Democratic Justice, page 88
Frankfurter’s concern turned to Reed’s replacement. President Eisenhower, based on his disappointment with Warren as chief justice and Warren’s lack of a judicial track record, was determined to nominate a federal court of appeals judge from the Midwest. This type of thinking drove Frankfurter crazy. As he privately told friends, he blanched when Eisenhower sought to nominate a Catholic Democrat. He also thought it was unwise to choose a Supreme Court justice on the basis of geography. And he deemed it unnecessary for a nominee to have prior judicial experience. For Frankfurter, religion, party affiliation, geography, and prior judicial experience were irrelevant factors.
Instead of keeping quiet, he pressed his case against prior judicial experience on March 20 at the first Owen J. Roberts memorial lecture at the University of Pennsylvania Law School. In “The Supreme Court in the Mirror of Justices,” he observed that twenty-eight former justices and many of the great justices—Marshall, Story, Taney, Curtis, Campbell, Hughes, and Brandeis—lacked prior experience. “Greatness in the law,” he said, “is not a standardized quality, nor are the elements that combine to attain it.” A state judgeship, he argued, often did not prepare someone to serve on the Supreme Court. He contrasted the commercial and common law cases that Holmes and Cardozo faced as state court judges versus the constitutional ones that confronted them as Supreme Court justices. Of the four greatest justices of his time, Holmes, Hughes, Brandeis, and Cardozo, only two had prior judicial experience. “One is entitled to say without qualification,” Frankfurter said, “that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.” He also rejected geographic considerations, citing Idaho Senator Borah’s support for another New Yorker on the Court, Cardozo, to replace Holmes; and political affiliation, contrasting Wilson’s appointment of two Democrats, the conservative McReynolds and progressive Brandeis. Supreme Court nominees, Frankfurter concluded, should be selected on the basis of “functional fitness”—both for the Court to function as an institution and to maintain “the confidence of the people” and their “ultimate reliance on the Court as an institution.”
Eisenhower did not heed Frankfurter’s advice. Determined to nominate a midwestern federal court of appeals judge to replace Reed, the president chose a 56-year-old Eighth Circuit judge from Kansas City, Missouri, Charles Evans Whittaker. Frankfurter was appalled that two potential nominees were excluded for the wrong reasons: Sixth Circuit judge Potter Stewart of Ohio because another justice, Burton, hailed from the same state, and Walter V. Schaefer, an Illinois Supreme Court justice, because he was a Democrat. Whittaker’s comment that “I read the law to understand it, and when I have its meaning I apply it, without leaning one way or another” gave Frankfurter additional cause for concern about Whittaker’s fitness for the Court. Months earlier after conference on October 19, Frankfurter had pulled Brennan aside and had explained that the ideas about prior judicial experience in his upcoming “The Supreme Court in the Mirror of Justices” lecture were not directed at him. Rather, they reflected years of thinking about the history of the Court and debating the benefit of prior judicial experience with C. C. Burlingham and others. If anything, the speech was a subtle rebuke of Warren’s critics who argued that the chief justice was not up to the job. And it was a plea to name the best legal minds, regardless of background or geography, to the federal bench and especially to the Supreme Court.
Where he could, Frankfurter tried to encourage the Eisenhower administration to choose judges on the basis of legal acumen rather than political patronage. In January 1957, he had urged Attorney General Brownell to name former student Henry J. Friendly as Jerome Frank’s replacement on the Court of Appeals for the Second Circuit. Friendly was no ordinary former student. His 86 average at Harvard Law School was one of the highest on record. Unlike other top students, he resisted Frankfurter’s entreaties to teach law or to work in the federal government. Instead, he joined the Root, Clark law firm led by Frankfurter’s friend Emory Buckner and emerged as a preeminent Wall Street lawyer. Friendly’s former partner John Marshall Harlan II also highly regarded him. Unfortunately, the front-runner for the Second Circuit vacancy was Irving Kaufman, the federal trial judge who had sentenced the Rosenbergs to death. Hand and Frankfurter loathed Kaufman as a publicity hound and lobbied hard for Friendly. Neither Friendly nor Kaufman received the vacancy. But with his January 1957 letter, Frankfurter initiated a two-year campaign to put Friendly on the federal appellate bench.
THE SELECTION OF federal judges was bound up with the two biggest legal issues facing the Court: racial desegregation and the rights of suspected Communists. The Southern Manifesto spearheaded attacks portraying Brown and subsequent desegregation decisions as part of a Communist plot to end Jim Crow in the South. The civil rights movement was gaining steam. On November 13, 1956, the Court’s unanimous, unsigned opinion in Gayle v. Browder had affirmed the three-judge district court’s decision that Montgomery, Alabama’s, racially segregated bus system violated the Fourteenth Amendment’s Equal Protection Clause. On December 20, after the Court denied the motion for rehearing, Martin Luther King, Jr., and the Montgomery Improvement Association ended their 381-day boycott of the city’s bus system.
The cases of suspected Communists plunged the Court, amidst intense criticism for its desegregation decisions, into the second Red Scare. Two law graduates, Raphael Konigsberg in California and Rudolph Schware in New Mexico, had been denied admission to their state bars because of past Communist Party activity. Joined by Harlan and Clark, Frankfurter dissented from the Court’s reversal in Konigsberg because he wanted to remand the case to clarify the legal basis of the California Supreme Court’s decision. Frankfurter concurred in the reversal of the New Mexico Supreme Court’s decision in Schware not because the Supreme Court of the United States was the ultimate overseer of state bar applications but because the decision that Schware lacked moral character was “wholly arbitrary.” After all, Frankfurter argued, Schware had disclosed his teenage Communist Party affiliation and use of aliases, had served honorably in World War II, and had applied for admission to the bar at age thirty-six. Harlan, who joined Frankfurter’s narrow factual opinion, deemed it “splendid.”
Better than many of his colleagues, Frankfurter understood the potential harm these Communist cases could do to the Court as an institution. On June 17, 1957, the Court announced four decisions reversing the convictions of suspected Communists—prompting critics to label the day Red Monday. With some reservations, Frankfurter sided with the suspected Communists in all four cases. Five years earlier in Dennis v. United States, he had warned about the potential for abuse of the Smith Act to prosecute suspected Communists. These cases revealed the abuses Frankfurter feared.
Before the term began, Frankfurter had instructed his law clerk to write a memorandum about the case of Oleta Yates and thirteen members of the Communist Party of California convicted under the Smith Act for conspiring to overthrow the government. Each member had been sentenced to five years in prison and fined $10,000. At the first conference discussion, Frankfurter was “not prepared to vote.” A few weeks later, he sided with the defendants on the basis of the judge’s defective jury instructions and joined Harlan’s majority opinion. Harlan narrowly interpreted the word “organize” to mean only the establishment of a new organization, not to carry out the organization’s activities. Because the Communist Party of California had started in 1945 and the defendants were not indicted until 1951, the three-year statute of limitations had expired on the organizing charge. The Court also found fault with the trial judge’s jury instructions for failing to distinguish between teaching about the overthrow of the government as an abstract principle and the Smith Act’s prohibition against instigating action. The Court ordered the acquittals of five defendants and the retrial of the other nine. Yates clarified the Court’s opinion in Dennis and made it more difficult for the federal government to use the Smith Act to convict Communists suspected of attempting to overthrow the government.
Frankfurter also joined Harlan’s majority opinion in Service v. Dulles overturning the discharge of Foreign Service officer John Service because the State Department had failed to follow proper procedures and regulations. Douglas insinuated that Frankfurter should have recused himself because Service had been discharged by then–Secretary of State Dean Acheson. Douglas alleged that Frankfurter had revealed that he had discussed the case with Acheson during their walks to work. Yet Frankfurter’s friendship with Acheson did not stop him from voting against the State Department.
The last two cases, about congressional and state investigations of suspected Communists, posed more difficulty for Frankfurter.
He voted with the majority to reverse the contempt conviction of union leader John T. Watkins. Before the House Un-American Activities Committee (HUAC), Watkins denied that he had been a member of the Communist Party, admitted that he had participated in Communist activities, yet refused to testify about the activities of other union officials. Frankfurter, however, was reluctant to join Warren’s majority opinion. On May 27, he wrote the chief justice that Watkins was “not a First Amendment case.” Rather, he believed that Congress had exceeded its power to punish someone for contempt because of the overly broad scope of the questioning. He proposed numerous changes designed to “save us from future embarrassment and leave unimpaired the power of congressional investigations . . .” Before he made a final decision, he promised to reconsider Warren’s opinion over the weekend. Four days later, Frankfurter indicated his doubts had not dissipated and recounted past attempts to interfere with congressional investigations of corrupt Harding administration officials. In 1924, he had written a New Republic editorial urging people to keep their “hands off” the procedures of congressional investigations. To Warren, he observed that the history “is relevant to our duty to look ahead and not have what we say in Watkins make trouble for the future, when trouble may be so easily avoided.”
To preserve the five-justice majority, Frankfurter joined Warren’s opinion in Watkins out of “weakness.” But in an effort to narrow the majority opinion’s scope, Frankfurter wrote a separate concurrence to emphasize that the case was not about free speech but due process. He argued that Watkins could not be convicted of contempt of Congress because the scope of the committee’s inquiry and relevance of the questions had not been clearly defined and the witness had lacked notice that his refusal to answer those questions could result in contempt proceedings. Harlan pleaded with Frankfurter not to publish the concurrence to avoid “rancor” on the Court; Frankfurter published it anyway. In his dissent, Tom Clark referred to his experience as Truman’s attorney general, described the majority’s demands on Congress as “unnecessary and unworkable,” and rebuked Frankfurter by citing his 1924 New Republic article urging “hands off” congressional investigations.
The harder question for Frankfurter was whether to join Warren’s opinion overturning the state contempt conviction of Paul Sweezy. A Harvard-trained economist and co-founder of Monthly Review magazine, Sweezy was a Socialist who had befriended Frankfurter’s friend Harold Laski, had worked for the Office of Strategic Services during World War II, and in the early 1950s had delivered a guest lecture at the University of New Hampshire. In 1954, New Hampshire’s attorney general ordered Sweezy to testify on two occasions about his lecture and political affiliations. Under oath, Sweezy denied being a member of the Communist Party or knowing there were any Communists in the Progressive Party. Yet he invoked his right to free speech when asked about his Progressive Party activities, the contents of his lecture, and the political activities of his wife. Sweezy was convicted of contempt.
There was a “wide, wide gulf,” Frankfurter reminded Warren on June 3, between judicial review of congressional investigations and its review of state investigations. Nothing in the Fourteenth Amendment’s Due Process Clause prevented the New Hampshire legislature from delegating all authority over investigations of suspected Communists to the state attorney general. And no one was more reluctant to invoke the Constitution’s open-ended language about the denial of life, liberty, and property without due process than Frankfurter. He believed the Due Process Clause gave judges too much power. And yet, he wrote Warren, academic freedom had been a “chief concern” of his during twenty-five years on the Harvard law faculty. Indeed, Laski had been driven out of Harvard as a political science instructor in 1919 after supporting the Boston police strike; Zechariah Chafee nearly had lost his job on the law faculty over errors in a law review article about the Abrams case; and conservative alumni had tried and failed to run off Frankfurter and Roscoe Pound. Attaching a draft concurrence to his letter to Warren, Frankfurter emphasized the need to balance the “privacy of one’s political affiliations” with “our very limited function of judicial review over state action.” Two days later, Warren thanked Frankfurter for showing him the draft concurrence, incorporated many of Frankfurter’s suggestions, and hoped that Frankfurter and Harlan might join the revised draft. It was not meant to be. After he read the revisions, Frankfurter declined to join Warren’s Sweezy opinion and deprived it of the fifth vote needed for a majority opinion. Instead, Frankfurter published a separate concurrence in Sweezy (which Harlan joined) emphasizing the differences between judicial review of federal and state investigations. As he explained to the chief justice, Frankfurter believed that the Due Process Clause did not require the Court “to enforce greater responsibility by state legislatures in carrying on their investigations.”
Friends and former clerks regarded Frankfurter’s Sweezy concurrence as one of his best expositions of judicial restraint. In the opinion, he explained that Watkins was a case about federal separation of powers, Sweezy was not, and therefore the New Hampshire legislature and attorney general were entitled to more deference. Yet the sweeping and wide-ranging nature of the attorney general’s inquiries, Frankfurter argued, threatened Sweezy’s academic and political freedom. In balancing “the right of a citizen to political privacy” and “the right of a State to self-protection,” Frankfurter laid bare his past struggles with the Due Process Clause and referred to his concurring opinions in the Willie Francis case and several others. He described his approach to balancing the right to political privacy and state security as “an overriding judgment founded on something much deeper and justifiable than personal preferences,” as “an impersonal judgment” accomplished with “a spirt of humility.”
Frankfurter’s differences with Warren over Watkins and Sweezy was the beginning of the end of their collaborative relationship. To his closest friends, Frankfurter circulated copies of his Sweezy concurrence and criticized Warren’s opinions. He could not understand why the chief justice refused to avoid constitutional questions and to decide the cases on narrower, more defensible grounds. He wrote his concurrences in Watkins and Sweezy to try to trim the sails of his liberal colleagues and to protect the Court from unnecessary harm. In contrast to the chief justice, Frankfurter preferred a more cautious approach because he could see the storm coming.
The Red Monday decisions overturning the convictions of suspected Communists served as a rallying cry for southern members of Congress upset with the Court’s desegregation decisions. On June 24, several House members vowed to draft articles of impeachment against all nine justices. That same day, Senator James Eastland of Mississippi and Senator Olin D. Johnston of South Carolina proposed a constitutional amendment that Supreme Court justices be reconfirmed every four years. “The court is on the march,” Eastland warned his Senate colleagues. “It is attempting to consolidate all governmental power in its own hands.”
Eastland and his Senate colleagues also introduced legislation to overrule another decision at the end of the term about compelling the disclosure of intelligence agency reports. The case involved union official Clinton Jencks. In April 1950, Jencks had complied with the Taft-Hartley Act by filing an affidavit with the National Labor Relations Board swearing that he was not a member of the Communist Party. On the basis of the testimony of two former Communist Party members, Jencks was tried and convicted of two counts of perjury. On appeal, he argued that the trial judge should have ordered the FBI to disclose its reports about the two former Communist Party members. Frankfurter voted with the majority to reverse Jencks’s conviction and to remand the case to the trial court. He was troubled that Jencks’s lawyer had been excluded from the government’s argument to the judge that the FBI reports were not material. After Brennan circulated his majority opinion on May 6, Frankfurter sent him detailed comments, suggestions, and words of encouragement. Most important, Frankfurter agreed to join the opinion. Six days later, Brennan recirculated the draft opinion. “I’m still with you,” Frankfurter replied and suggested responding to concerns in Tom Clark’s dissent about identifying particular reports. On May 21, Brennan circulated yet another draft. “I remain steadfast,” Frankfurter replied. On June 3, the Court announced its decision reversing Jencks’s conviction. In his majority opinion, Brennan argued that the two informants’ testimony had been critical to convicting Jencks. As a result, the FBI reports were his only chance of rebutting the informants’ testimony. The trial judge, Brennan wrote, was perfectly capable of requesting the reports, reviewing them privately in chambers, and determining if they contained any relevant evidence. In dissent, Clark predicted that if Congress did not change the rule laid out by the Court, Jencks would force intelligence agencies to “close up shop.”
