Democratic Justice, page 48
As liberal New Dealers who traveled in similar circles, Douglas and Frankfurter were supposed to be allies for years to come. Instead, they battled over Brandeis’s legacy. Douglas believed that the legacy lay with protecting civil liberties and found an ally in Black. Frankfurter, on the other hand, believed that Brandeis’s legacy lay in protecting the Court’s limited institutional role, especially after the court-packing fight, by avoiding constitutional questions and deferring to the democratic political process. Personal and ideological conflict was unavoidable among such strong personalities as Black, Douglas, and Frankfurter. For the time being, however, they were on the same side. Douglas and Black had joined Frankfurter’s opinion in Coleman v. Miller. The next term, they joined another Frankfurter opinion they later came to regret. The fight over Brandeis’s legacy, viewed through the prism of the looming war in Europe, had only just begun.
CHAPTER 22
Preaching the True Democratic Faith
On a clear, 74-degree day on June 14, 1939, Felix and Marion Frankfurter arrived at Pier 88 on West Forty-Eighth Street and the Hudson River at 2:00 p.m. and boarded the French steamship Normandie. They were bound for Britain for more than a month so Felix could accept an honorary degree from Oxford and to see their friends from his 1933–1934 year as the Eastman professor at Balliol College. Instead of a carefree vacation, the trip was a grim reminder about the looming war in Europe and fueled Frankfurter’s efforts at wartime policy making. At home, isolationists in Congress dominated the political discourse about the war and clamored for American neutrality. Frankfurter, however, was determined to move the Roosevelt administration and the nation in a more interventionist direction—not only to help British friends and Jewish refugees but also to help save the world from a brutal dictatorship. The threat of Nazi Germany was personal and political.
Fortunately for Frankfurter, he enjoyed unparalleled access to the president. During the spring and summer of 1939, he claimed to have written Roosevelt “nearly three hundred” notes on Supreme Court memoranda pads. In recent weeks, he had sent Roosevelt three memoranda about how to respond to Nazi aggression. On June 6, the president agreed that “Felix was at least headed down the right road.” Six days later during a West Point commencement address, Roosevelt emphasized the goal of “peace by honorable and pacific conduct of our international relations; but that desire for peace must never be mistaken for weakness.” Frankfurter wanted stronger, more affirmative language. On June 13, the night before he left for Oxford, he spoke with the president by phone about the plight of Jewish refugees and the Senate’s refusal to revise or repeal the neutrality laws. The Neutrality Acts forbade the United States from sending arms, munitions, or airplanes to England, France, and other Allied nations opposing Nazi Germany. The president and his administration, while speaking the language of peace and isolation, were preparing for war.
At Oxford, the Frankfurters stayed with classics scholar Maurice Bowra and saw philosopher Isaiah Berlin. Marion’s spirits soared during her reunion with Berlin. “There is no one I’d rather spend hours with, walking, talking, listening, eating; whatever it is,” she wrote him. The Frankfurters visited American-born jurisprudence scholar Arthur Goodhart, who had nominated Felix for the honorary degree. On June 21, the justice received a doctorate in civil laws from Oxford along with British ambassador to the United States Lord Lothian, High Commissioner Vincent Massey of Canada, and novelist P. G. Wodehouse. The public orator introduced Frankfurter by making a Latin pun on Felix from Virgil’s Georgics: “Happy the man who understood the causes of suitors.” The Frankfurters had suitors of all political stripes. At commencement, he was photographed in full regalia talking animatedly with Lady Astor. Newspapers ran an Associated Press photograph and caption “Don’t Point” wondering why she was stabbing her finger at Frankfurter’s chest—perhaps because he was not shy about confronting her about her isolationist views.
From Oxford, the Frankfurters returned to London to catch up with friends. They saw Harold Laski, who had returned to the London School of Economics and was keeping Roosevelt informed about British politics and the “grim” mood in Europe. They spent many hours, in Oxford and London, with Felix’s former graduate student Sylvester Gates, his collaborator on the 1927 Sacco-Vanzetti book, and met Gates’s wife, Pauline, and their three children.
Between discussions about the Nazis and Jewish refugees, the rest of the trip was “not joyous” and was dominated by a “war atmosphere.” He spoke at a June 29 dinner at the Dorchester Hotel to raise money to send Jewish refugee scholars and scientists to Hebrew University in Jerusalem. He promised that he would return home and inform Americans that “in the menacing grimness that faced all who believed in and hoped for civilization,” he had met people willing “to defy those who believed that force and matter would ultimately dominate society.” By the fall, the number of refugees who had appealed to Frankfurter for help ran “into the hundreds”; he asked numerous friends, including the president, to help them.
In London, he met Prime Minister Chamberlain and other members of the cabinet even though Frankfurter opposed the Chamberlain government’s strategy of appeasement and the Munich agreement. Winston Churchill, an outspoken opponent of appeasement and private citizen, impressed him as “the one man who gave me a sense of power.” One of the wisest people he met was Ambassador Quo Tai-chi of China. The ambassador alerted him to the danger to America after it abrogated a treaty with the militarist regime in Japan, a warning that Frankfurter shared with Roosevelt.
Despite their political differences, the Frankfurters ate lunch with Ambassador Joseph Kennedy, Sr. American Zionist leaders criticized Kennedy for not advocating on behalf of Jewish refugees and for a Jewish homeland in Palestine. The previous October, he had allayed the concerns of Frankfurter and Brandeis during a meeting with Ben Cohen. He had done little, however, to advance their cause. In May 1939, the British had limited Jewish immigration to Palestine. Kennedy was also an ardent isolationist: He had supported Chamberlain’s appeasement, had fallen in with Lady Astor’s antiwar Cliveden set, and had lost the confidence of the Roosevelt administration. The American press called for Kennedy to “come home.” On July 13, Kennedy and his wife, Rose, graciously entertained the Frankfurters. By this time, Joe Jr. and Jack had studied with Harold Laski at the London School of Economics. Joe Jr., who had taken a year off in Europe, was set to enroll in Harvard Law School in the fall and lamented that Frankfurter was no longer teaching there. Jack, a rising Harvard senior who aborted his time with Laski after only a few months, was also thinking about law school, possibly at Yale. Frankfurter did not see Kennedy’s eldest sons, who were traveling in Europe that summer. Unlike Joe Jr., Jack had rejected his father’s isolationist views.
Thanks to Kennedy’s introduction, Frankfurter saw Prime Minister Chamberlain three times and numerous other British officials. Yet the justice refused to let social niceties prevent him from speaking his mind about foreign policy and complained to Kennedy about Chamberlain’s ineffective leadership. Kennedy asked what Frankfurter would do in Chamberlain’s place, and Frankfurter replied that he would put Churchill in the cabinet. “Aw, nuts,” Kennedy replied, “Winston is nothing but a drunk.” For the time being, they agreed to disagree. “Trying days are ahead,” Frankfurter wrote the American ambassador on July 13 on the ship home. “But you and I agree that a real man wants to be tested by great events.”
Even on the journey home on the American steamer Manhattan, the justice could not escape news of the impending war. One of the passengers was Gregor Ziemer, a Buffalo native and former headmaster of the American School in Berlin. Ziemer quit the school after the Jewish ghetto or segregation law had gone into effect and the Gestapo had removed all the Jewish students. Ziemer discussed the horrors of Nazi Germany with Frankfurter and informed the press that the Germans had captured the Polish port of Danzig and would soon control all of Poland. Frankfurter knew what was coming: “How ghastly it all is—the whole world directly or indirectly at the mercy of one man’s will.” From his time in London, he knew “all the public & private arrangements are being made for war.”
On July 20, the Frankfurters arrived in New York City and vacated their Cambridge home at 192 Brattle Street for good. They lived for a month in the Connecticut home of their friend Dr. Alfred Cohn and, after Labor Day, they vacationed for two weeks in Heath, Massachusetts, with theologian Reinhold Niebuhr and other longtime friends. Felix interrupted the vacation for two days in Washington. It was the world’s final moments of peace.
On August 23, Hitler and Stalin announced the Nazi-Soviet nonaggression pact. “You at least are doing all that any mortal can do,” Frankfurter wired the president. A week later, he reminded Roosevelt’s secretary Missy LeHand that he had heard in London the war would begin on September 21. The Frankfurters were “glued to the radio during the day and for a good part of the night” for news from Europe. “I reflect not only on those enduring values of man we call civilization and the fate of friends and relatives in Vienna and Paris and London,” he wrote Roosevelt, “but also think of what burdens these anxious days are casting on you.” On September 1, the Nazis invaded Poland. Two days later at 4:30 a.m., Roosevelt was awakened by Prime Minister Chamberlain informing him that Britain and France had declared war on Germany. Near the end of his fireside chat that night, Roosevelt pledged to a national radio audience that America “will remain a neutral nation, but I cannot ask that every American remain neutral in thought as well.” He could have been speaking directly to Frankfurter.
In early September, Frankfurter cut his Massachusetts vacation short to assist Roosevelt in amending the Neutrality Acts. He relayed information from Boston Herald editor Frank Buxton that many of the nation’s major newspapers were against the law. He also drafted language for the president about why the acts should be amended: “A so-called Neutrality law which in practical operation favors the forces of oppression must be fundamentally wrong in conception. It runs counter to American traditions and ideals and is in conflict with international law.” Roosevelt copied Frankfurter’s statement in longhand and attached it to notes for a major speech. On September 21, the president called Congress back for a joint special session and asked for the repeal of embargo provisions in the Neutrality Acts preventing the sale of arms and war materials to Allied countries fighting the Nazis.
The next day, Frankfurter made front-page news by attacking neutrality. Before a crowd of 700 people, the Ford Hall Forum awarded him the gold medal for public service. In his acceptance speech, he blasted neutrality as “one of those slogans and catch words that cover up thought.” As he had written to Roosevelt, he argued that “we can agree to be a non-combatant. But it is our right and duty to have thoughts on issues involving human destiny. No man who thinks really is neutral.” He referenced a recent speech by Hitler criticizing the democratic tradition of free speech and free press: “How can we be neutral on an issue like that unless we close our minds to the cardinal, basic doctrines of our civilization?”
The war had been on the Frankfurters’ minds since their return to America two months earlier. “You know how deeply our visit touched us—for we never escaped the conviction that war was inevitable,” Frankfurter wrote Arthur Goodhart. “The leopard couldn’t change his spots—and John Bull, once the issue was clear, was John Bull.” Marion wrote Isaiah Berlin, “You would think we were in it up to the neck.” She described housewives hoarding sugar, congressmen pontificating during long radio addresses, and Senator Borah vowing to fight the repeal of the Neutrality Acts—“everybody in Washington is working day and night.”
WORKING SINCE JUNE on Frankfurter’s day job was his precocious former student and new law clerk, Edward Fretwell Prichard, Jr. Everyone called him Prich. He was young, brash, and fat. At more than 250 pounds and with a large shock of hair, he had been impossible to miss in the back of the crowded Senate Caucus Room at Frankfurter’s confirmation hearings or at the swearing-in ceremony. A native of Paris, Kentucky, Prich had enrolled at Princeton at age sixteen and had graduated summa cum laude and class orator. Frankfurter had met Prichard in April 1935 while giving a series of Princeton lectures about federalism and was miffed when the young man had not come to see him upon arriving in Cambridge. He asked whether Prich expected a “Tiffany engraved invitation” and informally invited him to the house for tea. Prich quickly became a regular at the Frankfurters’ Sunday afternoon teas, made the Harvard Law Review, and aspired to succeed Rauh as Cardozo’s law clerk. Instead, he became Frankfurter’s last graduate research assistant, working on Mr. Justice Holmes and the Supreme Court; a memorial tribute to Cardozo; and several articles with Henry Hart including an installment of “The Business of the Supreme Court.” He interacted with professors, particularly Frankfurter and Thomas Reed Powell, more like a colleague than a student. After he heard about Frankfurter’s nomination, he wired him: “When do we leave?” Frankfurter, who wanted Prichard to finish his fellowship, wired back: “I leave on confirmation, you leave at the end of the term.” Prich was irreverent, gossipy, and destined for greatness. The Louisville Courier-Journal story about his Frankfurter clerkship described him as “the ‘future governor of Kentucky.’ ”
During the summer of 1939, Frankfurter had asked the Clerk of the Court to send copies of petitions for certiorari to Kentucky so that Prichard could read them. While the Frankfurters were living at the New Milford, Connecticut, home of Dr. Alfred Cohn, Prichard joined them for about ten days. During the day, he and Frankfurter reviewed certiorari petitions and prepared for the coming term; at night they listened to the radio for news about the war in Europe.
In October, the Frankfurters moved back to Washington, D.C., renting a home at 1511 Thirtieth Street in Georgetown where they lived for the next two years. Prichard and several friends moved into a Dupont Circle house at 1915 S Street, but it was too small. They rented an old mansion named Hockley, which overlooked the Potomac River on the other side of the Key Bridge in Virginia. The next iteration of Corcoran and Cohen’s little red house, Hockley was House of Truth 3.0. A group of young men, mostly lawyers, lived at Hockley. Prich’s housemates were his friends from Princeton and Harvard Law School: Covington associate William DuBose Sheldon; former Frankfurter clerk and Covington associate Adrian Fisher; and Washington Post reporter John Oakes. They threw noisy dinner parties where they debated ideas with Frankfurter, Acheson, Learned Hand, and other special guests. They also invited interesting young women, including the Washington Post publisher’s daughter, Katharine Meyer.
A young reporter at her father’s newspaper, Meyer gravitated to one of the most charismatic Hockley boys besides Prich himself—a tall, skinny, former Harvard Law Review president named Phil Graham. They had met at the S Street house, where he continued to live with two other former Review presidents, former Brandeis clerk Graham Claytor and Ed Huddleson. The son of a struggling Florida dairy farmer and former state senator, Graham had attended the University of Florida (where he had roomed with future U.S. senator George Smathers) and had thrived at Harvard Law School. After he made the Review, he became fast friends with Prich, who was a year ahead of him. It was Prich who had helped Graham become the compromise candidate for Review president and who had introduced Graham to Frankfurter. As he did with Prich, Frankfurter grew close to Graham. In those days, justices hired only one clerk. Frankfurter was forced to choose: he hired Prich for the coming term, sent Graham to clerk for Stanley Reed, and promised Graham that he would succeed his friend in Frankfurter’s chambers.
The 24-year-old Prichard was riding high after co-editing a book of Frankfurter’s articles, essays, and lectures, Law and Politics. Yet his work in chambers got off to a rocky start. In writing opinions, Frankfurter would dictate, and Prichard would type. They would discuss the issues in each opinion, then they would revise two or three times. In an opinion released in December 1939, Frankfurter relied on an Oklahoma Supreme Court decision that Prichard had neglected to Shepardize; that is, check by looking in Shepard’s, a series of books that would have revealed the case had been overruled. As soon as a petition for rehearing pointed out the error, Prich left town. Frankfurter asked Rauh and Graham where he was. “Prich,” Graham quipped to Claytor, “has an acute case of Sheparditis.” Frankfurter, who withdrew and revised the opinion, informed Rauh all was forgiven; a chastened Prichard returned to chambers and begged Frankfurter for forgiveness.
On November 16, 1939, Justice Pierce Butler died. With Van Devanter and Sutherland’s retirements and Butler’s death, James C. McReynolds was the last of the conservative Four Horsemen; the other three had been replaced by Roosevelt. To succeed Butler, Roosevelt nominated another Catholic midwesterner, Attorney General Frank Murphy. Murphy hired Ed Huddleson, Graham’s housemate and predecessor as Harvard Law Review president, as his first clerk. Frankfurter tried to take Murphy under his wing as he vied with Black and Douglas for the Court’s leadership.
Black was emerging as a leading liberal voice. In February 1940, he authored the majority opinion in Chambers v. Florida reversing the murder convictions of four black men because their confessions had been coerced. The opinion was a major rebuke to law enforcement officials accustomed to beating and torturing blacks into confessing to crimes. Like Black, Frankfurter believed that the Fourteenth Amendment’s Due Process Clause could be used to outlaw egregious criminal procedure violations as a way of eradicating the two-tiered system of racial justice in the South. The following term, Frankfurter stayed the execution of Joe Vernon, a black Alabama man who had been beaten until he confessed to murdering a white gas station attendant, five minutes before Vernon was supposed to die. The Court agreed to hear the case and summarily reversed Vernon’s conviction on the basis of Chambers v. Florida. Frankfurter sent Black’s groundbreaking opinion on coerced confessions to Roosevelt and several others, admired how hard Black was working on the Court, and predicted that “when the history of the Supreme Court was written, Black would stand out as one of the great justices.”
