Democratic Justice, page 2
Finally, Frankfurter played a major role in the creation of the liberal establishment. During the twentieth century, he mentored a who’s who of American liberals in law and politics. Decades before conservatives created the Federalist Society, liberals had Frankfurter. He constructed a liberal legal and political network while working in government, teaching at Harvard Law School, and writing fifteen to twenty letters a day. His extroverted personality, inexhaustible opinions and ideas, and enormous gift for friendship gained him access to the corridors of political power. He knew almost every president from Theodore Roosevelt to Lyndon Johnson; he worked in and out of government to advance Theodore Roosevelt’s New Nationalism, Woodrow Wilson’s New Freedom, and Franklin Roosevelt’s New Deal.
More than a skilled government lawyer, influential Harvard law professor, or scholarly Supreme Court justice, Frankfurter made his greatest contribution to twentieth century America’s liberal democracy as a talent scout. During the 1910s, he befriended aspiring lawyers, journalists, and government officials at his Dupont Circle political salon named the House of Truth. As a Harvard law professor for twenty-five years, he preached the gospel of public service. He selected top students as law clerks for judges including Holmes, Brandeis, Benjamin Cardozo, and Learned Hand and placed scores of students in government posts. As a justice, he mentored an impressive array of law clerks who served in every presidential administration from Franklin Roosevelt to Jimmy Carter. Kennedy’s administration alone included ten former Frankfurter clerks.
Indeed, Frankfurter’s meeting with President Kennedy never would have happened without his role in creating the liberal establishment: the New Deal connection with Joe Kennedy, Sr.; the recommendation to send Joe Jr. and Jack to study with Harold Laski; the discussion with McGeorge Bundy, who co-authored the memoirs of Frankfurter’s mentor Henry Stimson and whose father, Harvey Bundy, clerked for Holmes and lived at the House of Truth; the encouragement of Phil Graham, a Frankfurter clerk and influential member of the Georgetown set; and the assistance of Dean Acheson, another Georgetown neighbor and former student. And Marion Frankfurter, before she was an invalid who frustrated her husband’s friends, charmed politicians, judges, journalists, academics, and British intellectuals with her literary taste and caustic New England wit. The Achesons, Bundys, and Grahams represented an influential part of the liberal establishment that Frankfurter helped construct and which was his most enduring legacy.
This is the story of an Austrian Jewish immigrant who at age eleven arrived in the United States speaking not a word of English, who by age twenty-six befriended former president Theodore Roosevelt, and who by age fifty was one of Franklin Roosevelt’s most trusted advisers. It is the story of Frankfurter’s rapid rise in early twentieth century American law and politics and of how a liberal lawyer was wrongly dismissed by critics as a conservative justice. It is a story about the timely importance of his inherently liberal ideas regarding the limited role of the judiciary in our democracy and the obligation of courts to protect minority rights. And it is a story about how an influential lawyer used his gift for friendship, eye for talent, and passion for public service to create the liberal establishment. Above all, it is a story about a justice who believed in democracy.
CHAPTER 1
Miss Hogan
To hear Felix Frankfurter tell it, every president he advised from Theodore Roosevelt to Lyndon Johnson, every Harvard law student he nudged into public service, and every Supreme Court opinion he wrote would not have been possible without the help of his first teacher at Public School 25, Miss Annie E. Hogan.
The no-nonsense, 54-year-old Irish American had been teaching in the New York City school system for more than twenty-five years in September 1894 when 11-year-old Felix walked into her primary school classroom in a “daze.” A month earlier, on August 9, he had arrived in New York Harbor on the steamship Marsala with his mother and four siblings. He could not speak a word of English and had never heard one spoken. Miss Hogan threatened the other children in Frankfurter’s class with corporal punishment if they spoke to him in his native German. Her reputation for hitting disobedient students preceded her. No one uttered a word to Frankfurter in anything but English. He was grateful to Miss Hogan for the rest of his life.
Frankfurter relished telling the Miss Hogan story. He portrayed his life as beginning at age eleven in her classroom. P.S. 25 was his ticket to the American dream. Yet Frankfurter’s origin story obscured the first eleven years of his life in Vienna, Austria, and how his parents, siblings, and other relatives contributed to one of the most rapid rises of any immigrant in American history.
BEFORE HE SET FOOT on American soil, Frankfurter had the good fortune to be born and raised in one of the cultural capitals of the world—Vienna, Austria. During the reign of Emperor Franz Joseph from 1848 to 1916, Jewish artists, actors, musicians, writers, and intellectuals thrived in Viennese cultural and intellectual life. Men frequented cafés, drank coffee, read newspapers from all over the world, and discussed art, literature, and music. Vienna produced the psychology of Sigmund Freud, the art of Gustav Klimt, and the music of Fritz Kreisler, Gustav Mahler, and Arnold Schoenberg. “There is hardly a city in Europe,” Viennese Jewish writer Stefan Zweig wrote, “where the drive towards cultural ideals was as passionate as it was in Vienna.”
Frankfurter’s family was one of many lower-middle-class Jewish families who started their lives elsewhere in the Austro-Hungarian Empire; the successful ones migrated to Vienna. His mother, Emma, was born in Uhersky Ostroh, Moravia, about eighty-eight miles north of Vienna on the Moravia River, where her father and grandfather were prominent figures in the Jewish community. Frankfurter’s father, Leopold, was born in Pressburg, Hungary (today Bratislava, Slovakia), nearly fifty miles east of Vienna on the Danube River. Leopold’s mother, Lotte, died twenty-one days after giving birth to him. Leopold’s father, Emanuel, remarried, moving his growing family in 1859 to Vienna and working for the Israelitische Kultusgemeinde (IKG), the city’s Jewish community organization.
Frankfurter’s father, Leopold, was the family’s black sheep. He was rumored to have dropped out of rabbinical school but more likely had abandoned his religious and academic education at the neighborhood yeshiva. He married Frankfurter’s mother, Emma, and started a family. Leopold eked out a living as a traveling salesman; Emma supplemented the family’s income by working at a convenience store. Like many Jewish immigrants, the Frankfurters lived in Vienna’s second district, the Leopoldstadt. Felix was born in an apartment at 20 Grosse Mohrengasse on November 15, 1882. He was the third of four brothers; Otto was born in 1879, Siegfried (Fred) in 1880, and Paul in 1884.
Frankfurter’s living situation changed when his father, struggling financially, moved the family to Budapest. Felix’s sister, Ella, was born there in October 1892. Felix was miserable attending public school in Budapest and speaking Hungarian. His father was no more financially successful in Budapest than in Vienna and sought opportunities elsewhere; the rest of the family returned to Vienna to live with their most successful relative.
For two years, Felix lived in Vienna’s more upscale ninth district with his father’s half-brother, Salomon. A librarian and linguist at the University of Vienna, Salomon Frankfurter had studied classical and German philology in Vienna and at the University of Berlin and, for a time, had enrolled in the Orthodox Rabbinical Seminary in Berlin before pursuing an academic life. In 1883, he received his doctorate from the University of Vienna for a dissertation on the collective biographies of Roman emperors, “Scriptores Historiae Augustae.” He began his career at the University of Vienna library as a volunteer and by 1884 was a staff member who lectured on archaeology, education, and Judaism.
Frankfurter revered his balding, bespectacled uncle, describing him as an “oppressively learned man.” Salomon once punished young Felix by putting him in the bathtub. From his uncle, Felix learned to appreciate the cultured world of an academic and “his high standard of scholarship as well as his liberal outlook on life.” At age ten, Felix had finished elementary school and was eligible to study at a Gymnasium. The path to a university education, a Gymnasium required eight years of Latin and five years of Greek. Strict, hierarchical, and joyless, the schools produced a generation of promising artists, writers, musicians, and other intellectuals striving for cultural relevancy. Many of them were Jewish. From Vienna, Felix gained a lifelong affinity for artists, musicians, and actors. He followed an intellectual path blazed by his uncle. They forged a “deep” bond that survived Felix and his family’s move to the United States.
LEOPOLD FRANKFURTER DREAMED OF a better life. He had failed to establish himself as a traveling salesman in Vienna or Budapest. His father, Emanuel, had died of heart failure in June 1891 at age 77. Nearly two years later, 39-year-old Leopold set sail from Liverpool, England, with five dollars to his name. His steamship, Indiana, landed in Philadelphia; he stayed with relatives in New York City and fell in love with America after attending the Chicago World’s Fair. After his first day at the fair, he knew he was not returning to Europe. “Children are free and stand on two legs here,” he wrote his family. “They are not cannon fodder.”
He soon sent for his family. On July 26, 1894, Felix left Hamburg, Germany, with his mother and four siblings on the steamship Marsala. The Scottish-made ship, only 320 feet long and about 36 feet wide, carried 120 passengers from Russia, Germany, Hungary, and Austria. Felix and his family stayed belowdecks in steerage, the cheapest berths in the ship. A day into the journey, they sailed past the white cliffs of Dover, England. Fourteen days after they left Europe, they passed the Statue of Liberty and arrived at New York Harbor at 1:00 p.m. It was a perfect summer day—fair skies, northerly winds, and temperatures in the mid-to-upper 70s.
After being processed at Ellis Island, Felix and his family reunited with Leopold and settled into an apartment at 99 East Seventh Street in the East Village. It was a thriving German neighborhood with Italian and Chinese immigrants living nearby. A few blocks away on the Lower East Side, Yiddish-speaking Eastern European Jewish immigrants crowded into tenement houses. As German-speaking Jews, however, Frankfurter and his family were better off, sociologically and geographically, than their Russian and Eastern European Jewish counterparts. Frankfurter walked around his German-immigrant neighborhood and “breathed in the sense that this was the America one had heard about, the land of freedom, the land of opportunity.”
Even with a year’s head start and his family ensconced in a nice working-class neighborhood, Leopold Frankfurter had not figured out how to earn a living. He was a philosopher whose dreams of social justice did not match the realities of everyday life. City directories listed him as a peddler, drygoods salesman, agent, and merchant. At bottom, he was the same hapless salesman he had been in Europe. Yet it was hard to tell that Leopold struggled financially. The happy-go-lucky businessman was always whistling classical music as he worked and inviting people home to dinner, sometimes as many as ten at a time. Felix inherited his father’s whistling, extroverted personality, gift of friendship, and carefree attitude about money.
Felix’s mother took charge of her family’s finances. Emma was the one adding water to the soup or slicing the meat thinner to accommodate her husband’s surprise dinner guests. She sent her two oldest children, Otto and Fred, to work to supplement the family’s income. Felix was Emma’s pet. He helped her pinch pennies by scouring the neighborhood for bargains. From his mother, he shared the same loyalty to friends, strong ethical impulses, and intense convictions. “Anybody whom I don’t like,” she said, “God should help him.” Emma gave her son a strong sense of self and repeatedly told him: “Hold yourself dear!”
Of all the advice and advantages they gave him with his new life in New York City, Frankfurter insisted “the greatest debt I owe my parents is that they left me alone almost completely.” He devoted much of his spare time to reading. He read books while brushing his teeth, combing his hair, washing his hands, and walking the streets of New York. He often stopped by the Ottendorfer branch of the New York Public Library at 135 Second Avenue, the city’s first free public library, less than two blocks from his family’s apartment, to browse the newest arrivals.
He credited his love of American and British newspapers to another neighborhood institution, the reading room at Cooper Union. Warm, well-lit, and open to everyone, the reading room was stocked with newspapers from across the country and overseas. Four to five days a week after school, he headed to the third-floor reading room to devour the daily newspapers. He read them so fast and so thoroughly that he could tell by the typeface whether it was the Emporia Gazette or the Louisville Courier. And from eight to ten on Friday nights, he sat in one of the red leather chairs in Cooper Union’s great hall and listened to speakers discuss current events as part of the evening forum series. He later described himself as a “two-fifths” graduate of the Cooper Union reading room and forum series.
Cooper Union’s speaker series stimulated his love of American politics. In 1896, he was captivated by the presidential campaign of Democratic nominee William Jennings Bryan. He argued with his father, a McKinley man, about Bryan as the spokesman for midwestern farmers against Wall Street financiers. Frankfurter saw Bryan as standing up for the little guy. On September 23, Frankfurter skipped school, took the ferry to Hoboken, New Jersey, and wiggled his way close to the train platform to greet Bryan. The thirteen-year-old was beaming as he rode the ferry to Brooklyn with his first political hero.
On June 29, 1897, nearly three years after he arrived in the United States, Frankfurter graduated from the “College Class” of P.S. 25 and was the third chosen speaker. He recited a speech by John Adams. He was steeped in his new country’s language, politics, and history. Miss Hogan and the public school system had turned him into an American.
The big decision in the Frankfurter household was not whether he would continue his education but where. There were no New York City public high schools in those days. He scored well on a qualifying examination for one of ten full scholarships endowed by Joseph Pulitzer to the progressive, private Horace Mann School. The school’s principal met with Frankfurter and offered him a half scholarship for one year with the prospect of a full one if he made good. Horace Mann was attractive because it fed its students into Columbia and its law school. But the $100 half-tuition was too much for Frankfurter’s family, even with two older brothers working full-time. Fortunately, Frankfurter was one of seven P.S. 25 students who passed the citywide examination to the combined five-year high school and college program at the City College of New York.
For New York City’s immigrants, City College was a free ticket to higher education and the possibility of entering the professional class. Established in 1847 by the state legislature as a “Free Academy,” it was designed to make higher education accessible to any city resident regardless of income or social standing. The city’s immigrants, many of them Jewish, may have arrived in this country speaking another language but flocked to CCNY because, like Frankfurter, they spoke “the universal language of human aspiration.”
In a small, ugly red Gothic building at Twenty-Third Street and Lexington Avenue, Frankfurter and other students in CCNY’s five-year program chose between the classical or scientific curriculum. There were no electives. As part of the classical curriculum, Frankfurter took several years of Latin and Greek and classes on logic and philosophy. The students attended class four to five hours each day and, in a system modeled on West Point, received demerits for tardiness and other infractions.
Frankfurter’s classmates, other highly intelligent strivers, broadened his intellectual horizons. A radical Russian Jewish classmate, Isador Goetz, introduced him to radical thinkers at East Side coffee houses. A heady City College student two years his senior, Morris Raphael Cohen, became a lifelong friend. A Russian Jewish immigrant whose family arrived from Minsk when he was twelve, Cohen was interested in philosophy; Frankfurter gravitated to history.
During Frankfurter’s sophomore year at City College, his family moved uptown to a rented apartment at 112 East Seventy-First Street. He often studied nearby in the quiet reading room of the Lenox Library on Fifth Avenue between Seventieth and Seventy-First Streets, the future site of the Frick museum, and liked to browse the Lenox Library shelves. He could read Hebrew and had a bar mitzvah at age thirteen. A few years later, he abandoned organized religion when, feeling like a hypocrite as a nonbeliever at Yom Kippur services, he walked out of synagogue and never returned. He showed no interest in sports but liked to play craps in the street. He rode the Third Avenue Elevated train to school and bounced as he walked. He wore his hair long and parted down the middle and, in formal pictures, was partial to bow ties.
During extracurricular activities, Frankfurter revealed his gifts for debate and legal argument. As a sophomore, he joined one of the school’s two literary societies, Clionia, which twice a year debated its rival literary society, Phrenocosmia. The year-end debate between the two societies was the highlight of the school year and the subject of a special issue of the school newspaper, the College Mercury. Many of his classmates were on hand the evening of May 3, 1901, at the Lenox Lyceum as Frankfurter, a junior, joined his Clionia teammates, both seniors, to argue the negative of a pending constitutional question about the territorial acquisitions after the Spanish-American War of 1898: “Resolved: That the Constitution should extend to territory newly acquired by the United States, as the immediate and necessary incident of the acquirement.” Frankfurter opened the debate for his team. The College Mercury described him as “vehement; he is evidently secure in the strength of his side and thinks the audience rather stupid for requiring an explanation of obvious points; but really he need not get angry, for when the hammer sounds the audience is indulgently inclined toward his side of the question.” His classmate Nathaniel Phillips never forgot “his stunning performance. He looked so boyish, his neatness was striking. He spoke such sense. It was as though no opposition could have any significance. He was extremely courteous in manner, but he pierced the arguments of his opponents with a deftness and finality that was devastating.” Accounts differ whether Frankfurter’s team won or lost the debate; a few weeks later, the U.S. Supreme Court agreed with his side.
