Democratic Justice, page 14
DURING HIS THREE-MONTH ABSENCE from Washington, the political landscape had shifted and not in Frankfurter’s favor. Walter Lippmann had left the War Department to return to New York City to join Colonel House’s secret organization—the Inquiry—which was planning for the postwar peace negotiations. From the West, Frankfurter had asked Lippmann to put in a good word for him so that he could work for the Inquiry overseas. Frankfurter underestimated House’s anti-Semitism. Wilson’s confidential adviser had opposed Brandeis as attorney general or secretary of commerce and had been conveniently out of the country when Wilson nominated Brandeis for the Supreme Court. House hired Lippmann despite his Jewish background because unlike other Jews he was “a silent one.” Instead of simply rejecting Frankfurter, House damaged his reputation with President Wilson by accusing Frankfurter of leaking stories about the Inquiry to William C. Bullitt of the Philadelphia Public Ledger. Frankfurter was friendly with Bullitt and his wife, Ernesta. Yet, given Frankfurter’s absence out West, the likely sources were House, who had been in frequent contact with Bullitt and his Public Ledger colleague Lincoln Colcord, or Lippmann, who was also friends with Bullitt. Lippmann failed, at Frankfurter’s behest, to clear his friend’s name. After he returned from the West, Frankfurter wired House and asked for an in-person meeting. In January 1918, he insisted that he had not breathed a word of the Inquiry to Bullitt. Frankfurter never joined the organization but returned in good standing to the administration.
Back in Washington, Frankfurter urged his boss to reorganize the War Department. He knew based on Baker’s unhelpful interventions in the lumber strike that the secretary of war was trying to do three jobs instead of one—running the army, managing war-related industries and munitions, and establishing labor policy. In a January 7 confidential memorandum, “Necessary Reorganization of the Functions Exercised by the Secretary of War,” he urged Baker to preempt his January 28 congressional testimony and to propose the consolidation of agencies and the appointment of heads of war-related industries/munitions and labor relations while retaining control of the military. He also suggested a single Central Intelligence Office, a single Shipping Board for the transportation needs of the War and Munitions Departments, and a small war council “freed from the detail of administration and of executive responsibility.” Frankfurter shared a copy of the memorandum with Colonel House, who claimed that “Baker was rather dumbfounded at the audacity of it.” Yet House agreed to speak with the president after receiving a short note from Brandeis concurring with Frankfurter’s assessment.
House and Baker could not have been too upset with Frankfurter because they tapped him for another overseas assignment. On January 27, 1918, Baker asked Frankfurter to study British and French mechanisms for settling labor disputes and to explore a confidential side issue with Zionist leaders. Three days later, Frankfurter boarded a train for Boston to see Colonel House, who had recommended him for the assignment. The next day, Frankfurter sailed from New York and arrived in London on February 8 to air raid sirens. During his eighteen days there, thanks to Eustace Percy and Harold Laski, he spoke with members of all three political parties, the radical right and radical left, and Prime Minister David Lloyd George. In Paris, he kept up his frenetic pace and felt “a little bit more vividly that it is liberty we are fighting for.”
Frankfurter hoped that America could learn from its past labor struggles and from Europe’s. On March 24, while aboard the USS America, he submitted a sixteen-page report to House explaining that the dissatisfaction of British and French workers was unrelated to workplace conditions. Rather, they distrusted their own governments and looked to Wilson for leadership and to chart a more democratic postwar future. “The ascendency of President Wilson among the great masses of both England and France is all pervading,” Frankfurter wrote House. Yet Frankfurter argued that the United States was not using its goodwill to its advantage and blamed diplomats to those countries. Walter Hines Page, the U.S. ambassador to Britain, wondered why the War Department had sent over “the ‘hot dog of war’ ” and “[t]his little Jew.” Not impressed with Page, Frankfurter recommended that the president station people in London and Paris who could convey the administration’s policies. On March 27, Frankfurter reported in person to House. The confidential side issue, meeting with Zionists about the British commitment to a Jewish homeland in Palestine, stayed confidential.
Back home, Frankfurter facilitated the wartime employment of his longtime romantic interest, Marion Denman. During the past few years, Marion’s health had improved. She had worked as a suffragist in Lyme, Connecticut, with Frankfurter’s friend Katharine Ludington but did not take to the cause. The 27-year-old Marion wanted to do her part for the war effort and, if possible, come to Washington. Frankfurter found a job for Marion’s sister Helen as a confidential clerk to his War Department colleague Frederick Keppel. And he found Marion a job as a special assistant to another War Department colleague, Raymond Fosdick. The chair of the Commission on Training Camp Activities, Fosdick was in charge of the health and recreation of American troops at home and abroad.
Six weeks after Felix returned home from Europe, it was Marion’s turn to travel. She agreed to join Fosdick in Britain and France to study women workers in military camps. Her passport listed her as a social worker. Before she left for Europe, Felix and Marion spent their last night together in New York City taking a horse-drawn carriage ride around Central Park. He proposed; she accepted. They knew their families opposed the union and decided to keep the engagement secret. The next morning on May 7, she boarded the steamship Espagne on the French Line for Paris and dashed off a letter to her fiancé: “I want you to know while I’m gone that I love you with all of me, know it every day afresh, be happy in it & sure of it, and work & play hard until I arrive back—to you.” She signed it “L,” for Luina, Holmes and Frankfurter’s nickname for her.
Shortly after Marion left for France, the U.S. Navy requested that daily newspapers stop publishing ship departures and arrivals. The Espagne zigzagged across the Atlantic Ocean to avoid lurking German submarines. Felix learned that Marion had arrived safely. She accompanied Fosdick to the Western Front to study the health and recreation provided by nonmilitary organizations including the Red Cross. They also traveled to Britain to study Naval training camp activities. Marion saw the wounded and maimed soldiers that her husband had heard about only secondhand. Frankfurter worried that he would never see her again: “This is a hello and a wonderment if you’re not ever coming back. Not ever. It’s good I have a 48 hours [a] day job.”
Frankfurter had been swamped since President Wilson and Secretary Baker acted on his suggestions and reorganized the War Department. Wilson named financier Bernard Baruch to head the War Industries Board to supervise production. The president agreed to establish a war cabinet. And he created the National War Labor Board, chaired by former President Taft representing industry and Kansas City lawyer Frank Walsh representing labor, to settle labor disputes. Frankfurter and other administration officials wanted a director general of labor to establish labor policy for wartime workers and lobbied for the perfect person in Brandeis. Wilson, however, refused to take Brandeis away from his judicial duties. Instead, the president created the War Labor Policies Board and named as its chair the 35-year-old Frankfurter.
The press praised Frankfurter’s appointment. A New York Times Magazine headline described him as “Uniting the Labor Army on a Single War Front.” Lippmann declared that Frankfurter knew more about labor policy than anyone except Brandeis. The New Republic reviewed his experience as a federal prosecutor, law professor, and labor mediator; then added that “his chief qualification is that he has been able to win his way into the esteem and confidence of the men with whom he is now associated, men preeminently representative of business, the professions and labor.”
Nominally reporting to Secretary of Labor Wilson as one of his assistant secretaries, Frankfurter aimed to prevent wartime labor shortages by coordinating the labor needs of the War Department, the U.S. Navy, the Department of Agriculture, the Shipping Board, the Railroad Administration, the War Industries Board, the Aircraft Board, and the Council of National Defense. Each of these departments would be represented on the War Labor Policies Board. “Since the outbreak of the war the United States government has come to be the greatest single employer of labor in the country,” Frankfurter said in his first public statement. “But it has had no operating policy with regard to the plants as a whole. Each one has been operated individually as a separate enterprise, quite apart from the others and, so far as the labor supply has been concerned, in actual competition with the others.”
The War Labor Policies Board allowed Frankfurter to use the federal administrative state to protect child labor, establish minimum wages, and limit industrial workers to eight-hour days. Using his authority to standardize wartime hiring practices, he implemented many of these ideas through new regulations and policies and circumvented reactionary Supreme Court decisions.
On June 3, the Court struck down the 1916 Keating-Owen Child Labor Act, which prohibited the interstate shipment of goods made by children under fourteen and by children between fourteen and sixteen who had worked more than eight hours a day, overnight, or more than six days a week. Roland Dagenhart, who worked in a Charlotte, North Carolina, cotton mill with his sons, Reuben, fourteen, and John, twelve, challenged the law on their behalf—and at the instigation of the company that owned the mill. In a 5–4 decision in Hammer v. Dagenhart, the Court agreed with the Dagenharts that the law exceeded Congress’s power to regulate interstate commerce and infringed on the power of the states because manufacturing was a purely local activity. And, unlike federal bans on the interstate shipment of harmful goods, the goods themselves were harmless.
At Brandeis’s urging, Holmes wrote a dissent on behalf of four justices and declared it impossible to distinguish between federal laws banning the interstate sale of alcohol, production of oleomargarine, and the transportation of lottery tickets—all found to be constitutional—and a federal law banning the transportation of goods made by child labor. Holmes also recognized the collective-action problem of relying on the states to regulate child labor: “The national welfare as understood by Congress may require a different attitude within its sphere from that of some self-seeking State. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command.”
Within six weeks of the Court’s decision, Frankfurter and the War Labor Policies Board adopted a resolution on July 12 inserting the same prohibition of child labor in all government contracts. The child labor ban was one of many provisions the board drafted and implemented to create fair labor standards for all war industry employees. The representatives from the other agencies on the board signed off on the new contractual provisions.
To assist him on the board, Frankfurter relied on his indispensable network from Harvard Law School and the House of Truth. Max Lowenthal served as his full-time assistant. His law school roommate Sam Rosensohn drafted pro-labor contractual language. Two of Valentine’s friends, former New Hampshire governor Robert Bass and Boston lawyer John Palfrey, represented the Shipping Board. Frankfurter’s former research assistant, Herbert B. Ehrmann, assisted them.
During board meetings, the most interesting person Frankfurter worked with was Assistant Secretary of the Navy Franklin Roosevelt. They were born the same year—Roosevelt on January 30, 1882, in Hyde Park, New York, and Frankfurter on November 15 in Vienna, Austria. They knew each other as young lawyers entering Wall Street law practice. During several lunches or dinners at the Harvard Club in 1906 and 1907, Frankfurter thought Roosevelt was a “friendly fellow.” Six years later when Frankfurter stayed in the Wilson administration to help Secretary of War Garrison with water-power legislation and Roosevelt was named assistant secretary of the navy, they worked on the same floor of the State, War, and Navy Building (the Executive Office Building) and often said hello to each other. Thus, they were already on a first-name basis when Roosevelt joined the board as the naval representative.
Tall and slender with a long, thin face, deep-set eyes, prominent chin, and full head of dark hair, Roosevelt cut a dashing figure. The 6'2" fifth cousin of Theodore and the 5'5" Frankfurter made an odd but effective pair. They respected each other’s abilities and believed in using the power of federal administrative agencies to make labor policy. Roosevelt attended only three of the board’s meetings but made a lasting impression. Frankfurter and Roosevelt began discussing labor policy almost daily by phone. In October 1918, after Franklin had brought Felix home for lunch, Franklin’s wife, Eleanor, described Felix to her mother-in-law: “An interesting little man but very Jew.”
The Roosevelts rented a mansion a few blocks from 1727 Nineteenth Street. The House of Truth was a lively source of administration gossip. Major Édouard Réquin of the French High Commission to the United States laid out maps on the dining room table and explained the fighting on the Western Front. Another prominent insider, Bernard Baruch of the War Industries Board, also dined there. Yet Roosevelt and his wife never attended one of the house’s dinner parties. At the time, Roosevelt was having an affair with Eleanor’s social secretary, Lucy Mercer. Eleanor learned about the affair in September 1918 after unpacking her husband’s suitcase upon his return from Britain with a case of double pneumonia. She vowed to divorce him unless he ended the affair; he stopped seeing Lucy Mercer—for the time being.
Frankfurter was keeping a romantic secret of his own, his engagement to Marion Denman. On July 12, Marion left Brest, France, on the USS Von Steuben and arrived in New York City nine days later. Her sister Helen greeted her at the gangplank. The first words out of Marion’s mouth were: “You know I am going to marry Felix.” Felix and Marion did not tell another soul for a year. Eight weeks in Europe had taken its toll on Marion’s physical and mental health. In 1918, an influenza pandemic swept a world at war. Marion, who had been in contact with soldiers in Europe, felt her health begin to fail. A chest X-ray revealed an old lung infection but no signs of flu or tuberculosis. She recovered at her parents’ home in Springfield, Massachusetts, drinking a quart of milk a day, napping, and taking long walks.
Marion’s intelligence, especially her research and writing ability, was never in doubt. She returned to Washington to finish her report on women workers at military camps. She was no mere administrative assistant to her boss, Raymond Fosdick. He valued her work and wanted her report on women workers to get “wide publicity.” For the next two years, after she left Washington, she remained on the War Department payroll and wrote a history of the Commission on Training Camp Activities. It was the last meaningful employment of her life. She became completely invested in the aspirations and social world of her secret fiancé.
As chair of the War Labor Policies Board, Frankfurter fought for one policy goal above all others—the eight-hour workday. He had included it in the President’s Mediation Commission report. The issue had been a rallying cry during the 1916 presidential campaign, with Wilson in favor and Hughes opposed. When the United States entered the war, Wilson issued an executive order suspending the eight-hour day for government and government-related workers in favor of a basic eight-hour day—eight hours plus time and a half for overtime pay. Different agencies and different factories, citing exceptions in prior laws, adopted different policies.
With broad powers during wartime, Frankfurter was determined to get war-related industries to adopt a basic eight-hour day. On June 28, the board adopted a resolution inserting a basic eight-hour day provision into all government contracts, vowing to enforce the provision where the law permitted, and attempting to extend its enforcement to private industry through conference and mutual agreement.
The board’s basic eight-hour-day resolution ruffled the feathers of the co-chairs of the National War Labor Board charged with mediating labor disputes, former president William Howard Taft and Frank Walsh. They believed that the War Labor Policies Board was usurping their authority and rejected invitations to sit on Frankfurter’s board. During one of his board’s early executive sessions, Taft said: “Mr. Frankfurter is like a good Chancellor, he wants to amplify his jurisdiction and he is very anxious to be able to say that this Board is under him.” Taft and Walsh rejected the notion that they were bound by Frankfurter’s resolutions. Recalling Frankfurter’s tortured service in his administration while supporting Roosevelt, Taft resorted to personal attacks: “My only experience with the gentleman whom we have been discussing from what I have heard is that if we just keep away he will tie himself up. There is no trouble about that.”
For his part, Frankfurter was diplomatic with Taft and Walsh in his correspondence and during meetings. He tried to mollify their concerns about inserting the basic eight-hour-day provision into government Readjustment Boards. Taft was opposed to the provision because it went too far; Walsh was opposed because it did not go far enough toward a true eight-hour day (without additional hours of paid overtime). Frankfurter played them against each other. “I did a nifty job with Walsh today,” he wrote, “by getting the big fat Taft boy (who is dull & honest so that Walsh usually ‘plays’ him but today I was around &—it was fun.) on my side.” Taft and Walsh challenged Frankfurter to name a single private industry that had voluntarily adopted the basic eight-hour day.
Unbeknownst to Taft and Walsh, Frankfurter had been engaging for months with the leading private sector opponent of the basic eight-hour day, U.S. Steel chairman Elbert Gary. Even with his company earning record profits during the war, Gary opposed the basic eight-hour day because he feared it would become standard practice. At the suggestion of Gary’s partner Charles M. Schwab of the U.S. Shipping Board, Frankfurter invited Gary to assemble a group of industry experts to discuss the issue. Ten days later, Gary replied that he would put a committee together but only if Frankfurter came to Gary’s office in New York City. Frankfurter refused and suggested dates for Gary to come to Washington “to discuss our common problem.” He kept following up with the steel magnate for months but received no response. Finally, on September 17, he wired Gary about the need for a meeting with no response. Two days later, he threatened to make their correspondence public.
