Democratic Justice, page 95
DURING A TERM packed with high-profile cases in the spring of 1961, Frankfurter was at the center of things whether he was in the majority or in dissent. He wrote the majority opinion upholding Congress’s power to force members of the Communist Party USA to register. He also wrote an opinion for four justices dismissing a challenge to a Connecticut law banning the use of or medical advice about contraceptives because of the lack of a real threat of criminal prosecution. In the contraceptive case, Frankfurter sought to follow Brandeis’s admonition to avoid constitutional questions when the case could be decided on other grounds.
In dissent, he chafed at his colleagues’ willingness to alter the balance of power between the federal government and the states and to overturn precedent. He was the lone dissenter in Monroe v. Pape, an important jurisdictional decision that held that racist Chicago police officers who conducted an unreasonable search and seizure could be liable under federal civil rights law. Frankfurter believed the officers should be liable only under state or local law. Prior to the justices’ conference about the case on November 11, he circulated a 53-page memorandum on the legislative history of the Ku Klux Klan Act of 1871 and contended the case had not been adequately briefed and argued. Frankfurter’s historically narrow view of Reconstruction Era legislation failed to persuade a single justice. Warren admitted he had not read the memorandum before he voted. Harlan, for one, was shocked that his colleagues could reach a “firm” conclusion only two days after receiving Frankfurter’s memorandum and by the chief justice’s admission about not having read it.
Frankfurter’s colleagues’ conduct in Monroe v. Pape was nothing compared to what happened in Mapp v. Ohio. In Mapp, the Court applied the Fourth Amendment’s “exclusionary rule” barring the admission of illegally seized evidence to the states. Frankfurter joined Harlan’s dissent objecting to the majority’s willingness to impose another federal rule on the state courts and to overrule Frankfurter’s 1949 majority opinion in Wolf v. Colorado without briefing, argument, or an initial conference discussion and vote on the issue. At a subsequent conference, Frankfurter railed about his colleagues’ eagerness to decide unnecessary constitutional questions as “the worst tragedy since Dred Scott.” Mapp left lingering bad feelings. Frankfurter, who was angry at Clark and puzzled about why Stewart joined Clark’s majority opinion, confided to Bickel: “If I told you why Clark did what he did in Mapp perhaps you would want to be reasonable and even have more sympathy with L. Hand’s extreme views [about judicial review]. . . . What a Term this was, from the point of view of Reason and Rectitude.”
The chief justice showed no rectitude with his reactions in the Supreme Court courtroom to two Frankfurter oral dissents. On March 20, Frankfurter explained his dissent, which three justices joined, in a federal larceny case. Warren, who had not written an opinion in the case, chose to rebut Frankfurter’s arguments. Offered the opportunity to respond, Frankfurter said “but of course I won’t. I have another case.” Their testy exchange, the second in the courtroom in recent years, made the New York Times front page. A month later, Warren responded to another of Frankfurter’s oral dissents, this time from a 5–4 decision reversing Willie Lee Stewart’s murder conviction after three trials because the defendant had alluded to his previous testimony. Although Warren again did not write the majority opinion, he objected to Frankfurter’s “lecture” and publicly accused him of “degrading this court.” Frankfurter, once again, simply said: “I’ll leave it to the record.” Douglas thought the chief justice’s behavior was “disgraceful.” At least four justices, including Black, thought Frankfurter had not departed from the text of his opinions and that Warren’s rebuttal was “inexcusable.” For his part, Frankfurter could not understand how someone who had been in politics all his life could be “so sensitive.”
A few days before Warren’s outburst, the justices had begun to reconsider Colegrove and the legislative apportionment issue in a Tennessee case that they had delayed until after the resolution of Gomillion. On April 19 and 20, they heard oral argument in Baker v. Carr, which challenged the Tennessee legislature’s refusal to reapportion its state legislative districts since 1901. Though the failure to redistrict certainly affected urban blacks, Baker did not make an explicit claim about racial discrimination. The argument was that the Tennessee legislature, by refusing to reapportion for sixty years, favored rural voters over urban and suburban ones. Indeed, the case was brought by white suburbanites and the League of Women Voters. The question before the Court was whether it should hear legislative reapportionment cases, ignore the political question doctrine, and overrule Frankfurter’s opinion in Colegrove v. Green.
Baker was a slightly different case than Colegrove. Colegrove was about state apportionment of congressional districts—if it did not like the way a state had apportioned its districts, Congress could refuse to seat the state’s members. Baker was about state legislative districts—Congress’s only constitutional remedy was to pass a law to enforce the Fourteenth Amendment. The plaintiffs argued that voters would be stuck in malapportioned districts forever—unless, the plaintiffs argued, the Court entered the political thicket.
After two days of oral argument in Baker, the Court was deadlocked 4–4–1. At conference on April 21, Warren, Black, Brennan, and Douglas voted to reverse Colegrove. If they did so, Frankfurter said, they would “rue the results.” In what Brennan described to his clerks as “a brilliant tour de force,” Frankfurter began pulling volumes of the United States Reports off the bookshelves in the conference room and quoting from the Court’s past decisions. He argued at length that Colegrove had been correctly decided, that no state was free of legislative gerrymandering, and that the Court was not capable of coming up with an applicable standard. He voted to affirm, as did Harlan, Clark, and Whittaker, the latter two emphasizing the need to follow the Court’s precedents. But the youngest and most moderate justice, Potter Stewart, could not make up his mind. A week later, the undecided Stewart deemed the case as important as the school segregation cases and asked the Court to rehear Baker v. Carr the following term.
Just as he had benefited from Alexander Bickel writing an influential memorandum about the origins of the Fourteenth Amendment during the first round of argument in the school segregation cases, Frankfurter benefited from the “extraordinary gifts” of another law clerk during the first round of argument in Baker v. Carr—Anthony G. Amsterdam. Unlike most Frankfurter clerks, Amsterdam did not come from Harvard Law School or the chambers of Learned Hand or Calvert Magruder. Nor was he chosen, like the other Frankfurter clerks of that era, by Harvard law professor Al Sacks. Amsterdam was recommended by another former Frankfurter clerk, Louis Henkin. A University of Pennsylvania law professor who had clerked for Learned Hand for a year and then for Frankfurter for two years during the early 1940s, Henkin was not just recommending the editor in chief of his school’s law review but a once-in-a-generation legal talent, albeit an intellectually unsatisfied one. Law school occupied only a fraction of Amsterdam’s time. He was enrolled in graduate classes in art history at Bryn Mawr and had majored at Haverford in French literature. The law could barely contain him. During his last semester of law school, he wrote a third-year paper that became a groundbreaking note on the void-for-vagueness doctrine.
As talented as Amsterdam was, Frankfurter had already hired two Harvard law students for the coming term. In November 1959, Henkin wrote Frankfurter about the possibility of a third clerk. Frankfurter suggested that Henkin write him a letter “about your Amsterdam lad” that could be passed along to the other justices. The letter must have been intriguing because Frankfurter broke his clerkship hiring protocol and interviewed Amsterdam himself. That same day, Amsterdam also interviewed with Stewart. The frenetic Frankfurter and the laconic Stewart were a complete contrast in styles. Frankfurter never stopped talking and mesmerized Amsterdam. As a result, Frankfurter offered Amsterdam a nonpaying position as a clerk, and Amsterdam accepted. Amsterdam quickly earned a reputation as a “24-hour-a-day worker” who often slept in a room in an attic at the Court.
In the spring of 1961, Amsterdam drafted Frankfurter’s memorandum/draft opinion in Baker v. Carr. By July, the sixty-page opinion was finished and sent to the printer. After his clerkship ended that summer, Amsterdam continued to write and to assist the justice; his memorandum in Baker v. Carr formed the basis of Frankfurter’s last and most prophetic opinion.
AFTER MORE THAN fifty years of friendship and correspondence, Frankfurter received his last letter from Learned Hand. When Frankfurter received an honorary degree from Yale on June 12, Hand offered Frankfurter high praise: “You are the best of them all, and I was glad that Yale has had the sense to know it.” In a barely legible scrawl, Hand regretted hearing only twenty-five or twenty-six cases during the past year and had “fallen into near idleness.” Hand’s back was so bad that he spent his days in a wheelchair. He lamented how infrequently he and Frankfurter saw each other, and he confessed that he talked about the justice “all the time.” He pleaded with Frankfurter to visit him in Windsor, Vermont. In a postscript, he criticized the justices on “your Court,” suggested it would be better to decide issues of human rights in “popular assemblies,” and reinforced “the impossibility of letting a court have the last word.”
Frankfurter replied by letting off steam about his colleagues. “This has been the heaviest docket since I’ve been here and the least edifying. How often I think with relief—for your sake—that the Fates kept you from this crowd, or the old Battalion of Death. It isn’t merely of the intrinsic difficulty of making judicial determination of what so largely are—certainly under the Fourteenth Amendment—policy questions. The old Court—McReynolds & Co.—at least voted their convictions, confusing their narrow views with the Constitution. This crowd—too many of them—often enough don’t do that. Chicane and log-rolling play a considerable part.” He excluded from his charges only Harlan, Stewart, and Whittaker. And he reminded Hand that Owen J. Roberts had quit “because of his unwillingness to work with unscrupulous colleagues” and that Robert H. Jackson had threatened to quit until John Lord O’Brian and Frankfurter intervened. “Oh Liberty,” Frankfurter concluded, “what crimes are committed in thy name.”
Frankfurter found a respite from the difficult Supreme Court term with a finally realized summer vacation in Maine. Marion left the house for the first time in seven years and handled her first airplane flight with equanimity. Beginning in mid-July, the Frankfurters stayed for a month at Overcliff, the Northeast Harbor summer home of their friend Frances Watson. Not even the fogged-in harbor could dampen their happiness. The vacation turned out to be the last one of their lives.
Soon after he arrived home from Maine in mid-August, Frankfurter received word that Learned Hand had suffered two heart attacks. After the first one, the 89-year-old judge had been transported to New York City and admitted to St. Luke’s Hospital. On the afternoon of August 18, Frankfurter received a telegram from Hand’s wife, Frances: “B DIED PEACEFULLY THIS MORNING, NO FUNERAL SERVICE OR FLOWERS.” Frankfurter issued a short statement: “A truly great man has left us, but he has left behind him an important addition to our national heritage. History will duly appraise the significance of his contribution to law and to American civilization.” The New York Times reprinted Frankfurter’s 1959 tribute in the Second Circuit courtroom in which he had opined that Hand, a federal district judge from 1909 to 1924 and Second Circuit judge from 1924 to 1961, had been “lucky” never to have served on the Supreme Court because Hand’s vote “would have been diluted eight-ninths and [on the Second Circuit] only two-thirds.”
The truth is that Hand would have loathed deciding contentious constitutional questions that Frankfurter confronted on a regular basis. Hand’s judicial philosophy was very different from Frankfurter’s. In his 1958 Bill of Rights lectures, Hand dismissed Brown v. Board of Education as a “coup de main,” rejected the idea of being governed by “a bevy of Platonic Guardians” on the Supreme Court, and concluded that there should be no power of judicial review. Hand considered Frankfurter the Court’s “saving grace.” Yet he also concluded that Frankfurter was not a great justice on par with Robert Jackson, Brandeis, or “the great master” Holmes. Hand perceptively remarked that Frankfurter’s opinions were “too discursive”; he had the “initial handicap” of “a very passionate nature”; and he lacked “supreme self-restraint. . . . He’s learned a good deal of it. But he hasn’t it.” Hand’s assessment of Frankfurter was spot on. But Hand’s solution for the Warren Court’s judicial excesses bordered on nihilism. Even in his darkest hours such as after the Court’s deliberations in Mapp v. Ohio, Frankfurter never endorsed Hand’s idea about eliminating judicial review.
Whereas Hand’s Bill of Rights lectures offered only despair, Frankfurter’s majority opinion in Gomillion offered hope. Like Hand, he believed in judicial restraint and a more limited role for the Supreme Court in American democracy. Unlike Hand (and Holmes and Brandeis), Frankfurter adapted judicial restraint to fulfill the promises of the Fourteenth and Fifteenth Amendments by protecting minority rights. And unlike his liberal Warren Court colleagues, Frankfurter had faith in the American people to use the democratic political process to solve their problems.
FRANKFURTER MADE HIS final plea for democratic political change during the Court’s second round of deliberations about legislative reapportionment. The reargument of Baker v. Carr on October 9 revealed no new insights and proved particularly unsatisfying. The next day, he wrote his colleagues that “neither side dealt with aspects of what I deem involved and with controlling decisions other than those specifically dealing with reapportionment.” Beneath his cover note, he circulated Amsterdam’s sixty-page memorandum as a way of influencing Stewart and the perpetually indecisive Whittaker and attempted to set the agenda for the Court’s conference.
The day after Frankfurter circulated his memorandum, Harlan wrote directly to Stewart and Whittaker to remind them that this case was the most important since the school segregation cases and perhaps in the history of the Court and that their votes would likely determine the outcome. Harlan wrote that “the independence of the Court, and its aloofness from political vicissitudes” was at stake. A Democratic presidential administration, he reminded them, was pressing for reapportionment, and people would view the Court’s apportionment decisions through the lens of the political ideologies of the justices. Thus, Harlan argued, the Court should refrain from entering the political thicket. Frankfurter praised Harlan’s letter.
In response to Frankfurter’s memorandum, Brennan circulated an eleven-page chart prepared by his law clerk Roy Schotland analyzing the exhibits in the case and showing the state’s disparate representation among counties of the exact same size. “I should think that at the very least,” Brennan wrote in his cover note, “the data show a picture which Tennessee should be required to justify if it is to avoid the conclusion that the 1901 Act applied to today’s facts, is simple caprice.” The difference between Frankfurter’s memorandum and Brennan’s chart was stark—Frankfurter was concerned about whether the Court had the power to hear the case; Brennan emphasized the egregiousness of the merits.
At conference on October 13, Warren declared that the Tennessee legislature’s failure to reapportion presented an equal protection violation but, as in Brown, the Court should delay the remedy. Black described Frankfurter’s memorandum as “a good brief for a weak cause” and Colegrove as “a weak reed.” Black had dissented in Colegrove and believed that legislative apportionment should be “approximately fair.” There was no other remedy besides judicial intervention unless Congress passed a law to enforce the Fourteenth Amendment. This time, instead of pulling books off the conference room shelves, Frankfurter referred to the arguments in his memorandum and deferred to Harlan. Yet Frankfurter warned his colleagues that the case was “dangerous to our whole system” of government and questioned whether the Court could fashion a remedy. Douglas argued that Frankfurter’s opinion in Gomillion required reversal on equal protection grounds, ignoring that Gomillion was not an equal protection case, that Douglas had withdrawn his concurring opinion along these lines, and that the plaintiffs in Baker had made no explicit showing of racial discrimination. Clark voted to affirm because the plaintiffs had failed to exhaust other remedies including those in Congress. He recognized that there was a racial component as to why the white power structure refused to redistrict in the South, but that was not at issue in the case. Harlan, Frankfurter’s staunchest ally, argued “with most intense emotion” that there were “no constitutionally protected rights” at issue in the case. He observed that Gomillion was about the “denial of the right to vote” on the basis of race under the Fifteenth Amendment and warned the Court about “getting into these political contests” and that “the greatness of the Court has been in refraining from them.” (Douglas jotted in his notes: “What does he think the Segregation Cases were—or the Youngstown case—or the Tuskegee case?”) Brennan agreed with Warren that there was “an equal protection problem presented here” and that the burden was on the state to justify the capriciousness of its legislative districts. Whittaker was “very shaky” about the case; he had written two “diametrically opposed” memoranda and was less sure now than he had been the previous term. A week earlier, Frankfurter had attempted to allay some of Whittaker’s concerns by reminding him that the Tennessee Supreme Court had ruled the state constitutional provisions on apportionment were not judicially enforceable. Whittaker tentatively voted to affirm with Frankfurter, Clark, and Harlan because it was a state constitutional issue. Whittaker’s vote was irrelevant given that there was a fifth vote to overrule Colegrove. Stewart, though grateful for Frankfurter’s memorandum, announced that there was no political question in this case. But even if the Court reached the merits, he was unsure whether there was an equal protection violation and believed there was a heavy burden on the plaintiff to show that the apportionment was arbitrary and capricious.
