Felix Frankfurter

Felix Frankfurter served as a government attorney in the early nineteenth century and then taught law at Harvard Law School. In the 1920s and 1930s, he supported a number of liberal causes, including President FRANKLIN D. ROOSEVELT's NEW DEAL. In 1939, he was appointed to the U.S. Supreme Court as an associate justice. Throughout his twenty-three years on the Court, he was known for consistently applying the theory of judicial self-restraint.

Frankfurter was born November 15, 1882, in Vienna. At the age of twelve, he emigrated from Vienna to the United States with his parents and four siblings. The Frankfurters, like many other Jews in Vienna, had lived in Leopoldstadt, the center of the Jewish Ghetto, where they faced an undercurrent of hostility and a future of economic uncertainty. Along with 18 million other Europeans who immigrated to the United States between 1890 and 1920, the family sought a fresh start.

Upon his arrival in the Lower East Side of Manhattan in 1894, Frankfurter could not speak a word of English. Yet, twelve years later, after earning his undergraduate degree from City College, in New York, Frankfurter graduated first in his class from Harvard Law School. Following a short stint with a private law firm on Wall Street, where he represented corporate interests, Frankfurter was appointed to serve for the next four years as assistant U.S. attorney in the Southern District of New York, prosecuting white-collar criminals. In 1911, he was named solicitor to the federal Bureau of Insular Affairs.

Frankfurter enjoyed working as an attorney for the government much more than representing corporations in private practice. He stressed that "the American lawyer should regard himself as a potential officer of his government and a defender of its laws and Constitution." He predicted that "if the time should ever come when this tradition ha[s] faded out and the members of the bar … become merely the servants of business, the future of our liberties would be gloomy indeed."

In 1914, Frankfurter returned to his alma mater Harvard Law School, as professor of law. Frankfurter's tenure as professor was marked by his intellectual honesty and rigor. Teaching only students of high academic standing, he tirelessly explored the law's complexities and reveled in its nuances, helping his classes see both the gray areas and the bright lines. He also took a personal interest in his students, helping many of them obtain a clerkship with one of the United States' leading judges, including OLIVER WENDELL HOLMES JR., LOUIS D. BRANDEIS, and LEARNED HAND.

Brandeis, a Supreme Court justice from 1916 to 1939, was one of Frankfurter's closest friends. The two met after a lecture Brandeis gave before the Harvard Ethical Society during Frankfurter's days as a law student. Brandeis, who never had a son of his own, acted as a father

Felix Frankfurter.
PHOTOGRAPH BY HARRIS & EWING. COLLECTION OF U.S. SUPREME COURT

and mentor to Frankfurter, who was twenty-six years his junior. During the 1930s, acting as an informal adviser to President Roosevelt, Frankfurter cajoled the president into supporting liberal causes espoused by Brandeis.

Although Frankfurter claimed that he was not a member of any political party, he supported many liberal causes. In 1920, he became a charter member of the newly founded AMERICAN CIVIL LIBERTIES UNION, an organization created to protect the constitutional rights of members of ethnic, religious, and racial minorities. During the 1930s, Frankfurter served as an adviser to the National Association for the Advancement of Colored People (NAACP). Frankfurter also helped develop many aspects of President Roosevelt's New Deal programs. For example, he brought together the legislative engineers who drafted the Securities Act of 1933 (15 U.S.C.A. § 77a to 77z, 77aa), which today remains a prominent piece of federal law regulating the trading of stocks and bonds.

Frankfurter's contribution to the case of Nicola Sacco and Bartolomeo Vanzetti identified him as an activist for liberal causes in the mind of many U.S. citizens. SACCO AND VANZETTI, two Italian immigrants who spoke only broken English, were indicted for killing a guard and a paymaster from a shoe company in Massachusetts in 1920. The physical evidence presented against Sacco and Vanzetti was tenuous. For the jurors who heard the case, the most incriminating information may have been the defendants' radical political beliefs: both were known anarchists who opposed the military draft. Sacco and Vanzetti were convicted and executed for the two murders.

Writing an article for the Atlantic Monthly, a venerable national publication with a wide readership, Frankfurter accused the prosecuting attorney and trial judge of appealing to the jurors' prejudice against the defendants' political activities and immigrant status. Frankfurter also accused the prosecutor of conspiring with the government's ballistics expert to mislead the jury. Finally, Frankfurter suggested that the court-appointed interpreter nefariously misrepresented the defendants' testimony in order to enhance the prosecution's case. Frankfurter supported each accusation with passages from the trial record. His article was later published as a book titled The Case of Sacco and Vanzetti (1927). The article and the book have served as a starting point for subsequent generations examining the role that passion, prejudice, and politics played in the trial of Sacco and Vanzetti, as well as in the trials of members of other unpopular minorities in the United States.

In light of Frankfurter's unyielding support for CIVIL RIGHTS and individual liberties, as a lawyer and professor of law, many liberals rejoiced when President Roosevelt appointed him to serve as an associate justice on the U.S. Supreme Court in 1939. However, by the time Frankfurter retired twenty-three years later, many of these same liberals were disappointed by his failure to embrace every religious and political minority that presented a claim before the Supreme Court. In retrospect, Frankfurter's actions as a Supreme Court justice cannot adequately be characterized as liberal or conservative but are most accurately described as exhibiting a consistent pattern of judicial self-restraint.

Judicial self-restraint is a theory by which a judge decides cases according to the express legal rules contained in constitutional and statutory provisions as well as common-law precedent, independent of the judge's own personal predilections. According to this theory, state and federal legislatures are the only legitimate government bodies empowered to make laws under the U.S. Constitution, which separates the powers delegated to each branch of government.

The role of the judiciary in this system of checks and balances is simply to interpret and apply the laws passed by legislatures, and decide cases based on politically neutral principles regardless of how insensitive the outcome may seem. Advocates of judicial self-restraint believe that judges, many of whom are appointed to the bench for life and are therefore not accountable to the electorate, upset the democratic authority of the people when they overturn laws passed by elected officials in order to achieve politically palatable results.

Many observers point to the two FLAG SALUTE CASES—Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940), and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943)—as evidence that Frankfurter was a steadfast adherent to the philosophy of judicial self-restraint. Separated by only three years, the two cases presented the same issue: whether the government could compel schoolchildren who were Jehovah's Witnesses to salute the U.S. flag in violation of their religious beliefs, which prohibited

them from engaging in any form of idolatry other than worshipping the Almighty. In both cases, Frankfurter resolved the issue in favor of the government. In the first case, only one justice dissented from Frankfurter's majority opinion, which upheld the expulsion of students who had refused to salute the flag. In the second case, Frankfurter was one of three justices dissenting from the Supreme Court's invalidation of a state law requiring all schoolchildren to salute the flag.

Writing for the majority in Gobitis, Frankfurter recognized the FIRST AMENDMENT right of members of religious minorities to exercise their religious beliefs free from government intimidation or coercion. But "the mere possession of religious convictions," Frankfurter cautioned, "does not relieve the citizen from discharge of political responsibilities." He reasoned, "National unity is the basis of national security," and exempting some schoolchildren from their duty to salute the flag "might introduce elements of difficulty into the school discipline … [and] cast doubts into the minds of other children." Because he saw no indication that the Framers of the First Amendment explicitly intended to protect the Jehovah's Witness children in these circumstances, Frankfurter concluded that the legislature, not the judiciary, must be permitted to select the "appropriate means" to establish "the binding tie of cohesive sentiment" that forms the "ultimate foundation of a free society."

In Barnette, the Supreme Court overruled Gobitis and held that the First Amendment prohibits the government from compelling school-children to salute the U.S. flag when such activity violates their religious beliefs. Many observers attribute the shift in the Court's opinion to a decrease in the perceived need for patriotic obeisance: the outcome of WORLD WAR II, which was in doubt when Gobitis was decided in 1940, was clearer when Barnette was decided in 1943, as the Allied powers moved closer to victory.

Yet Frankfurter, who had been excoriated in the newspapers and by his former colleagues in academia for his decision in Gobitis, remained unwavering in his commitment to judicial self-restraint. In a vituperative dissenting opinion to Barnette, Frankfurter wrote,

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 whole-heartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. 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… .In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review.

Frankfurter was again assailed for his failure to protect political minorities, in KOREMATSU V. UNITED STATES, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), where he concurred with the Court's majority opinion permitting the U.S. government to confine over one hundred thousand U.S. citizens of Japanese descent to "relocation centers" (essentially concentration camps) across the United States during World War II. These relocation centers were authorized pursuant to joint presidential and congressional action initiated as part of an effort to tighten internal security in the United States following the December 7, 1941, Japanese attack on Pearl Harbor. The Court's determination that these centers represented a "reasonably expedient" exercise of the government's power "to wage war successfully," Frankfurter wrote, "d[id] not carry with it [the justices] approval of that which Congress and the Executive did" because "[t]hat is their business, not ours."

Frankfurter retired from the Supreme Court in 1962, and died three years later on February 22, 1965, in Washington, D.C. His legal career spanned over 50 years. Perceived as an advocate of liberal causes at the beginning of his career, Frankfurter is now remembered as much for his conservative judicial style. Regardless of political labels, Frankfurter remains one of the most respected Supreme Court justices in U.S. history.