Democratic Justice, page 59
At conference on June 5, Frankfurter passed notes to Murphy trying to talk him out of publishing a dissent in Hirabayashi objecting to the military order as discrimination on the basis of “ancestry.” He asked whether Murphy was writing his two Indian law cases “on the assumption that rights depend on ‘ancestry’? If so—I cannot give my imprimatur to such racial discrimination!” Murphy answered: “I would protect rights on the basis of ancestry—But I would never deny them.” Frankfurter replied: “That’s not good enough for me. I don’t want any of my fellow-citizens to be treated as objects of favor i.e. as inferiors!” A few days later, Frankfurter encouraged Murphy to ask Stone to make changes to the majority opinion rather than jeopardize “the great reputation of the Court.” Much to Frankfurter’s relief, Murphy published his dissent as a concurrence. Murphy’s opinion raised important concerns that this was “the first time” the personal liberty of citizens had been abridged “based upon the accident of race or ancestry,” compared it to the treatment of Jews in Germany and the rest of Europe, and warned that the government had created “two classes of citizens . . . on the basis of ancestry.” Frankfurter had no such qualms. “For the life of me,” he wrote to Stone in joining his opinion, “I cannot see why this should not satisfy every one. It will—all who are guided by reason.”
Frankfurter’s intense patriotism and the Court’s internal discord collided in a case involving the secretary of the California Communist Party, William Schneiderman. A Russian immigrant who had arrived in this country at age two, Schneiderman joined the party at age sixteen and became a naturalized U.S. citizen five years later. He ran for governor of Minnesota at age twenty-four on the Communist Party ticket, visited Russia in 1935, and was a follower of Stalin. A federal judge revoked Schneiderman’s citizenship as fraudulently obtained because he had lied about his political affiliation with the Communist Party—which advocated the overthrow of the U.S. government in direct contrast to his oath as a naturalized citizen to uphold the Constitution. The trial judge’s decision was affirmed on appeal.
At the request of Schneiderman’s counsel, the Court delayed the case during the spring of 1942 because the United States and Russia had become allies against Germany and the case might jeopardize the war effort. The case was originally argued on November 9, 1942, before a seven-member Court (Byrnes had resigned and Jackson had recused himself as a former attorney general) and with 1940 Republican presidential nominee Wendell Willkie representing Schneiderman.
At conference on December 5, 1942, Frankfurter launched into an impassioned speech, the kind that annoyed his colleagues to no end. As the only naturalized citizen on the Court, he acknowledged that “this case arouses in me feelings that could not be entertained by anyone else around this table. It is well known that a convert is more serious than one born to the faith. None of you has had the experience that I have had with reference to American citizenship.” He remembered his joy in college when his father became naturalized and his experience as an assistant U.S. attorney in naturalization proceedings. He acknowledged his overriding patriotism: “As one who has no ties with any formal religion, perhaps the feelings that underlie religious forms for me run into intensification of my feelings about American citizenship.” After reading a letter by another naturalized citizen, Italian historian Gaetano Salvemini, Frankfurter argued that “American citizenship implies entering upon a fellowship which binds people together by devotion to certain feelings and ideas and ideals summarized as a requirement that they be attached to the principles of the Constitution.” The only question about the case was whether there was enough evidence to overturn the findings of a federal judge that Schneiderman was not “attached to the principles of the Constitution” as required by law. He did not argue that every Communist Party member was not attached to the Constitution. But, in this case, he saw no grounds for reversal. Frankfurter’s speech did not win any votes. Two of the justices who had spoken before him, Stone and Roberts, voted to affirm. But Black, Reed, Douglas, and Murphy voted to reverse. The Court, however, was unwilling to reverse on only four votes. A week later, they agreed to reargue the case later in the term so the new justice could join them.
Few newspapers covered the March 23, 1943, reargument, and the ones that did wrote only about Willkie’s performance and new justice Rutledge’s frequent questions. They missed a verbal showdown, captured in Frankfurter’s diary, between Frankfurter and Black. “Is there anything more than his agreement to general political talk?” Black asked Solicitor General Charles Fahy. “Is it suggested that the Communist Party has no principles?” Frankfurter interrupted. Black, “with blazing eyes and ferocity in voice,” shot back: “The Hearst Press will love that question.” Frankfurter, who was still smarting about Douglas’s comment in the fall of 1940 that Black had changed his mind about the flag salute case after reading the newspapers, responded: “I don’t give a damn whether the Hearst press or any other press likes or dislikes any question that seems to me relevant to the argument. I am a judge and not a politician.” To which, Black replied: “Of course, you, unlike the rest of us, live in the stratosphere.”
At conference, Black had the upper hand. If Learned Hand had been nominated, the Court likely would have been divided 4–4 and the lower court opinion would have been allowed to stand. Instead, with Rutledge joining Douglas, Murphy, and Reed, Black had five votes to stop the revocation of Schneiderman’s citizenship and assigned the majority opinion to a former attorney general and the justice most on the fence, Murphy. Stone agreed to write on behalf of the three dissenters.
In Frankfurter’s mind, Murphy and Douglas were to blame for the outcome and bad feelings. On May 31, Frankfurter wrote in his diary that Murphy’s majority opinion “reflects cunning and disregard of legal principles to which Hugo Black gave expression from time to time in connection with this case. It is one of those extraordinarily shortsighted opinions which, to accomplish an immediate end, is quite oblivious of its implication for the future.” Roberts was “deeply disheartened” by it. The next day, Murphy confessed that his own opinion “skates on the thinnest possible ice—awfully thin”; Roberts suspected that Black may have written most of it. On June 15, Douglas circulated a concurrence just before he left for the West, leaving Murphy little time to adjust his majority opinion before the end of the term. Murphy was “shocked by such behavior” and “skullduggery.” Frankfurter and Murphy believed that Douglas’s concurrence was motivated by his desire to restore Schneiderman’s citizenship yet maintain his anti-Communist bona fides so that he could run for president in 1944. The next day, Frankfurter tried to persuade Murphy to abandon his majority opinion and create a 4–4 tie—which would have preserved the lower court opinions revoking Schneiderman’s citizenship. Murphy, however, said “it was too late.” On June 20, the Court announced Murphy’s majority opinion restoring Schneiderman’s citizenship. Frankfurter contributed ideas to Stone’s dissent and concluded: “If Law were only half-Reason in this case, the majority opinion could not survive your dissent.”
The biggest case of the term for Frankfurter—and the one that epitomized his democratic faith—was the second Jehovah’s Witnesses flag salute case. It was only a matter of time before his majority opinion in Gobitis was reversed. With Rutledge on their side, the Black-led liberals had shown little regard for precedent in Jehovah’s Witnesses cases earlier in the term. Rutledge provided a fifth vote for invalidating license taxes for selling literature door to door, reversing the Court’s decision the previous term in Jones v. Opelika. Stone confided that he was “very sorry” to join and “ashamed” of Douglas’s “inexcusable” majority opinions because they “did not properly formulate or discuss the issues.” In dissent, Frankfurter argued that a tax cannot be invalidated “merely because it falls upon persons engaged in activities of a religious nature” and that exempting religious organizations from taxes of general applicability jeopardized the separation between church and state. He also dissented from another 5–4 decision overturning a city ordinance outlawing door-to-door knocking and proselytizing.
The growing opposition to Gobitis was unsurprising. The 1940 decision had sparked violence against Jehovah’s Witnesses all over the country. Less than a week after the decision, a mob in Kennebunk, Maine, had burned the Witnesses’ place of worship to the ground. Inspired by Gobitis, many states had passed laws about teaching schoolchildren about American citizenship and respect for the flag. A West Virginia law commanded its schools to provide classes in history, civics, and the U.S. Constitution “for the purposes of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism.” On January 9, 1942, the state board of education adopted a resolution that required a stiff-armed flag salute and pledge of allegiance as part of each school day. Unlike in Gobitis, where the flag salute in Minersville, Pennsylvania, was merely a local custom, this one was backed by state law and the state board of education.
Walter Barnett (incorrectly spelled “Barnette” by the district court clerk), a pipefitter for the DuPont chemical company and devout Jehovah’s Witness, sued the school board on behalf of his two daughters, Marie, eight, and Gathie, nine, both of whom were sent home from school every day for refusing to salute the flag. Each morning, Marie and Gathie returned to school only to be sent home to prevent their father from being arrested because of his daughters’ truancy. As Jehovah’s Witnesses, the Barnetts believed that saluting the flag was worshipping a false idol. Along with several other families, the Barnetts challenged the state’s compulsory flag salute law in federal court.
A three-judge panel heard the Barnetts’ case, led by federal court of appeals judge John J. Parker. Parker’s Supreme Court nomination had been rejected by the Senate in 1930 and another potential nomination scuttled in 1941 by Frankfurter’s unenthusiastic evaluation of his opinions. In writing the lower court’s opinion, Parker ordered the board of education to stop enforcing its compulsory flag salute against the plaintiffs and to permit the return of the Barnett daughters to school. The flag salute, Parker wrote, violated their “religious liberty.” In a bold move for a lower court judge, Parker declared Frankfurter’s majority opinion in Gobitis had been “impaired as an authority” because of the opposition of Stone and three additional dissenting justices in Jones v. Opelika in 1942. For his prediction to come true, Parker needed a fifth vote to reverse Gobitis from one of the Court’s newest members, Jackson or Rutledge.
The state of West Virginia appealed Parker’s decision directly to the Supreme Court. The ACLU and the ABA Special Committee on the Bill of Rights filed friend of the court briefs in support of the plaintiffs and advocated overruling Gobitis. Four days after the March 11, 1943, oral argument, six justices (Stone, Black, Douglas, Murphy, Jackson, and Rutledge) voted to do just that. The lone dissenter in the 1940 case, Stone could have written the opinion himself but decided to assign it to someone who could retain the most votes. He and his senior law clerk Bennett Boskey ruled out the newest justice, Rutledge, who would have written such a bold opinion that others in the majority may have declined to join it. Instead, Stone assigned the opinion to the Court’s second-newest justice and Frankfurter’s closest colleague, Jackson.
Having concurred and dissented with Frankfurter in other Jehovah’s Witness cases that term, Jackson drew the line at a compulsory flag salute. He believed that the Court should intervene to protect free speech and had made his opposition to Gobitis known. He was the ideal justice to write the majority opinion overruling Gobitis because he was a former attorney general and longtime Justice Department lawyer who could not be charged with disloyalty to his country. And he was an elegant writer who crafted eloquent essays rather than opinions filled with citations and legal jargon.
In Barnette, Jackson described the compulsory flag salute as a violation of free speech, not religion. The First Amendment, he wrote, protected “the individual’s right to speak his own mind” and forbade “public authorities to compel him to utter what is not in his mind.” He characterized Frankfurter’s view in Gobitis that liberty of the individual to speak his mind cannot trump the ability of government to function as an “oversimplification.” And he rejected Frankfurter’s argument that the policies of public schools should be left to the states and to the democratic political process. “The very purpose of a Bill of Rights,” Jackson argued, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Freedom of speech and religion, he continued, “may not be submitted to vote; they depend on the outcome of no elections.” Jackson concluded by celebrating the country’s “rich cultural diversities” and making speech, thought, and religion free from governmental coercion: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Frankfurter refused to allow his law clerk Phil Elman to prepare a draft dissent and procrastinated so much that Chief Justice Stone started to become anxious about completing the term. On June 2 and 3, Frankfurter worked all day on his Barnette dissent. He dictated thoughts to secretary Lee Watters and put them in a drawer. On June 4, Frankfurter apologized to Jackson for the delay in writing “the expression of my credo regarding the function of this Court in invalidating legislation.” He stayed home from the office on June 10 to work on it. That night, he invited Elman to dinner. At 9:00 p.m., fortified by food and wine, they retreated to the justice’s second-floor study to write the dissent. Frankfurter pulled out his folder of papers and began dictating the opinion to Elman, who sat at the typewriter and made suggestions along the way. They worked until 2:00 a.m. Elman did not go to bed. He took home the “huge stack of pages,” edited and “rearranged” it, and the next morning gave the draft to the secretary so that it could be sent to the printer. On June 11, Frankfurter spent the entire day reading and editing the printed version. The next morning, he circulated it to his colleagues.
During their late-night drafting session, Elman and Frankfurter had disagreed about including the dissent’s personal opening paragraph: “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores.” Elman argued that the reference to Frankfurter’s Jewishness undermined his argument about judicial “disinterestedness.” But their disagreement ended that night when Frankfurter said: “Phil, I’ve heard enough. This is my opinion, not yours.” Frankfurter’s colleagues agreed with Elman. At the final conference on June 13, Frankfurter explained to Roberts that he had been inundated with letters after Gobitis telling him that “as a Jew” he “ought to protect minorities, etc.” After Parker’s lower court opinion, he received letters insisting that it was Frankfurter’s “duty” to rule in favor of the Jehovah’s Witnesses as “a Jew and an immigrant.” Frankfurter was determined “to go on record that in relation to our work on this Court, all considerations of race, religion, or antecedents of citizenships are wholly irrelevant.” Roberts said he was satisfied by Frankfurter’s explanation, but few others were. Frankfurter believed that Black had put Roberts up to it because of Black’s policy of “not mentioning such things.” Yet Frankfurter believed that “to keep all reference to anti-Semitism or anti-Catholicism hidden is the best kind of cover under which evil can operate.” Just before they announced the Barnette opinions the next day from the bench, Murphy approached Frankfurter “as a friend” and “for your benefit” and argued that the opening sentences were “too personal.” C. C. Burlingham also caught wind of it and advised him to remove the opening sentences. Frankfurter, however, had been thinking about the opening lines of his dissent “for months” and wanted to underscore “what I conceive to be basic to the function of this Court and the duty of the Justices of this Court.”
THE LASTING IMPORT of Frankfurter’s dissent in Barnette was its deep skepticism about judicial power. His takeaway was that, except in extreme circumstances, the Court should not overrule state or federal laws. Judges, moreover, should not read their personal views into the Constitution by invoking the liberty provision of the Fourteenth Amendment’s Due Process Clause. Nor did the underlying free speech issues provide the justices with more right to intervene than if some other provision of the Bill of Rights were at stake. The question, for Frankfurter, was not whether he agreed with the West Virginia law but whether “reasonable legislators” could have enacted a flag salute law with the goal of promoting “good citizenship.” He believed that “judicial self-restraint” meant that the Court’s function was not “comparable to that of a legislature,” and the justices were not “free to act as though we were a super-legislature.” He invoked a Holmes opinion that “ ‘it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ ” Barnette went to the heart of Frankfurter’s faith that “responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court’s only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered.”
