Democratic justice, p.98
Democratic Justice, page 98
At 4:00 p.m. in the new State Department auditorium, President Kennedy began his press conference by announcing Frankfurter’s retirement and the nomination of his replacement, Secretary of Labor Arthur Goldberg. Kennedy lauded Goldberg’s “wealth of experience” from thirty years of law practice and as general counsel to the Steelworkers union, “his scholarly approach to the law,” and “his deep understanding of our economic and political systems.”
Before the announcement, Kennedy had dispatched his aide McGeorge Bundy to 3018 Dumbarton Avenue to break the news. Bundy’s friendship with Frankfurter went back to 1947 when the young Yale graduate had assisted Henry Stimson with his autobiography. The conversation with the justice failed to soften the blow. A few weeks later, Bundy infuriated Frankfurter by comparing Goldberg to Louis Brandeis “at the same age.” Frankfurter lamented that there was not a legal scholar on the Court, someone, such as his former student Freund, who knew its history and could save it from “self-inflicted wounds.” “I suggest,” Frankfurter wrote Bundy, “you begin to repair the justification you will have to make on Judgment Day should Paul not be on the Supreme Court at the time your tenure of power is over.” He insisted that several state and federal judges, including Friendly and Charles Wyzanski, were more qualified to be on the Court than White and Goldberg. The retired justice argued that Goldberg should have stayed in the Labor Department, did not think much of his ability as a Supreme Court advocate, and was unworthy of the seat once held by Holmes and Cardozo. Privately, Frankfurter derided Goldberg as “the scholar.”
FRANKFURTER’S FRIENDS who had been instrumental in persuading him to retire rescued him from financial ruin. His devil-may-care attitude about money and mounting medical bills finally caught up with him. Even with his annual salary of $36,000 continuing in retirement, he was running a monthly deficit that threatened to wipe out his meager savings and life insurance. Acheson, Phil and Kay Graham, and others intervened to move the Frankfurters out of 3018 Dumbarton Avenue and into a more accessible apartment. Persuading Marion to agree to the move, Acheson remarked, was “a minor miracle.” Neither she nor her husband knew how miraculous it was. The sale of the Frankfurters’ Georgetown home, which netted $56,000, was not enough to cover the $75,000 Embassy Row apartment at 2239 Massachusetts Avenue and the necessary renovations. Phil and Kay Graham loaned the justice more than $43,000 to be repaid with the eventual sale of the apartment. An audit of Frankfurter’s finances by Acheson, Donald Hiss, and another Covington & Burling lawyer revealed overspending, mounting medical bills, and long-term indebtedness. Acheson began soliciting money from the justice’s longtime friends and raised nearly $7000 to reduce the debt. “Justice Brandeis used to say that most people thought too much or too little about money,” Acheson wrote Harvard law graduate Benjamin F. Goldstein, who donated $2600. “Felix has always belonged to the latter class, which, of course, is a part of his endearing, happy nature.” With assistance from secretary Elsie Douglas, Acheson and his law partners changed the Frankfurters’ health insurer and instituted cost-cutting measures. The monthly deficits, however, continued. Each year the justice lived would be a financial struggle, and Marion’s long-term care was a looming problem. Their biggest benefactors, the Grahams, were miffed when Frankfurter’s sister Estelle began soliciting $400,000 for a chair at Harvard Law School in her brother’s name when he did not have enough money to survive. Acheson proposed that Frankfurter write another memoir, as a book or in magazine articles, “only this time getting paid himself—General Grant did.”
An October 1962 visit from Isaiah Berlin briefly revived the justice’s flagging spirits. The Oxford philosopher thought the new apartment was larger and brighter than their Georgetown home. Felix and Marion lay in separate beds in different rooms. During his conversation with Berlin, Felix came alive talking about British friends Maurice Bowra and Sylvester Gates. He was “cheerful and gay” and spoke without slurring but like “a man with a heavy cold at most.” Marion, who was asleep during most of Berlin’s visit, was a different story. Berlin heard that she was “infinitely unkind to Felix because she wishes to be the only patient and cannot bear the fact that he too is an object of sympathy.” Shortly before he left, a bell rang, and Berlin was summoned to her room. She confessed she never thought her husband, so full of energy and life, could succumb to such an illness and began to cry. Once they began gossiping, the old Marion returned. She “denounced most of our friends” and singled out the Grahams for their “materialism, love of power, wicked gossip, etc.” Berlin described Marion as “as delightful as ever, very sharp, very grand.”
As much as the move into the apartment improved his quality of life, Frankfurter was in no condition to write anything. He barely had enough energy for social engagements. Accompanied by his doctor and in a wheelchair, he attended a State Department concert by violinist Isaac Stern that October and enjoyed himself tremendously. At 5:00 p.m. on January 5, 1963, the Vienna Boys Choir sang to him and Marion at their apartment for half an hour; he thanked them in his native German. A month later, he received a private, after-hours showing at the National Gallery of the Mona Lisa. Elsie Douglas, who continued to serve as the justice’s secretary and amanuensis, hoped these events would aid his recovery. For the most part, however, the tri-weekly physical therapy sessions sapped him of strength and failed to rehabilitate his paralyzed left arm and leg. His body was failing him, and his mind was, too. Berlin described him as “gently ebbing.”
As with many stroke victims, the most striking change about Frankfurter was his personality. The justice who radiated optimism was becoming bitterly negative about everyone and everything. He was not only losing physical strength but also his mental acuity and emotional self-control. The doctors prescribed sedatives to keep him from becoming too excited about trivial things. The drugs made him more erratic and led to more outbursts. His eightieth birthday party at Acheson’s house was a “horror.” Every week, Acheson visited him out of a sense of duty and tried to prevent him from sending a missive to his former colleagues about the Court’s latest opinion. Acheson was not always around or successful.
At the April 23, 1963, swearing-in of Judge Carl McGowan to the Court of Appeals for the District of Columbia Circuit, Frankfurter requested to speak to the audience and babbled incoherently for nearly twenty minutes in the presence of Attorney General Kennedy, Anthony Lewis, and longtime friends. “I have something on my mind,” he began, “and I want to say it.” He argued that lawyers “know more of history than historians” and began citing cases to prove it. He refused to quit talking even after former clerk Joseph Rauh, who accompanied him to the event, urged him to stop. Finally, Frankfurter’s microphone was cut off. Rauh signaled for a few of the justice’s friends to start clapping. Frankfurter was completely aware of the poor impression he had made. Rauh informed Acheson that future public speaking opportunities “must be avoided.”
After the disastrous public appearance, Frankfurter sent two long, rambling letters to Hugo Black. No one missed Frankfurter on the Court more than his longtime intellectual adversary. The 76-year-old Alabaman had been one of the first justices to write Frankfurter after his stroke and had looked forward to his return to the Court. Nearly a month after Frankfurter’s retirement, Black had visited him and had confessed: “We miss you because we need you. I wish you had been there for the N.Y. prayer case.” Black was referring to his majority opinion in Engel v. Vitale outlawing state-imposed prayers in public schools, which Frankfurter undoubtedly would have joined given his votes in favor of separation of church and state. The love and respect between the two legal giants was mutual. Frankfurter worried about the impropriety of writing Black about pending cases of civil rights demonstrators arrested during sit-ins. Nonetheless, he wrote Black on May 7 and 8, 1963, to say how much he admired him and to reminisce about their shared history in the school segregation cases. The letters were as incoherent as his speech at Judge McGowan’s swearing-in ceremony. At 4:00 p.m. on May 8, Black phoned, told him not to worry, and assured a relieved Frankfurter that he “should not hesitate ever to write to him.” Frankfurter kept writing, especially when he liked one of Black’s opinions. And Black kept visiting, knowing that his former colleague’s best days were behind him.
“These are not good days,” Elsie Douglas informed Paul Freund. Frankfurter was becoming more and more emotional. On May 24, he asked Freund and former clerk Louis Henkin to speak at his funeral. He wanted Freund to give the eulogy and Henkin, the son of a prominent Orthodox rabbi and product of yeshiva schools, to say the Mourner’s Kaddish in Hebrew. The request surprised friends who knew that Frankfurter had walked out of synagogue as a fifteen-year-old and never returned. “I came into the world a Jew,” the justice explained, “and although I did not live my life entirely as a Jew, I think it is fitting that I should leave as a Jew.” As Frankfurter spoke, Marion, who was lying on her back in bed, was crying. After Freund and Henkin left, she told her husband: “I’m so relieved those two boys took a ton off my mind.” He was as worried about the funeral arrangements as she was, if not more. Indeed, he told several friends about his funeral plans. Frankfurter’s death was not imminent. “Every one of your vital organs is intact,” his doctor informed him. “You are not at all a sick man; you are merely partially invalided.”
One of Frankfurter’s preoccupations was the career aspirations of Sylvester Gates’s son, Oliver. Thanks to the intervention of Acheson, Oliver had worked for two years in a DuPont training program in Richmond, Virginia. After several more years of working for DuPont in England, Gates was considering a switch from business to law. Ultimately, Gates, who had married and returned to London, never pursued a legal career and, like his father Sylvester, thrived as a banker. “I wish I were around ten or fifteen years from now,” the justice remarked, “to see what time will do to him or he to it.”
By mid-1963, Frankfurter was thinking more about the past than the present or future by assigning former students and clerks to write judicial biographies. He informed Bickel and Phil Elman that they were “best equipped” to write about his judicial career and should be given access to his papers. He also granted access to journalist Max Freedman, who planned on writing a more popular biography. As the executor of the Holmes and Brandeis papers and with access to the papers of other justices, Frankfurter had been designating former students and law clerks to write judicial biographies: Holmes to Mark DeWolfe Howe, Cardozo to Andrew Kaufman, Jackson to Philip Kurland, and Brandeis to Paul Freund. Their collective output was sparse; Kaufman was the only one who finished, and it took him thirty-five years. Before his death in 1967, Howe had annotated and published some of Holmes’s correspondence and had completed two magisterial volumes on Holmes’s early life, volumes that gave Frankfurter great joy. Howe’s embittered wife, Mary, blamed Frankfurter for saddling her husband with the Holmes biography and charged that he was a vampire who sucked the blood out of his protégés. “While I must agree that there is some truth in this contention,” Edward “Prich” Prichard wrote Arthur Schlesinger, Jr., “it is also true that he, at the same time, pumped their blood full of life, giving oxygen, so that it was Felix’s giving and Felix’s taking away.”
Thirteen former Frankfurter clerks and countless former students joined the legal academy at Harvard, Yale, and other top law schools. Together with Frankfurter’s former graduate student Willard Hurst, Howe reinvented the field of American legal history. At Yale, Bickel was one of the preeminent constitutional law scholars of his generation. He died of cancer at age forty-nine after sacrificing any chance of a Supreme Court nomination of his own by defending the right of the New York Times to publish the Pentagon Papers over the objections of the Nixon administration. Anthony Amsterdam, who had worked with the justice on a possible Harvard lecture during the summer of 1963, became a legendary criminal law professor, a first-rate Supreme Court advocate, and the architect of the NAACP Legal Defense Fund’s attack on the death penalty. Former clerks Louis Henkin and Abram Chayes became leading experts in international law.
With more bad weeks than good ones during the summer of 1963, Frankfurter made few public appearances except for a June 17 visit to the Oval Office to see President Kennedy. The retired justice asked who the “Mr. Buttinsky” of the administration was; Kennedy pointed to historian Arthur Schlesinger, Jr. Frankfurter launched into criticism of Schlesinger’s multivolume work on the New Deal (which Frankfurter believed relied too much on Harold Ickes’s diaries and the unreliable recollections of Tom Corcoran). During their “extremely pleasant” conversation, Frankfurter sat in his wheelchair next to the president behind his desk. Wilmarth Lewis, a longtime friend, sat by Frankfurter’s side. The visit was “a great success,” and the justice thanked the president for the White House photograph of “three Yale men.” Lewis was a Yale graduate and trustee; Kennedy and Frankfurter were Harvard men who had received honorary Yale degrees.
A few weeks later on July 1, Frankfurter learned Kennedy had selected him for the nation’s highest civilian award, the Presidential Medal of Freedom. Sadly, Kennedy did not present the award. On November 22, 1963, he was assassinated while riding through Dallas’s Dealey Plaza in an open convertible. Four days after the assassination, Frankfurter learned that the Medal of Freedom ceremonies would take place as scheduled.
After Kennedy’s assassination, Frankfurter’s first order of business was writing a letter of encouragement to the new president, Lyndon Johnson. “My confident wishes are that you may discharge these burdens with courage and wisdom and humaneness,” Frankfurter wrote on November 29, “and I am ‘confident’ that you will do so because of the one intimate experience I had the good fortune to have had with you.” He was referring to Johnson’s 1958 letter after Frankfurter’s heart attack, which had kindled a friendship between the two men and revealed Johnson’s “qualities of sensitiveness of thought and feeling.”
Another loss brought Frankfurter and Johnson closer together—the suicide of former Frankfurter clerk and Johnson confidant Phil Graham. In 1958, Graham had encouraged Johnson to write Frankfurter after the justice’s heart attack. For the past five years, the Washington Post publisher had been battling mental illness. He frenetically had begun transforming the Post into a national newspaper and buying other media properties including Newsweek. During the 1960 presidential campaign, Graham’s equilibrium briefly returned. He had been instrumental in brokering Johnson’s spot on the Kennedy ticket. In October 1962, Kennedy named Graham chair of the thirteen-member committee to establish the Communications Satellite Corporation (COMSAT). Graham’s behavior, including an affair with a correspondent in Newsweek’s Paris bureau and bizarre phone calls berating the president, grew so erratic that he was forced to resign. He was hospitalized and diagnosed with manic depression. On August 3, 1963, he shot and killed himself at his Virginia farm, Glen Welby. Mourning the loss of one of his closest friends, Frankfurter lamented that Johnson had been thrust into the presidency without Graham’s “devoted, highly intelligent, resourceful, and effective support for all your efforts.”
In Johnson, Frankfurter saw a leader with the legislative and political skill to be a transformative president. In concluding his letter, he wished Johnson “one of the most important ingredients in successful statesmanship, namely luck—that is, right breaks at the right time.” A savvy politician, Johnson appealed for Frankfurter’s continued advice and support. “I need your help—I need your mind,” Johnson replied on December 5. “We must seek out and serve the Nation’s interest. We must erase the divisions in this country. We must find a new sense of union—a return to mutual reasonableness. This is the awesome burden I face. In this, I seek your counsel and your guidance.”
During a noon reception on December 6 in the White House state dining room, Johnson presented Frankfurter with the Presidential Medal of Freedom. Joined at the ceremony by Kennedy’s widow, Jackie, as well as former Supreme Court colleagues, Frankfurter listened as Johnson read his citation: “Jurist, scholar, conversationalist, he has brought to all his roles a zest and wisdom which has made him teacher to his time.” With a nurse in white uniform and hat at his side, Frankfurter rose from his wheelchair, just as he had stood to greet President Kennedy at Dumbarton Avenue the previous year, to accept the medal from President Johnson. Frankfurter’s moving gesture made the New York Times front page. Fellow honoree John McCloy remarked that the justice lived up to his billing as a gifted conversationalist by engaging the president in “a rather long exchange.”
The day after the ceremony, Frankfurter replied in longhand to Johnson’s request for help and guidance: “Whatever strength is left in me is at the disposal of my country and therefore at your disposal.” Johnson was so moved by Frankfurter’s words that he wanted them included in textbooks and proclaimed them “the best definition of what American citizenship ought to be that I have ever seen.” He reiterated that he was “serious in my request for your wisdom.” If Frankfurter did not want to offer advice directly, Johnson suggested that the justice should relay it through Dean Acheson. Finally, Johnson wanted to continue the Roosevelt-Holmes and Kennedy-Frankfurter tradition of visiting Frankfurter at his apartment: “The Secret Service is understandably difficult these days, but I hope sometime in the future I may be able to slip away for a few moments and visit with you. In the meantime, remember that I need your counsel.”
