Democratic Justice, page 20
Frankfurter was opposed to invoking the Due Process Clause no matter how horrible or objectionable the law. In Meyer v. Nebraska, for example, McReynolds wrote for seven justices invalidating a Nebraska law that forbade the teaching of any foreign language in grade school. The law was the product of anti-German sentiment during the war; a teacher was convicted of teaching German in a Lutheran school. McReynolds declared the law violated the “liberty” of the teacher to teach and the liberty of parents to hire him to educate their children, expanding the definition of the “liberty” provision of the Due Process Clause beyond “freedom from bodily restraint.” Frankfurter insisted he would have voted with the Court’s dissenter, Holmes. “Of course, I regard such know-nothing legislation as uncivilized, but for the life of me I can’t see how it meets the condemnation of want of ‘due process’ unless we frankly recognize that the Supreme Court of the United States is the revisory legislative body,” Frankfurter wrote Hand. As James Bradley Thayer’s article taught him, Frankfurter believed that allowing the Supreme Court to invoke the Due Process Clause to strike down abhorrent state laws robbed legislators and voters of any incentive to invest in the democratic political process. “The more I think about this ‘due process’ business,” he wrote Hand, “the less I think of lodging that power in those nine gents at Washington.”
Reflecting on the Supreme Court decisions of the era, Frankfurter developed a prescient theory of limited judicial review. The Court, he conceded, played a critical role in establishing boundaries between the power of the federal government and that of the states. The Fourteenth Amendment, moreover, was necessary to protect free speech from abusive state laws. Yet, aside from dissents by Holmes and Brandeis, during free speech cases in the late 1910s and 1920s the Court “behaved like the mob.” Frankfurter understood the need to protect free speech, fair criminal trials, and racial and religious minorities. He suggested restricting the Fourteenth Amendment “to ‘unreasonable’ racial and religious discriminations & withdrawing from those Nine Holies the reviewing power over purely intra-state ‘social legislation.’ ”
Holmes showed Frankfurter and other liberals how the Fourteenth Amendment could be invoked to protect racial minorities. In February 1923, Holmes wrote a majority opinion for six justices in Moore v. Dempsey remanding the case of Frank Moore and four black sharecroppers on death row for the murder of a white railroad agent after the Elaine massacre in rural Philips County, Arkansas. During the “Red Summer” of 1919, an attempt to break up a sharecroppers’ union meeting led to gunfire, the railroad agent’s death, and days of racial violence; five whites and more than a hundred blacks had been killed and more than a hundred blacks had been arrested. Moore and his co-defendants were sentenced to death in mob-dominated sham trials. A lynch mob outside the courthouse ensured that the defendants would be convicted and executed. Other defendants were beaten and tortured into testifying against them. Court-appointed defense counsel was not permitted to meet with their clients before trial, did not call any witnesses, and did not request a delay or change of venue. The trial lasted forty-five minutes; the all-white jury deliberated for five. “[N]o juryman,” Holmes wrote, “could have voted for an acquittal and continued to live in Phillips County and if any prisoner by any chance had been acquitted by a jury he could not have escaped the mob.” Holmes distinguished Moore’s case from that of Leo Frank, the Jewish pencil factory superintendent, who for his own safety had not been allowed to attend his sentencing after being convicted of murdering fourteen-year-old Mary Phagan. If the criminal trial of Moore and his co-defendants had been so mob-dominated as to be a sham, Holmes argued, nothing could “prevent this Court from securing to the petitioners their constitutional rights.” As a result of Holmes’s opinion, the governor of Arkansas commuted the death sentences of Moore and his co-defendants to twelve years in prison. By 1925, the last of the men was released.
By promoting Holmes as a judicial icon, Frankfurter critiqued the Court. In June 1923, he published a Harvard Law Review article, “Twenty Years of Mr. Justice Holmes’ Constitutional Opinions.” He had been delaying its publication until after the Court decided Adkins. The Court, Frankfurter argued, invoked the vagueness of due process and equal protection to decide cases on the basis of the justices’ personal preferences. “Should such power, affecting the intimate life of Nation and States, be entrusted, ultimately, to five men?” he asked. In lieu of repealing the Due Process Clause, he urged a more vigilant process of selecting justices de-emphasizing whether they were liberal or conservative in favor of life experiences. Holmes, he argued, was the “great exception,” a philosopher who viewed the Constitution not as a revered document but a practical guide for governing the country. The other justices, he insisted, had a lot to learn from Holmes’s opinions from the past twenty years: “The Supreme Court, like all human institutions, must earn reverence through the test of truth. He has built himself into the structure of our national life. He has written himself into the slender volume of the literature of all times.” Time magazine, a new publication that employed Frankfurter’s former student Archibald MacLeish, highlighted the law review article as “Honor to Justice Holmes”; the New Republic recommended that it be “read not only by lawyers, who would presumably be technically interested in its contents, but by laymen to whom the traditional American system of law and government is a cherished inheritance.”
For his part, Frankfurter believed that the solution to the nation’s labor problems lay not with curbing the Court’s power through a constitutional amendment but with the state political process. At a minimum-wage conference on April 20, 1923, he argued for the continued enforcement of state and D.C. minimum-wage laws for children because they had not been challenged in Adkins. He suggested amending existing state minimum-wage laws from mandatory enforcement to enforcement by publicity like in Massachusetts. His goal was to establish a livable minimum wage without incurring the Court’s wrath: “We have got to be practical and fight inch by inch, while we do the larger thing.”
Frankfurter’s larger mission was to educate the public by commissioning studies to make the necessity and efficacy of minimum-wage laws incontrovertible and to prevent justices such as Sutherland from relying on their political, economic, and social prejudices. “The heart of the difficulty was that the Supreme Court assumed certain things to be facts which are not facts,” he told the people at the conference. He blamed the justices for having outdated pictures in their heads: “I am sure if you could get an intellectual X-ray of Sutherland and Pierce Butler’s minds and [Mc]Reynolds, you would find an [antiquated] notion of American society.”
After Adkins, Frankfurter never argued another Supreme Court case. He threw himself into politics and challenged the establishment at every turn—starting with the president of Harvard.
CHAPTER 11
The True Function of a “Liberal”
During the Harding-Coolidge years, Frankfurter challenged A. Lawrence Lowell and other establishment figures who trafficked in bigotry, trampled on academic freedom, or abridged civil liberties. He and other liberals found both major political parties unsatisfying. Instead, he carved out a space for liberalism by championing unpopular social and political causes, even if it meant offending friends or making enemies.
The fight with President Lowell started in the spring of 1922 when word leaked that he planned to institute a 15 percent quota on Harvard’s Jewish undergraduates. Anti-Semitism seemed to be everywhere. Henry Ford promoted Jewish conspiracy theories in his magazine, the Dearborn Independent; he also published thousands of copies of translations of The Protocols of the Elders of Zion, the forged anti-Semitic Russian tract about Jews taking over the world. In June, Frankfurter’s friend, journalist Norman Hapgood, began exposing Ford’s anti-Semitism in a series of articles for Hearst’s International, “The Inside Story of Henry Ford’s Jew Mania.” As Hapgood took on Ford, Frankfurter confronted Lowell.
There was no love lost between Frankfurter and Lowell. In 1916, Frankfurter and Lippmann had humiliated Lowell and other leaders of Old Boston who opposed Brandeis’s Supreme Court nomination, mocking their insularity in a New Republic editorial and garnering a Brandeis endorsement from Lowell’s beloved predecessor, Charles W. Eliot. Lowell resented Frankfurter’s public service in the War Department, the President’s Mediation Commission, and the War Labor Policies Board and suspected it was cover for Zionist activity. The Mooney and Bisbee reports, defense of radical immigrants rounded up during the Palmer raids, and public criticism of Attorney General Palmer angered Harvard alumni and irritated Lowell because of its “unfortunate effect upon the School.” Now that the war was over, Lowell advised Frankfurter to cease his outside public activities and to pay “his whole attention for a time to his work in the Law School.” Frankfurter, who continued to defend the District of Columbia minimum-wage law and to take on unpopular causes, ignored Lowell’s warnings.
The animus between Lowell and Frankfurter came to a head in June 1922 when the Harvard president left him, the law school’s first Jewish faculty member, off the committee to consider the Jewish quota issue. At first, Frankfurter sought answers about the snub by using Judge Mack, the first Jewish member of the school’s Board of Overseers, as an intermediary. Lowell informed Mack that Frankfurter was not on the committee because he lacked “the quality of solid judgment.” When Frankfurter heard rumors that Lowell considered his views on the quota issue “violent” and “extreme,” he confronted the president. Lowell defended his decision and denied Frankfurter’s allegation that he had stacked the committee of thirteen faculty members with three “safe Jews.” Frankfurter refused to let it go.
To take on Lowell, Frankfurter reached out to a prominent Jewish Harvard alumnus, Walter Lippmann. Lippmann’s star was on the rise. He had left the New Republic for the New York World editorial page. His 1922 book, Public Opinion, about how people make political decisions on the basis of the uninformed “pictures inside their heads” rather than through facts and evidence, had transformed him into a public intellectual. Frankfurter had praised the book and had invoked its ideas in analyzing the Supreme Court’s decision in the D.C. minimum-wage case. Lippmann, however, was more comfortable with praise than conflict. He was reluctant to acknowledge his privileged Upper East Side Jewish background or to support Jewish causes; he blamed rising anti-Semitism on “rich and vulgar” Jews. Frankfurter pleaded with Lippmann, as an influential Harvard graduate, to stand up for the school’s “most liberal traditions” against its president “who all his life has hated Jews.” He added: “Don’t dismiss this as my hysteria. I am not wont to ask you to go on crusades.” A flurry of follow-up letters failed to change Lippmann’s mind. Privately, Lippmann informed a faculty member of his support for a Jewish quota and argued that the state should set up a Jewish-led university for immigrants seeking admission to Harvard. Lippmann’s reluctance to join Frankfurter in his fight against Lowell was the first of several instances in which they found themselves on opposite sides—with Frankfurter challenging the conservative establishment and Lippmann defending it.
In April 1923, the committee ostensibly rejected Lowell’s quota on Jews as contrary to the school’s “policy of equal opportunity for all regardless of race and religion.” It was a Pyrrhic victory. In the interim, the school had begun asking admissions questions about an applicant’s race and color, where the applicant’s father was born, and whether the father had changed his name. The committee recommended emphasis on geographic diversity, which privileged applicants from the South and West over ones from cities in the Northeast (i.e., Jews). Frankfurter insisted he would have been fired from the law school if he had behaved as underhandedly as Lowell had and described the president as “an arrogant autocrat driven by a passion on this subject which he will not avow.” Lowell’s leadership, Frankfurter wrote Lippmann, “sickens my soul.”
Not content to take on Lowell over the Jewish quota, Frankfurter attacked the board of trustees of Amherst College in June 1923 for dismissing its innovative and beloved president, Alexander Meiklejohn. Amherst alumni did not take kindly to Meiklejohn’s curriculum changes and faculty hires or to his comment that he would hire a Bolshevik if the person “were a good teacher.” The trustees forced him to resign for alleged mismanagement of the school’s resources and messy personal finances. At graduation, thirteen students protested by declining to accept their diplomas; Meiklejohn’s valedictory address about the country’s need to think in democratic terms instead of about privilege and social standing made national headlines. Frankfurter declared Meiklejohn’s impact on Amherst “the most significant educational achievement in our times.”
Frankfurter’s attempt to interest Lippmann in Meiklejohn’s ouster resulted in another clash of personalities and viewpoints. After a two-day visit to Amherst’s campus, Lippmann wrote a New York World op-ed blaming Meiklejohn for privileging new faculty hires over old ones, refusing to consider campus politics like most college presidents, and losing the support of a majority of the faculty. Frankfurter criticized Lippmann for doing a “a reporter’s job” that was based on insufficient research rather than analyzing the situation like an opinion columnist. The thin-skinned Lippmann resented Frankfurter’s criticism and relentless stream of letters about Meiklejohn and cut off their discussion. Three months passed before Lippmann tried to put his irritation with Frankfurter behind him.
Lippmann’s former employer, the New Republic, also disappointed Frankfurter with its coverage of the Meiklejohn affair and its refusal to take an editorial stance. He challenged the magazine to live up to its reputation as “a journal committed to the espousal of the liberal faith” and to examine “the factors that brought about such a tragedy in American liberalism [that] would seem to be nothing less than a primary duty.” At a meeting with New Republic editors, Frankfurter urged them to seek an explanation for Meiklejohn’s firing from the ringleader of the Amherst trustees, lawyer and J.P. Morgan banker Dwight Morrow. Frankfurter had known and liked Morrow since the spring of 1906 when Morrow had been the only Wall Street lawyer who had encouraged him during his job search. Nonetheless, Frankfurter viewed Morrow as the villain in the Meiklejohn affair. The magazine, owned by fellow J.P. Morgan banker Willard Straight, was reluctant to attack Morrow. A few weeks later, however, editor Alvin Johnson drafted an “Open Letter to Dwight Morrow” urging him to explain Meiklejohn’s dismissal. When Morrow failed to respond for several months, Frankfurter wrote a letter to the editor charging Morrow with believing either he had no “responsibility to the public” or “that if he and his fellow-trustees will only lie low for a little while, the storm raised by the Meiklejohn affair will blow over.”
The issue, for Frankfurter, was bigger than Alexander Meiklejohn; it was about the role of liberalism in higher education and in American politics. He believed that higher education was threatened not by Meiklejohn and other liberals but by “the corrosive influence of business aims and processes in the world of the spirit.” His anti-Meiklejohn friends left “wholly out of account the true function of a ‘liberal.’ ” Frankfurter described a liberal as “a ferment and a fighter” who was “apt to be a bit of a nuisance simply because he is tilting against entrenched complacency, he is seeking to dislodge injustice and to arouse indifference.”
DURING THE PRESIDENTIAL ELECTION of 1924, Frankfurter’s liberalism was on full display as he challenged the establishment and championed an unlikely presidential candidate. Harding had died on August 2, 1923, thrusting vice president Calvin Coolidge—famous for crushing the Boston police strike as governor of Massachusetts—into the presidency. Frankfurter saw little difference between the two men. “Having survived Harding,” he wrote Lippmann, “I don’t fear anything in particular will happen through Coolidge.”
Coolidge’s chances of winning the 1924 election depended on his ability to distance himself from the corruption of the Harding administration. The Teapot Dome scandal revealed that oil companies had bribed Secretary of the Interior Albert B. Fall for access to government-owned western oil reserves. And Congress was investigating corruption in the Justice Department, which led to criminal charges against Attorney General Harry M. Daugherty.
Frankfurter led the charge to eliminate Coolidge’s most viable challenger in the Democratic Party, Wall Street lawyer John W. Davis. Davis’s credentials were impeccable—a former West Virginia congressman, first-rate Supreme Court advocate as Wilson’s solicitor general from 1913 to 1918, and U.S. ambassador to Great Britain from 1918 to 1921. In 1922, he had declined a Supreme Court seat to make money as a Wall Street lawyer. Davis’s greed and Wall Street ties troubled Frankfurter. For three years, Frankfurter had taken on unpopular causes, preventing the mass deportation of Boston immigrants, challenging the constitutionality of A. Mitchell Palmer’s raids, and signing Jacob Abrams’s clemency petition. Other prominent lawyers also had spoken out. Yet Davis, the president of the American Bar Association from 1922 to 1923, had stayed silent. He was too busy lining his pockets at Stetson, Jennings & Russell by working for J.P. Morgan & Company.
Two months before the Democratic convention, Frankfurter wrote an unsigned New Republic editorial, “Why Mr. Davis Shouldn’t Run,” arguing that Davis epitomized the corporate greed of the 1920s. The candidate, Frankfurter charged, was “under retainer by the House of Morgan” and ignored the advice of friends to sever his ties with J.P. Morgan. Wall Street, Frankfurter argued, changed the former West Virginia congressman: “He has become the close associate of the most powerful banking house in the world. He has ceased to be merely a distinguished advocate.” Brandeis hoped Frankfurter’s editorial would discourage Davis from seeking the Democratic nomination; Davis, however, stayed in the race.
