Erik Visits an American Grave, Part 1,456

This is the grave of Felix Frankfurter.

Born in Vienna in 1882 to a prominent Jewish family, Frankfurter came to the U.S. in 1894 with his family. They settled on the Lower East Side and he lived a pretty typical Jewish immigrant life. He split his time doing great at his studies and shooting craps on street corners, which is like about as perfect Jewish immigrant to the Lower East Side in the 1890s as I can think of. Too bad he wasn’t a character in Once Upon a Time in America. Anyway, Frankfurter went to City College and then went to work for New York City in the tenement department. He needed to earn money so he could go to law school and of course working with housing issues on the Lower East Side was something he knew well. He got into Harvard, did incredibly well there, and was quickly on the path toward the nation’s legal elite.

Frankfurter briefly worked for Hornblower, Byrne, Miller & Potter in 1906, upon his graduation. But that didn’t last long as the government came calling for this young brilliant lawyer. Henry Stimson soon hired Frankfurter as his assistant. Stimson then was brought on as Secretary of War under Taft. Stimson brought Frankfurter to Washington with him, as law officer of the Bureau of Insular Affairs. Frankfurter was a big time Progressive, someone deeply influenced by Herbert Croly’s ideas in The Promise of American Life, and like a lot of these people, he was really bummed when Theodore Roosevelt did not win the 1912 election.

There was no way Frankfurter was going to work for Wilson, who he hated, so he took a position at Harvard Law, creating specifically for him by a wealthy Jewish donor. He also spent some time as counsel for the Consumers’ League, fighting child labor. When World War I began, Secretary of War Newton Baker asked Frankfurter to come back to Washington and appointed him Judge Advocate General. Despite their previous animosity, Wilson asked Frankfurter to investigate some of the labor violence of the period, such as the Bisbee Deportation, when mine owners rounded up anyone they thought was in the IWW and dumped them on the Arizona-New Mexico border. This was a massive constitutional violation and Frankfurter was disgusted by it, but Wilson wasn’t really going to do anything here. This all moved Frankfurter left, causing Theodore Roosevelt to compare him to the Bolsheviks as TR moved hard to the right during the war. Good times. Frankfurter was close to Louis Brandeis by this time and they both lobbied Wilson to support Zionist causes during the Paris Peace Conference, including the Balfour Declaration that would create a Jewish state in the Palestine. Wilson didn’t really do this but, hey, since this finally happened in 1947, it’s been nothing but peace and good times in the region!

Frankfurter continued with his move to the left in the years after the war, supporting the recognition of the Soviet Union and being involved in the foundation of the American Civil Liberties Union. Because so much early ACLU work was involved in defending the labor radicals caught up in the Palmer Raids, the conservative establishment came to hate him, including J. Edgar Hoover, who called him “the most dangerous man in the United States.” He later was a big supporter of a new trial for Sacco and Vanzetti. He was back at Harvard at this time and his relative radicalism made most of the rest of the conservative law faculty hate him, well, that and that he was Jewish, though Frankfurter hated all religion and was strictly secular.

FDR brought Frankfurter in as an important advisor during the New Deal and along with people such as Alger Hiss and Benjamin Cohen was among the most important members of the legal team around Roosevelt’s programs. Then in 1938, Benjamin Cardozo died. Roosevelt named Frankfurter in his place, in what because the Jewish seat for a long time. There was enough anger from both anti-Semites and conservatives over this nomination that this was only the second time a nominee had to sit through questions from the Senate before confirmation (imagine this today….). They didn’t have much to worry about though. Frankfurter proved to be a very disappointing Supreme Court justice from a liberal perspective. As it turned out, he cared more about judicial restraint than any policy goals. His votes consistently then gave succor to those oppressing religious minorities or engaging in gerrymandering, not on the position but on the principle of restraint. Even in Dennis v. U.S., the 1951 case that upheld the conviction of communists under the Smith Act, he ruled with the majority, arguing that he might not like the case, but it’s not the role of the Court to engage with these questions. And this from a man noted for his support of Sacco and Vanzetti!

Frankfurter proved to also not be that bright in terms of how his rulings could be used by the right. It was he who came up with the term “with all deliberate speed” in Brown II, clarifying desegregation. He just wanted judicial restraint in desegregation cases, but what he really did was just give the momentum back to white supremacists, who kept schools almost completely segregated for another 15 years. He also refused to overturn laws banning interracial marriage, again based on the same idea, plus he feared the Court becoming unpopular if it didn’t rule with the mainstream of American society.

Frankfurter was also a pretty toxic asshole of a human. He was known, among other things, for completely dominating his wife and treating her horribly for their whole marriage. He also tried to mentor other judges, but often in such a condescending manner that they ended up hating him, which is what happened in his relationship with William Brennan. Of course by that time, Frankfurter was really the leader of the Court’s conservative faction which certainly didn’t help him with Brennan either. Frankfurter also would engage in long lectures to his other justices in conference, which really led them all to hate him personally since they didn’t exactly need this from him.

By the 1950s, Frankfurter was completely worthless to anyone wanting social change. He had a stroke in 1962 and Kennedy replaced him with Arthur Goldberg (again, this was the Jewish seat, it later went to Abe Fortas before Nixon ended that real fast with Harry Blackmun’s nomination). He died in 1965, at the age of 82. Basically, no one respects or even much cares about Frankfurter’s jurisprudence today.

Felix Frankfurter is buried in Mount Auburn Cemetery, Cambridge, Massachusetts.

If you would like this series to visit other Supreme Court justices, you can donate to cover the required expenses here. Tom Clark is in Dallas and Harold Burton is in Highland Hills, Ohio. Previous posts in this series are archived here and here.