The Liberal Justice Who Warned Against an Activist Supreme Court
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“Democratic Justice,” Brad Snyder’s comprehensive biography of Felix Frankfurter, aims to reassess the complicated legacy of the judge and political adviser.
DEMOCRATIC JUSTICE: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, by Brad Snyder
In his concurring opinion in the Dobbs abortion case, which overturned Roe v. Wade, Chief Justice John Roberts invoked the wisdom of “a thoughtful member of this court” — namely, Felix Frankfurter. Like Frankfurter, who served as a justice from 1939 to 1962, Roberts argued that the Supreme Court should preserve its legitimacy by respecting precedents, deciding cases narrowly rather than broadly, and in most cases deferring to the democratic political process rather than second-guessing Congress and state legislatures.
Ever since the New Deal era, Frankfurter had warned liberals that fighting their political battles in the Supreme Court would backfire, since conservatives would inevitably regain control of the court and reverse their judicial victories. As Brad Snyder argues in “Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment,” now that Frankfurter’s warnings have come true, it’s a good time to reassess his “modest, incremental and democratic approach to judging,” to look again at a justice who for years was seen as “on the wrong side of history.”
A Jewish immigrant from Austria who arrived in New York at 11 not speaking a word of English, Frankfurter was hobnobbing with Theodore Roosevelt by the age of 26. Snyder is well equipped to write his first full-length biography, having written a previous book on the Progressive Era boardinghouse known as the House of Truth, an incubator of 20th-century liberalism where Frankfurter got his start in Washington. Yet it’s striking how little Frankfurter’s vision of courts changed as he advanced through the ranks of the meritocracy.
He spent more than two decades on the Supreme Court essentially arguing that it should almost never strike down laws, and alienating his fellow justices by repeatedly insisting to their faces and behind their backs that they weren’t as smart and principled as he was. Snyder tells this story in a generally neutral narrative voice but with great detail, collecting every wicked diary entry and self-aggrandizing letter in order to let Frankfurter speak for himself.
That’s to Snyder’s credit, but not always to Frankfurter’s: His lack of self-awareness and failure to produce memorable judicial opinions make him a less than compelling advocate for his own case. By the end of the book, the reader feels like Frankfurter’s wife, Marion, who told a law clerk: “Do you know what it’s like to be married to a man who is never tired?”
Frankfurter first developed his views as a student at Harvard Law School, where Professor James Bradley Thayer had argued in an 1893 essay that judges should not strike down laws unless they were unconstitutional “beyond a reasonable doubt.” As a founding contributor to The New Republic in 1914, he became one of the Taft court’s leading critics. The court should not strike down “social legislation” like the minimum wage law in Washington, D.C., Frankfurter unsuccessfully argued before the justices in 1923. Instead, he believed the court should prohibit only “unreasonable” racial and religious discrimination, such as that faced by Frankfurter’s clients Sacco and Vanzetti, Italian anarchists executed on murder and robbery charges in 1927.
As one of Franklin Roosevelt’s closest advisers, Frankfurter defended the president’s court packing plan behind the scenes and ghostwrote his speech on the 150th anniversary of the Constitution, calling it a practical “instrument of government” rather than a lawyerly “text for interpretation.” When Roosevelt had the chance to transform the court through judicial appointments, progressives clamored for Frankfurter to get a seat. Once on the court, however, Frankfurter disappointed progressives by championing an even more limited judicial role than he had defended as an advocate.
Justices Oliver Wendell Holmes and Louis Brandeis, Frankfurter’s judicial heroes, also believed in general deference to Congress and the states, but they balanced this deference with a commitment to defending the rights protected by the First and Fourth Amendments. Frankfurter, on the other hand, took judicial deference to new extremes. He refused to strike down even clear violations of the First Amendment, on the theory that all protection for minority rights should come from legislators rather than judges.
In 1940, as Hitler was marching across Europe, Frankfurter wrote an 8-1 opinion for the court upholding the power of public schools to expel students belonging to Jehovah’s Witnesses, who on religious grounds refused to salute the flag. Two years later, new justices had joined the court, and old justices had changed their minds: The court voted 6-3 to strike down mandatory flag salutes. Frankfurter’s emotional dissent began by noting that, as a Jew “who belongs to the most vilified and persecuted minority in history,” he was hardly “insensible” to constitutional freedoms.
According to Snyder, although Frankfurter claimed not to be swayed by his personal views, his “obsession” with national unity during wartime was, in fact, influenced by his “second job as an informal executive branch adviser.” The book’s accounts of Frankfurter’s personal experiences with antisemitism during the war are memorable: A Nazi newspaper called his nomination a sign that Roosevelt had “become a handy man for world Jewry.” Yet while firsthand accounts of the Holocaust took Frankfurter’s breath away, Roosevelt refused to take them seriously.
In cases involving racial discrimination, Frankfurter did make an exception to his general unwillingness to challenge Congress, the states and existing Supreme Court precedent. (In this regard, he was more progressive than Holmes and Brandeis.)
He played a leading role behind the scenes in the court’s historic 1954 decision in Brown v. Board of Education, which overturned Plessy v. Ferguson and struck down racial segregation in public schools. Frankfurter’s most important contribution was persuading other justices to delay a decision for nearly a year so that they could win over the undecided justices. After the unexpected death of Chief Justice Fred Vinson (which Frankfurter waspishly called “the first solid piece of evidence I’ve ever had that there really is a God”), his successor, Earl Warren, helped make the decision unanimous.
Brown was momentous, but its implementation was slow: Frankfurter believed that the institutional legitimacy of the court was more important than the immediate enforcement of the Constitution. Controversially, he persuaded the court to delay striking down bans on interracial marriage for more than a decade after Brown. In Frankfurter’s view, allowing desegregation to proceed slowly — “with all deliberate speed,” to use a famous phrase he persuaded the court to adopt — would allow moderate voices in the South to build support for integration over time.
In 1962, months before he resigned from the Supreme Court, Frankfurter dissented from Warren’s 6-2 opinion in Baker v. Carr, which Warren considered the most important case of his tenure. Frankfurter warned his colleagues to stay out of the business of striking down partisan gerrymanders, predicting that the court would have no clear standard for deciding election cases once they entered what he had memorably called in 1946 “the political thicket.” Subsequent Supreme Court cases involving contested elections, from Bush v. Gore in 2000 to our upcoming fights in the court this term over the “independent state legislature” doctrine, have vindicated Frankfurter’s prediction.
When conservatives like Justice Antonin Scalia in the 1980s offered the jurisprudence of originalism as an alternative to the activism of the Warren court, they initially invoked Frankfurter’s rhetoric about the importance of constraining judicial discretion and deferring to the choices of the people’s elected representatives.
But it’s now clear that both conservative originalists and liberal living constitutionalists are the heirs not of Frankfurter but of Justice Hugo Black, a liberal textualist who argued for vigorous enforcement of rights enumerated in the Constitution even if that meant the invalidation of vast swaths of federal and state laws and regulations. (Their rivalry is vividly explored in James F. Simon’s “The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America.”)
Today, both liberals and conservatives are convinced that preserving the Constitution requires an independent judiciary to check the political branches when they infringe individual rights, although the left and the right disagree about which individual rights deserve protection.
The fact that Chief Justice Roberts could not persuade a single justice to join him in the court’s recent polarized Dobbs opinion suggests that neither liberals nor conservatives today are inclined to put institutional legitimacy above their vision of constitutional principle. All this vindicates Frankfurter’s warnings about the dangers of fighting political battles in courtrooms, but at this point, both sides are too invested in the battle to make a Frankfurter revival plausible.
Jeffrey Rosen is the president and chief executive of the National Constitution Center and a law professor at George Washington University. His most recent book is “Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law.”
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