Democratic Justice, page 35
Part of the problem was the weakness of Roosevelt’s Justice Department. Initially, Cummings had filled it with patronage appointees. Frankfurter tried to mitigate the damage by recommending former students to Justice Department officials. Abe Feller joined Harold Stephens in the antitrust division. Harry Shulman, a former Brandeis clerk teaching at Yale Law School, assisted Stephens in briefing and arguing the Railroad Retirement Act case.
Things began to change in late March 1935 when Reconstruction Finance Corporation (RFC) general counsel Stanley F. Reed replaced J. Crawford Biggs as solicitor general. A balding, hard-working Kentuckian who had argued and won the gold clause cases, Reed agreed with Frankfurter about dismissing the Belcher case and delaying any NIRA appeals as long as possible. He relied on Frankfurter for legal advice and recommendations for young lawyers to work in his office. He brought with him Paul Freund, the former Brandeis clerk who had worked with him at RFC on the gold clause briefs. Other former Frankfurter students soon followed.
Liberals and progressives were becoming increasingly frustrated with the New Deal. The NIRA had failed to improve labor standards, and new legislation was stalled in Congress. The purge of left-wingers from the Agricultural Adjustment Administration, including general counsel Jerome Frank, Gardner Jackson, and former Frankfurter student Lee Pressman, cast further doubt on the administration’s liberal bona fides. On April 22, Frankfurter relayed a letter from David Niles, the director of Boston’s Ford Hall Forum lecture series, about the need to rally liberals and progressive politicians behind pending legislation including the Social Security bill, the National Labor Relations bill, and the Public Utility Holding Company bill. Thanks to Frankfurter and Niles’s intervention, the president agreed to host a small, bipartisan group of progressives. From 8:45 p.m. to 12:15 a.m. on May 14, he met with Frankfurter, Niles, Secretary of Agriculture Henry Wallace, Secretary of the Interior Harold Ickes, and Senators Edward P. Costigan of Colorado, Robert M. La Follette, Jr., of Wisconsin, Hiram Johnson of California, George Norris of Nebraska, and Burton K. Wheeler of Montana. Led by La Follette and Wheeler, they called for the president “to assert the leadership that the country is demanding” and to answer the New Deal’s opponents—the U.S. Chamber of Commerce, populist Louisiana U.S. senator Huey Long, and anti-Semitic radio preacher Father Charles E. Coughlin—by pushing the labor bill and other reform legislation through Congress. The meeting was a big success and strengthened the administration’s ties to La Follette and Wheeler; Niles became an assistant to Harry Hopkins at the new Works Progress Administration and later to Roosevelt. After the meeting broke up, Frankfurter stayed behind as the president’s overnight guest. He warned Roosevelt to expect bad news from the Supreme Court in the Schechter Poultry case; he blamed the appeal on “bad advice.”
At least this time the administration was well represented before the Supreme Court. Freund wrote the Schechter Poultry brief while Stanley Reed and Donald Richberg argued the case. Frankfurter predicted to Reed that the “stumbling block” would be whether Congress had delegated its powers to the National Recovery Administration (NRA) with specific enough guidelines. During the May 2 and 3 oral argument, conservatives Sutherland, McReynolds, and Butler pounced on the issue; Reed later confided to Frankfurter that they had “made my life miserable.” The Court gave the administration no quarter, with more than the four conservatives jumping into the fray. The already grim outlook became grimmer a few days later when the Court invalidated another piece of legislation. In a 5–4 decision by Owen J. Roberts, the Court struck down the Railroad Retirement Act’s pension system because it deprived the railroads of their property without due process. Chief Justice Hughes dissented on behalf of Brandeis, Stone, and Cardozo. Frankfurter was shocked and saddened by the Court’s willingness to invoke the Due Process Clause to abridge Congress’s power to regulate interstate commerce and by the opinion from the supposedly moderate Roberts. Venting to Brandeis, he reminded him that Joseph Cotton had deemed Roberts “an ingrained conservative” and had predicted that “we’d be fooled by him.”
The worst was yet to come. On May 27, 1935, a day known as Black Monday, the Court handed the Roosevelt administration three devastating defeats. First, a unanimous Court ruled in Schechter Poultry that the NIRA’s live poultry code was “without precedent” as a delegation of congressional power by failing to provide proper guidance to the executive branch. Equally if not more important, the Court declared that Congress had exceeded its power to regulate interstate commerce and had infringed on the power of the states. The Court reasoned that the chickens slaughtered by Brooklyn butchers never left New York and the live poultry code covered only the New York metropolitan area; the effect on interstate commerce, therefore, was only indirect. A concurring opinion by Cardozo and Stone characterized the code as a delegation of congressional power “running riot” and as obliterating “the distinction between what is national and what is local” in purporting to regulate interstate commerce. That same day, the justices handed the administration two other unanimous defeats. In an opinion by Brandeis, the Court invalidated the Frazier-Lemke Farm Bankruptcy Act, which sought to aid debt-ridden farmers by scaling down their mortgages to prevent them from losing their farms. The Court held that the law deprived a Louisville bank of private property without just compensation. And in a decision vindicating Brandeis’s dissent ten years earlier about the power of the president to remove administrative officials, Sutherland wrote for the unanimous Court that Roosevelt’s firing of FTC commissioner William E. Humphrey violated separation of powers among the three federal branches of government because the commission’s functions were “quasi-judicial and quasi-legislative.”
After the Court announced its decisions around 2:00 p.m., a “visibly excited and deeply agitated” Brandeis summoned Corcoran and Cohen, who had been sitting in the courtroom in the Old Senate Chamber, to the ante room of the clerk’s office. “You have heard our three decisions,” he warned. “They change everything. The Court was unanimous.” His message to them was specific and direct: “You must phone Felix and have him down in the morning to talk to the President. You must see that Felix understands the situation and explains it to the President. You must also explain it to the men Felix brought into the Government. They must understand that these three decisions change everything. The President has been living in a fool’s paradise.” Corcoran tried to interrupt about the implications of the Court’s limits on Congress’s power to regulate interstate commerce on the pending Public Utility Holding Company bill. Brandeis curtly replied he had not read it and insisted all pending legislation would need to be redrafted to comply with the Court’s decisions. He cared about only one thing: “Make sure that Felix is here in the morning to advise the President.”
AFTER WIRING ROOSEVELT, Frankfurter boarded the next day’s Federal Express train and arrived at 6:30 p.m. on May 28 for the first of three nights at the White House. He sought to temper Roosevelt’s anger with the nine justices and warned him not to turn it into “the Supreme Court vs. The President.” He also advised Roosevelt not to listen to liberal legislators who wanted to propose a constitutional amendment to clarify the meaning of the Commerce Clause. Rather, with the public and politicians equally frustrated with the Court, the president should press for pending legislation including the Social Security bill, Public Utility Holding Company bill, National Labor Relations bill, and Guffey Coal bill and dare the Court to strike them down. In the future, he urged Roosevelt and Attorney General Cummings to make sure that the laws were more carefully drafted, the legal battles more carefully chosen, and the Supreme Court briefs and arguments more skillfully done.
In the short run, he prioritized the administration’s legislative agenda: legislation inserting fair labor clauses into all government contracts; the continuation of the NRA’s administrative operations until the law was revised; the passage of the National Labor Relations bill; and a meeting with state governors to pass laws supplementing the Social Security bill and a revised NRA. Overall, he wanted the president to remove the “false equation” of the NIRA as the New Deal and to make the Social Security bill, the National Labor Relations bill, the Public Utility Holding Company bill, and new tax laws the centerpiece of economic regulation—in short, to embrace what historians have referred to as the Second New Deal.
As much as he valued Frankfurter’s legislative advice, Roosevelt could not resist criticizing the Supreme Court. At 11:00 a.m. on May 31, the president held a press conference venting about Schechter Poultry and allowed the press to quote him comparing the decision to Dred Scott in its ramifications for the country and criticizing the Court’s “horse-and-buggy definition of interstate commerce” as thwarting any meaningful federal economic regulation. Roosevelt’s comments about the Court caught Frankfurter completely off guard—at least that’s what he told Brandeis.
During the president’s press conference, Felix and Marion (who joined him for the third night at the White House) were on their way to Brandeis’s California Street apartment for lunch. He assured Brandeis that he did not know that the president’s broadside against the Court was coming. And yet, Black Monday revealed ideological differences between the two men. Brandeis was an ideologue and “a Jeffersonian” preaching against bigness (big corporations and big federal programs)—he was not drawn to Roosevelt and did not admire his leadership. Frankfurter, on the other hand, staffed the New Deal with as many talented lawyers as possible and vowed to do whatever worked to aid the nation’s economic recovery and his friend in the White House. As much as he admired the justice’s carefully crafted opinions, he privately confided to the president he was “heartbroken” over Brandeis’s turn against the administration. Frankfurter viewed the Supreme Court as an obstacle to be overcome through better drafting and better advocacy. He valued Roosevelt’s legislative acumen and criticized the Court’s railroad pension and Schechter Poultry decisions because they limited Congress’s power to regulate interstate commerce. Unlike Brandeis, Frankfurter looked to Congress for political and economic change and saw the proliferation of expert-run federal agencies and programs as a blessing rather than a curse.
During the summer of 1935, Frankfurter was determined to make pending New Deal legislation a reality. He had no teaching responsibilities and visited the White House with more frequency than at any other time during Roosevelt’s presidency. From June 1 to September 1, incomplete White House logs show that he spent at least nineteen nights and visited every week, sometimes twice. He joined Roosevelt’s inner circle—breakfast in his study, social outings with his secretaries/confidants Missy LeHand and Grace Tully, and informal dinners with Eleanor when she was in town. Frankfurter also dined with many former students and friends. The main purpose was business, not personal. The stakes, for the New Deal and for Roosevelt’s presidency, were high.
For Marion, the windmill was spinning too fast. Felix was so wrapped up in New Deal politics, she wrote Isaiah Berlin, she felt “almost as out of it as if he had fallen in love with another woman.” She was disappointed that they had to postpone a summer trip to Oxford to see Berlin, Maurice Bowra, and other British friends. With Felix so preoccupied, she opted for a cross-country train ride to see her mother, father, and brother in Northern California, Portland, and Seattle. “Well,” she wrote her husband, “next year in Jerusalem.”
During his weekly White House visits, Frankfurter preferred to keep under the press’s radar. His enemies were not fooled. The Washington Herald reported on Frankfurter’s overnight stays, described him as “conferring nightly” with the president, and as having supplanted Moley and Richberg as Roosevelt’s key adviser. Critics began to blame Frankfurter for the New Deal’s failure to end the Great Depression.
All summer long, Frankfurter returned to the White House to help the president get his legislation through Congress. In early June, he met with Cummings and Reed about how to draft and defend a revised NIRA and worked with Treasury Department officials in drafting new tax laws. He believed Roosevelt was “showing obstinate courage” in standing behind the Public Utility Holding Company bill. Drafted by Cohen and Corcoran, the bill allowed the Federal Power Commission and the SEC to regulate public utilities, to make them more geographically compact by breaking them up, and to force holding companies to divest themselves of public utilities within five years in what became known as the “death sentence” provision. As with its opposition to the securities bills, big business pulled out all the stops. Representative Owen Brewster of Maine accused Corcoran of threatening to withhold a dam project in his district if he did not vote for the death sentence provision; Frankfurter was so incensed about the accusation he wanted to testify about Brewster’s bad moral character; Corcoran denied the charges and cleared his name. Brewster’s accusations backfired. Corcoran became an integral member of Roosevelt’s inner circle, and Cohen was regarded as the administration’s most accomplished draftsman. The president nicknamed Corcoran “Tommy the Cork”; the press referred to Corcoran and Cohen as “the Gold Dust Twins.” Frankfurter’s admiration for them ran deep; he made sure that the president told them why he was not nominating them for administrative posts, such as the open SEC commissionership for Cohen; they were more valuable working for Roosevelt. Corcoran, Cohen, and Wyzanski reinforced Frankfurter’s belief in the need for first-rate lawyers in the federal government. Frankfurter marveled at Corcoran’s legislative “stratagems and devices” as they engaged in “real fighting here” to maintain the death sentence provision in the Public Utility Holding Company bill.
In August, Frankfurter and his young charges guided the legislation through its final stages. Frankfurter learned how lawmaking worked in ways he never had in the Theodore Roosevelt, Taft, or Wilson administrations. The president began referring to him as “John” for John W. Davis because he repeatedly urged a “ ‘conservative’ compromise” to make the legislation constitutional. The public utility bill’s lead sponsor in the House, Sam Rayburn, nicknamed him “Cardinal” after Vice President Garner remarked that Frankfurter reminded him of Cardinal Gibbons and French prime minister René Viviani because they were “alive all the time & don’t miss a thing of what’s goin’ on around them.” Frankfurter worked closely with Rayburn, Garner, and Senate Majority Leader Joseph Robinson. All their hard work paid off; Congress passed one piece of legislation after another. Roosevelt signed the National Labor Relations Act on July 5, the Social Security Act on August 14, the Banking Act of 1935 on August 23, the Public Utility Holding Company Act on August 25, and the Guffey Coal Act on August 30. The president, Felix wrote Marion, “got almost everything that he asked for.”
Before he left the White House on September 1 after nearly three months of work, Roosevelt firmly clasped his hand and looked him in the eyes and said: “I’ll see you soon in Hyde Park.”
WITH HIS WIFE visiting family on the West Coast on Labor Day weekend, Frankfurter took a train from Washington, D.C., to Providence where he was picked up by Joseph Kennedy’s chauffeur and taken to the family’s oceanfront compound in Hyannis Port on Cape Cod. He greeted Joe Sr., who was stepping down as SEC chair in favor of James Landis; Kennedy’s wife, Rose; and seven of their eight children. Frankfurter enjoyed seeing 21-year-old Joe Jr., who asked about Marion, having met them in Oxford while Joe Jr. studied with Harold Laski at the London School of Economics. He met 18-year-old Jack, who was off to study with Laski “on the theory that he is something that cleans the teeth; parts the hair in the middle, etc., etc.” Rose was worried about keeping Jack, whom Frankfurter described as “a sceptical spirit,” “inside the church!!” Frankfurter was amused to be considered the Kennedy family’s “great educational director” by recommending that Joe Jr. and Jack study with Laski; he marveled at how well the children had turned out given the enormous ego of their father and their dizzying array of trivial activities including sailing, tennis, football, driving fancy cars, and watching preview copies of the latest Hollywood movies.
There was a stark contrast between the Kennedy compound with its whirl of social activities and Frankfurter’s next destination on Cape Cod, the austere Chatham cottage of Justice Brandeis, a place Frankfurter described as “almost squalid.” During his two days there, he ate the notoriously awful food of the justice’s wife, Alice, and visited with the justice’s grown daughters, Susan and Elizabeth, and Elizabeth’s son Walter. At his cottage, Brandeis was more relaxed than he had been when he had corralled Corcoran and Cohen in the ante room of the clerk’s office after Black Monday. According to Elizabeth, her father had “resigned himself to his dissatisfaction with the way the world is going & consciously decided not to wear himself out” and had vowed to stop haranguing people. It remained to be seen whether, in deciding cases, Brandeis would be more charitable toward the New Deal.
After a brief stop in Cambridge, Frankfurter returned to Hyde Park. He was there to finish work he had started at the end of the summer, drafting speeches with Raymond Moley for the president’s upcoming trip to western states. At Roosevelt’s urging, Frankfurter preemptively attacked opponents of the new legislation and Wall Street lawyers most likely to challenge its constitutionality. In “The Liberty League Supreme Court,” an unsigned editorial for the September issue of Moley’s Today magazine, he denounced leaders of the bar retained by big business to oppose the legislation—former solicitors general James M. Beck and John W. Davis, former Massachusetts governor Joseph Ely who had nominated Frankfurter in 1932 to the state Supreme Judicial Court, former Al Smith aide Joseph M. Proskauer, Stimson’s law partner George Roberts, and former attorney general George W. Wickersham. He mocked them for declaring the National Labor Relations Act unconstitutional and predicted that “the heavily financed lawyers of one side of a law suit will be laughed out of the ultimate court of America, the court of public opinion.”
