Democratic justice, p.54
Democratic Justice, page 54
On October 7, Frankfurter was one of two speakers and fifty mourners at Brandeis’s California Street apartment during the secular funeral service. Fighting back tears and describing it as one of the hardest things he had ever done, he described Brandeis as a combination of the Hellenic and the Hebraic. “His pursuit of reason and his love of beauty were Hellenic,” Frankfurter said, and, unlike Socrates, Brandeis “found it impossible to be at ease in Zion. The moral law was a goad. That was his Hebraic gift. It gave him ceaseless striving for perfection, it also gave him inner harmony.” Frankfurter concluded by reciting several paragraphs from one of Brandeis’s favorite poems, John Bunyan’s Pilgrim’s Progress, about the death of “Mr. Valiant-for-truth.” “My Sword I give to him that shall succeed me in my Pilgrimage,” Frankfurter read, “and my Courage and Skill to him that can get it.”
THOUGH NOT Brandeis’s literal successor, Frankfurter was his spiritual one. The burden of living up to the legacies of Holmes and Brandeis would have weighed on any Supreme Court justice, especially one publicly accused of betraying liberalism.
In October 1941, Harper’s magazine featured an article, “Felix Frankfurter, Conservative.” The author was a Yale law professor and erstwhile Frankfurter protégé, Fred Rodell. In a matter of months, he turned on his former professor who had found him his first job out of law school. During the spring of 1930 at Yale Law School, Rodell had taken a seminar of Frankfurter’s and was “one of the bright boys.” In December of that year, Rodell wrote Frankfurter about the possibility of clerking for Judge Learned Hand. Frankfurter explained that Hand preferred Harvard law graduates but invited Rodell to come to Harvard for a postgraduate fellowship under Frankfurter’s direction, a known tryout for the Hand clerkship and others. Rodell declined. Rather than take offense, Frankfurter found the Philadelphia-born Rodell a job as a speechwriter and special assistant for Pennsylvania governor Gifford Pinchot. After Rodell joined the Yale law faculty in 1933, he and Frankfurter continued to correspond. In the preface to his 1939 book, Woe Under You, Lawyers!, Rodell thanked Frankfurter as one of ten professors who were the book’s “intellectual godfathers.” Frankfurter did not hold back in criticizing the book’s simplistic message about the law. Yet Rodell continued to praise Frankfurter’s opinions. On February 3, 1941, he complimented Frankfurter’s “stiletto work” in a tax case. Eight days later, after responding to Frankfurter’s criticism of his book, Rodell replied: “I still think you’ve been turning out some perfectly grand opinions.” Finally, on February 18, he asked if he and his wife Katherine could visit Frankfurter in chambers.
Rodell’s changed attitude baffled Frankfurter. It could not have been Gobitis, which had been decided in June 1940. The Harper’s article alluded to a beef that spring with Yale law colleague and former Frankfurter student Harry Shulman. In March 1941, Rodell claimed (and Shulman denied) that Shulman had persuaded the Yale Law Journal to reject a Rodell book review that praised Black and Douglas and criticized Frankfurter. Rodell later claimed that he had found Frankfurter’s conduct on the Court “shocking.”
Rodell’s instigator may have been his more senior Yale law colleague, Walton Hamilton. An economist without a law degree, Hamilton had been mentioned for Frankfurter’s eventual seat on the Court and had been critical of him in the Yale Law Journal. In June 1941, Hamilton wrote Rodell a two-page memorandum with gossip and critiques of Frankfurter and his first few years on the bench. Some derogatory comments in Hamilton’s letter found their way directly into Rodell’s article and detracted from the incisive argument.
In Harper’s, Rodell contended that Frankfurter was not a liberal lawyer who had turned into a conservative justice; rather, Frankfurter had always been conservative. Liberals should not have been “surprised and shocked” about his Gobitis decision forcing two children of Jehovah’s Witnesses to salute the flag, his Milk Wagon Drivers decision upholding a labor injunction against a union, or other anti-labor decisions. He pointed to the prediction of a Boston Brahmin that Frankfurter would not be a radical justice and to Frankfurter’s support in polls of the conservative American Bar Association. “ ‘Felix hasn’t changed his views one iota,’ ” Rodell quoted someone, perhaps Hamilton. “ ‘Take a close look at his life and judge for yourself.’ ” Frankfurter, Rodell concluded, was “a tragic figure” who had lost his position as the Court’s decisive vote and predicted that “as the Court moves past him,” Frankfurter would stick to his judicial philosophy and become “as great a dissenter as were his two heroes, Justices Holmes and Brandeis, in days gone by.”
In private correspondence and magazine profiles, Rodell praised his new heroes on the Court—Black and Douglas. The Yale law professor spent the remainder of his career burnishing their reputations and engaging in a one-man holy war against Frankfurter, Harvard Law School, and its graduates. This was not only a Yale-Harvard rivalry, though Rodell tried to make it seem that way. Several of Frankfurter’s protégés joined the Yale law faculty. And at least one Harvard faculty member, Thomas Reed Powell, excelled at Rodell’s clever, put-down style. Frankfurter’s friends knew how to twist the knife, too. In January 1942, Jacob Billikopf chastised Rodell about the Harper’s article’s nasty tone. Rodell responded by attacking Billikopf’s “blind prejudice in favor of all respectable Jews, simply because they are Jews. . . . It is just the sort of ‘party line’, to use your own phrase, that breeds anti-Semitism.” Billikopf described the response as “pathetic” and “expressed by one who claims not to be a Jew, or who does not want to be known as such! (For which statement a fond relative of yours is my authority).” Another Frankfurter ally, Frederick Bernays Wiener, raised questions of Rodell’s anti-Semitism in a 1956 book review and revealed that at Haverford College, Rodell’s last name had been Roedelheim.
The stakes were much higher than Yale v. Harvard or Rodell v. Frankfurter. Rodell applauded Black’s and Douglas’s increasing use of judicial power to promote liberal causes. Frankfurter envisioned a more limited role for an inherently conservative judiciary and believed that liberalism’s success or failure depended on the democratic political process. The challenges, for Frankfurter, were how to advocate Holmes and Brandeis’s belief in a limited judicial role while protecting the rights of African Americans and other racial minorities as well as how to balance his full-time job as a Supreme Court justice with his behind-the-scenes role in helping the Roosevelt administration prepare for war.
Throughout the fall of 1941, Frankfurter and Acheson walked each morning from their Georgetown homes to Acheson’s office at the State Department (a car took Frankfurter the rest of the way to the Court). They spent many hours discussing the administration’s preparations for war. On the basis of numerous conversations with Stimson and McCloy, Frankfurter knew about the Victory Program, the administration’s secret plans for war against the Nazis, and that the United States and Germany were headed for war. On December 1, Frankfurter called Stimson after visiting Harry Hopkins in the hospital and was “extremely anxious that Knox and I should not let what they call the Appeasers pull the president back.” The next day, an Army Air Corps captain leaked the nation’s top-secret war plans to Senator Wheeler, who gave them to Chicago Tribune reporter Ches Manly and to the Washington Times-Herald. A December 5 Tribune headline declared “F.D.R.’S WAR PLANS!” and described the U.S. plan to declare war against Germany in July 1943. For two days, McCloy and other War Department officials discussed the leak and sought advice from Frankfurter. In the end, the administration decided to do nothing and to say nothing to the press. In many ways, the Victory Program leak moved the country closer to war with Germany.
At home, the Frankfurters continued to care for their British children Ann, Venetia, and Oliver. That fall, Ann and Venetia returned happily to the Potomac School; Ann had grown four inches and gained twenty pounds in two years; Venetia had survived a flu that required a brief hospitalization; Oliver made an aborted attempt to start nursery school but could not bear to part with his nurse, Nana. For Marion, the experience of watching Oliver come home crying every day was painful. She planned to try again in December when some of his friends in the neighborhood started nursery school. The brunt of the child-rearing decisions fell on her. “Since I see very little of them,” Felix wrote Monte Lemann, “I get nothing but pleasure out of them. All the chores fall on Marion.” Marion, Isaiah Berlin wrote his parents, “wears dresses of white silk & sails about like [a] neurotic & distinguished Vestal.” She may have been a neurotic mother, but the children brought out her love, tenderness, and warmth. “I do not think Felix and I are particularly gifted with children. Not having any of our own, we have grown up without them and are now practiced in one way rather than another,” Marion wrote. “But I do not think they or Nana could ever have been in any doubt that we loved them and their happiness and well-being were our first concern always—and that is surely the most important thing. We loved them just for their parents’ sake, and then, very soon, for themselves.”
Events off the West Coast soon made the Frankfurters question whether their three British children were safe in the United States.
CHAPTER 24
F. F.’s Soliloquy
At 11:30 a.m. on December 7, 1941, Frankfurter phoned John McCloy to discuss Raoul Desvernine. A former general counsel of U.S. Steel and lawyer for the anti–New Deal American Liberty League, Desvernine represented the interests of the Japanese government and its special envoy Saburo Kurusu. Frankfurter was one of the few people in Washington who knew why Kurusu, after two years as the Japanese ambassador to Germany, had come to the United States. On November 17, Frankfurter had written the president that Kurusu was in Washington “to find out if we mean business in case Japan moves. The rest of Kurusu’s mission is all window dressing.” Frankfurter’s letter shocked Roosevelt because few people knew about Japan’s true intentions. Roosevelt phoned and asked how he knew about the diplomatic smokescreen. Frankfurter promised to tell Roosevelt his source in person at the White House. The justice’s information could have come from Stimson or McCloy in the War Department, Acheson or Feis in the State Department, French diplomat Jean Monnet, or British and Chinese diplomats.
At 2:05 p.m. on December 7, Kurusu and Japanese ambassador Kichisaburo Nomura sat in the diplomatic waiting room preparing to meet Secretary of State Cordell Hull and intending to break off peace negotiations and to reject American demands about withdrawing its troops from China and severing its ties with Germany and Italy. Hull already knew this from intercepted cables. Fifteen minutes later, he called the two diplomats into his office, read their charges against the United States, accused them of deceptions and falsehoods, and threw them out the door. By that time, he heard the unconfirmed report from the president that an hour earlier the Japanese had attacked Pearl Harbor.
The president called Secretary of War Stimson and asked him to come to the White House because the Japanese had attacked. Stimson, who knew that the Japanese fleet had moved south toward Indo-China and was worried about the breakdown of peace negotiations, asked if it was Malaya or Siam. “Hell no,” Roosevelt replied, “it is Pearl Harbor.” Stimson told the story to Frankfurter, who wired the White House that if the attorney general or solicitor general could not be reached for legal advice, the president should call Dean Acheson. Frankfurter gave Roosevelt Acheson’s home phone number and the number of Acheson’s housekeeper. Acheson heard the news at his farm in Sandy Spring, Maryland, and immediately drove to the office.
At 8:30 p.m., Roosevelt convened what he described as the most important cabinet meeting since the spring of 1861. The president then proceeded to tell his cabinet much of the recent history that he and Frankfurter knew. For about two weeks, the U.S. government had known that Germany was “pressing” Japan for military action in Asia; Japan’s State Department peace negotiations were a ruse; and Japan was “headed for war.” U.S. officials thought the target was the Allies’ supply lines in Siam, Thailand, and Burma. The previous day, Roosevelt had sent the Japanese emperor a note to see if his country was still interested in peace. The president also informed his cabinet about the Japanese diplomats’ meeting with Secretary Hull after the attack. The casualties, Roosevelt informed the cabinet, had been “extremely heavy,” three or four battleships had been sunk, others had been damaged, and many aircraft had been destroyed. The Japanese, moreover, had captured Guam and attacked the Philippines and other islands. The entire U.S. fleet in the Pacific had been caught off guard. The War and Navy Departments had failed to connect the available intelligence and cryptography and did not know about the attack in advance. Stimson was so impressed with Roosevelt’s poise during the cabinet meeting that he told Frankfurter: “There is my leader.” The Roosevelt-Stimson team made Frankfurter feel safe. On the afternoon of December 7, Frankfurter wrote the president: “the whole American people are behind you.”
Shortly before 12:30 p.m. the next day, Frankfurter and seven other justices wore their black robes and walked across the street to the U.S. Capitol. As they walked, Stanley Reed predicted that in ten minutes the United States would be at war with Japan and Germany. “I said not with Germany,” Frankfurter said. “This man will not go to war. Germany has to declare war. He will then say a state of war exists.” Frankfurter and the other justices watched from the front left of the packed chamber as Roosevelt addressed both houses of Congress. Marion was watching from the gallery where Eleanor Roosevelt sat. As the president entered, Democrats and Republicans, interventionists and isolationists, stood and clapped until Speaker of the House Sam Rayburn banged his gavel. Roosevelt began by declaring that December 7, 1941, was “a date which will live in infamy.” He briefly reviewed the details of the “unprovoked and dastardly attack” at Pearl Harbor, then asked Congress to declare that a state of war existed with Japan. He said nothing about Germany. Thirty-three minutes after the speech, members of both houses of Congress, with a single exception, voted to declare war against Japan. Britain and many other Allied nations followed suit. At 10:00 p.m. on December 9, Felix and Marion listened to Roosevelt’s national radio address at their home with the Polish ambassador and his wife, former Federal Reserve governor Adolph Miller and his wife, and friend Elizabeth Ellis. Felix wrote the president that the fireside chat brought “calm and confidence to our people.”
On December 8, as Frankfurter was getting ready to attend Roosevelt’s joint message to Congress, he informed his law clerk Phil Elman “about how dependent he was going to be on me from here on. He said he was going to need me as no justice had ever needed a law clerk before. He was going to have to devote his full energies to helping in the war effort, to helping FDR. That would be his overwhelming priority, to which everything else had to yield.”
Indeed, Pearl Harbor had changed everything for the nation and for Frankfurter. The U.S. entry into the war had cast everything in a new light—his home life, his activity on behalf of the administration, his work on the Court, and the types of cases he had to decide. The war made Frankfurter more confident, often overconfident, that the democratic political process, the federal administrative state, and the Roosevelt administration could solve the gravest and most delicate of the world’s problems.
Marion’s first thought was about the safety of her three British children. “Your cable came yesterday and it is easy to imagine how you have been thinking given Sunday’s news,” she wrote Pauline and Sylvester Gates on December 10. “I have been thinking ever since, what I can do to ensure the children’s safety in case steps have to be taken. F. says it’s premature, but who knows what’s premature.” The children, Marion wrote, “seem unconcerned.” On Saturday December 20, the three children attended a “toy matinee” at the Uptown Theater in which children from embassies donated wrapped toys for American families who could not afford Christmas presents. The Washington Evening Star published a photograph of Oliver and his four-year-old British friends donating toys.
The war made Frankfurter’s judicial duties seem insignificant. When he heard the news about Pearl Harbor, he had been preparing for an upcoming oral argument about whether greens fees at the Winchester Country Club counted as “dues or membership fees” for tax purposes. The day before the December 12 argument, Germany and Italy had declared war against the United States.
Instead of dwelling on an insignificant tax case, Frankfurter helped the Roosevelt administration wage war. On December 9, he met with the general counsel of the Lend-Lease Administration, Oscar Cox. The next morning, he and McCloy discussed the formation of a Joint Allied War Council similar to the one during World War I. On December 16, McCloy visited Frankfurter to discuss the possibility of Justice Owen J. Roberts serving as the chair of a committee to investigate what had gone wrong at Pearl Harbor. Shortly before noon, Frankfurter phoned McCloy that Roberts had accepted. On December 17, Frankfurter sent Roosevelt a memorandum summarizing discussions since September 1939 with “some of the best brains” about the mistakes the British and French had made during the war and how the United States could avoid them. Before he sent the memorandum, he showed it to his newest colleague James F. Byrnes, who was itching to join the administration and who “entirely agrees with it.” On December 30, he hosted a dinner with McCloy, Monnet, Cox, Byrnes, and British shipping mission chief Arthur Salter about the “best means” to revamp the prewar Office of Production Management into a wartime agency. Byrnes wanted to leave the Court to take on the task himself.
As of December 1941, Frankfurter’s closest colleagues on the Court were its more conservative members Roberts, Byrnes, Jackson, and to some extent Reed. Frankfurter’s estrangement from the Court’s liberals Black, Douglas, and Murphy had begun. No case illustrated their differences more than Bridges v. California. The Court had heard reargument in October about the contempt of court convictions of labor leader Harry Bridges and the Los Angeles Times, this time with Stone as chief justice and Jackson and Byrnes as the newest associate justices and potential tiebreakers. Frankfurter, who had lost his majority the previous term, expected the Court’s newest members to read the briefs and listen to the arguments and decide for themselves. But Black found a fifth vote by privately circulating his draft dissent from the previous term to Jackson while Frankfurter had refrained from lobbying him. Black also persuaded Jackson not to write a concurring opinion so that the majority could project a “united front.” Frankfurter blamed Black, not Jackson, who was hearing the case during his first week on the Court.
