Democratic Justice, page 18
At the request of federal judge George W. Anderson, Frankfurter and Harvard law colleague Zechariah Chafee appeared as “friends of the court” in the April 1920 case of twenty radical immigrants rounded up in New England during the Palmer raids and scheduled for deportation for alleged membership in the Communist Party or Communist Labor Party. During fifteen days of testimony and 1600 pages of factual investigation, Frankfurter and Chafee revealed numerous flaws in the Justice Department’s pre-arrest investigation of the suspected radicals. In his opinion, Judge Anderson found a pattern of unconstitutional and illegal conduct: warrantless searches and seizures, horrifying conditions of confinement, and hearings with little or no representation before Justice Department officials. He refused to deport the immigrants and released all but four of them from custody for “lack of due process.” The federal government appealed only four of the cases and succeeded in reversing only a small part of Anderson’s ruling that the immigrants could not be deported for Communist Party membership. Frankfurter and Chafee aided Anderson in saving sixteen immigrants from deportation, then took their findings public.
In a report by the National Popular Government League, Frankfurter, Chafee, and Pound joined a dozen prominent lawyers in detailing the attorney general’s practice of warrantless searches, seizures, and arrests; no access to defense counsel in prison; the infiltration of radical organizations with Justice Department spies; and the publication of propaganda in newspapers and magazines. The Justice Department’s “illegal acts,” the report concluded, “have caused widespread suffering and unrest, have struck at the foundation of American free institutions, and have brought the name of our country into disrepute.”
Attorney General Palmer rebuked Frankfurter and Chafee. Before the House Rules Committee on June 2, 1920, Palmer testified that he could not reconcile Frankfurter’s representation of Communist Party members with upholding the Constitution. In response, Frankfurter and Chafee explained that they had appeared at Judge Anderson’s request and that the Constitution protected the rights of defendants by providing for the writ of habeas corpus and due process. Palmer replied that Frankfurter and Chafee’s allegations of misconduct were false and demanded a retraction. Frankfurter and Chafee informed Palmer and the House Rules Committee chairman of their willingness to substantiate their allegations under oath. Frankfurter also embarrassed the attorney general in the press. He chided Palmer for insinuating that the central issue in Judge Anderson’s opinion, the Justice Department’s flagrant violations of due process during the Palmer raids, had been appealed when it had not.
Palmer was the least of Frankfurter’s concerns compared to the machination of the man who had engineered the raids, J. Edgar Hoover. On May 20, Hoover ordered an investigation of Frankfurter and Chafee’s activities in Anderson’s courtroom at the “earliest practicable date.” Hoover opened a secret file on Frankfurter and monitored his travel to Europe for an international Zionist conference. A June 15 memorandum to Hoover described Frankfurter as a “confirmed radical,” and “one of the most active elements in the stirring up and inciting to disturbances in [the] country, particularly among the foreigners.” Hoover, who believed that Frankfurter was active in the Bolshevik movement, reputedly deemed him “the most dangerous man in the United States.”
Harvard’s reactionaries took aim at Frankfurter’s outspoken friends. Harold Laski was a prime target because of his support for the Boston police strike. Alumni, faculty, and students excoriated the political science instructor as a Bolshevist. The Board of Overseers interrogated him at the Harvard Club yet declined to take further action. The final straw was an issue of the Harvard Lampoon humiliating him about his physical appearance, Jewishness, and Socialist politics. President Lowell privately defended Laski yet informed him he would never be promoted beyond instructor. Frankfurter’s dreams of Laski joining him and Pound on the law faculty were dead. Laski accepted a full professorship in political science at the London School of Economics.
Frankfurter’s enemies retaliated against him by withholding the Byrne professorship. Thomas Nelson Perkins led the opposition, alleging that Frankfurter had “no character” and was a “poor teacher.” Pound and Mack fought for him, and Pound again asked Brandeis to reach out to a concerned Holmes. Frankfurter told Holmes not to worry about Perkins or the professorship. It did not bother him that his unfilled chair was the talk of the faculty. In October 1920, Frankfurter finally received the Byrne professorship.
During the 1920–1921 school year, the opposition pounced when Pound, who had received his honorary degree in June 1920, took a sabbatical. Aided and abetted by the Justice Department and backed by twenty Harvard alumni, New York lawyer Austen G. Fox filed formal charges with the university against Frankfurter, Chafee, and Pound. The alumni sought to oust Frankfurter and Chafee for their role in freeing radical immigrants in Boston and Frankfurter, Chafee, and Pound for criticizing the Justice Department in the National Popular Government League report. Fox pointed to alleged factual errors in a clemency petition the professors had signed on behalf of antiwar activist Jacob Abrams as well as factual errors in a Harvard Law Review article Chafee had published about Abrams’s trial. Only the charges about Chafee’s law review article stuck.
The Board of Overseers allowed Chafee’s case to go before a May 22, 1921, inquiry, the “Trial at the Harvard Club.” Attending the Sunday trial, Frankfurter described Chafee as “the very epitome of naïve & complete honesty” and Fox as “the fit instrument of ignorant intolerance.” Chafee’s credentials were impeccable. The scion of a prominent Rhode Island family, he had finished second in his Harvard Law School class and practiced law in Rhode Island before joining the law faculty. He had criticized Holmes’s opinions in Schenck, Frohwerk, and Debs and discussed the opinions with the justice during the summer of 1919. In 1920, he wrote a groundbreaking book on free speech. Chafee’s defense counsel was none other than President Lowell. Five years earlier, Fox and Lowell had led the opposition to Brandeis’s nomination. No fan of Lowell’s, Frankfurter nonetheless described the Harvard president as an “avowed champion” of Chafee’s and admired Lowell’s cross-examination of Fox and closing argument. It was the last time Frankfurter and Lowell found themselves on the same side of any issue. A panel of state and federal judges nearly voted to dismiss Chafee from the faculty. Chafee won by a single vote, that of Judge Cardozo. An embarrassed Lowell kept the proceedings secret and pressured Chafee to publish five pages of corrections and qualifications about his Harvard Law Review article on the Abrams case. Everyone knew that the dispute was not really about Chafee. The Nation, praising the final decision, insisted that Chafee was “only the first target” and that the “reaction’s real scheme” was to drive Frankfurter and Pound from the school.
Frankfurter had survived the conservative opposition to his Mooney and Bisbee reports, his participation in the Faneuil Hall meeting about recognizing Russia, his defense of radical immigrants in Boston about to be deported, and his exposure of the Justice Department’s unconstitutional conduct during the Palmer raids. Palmer and Hoover did not scare him. The withholding of the Byrne professorship and the trial at the Harvard Club did not faze him. As much as conservative alumni and President Lowell disliked Frankfurter, the law faculty admired him, top students gravitated to him, and Holmes and Brandeis believed in him.
Harvard’s dangerous man was not going anywhere.
CHAPTER 10
The Possible Gain Isn’t Worth the Cost
On February 14, 1921, the Court of Appeals of the District of Columbia courtroom was filled with Frankfurter’s friends and fellow social reformers: Justice Brandeis’s wife, Alice, and daughter Elizabeth, who was assistant secretary to the District of Columbia Minimum Wage Board; Elizabeth Glendower Evans of the Massachusetts Minimum Wage Commission; Senator Robert M. La Follette, Sr.’s, wife, Belle; Father John A. Ryan of Catholic University; and journalist Norman Hapgood. They were there to watch Frankfurter, representing the National Consumers’ League, defend a District of Columbia minimum-wage law for women against charges that it would lead the country into “the morass of Bolshevism.”
Minimum-wage laws, Frankfurter told the court, had been adopted by “such soviet countries as Australia, Canada and England; approved by such adherents of the Soviets as Lord Milner and Winston Churchill and Mr. Balfour; introduced in such Soviet states of our union as Arizona, Arkansas, California, Colorado, Kansas, Massachusetts, Minnesota, Oregon, Utah, Washington, and Wisconsin and upheld by the supreme courts of eight of those Bolshevik states.”
One of the three federal appeals court judges was not mollified or amused. Justice Josiah Van Orsdel asked what the legislature would do next. During the war, Van Orsdel asserted, wages increased but efficiency decreased. “With all possible respect,” Frankfurter replied, “it is a very dangerous generalization.” Frankfurter encouraged him and the other two judges “to decide modern industrial cases” on the basis of knowledge of “modern industrial facts.”
Frankfurter’s argument was part of a multiyear national legal campaign to establish the constitutionality of minimum-wage laws. In 1917, the Supreme Court had deadlocked, 4–4, after he defended Oregon’s minimum-wage law for women. Children’s Hospital and an elevator operator at the Congress Hall Hotel challenged the D.C. law after the city’s Minimum Wage Board decreed that women and girls, except nurses in training, could earn no less than $16.50 in a week or 34½ cents an hour. Frankfurter knew as he argued the D.C. case that the constitutionality of all the states’ minimum-wage laws hung in the balance.
Less than a month after Frankfurter’s argument before the court of appeals, Warren G. Harding was sworn in as the nation’s twenty-eighth president. Frankfurter mocked Harding’s inauguration speech as “the end of the limit for mashed-potatoe [sic] language.” He was equally unenthusiastic about Harding’s Democratic opponent, fellow Ohioan James M. Cox. Despite Cox’s inclusion of Assistant Secretary of the Navy Franklin D. Roosevelt on the vice-presidential ticket, Frankfurter voted for imprisoned Socialist Party leader Eugene V. Debs in protest. Voting for Harding was “out of the question.” The U.S. senator never left his front porch in Marion, Ohio, allowed others to campaign for him, and won in a landslide by promising a war-weary country a return to normalcy.
A return to normalcy meant a return to a more conservative Supreme Court hostile to organized labor. In January 1921, the Court enjoined the machinists’ union from urging other workers to boycott a printing press manufacturer, the Duplex Printing Company. The company was the only one of four U.S. printing press manufacturers that refused to recognize the union, to agree to an eight-hour day, and to a minimum wage and other fair labor standards. As a result, the union declared a strike and urged other sympathetic workers to boycott the company. The union argued that secondary boycotts were protected by the Clayton Act, which Congress had passed in 1914 to shield unions from antitrust lawsuits and labor injunctions. The Court, however, ignored the law’s purpose and instead relied on its poorly drafted language to enjoin the union’s secondary boycott. Brandeis, joined by Holmes and John Hessin Clarke, dissented. He accused the majority of failing to recognize the law as the culmination of a twenty-year fight against labor injunctions. In an unsigned New Republic editorial, Frankfurter blamed the Court for twisting the Clayton Act’s language prohibiting labor injunctions so as to make it meaningless. He blamed Samuel Gompers and the American Federation of Labor for not hiring competent counsel to draft the law. And he urged union officials and intellectuals to stop portraying the labor movement as a class struggle instead of emphasizing “its broad appeal to the liberal forces of the country.” Privately, Frankfurter conceded the law was poorly written yet criticized the Court for eviscerating labor’s Magna Carta and protecting the “established order.”
In the pages of the New Republic, the Harvard Law Review, and elsewhere, Frankfurter emerged as the Supreme Court’s leading critic. He was privy to the Court’s inner workings thanks to his relationships with Holmes and Brandeis. He attacked the Court by praising Holmes’s and Brandeis’s dissents and portraying them as liberal judicial heroes. He defended minimum-wage laws, made his case for and against judicial review, and railed against his bête noire—the Due Process Clause. The clause’s broad prohibition against depriving “any person of life, liberty, or property without due process of law,” he argued, gave the justices too much power to enforce their economic and social prejudices and to act like a super-legislature.
In unsigned New Republic editorials, Frankfurter criticized members of the Court for not invoking due process to protect freedom of speech and fair criminal trials. He ridiculed McReynolds, Day, and Pitney for dissenting from the Court’s decision declaring that Judge Kenesaw Mountain Landis, who had made anti-German comments, was too biased to preside over the Espionage Act trial of Representative Victor Berger, the first Socialist elected to Congress. At least Day and Pitney conceded that Landis’s comments had been intemperate. “Not so Mr. Justice McReynolds! . . .” Frankfurter wrote. “We leave Mr. Justice McReynolds to his pitiable isolation and to the judgment of his associates.” A month later, Frankfurter praised Holmes’s and Brandeis’s dissents from a decision upholding Postmaster General Albert Burleson’s revocation of second-class mailing privileges for Berger’s Socialist newspaper, the Milwaukee Leader, during the war. “Mr. Justice Holmes,” Frankfurter wrote, “with a few strokes of his pen brought down the house of cards of the majority opinion.”
The most disturbing case was Holmes’s 5–4 opinion narrowly upholding a temporary Washington, D.C., housing law. The law responded to a postwar housing shortage by allowing tenants to stay in their homes after their leases had expired. Four justices dissented, arguing that the law, though temporary, violated the Fifth and Fourteenth Amendments because it deprived landlords of their property. They rejected the majority’s contention that D.C. housing was a business affected with a public interest. For Frankfurter, the case illustrated the dangers of the Due Process Clause. He worried about the justices using it to privilege property and contract rights over basic human rights, to veto laws passed to help people who needed it most—like the D.C. minimum-wage law.
To Learned Hand, Frankfurter worried about what a more conservative Supreme Court could do in the name of liberty and property and questioned the need for judicial review. He believed “the price we pay for this judicial service is too great, the advantages too slim for the Cost.” The Due Process Clauses, Frankfurter argued, were so indefinite as to “leave too much play to policy, without the conscious recognition that it is policy.” He was so worked up about the Due Process Clause that he vowed to spend his summer in Hadlyme, Connecticut, writing a book about it. Events overtook his research project.
On June 6, a divided Court of Appeals of the District of Columbia upheld the minimum-wage law for women. Only the skeptical Justice Van Orsdel dissented. That same day, Jesse Adkins, the chair of the D.C. Minimum Wage Board, wrote Frankfurter to congratulate him; however, he spoke too soon. Behind the scenes, an unusual situation developed. The case was initially heard by two appellate justices and a trial judge filling in for Justice Charles Henry Robb, who had been ill. Robb, however, had recovered and injected himself into the case. Thus, the court’s summer recess left Frankfurter in the dark about his evanescent victory.
But then, on June 30, Frankfurter’s judicial nightmare came true.
ON MAY 21, Chief Justice Edward Douglass White, Jr., had died, a little more than ten years after then-President Taft had named him to the court’s center chair. On June 30, Harding announced White’s replacement: William Howard Taft. That summer, Frankfurter and Hand debated Taft’s merits and demerits. Hand argued that Taft had been a “professionally tip top” federal judge during nearly eight years on the Court of Appeals for the Sixth Circuit and pointed to his groundbreaking Addyston Pipe opinion, which held that not all restraints of trade, only unreasonable ones, violated the Sherman Antitrust Act. Frankfurter claimed the credit lay not with Taft but with the lawyer who had briefed and argued the case and with Taft’s able Sixth Circuit colleagues. Frankfurter could not overlook the lazy, indifferent president and jealous, naïve co-chair of the National War Labor Board who had allowed his pro-labor co-chair to steamroll him. It mattered little that the chief justiceship was Taft’s dream job, which was why as president he had named the aging White chief in the first place. He had been biding his time teaching at Yale Law School. Frankfurter ridiculed Taft’s reactionary views about constitutional law. The previous October, he had written an unsigned New Republic editorial belittling Taft for a Yale Review article criticizing Brandeis and Clarke for their supposedly “new school of constitutional construction” and for stoking fears of “Socialist raids upon property rights.” In Frankfurter’s mind, Taft was no more fit to teach constitutional law at Yale than he was to be president, much less chief justice.
An unsigned New Republic editorial likely written by Frankfurter excoriated liberals who abhorred Taft as president yet applauded his appointment as chief justice. He reminded them about Taft’s laziness as president and “submissiveness” on the National War Labor Board. He criticized Taft for failing to speak out against the unconstitutional Palmer raids as former justice Charles Evans Hughes and Senator Albert J. Beveridge had. Though he conceded that Taft was “a good judge,” he warned progressives not to conflate Taft’s “judicial competence” with “judicial greatness.” Unlike judges such as Benjamin Cardozo and Learned Hand, Taft had “contributed practically nothing to legal thought.”
The stakes of Taft’s appointment as chief justice were high. As illustrated by the Duplex Printing case, the Court was not merely interpreting the law but making social and economic policy. He predicted that Taft as chief justice would be as thin-skinned about criticism as he had been as president. Yet Frankfurter emphasized that “the only safeguard against the terrible powers vested in the Supreme Court lies in continuous, informed and responsible criticism of the work of the Court.” Whether in the New Republic, Harvard Law Review, or D.C. minimum-wage case, Frankfurter continued to lead the way.
