Brad Snyder - Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment

DEMOCRATIC
JUSTICE

FELIX FRANKFURTER, THE SUPREME
COURT, AND THE MAKING OF THE
LIBERAL ESTABLISHMENT

Brad Snyder

To Shelby, Lily, and Max

To Harry and Linda Snyder

To Jack and Donna Hunt

CONTENTS

DEMOCRATIC
JUSTICE

A t . on July 26, 1962, the presidential motorcade left the back entrance of the White House for the nearly three-mile drive to Georgetown. Within minutes, President John F. Kennedy arrived at a three-story, white-brick house at 3018 Dumbarton Avenue for an off the record meeting with Justice Felix Frankfurter.

On April 5 of that year, the 79-year-old Supreme Court justice had collapsed at his desk and fallen to the floor in his chambers. He was carried into an ambulance and rushed to George Washington University Hospital. He had suffered a insufficiency. New York Times columnist James Reston wrote: His problem is not insufficiency but over-sufficiency.... His difficulty is not a shortage of anything, except maybe size, too much blood and energy, too many ideas, interests and opinions racing too fast through too small an area.

Frankfurter had an over-sufficiency of friends, too. After his stroke, .

Retirement, however, was the farthest thing from Frankfurters mind. After his release from the hospital on Bundy to his home with an urgent message: The president needed to address the nation with several speeches. During his hospitalization, Frankfurter had encountered numerous nurses, orderlies, attendants, and doctors and discussed their views on the president and his policies. He believed that political and social change should start with Kennedy and his legislative agenda and worried about what he had heard in the hospital.

In a memorandum to the president, Bundy relayed Frankfurters concerns that the hospital staff was in favor of you without knowing what you were for. Frankfurter had some advice for the president about the problem. Bundy warned the president about Frankfurters wary attitude toward the Administration, described him as a man I love, and insisted that the justice was a man who prefers to like people, and in his combination of wit, zest for politics, and sense of style he should be a natural talking partner and friend for you.

Frankfurters wife, Marion, Bundy wrote, was a different story. She suffered from rheumatoid arthritis and for several years had rarely left her bedby choice. She was, according to Bundy, neurotic and selfish woman and a deep trial to all the Justices friends. But he adores her.

After an in-person .

Frankfurters checkered history with Joe Kennedy, Sr., colored his views about the president. In 1933, Joe Sr. sought Frankfurters advice about whether his sons, Joe Jr. and Jack, should go straight from the Choate School to Harvard College. Frankfurter suggested that they study at the London School of Economics with Harold J. Laski because the Socialist political scientist was the greatest teacher in the world. Joe Sr. took Frankfurters advice. The two men remained cordial for a time yet parted as friends over the looming war. A supporter of Neville Chamberlains failed appeasement strategy, Joe Sr. resented Frankfurters interventionist influence on Roosevelt and blamed the justice for his ouster as U.S. ambassador to Great Britain. Frankfurter disliked Joe Sr. because of his isolationism and anti-Semitism. almost or anyway dubitante about Kennedy because of Papa. Knowing the justices reservations about him, Joe Sr.s second son nonetheless showed respect in July 1962 by calling on Frankfurter at home.

Frankfurter was .

Upon the presidents arrival at Frankfurters home on July 26, Acheson greeted Kennedy at the door and escorted him into the living room. The justice in the next days newspapers.

The president complimented Frankfurter on his recovery and remarked that , who had suffered a massive stroke in December 1961, was not as mobile as the justice and unable to speak. Kennedy mentioned that Bundy had shared some of Frankfurters ideas, but the president wanted to discuss them in person.

Frankfurter recounted his numerous conversations with the hospital staff and said to him that there was a lack of communication between the President as the leader of American democracy and many intelligent and well-meaning people. He believed that these people needed to be reminded and educated about what Kennedy was doing and thinkingspecifically about fundamental purposes of American democracy and the basic nature of our institutions. Frankfurter suggested that Harvard historian Samuel Eliot Morison could draft a speech about democracy, Harvard legal historian Mark DeWolfe Howe could draft one about the nature of our institutions rooted in history, philosophy, and experience, and a Kennedy speechwriter could write one about the presidents policies and ideas.

Kennedy agreed that communicating his ideas to the public was his hostile to his administration, mostly business leaders, were willfully trying to add to the complexity.

Frankfurter suggested a bridge from Pennsylvania Avenue to Wall Street, but added that any Democratic president who was doing his job was not going to have good relations with business. Kennedy replied that he had come to the same conclusion and wondered why Frankfurter thought so. Frankfurter believed that the solutions to the countrys domestic problems were outside the experience of businessmen, and therefore they viewed socioeconomic programs with doubt, if not suspicion. This required the president to be a molder of American life; and a strong Democratic president was likely to mold it in ways that seemed alien, if not frightening, to businessmen.

During his illness, Frankfurter continued, he thought about how to achieve in the institutions of the presidency and the Supreme Court. Outstanding presidents and justices, he believed, shared a common conception of the nature of their offices. He mentioned Jefferson, Jackson, Lincoln, and Theodore and Franklin Roosevelt as examples, not for guidance in modern problems but for how they had conceived of the nature of their office. Kennedy agreed.

For more than forty minutes, they discussed politics and drank tea. Kennedy charmed and a great pleasure to him. The looming question of the justices possible retirement, which had been rumored in the press, never came up.

Kennedys visit to Frankfurters home was reminiscent of a similarly historic meeting between a sitting president and a Supreme Court justice twenty-nine years earlier. On March 8, 1933, Frankfurter had arranged of all American liberals.

The standard story about Frankfurter is that he struggled to fill the seat once held by Holmes. Scholars have portrayed Frankfurter as a , when on the Supreme Court, [Frankfurter] was a Liberal or Conservative, or both, now matters little. He has always been a fighter for truth.

Frankfurter made three major contributions to twentieth century Americas liberal democracy. First, he believed that the American people should seek political and socioeconomic change not from the Supreme Court but from the democratic political process. Thus, despite his wariness about the administration, he wanted to meet with Kennedy and to urge the president to address the American people about their history, system of government, and his administrations future policies and ideas. Frankfurter understood each branch of governments institutional role. Like Chief Justice that allowed the federal government and the states to regulate the economy and to help people through minimum-wage laws, maximum-hour laws, unemployment compensation laws, Social Security, health-care laws, and civil rights laws. Frankfurter understood that the Constitution primarily vested the power of the federal government in the peoples representatives in Congress and the White House. He viewed those two institutions, not the Supreme Court, as the engines of social change and most responsive to the popular will. Indeed, he lived to see the next president and Congress protect the rights of African Americans and women with the Civil Rights Act of 1964 and almost lived long enough to see the passage of the Voting Rights Act of 1965. These landmark civil rights laws validated Frankfurters overarching liberal faith in democracy.