Democratic Justice, page 60
The Court’s precedents, Frankfurter argued, also pointed to a different result. Walter Barnett had a choice—send his children to public school to participate in flag salutes and other forms of civic education or enroll his children in a private religious school. Frankfurter invoked Pierce v. Society of Sisters, which invalidated an Oregon law requiring children to attend public schools. He also argued that Jackson’s opinion had failed to distinguish Cardozo’s concurring opinion in Hamilton v. Regents of the University of California, which rejected a student’s religious objections to a public university’s required military science class. Finally, he argued that the Court had considered the flag salute issue on five prior occasions: three times dismissing it as raising no federal question, once dismissing it in a summary opinion, and once in Frankfurter’s 8–1 Gobitis opinion. He listed the “outstanding judicial leaders” who had joined those opinions including Hughes, Brandeis, and Cardozo, “to mention only those no longer on the Court.”
At lunch on Monday, June 14, Stone confessed to Frankfurter that the references to these prior cases and judicial heroes had made the chief justice “writhe” because Stone had not spoken up before Gobitis. Stone, however, claimed that Cardozo had voiced concerns during one of the earlier cases. And Black claimed that he had suppressed his negative vote. A few days earlier, Stone’s law clerk Boskey had suggested to Elman that the chief justice would request that the references to those past decisions “be changed” because Stone and Cardozo had expressed doubts at prior conferences—contrary to what Stone had confided to Frankfurter at lunch. Roberts remembered “no such protest” by Cardozo or anyone else and that Brandeis had suggested affirming the case “without an opinion.” The justices’ private docket books reveal that Stone and Brandeis, but not Cardozo, voted to hear one or two of the early cases on the merits.
The outcome also should not have been different in Barnette, Frankfurter argued, merely because of the additions of Jackson and Rutledge. The Court, he insisted, should resist the “pressures of the day” and should “take a view of longer range than the period of responsibility entrusted to Congress and legislatures.” He observed how the Court looked like a legislature in Barnette because “[t]hat which three years ago had seemed to five successive Courts to lie within permissible areas of legislation is now outlawed by the deciding shift of opinion of two Justices.”
In a stirring conclusion about the dangers of unchecked judicial power, Frankfurter observed that Jefferson’s opposition to judicial review may have been rejected but not his and Lincoln’s “admonition against confusion between judicial and political functions.” Frankfurter refused to equate “judicial humility” with “an abdication of the judicial function.” He reminded his colleagues that Barnette was not a case requiring judicial intervention about the division of power between the federal government and the states or the separation of powers among the federal government’s legislative, executive, and judicial branches: “We are not discharging the basic function of this Court as the mediator of powers within the federal system. To strike down a law like this is to deny a power to all government.” He quoted at length from James Bradley Thayer’s essay about Chief Justice John Marshall warning about the judiciary’s ability “ ‘to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.’ ” And he concluded by distinguishing his personal views about the West Virginia law from his role as a judge: “Of course patriotism can not be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation.” He warned against confusing the wisdom of legislation with its constitutionality as “a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech much which should offend a free-spirited society is constitutional. Reliance for the most precious interests of civilization, therefore, must be found outside of their vindication in courts of law.”
The justices announced their opinions in Barnette on June 14, Flag Day. Neither of his dissenting colleagues, Roberts and Reed, joined his dissent because it was so personal—though Reed privately praised the opinion as “perfect” and “its teaching is the real basis of our judicial authority.” Liberal publications and commentators pilloried Frankfurter’s dissent. His friend and former Harvard law colleague Thomas Reed Powell attacked his dissent in the New Republic as “point[ing] strongly in the direction of legislative absolutism.” Powell, who apologized for accusing Frankfurter of misstating facts, groused to C. C. Burlingham, “I can’t help feeling that many of his votes are determined by the fact that Black votes the other way.”
Only a few people’s opinions mattered to Frankfurter. On June 15, he sent his Barnette dissent to retired Chief Justice Hughes even though he knew that Hughes had received all the circulated opinions. He wrote Hughes that the Gobitis assignment three years earlier was “one of the most cherished memories of all my years—all too short—under your leadership.” Hughes broke his rule of not commenting on his former colleagues’ opinions. He praised Jackson’s opinion for stating his side “as cogently as was possible” but believed that Frankfurter had “knocked one of the main props of the decision” by pointing out that Pierce v. Society of Sisters outlawed compulsory public education. Once the parents decided to send their children to public schools, Hughes wrote, the state had the “authority” to use its public schools “to provide for instruction and training and to promote good citizenship,” including “appreciation of our institutions of which the Flag is a symbol.” Hughes rejected the argument that the compulsory flag salute was arbitrary and capricious and therefore violated the Due Process Clause. He surmised that Cardozo, based on his opinion about public universities in Hamilton v. Regents; Brandeis, based on his concurrence in prior flag salute decisions; and Holmes, “unless he departed from principles he so stoutly maintained,” would have joined Frankfurter’s dissent. Hughes’s letter and references to Cardozo, Brandeis, and Holmes reaffirmed that Frankfurter had made the right decision and had not changed his constitutional principles one iota.
On June 27, the president hosted the Frankfurters for their annual late afternoon visit before they left Washington for the summer. The previous month Frankfurter had sent Roosevelt some of the term’s earlier Jehovah’s Witnesses opinions for his presidential library. “They ought to furnish to the future historian food for thought on the scope and meaning of some of the Four Freedoms—their use and their misuse,” he wrote the president. During the Frankfurters’ 1940 visit to Hyde Park a few months after the Gobitis decision, Eleanor had remarked that “there seemed to be something wrong with an opinion that forced little children to salute a flag” contrary to their religious beliefs and “had feared the decision would generate intolerance, especially in a period of rising hysteria.” The president had sided with Frankfurter that the law was “ ‘stupid, unnecessary, and offensive’ but it fell within the proper limits of their legal power.”
A few days after his June 27 White House visit, Frankfurter praised the president for commuting the death sentence of a pro-Nazi Detroit restauranteur, Max Stephan, to life imprisonment. The Court had declined to hear Stephan’s case on April 3 and rejected a final appeal on June 1. After reading the record, Frankfurter voted not to hear the case because it raised no constitutional issues. For harboring and arranging transportation for an escaped German prisoner, Stephan had been convicted under the Espionage Act and sentenced to death by hanging. Frankfurter praised the president’s “profoundly wise” decision differentiating between “evil deeds that do require the ultimate punishment and those that do not.”
Frankfurter’s Barnette dissent cannot be divorced from his obsession with the war to save civilization, his belief that Roosevelt was the greatest wartime president since Lincoln, and his extensive involvement with wartime policy making. His flag salute opinions revealed his skepticism about judicial power and his boundless democratic faith. It was not hard for Frankfurter to believe that the political process, not the Court, led to more liberal outcomes—especially with Roosevelt in the White House for the past eleven years. Some of the Roosevelt administration’s war policies clashed with its commitment to liberalism. And at the state level, the political process failed to stop racial injustice. As a result, Frankfurter began to adapt judicial restraint to protect minority rights.
CHAPTER 26
Race, Redemption, and Roosevelt
After a summer in which liberals lambasted his dissent in West Virginia v. Barnette, Frankfurter received the perfect opportunity to explain the role of the Supreme Court in American democracy, when the Court should depart from prior decisions, and how the Fourteenth Amendment should be interpreted to protect the rights of African Americans. Smith v. Allwright could have transformed his reputation in the eyes of his liberal critics and charted a new course for the Court with regard to race.
Shortly before 4:00 p.m. on November 10, 1943, Thurgood Marshall, the NAACP’s special counsel, stood before the justices on behalf of Dr. Lonnie E. Smith, a black Houston dentist who had been denied the right to vote in the Texas Democratic Party’s congressional primary because of his race.
The NAACP and its Texas chapters had been fighting the state’s exclusion of black voters for years. In 1927, Justice Holmes wrote a unanimous opinion in Nixon v. Herndon that Texas had violated the Fourteenth Amendment rights of black El Paso physician L. A. Nixon by excluding him from the state’s Democratic primary because of his race and that Nixon had a claim for damages. Texas responded by passing a law that delegated the primary process to the state executive committee of the Democratic Party. Five years later, Nixon returned to the Court because he had again been denied the right to vote in the Democratic primary. In a 5–4 decision in Nixon v. Condon, the Court ruled that the state’s delegation of power still constituted “state action” in violation of the Equal Protection Clause. In response, the Texas Democratic Party, a private organization, passed its own resolution banning blacks from voting in its primary elections. R. R. Grovey, a black voter denied an absentee ballot by the county clerk, sued for damages. In a unanimous opinion in Grovey in 1935, Justice Roberts agreed with the Texas courts that the state’s Democratic Party primary elections were paid for and run by private officials and not by state officers, and therefore there was no equal protection violation. As a result, southern states dominated by the Democratic Party turned their primary systems over to private organizations and effectively excluded black voters from the political process. The stakes, nine years later in Smith v. Allwright, were enormous. “This is conceivably the most important case affecting the Negro which has come before the Supreme Court,” NAACP executive secretary Walter White said while waiting for the oral argument to begin.
The NAACP’s legal team looked much different than the one that Frankfurter had advised during the 1930s. In 1938, Charles Hamilton Houston, a former student and the first black member of the Harvard Law Review, had returned to private practice while continuing to advise the organization. Houston’s protégé Marshall had become the NAACP’s special counsel and William Hastie, another former student and the second black member of the Harvard Law Review, had replaced Houston as chair of the NAACP’s National Legal Committee. On January 31, 1943, Hastie had resigned as a civilian aide in the War Department to protest the Army Air Forces’ decision to establish a separate training facility for black soldiers. That fall, Hastie resumed his deanship of Howard University Law School and made his first Supreme Court appearance as Marshall’s co-counsel.
Marshall and Hastie faced a much different Court in 1943 than their predecessors had eight years earlier. Only two justices, Roberts and Stone, remained from Grovey v. Townsend; Roosevelt had named seven new justices and Stone as chief justice. With Stone presiding, Marshall argued that Grovey should be overruled in light of the Court’s 1941 decision in United States v. Classic. In Classic, the Court upheld the indictments of Louisiana officials for miscounting and tampering with ballots in the Democratic Party’s congressional primary election. In his majority opinion, Stone refused to be bound by the argument that the framers of Article I, Section 2, did not have primary elections in mind. Instead, he insisted that congressional power over elections extended to primaries because they had become an integral part of the electoral process. Stone’s opinion in Classic did not address the validity of Grovey v. Townsend. Nor did the U.S. government ask the Court to overrule Grovey in the Classic briefs or at argument. Frankfurter, however, had wanted to be explicit about Classic’s racial implications and had suggested that Stone add a paragraph: “The Fourteenth Amendment by its prohibition of racial discrimination meant to put all citizens of the United States on a political equality. If interference with a Negro’s right to participate in a primary is interference with a right secured by the Constitution, the same interference against citizens who are not Negroes must equally be an interference with the right secured to all citizens by the Constitution.” Instead, Stone ducked the Fourteenth Amendment question out of fear of losing his five-vote majority. Douglas, joined by Black and Murphy, had dissented in Classic because they believed that the federal criminal law in question only addressed general elections, not primaries. Frankfurter’s Fourteenth Amendment paragraph would have put the dissenters in a tough position—which was just what he wanted. “There are some things that one wishes one had never seen,” Frankfurter wrote Stone. “The Classic dissent is for all one of these.”
During his oral argument in Smith v. Allwright, Marshall observed that Texas primary elections were no different than Louisiana’s and urged the Court to follow its reasoning in Classic. Hastie added that the record in Smith “destroys the factual basis for the decision in Grovey”—that the state played no role in the primary process or in denying blacks voting rights. The other justices turned to a “redden[ed]” Roberts, Grovey’s author, and expected a response. Neither Roberts nor his colleagues asked any questions. On November 13, all the justices except Roberts, who passed, voted to overrule Grovey. But they were concerned because the state of Texas had not filed a brief or appeared in the case (on the theory that the primary had been run by a private organization). On December 6, they granted a motion from Texas officials to file a brief and to appear at a second oral argument.
On January 10, 1944, Marshall and Hastie once again represented Lonnie Smith, this time opposed by Texas’s assistant attorney general George W. Barcus. Barcus claimed that the Democratic Party was merely a private club, not a state entity capable of violating the Fourteenth Amendment. And in response to Hastie’s assertion that there were 571,000 black residents of voting age in Texas, Barcus suggested that they should form their own political party and “could whip us any time.” Marshall countered that “Texas was run by Democrats” and if blacks wanted to participate in their government in a meaningful way, “they must go with the Democratic party.”
At conference, the justices, except for the dissenting Roberts, again voted to overrule Grovey v. Townsend. Stone wanted to rely on his opinion in United States v. Classic. Frankfurter, however, emphasized that the Court should overrule Grovey “without any pussyfooting and in the most candid possible way we should state that the Court has changed its vie[w]s not on any new facts or any new factors but solely on different notions of policy.” The Court in Classic had explicitly declined to reconsider Grovey. Frankfurter did not want to rest the Court’s opinion on the importance of the primary process. Instead, he wanted to concede that the Court had changed its interpretation of the Fourteenth Amendment and its requirement of state action to include the exclusion of blacks from primary elections. The Court should admit that Grovey had been a wrong turn. The problem was the exclusion from primaries on the basis of “irrelevant discrimination.”
Two days later, Stone assigned the majority opinion in Smith v. Allwright to Frankfurter. That afternoon, Jackson stopped by Frankfurter’s chambers and argued that he was the wrong choice to write the opinion from the perspective of the South for three reasons: “You are a New Englander, you are a Jew and you are not a Democrat—at least not recognized as such.” Frankfurter conceded that Jackson’s “accusations are true.” Jackson believed that Stone should reassign the opinion and that it should be written either by the chief justice or by one of the Court’s southerners, Black or Reed. “Of course, I am primarily interested in this matter for the Court’s sake, but I am also concerned about you,” Jackson told Frankfurter. “A lot of people are bent on exploiting Anti-Semitism, as you well know, and I do not think that they ought to be given needless materials.” Frankfurter was not offended by Jackson’s suggestion and gave him permission to write Stone. Jackson’s letter to Stone described his discussion with Frankfurter and warned him that “the Court’s decision, bound to arouse bitter resentment, will be much less apt to stir ugly reactions if the news that the white primary has been outlawed is broken to it, if possible, by a Southerner who has been a Democrat and is not a member of one of the minorities which stir prejudices kindred to those against the Negro.”
That night, Stone phoned Frankfurter and asked to see him the next day in chambers. With a pained and burdened look on his face, Stone began to recount his conversation with Jackson. Frankfurter cut him off, insisted “we were all on the same team,” and it would be fine if Stone reassigned the case. Stone then asked Frankfurter for suggestions, mentioning Black and Reed but confessing he “did not know what Black would do to it.” Stone discounted Douglas, who hoped to be on the presidential ticket in November 1944, as “political.” The comments reflected Frankfurter’s mistrust of Black and Douglas as much as they did Stone’s.
