Supreme Courtier: Relitigating Felix Frankfurter’s Liberal-ish Legacy

REVIEW: ‘Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment’

October 9, 2022

At the very first Federalist Society conference, Antonin Scalia offered a word of caution. For decades, conservatives had criticized the federal government, particularly Congress and the Supreme Court. "Unfortunately," he told the assembled students in 1982, "a tactic employed for half a century tends to develop into a philosophy."

It’s a recurring theme in American constitutional history. A political coalition bristles at the other side’s use of an institution for so long that eventually it develops a constitutional case against the institution itself. In 1982, conservative lawyers’ rightful criticism of the New Deal and Roe v. Wade risked leading them to mistakenly adopt a sweeping anti-federal philosophy. A generation earlier, conservatives’ arguments against FDR led them to philosophize a far-too-narrow view of the presidency itself.

Or consider, for that matter, the early 20th-century progressives’ arguments against the Supreme Court. In the "Lochner Era," named for the case striking down New York’s bakery regulations, the Court held many progressive reforms unconstitutional under a broad view of economic liberty. Soon progressives made limiting the courts a central plank of their political platform; eventually progressive lawyers formulated a constitutional theory for strictly limiting—nearly eliminating—the judicial power itself.

Thus progressives’ anti-judicial tactic became a philosophy—and by midcentury, their top philosophizer was Justice Felix Frankfurter. Inspired by President Theodore Roosevelt, and then by Justices Louis Brandeis and Oliver Wendell Holmes Jr., Frankfurter played a central role in both the progressive political movement and its constitutional doctrines. When FDR appointed him to the Court in 1939, he helped to complete Democrats’ transformation of the federal judiciary. Yet by midcentury, when the Supreme Court itself became a tool for further progressive reforms, Frankfurter found himself significantly out of step with the new left. When he retired in 1962, just three years before his death, he was seen—scorned, even—as the Court’s most "conservative" justice.

"The standard story about Frankfurter is that he struggled to fill the seat once held by Holmes," writes Brad Snyder, a Georgetown law professor. "Scholars have portrayed Frankfurter as a judicial failure, as a liberal lawyer turned conservative justice, and as the Warren Court’s principal villain. None of these narratives rings true." In Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, Snyder offers a very different account.

And an exhaustive one! For seven hundred pages, Snyder recounts Frankfurter’s extraordinary life, from modest origins in Austria to the innermost circles of power in mid-20th century Washington. Frankfurter lived three or four full lives—in politics, in law, in diplomacy—and Democratic Justice accounts for all of them.

But what it does not account for is a coherent judicial methodology. Because Frankfurter did not have one. Which is unfortunate, since he was a Supreme Court justice.

His rise in American politics and law was astonishing. Immigrating with his family to New York at age 12, Frankfurter had a voracious intellectual appetite that brought him eventually to Harvard, where he thrived amid the competition. "I have a quasi-religious feeling about the Harvard Law School," he said. So he took up the gospel of judicial restraint, in the text of Prof. James Bradley Thayer’s Harvard Law Review essay, "The Origin and Scope of the American Doctrine of Constitutional Law." Throughout his career, he preached against the Court striking down state or federal laws as unconstitutional, which he described as acting like a "super-legislature."

Soon after graduation, Frankfurter was recruited by then-U.S. attorney Henry Stimson to be a federal prosecutor in Manhattan. And as Stimson’s star rose in the Taft administration, so did his. But Frankfurter’s allegiances were with former president Roosevelt, not President Taft. (Like many progressives, he eventually traveled from the GOP to the Bull Moose movement, to Robert La Follette, to eventually the Democratic Party.) And the home that he shared with roommates—"The House of Truth," itself the subject of Snyder’s previous excellent book—became a salon for not just the era’s young progressives, but also some of the leading figures of the day—especially the septuagenarian Justice Holmes. "Frankfurter and his friends flattered Holmes, and in time helped him achieve fame and immortality," Snyder writes, through their hagiographic writings.

In an earlier volume of Frankfurter-Holmes correspondence, the editors noted they excluded many of Frankfurter’s letters "because of their routine and sycophantic character." It wasn’t just Holmes, as we see in Frankfurter’s relationships with T.R., FDR, and others. Frankfurter did not "collect books or pictures," but rather, "he collects people," a friend once said. In Democratic Justice we see how he first collected mentors and patrons; then, as a Harvard law professor, he collected protégés, who would come to staff future presidential administrations, law school faculties, and judicial benches.

Through it all, he amassed enormous influence in American law and politics. From T.R.’s Bull Moose braintrust, to the founding of the New Republic, to the Wilson administration, to the early Zionist movement, to eventually the FDR administration, where Frankfurter was among the president’s key advisers even after he began serving on the Supreme Court.

The latter raised profound questions of judicial propriety, of course, but Frankfurter didn’t flinch. "During the spring and summer of 1939," Snyder writes, "he claimed to have written Roosevelt ‘nearly three hundred’ notes on the Supreme Court memoranda pads." If Frankfurter did not want justices to be super-legislators, he seemed fine with moonlighting as a junior cabinet member.

The early progressives were advocates of state power against the federal Supreme Court. But soon Frankfurter and others came to prefer federal power, just not in the courts. At Harvard, Professor Frankfurter helped to create the new scholarly field of administrative law. Echoing his friend Herbert Croly’s call for Jeffersonian ends by Hamiltonian means, Frankfurter favored "education of the public on a national scale and the development of powers of government, the invention of new administrative methods, to give effect to community needs." Here Frankfurter jettisoned one of Justice Brandeis’s key concerns. "Unlike Brandeis," Snyder writes, "who opposed the [New Deal’s] big-government program from the outset, Frankfurter conceded ‘this is no time for undue theorizing,’ and tried to help the [Roosevelt] administration make the law work."

Once appointed to the Court, Frankfurter helped to cement the end of the Court’s libertarian Lochner era. But after the last conservative justices left, Frankfurter and his fellow Democratic-appointed justices, such as William O. Douglas and Hugo Black, began to quarrel among themselves. Snyder describes the stakes perfectly: "As liberal New Dealers who traveled in similar circles, Douglas and Frankfurter were supposed to be allies for years to come. Instead, they battled over Brandeis’s legacy. Douglas believed that the legacy lay with protecting civil liberties and found an ally in Black. Frankfurter, on the other hand, believed that Brandeis’s legacy lay in protecting the Court’s limited institutional role, especially after the court-packing fight, by avoiding constitutional questions and deferring to the democratic political process."

Black became a kind of forerunner to today’s originalists and textualists, by rooting his judicial approach in the Constitution’s text, both to constrain justices from activism but also to empower justices to strike down unconstitutional laws when necessary.

But Frankfurter’s judicial restraint was much more nebulous, and it led him to regrettable results. In 1940, he wrote the Court’s decision in Minersville School District v. Gobitis, finding no First Amendment problem in a state forcing students to recite the Pledge of Allegiance despite their religious objections. Four years later, in Korematsu v. United States, he joined the Court in affirming the Roosevelt administration’s detention of Japanese Americans.

Snyder attributes these profound errors of judgment to Frankfurter’s patriotic and personal attachments: "He was too invested in the American war effort. And he was too close to Stimson, [Assistant Secretary of War John] McCloy, and especially Roosevelt." But this lets Frankfurter off far too easy. Justice Robert Jackson adored FDR, served as his wartime attorney general, and even wrote an adoring memoir of their years together, yet he still managed to dissent from Korematsu and write the subsequent decision overturning Gobitis. Near the end of Democratic Justice, Snyder suggests that "Frankfurter was a bad politician but a good constitutional lawyer," but this seems precisely backwards. He was an enormously successful political player throughout his career, and it made him incapable of becoming a good constitutional judge.

The heart of Snyder’s book is its account of Brown v. Board of Education. Frankfurter played a crucial role in slowing and managing the Court’s review of that case, helping the newly appointed Chief Justice Earl Warren to secure the justices’ unanimous support for their landmark decision. Snyder dispels the conventional criticism of Frankfurter as undermining the Court’s crucial desegregation work.

Yet Snyder attempts to go further, framing Frankfurter’s embrace of judicial power in Brown in more coherent jurisprudential terms. Brown was "a triumph," he writes, "because Frankfurter, by adapting judicial restraint to fulfill the Fourteenth Amendment’s promise of equal citizenship, had succeeded where his judicial idols Holmes and Brandeis had failed." But it was less a matter of "adapting" than "excepting": Frankfurter’s approach in Brown simply could not be squared with his own lifelong body of books, articles, and judicial opinions on judicial restraint. So he made a laudable exception. He had embraced judicial restraint as a tactic, and dedicated his life to making it a philosophy. Jim Crow was finally evil enough to shock Frankfurter’s conscience, and he managed to rationalize a reason not to repeat his paeans to judicial restraint in that particular context.

In Democratic Justice, we learn everything there is to be learned about Frankfurter, except for a coherent judicial methodology for interpreting the Constitution, to govern his own discretion on the bench. Perhaps Frankfurter’s jurisprudence was best summarized by his own ode to Justice Holmes, in an early New Republic editorial: "a judge who deals with things, not words." That would be great, if we weren’t governed by a written Constitution.

Frankfurter was famous for lecturing his colleagues to death. "When I came into this conference," Justice William O. Douglas once said, "I agreed with the conclusion that Felix has just announced. But he’s just talked me out of it." Democratic Justice’s study of the justice has a similar effect. Historians will benefit immensely from Snyder’s exhaustive research and his skills as a journalist. But even a reader who starts the book with sympathy for Frankfurter may find, after 700 pages, that Frankfurter has talked him out of it.

Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment
by Brad Snyder
W.W. Norton, 992 pp., $45

Adam J. White is a senior fellow at the American Enterprise Institute and co-director of George Mason University’s Gray Center for the Study of the Administrative State.

Published under: Book reviews