Democratic Justice, page 39
The president soon triumphed in another major case. On May 24, in a 5–4 decision in Steward Machine Company v. Davis, Cardozo upheld the Social Security Act as within Congress’s taxing and spending powers and as not coercing the states. The Four Horsemen, including the retiring Van Devanter, dissented. Frankfurter was happy for his protégé Charles Wyzanski, who had argued the case along with another rising star, Assistant Attorney General Robert H. Jackson. He was happy for the president and about the preservation of the linchpin of the Second New Deal and social safety net. Yet he harbored a “pretty low” opinion of the Court’s work the past few years, resented “the political somersaults” of Hughes and Roberts, and singled out Stone’s opinions for praise. He knew the liberal trio of Stone, Cardozo, and Brandeis needed reinforcements.
With Van Devanter’s retirement and two 5–4 decisions in the administration’s favor, the court bill lost more steam in the Senate. On May 18, the Senate Judiciary Committee had voted, 10–8, to report the bill unfavorably. Nearly a month later, the majority issued a brutal report decrying the bill as “a needless, futile, and utterly dangerous abandonment of constitutional principle.” A month earlier, Roosevelt could have attained a compromise bill adding two justices to the Court; he was determined, however, to push a more sweeping bill through the Senate and believed that Senate Majority Leader Joseph Robinson could cobble together a Democratic majority. As an inducement, he promised Robinson the first Supreme Court vacancy (which made liberals reluctant to accept the two-justice compromise because one of the seats would go to the more conservative Robinson). The senate majority leader worked himself to the bone twisting arms and counting votes as he tried to push through a revised version of the bill. On July 14, he was found dead of a heart attack at his Capitol Hill apartment. Max Lowenthal reported to Frankfurter on a last-ditch effort to broker a compromise with Wheeler. Any chance of increasing the size of the Supreme Court, however, died with Robinson.
FRANKFURTER, who in the past had opposed Robinson for the Court, mourned his death. He had revised his opinion of the Arkansas senator after meeting him a few times during the legislative battles in the summer of 1935 and in reading the Congressional Record. He admired Robinson’s loyalty and let one person know it—Brandeis. “In the Court fight he showed more character and candor and restraint than, I am sorry to say, Burt Wheeler—not to speak of the cheap [Senator Edward R.] Burke—is showing,” he wrote Brandeis on July 15. “Wheeler’s canonization of Hughes is positively indecent, considering the views I heard him express about the Court two years ago, and I deeply resent his persistent effort to identify you with the Court, and to use you as a screen for hiding its grave abuses in the past.” Frankfurter knew that sending the letter to Brandeis was “unwise.” Yet he wanted more “candor in our relationship” and revealed what was on his mind before visiting the justice in Chatham in late August. Frankfurter understood that Brandeis, in collaboration with Wheeler, was partly responsible for the defeat of the court bill and wanted Brandeis to know that his loyalties lay with the president.
From a vacation home in Cohasset, Massachusetts, Frankfurter wrote the president on August 9 to console him about Robinson’s death and to urge him to address the country about the importance of the court fight: “It will clarify the Supreme Court fight—it will dramatize why it was undertaken & how greatly, for the present at least, you attained the concrete areas that moved you.” Frankfurter drafted ideas for a fireside chat for Roosevelt; the president passed along the letter and draft to Corcoran. On the 150th anniversary of the ratification of the U.S. Constitution, Roosevelt would have his say.
In an ideal world, Frankfurter would have been Roosevelt’s first choice for the Supreme Court. The situation in August 1937, however, was far from ideal. The court bill, despite resulting in an expansion of the lower federal courts, had been a colossal failure and had alienated members of the president’s own party, particularly in the U.S. Senate. The president wanted a nominee who was easily confirmable and from a part of the country not geographically represented on the Court. On August 9, Attorney General Cummings pared down a long list of candidates, excluding Frankfurter, and sent the president brief biographies of eleven federal judges and U.S. senators. Two days later, Roosevelt conferred with Cummings and ruled out all the judges on the list and discussed four New Deal allies: Senator Hugo Black of Alabama, Solicitor General Stanley Reed of Kentucky, Senator Sherman Minton of Indiana, and former New Deal official Lloyd Garrison. The two finalists were Black and Reed.
Sometime in August, Corcoran traveled to Cohasset to elicit Frankfurter’s views. Frankfurter’s first choice was Reed because he believed that the solicitor general was a hard worker and a proceduralist who understood federal jurisdiction; Attorney General Cummings also preferred Reed. The president agreed that the solicitor general was the more qualified lawyer but decided to nominate Black because the Deep South was not represented on the Court. Cummings cautioned him that Black “will certainly stir up the dry bones and will also arouse a good many other questions in all probability.”
As was his wont, Roosevelt kept his choice secret from almost everyone except the attorney general. On August 12, he submitted the name of the 51-year-old senator from Alabama, Hugo Lafayette Black. Sitting in his Senate seat when his nomination was announced, Black wore a white linen suit and looked like a bird with his slicked-back hair, high forehead, angular face, thin nose, and wide eyes. His rise to the Court was in many ways as improbable as Frankfurter’s. The son of an Ashland, Alabama, storekeeper, he graduated from the University of Alabama Law School in 1906 at age twenty. During the next fifteen years, he made a name for himself as a Birmingham labor and personal injury lawyer and by serving for a year as a police court judge and four years as Jefferson County prosecuting attorney. In 1921, he married Josephine Foster, the eldest daughter of a well-to-do Birmingham family; she was fourteen years his junior. Three years later, he was elected to the U.S. Senate at age forty and earned a reputation as a crusader. In 1934, he brutally cross-examined witnesses in exposing corruption in federal air-mail contracts. A Roosevelt man, he voted for all twenty-four major pieces of New Deal legislation. He railed against the $5 million lobbying campaign against the Public Utility Holding Company bill, introduced the federal wages and hours bill that became the Fair Labor Standards Act, and supported the president’s court bill.
As a sitting senator, Black was expected to receive an immediate floor vote on his nomination. The Senate, however, offered no such courtesy and referred the nomination to the Judiciary Committee. After a stormy closed-door debate on August 16, his nomination was voted out of committee, 13–4. The next day, he was confirmed, 63–16, amid rumors of a dark past denied by his Senate supporters—membership in the Ku Klux Klan. The newest justice left for a European vacation only to find himself embroiled in scandal. In mid-September, the Pittsburgh Post-Gazette revealed that Black had been sworn into Birmingham’s Robert E. Lee Klan No. 1 in 1923, captured the Democratic Party’s senatorial nomination as the Klan’s candidate, and had resigned from the organization the following year. The senator, however, had spoken at a Klan meeting in 1926 and had received a “grand passport” as a lifetime member. With pressure mounting for him to resign without hearing a single case, Black defended himself in a national radio address. He admitted he had been a member of the Klan before working in the Senate and denied that he was still a member or had anything to do with the organization.
Throughout Black’s stormy confirmation and post-confirmation process, Frankfurter defended him to friends and to the president. He had read the entire debate in the Congressional Record and knew Senator William Borah, a respected Idaho independent, had attested to Black’s “character and ability.” Frankfurter liked it that Black was not a “ ‘yes’ man.” As for the Klan revelations, he suspected that the Alabama senator long ago had outgrown the organization yet could not tell the truth about the extent of his past affiliation. He despised Paul Block, the owner of the Pittsburgh Post-Gazette, because of his business ties to reactionary newspaper baron William Randolph Hearst, and distrusted the newspaper’s motives in investigating the Klan rumors. And to the lawyers who preferred federal appeals court judge Joseph C. Hutcheson, Jr., of Texas as a southern nominee, Frankfurter predicted that Black would overshadow him in short order. In a more candid moment, Frankfurter conceded he was not entirely happy with Black’s nomination but urged friends to wait and see. He reminded them that as a senator, Black had shown “more courage and devotion to the right things than I could find in most of the leaders of my profession.”
In Frankfurter’s eyes, the Constitution granted power to the people and their elected officials, not to the Supreme Court or any individual justice. On August 10, he sent Roosevelt a draft speech defending the administration’s effort to pass the court bill. The Court in 1935 and 1936, he wrote, had been “acting as a super-legislature.” After the president’s massive electoral victory in 1936, “[s]omething had to be done” and “[s]omething was done” because the Court “reversed itself.” He called on the Court to maintain its current course: “The President has merely asked that the Constitution be viewed as Marshall and Holmes viewed it, so that it would be possible for the Constitution to survive periods of economic strain and political stress.” True to his belief in the democratic political process, Frankfurter praised the Court’s current majority for “realiz[ing] that the function of legislation belongs to the Congress and not to the Court.” The president agreed about the need to address the country; he seized the next opportunity, his September 17 Constitution Day address.
During a late August overnight visit to Hyde Park, Frankfurter was inspired by Roosevelt’s optimism and sense of accomplishment in winning his battle with the Court. After the visit, he poured his earlier ideas into the heart of a presidential speech to be given on the 150th anniversary of the U.S. Constitution. Corcoran wrote the first seven pages of the president’s speech; Frankfurter wrote the last seventeen. Frankfurter’s section began with a history lesson about everything lawyers had thought was unconstitutional: the Constitution itself replacing the Articles of Confederation; Washington’s and Hamilton’s protective tariff; the regulation of slavery in the territories; the financing of the Civil War; the federal income tax; the Interstate Commerce Commission; and, most recently, the National Labor Relations Act and state minimum-wage laws. He described this history as a “constant struggle between the great mass of the plain people of the United States who want national unity and justice against the lawyers who professionally complicate things in the service of those who want neither unity nor justice” and as a clash between people and lawyers and between Congress and the Court in which the people and their elected representatives “ultimately triumphed.” He urged the American people to reread the Constitution and reminded them that nothing in it prevented Congress from creating a railway pension system, regulating the coal industry, outlawing public utility holding companies, or establishing the Tennessee Valley Authority. He reminded the people that “a Constitution is a great instrument of government—not a conveyance, not a contract, not even a statute” and quoted John Marshall in McCulloch v. Maryland: “it is a constitution we are expounding.” He described Holmes as “the modern Marshall” and quoted several of his opinions including one about how constitutional provisions cannot be reduced to “mathematical formulas.” Frankfurter added: “Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government makes all the difference in the world.” He described lawyers representing corporate interests as interpreting it to thwart twenty-five years of state and federal economic regulation. He acknowledged that the Bill of Rights, passed two years after the Constitution, was essential to protecting minority rights. Yet the Constitution itself created a strong central government able “to find solutions” to large-scale problems of democracy. In a contest between competing interpretations by the people and “the partisan lawyer,” Frankfurter predicted the people’s Constitution as an instrument for government, “as Marshall viewed it, as Holmes viewed it,” would prevail.
From Cambridge, Frankfurter listened on the radio as Roosevelt spoke at 10:30 p.m. on September 17 from Washington’s Sylvan Theatre. Eight pages into his speech, he declared: “The Constitution of the United States was a layman’s document, not a lawyer’s contract.” Building on Frankfurter’s theme of the Constitution as a “great layman’s document” and “a charter of general principles,” he described “an unending struggle between those who would preserve this original broad concept of the Constitution as a layman’s instrument of government and those who would shrivel the Constitution into a lawyer’s contract.” He then launched into Frankfurter’s history lesson about everything the lawyers had thought was unconstitutional and how the people ultimately prevailed.
Roosevelt’s Constitution Day address was the best exposition of Frankfurter’s view of the Constitution as an instrument for government, as a broad outline rather than exhaustive contract. It provided a window into his theory of judicial review, especially when it came to economic legislation. And it showed how much influence he had on Roosevelt’s thinking about the lessons of the fight over the court bill. They transcended how many justices sat on the Supreme Court or who those justices were. The people, through their elected representatives, had the last word.
The court fight had taken a physical and emotional toll on Frankfurter and his allies. For most of the summer, he lay on his back because of bad posture and misaligned vertebrae. His two protégés Corcoran and Cohen paid a steep price by lobbying for a bill they did not draft or know about in advance. Wheeler falsely accused them of peddling a similar bill the previous year. For a time, Corcoran refused to see Brandeis after the court fight. He believed the justice “did not shoot straight with us”—his stern words in the robing room on February 5, his endorsement of Hughes’s letter, and his undue influence on Frankfurter. According to Cohen, Corcoran “feels that you are tied too much emotionally with LDB. He thinks it was LDB’s hold on you which stayed your hand in the court fight. And he is particularly bitter that LDB should not even consider resigning under circumstances which might ensure your appointment.”
With an eye toward Frankfurter’s future Supreme Court nomination, Corcoran’s attempt to put distance between Frankfurter and Roosevelt’s court-packing plan backfired. Beneath an unfortunate headline “Felix Frankfurter versus Franklin Roosevelt,” an October 3 story in the St. Louis Post-Dispatch suggested that the court bill had created a rift between the two men. Frankfurter was not upset with Corcoran; his only concern was the article’s impact on Roosevelt: “I am rather distressed to have him think that in any way in which I could avoid it I could become even the unwitting instrument of criticism of him.” He relied on Corcoran to convey the message.
A second vacancy came and went without Frankfurter’s nomination. On January 5, 1938, Justice George Sutherland announced his retirement. Ten days later, the president nominated his solicitor general, Stanley F. Reed. Frankfurter, who blanched at the idea of federal appeals court judges Harold M. Stephens, William Denman, or Samuel Bratton joining the Court, was thrilled with Reed’s nomination. He sent Reed a published volume of Holmes’s speeches, selected a graduating Harvard law student to be Reed’s first law clerk, and gained another inside source of information.
Roosevelt’s not-so-secret wish was to name Frankfurter to the Court to replace Brandeis. On January 26, the president tried to mend fences after the court fight by inviting Justice and Mrs. Brandeis to a late afternoon tea. Old Isaiah was not retiring on the president’s timetable. At the end of the previous term, Brandeis had asked Hughes whether he was still up to the work of the Court; the chief justice had urged him not to resign. There was no way that Brandeis was going to retire to make way for Frankfurter.
The court fight damaged yet did not destroy Frankfurter’s relationship with Brandeis. Judge Julian Mack, according to his biographer, “found himself in the painful position of having to act as mediator between Frankfurter and Brandeis to keep them from parting as associates.” Frankfurter and Brandeis agreed on too much—protesting Nazi Germany’s persecution of Jews, increasing Jewish immigration to the United States and Palestine, preserving Palestine (which the British were threatening to partition) as a future Jewish state, and promoting a more limited role for the Supreme Court—to part ways. Brandeis continued to fund Frankfurter’s public interest work, sending him $2000 in January 1938. Along with Stone, Cardozo, and Reed, Brandeis also continued to serve as an inside source of information about the Court.
The court-packing fight changed the president’s standing with the Senate, Frankfurter’s relationship with Brandeis, and the Court’s role in making economic and social policy. The political fallout from the court bill made it difficult for Roosevelt to nominate Frankfurter to the Court—even when the death of a Jewish justice created another vacancy.
CHAPTER 19
Sorta Tough Ain’t It!
At 2:00 p.m. on July 11, 1938, two hundred people crammed into the cream stucco home of New York Court of Appeals judge Irving Lehman in Port Chester, New York, for the funeral of Justice Benjamin Nathan Cardozo. Two days earlier, Cardozo had died at age sixty-eight after a series of heart attacks and a stroke had left him incapacitated. A tall candle burned next to the coffin, which was covered with red, yellow, and white roses. Floral arrangements from President and Mrs. Roosevelt, the Supreme Court, and the New York Court of Appeals surrounded the base. First Lady Eleanor Roosevelt and Secretary of the Treasury Henry Morgenthau, Jr., and his wife and Supreme Court justices Pierce Butler, Owen J. Roberts, and Stanley F. Reed sat with Cardozo’s relatives near the coffin in front of the fireplace in the library. Frankfurter, along with other mourners, sat in the adjacent reception room and sun parlor.
