four Main Approaches to Constitutional Interpretation in American Legal History." Valparaiso University Law Review 29.

Simon, James F. 1999. "Once a Crusader: Whether Mediating Strikes for Woodrow Wilson or Championing the Least Popular of Defendants, Felix Frankfurter was Bound by Neither Court nor Classroom." American Lawyer. 21 (December): 70.

cross-references

Brown v. Board of Education of Topeka, Kansas; Japanese American Evacuation Cases; Judicial Review; Sacco and Vanzetti; "Some Reflections on the Reading of Statutes" (Appendix, Primary Document).