The Liberal Justice Who Opposed Judicial Supremacy

Felix Frankfurter was one of the most thoughtful and consequential individuals ever to serve on the United States Supreme Court. Breaking the artificial contemporary dichotomy between “liberal” and “conservative justices, Frankfurter exhibited, albeit imperfectly, how judicial restraint and respect for precedent need not be in conflict with a “progressive” worldview – and how, in fact, excessive judicial activism, ungrounded in respect for democratic government and the Constitution, might ultimately thwart liberal goals.

Georgetown Law Professor Brad Snyder takes a deep dive into Frankfurter’s life and legacy in his exhaustively researched book Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment.

Serving for more than two decades from 1939 to 1962, Frankfurter had a front-row seat to monumental changes in American government – and played a role in shaping many of them. He enjoyed enormous influence on American political life thanks to his extraordinarily close advisory relationship with President Franklin Roosevelt, both before and (contrary to all precedents) during his Court tenure.

In Democratic Justice, Snyder provides the first full-length biography of Frankfurter, covering both his public and private lives. While Snyder makes little effort to conceal his sympathy with Frankfurter’s early progressive outlook, the book is exhaustively researched, and not without occasional criticism of the justice’s work. Given the remarkable character of Frankfurter’s life and career, Democratic Justice should interest general readers as well as scholars of American politics and Constitutional jurisprudence.

Frankfurter’s life was an extraordinary American success story. Having arrived in this country with his Austrian-Jewish parents at the age of 11 without knowing English, Frankfurter excelled in his studies in New York City public schools and then at the City College of New York. His academic record won him admission to Harvard Law School, from which he graduated (first in his class) in 1906.

Snyder devotes an early chapter to Frankfurter’s association with other young progressives during his years in Washington prior to his law school appointment at an informal political salon that was dubbed “The House of Truth.” The title reflected its participants’ belief, in contrast to the position of one of Frankfurter’s idols, Oliver Wendell Holmes, that there was such a thing as objective truth.

For members of the salon, that truth consisted of the doctrines of progressivism, as supposedly demonstrated by social science. These included an active antitrust policy, such as was espoused by Frankfurter’s other idol, Louis Brandeis; wage and hours regulations, which Frankfurter denounced a timidly conservative and “selfish” Supreme Court for sometimes finding unconstitutional; and other elements of Teddy Roosevelt’s “New Nationalism.” In 1912 Frankfurter outlined a “social program” encompassing progressive taxation, election reforms, and administrative regulations amounting to a system of “industrial democracy,” entailing the acceptance of government by a class of disinterested “scientific” experts.

Frankfurter continued to take an active role in progressive politics after joining the Harvard faculty. He was a founding editor of The New Republic and participated in the founding of the American Civil Liberties Union. In the latter capacity, he protested the Palmer Raids, ordered by Woodrow Wilson to round up suspected Communist and anarchist opponents of America’s participation in World War I.

The pinnacle of Frankfurter’s involvement in defending suspected anarchists was his leadership in the unsuccessful campaign to save Sacco and Vanzetti, immigrants convicted of a 1920 murder, from execution.  

While Frankfurter applauded Holmes as the Supreme Court’s “star,” he also applauded Woodrow Wilson’s appointment of Brandeis to the Court against (sometimes anti-Semitic) criticism. It was at Brandeis’s urging that Frankfurter became an active participant in the campaign for a Jewish state, attending the 1918 Versailles peace conference as a member of the Zionist delegation.

An early advocate of Franklin Roosevelt’s presidential candidacy, Frankfurter was rewarded, while remaining on the Harvard faculty, with almost unfettered access to FDR following the 1932 election, as well as the opportunity to find influential positions for his pupils in the new administration. Unfortunately, Frankfurter’s efforts to persuade Roosevelt to take measures in support of European Jews threatened by Hitler (such as raising their low immigration quotas) fell on deaf ears. 

Frankfurter was an avid supporter of Roosevelt’s New Deal legislation, sharing in the widespread criticism among progressives of Supreme Court decisions that struck down much of it as unconstitutional. While Snyder shares Frankfurter’s view that those decisions were “reactionary” obstacles to improving workers’ conditions and overcoming the Depression, recent studies by scholars including David Bernstein, Amity Shlaes, Hadley Arkes, and Burton Folsom have demonstrated how the Court’s much-derided decisions striking down state as well as Federal efforts at wage-fixing and limits on working hours were actually protecting opportunities for small businesses and individual workers. Nor did New Deal policies, even after Court objections ended, do anything to cure the Great Depression.

Despite Frankfurter’s support for the New Deal, he refrained, out of respect for judicial independence, from endorsing Roosevelt’s “court packing” scheme. The same respect for Constitutional integrity underlay one of Frankfurter’s (to this day) most reviled decisions, his ruling in the 1940 Minersville School District v. Gobitis case, in which he refused to strike down a West Virginia school board’s requirement that students salute the American Flag and recite the Pledge of Allegiance, despite their claim that doing so would violate their religious convictions. (The students were Jehovah’s Witnesses.)

As Frankfurter explained in a letter to Chief Justice Harlan Fiske Stone (who dissented from the ruling, which was overturned three years later), while he regarded the school board’s refusal to make an exception for dissenters as “foolish,” he thought of his opinion as “a vehicle for preaching the true democratic faith of not relying on the Court” for securing a tolerant, open-minded society, but rather of leaving that responsibility with “the people and their representatives.” Just as Frankfurter had objected to Court decisions that struck down popular New Deal legislation, he rejected rulings that (except in clear cases of Constitutional violations) would override the democratic process in other areas. This became the essence of the policy for which Frankfurter became best-known as a justice: judicial self-restraint.

Frankfurter adhered to his policy of deference to Congress and the president in another controversial case, Korematsu v. United States (1944), joining the Court majority in upholding the internment of Japanese Americans early in the Second World War, despite expressing grave moral reservations about the policy. (Snyder peremptorily dismisses Korematsu as one of the twentieth century’s “worst decisions.”)

However, in another wartime case, Youngstown Sheet and Tube Co. v. Sawyer (1952), Frankfurter joined the majority in striking down President Truman’s attempt to seize control of the steel industry during the Korean War in order to prevent a potentially crippling strike (since Truman refused, for partisan reasons, to exercise his authority under the Taft-Hartley Act to delay any strike for 80 days on account of the wartime emergency). Yet in his concurrence, Frankfurter warned against interpreting presidential authority so narrowly as to deny future chief executives the right to act above and beyond Congressional authorization when truly necessary to address national emergencies.

But while Frankfurter consistently maintained that his judicial restraint applied more to the elective branches of the Federal government than to the states, one must acknowledge that in joining a unanimous Court in striking down school segregation in Brown v. Board of Education (1955) as a violation of the Fourteenth Amendment, the Justice went well beyond what a policy of restraint would dictate – especially since the research of his clerk, Alexander Bickel, found that the intent of the Amendment as regards such segregation was inconclusive.

In fact, while the Brown decision is commonly attributed to the newly appointed Chief Justice Earl Warren, Snyder brings out that it was really Frankfurter who prepared the ground for the ruling over the previous two years through continual discussions with his colleagues. Had the opinion been left to Frankfurter, he might have avoided using the pseudo-scientific “doll test” on which Warren purported to rely, apparently under the impression that phony social science would prove more persuasive than Constitutional reasoning. (Frankfurter had little regard for Warren’s legal learning.)

Frankfurter’s judgment in Brown, much as it departed from a policy of restraint (let alone textualist analysis), must be regarded as justified since it appeared the only means of ending a great national wrong. Congressional action under the Fourteenth Amendment had been prevented by the power that Southern segregationists enjoyed in both chambers of Congress, thanks to the Senate filibuster and segregationist control of the House Rules Committee.

Still, despite Frankfurter’s appreciation of the opposition that the decision would meet in the South (as attested by his Alabama-born colleague Hugo Black), Snyder faults him for insisting on the qualifying phrase “with all deliberate speed” in the Court’s follow-up memorandum regarding its enforcement.

It isn’t clear how Snyder would have handled the matter. But whereas the Brown opinion stressed the importance of education in overturning the “separate but equal” policy, it wasn’t at all clear how that opinion justified the Court’s follow-up orders mandating the desegregation of public beaches and golf courses. While Snyder blames Southern resistance to Brown partly on the Court having limited its scope to education, the unexplained extension to recreational facilities can only have deepened critics’ suspicions that Brown rested on judicial whims rather than on Constitutional reasoning.

The last case in which Frankfurter was involved, Baker v. Carr (1962) is one where the justice fully exhibited his policy of restraint, more specifically of not involving the Court in matters that were inherently political rather than matters of Constitutional or legal interpretation. In contrast to the activist, self-styled “liberal” colleagues with whom he increasingly did battle during his last years on the Court (Warren, Douglas, and Brennan), Frankfurter dissented from the endeavor in Baker to subject state legislative reapportionment to Federal judicial supervision.

Such enmeshing of the Court in what he called “the political thicket,” Frankfurter recognized, could only weaken the people’s respect for the Court’s decisions. His protégé Bickel elaborated the need for the Court to overcome the “countermajoritarian difficulty” – its lack of direct popular accountability – by the exercise of the “passive virtues,” as outlined in his classic 1963 book The Least Dangerous Branch.

While progressive critics alleged that in his later years Frankfurter had betrayed his early “liberalism” in favor of “conservatism,” his opinions exhibit a considerable degree of consistency, from his critiques of the early New Deal Court’s blocking some of Roosevelt’s policies through his deference in cases like Gobitis and Korematsu to legislative and executive decisions that he personally found objectionable. But as his Youngstown opinion as well as his forging the unanimous Brown decision illustrate, his restraint was not unlimited, whether that meant striking down executive actions that vastly exceeded the president’s authority or overturning a transparently shameful policy (school segregation) which the political branches had proved unable to remedy.

Had Frankfurter lived to serve on the Court for another dozen years, he would doubtless have been scandalized by the manner in which the Warren and Burger courts abandoned any semblance of Constitutional restraint in their quest to earn esteem from what Snyder, ironically, terms the “liberal establishment.” Its goals and methods deviated considerably from those Frankfurter had espoused. Guided by the political preferences of the Washington Post and New York Times, as well as the legal academy, the Court set about systematically overthrowing local regulations that banned pornography, allowed the reading of nondenominational prayers at public school graduations, and denied a student’s right to wear a jacket with the words “F*** the Draft” at a courthouse, on the purely relativistic grounds stated by Frankfurter’s friend Justice Harlan that “one man’s vulgarity is another man’s lyric,” and such expressions of feeling represented Constitutionally protected speech.

This is to say nothing of Roe v. Wade, which located a Constitutional “right” to abortion in hitherto unnoticed interstices of the Bill of Rights, along with the much later ruling in Obergefell v. Hodges guaranteeing a right to the newly invented phenomenon of “gay marriage.” Such exercises of raw judicial power not only threaten the moral foundations on which Constitutional self-government rest, they lack any of the prudence and personal restraint that Frankfurter displayed throughout his years on the bench.

Additionally, given Frankfurter’s respect for democracy, he is unlikely to have approved of the Court’s current policy of Chevron deference, which allows administrative agencies like the EPA an almost unlimited discretion to rewrite their authorizing statutes.

While Frankfurter’s jurisprudence clearly fell short at times of Snyder’s own progressivism, he merits applause for providing Americans with an authoritative account of one of the country’s greatest judicial statesmen.

Nonetheless, I must note a couple of occasions when Snyder lets his personal predilections get the better of him. Only with reluctance does Snyder finally concede that the establishment “liberal” Alger Hiss was proved to be a Soviet agent, not the victim of a “Red Scare.” And Snyder’s claim that there was no need to employ the atomic bomb to bring about a Japanese surrender in 1945, had the U.S. simply been willing to allow the Japanese to retain their emperor, is belied by ample historical evidence. (Had the emperor surrendered prior to the bombings, he would simply have been overthrown by the country’s military rulers, determined to fight an invasion down to the last man, woman, and child.)

These flaws aside, Snyder’s work provides substantial evidence that legal figures on the left and even some on the right today could learn much from Frankfurter’s legacy and judicial philosophy. Such a reckoning might even begin to repair the steady decline in public support for America’s “least dangerous branch.”

David Lewis Schaefer is a Professor Emeritus of Political Science at the College of the Holy Cross.