Democratic Justice, page 6
During his first few months on the job, Frankfurter wanted to make Stimson the Taft administration’s leading New Nationalist voice. He seized an early opportunity, his boss’s upcoming November 14 speech for the Kansas City Commercial Club. In a September 9 letter, Frankfurter proposed an ambitious agenda for the Kansas City speech: “I assume that your larger purpose is to identify the Republican Party in the public mind as the liberal party and thereby, more immediately further the interests of the administration as the exponent of liberalism.” He wanted to define liberalism on the basis of Lincoln’s and Roosevelt’s “faith in democracy,” the rejection of the “old laissez-faire philosophy,” and tackling of the “problems of modern capitalism and labor and the growing need of a social program.” Item one on Frankfurter’s social program, the one he wanted Stimson to advocate before the Kansas City Commercial Club, was a call for new laws to supplement the Sherman Antitrust Act so the federal government could regulate large industrial corporations.
Like many Roosevelt supporters, Frankfurter doubted Taft’s willingness to prosecute monopolies and deemed the president too deferential to the Supreme Court. Since the Court’s 1895 E.C. Knight decision declaring that manufacturing was not commerce and making it difficult to prosecute the Sugar Trust, most progressives viewed the judiciary as the biggest obstacle to the enforcement of the antitrust laws. In May 1911, the Court had ordered the dissolution of John D. Rockefeller’s Standard Oil Company and the American Tobacco Company. The decision, however, interpreted the Sherman Act’s broad language banning any contracts or combinations in restraint of trade as a “rule of reason,” meaning only unreasonable restraints of trade violated the law. Progressives worried that this gave the Court too much power to decide what mergers and monopolies were unreasonable. Instead, they preferred tougher enforcement of the Sherman Act, amendments to the law to specify illegal conduct, and new legislation creating an administrative agency to regulate unfair competition. They viewed antitrust policy as a way to strike the right balance between management and labor, producers and consumers, robber barons and small businesses.
The dilemma for Stimson was how to give this speech without undermining the president. During a western speaking tour in September, Taft had addressed the Sherman Act. But, ignoring Stimson’s advice to write out his speeches in longhand, he had spoken extemporaneously. As a result, the president succeeded in muddling the debate about Sherman Act enforcement and the need to amend the law. The episode reinforced Frankfurter’s preconceived notions that Taft was a lazy, undisciplined, and unhappy leader who would rather be chief justice than president. Roosevelt recruited policy experts and crafted his speeches with great care; Taft, by contrast, stuck to his pro-business prejudices and procrastinated so much that he never wrote out his speeches.
While his boss was out West on departmental business, Frankfurter sounded out influential people about antitrust policy, including the “people’s lawyer,” Louis Brandeis. In private practice, Brandeis often represented smaller manufacturers, and he was in Washington opposing the American Tobacco Company’s proposed reorganization plan. He and Frankfurter had been corresponding about curbing monopoly power for nearly a year. Brandeis believed that large corporations, by their mere size and market power, stifled competition. During lunch with Frankfurter, Brandeis declared that it was “[p]erfectly easy to get back to effective competition” and suggested using the Bureau of Corporations, which was established to study and report on big business, to supervise monopolistic trade practices. He emphasized restoring competition rather than regulation.
No friend of the Taft administration, Brandeis had humiliated the president in 1910 while representing Collier’s Magazine and advising U.S. Forest Service chief Gifford Pinchot and field agent Louis Glavis in their grievances against Secretary of the Interior Richard Ballinger. Pinchot was fired after accusing Ballinger of allowing J.P. Morgan and Guggenheim-backed interests to exploit coal-rich public land in Alaska. During the Ballinger-Pinchot affair, Brandeis revealed on cross-examination that Taft had exonerated Ballinger on the basis of a backdated memorandum. At lunch with Frankfurter, Brandeis was pessimistic about Taft, arguing that the president “doesn’t care” and “has no abiding convictions about the things that are the vital issues of the day.”
With a dark weathered face, deep-set eyes, and graying shock of hair, Brandeis reminded Frankfurter and others of Abraham Lincoln. Yet Frankfurter wished that the cold, serious, moralistic Brandeis shared Lincoln’s “patience, his magnanimity, his humor.” Brandeis was not an easy man to get to know. Yet, after their lunch, Frankfurter conceded that Brandeis was a “very big man” and “one of the most penetrating minds I know.”
Frankfurter also discussed the Sherman Act with Solicitor General Frederick W. Lehmann. The solicitor general agreed with Frankfurter that the president lacked good advisers and failed to bring together the Republican Party on antitrust policy. Lehmann disagreed with Taft about the adequacy of the Sherman Act and asserted it needed either amendments or supplemental legislation. The issue, Lehmann said, was “how to deal with corporate organizations national in character.” He preferred administrative regulation but had not thought through how to do it.
The only person’s opinion that mattered to Frankfurter was Stimson’s. Upon his return from the West, Stimson agreed with Frankfurter that Taft lacked a coherent antitrust policy. The president’s declaration that the Sherman Act was sufficient contradicted earlier statements about the need for supplemental legislation with specific prohibitions and administrative regulation of corporations. In a September 18 speech in Detroit, Taft had praised the Standard Oil and Tobacco decisions and had revealed his reverence for the Supreme Court and lack of faith in legislative change and administration regulation. Frankfurter pleaded with Stimson to use the upcoming Kansas City speech to offer an alternative vision. After rereading Taft’s speeches, Frankfurter argued that there was room for his boss to say something new without contradicting the president. The next day, Stimson conferred with Attorney General Wickersham, who suggested writing the speech and then trying to persuade the president. Stimson told Frankfurter to give it a shot.
By the end of October, Frankfurter finished a draft of Stimson’s speech declaring the Sherman Act insufficient. They proposed amendments to the law, including specific criminal offenses and penalties and new legislation creating an administrative body like the Interstate Commerce Commission to provide guidance to businesses and to declare monopolistic practices anticompetitive. “I think we realize now better than ever before,” the draft concluded, “how the interests of the manufacturer, the laborer and the consumer—the corporation, its employees and the public,—are alike bound up in common in its solution.” Stimson and Frankfurter circulated the draft to lawyers in the Justice Department and to members of the cabinet. Charles Nagel, Taft’s secretary of commerce and labor, endorsed the speech: “I am very glad that you are going to speak along these lines. It is just what Kansas City will want to hear.”
Stimson met with Taft to ask permission to give the Sherman Act speech. The president quickly said yes, but Stimson insisted he read it. Apparently, Taft did so because he suggested a different topic, the soon-to-be-completed Panama Canal. The president preferred to address antitrust policy in his message to Congress. On November 3, Stimson broke the news to Frankfurter that the Sherman Act speech was “stillborn.” They had eleven days to draft a new speech about the Panama Canal. Their hearts were not in it. “I’d give $1,000 to make that trust speech” Stimson told Frankfurter.
The episode over Stimson’s antitrust speech soured Frankfurter on Taft as president. It “left a painful impression and a striking demonstration of Taft’s lack of leadership and constructive thinking. Here he floats around the country talking on the industrial situation without having the thing at all thought out, without having formulated a definite policy after Cabinet consultation.” Taft, according to Frankfurter, was “amiable and well-intentioned” but lacked “vision and decision. He is indeed the tragedy of opportunities of greatness unrealized.”
To make matters worse, Taft tilted the Supreme Court in a more conservative direction by nominating four justices in 1909 and 1910—Horace H. Lurton, Charles Evans Hughes, Willis Van Devanter, Joseph R. Lamar, and elevating associate justice Edward Douglass White, Jr., to chief justice—and with a sixth nomination on the way. On October 14, 1911, Justice John Marshall Harlan died after nearly thirty-four years on the Court. Known for his lone dissents on race, he objected to the invalidation of the Civil Rights Act of 1875 and to upholding a Louisiana law racially segregating railroad cars. He also dissented from the Court’s decisions limiting the scope of federal power to enforce antitrust laws and to regulate interstate commerce and from the invalidation of the state maximum-hour law for bakers in Lochner v. New York. One of Frankfurter’s professors suggested Eugene Wambaugh, a Harvard law professor working in the Bureau of Corporations, as Harlan’s replacement. Frankfurter and Emory Buckner preferred a younger faculty member, Roscoe Pound. Pound’s 1909 article, “Liberty of Contract,” landed him a job on the Harvard faculty and made him a prominent critic of Lochner and other anti-labor decisions. He would have been one of the Court’s few progressives. After more than six months and with the 1912 election looming, Taft chose another conservative, Mahlon Pitney of New Jersey. The Supreme Court vacancy, like Stimson’s aborted antitrust speech, revealed how little power Frankfurter had as a War Department aide and the differences between the Taft and Roosevelt presidencies.
Roosevelt’s ideas about the judiciary continued to resonate with Frankfurter. What was refreshing for him was the Colonel’s willingness to criticize the Supreme Court and to expose it as “a conservative and timid body of the community.” The Court “failed and failed wretchedly” by not looking beyond its own “selfish interests,” and, thanks to Roosevelt, was no longer “sacrosanct.” Law schools, Frankfurter wrote, were beginning to explore Roosevelt’s ideas about how much power the Court wielded over people’s everyday lives by privileging property rights over human rights.
Disillusioned by Taft and his conservative Supreme Court, Frankfurter turned to the justice who exemplified deference to democracy, Oliver Wendell Holmes, Jr. Frankfurter’s faith in Holmes began with his dissent in Lochner v. New York accusing the majority of reading laissez-faire economic views into the Fourteenth Amendment’s Due Process Clause to invalidate New York’s maximum-hour law for bakers. Holmes also dissented from the Court’s other decisions striking down labor legislation, not because he sympathized with the working class but because he believed it was up to state and federal elected officials, not the Court, to make economic and social policy. Like Frankfurter, Holmes espoused Thayer’s belief that the Court should not strike down a law unless it was unconstitutional beyond a reasonable doubt. “I have little doubt that the country likes it and I always say, as you know, that if my fellow citizens want to go to Hell I will help them,” Holmes wrote. “It’s my job.”
In November 1911, Frankfurter sought advice from John Chipman Gray—his property professor whose casebook he had helped revise—about whether the Puerto Rico legislature could request advisory opinions from its Insular Supreme Court. Gray opposed the idea, but his efforts did not end there. He awarded him a life-changing prize: a letter of introduction to Gray’s oldest friend, Holmes:
Dear Judge:
Mr. Felix Frankfurter graduated some years ago at the Law School at the head of his class. He was one of the best men we have ever had. He has since been doing excellent work in the office of the U.S. District Attorney in New York. He is now counsel for the Bureau of Insular Affairs. They are now considering whether in the constitution, in imperial decree or pragmatic sanction for Puerto Rico, it is desirable to insert a provision authorizing the local legislature to call for opinions from the Insular Supreme Court.
He has a great admiration for you, and is very desirous to learn your opinion and the result of your experience in this matter, and he has asked me to give him a note of introduction to you, which I do with pleasure. I am quite sure he will impress you favorably.
Yours Sincerely,
John C. Gray
Ten days after Gray mailed the letter of introduction, Frankfurter walked up the steps of the wide, brick, three-story house at 1720 I Street for lunch with Justice and Mrs. Holmes. The seventy-year-old justice was more than 6 feet tall, with ramrod straight posture, a long, bushy white mustache, a full head of hair, and intense blue eyes. His wife, Fanny, a once attractive woman whose appearance and personality changed after a bad case of rheumatic fever, was short and quiet but with a wicked wit; her husband was her favorite target.
After lunch, Frankfurter and Holmes sat by the fire in the justice’s second-floor study, which doubled as his full-time office. In those days, the justices worked out of their homes. The room was brimming with books in floor-to-ceiling bookshelves. His great-grandfather’s swords from the French and Indian War hung above the mantel. A seven-drawer cherrywood desk that belonged to his maternal grandfather, a Massachusetts Supreme Judicial Court judge, dominated the center of the room. Holmes wrote all his Supreme Court opinions in longhand at his grandfather’s standup desk near the window.
The justice did most of the talking. Indeed, there was no better talker in Washington. Holmes confirmed Gray’s view on the Puerto Rico issue and more. Everything Frankfurter had heard and read about the justice was true; he was not worshiping at a false judicial idol. “I came away with the keen relish of having been on Olympus and finding that one’s God did not have clay feet . . . ;” he wrote Gray, “his penetration, his contempt for mere words and formula, and his freshness of outlook, give lasting zest and momentum to one’s groping and toiling.”
Unbeknownst to Frankfurter, he had given Holmes a sense of hope for the future. For years, the justice had labored in the shadow of his famous physician-poet father of the same name. A founder of the Atlantic Monthly; author of verse, short stories, and novels; and coiner of the phrases “Boston Brahmin” and “the Hub,” Holmes Sr. had upstaged his son at every turn. After his son had been badly wounded in the neck at Antietam, his father had written an Atlantic Monthly article, “My Hunt After the Captain,” putting himself at the center of the narrative. His son’s grueling Civil War experiences as a thrice-wounded Union army captain transformed him from an ardent abolitionist into a lifelong skeptic. Nothing Holmes accomplished in Boston after the war helped him eclipse his father’s fame—a revised edition of Kent’s Commentaries; a groundbreaking book, The Common Law (“the life of the law has not been logic; it has been experience”); a brief professorship at Harvard Law School; nearly 20 years on the Massachusetts Supreme Judicial Court, including three as its chief judge; and a nomination in 1902 to the Supreme Court of the United States.
As of 1911, Holmes’s tenure on the Supreme Court had been a bitter disappointment. He had a falling out with Roosevelt after a 1904 dissent in the Northern Securities case, which dissolved the Great Northern and Pacific Railroad Companies. Holmes thought the Sherman Act was “a foolish law.” He shared little in common with his judicial colleagues, who often asked him to take his most literary and colorful language out of his majority opinions. He had not received the recognition he felt he deserved. Initially, Harlan’s dissent in Lochner v. New York had garnered more public attention than Holmes’s. Holmes was counting the days until December 8, 1912, when his ten years on the Court allowed him to retire with a full pension. He could not wait to leave the Court and believed he would die in relative obscurity—until he met Frankfurter.
Frankfurter gave Holmes something more than friendship and hope; he introduced the justice to other bright, young New Nationalists in and out of the Taft administration. Frankfurter and his friends flattered Holmes and in time helped him achieve fame and immortality.
WITH HOLMES AND BRANDEIS part of his expanding professional network, Frankfurter introduced them to Roosevelt supporters in the Taft administration with the assistance of fellow sugar fraud prosecutor Winfred T. Denison. As one of the office’s more senior lawyers, Denison had made a national name for himself working for Stimson and prosecuting the Sugar Trust. In January 1910, he was appointed assistant U.S. attorney general in charge of customs. He traveled the East Coast giving speeches declaring the sugar fraud cases would not have been possible without Stimson hiring on the basis of merit rather than political patronage. A 38-year-old bachelor from Portland, Maine, Denison was 5' 7½" with a wide nose, wireless oval pince-nez, prominent eyebrows, full lips, and streaks of gray in his brown hair. Nearly ten years older than Frankfurter, Denison shared the same intense ambition and extroverted personality. Denison was listed in the Social Register, belonged to the Metropolitan Club and Chevy Chase Country Club, and liked to throw parties. He referred to his constant social activity as “that damn charm of mine!” Denison’s charms came with bouts of nervous exhaustion because of a history of depression. Frankfurter introduced Denison to Holmes and Brandeis; Denison introduced Frankfurter to journalist Ray Stannard Baker, Justice Department and other administration officials, and Denison’s best friend from the Harvard College Class of 1896, Robert G. Valentine.
Valentine was Taft’s commissioner of Indian affairs. After graduating from Harvard, he worked as a banker for New York financier James Stillman but longed to be a poet. For several years, he vacillated between working for one of Stillman’s interests and teaching writing to MIT undergraduates while working on his poetry. The strain between banking and poetry eventually became so great that he suffered a nervous breakdown. After Valentine recovered, he decided to start a new life in Washington. A brief meeting with President Roosevelt had been a life-changing experience. He landed a job as a secretary to Roosevelt’s commissioner of Indian affairs, Francis E. Leupp, and worked his way up to become the head of the agency. He believed in taking a scientific approach to the problems of Native Americans with health, education, and land ownership. However, the political pressures in the Taft administration proved to be difficult for Valentine. In May 1911, he suffered another nervous breakdown and, accompanied by Denison, spent part of the summer recuperating in Atlantic City.
