Democratic Justice, page 90
Last and most important, Lewis explored Frankfurter’s internal struggle as an “exponent of judicial restraint” and “a man of emotion.” The personal references at the beginning of his flag salute dissent in Barnette and his frequent concurring and dissenting opinions revealed a “passionate man” striving for but not always achieving “judicial disinterestedness.” And yet as the most prominent advocate of judicial restraint during a time of increasing intervention by civil libertarians Warren, Black, Douglas, and Brennan, Frankfurter loomed larger than ever in the eyes of his legal allies and admirers. As Learned Hand told Lewis: “I regard him at the moment as the most important single figure in our whole judicial system.”
LEWIS HAD A ringside seat for the major jurisprudential battle of the 1957 term—whether Congress possessed the authority to take away someone’s U.S. citizenship. At the end of the previous term, the Court heard the denationalization cases of Albert Trop, Mitsugi Nishikawa, and Clemente Perez. Private Trop had been court martialed during World War II for escaping the U.S. Army stockade and deserting for a day while serving in Casablanca, Morocco. Nishikawa had been denied reentry in the United States after serving in the Japanese army during World War II but claimed his service had not been voluntary. Perez was born in El Paso, Texas, lived there until he was ten or eleven, then moved to Mexico. When he tried to return to the United States as a citizen in 1947, he admitted not returning during World War II to avoid the draft and having voted in Mexican elections. Under the Nationality Act of 1940, U.S. citizenship could be revoked for military desertion during wartime, serving in the military of a foreign government, avoiding the draft, or voting in foreign elections. In May 1957, Warren was prepared to reverse all three decisions and to declare the denationalization provisions of the Nationality Act unconstitutional. At the May 3 conference, Frankfurter contended that if Congress could execute someone, it could revoke the person’s citizenship. The only limit on Congress’s power, he argued, was the Due Process Clause. After he read Warren’s drafts, Frankfurter wrote his colleagues: “The issues at stake are too far-reaching and the subject matter calls for too extensive an investigation” for him to write a dissent before the end of the term. The other justices must have agreed because on June 24 they announced reargument in the fall.
Tensions between Warren and Frankfurter were reaching a breaking point. As the denationalization cases demonstrated, Warren gravitated to Black’s and Douglas’s civil libertarian positions and away from Frankfurter’s judicial restraint. Frankfurter’s professorial personality grated on Warren. “Felix irritates;” one of Warren’s clerks explained, “Hugo soothes.” During the 1955 term, Warren became so concerned about Frankfurter’s ability to “brainwash” Jerome Cohen and another Warren clerk that the chief justice forbade them from speaking with him. Before the next term, Frankfurter found himself with only one clerk, Andrew Kaufman, because the other clerk who had been selected by Henry Hart could not get himself discharged from the army’s Judge Advocate General’s Corps in time. At Kaufman’s suggestion, Frankfurter asked Cohen to join his chambers for the following term.
In July 1957, Cohen wrote Frankfurter a memorandum about the inadequacy of Warren’s draft opinion in Perez v. Brownell. At the justices’ private conference after the second day of reargument on October 29, it was clear that Warren no longer had a majority in Perez to declare the Nationality Act’s denationalization provisions unconstitutional. As the senior justice in the six-justice majority in Perez, Frankfurter assigned the case to himself. Warren assigned the Trop and Nishikawa cases to Frankfurter as well. Harlan, who had switched sides in Perez and Trop, remarked at conference: “These are tough cases.” To which Frankfurter replied in a note that if an issue is “tough” and “you are in serious doubt about it, the doubt must be resolved in favor of constitutionality.” He invoked James Bradley Thayer’s essay, which Harlan had read the previous summer at Frankfurter’s insistence. Frankfurter reminded Harlan that “this is the 100th anniversary of a decision that we do not celebrate,” Dred Scott v. Sandford’s declaration that blacks were not citizens and that the Missouri Compromise was unconstitutional. And, alluding to the New Deal constitutional crisis during the 1930s, he concluded that “this Court gets into hot water about every twenty years, and the reason that it does so invariably is disregard of the considerations that profess to control us in constitutional adjudications.”
Frankfurter may have been preaching the doctrine of judicial restraint to the wrong justice. On November 14, based on memoranda and drafts prepared by Doolittle, he circulated three denationalization opinions. His majority in Perez, Trop, and Nishikawa depended on the Court’s two newest justices, Brennan and Charles Evans Whittaker. On November 15, Whittaker joined Frankfurter’s “excellent opinion” in Perez. On March 5, however, he confessed that all three cases had given him “a great deal of trouble,” and he was reconsidering Warren’s Perez dissent. That same day, Frankfurter responded that Congress’s power to take away someone’s citizenship was limited only to a due process and “a shock to the conscience” standard. The chronically indecisive Whittaker was not persuaded and ended up writing a separate opinion.
A few weeks later, Brennan joined Frankfurter in Perez and thus preserved the five-justice majority. Yet Brennan agreed to join the chief justice’s opinion in Nishikawa about the burden of proof for revoking citizenship. Frankfurter was furious. “The Chief assigned the writing of the Nishikawa opinion to me,” he wrote Brennan. Warren claimed their views were similar about remanding the case to determine whether Nishikawa’s Japanese army service had been voluntary. Yet instead of asking Frankfurter to make changes to his opinion, Warren wrote a competing draft. Frankfurter refused to join Warren’s Nishikawa opinion not out of spite but because “the overtones and the undertones are really the view which is explicitly spelt out by the Chief in Perez. I wonder if it is the fact that English is not my mother tongue that I cannot read the Chief’s opinion, no matter what he says in conversation about it, as being the kind of denial of power that Black and Douglas espouse. Look at the last page of his recirculation. I think they joined his opinion in Nishikawa because the whole atmosphere, if not the very words, represent their views.” As proof, Frankfurter highlighted a sentence from the chief justice’s Nishikawa opinion: “But every exercise of governmental power must find its source in the Constitution. The power to denationalize is not within the letter or the spirit of the powers with which our Government was endowed.”
The debate between Frankfurter and the Warren-led civil libertarians boiled down to different ideas about the scope of congressional power. In his majority opinion in Perez, Frankfurter detailed a long history of legislative and executive revocation of U.S. citizenship and reviewed the legislative history of the Nationality Act of 1940. He argued that Congress could condition U.S. citizenship on not voting in foreign elections as part of its inherent sovereign power over foreign affairs. Congressional conditions, Frankfurter wrote, need only be rationally related to protecting U.S. interests. He also contended that the Necessary and Proper Clause gave Congress implied powers, in its conduct of foreign affairs, to revoke citizenship for voting in foreign elections. Like John Marshall in McCulloch v. Maryland, Frankfurter believed that Congress had broad implied powers. He was reluctant to encroach on Congress’s authority over foreign affairs: “The importance and extreme delicacy of the matters here sought to be regulated demand that Congress be permitted ample scope in selecting appropriate modes for accomplishing its purpose.”
Warren, Black, and Douglas pushed back on Frankfurter’s deference to Congress. Warren’s dissent emphasized the first sentence of the Fourteenth Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”) as an irrevocable grant of citizenship and a “basic right . . . nothing less than the right to have rights.” In a separate dissent, Douglas and Black accused Frankfurter of legislative supremacy; Frankfurter, however, saw Warren, Black, and Douglas as the supremacists, judicial supremacists.
Warren embraced judicial supremacy in his landmark opinion, joined by Black, Douglas, and Whittaker, in Trop v. Dulles. The chief justice argued that Congress could not revoke someone’s citizenship for deserting the army during wartime because it violated the Eighth Amendment’s ban on “cruel and unusual punishment.” Historically, the Court had invoked the Eighth Amendment only for inhumane criminal punishments. Warren’s opinion, however, reinterpreted “cruel and unusual punishment” as about “the dignity of man” and transformed it into a judicial veto of legislation on the basis of “the evolving standards of decency that mark the progress of a maturing society.” In time, “evolving standards of decency” came to mean whatever five justices believed it meant and epitomized the Warren Court’s aggrandizement of judicial power at the expense of the legislative branches.
Frankfurter’s dissent in Trop v. Dulles warned about the dangers of judicial overreach. “All power is . . . ‘of an encroaching nature,’ ” he wrote, quoting James Madison in the Federalist Papers. “Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.” In determining whether Congress has exceeded its power, the Court must determine whether the law is “clearly outside the constitutional grant of power.” He quoted Holmes in Blodgett v. Holden that the Court’s “judgment on the action of a co-ordinate branch” was “ ‘the gravest and most delicate duty that this Court is called on to perform.’ ” Frankfurter added: “This is not a lip-serving platitude.” As tired as his civil libertarian colleagues were of his references to Holmes, he reminded Warren, Black, and Douglas that they were no longer a governor, senator, or SEC chairman: “it is not the business of this Court to pronounce policy. . . . self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.” Frankfurter insisted that Congress was within its war powers to revoke a soldier’s citizenship for desertion during wartime.
The starkly different constitutional visions of Frankfurter and Warren took a personal turn on March 31, 1958, as the justices announced their denationalization opinions from the bench. The press and law clerks in the courtroom noticed the discord. In a column a few days later, Anthony Lewis reported that the “remarks in the courtroom verged on the bitter, even waspish.” Frankfurter objected to Lewis’s “adjectival paprika” and emphasized the “ ‘deep, unbridgeable differences in philosophy.’ ” The antagonism, however, was real. At one point, Warren remarked that the Court had overruled eighty-one acts of Congress. Frankfurter responded that those decisions were “nothing to boast about,” and many of them had been overruled. After Frankfurter announced his majority opinion in Perez, Warren replied that “his opinion was directed at the printed opinion of the Court, not the oral opinion of Mr. Justice Frankfurter.” Frankfurter scribbled a note to his clerk Bill Doolittle: “Does he mean my oral was more persuasive?”
The ideological battle lines between the two sides had been drawn. As Lewis wrote, Warren, Black, and Douglas espoused “a vigorous, assertive view of the Supreme Court’s role,” and Frankfurter, Burton, Clark, and Harlan preferred a “more restrained, deferential approach.” For the time being, Brennan and Whittaker occupied the center. One thing was clear from the denationalization cases: The trust between Frankfurter and the chief justice during Brown and Brown II had eroded. Frankfurter led the opposition to Warren’s outsized role for the judiciary. And he was not alone.
FOR THREE STRAIGHT DAYS in the packed James Barr Ames Courtroom at Harvard Law School’s Austin Hall, Learned Hand blasted the Court’s excesses. Many regarded Hand as the best judge never to sit on the Supreme Court—despite Frankfurter’s best efforts to persuade Roosevelt in 1942 and 1943 that Hand was not too old. Stocky, broad shouldered, and beetle-browed, the 86-year-old Second Circuit judge delivered his Oliver Wendell Holmes Lectures with an aristocratic upstate New York accent reminiscent of Franklin Roosevelt’s and offered an alternative, progressive vision of a more restrained judiciary. Hand’s lectures were broadcast into law school classrooms and on a Boston radio station. On the first day, Hand conceded, despite the lack of textual support in the Constitution for judicial review, that it had been essential for the Court to have the final word on the Constitution to keep the states, Congress, and the president in line or else “the whole system would have collapsed.” At the end of his second lecture, however, he criticized the Court for acting like “a third legislative chamber.” As an example, he asserted that Brown v. Board of Education was based on “its own reappraisal of the relative values at stake. . . . I have never been able to understand on what basis it does or can rest except as a coup de main.” During the third and final lecture titled “Guardians,” he rejected the idea of government by judiciary and captured the anti-democratic fears of judicial review: “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”
A few days after the lectures, Frankfurter congratulated Hand and assured him that on the “central theme” about judicial review, “you cannot scare me.” Yet regarding Hand’s criticism of Brown, Frankfurter wondered “whether in the end you would have held out against the decision in the Segregation Cases. On the basis of some of the attitudes that he manifested during the short single term that Jimmy Byrnes was on the Court, I am bold enough to believe that even Byrnes, had he stayed on the Court, would no more have dissented than Reed and Tom Clark dissented.” Frankfurter mentioned Jackson’s efforts to justify Brown on the basis of Congress’s power to enforce the Fourteenth Amendment. He also found it difficult to “square” Hand’s criticism of Brown with their prior correspondence about state anti-miscegenation laws.
In the months before and after the lectures, Frankfurter asked how Hand would decide the constitutionality of a state anti-miscegenation law given that Brown’s reasoning was limited to education. Frankfurter was defending his past and present attempts to avoid the miscegenation cases. He rejected Hand’s suggestion that the Fourteenth Amendment prohibited any racial classifications as inconsistent with the amendment’s text and legislative history. As proof, Frankfurter provided Hand with a copy of Alexander Bickel’s Harvard Law Review article about the history of the amendment’s origins in the Thirty-Ninth Congress. On the basis of Bickel’s article, Frankfurter argued that Brown was “justified” in concluding that the history was “inconclusive” with regard to segregated schools and that “the boys on the Hill left the scope of [the Fourteenth Amendment] for the Court’s ‘interpretation.’ ” Before the lectures, Frankfurter had pleaded with Hand “for the love of Mike don’t say anything that lawyers and the cynical, unscrupulous Bill [Douglas] can quote as the clear view of ‘the greatest living judge’ that the Segregation decision covers miscegenation!!”
Southern segregationists and anti-Communists in Congress seized on Hand’s lectures as proof that the Warren Court had overstepped its bounds. The Jenner-Butler Bill was pending in the Senate and proposed to strip the Court’s jurisdiction over appeals of convictions of suspected Communists. In May, Hand announced his opposition to the legislation, which Senate Majority Leader Lyndon Johnson succeeded in killing a few months later. Alistair Cooke correctly predicted in the Manchester Guardian that Hand’s lectures “may well convert their 86-year-old author into the latest idol of the South.”
For his part, Frankfurter declared Hand’s lectures a “great triumph” and a necessary corrective. “I’m afraid some of [his] views will give many a so-called liberal a jolt,” Frankfurter wrote C. C. Burlingham. “These liberals, so-called, were outraged when in the old days the Supreme Court declared unconstitutional legislation that they approved of. Now they are outraged if the Court does not declare unconstitutional legislation they disapprove of. How I disrespect this jug-handled view of the law.” Indeed, after the announcement of the denationalization decisions in Perez, Trop, and Nishikawa on March 31, Frankfurter wrote Hand: “Read Monday’s batch of opinions. You will not be shaken in your Holmesian outlook.”
His duties at the Court and increasingly stressful home life had prevented Frankfurter from attending Hand’s lectures. Hand and other friends knew that Frankfurter was reluctant to leave Marion. Joseph Alsop described her as “permanently bedridden (if, indeed, it is not her actual desire).” One morning in April, Frankfurter found her curled up on the floor covered by a blanket. The night before, she had gotten up to go to the bathroom, stumbled, and broken a little bone in her foot. Rather than cry out, she lay on the floor until her husband found her the next morning. “It upset him horribly, as you can imagine,” Alsop wrote Isaiah Berlin. “The foot is better now. She’s back from the hospital. But aside from his work, he spends his whole life as a male nurse. Both their servants go out over the weekend, and he even prepares meals and carries trays on Saturday and Sunday. He must have incredible reserves of vitality, for although he looks grey, he is still full of bounce.” For her part, Marion was content to read books in bed and never wavered from her faith in her doctor and his misguided regimen of antibiotics for her rheumatoid arthritis.
