Democratic Justice, page 36
Frankfurter’s political rivals scapegoated him for the administration’s past legal failures. After the Schechter Poultry defeat in May, Donald Richberg informed New York Times columnist Arthur Krock that Frankfurter had advocated dismissing the lumber case in favor of the poultry one. In fact, however, Frankfurter, backed by Reed, had advised the administration not to press either case and counseled a strategy of delay until the law expired. Richberg was not the only one blaming Frankfurter for NIRA’s demise.
Former NRA director Hugh S. Johnson seized on the “Happy Hot Dogs” theme and portrayed Frankfurter in the Saturday Evening Post as the man behind the throne: “The professor himself has refused every official connection. His comings and goings are almost surreptitious. Yet he is the most influential single individual in the United States.” It was not a compliment. Nor was the Happy Hot Dogs a harmless play on his first and last name. In Johnson’s view, Frankfurter’s “ ‘boys’ have been insinuated into obscure but key positions in every vital department—wardens of the marches, inconspicuous but powerful.” He argued that they promulgated their anti-business views in almost every agency and blamed “the Hot Dog Pressure Group” for the administration’s response to Black Monday, which “diverted the New Deal, weakened party organization and conceived the Horse and Buggy comment after the Schechter case.” He called for a return to the failed economic policies of “the original New Deal,” including “sound money and [a] balanced budget.” The article contained anti-Semitic undertones in describing Frankfurter’s protégés as “infest[ing]” departments and agencies and by comparing them to a battalion that needed to be recalled for “delousing.”
Frankfurter’s friends wondered what he had done to alienate General Johnson. He explained that in 1933 he had advised Johnson during the passage of the NIRA and had declined his offer to be the agency’s general counsel. An erratic, heavy drinker and autocrat, he had gone from Time magazine’s “man of the year” in January 1934 to getting fired by Roosevelt nine months later and had revealed private conversations with Brandeis about administration policy. Frankfurter was somewhat shocked by Johnson’s ill will. After the Schechter Poultry decision, they had talked pleasantly at the White House, and Johnson had apologized for his comments about Brandeis. At a meeting that same day with the president, Johnson proposed quickly drafting a new NIRA law; Frankfurter preferred a longer-term approach run by the Justice Department but agreed to review Johnson’s draft. Frankfurter denied to his friends, as he had to Brandeis, any knowledge of Roosevelt’s intent to hold a post-Schechter press conference attacking the Court and had recommended the opposite strategy. In light of the president’s comments that suggestions for a new NIRA law would be handled by the attorney general and solicitor general, Frankfurter had advised Johnson during a May 31 phone call that a bill drafted by the agency’s former director would be unwise. They never spoke again. Johnson’s anger, though misdirected, was not surprising. He had turned against the New Deal and resented Frankfurter and his protégés. It was not the last time one of the New Deal’s fallen stars used Frankfurter as a scapegoat.
Several months later, Frankfurter responded to Johnson and others with assistance from former student Archibald MacLeish. A close friend of Dean Acheson’s from Yale College and Harvard Law School, MacLeish graduated in 1919 after wartime military service and finished tied for first in his law school class. Bored by Boston law practice and having declined an offer to join the Harvard law faculty, he moved his family to Paris in 1923 to write poetry. In Paris, he befriended American expatriates Ernest Hemingway, John Dos Passos, F. Scott Fitzgerald, and Gertrude Stein. In 1928, MacLeish returned to America to work for Fortune magazine, joined anti-Fascist political causes, and continued to write poetry. He won the Pulitzer Prize five years later for his long poem Conquistador yet made a living editing and writing for Fortune. As a Fortune editor, he facilitated the publication of Frankfurter’s defense of his network of young lawyers.
Published in Fortune’s January 1936 issue, “The Young Men Go to Washington” reviewed the charges against Frankfurter as “the most influential single individual in the United States,” “this silent man,” and “the IAGO of this Administration.” “The actual facts of the matter,” Frankfurter and MacLeish asserted in the unsigned article, “are in no way mysterious.” Since he joined Stimson in the U.S. attorney’s office in 1906, Frankfurter had been recruiting talented lawyers for the federal government. And, since he joined the Harvard law faculty in 1914, he had been recommending students for jobs at leading New York, Boston, and Washington firms; in the federal government; and as clerks for Holmes, Brandeis, and other federal judges. The article acknowledged that Frankfurter’s friends and former students had become prominent New Dealers and that Frankfurter assisted with the Securities Acts of 1933 and 1934 and the Public Utility Holding Company Act. Yet it rejected Johnson’s charges of undue influence: “No one knows, perhaps not even the President himself and certainly not General Johnson, whether Mr. Frankfurter has more influence with Mr. Roosevelt than Mr. Roosevelt’s other advisers.” It mocked Johnson’s boast that Frankfurter had nothing to do with the NIRA, observing that the law had been the New Deal’s biggest failure. And it concluded by responding to Johnson’s charge that Frankfurter had “packed the Administration with his ‘boys’ ” by explaining he “has done little more to place intelligent lawyers in contemporary Washington than he has been doing for the past twenty-five years.”
Wall Street critics responded to the article by charging that MacLeish had “whitewashed” Frankfurter and ignored the “well known fact” that he had been spending two nights a week at the White House. A panicky MacLeish requested the real story from Frankfurter. By phone, Frankfurter was not candid with his former student: two or three White House and Hyde Park visits before Oxford; a Hyde Park visit in August 1934 and two or three in the summer of 1935; “a few weeks stay” at the White House during the summer, and a single two-and-a-half-hour visit since September 1935. Frankfurter underplayed his weekly visits during the summer of 1935 to push through the Public Utility Holding Company Act and other pending legislation. Not surprisingly, he refused to allow MacLeish to quote him.
The negative publicity from Johnson’s article, lingering questions about “The Young Men Go to Washington,” and teaching duties at Harvard Law School kept Frankfurter’s White House visits to a minimum. If he did go, he rarely showed up in visitor logs. Instead, he mostly contributed to the administration from afar. In the summer of 1935, Roosevelt had acknowledged that his administration needed reorganization. Frankfurter responded by recruiting the best lawyers and placing them in the federal government.
WITH MORE SUPREME COURT CHALLENGES looming, Frankfurter recommended several former students to join Stanley Reed in the solicitor general’s office: Alger Hiss, a former counsel in the Department of Agriculture, joined the office in July 1935 to aid the defense of the Agricultural Adjustment Act (AAA); Charles Horsky, the 1934 Harvard Law Review president, was hired after his clerkship with Augustus Hand; Charles Wyzanski, the Department of Labor solicitor, came aboard in December after months of lobbying by Frankfurter. With Freund, Hiss, Horsky, Wyzanski, and Columbia law graduate Warner Gardner in the office, Solicitor General Reed relied on a strong cohort of young stars to counter the older, patronage appointees. After Black Monday, the solicitor general needed all the help he could get.
More than a source of personnel, Frankfurter provided Reed with much-needed advice and a critical eye on Supreme Court briefs and arguments. Frankfurter read Hiss’s brief in United States v. Butler, a defense of the Agricultural Adjustment Act’s taxes on cotton and other commodities so the government could pay farmers to reduce their acreage in an effort to prevent the market from collapsing. Frankfurter declared Hiss’s brief “a superb performance” and advised Reed to stick to Marshall’s and Holmes’s broad conception of federal power and not to get too creative at oral argument. “The Court seems to me to be in one of those grips of belief in its saviourship of the nation which wrought such havoc . . . in the Dred Scott case and later in the Income Tax Cases.” On December 9 and 10, Reed defended the AAA and Congress’s power to levy taxes to regulate the cotton market. The solicitor general was so exhausted from overwork that, while arguing a subsequent case, he fainted. The arguments took place in the Court’s new building across the street from the U.S. Capitol in a cavernous courtroom with notoriously poor acoustics. What mattered more was that the nine justices were the same as on Black Monday. On January 6, 1936, the Court, in a 6–3 decision in Butler, invalidated the AAA. In his majority opinion, Owen J. Roberts acknowledged Congress’s broad taxing and spending powers yet concluded the tax was merely incidental to regulating agricultural production, a “purely local activity” reserved to the power of the states. Stone dissented, joined by Brandeis and Cardozo, that Congress had not exceeded its taxing and spending powers and that the “wisdom” of such legislation was up to the elected branches, not the Court. Four days after the decision, Frankfurter tried to buoy Reed’s spirits by recalling what Holmes had told him after he lost the 1923 District of Columbia minimum-wage case in Adkins v. Children’s Hospital—“that Jesus Christ, John Marshall and Daniel Webster could not have changed the result.”
Once again, the Court had proven itself in Butler to be the biggest obstacle to the New Deal. Frankfurter’s Harvard law colleagues Thomas Reed Powell and Henry Hart were furious with the Court and with Roberts in particular. Frankfurter, however, held his tongue, at least publicly. At the president’s request, Frankfurter arrived at the White House at 4:30 p.m. on Sunday, January 12, and for two and a half hours discussed how to respond. Five days later, Frankfurter enclosed a draft message to Congress proposing new agricultural legislation conforming to the Court’s decisions. It was not all bad news. On February 17, the Court upheld the constitutionality of the Tennessee Valley Authority. Brandeis wrote an influential concurring opinion in Ashwander v. Tennessee Valley Authority arguing that the petitioner had not suffered any injury, there was no real dispute between the parties, and therefore the Court should never have heard the case in the first instance. He invoked numerous cases to remind his colleagues about the Court’s “series of rules” for avoiding unnecessary constitutional questions.
Brandeis privately warned Frankfurter that the Court had no intention of following its rules about avoiding constitutional questions. In late April, Frankfurter spent the afternoon with Brandeis, Stone, and Cardozo, who alerted him to more trouble. The Court, Brandeis said, “has lost its head & has allowed the Liberty League to drag us into politics.” They blamed Chief Justice Hughes. Brandeis said his “judgment [had been] warped by fear of criticism & . . . about threats to property”; Stone had “no respect for Hughes’ intellect & not much for his moral character.” Cardozo repeated Brandeis’s initial warning: “The Court has lost its head” and privately told him something even more disturbing. “I wish I were back in Albany—” the former New York Court of Appeals chief judge said. “We here have really ceased to be a Court.”
After it upheld the Tennessee Valley Authority, the Court resumed striking down New Deal programs, this time the Bituminous Coal Conservation Act of 1935. The Guffey Coal Act, as the law was known, replaced the NIRA with a new fair competition code for the coal industry, regulating prices, minimum wages, maximum hours, and the right to unionize. Coal companies were induced to comply by receiving a nearly total refund of a 15 percent tax on all coal produced. The president and shareholder of a Virginia and West Virginia coal company did not want to join the program and challenged the law’s constitutionality. In a 6–3 decision on May 18 in Carter v. Carter Coal, Sutherland declared that the law exceeded Congress’s power to regulate interstate commerce because manufacturing or production, such as coal mining, was a “purely local activity.” Cardozo’s dissent, which Stone and Brandeis joined, argued that the commerce power was broad enough to permit Congress to regulate the coal industry.
Two days after the decision, Frankfurter returned to Washington. He spent hours with a “very fit” Brandeis, spoke with Secretary of the Interior Ickes, ate lunch with Senator Wheeler, and attended a senatorial reception and a late-night legislative strategy session at the White House with Senators Wagner, Norris, Wheeler, La Follette, Jr., Lewis B. Schwellenbach of Washington, Henrik Shipstead of Minnesota, and Sherman Minton of Indiana.
The Court was not finished. In a 5–4 decision on June 1 in Morehead v. Tipaldo, it declared a New York minimum-wage law violated the liberty provision of the Due Process Clause. After arguing and losing Adkins v. Children’s Hospital about the D.C. minimum-wage law for women, Frankfurter had drafted, with Benjamin Cohen’s assistance, a model minimum-wage bill. Rather than fix a minimum wage for women across all industries like in the D.C. law, the model bill established an industrial commission to set minimum wages for women after an investigation of the industry in question. The New York minimum-wage law, with an industrial commission establishing different minimum wages for women in each industry, was based on Frankfurter and Cohen’s model bill. Hughes’s dissent differentiated between the two laws. Stone’s dissent went even further: He argued that Adkins had been overruled by the Court’s 1934 decision in Nebbia v. New York establishing minimum milk prices, and he accused the majority of invoking “freedom of contract” to make economic policy. In a sense, Morehead v. Tipaldo was a double defeat for Frankfurter; it not only invalidated the New York law but also revived Adkins and freedom of contract. Three days after the Court’s decision, Frankfurter returned to the White House to join Roosevelt for a two-and-a-half-hour private lunch. It was time for the president to respond to the Court the best way he knew how—by appealing directly to the American people during his 1936 reelection campaign.
DISSATISFIED WITH the Democratic Party platform written by Senator Wagner and his aide Simon Rifkind, Frankfurter drafted his own. He wanted a “call to arms,” an outline of Roosevelt’s political philosophy, and criticism of the Court’s latest decisions without making it the centerpiece of the campaign. Roosevelt carefully read and marked up Frankfurter’s draft. At the end, Frankfurter committed the Democratic Party to “principles of constitutional government under our Federal System.” He rejected the idea, as suggested by Carter Coal and Morehead v. Tipaldo, that there could be a regulatory “No Man’s Land where no government,” federal or state, “can safeguard either liberty or property or protect the weak against exploitation and legitimate businesses against unfair competition.” He concluded by quoting Lincoln’s 1860 Republican Party platform about Dred Scott and rejecting “ ‘the new dogma’ ” that the Constitution forbids the federal government and the states from dealing with the nation’s economic problems as “a dangerous political heresy.” Despite the lofty rhetoric, he did not want the campaign to be Roosevelt versus the Supreme Court, a showdown that could wait until after the election.
In July 1936, Roosevelt accepted the Democratic Party’s nomination in Philadelphia. “This generation of Americans has a rendezvous with destiny,” he said in his acceptance speech, using a phrase coined by Corcoran. Frankfurter read about the speech in the British press. He and Marion were at last taking their long-delayed trip to London and Oxford.
That fall, the election arrived at the Frankfurters’ front door at Harvard. On September 18, they braved rainy weather and sat in the Sanders Theatre to hear Roosevelt’s Harvard Tercentenary address. It was the culmination of a months-long battle with Frankfurter’s arch-nemesis, retired Harvard president A. Lawrence Lowell. Charged with arranging the school’s Tercentenary celebration, Lowell asked Roosevelt to speak but only under certain conditions: The president was required to choose “something connected to Harvard,” avoid anything resembling a political speech, and limit himself to ten minutes. Roosevelt showed Lowell’s letter to Frankfurter along with a proposed reply that questioned whether he had been invited to speak as a Harvard graduate or as the president of the United States. If it were the latter, he could not limit himself to a subject matter or specific time.
Given his past history with Lowell, Frankfurter was outraged. Since 1916, he had fought Lowell over Brandeis’s nomination, a proposed 15 percent quota on Jewish undergraduates, the one-sided report to the Massachusetts governor on the Sacco-Vanzetti case, and the veto of Nathan Margold and other appointments to the Harvard law faculty. Aside from a few defenses of academic freedom, Lowell had encouraged anti-Semitism and intolerance at Harvard. Even in retirement, he was carrying water for Old Boston. On February 26, Frankfurter had wired Roosevelt requesting to see the whole file including President James Conant’s initial invitation to “Mr. Roosevelt.” He thought Roosevelt should teach Lowell “a lesson in manners,” yet vowed to “try to get cool” before making a “calm judgment” about a response. After reviewing the file, Frankfurter drafted a brief reply from Roosevelt to Lowell ignoring “the impertinent inquiries and implied rebuke” and accepting the invitation not as an alumnus but as president of the United States. Roosevelt sent the letter as Frankfurter suggested. In his reply, Lowell agreed that he was invited as president of the United States and again tried to limit him to ten to fifteen minutes. About to lose his “temper completely,” Roosevelt asked Frankfurter what to do. Acting on Frankfurter’s advice, Roosevelt curtly replied that he would speak about the significance of Harvard and ignored the time limit. Frankfurter was already disappointed with Harvard’s decision to send a representative to the University of Heidelberg’s 550th anniversary celebration despite the school’s Nazi-led purge of Jewish scholars. He drafted a preliminary Tercentenary address about the president’s love of Harvard, free academic inquiry, and America.
