Nation: FELIX FRANKFURTER

“Between Us and Tyranny” Called to the telephone while dressing for dinner, Harvard Law Professor Felix Frankfurter was still in his B.V.D.s.

At the other end of the line was President Franklin Delano Roosevelt. F.D.R.

chatted for a moment, then said, “You know, I told you I don’t want to appoint you to the Supreme Court.” Frankfurter said yes, he remembered that; Roosevelt went on talking, repeating at least twice more that he did not want to appoint Frankfurter to the court. Finally, F.D.R. got to the point. “But wherever I turn,” he said, “and to whomever I talk that matters to me, I am made to realize that you’re the only person fit to succeed Holmes and Cardozo.” And so, Roosevelt said, he was going to appoint Frankfurter to the Supreme Court anyway.

That was in 1939. Recalling the phone conversation in later years, Frankfurter said: “You know, he was given to teasing. Some people said that it was an innocently sadistic streak in him. He just had to have an outlet for fun.” Behind his teasing, Roosevelt had reasons for hesitations about Frankfurter. For geographical balance, Roosevelt had wanted to name a man from the West or Midwest. Roosevelt well knew that he would stir up a storm by naming a foreign-born Jew with a well-deserved reputation as a radical advocate of liberal causes. But Frankfurter’s prestige among U.S. men of law was great, and most of them could agree with the Nation’s comment that the appointment had a “satisfying inevitability.”

∙In arriving at that pinnacle of inevitability. Frankfurter climbed a long way. Born in Austria, he came to the U.S. with his family at twelve, grew up on New York’s seamy Lower East Side.

His path led through the College of the City of New York and on to Harvard Law School. How could a young man from the Lower East Side go to Harvard? The tuition was only $150 a year then, Frankfurter once explained, and “you could live on very little.” Frankfurter reached the top of his class, got into a leading New York City law firm after graduation. But he soon gave that up to serve under Henry L.

Stimson, whom President Theodore Roosevelt had just appointed U.S. Attorney for the Southern District of New York.

Frankfurter followed his boss to Washington in 1911, when President Taft named Stimson Secretary of War, remained in Government service for three years, then went back to Harvard to teach. He remained at Harvard for nearly a quarter of a century, becoming one of the nation’s most eminent teachers of law.

During the late 19205 and the 19303, Frankfurter sent to Washington many a bright young Harvard Law graduate.

Collectively, they were nicknamed “happy hot dogs,” and their numbers included Dean Acheson, Thomas (“Tommy the Cork”) Corcoran, James M.

Landis. To many of the New Deal’s enemies. Professor Frankfurter seemed downright sinister. His outspoken interventions on behalf of Sacco and Vanzetti and other unpopular defendants in the 19205 had led Chief Justice William Howard Taft to remark that he “seems to be closely in touch with every Bolshevist, Communist movement in this country.” As late as 1945, a Southern Congressman told the House that “practically every department is now infested with those who see eye to eye with Frankfurter—the Rasputin of this Administration.” ∙ But fears that Frankfurter would be a flaming radical on the bench proved to be groundless. Instead, he became the Supreme Court’s most consistent and articulate advocate of “judicial restraint” —the concept that the lawmaking function rests with the legislatures, not the courts. He liked to quote a remark that his friend and hero, Oliver Wendell Holmes, made in his gos: “About 75 years ago, I learned that I was not God.

And so when the people want to do something I can’t find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, ‘Goddammit, let ’em do it.’ ‘ In his own fashion, Frankfurter expressed that doctrine most eloquently in his dissenting opinion in 1943’s West Virginia State Board of Education v. Barnette, a milestone case in which the majority ruled that it is unconstitutional for a state to require schoolchildren to salute the nation’s flag. Frankfurter argued that since the state law aimed toward “a legitimate legislative end, namely the promotion of good citizenship the court should not interfere. “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 wholeheartedly associate myself with the general libertarian views in the Court’s opinion. But 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.” During his early years on the Supreme Court, Frankfurter’s judicial restraint operated as a liberal doctrine, opposing the court conservatives, who used strict constitutional interpretations as weapons against New Deal legislation. But under Chief Justice Earl Warren, the court has leaned to sweepingly liberal interpretations of the Constitution’s civil liberties clauses, and judicial restraint has acted as a conservative brake. Under Warren, Frankfurter repeatedly dissented from majority opinions upsetting federal or state laws. His last major dissent was from the majority opinion that brought apportionment of seats in state legislatures under the review of federal courts. He called the decision “a massive repudiation of our whole past in asserting destructively novel judicial power.”

Frankfurter seldom authored history making majority opinions, but his penetrating mind and formidable argumentative powers made him enormously influential in the closed-door conferences that precede the court’s decisions. Another great jurist. Learned Hand, once called him “the most important single figure in our whole judicial system.” Although he could be a profoundly kind and considerate man. Frankfurter had a waspish streak of intellectual impatience, and he sometimes jabbed lawyers, and even fellow Justices, with sharp-edged remarks or questions designed to make them get to the point. But no one could doubt his deep devotion to the law. A Harvard colleague once said to him chidingly: “You take law awfully seriously.” To that, Frankfurter could plead guilty.

“I do take law very seriously, deeply seriously.” he once explained, “because fragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling.”