Democratic justice, p.97
Democratic Justice, page 97
During the fall of 1962, Bickel incorporated his critique of Baker into his most enduring contribution to constitutional law, The Least Dangerous Branch: The Supreme Court at the Bar of Politics. With its title borrowed from Alexander Hamilton’s benign description of the judiciary in the Federalist Papers, The Least Dangerous Branch became a symbol for post-Brown anxiety about the outsized role of the Court as an engine for social change. Instead, Bickel advanced the dominant theory of judicial review for a generation of lawyers and judges. He defended Brown, elaborated on his theory of employing the passive virtues to avoid constitutional issues, and questioned judicial review as a “deviant institution in American democracy.” Coining the phrase the “counter-majoritarian difficulty,” Bickel emphasized the “undemocratic” nature of judicial review. Five justices deciding political and social policy for the nation undermined our democratic institutions and imbued the justices with too much power. He argued that the Court could maintain its legitimacy in the face of rising public hostility only by deciding not to decide. Yet, if the justices picked their spots better and offered the lower courts better reasoning and more guidance on how to implement their decisions, he believed in the Court’s ability to conduct a “ ‘vital national seminar’ ” on the Constitution and to educate the people about the nation’s democratic values. Bickel’s section on Baker v. Carr quoted at length from Frankfurter’s dissent in an effort to distinguish the Court’s intervention in the school segregation cases from its standardless inquiry into legislative reapportionment.
In late October 1962, Bickel informed Frankfurter that his take on Baker “necessarily relies heavily on your dissent, but, as you said when we last discussed this, perversely comes to the conclusion that the Court became only a little pregnant and that that is not an intolerable state.” By that point, the justice’s health prevented him from reading the Yale Law Journal article, much less The Least Dangerous Branch. Bickel learned from Elsie Douglas that the justice’s “chief occupation from now on is to amass the necessary strength to be able to read your book and not merely savor it.” Yet Frankfurter could not resist a dig at the book’s title: “He finally wants to know whether the other two branches are really ‘dangerous.’ ”
Frankfurter knew it was a mistake to expect the courts to solve all the nation’s problems. Courts were limited in their ability to devise and enforce remedies for complex issues such as school segregation or legislative reapportionment. Government by judiciary eroded the need for the American people to invest in the democratic political process or the need for their elected officials to compromise. From his first day in government working as an assistant U.S. attorney for Henry Stimson until his last opinion on the Supreme Court, Frankfurter never lost faith in American democracy. He sometimes took his belief in judicial restraint too far; he placed too much trust in the states and other federal branches to police themselves; and he sided too often with national security and not enough with liberty. He alienated some colleagues with his conference lectures, memoranda, and overlong opinions. But in Gomillion v. Lightfoot and in his final opinion in Baker v. Carr, he struck a balance between protecting minority rights and recognizing that some problems were not capable of judicial resolution. He firmly rejected the Warren Court’s embrace of judicial supremacy. He left it to former students and law clerks to elaborate on his powerful constitutional vision and to the verdict of history to vindicate his hopes for democratic political change.
CHAPTER 39
Father to Them All
On the night of March 26, 1962, the same day he announced his Baker dissent in the courtroom, Frankfurter spoke at the eighty-eighth birthday celebration of poet Robert Frost. Standing in the receiving line at the black-tie dinner for 200 people, Frankfurter joked with fellow speakers Frost and poet Mark Van Doren about who would be the first to “join the angels.” Other speakers included U.S. ambassador to the United Nations Adlai Stevenson, Chief Justice Warren, and poet Robert Penn Warren. The politicians and poets were no match for Frankfurter’s eloquence. The justice began by recalling the first time he had met Frost forty years earlier in a Cambridge bookshop. The two men had talked for four hours, including after the shop closed, without knowing each other’s name. The conversation sparked a lifelong friendship. “Robert Frost is a moralist who does not moralize but instills,” Frankfurter told the audience. “He is an educator who does not teach but shares. He makes us aware of what we so often look at but do not see.”
What most people could not see about Frankfurter was how his influence extended far beyond Supreme Court opinions. By encouraging generations of former students and law clerks to enter academia and public service, he had helped create the mid-century liberal establishment. It was no accident that he was asked to choose the speakers and to serve as the toastmaster at the Harvard Law Review’s upcoming seventh-fifth anniversary celebration on April 14. He viewed Harvard Law School as the ultimate meritocracy. Making the Review in 1904 on the basis of his stellar first-year grades had changed his life. He had met lifelong friends in fellow editors Emory Buckner and Monte Lemann. He had been recruited, based on the recommendation of Dean Ames, to work for Henry Stimson as an assistant U.S. attorney in the Southern District of New York. From Stimson, he had learned the ethos of public service. He had followed Stimson to Washington to work in the War Department and had widened his circle of friends at the House of Truth. Upon joining the Harvard law faculty in 1914, he steered Review editors away from Wall Street law firms by selecting them for clerkships with Holmes, Brandeis, and other judges and by recommending former students for government jobs. As a professor, justice, and talent scout, he altered the aspirations of Review editors from financial gain to political leadership and instilled in them the higher calling of public service.
In the days leading up to the April 14 celebration, Frankfurter carefully arranged the list and order of speakers representing each generation of the Harvard Law Review, a who’s who of his friends and disciples. He was looking forward to seeing former colleagues, students, and law clerks. He wanted to continue his conversation with Bickel and others about Baker v. Carr. But he never made it to Cambridge.
At 4:30 p.m. on April 5, shortly after speaking to reporter Ward Just about the Harvard Law Review celebration, Frankfurter fell from his desk onto the floor. His secretary, Elsie Douglas, found him mumbling to himself. His messenger, Thomas Beasley, lifted him onto the couch. Within ten minutes, his doctor arrived, gave him glycerin tablets and other treatment, and rode with him in an ambulance to George Washington University Hospital. The doctor diagnosed it a “transient episode of acute cerebrovascular insufficiency,” a stroke that “cleared spontaneously and left no residual after effect.” The press release indicated that the justice would remain in the hospital for “a short period of rest.” Indeed, the stroke had been minor, and the justice showed few ill effects. Five days later, however, he suffered a second stroke and possibly several others. They paralyzed his left side and affected his speech. Once again, his speech improved, and he regained some use of his left leg.
Public and private reports downplayed the seriousness of his condition. An April 19 press release revealed that he had suffered another stroke but “improved rapidly and is now getting out of bed.” His doctors predicted that he would be able to return to the Court “in due time.” On April 30, he announced that he was staying in the hospital for “further treatment,” would not return before the end of the term, but expected to be ready for the beginning of the next term. Privately, Elsie Douglas reassured his friends that the justice “continues to improve” and was “gaining strength and fussing about hospital food,” which meant he was getting better. He planned on using the summer recess to prepare to rejoin the Court.
For the first few weeks in the hospital, the justice’s friends, except for Dean Acheson and John Harlan, were barred from seeing him. Acheson’s private reports revealed the paralysis and impaired speech and prepared close friends for the possibility that Frankfurter would never return to the Court. Frankfurter kept writing Harlan about the Court’s pending cases. Acheson knew that the intensity of the work was the last thing the justice needed, but the possibility of a return aided his recovery. Either way, Acheson understood that Frankfurter would never be the same. “In short,” he wrote a mutual friend, “Felix is a very sick man.”
By early May, visitors began to see the contrast between the optimistic reports and Frankfurter’s condition. Samuel Behrman, the longtime New Yorker writer and playwright, planned on staying for only five minutes but listened to the justice, with slurred speech, talk “a blue streak” for forty-five minutes. “I was very moved,” Behrman reported to Isaiah Berlin. “He was lying flat in his bed and held my hand and clutched it practically the whole time.” His doctor informed the justice that “whether he lived or not depended on Felix, on how much he wanted to live. That he must not think about the Court. That he must ‘re-educate certain muscles.’ Felix loved that phrase and repeated it.” During Behrman’s visit, Frankfurter conveyed his opinion of President Kennedy by quoting political philosopher Max Ascoli: “He is not Napoleon the First, he is not even Napoleon the third—I’d say he is about Napoleon the 7th.” Behrman “had a good feeling about Felix when I left” and “felt that he would survive and be all right again.” Yet there was something about the justice, usually so animated and lively, lying in bed and gripping his hand, which left Behrman “quite shaken.”
Dr. Herrman Blumgart, a Harvard Medical School professor and physician in chief at Beth Israel Hospital, left an early May visit with Frankfurter with a similar impression. They talked for thirty-five to forty minutes about Baker v. Carr, Harvard Law School, Harvard Medical School, Harvard president Nathan Pusey, and mutual friends in Cambridge. Blumgart described it as “a kaleidoscopic experience as of old!” After he saw the justice, Blumgart conferred with Frankfurter’s doctor, and they agreed that “the improvement should continue and that we have good ground for optimism.”
The purpose of Blumgart’s visit was to check not only on the justice but also on Marion. Her health, despite the trip to Maine the previous summer, had not improved. She was, however, less reclusive than in the past. On January 28, in honor of her husband’s twenty-third anniversary on the Court, she had hosted an eggnog party for his present and former clerks, had spoken for “nearly an hour, with not a little wit and interstitial wisdom,” and had dished a few barbs at her delighted husband. With Felix in the hospital, Marion was attended to by the couple’s longtime household staff, Matilda Williams and Ellen Smith. Felix kept a photograph of Marion on a bedside table and phoned her every night. He told her the nurses had remarked about her beauty. Several times, she left the house in a wheelchair to visit him, cried when she saw him lying there, and found the experience so emotionally draining that she quickly returned to her bed. Blumgart visited her and eased her mind about Felix’s prognosis. At home by herself, she complained that she was “terribly lonely and alone.” Some of their oldest friends were not too sympathetic. Acheson urged the doctors to keep her away from Felix to aid his recovery. On the basis of reports from Behrman and Acheson, Isaiah Berlin wrote: “I adore and admire Marion, but there is something marvellously egomaniacal about her, about her whole relationship with Felix and her general view of the world. She reminds me of Virginia Woolf, whose genius lay in this direction and whose universe had wonderful content, which nobody ever succeeded in describing anything like so marvellously as she, even at her worst, but which possessed no windows of any kind.”
After three months in the hospital, the justice returned home on July 7 and struggled to recover his normal speech and use of his paralyzed left side. His voice was low, his speech was slurred, and sometimes he had to start over when his thoughts got ahead of his words. His left arm was still paralyzed. His left leg had improved to the point where, once helped to his feet, he could walk ten to fifteen feet on a rail. He was learning to use a cane but was very unsteady. A hospital orderly and nurse helped him with his recovery. When he was not in physical therapy, he liked to read the newspaper each morning and sit in the rear garden on a chaise lounge. He prepared obsessively for his July 26 visit from President Kennedy.
Though charmed by the president, Frankfurter was determined not to give Kennedy another Supreme Court vacancy. In late March, Charles Whittaker had resigned after suffering a nervous breakdown. Kennedy’s advisers had urged him to nominate his initial choice for solicitor general, Paul Freund. “The best and most confidential advice from Cambridge,” McGeorge Bundy wrote the president, “is that Paul Freund would have voted with the majority in the Tennessee re-apportionment case, and might even have carried Frankfurter with him.” Bundy described Freund as “a great scholar—but not a closet scholar; a Brandeis in conviction, but a Cardozo in temperament. He is a deeply amusing as well as a cultivated man—a genuine wit—he could become a close personal help to you, with his detachment, his high personal style, and his regard for you.” Of all the people on Kennedy’s shortlist, Bundy predicted that Freund was “the most likely to be a great judge.”
Bobby Kennedy, whom Frankfurter thought was completely unqualified to be attorney general, consulted Earl Warren and longtime Kennedy family friend William O. Douglas. They opposed Freund and William Hastie, a federal court of appeals judge since 1949, as “just one more vote for Frankfurter.” The president’s decision came down to Freund and Byron White, Kennedy’s Colorado campaign chairman and deputy attorney general. After a week of indecision, Kennedy chose White over Freund. The decisive factor was White’s work on the campaign. According to Kennedy aide Arthur Schlesinger, Jr., the president previously had asked journalist Max Freedman, a Frankfurter confidant and biographer, if the justice was willing to resign provided he and Kennedy could agree on a successor. “I guess he decided that he was indispensable to the Court,” Kennedy quipped. Bobby’s opposition to Freund would have made a deal with Frankfurter a nonstarter. Frankfurter blamed White’s nomination on the president’s brother: “What does Bobby understand about the Supreme Court? He understands about as much about it as you understand about the undiscovered 76th star in the galaxy.”
As determined as Frankfurter was to stay on the Court, his July 26 visit from the president had sapped his strength. “[T]he spirit just seemed to ooze out of him,” Acheson reported. “It is heart-breaking to see that invincible vitality tamed at last.” Frankfurter uncharacteristically refused to see any visitors except for Acheson. For a while, Acheson thought the justice might be able to make a token return to the Court, but no longer. He and Elsie Douglas dreaded the discussion about the coming term. Together with John Harlan, who returned to Washington in mid-August, they hoped they could persuade Frankfurter to retire.
For three difficult weeks in August, Frankfurter agonized about his decision, which to his friends was inevitable. His doctors and close friends repeatedly told him he was not capable of returning to the Court. Yet, as late as mid-August, he was working hard at physical therapy “with confident progress” and hope for a last-minute recovery. His problems were not merely physical. In his few handwritten letters, his writing was shaky, and the words did not come easily. He had no choice but to resign. Knowing he was writing for history, he labored as hard over retirement letters to his colleagues and to the president as on his toughest judicial opinions. He received editorial assistance and repeated reassurance from Acheson and Harlan. In the cover letter to his colleagues, Frankfurter attached his August 28 letter to President Kennedy announcing that he was retiring effective immediately. He explained that his doctors initially expected him to return to the Court for the start of the new term in October but subsequently advised against it. He refused to leave the Court in a state of “uncertainty” about his status or to return in a diminished or restricted capacity. “I am thus left,” he wrote the president, “with no choice but to regard my period of active service on the Court as having run its course.” He expressed his “reluctance with which I leave the institution whose concerns have been the absorbing interest of my life.” He concluded by thanking the president for his visit and “for the solicitude you were kind enough to express.”
That same day, Kennedy responded that he “shared the general hope that you would return soon to the Court’s labors. From my own visit I know of your undiminished spirit and your still contagious zest for life.” He recognized that Frankfurter had “been part of American public life for well over half a century. What you have learned of the meaning of our country is reflected, of course, in many hundreds of opinions, in thousands of your students, and in dozens of books and articles.” He believed that Frankfurter had “a very great deal still to tell us” and urged him “not to retire, but only to turn to a new line of work, with new promise of service to the nation.” Finally, the president expressed “our respectful gratitude for the character, courage, learning, and judicial dedication with which you served your country over the last twenty-three years.” The next day, Frankfurter thanked the president for his “very friendly and movingly handsome response” and for understanding “the fruitful potentialities of the life that is ahead of me.”
The lovefest between Frankfurter and Kennedy came to an abrupt halt with the August 29 announcement of Frankfurter’s successor. The Kennedys were determined to fill the seat with another Jew despite the fact that Frankfurter abhorred the idea of a Jewish seat. At first, they considered Freund, a Jew from St. Louis and one of the nation’s leading constitutional law professors. Bobby Kennedy, however, could not forgive Freund for declining the solicitor generalship and argued that Solicitor General Archibald Cox “deserved the appointment more than Paul Freund.” Cox, however, was not Jewish and did not get the job. And the fact that Freund was Frankfurter’s first choice meant nothing. When Frankfurter’s preferred candidates, Freund, Hastie, and Judge Henry Friendly, came up, Bobby Kennedy remarked: “What have they ever done for us?”
