Nine Men Against America - Rosalie Gordon

Court Packing Continues—Frankfurter

Next in order on the newly packed Court came Justice Felix Frankfurter, at this writing the oldest member in age. He was the son of Austrian Jewish parents who emigrated to this country in 1894, when Felix was 12 years old, and settled on New York's lower East Side. His family was not well-to-do, but neither was it very poor. Young Felix did odd jobs while attending the New York public schools and later the College of the City of New York. His earnings went into a special fund for his education. On graduation from CCNY—third in his class though he was only 19 years old—he got a civil service job for one year with the New York City Tenement House Commission. He saved almost his entire salary of $1200 and used it to enter Harvard Law School in 1903.

He graduated from Harvard Law in 1906, worked for two months in a Wall Street law firm, and then got a job in the United States Attorney's office for the Southern District of New York. The office was in charge of young Henry L. Stimson, who had been commissioned by President Theodore Roosevelt to bust some trusts around Manhattan. Stimson needed assistants and asked the dean of Harvard Law School to make recommendations. He recommended Frankfurter, and Stimson hired him. Frankfurter spent the next five years helping Stimson bust trusts. Then, in 1911, when Stimson went to Washington to serve in President Taft's cabinet, he took Frankfurter with him. Many years later, Frankfurter was able to return the favor when he induced Franklin D. Roosevelt to name the aging Stimson, a Republican, as Secretary of War in 1940.

Frankfurter stayed on in Washington after Wilson became President, serving in various minor administration posts and constituting himself a sort of one-man brain trust for his superiors. He came to know Justice Oliver Wendell Holmes, who was one of his two heroes. The other was Louis D. Brandeis, not yet on the Court but already making a name for himself—and compensating for his earlier millionaire law practice—by upholding the rights of the downtrodden against bigness in business. Brandeis was an influential Harvard alumnus and it was he who had Frankfurter appointed to a professorship in the Harvard Law School in 1914. The professor took a leave from Harvard in 1917 to serve his country during wartime—in a civilian post in Washington—but returned to Harvard when the war ended. There he remained until his appointment to the Supreme Court in 1939. It was during his wartime service in Washington that his friendship began with the then Assistant Secretary of the Navy, Franklin D. Roosevelt.

Justice Frankfurter's philosophy is not an easy one to classify, perhaps because he really hasn't any, but suits his views to the exigencies of the moment. That, of course, is any man's right, but the Supreme Court of the United States is hardly a forum for opportunistic "thinking." Justice Frankfurter has been called everything from a communist or socialist to a rank reactionary—not without reason. It would be possible to cite quotations from Frankfurter on every side of every question at one time or another. So slight is his concern with constitutionality and law that he has not only reversed decisions of innumerable preceding courts but has even reversed himself.

In the decision of the Court which so grievously hamstrings the power of congressional investigation, Frankfurter went out of his way to write a concurring opinion in which he said that questions put to a witness "must be defined with sufficient unambiguous clarity to safeguard a witness from the hazards of vagueness . . ." How very different from an earlier dictum from the pen of Mr. Frankfurter when he was a professor at Harvard Law School. Then he declared: "The power of investigation should be left untrammeled, and the methods and forms of each investigation should be left to Congress and its committees, as each situation arises."

Frankfurter once wrote a book about labor injunctions (The Labor Injunction). He was against them. But in 1940 he wrote an opinion upholding an injunction against a Chicago labor union which prohibited any of its members from peaceful picketing. Did this mean that Justice Frankfurter had finally made up his mind where he stood on labor problems? Not at all, for in 1956 he concurred in an opinion of the Court ordering three railway employees to join a union if they wanted to keep their jobs.

Frankfurter's variable principles have been evident on the Court on more than one occasion. The Court once had before it the case of a religious sect—Jehovah's Witnesses. Some of its members had been convicted in New Haven, Conn., for making speeches and passing out literature attacking the Catholic Church. The Supreme Court—with Justice Frankfurter concurring—reversed the conviction on the ground that it was an interference with freedom of speech and religion. A few years later the same sect was before the Court again because several children of its members had refused to salute the flag (in accordance with their religious beliefs). This time, to everyone's amazement, Justice Frankfurter wrote the majority opinion upholding conviction by a lower court, which led one of the Justice's former admirers to remark that Frankfurter was "heroically saving America from a couple of school children." Justice Stone, in a vigorous dissent, confronted Justice Frankfurter with his own words and arguments, but there was no evident discomfiture on Frankfurter's part. The question here is not when Justice Frankfurter was right and when he was wrong. The point is that he himself does not seem to know.

Justice Frankfurter cannot be classified as either a communist, a socialist, a conservative or a reactionary. He has been called power-mad. But he was not power-mad in the sense that he wanted to hold sway over great masses of people. His power hunger expressed itself more in the Machiavellian sense, in a need to sit behind the scenes and manipulate the men and events on the public stage. It has perhaps been best expressed by a very friendly critic, Matthew Josephson. Some of Frankfurter's friends felt he should not take the Supreme Court post because he already had a much bigger position. Josephson said (New Yorker, Nov. 30, 1940):

"It was a very high position, although one that was nowhere described in the Constitution. He was a whole institution in himself. He was an Influence, a prodigious and pervasive one, working upon men and situations in every part of the country . . . Perhaps most important, he was, some well-posted observers believed, a Jiminy Cricket to President Roosevelt's Pinocchio—Jiminy Cricket, the chirping little Keeper of the Conscience, always worrying about the scrapes Pinocchio might get into, always turning up with advice when he was in trouble, but always . . . beautifully devoted to his big, happy-go-lucky, venturesome friend and master."

It is essential for one who would practice this Machiavellian art in the muddy waters of public life that he should not have too fundamental a set of convictions—constitutional or otherwise. The overpowering motivation of Frankfurter's life is a desire to pull strings. He would have made a marvelous puppeteer. He had discovered, long before his friend Roosevelt became president, that a professor of law at Harvard could have widespread influence. A letter from him—on the stationery of the Harvard Law School—opened and closed doors as if by magic. Once his friend was in the White House, the vista before him must have seemed boundless.

During his 25 years at Harvard—where, as one colleague put it, "he teaches Felix Frankfurter, not law"—he had at his disposal the malleable minds of hundreds of American youths. Before, and especially after, the advent of the New Deal, when he found himself able to place many of his pets in sensitive Washington jobs, he was in his glory. Two of his very special ones were Alger Hiss and Dean Acheson. In Frankfurter's case "the evil that men do" will not only live after him; it survives notoriously in the China debacle over which Dean Acheson presided and in the spectacle of an American perjurer sitting at President Roosevelt's elbow at the infamous Yalta Conference.

Washington swarmed with scores of Frankfurter's pets. In addition to Acheson and Hiss, there were Tommy Corcoran, Ben Cohen, Archibald MacLeish and James M. Landis, to name a few of the better known. It has been estimated that at least 300 of Frankfurter's former students found their way into strategic spots in Washington bureaus through the intervention of their professor. They were Frankfurter's "boys"—the "happy hot dogs"—and through them he was molding the policies of a nation. So heady a drug was not one to be lightly relinquished by a man of Frankfurter's turn of mind. Roosevelt sprang his court-packing plan while Frankfurter was still at Harvard, though making frequent weekly trips to Washington. He was opposed to the plan—so much so that he actually became ill while the assault on the Court was in progress. But Roosevelt had it in his power to cut the strings by which Frankfurter controlled his puppets. A man with strong convictions about American constitutional law could hardly have remained quiet in the face of the President's daring attack on the Court. But Felix Frankfurter managed to stay silent.

Not long after, despite a total lack of judicial experience, or even any experience in the practice of law, he got his reward in an appointment to the Supreme Court. Roosevelt had offered him the Solicitor-Generalship in 1933, but Frankfurter had turned it down—he had his eye on higher stakes. In fact, Roosevelt had wanted to make him Solicitor-General even earlier, when he was forming his original team. The redoubtable Tom Walsh, Roosevelt's first Attorney-General who died before he could take office, refused to have Frankfurter as his Solicitor-General. Walsh said he didn't want someone "who would lose cases in the grand manner."

After he had joined the High Court, Frankfurter's string pulling became more effective than ever. He restored Dean Acheson to the good graces of the administration, after Acheson had left the New Deal in its early days in a disagreement over monetary policy. It was Frankfurter, according to former Secretary of the Treasury Henry Morgenthau, Jr., who had Acheson named Assistant Secretary of State. Acheson would one day become Secretary of State—and refuse to turn his back on Alger Hiss. And Justice Frankfurter would turn up as a character witness for Hiss at his first trial and go out of his way to shake the hand of the perjurer for all to see. Hiss had been one of "his boys."

The Justice is a man who talks about everything and anything—and when he talks, he brooks no interference from lesser minds. Even FDR once said that Felix gave him mental indigestion. And Frankfurter himself will occasionally tell of the time his host apologized for the noise at a Washington soiree. The Justice replied: "Noise? Why, I like noise." Whereupon Mrs. Frankfurter broke in: "Yes, dear, but this is other people's noise."

It finally took the sharp-tongued daughter of Theodore Roosevelt—Mrs. Alice Roosevelt Longworth—to stop Frankfurter in the midst of one of his dissertations at a Washington dinner party. In a defense of his protege Acheson, he was busily engaged in a tirade on the administrative and military misdeeds of General Douglas MacArthur. Mrs. Longworth, failing in all attempts to correct Frankfurter's statements, finally rose, left the table—and the room—with one parting shot: "I refuse to turn my back on General MacArthur."

Justice Frankfurter could speak sneeringly of MacArthur. But, several years later, atom spies Julius and Ethel Rosenberg asked the Court for a stay of execution. A majority of the Court refused to grant it—but Justice Frankfurter joined Justices Black and Douglas in dissenting.