Democratic Justice, page 100
ILLUSTRATIONS INSERT
Felix, age twelve in 1895, a year after arriving in America.
Emma Frankfurter always told her son Felix: “Hold yourself dear!”
Felix’s father, Leopold (sitting second from right), visiting his family in Hungary in 1914.
Frankfurter, standing third row center, with members of his CCNY literary society, Clionia.
Frankfurter sitting in his off-campus boarding house room at 1707 Cambridge Street in Cambridge circa 1903 to 1906.
Frankfurter (standing, third from left) with his fellow assistant federal prosecutors of the Southern District of New York, including Winfred T. Denison (seated, first on left) and U.S. attorney Henry Stimson (seated, third from left).
The original residents at the House of Truth. From left: Winfred T. Denison, Robert G. Valentine (top), Frankfurter (right), and Loring C. Christie (bottom).
Justice Oliver Wendell Holmes, Jr., was a regular at the House of Truth in 1913 and the one who inspired its name.
The “people’s lawyer,” Louis Brandeis, in 1914. Two years later, Frankfurter and Lippmann fought for his Supreme Court confirmation.
Marion Denman in 1918 before heading to the Western Front to study the health and recreation of Allied soldiers for the Commission on Training Camp Activities.
Frankfurter (standing) challenging his third-year and graduate students during a seminar.
Frankfurter (sitting front row, second from left) and Roscoe Pound (sitting front row, third from left) in 1926 with their graduate students, including Tom Corcoran (standing center), in front of Harvard Law School’s Langdell Hall.
Nicola Sacco (right) and Bartolomeo Vanzetti (left) handcuffed in 1923 in Dedham, Massachusetts.
Frankfurter and 1928 Democratic presidential nominee Al Smith (right) at a May 1929 private dinner arranged by Frankfurter in Smith’s honor at the Union Club in Boston.
Frankfurter and Brandeis (right) outside of Brandeis’s Chatham home on Cape Cod.
At Brandeis’s instigation, Chief Justice Charles Evans Hughes sent a letter to Senator Burton K. Wheeler (far right) destroying the court-packing plan’s bogus rationale that the justices were behind on their work.
Tom Corcoran (right), leaving the White House with Harold Ickes after a December 1938 meeting with Roosevelt, led the campaign for Frankfurter to fill Cardozo’s seat.
Robert H. Jackson (left) and Benjamin V. Cohen, at the back door of the White House after meeting with Roosevelt in 1938, lobbied the president to nominate Frankfurter.
Roosevelt kept his Supreme Court nominee a secret from his closest advisers until he submitted this handwritten form to the U.S. Senate on January 5, 1939.
Felix and Marion circa 1942.
Dean Acheson (left) and Frankfurter in the Senate Caucus Room on January 12, 1939, before Frankfurter testified before the Senate judiciary subcommittee about his Supreme Court nomination.
This Nazi newspaper cartoon caption reads: “America’s president debases himself to become a handyman for world Jewry, to secure Jewish help for a third-term election.”
Frankfurter assumed all the expectations of taking the seat held by two of his judicial idols, Oliver Wendell Holmes, Jr. (top) and Benjamin N. Cardozo (middle).
In March 1938, Frankfurter relied on State Department contacts to help secure the release of his uncle Salomon, a librarian and philologist at the University of Vienna, from a Nazi prison.
Frankfurter and Lady Nancy Astor (right) talk animatedly on June 21, 1939, at Oxford’s commencement, where he received an honorary degree. Frankfurter credited her, not the State Department, with securing his uncle’s release.
Justices William O. Douglas (left), Frankfurter, and Owen J. Roberts at an October 2, 1939, call on President Franklin D. Roosevelt at the White House.
On July 11, 1940, Frankfurter cut his summer vacation short to swear in Secretary of the Navy Frank Knox in the Oval Office. This is the only known photo of Frankfurter and President Roosevelt.
Oliver Gates warmed the hearts of Uncle Felix and Aunt Marion from September 1940 to July 1942 when he and his sisters, Ann and Venetia, lived with the Frankfurters to escape the bombing of Britain. In July 1941, Felix visited Oliver in Dark Harbor, Maine, before Oliver’s fourth birthday.
When Justice James C. McReynolds retired on February 1, 1941, Washington Evening Star cartoonist Clifford K. Berryman proclaimed that the Court was Frankfurter’s.
(Left to right) Chief Justice Harlan Fiske Stone, Attorney General Francis Biddle, Frankfurter, Solicitor General Charles Fahy (over Frankfurter’s shoulder), and Justice Owen J. Roberts on April 24, 1943, at the National Press Club Canteen for Servicemen in Washington, D.C.
On April 10, 1944, Frankfurter decided not to publish his draft Smith v. Allwright concurrence.
Frankfurter on April 15, 1945, at Franklin D. Roosevelt’s funeral at Hyde Park, New York.
Frankfurter shaking hands with retired chief justice Charles Evans Hughes at Harlan Fiske Stone’s funeral at Washington National Cathedral on April 25, 1946. Stanley Reed (left) and Hugo Black (right) stand behind them.
William T. Coleman, Jr. (left) and Elliot Richardson, law school friends and co-clerks during the 1948 term, outside of Frankfurter’s office door.
Frankfurter and Dean Acheson (right) regularly walked to work together from their Georgetown homes. The New York Times captured them on January 17, 1948.
Frankfurter’s notes to Robert H. Jackson during the steel seizure oral argument in May 1952 about Chief Justice Fred Vinson’s questions to attorney John W. Davis (the greyhound) and Vinson’s running commentary to Hugo Black.
Hugo Black (left), Robert H. Jackson (center), and Frankfurter at Chief Justice Fred Vinson’s funeral on September 11, 1953, in Louisa, Kentucky.
The justices on a special train car to the Army-Navy football game in Philadelphia on November 27, 1954. From left to right: William O. Douglas, Hugo Black, Earl Warren, Stanley Reed, Tom C. Clark, Sherman Minton, Harold H. Burton, and Frankfurter in front.
Frankfurter and Chief Justice Earl Warren, in their honeymoon period after Brown v. Board of Education, at a September 1955 conference on “government under law” at Harvard Law School.
At a memorial service on May 30, 1956, at Roosevelt’s grave at Hyde Park, New York, Frankfurter predicted that the former president “cannot escape becoming a national saga.” From left: Frankfurter, Franklin Roosevelt, Jr., Eleanor Roosevelt, and Everetta Kilmer.
At a celebration of Learned Hand’s fiftieth anniversary on the federal bench in the lower Manhattan federal courthouse on April 10, 1959, Frankfurter remarked that Hand was “lucky not to get on the Nine.” From left: Earl Warren, Learned Hand, Frankfurter, and John Marshall Harlan II.
Frankfurter’s famous iron grip.
Frankfurter consulting in 1959–1960 with his devoted secretary, Elsie Douglas, who had previously worked for Frankfurter’s closest friend on the Court, Robert H. Jackson.
Frankfurter’s messenger Thomas Beasley, pictured during the 1959 term, played an integral role in his life on and off the bench.
Frankfurter spoke incoherently at the swearing-in of D.C. Circuit judge Carl McGowan on April 23, 1963, with Attorney General Robert Kennedy and many longtime friends present. Former clerk Joseph Rauh advised against any future public speeches. From left: Josephine McGowan, Frankfurter, Carl McGowan, and Robert Kennedy.
Frankfurter visited President Kennedy at the Oval Office on June 17, 1963. From left: Kennedy, Frankfurter, and Frankfurter’s longtime friend Wilmarth Lewis.
Frankfurter spoke with a Washington Evening Star reporter on August 18, 1963, while being taken for a stroll at Hains Point accompanied by messenger Thomas Beasley and nurse Margaret MacKay.
President Lyndon B. Johnson leaving Frankfurter’s Massachusetts Avenue apartment after the justice’s memorial service on February 25, 1965. Dean Acheson, who arranged the service, is behind him on the steps.
Frankfurter’s portrait taken by John F. Costelloe, law clerk to Justice Robert H. Jackson, in October 1943.
ACKNOWLEDGMENTS
As an assistant professor at the University of Wisconsin Law School in 2008, I wrote an article about the Supreme Court’s repeated refusal to hear the case of convicted atomic spies Julius and Ethel Rosenberg. By using the justices’ papers, I reconstructed the behind-the-scenes infighting and the reasons for the Court’s multiple institutional failures—dismissing viable claims of prosecutorial misconduct, rushing to hold a special term to lift a stay of execution before new claims could be heard by lower courts, ethically problematic private conversations between Chief Justice Fred Vinson and the Justice Department, and judicial opinions written after the Rosenbergs had been executed.
During my research, I was struck by Felix Frankfurter’s consistent support to hear the Rosenberg case and by the last two paragraphs of his dissenting opinion: “To be writing an opinion in a case affecting two lives after the curtain has been rung down upon them has the appearance of pathetic futility. But history also has its claims. This case is an incident in the long and unending effort to develop and enforce justice according to law. The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled, as illumination for the future. Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain.”
Former Frankfurter clerk Phil Elman, a lawyer in the solicitor general’s office who was dismayed by the Court’s refusal to hear the case, confided that he needed Frankfurter’s concluding paragraphs “for the sake of my soul.” Elman interpreted Frankfurter as saying: “This isn’t the end, errors are inevitably made but you go on, you don’t lose faith in the process of law.”
Frankfurter’s insistence that “history also has its claims” and his emphasis on procedural fairness resonated with me and inspired me to explore his philosophy of judicial restraint and his career on and off the bench.
Historians have not been kind to Justice Frankfurter. They have characterized him as a liberal lawyer turned conservative justice, as a judicial failure, and as the Warren Court’s principal villain. But as the Court has become increasingly interventionist, scholars have begun to reassess the role of the Court in our democracy and Frankfurter’s incremental approach to judging, respect for precedent, and invocation of the political question doctrine as a safeguard against government by judiciary.
No comprehensive biography about Frankfurter has ever been written in part because of the massive amount of source material. He wrote ten to fifteen letters a day and left huge collections at the Library of Congress, Harvard Law School, and at archives and in private collections all over the world. He had a long career in government and the legal academy before joining the Court, requiring in-depth research at the National Archives and in presidential libraries.
As a legal historian, I have enjoyed poring over letters in archives and private collections for insights into Frankfurter’s life and career. So many talented people have helped me with my last book on Frankfurter and his friends at the House of Truth and on Democratic Justice. It has been an incredible journey. I could not have done it without assistance from talented librarians, archivists, scholars, students, and friends.
First and foremost, I am indebted to all my colleagues at Georgetown University Law Center. Getting hired there nearly five years ago transformed my personal and professional life. The law library staff, including Jennifer Krombach, Hannah Miller, Thanh Nguyen, Yelena Rodriguez, Leah Prescott, Erie Taniuchi, Tammy Tran, Austin Williams, and Michelle Wu, tracked down every book, article, and reel of microfilm at libraries near and far. Like all great librarians, they never said no. Faculty assistants and staff George E. Belton, Jennifer Lane, Ronnie Reese, Alina Schmidt, and Jana Sneed assisted me with requests big and small. Brent Futrell generously took my author photograph (he did not have much to work with).
My colleague David Vladeck is the best FOIA lawyer in America. I am extremely grateful for all the time and effort he and his talented team spent on my behalf. They fought for FBI and State Department files that yielded many new insights about Frankfurter and his protégés David Niles and Max Lowenthal. On behalf of myself and other scholars, David also successfully sued for the release of grand jury testimony in the Rosenberg case. Finally, he connected me with several leading Cold War–era scholars. Thanks, David.
Associate deans Greg Klass, John Mikhail, Paul Ohm, and Joshua Teitelbaum supported me throughout this project. Dean Bill Treanor was always in my corner and granted me a crucial second semester of leave when I needed it most. A talented legal historian, Bill has inspired me with his scholarship on Gouverneur Morris and has encouraged me at every turn.
Another great legal historian, Dan Ernst, has listened to me talk about Frankfurter for more hours than any person should have to endure. I have profited from his mentoring, archival knowledge and documents, editing, good cheer, and first-rate scholarship about New Deal lawyers more than he will ever know. I am lucky to have him as a colleague and a friend.
Second, I want to thank my dear friends and former colleagues, library staff led by Bonnie Shucha and Steven Barkan, associate deans, and former dean Margaret Raymond at the University of Wisconsin Law School for supporting me at the beginning of this intellectual journey. I could not have written this book without learning how to be a legal historian at the intellectual home of Willard Hurst. Part of my heart will always be in Madison—teaching in the law school, researching at the Wisconsin Historical Society, walking around the farmer’s market, and sitting outside the Memorial Union on a sunny day.
My friends at the Library of Congress Manuscript Division—the repository of papers of Supreme Court justices, government officials, members of Congress, and presidents—have put up with me throughout every phase of this project. They are some of the most talented archivists, librarians, and historians in the country and even better people. Researching there is a dream. I thank members of the library staff, past and present, including the late Fred Augustyn, Connie Cartledge, Loretta Deaver, Jeff Flannery, Dave Kelly, Lia Kerwin, Patrick Kerwin, Bruce Kirby, the late Joe Jackson, Alex Lorch, Elizabeth Pugh, Ryan Reft, Edith Sandler, Lara Szypszak, Kerrie Williams, Lewis Wyman, and Daun van Ee. Special thanks to Patrick Kerwin for retrieving documents for me when I have been unable to visit the library, for cheering me on, and for being an all-around great friend. We have had a lot of fun yet miss our friend Joe.
The Historical and Special Collections Library at Harvard Law School has been my second home away from home. I have spent countless hours there in the papers of Frankfurter and those of his former law school colleagues in the great company of Jane Kelly, Ed Moloy, and Lesley Schoenfeld. Lesley, more than anyone else, made publication of many of Democratic Justice’s photographs, including the cover, Frankfurter’s official portrait by Gardner Cox, possible. She worked countless hours with me during the pandemic. Ed Moloy helped me with permissions to publish from various manuscript collections. They have taught me so much about the history of Harvard Law School and the library’s extensive manuscript collections. Frankfurter’s Harvard Law School Papers have been digitized by ProQuest and are available on ProQuest Vault, which enabled me to search the collection electronically and not lose my mind when I couldn’t find a document.
Matthew Hofstedt and Franz Jantzen at the Supreme Court of the United States Curator’s Office provided me with access to documents and photographs and worked with me on numerous occasions. Special thanks to Paul Bender for permission to publish his photographs of Elsie Douglas and Thomas Beasley and to the family of John F. Costelloe—Kevin, Paul, and Ann Costelloe Landenberger—for permission to publish their father’s 1943 photograph of Frankfurter. Clare Cushman and Jennifer Lowe at the Supreme Court Historical Society are trusted friends and allies who helped me at many stages of this project.
I am grateful to the following archivists and institutions: Anna Clutterbuck-Cook, Hannah Elder, Daniel Hinchen, Elaine Grublin, Brenda Lawson, Laura Lowell, Tracey Potter, Kate Viens, and Conrad Wright at the Massachusetts Historical Society; Kimberly Reynolds at the Boston Public Library; Christian Belena, Kirsten Strigel Carter, Patrick F. Fahy, Matthew C. Hanson, Virginia H. Lewick, and Sarah L. Navins at the FDR Library; Robert Clark at the Rockefeller Archive Center; Robert Ellis, David Langbart, Gene Morris, Richard Peuser, Eric van Slander, and Gary Stern, National Archives; Jim Armistead, Randy Sowell, and Tammy K. Williams, Harry S. Truman Library; Jennifer Cuddeback and Allen Fisher, Lyndon B. Johnson Library; Stacey Chandler and Abigail Malangone, John F. Kennedy Presidential Library; Scott S. Taylor, Lauinger Library, Special Collections, Georgetown University; Madeline Bradford, Sarah McLusky, Malgosia Myc, and Cinda Nofziger, Bentley Library, Special Collections, University of Michigan; Chloe Morse-Harding, Brandeis University Archives; Joellen El Bashir, Moorland Spingarn Research Center, Howard University; Genevieve Coyle, Bill Landis, Stephen Ross, Eric Sonnenberg, and Judith Schiff, Sterling Library, Manuscripts Division, Yale University; Dana Herman, Joe Weber, and Julianna Witt, the American Jewish Archives; Sydney Van Nort, City College of New York Archives; Scott Campbell, University of Louisville Law Library; Elizabeth E. Hilkin, Tarlton Library, University of Texas Law School; Doug Boyd, Terry L. Birdwhistell, Sarah Dorpinghaus, Judy Sackett, Jeff Suchanek, and Kopana Terry, Margaret I. King Library, University of Kentucky; Anne Causey and Penny White, Albert & Shirley Small Special Collections Library, University of Virginia; Margaret Dakin, Amherst College Archives; Carolyn Marvin, Portsmouth Athenaeum; April C. Armstrong, Amanda Ferrara, Rachael Reitano, and Rosalba Varallo Recchia, Seely Mudd Library, Princeton University; Lisa Marine, Wisconsin Historical Society; Anne Engelhart, Zoe Hill, and Sarah Hutcheon, Schlesinger Library, Harvard University; Timothy Driscoll, Pusey Library, Harvard University; Jessica Suarez, Andover-Harvard Theological Library; Leslie Martin, Chicago Historical Society; Judith Wright, University of Chicago Law School Library; Cate Kellett, Ryan Greenwood, Fred Shapiro, and Michael Widener, Yale Law School Library; Scout Noffke and Morgan Swan, Rauner Special Collections, Dartmouth College; Lisa Warwick, Martin Luther King Library; Ronald Gaczewski, University of Buffalo Law Library; Kristen McDonald, Lewis Walpole Library; Irina Kandarasheva, Columbia University Law School Special Collections; Gaby Hale, Wilson Special Collections Library, University of North Carolina; Linda S. Stahnke, University of Illinois Archives; Brenda L. Burck and James E. Cross, Clemson University Special Collections; Matthew Schaefer, Herbert Hoover Presidential Library; Gaye Morgan, Codrington Library, All Souls College; Michael Simonsen and Agata Sobczak, Leo Baeck Institute; Lior Hecht-Yacoby, Chaim Weizmann Archive; Nina Gershuni and Illanit Levy, Aaronsohn Museum; Lori Reese, Redux Pictures; Christiana Newton, Getty Images; Tricia Gesner, AP Photo.
