Democratic Justice, page 94
After he listened to the second televised debate between Kennedy and Nixon on October 7, Frankfurter concluded that the vice president had been “betrayed by his own vanity as a crack debater” and never should have agreed to share the stage with Kennedy. Nixon, Frankfurter believed, had thrown away all his advantages—the country’s economic prosperity, his support in the Bible Belt, his status as “a de facto incumbent” in the White House the past seven years, and Kennedy’s reputation for “immaturity.” The justice was not a fan of either candidate. In the end, he predicted that “more people will vote against Nixon than will vote against Kennedy.”
Kennedy’s narrow victory over Nixon failed to alleviate Frankfurter’s skepticism about the president-elect: “I dare to believe that no one will be quicker or more ready than I to recognize greatness in our new President. But I think there was no evidence of it during the campaign . . .” Some Boston friends informed Frankfurter that the 42-year-old Kennedy’s biggest flaw was “hubris” and he was in need of a “comeuppance.” The justice could not understand why so many of his friends “slid from dislike or hatred of Nixon to love of Kennedy” and caused him to question “my confidence in the power of reason.”
Kennedy knew he needed astute legal and policy advisers and borrowed heavily from Frankfurter’s liberal network for friends, former students, and law clerks. Ten former Frankfurter clerks joined the administration, including Phil Elman as a federal trade commissioner, Abram Chayes as legal adviser to the State Department, and Richard Goodwin as a presidential aide and speechwriter. Other Frankfurter friends at Harvard, including special assistant Arthur Schlesinger, Jr., and National Security Advisor McGeorge Bundy, played prominent roles in the administration.
The one Frankfurter disciple who got away from Kennedy was Harvard law professor Paul Freund. For weeks, Freund had been rumored to be the president’s top choice to be solicitor general. A leading constitutional law scholar, Freund had advised the Massachusetts senator on the Civil Rights Act of 1957 and during the presidential campaign. On December 5, Kennedy phoned Freund and officially offered him the job representing the federal government before the Supreme Court. He wanted Freund to be solicitor general “to set exemplary standards for the profession.” For his part, Freund admired Kennedy making good on his 1956 Harvard graduation speech by recruiting scholars and experts for the administration.
The standard story is that Frankfurter advised Freund to decline the job because Frankfurter had passed on a similar offer from Roosevelt and ended up on the Court. The truth is that Freund was very conflicted, and his first impulse was “to stay put” at Harvard. He understood the differences between the offers from Roosevelt and Kennedy. Frankfurter had known Roosevelt for years, had been hand-picked by the president to be solicitor general, and had been recruited not only to be solicitor general but also to be an administration insider. Freund knew Kennedy very superficially, had been suggested by his Harvard colleagues to attorney general–designate Robert Kennedy and others, and was not recruited to be anything more than a solicitor general, as Bobby would be his brother’s primary source of legal advice. Frankfurter and Freund also were very different personalities. Frankfurter had worked for three presidents in government service, liked the thrust and parry of politics, and never tired of meeting new people. Freund, aside from his New Deal service during the 1930s, stayed out of political controversies and was more passive and introverted. He also took his position as the editor in chief of the multivolume Holmes Devise history of the Supreme Court and his authorship of the volume on the Hughes Court very seriously.
Four days after Kennedy’s offer, Freund spoke with the president-elect by phone and declined the job. “The soul-searching is over,” he wrote Frankfurter, “and I am once more at peace with myself.” One of the reasons Freund gave was his editing and writing responsibilities for the Holmes Devise history. To which Kennedy apparently replied, “I thought you would rather make history than write it.” It was a clever line but obscured some fundamental truths about Kennedy’s offer.
Freund’s decision crushed his Harvard law colleagues Abram Chayes and Freund’s longtime housemate Ernest Brown, who had been pushing him to take the job. They blamed Frankfurter for Freund’s decision “as tho Paul were wax!” They believed that Freund could have influenced the Kennedy administration’s policy agenda, a notion Frankfurter dismissed as a romantic fantasy as long as brother Bobby was attorney general. They also argued that as solicitor general, often referred to as “the tenth justice,” Freund could transform the “discordant, rationally unguided body into a harmonious, reason-guided tribunal.” Frankfurter considered anyone’s ability to influence his colleagues to be extremely limited. He knew that Stewart’s “obstinacies” and Brennan’s disregard for precedent were not subject to persuasion. Nor did he think that Freund could have performed any better before the Court than Archibald Cox, another Frankfurter student and Harvard law professor who accepted the solicitor general post.
No one—not Freund, Cox, or even Frankfurter himself—could temper the perceived excesses of the Warren Court. For his part, Frankfurter gave it one last try.
CHAPTER 38
The Political Thicket
During his last two Supreme Court terms from 1960 to 1962, Frankfurter imparted his most enduring lessons about the role of the Court in American life. He was not always on his best behavior. He infuriated several colleagues, notably Chief Justice Warren. He did not get every case right. Yet he warned that the Warren Court’s liberal trend would not last forever, that the Court would revert to its historically conservative ways, and that the American people should seek change not from the Court but from the democratic political process. For Frankfurter, two cases, Gomillion v. Lightfoot and Baker v. Carr, exemplified his philosophy of judicial review—that the Court should protect minority rights yet refrain from injecting itself into purely political disputes better left to the people and their elected representatives. Those competing goals came to a head in Gomillion.
At 4:00 p.m. on October 18, 1960, Fred D. Gray stood before the nine justices. The black Montgomery, Alabama, civil rights lawyer had defended Claudette Colvin and Rosa Parks and the Montgomery Improvement Association’s boycott of the city’s racially segregated bus system culminating in the Court’s decision in Gayle v. Browder. He also had prevented Alabama officials from shutting down the state’s NAACP chapter, and in May 1960 he had persuaded an all-white jury to acquit Martin Luther King, Jr., of tax evasion. Yet he considered his first Supreme Court appearance in Gomillion v. Lightfoot “the most important” case of his career.
As he uttered “May it please the Court,” Gray had something behind him that “fascinated” the justices—a large-scale map. The map showed how an Alabama law had changed the Tuskegee city limits from a perfect square into a 28-sided figure that Gray described as a “sea dragon.” The new boundaries retained all 1310 of the city’s white registered voters yet excluded all 400 of the city’s registered black voters except four or five. Under the old boundaries, Tuskegee contained 6700 residents, including 5397 blacks. As a result of the sea dragon, only four or five black voters lived in the new city limits and therefore remained eligible to vote in municipal elections.
This seemed like an open and shut case of racial discrimination. But Frank Johnson, a liberal Republican district court judge, had dismissed the complaint for failing to state a claim. And the federal court of appeals, including a concurring opinion by liberal Republican judge John Minor Wisdom, had affirmed Johnson’s decision. Johnson and Wisdom relied on the political question doctrine that judges should avoid deciding political disputes. In a 1946 Supreme Court opinion, Colegrove v. Green, the Court refrained from deciding a redistricting case rather than risk entering what Frankfurter described as a “political thicket.”
The political question doctrine, Frankfurter believed, prevented the courts from injecting themselves into purely political controversies, including redistricting and elections, which he believed should be decided by the other branches, the states, or the people. The doctrine also prevented the Court from having to decide cases in which it could not come up with a judicially manageable standard. “We are of opinion that the appellants ask of this Court what is beyond its competence to grant,” he wrote in Colegrove. Frankfurter’s opinion in Colegrove, however, was not a binding precedent. It was a plurality opinion because Chief Justice Stone had died and Jackson was serving as the chief U.S prosecutor at Nuremberg. Only two justices joined Frankfurter’s opinion. Rutledge concurred in the result. Black and Douglas, who dissented, sought to overrule Colegrove. They dissented again in a 1950 challenge to Georgia’s county unit system that diluted state legislative representation of the people of Atlanta and in another Atlanta challenge eight years later.
Gray knew that Frankfurter would play a crucial role whether the Court decided to address Tuskegee’s racially exclusionary city limits. Minutes into Gray’s argument, Frankfurter asked where the Tuskegee Institute, the historically black college and secondary school founded by Booker T. Washington in 1881, was on the newly redrawn map. Gray pointed to the northwest corner and said: “It is no longer in the city.” “That’s now outside?” Frankfurter asked. “It is now outside. Yes, sir,” Gray replied. Frankfurter asked Gray a few more questions about the history of the institution. At that point, Gray knew that Frankfurter would be on his side and that Colegrove would not be an obstacle.
The case’s lead plaintiff, Charles G. Gomillion, was a Tuskegee sociology professor and dean of students. He was also the head of the Tuskegee Civic Association (TCA), which had been boycotting the city’s white merchants since Alabama’s 1957 decision to draw the city’s boundaries to exclude blacks from voting. The state attorney general had tried and failed to enjoin the TCA from boycotting. Three years later, Gomillion had turned the tables on the state by challenging the new city limits in the Supreme Court.
After Gray discussed the facts of the case, the NAACP’s Robert L. Carter argued that the new city map violated not only the Fourteenth Amendment’s Equal Protection and Due Process Clauses but also the Fifteenth Amendment’s prohibition against excluding blacks from voting. Carter, who had litigated the school segregation cases with Thurgood Marshall, impressed Frankfurter and other justices with his skillful argument in the Tuskegee case. Carter encouraged the Court to intervene as it had in the past. “We take the position that this is purely a case of racial discrimination,” Carter said, and that it “is as gross a case of racial discrimination as any case that has come before this Court between Yick Wo v. Hopkins and Cooper v. Aaron.” And in questioning that continued the next afternoon, Carter responded to Hugo Black that they were not asking the Court to overrule Colegrove.
The United States government advanced Gray and Carter’s racial discrimination claim thanks to a skilled argument by former Frankfurter clerk Philip Elman. More than six years after his ethically questionable ex parte conversations with the justice about the school segregation cases and briefs on behalf of the Truman and Eisenhower Justice Departments, Elman again put the executive branch squarely on the side of racial justice. He argued that the new Tuskegee city limits were “in substance and effect a racial discrimination” and “class legislation on the basis of race or color” as in Brown. But, like many “separate but equal” laws, the Alabama law about Tuskegee’s city limits was facially neutral—the text said nothing about excluding black residents or black voters. Black pressed Elman for proof of discriminatory purpose. Elman insisted such proof was not required; it was obvious from the law’s effect on black voters.
The Montgomery, Alabama, lawyer defending the law, James J. Carter, urged Frankfurter and his colleagues to rely on Colegrove and to refuse to intervene. “If the courts are to enter this thicket,” he concluded, “the cure is going to be much worse than the disease if a disease really exists.” In a brief rebuttal, the NAACP’s Robert L. Carter responded: “The abatement of racial discrimination has always been the business of the courts and particularly, the federal courts since the Civil War.”
At conference on October 21, Warren emphasized that the case could be resolved without revisiting the Colegrove political question issue and voted to reverse because the state was denying blacks the right to vote. Black, however, questioned the “distinction” from Colegrove. From his experience in Alabama, he commented that all cities in the South do this. But in this case it “was done for [the] express & exclusive purpose to preventing these negro citizens from voting in Tuskegee.” He voted to reverse on the basis of either the Fourteenth Amendment’s Equal Protection Clause or the Fifteenth Amendment. Frankfurter believed that this was a “simple case” that had “nothing to do” with Colegrove or legislative reapportionment. In Colegrove, the final word rested with Congress whether to seat a state’s representatives. In this case, by contrast, “negroes are forced out because they are negroes.” Douglas voted to reverse in a narrow opinion about the purpose of excluding blacks from voting. The other justices—Clark, Harlan, Whittaker, and Stewart—also voted to reverse with Stewart preferring a narrow opinion relying on the Fifteenth Amendment.
Warren assigned the unanimous majority opinion to the justice with the most at stake—Frankfurter. A few weeks before oral argument, Frankfurter’s law clerk, John French, had drafted a bench memorandum about the case, which formed the basis of the majority opinion. Frankfurter heavily edited French’s memorandum and sought to distinguish Colegrove and other reapportionment cases. The justice, however, knew that he needed help from someone more experienced than his law clerk.
Before he circulated the draft opinion, Frankfurter sent it to the justice most intent on overturning Colegrove, Hugo Black. For many years, the two men had been locked in an ideological battle over the application of the Bill of Rights to the states, free speech, and role of the Court. In private, Frankfurter railed against Black’s politically motivated decision-making, especially about race cases in which he worried how they would make him look in the South. In public, Frankfurter cried at the wedding of Black’s daughter, Jo-Jo, and remained close to Black and his children. After years of jurisprudential battles, they respected each other as intellectual adversaries and as people.
Frankfurter knew he needed Black’s sign-off on Gomillion. At conference, Black had predicted that the South would be as hostile to Gomillion as it was to Brown v. Board of Education. In a November 1 cover memorandum to Black, Frankfurter indicated his hope in issuing a unanimous opinion, reflecting the justices’ views at conference, and “avoiding what is avoidable. . . . No one else has seen it. I shall be grateful for your help.” Black spoke with Frankfurter, who deleted some references to Colegrove and then circulated the opinion to the entire Court.
Frankfurter continued to tinker with the references to Colegrove because of concerns from Bill Douglas. Frankfurter grew increasingly tired of Douglas’s “crookery” and “shamelessness” and had long ago concluded with Jackson that Douglas was “the most unqualified cynic we ever encountered.” He had not forgotten Douglas’s grandstanding during the Willie Francis and Rosenberg cases and his absence during the justices’ final deliberations and opinion announcement in the Little Rock case in order to go on a canoe trip. Because of Douglas’s performance in several cases involving Jews, Frankfurter thought Douglas was anti-Semitic and “used to say he had known only two really evil men,” Douglas and Joe Kennedy, Sr. For his part, Douglas often circulated memoranda designed to needle Frankfurter and wrote private memoranda for his files portraying Frankfurter in a negative light. In Gomillion, Douglas threatened to publish a concurring opinion unless Frankfurter toned down his characterization of past redistricting challenges; Frankfurter made the changes.
Even though the Gomillion opinion satisfied Black and Douglas, Whittaker published a short concurrence that the opinion should rest on the Fourteenth Amendment rather than on the Fifteenth Amendment. But to Frankfurter and the other seven justices, this was a clear case about excluding blacks from voting in Tuskegee elections and therefore violated the Fifteenth Amendment.
On November 14, Frankfurter announced his opinion preserving the municipal voting rights of Tuskegee’s black residents yet safeguarding the political question doctrine and his opinion in Colegrove v. Green. “The decisive facts in this case . . . are wholly different from the considerations found controlling in Colegrove . . .,” Frankfurter wrote for the Court. “While in form this is merely an act redefining metes and bounds . . ., the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green.”
Gomillion was a triumph for Frankfurter. It exemplified his judicial philosophy of protecting minority rights yet not deciding purely political questions left to the other branches and the states. It revealed that, when assigned a majority opinion of delicacy and significance, he could incorporate the concerns of his fellow justices and navigate sensitive subjects. It showed that his philosophy of judicial restraint was compatible with fulfilling the promise of the Reconstruction Amendments. New York Times reporter Anthony Lewis, an “unreconstructed sinner” who opposed Colegrove yet admired Frankfurter, praised the opinion.
