FRANKFURTER, FELIX

FRANKFURTER, FELIX (1882–1965), U.S. jurist. Frankfurter, who was born in Vienna, was taken to the United States at the age of 12. His parents settled on the Lower East Side of New York, where his father, scion of a long line of rabbis, was a modest tradesman. -Early Years Frankfurter graduated with distinction from the College of the City of New York in 1902; his real education, however, as he liked to recount, was derived from the books and newspapers that he devoured at the Public Library, Cooper Union,   and the coffee shops of the city. Throughout his life he had a compulsive passion for reading, and he regularly scanned the newspapers of several continents. These he absorbed in no merely passive spirit; he came to have a wide acquaintance among journalists and publishers, and frequently he would pepper them with notes of compliment or rebuke. At Harvard Law School, from which he received his degree in 1906, Frankfurter developed his deep, indeed reverent, attachment to the values of the Anglo-American system of government under law, and as the leading student in his class found new horizons of achievement opened to him. On the recommendation of Dean Ames of Harvard Law School, he was invited by Henry L. Stimson, then United States Attorney in New York, to become an assistant in that office. Henceforth his professional life was divided between public service and teaching. The association with Stimson was one of the most significant experiences in Frankfurter's life, constituting living proof for him that the effective enforcement of the criminal law need not compromise the scrupulous standards of procedural decency that are encompassed in the guarantee of due process of law. When Stimson was appointed secretary of war in the administration of President Taft, Frankfurter became his personal assistant, with special responsibility for the legal affairs of overseas territories of the United States and the conservation of water resources. At this time his friendship began with Justice Oliver Wendell Holmes of the Supreme Court, which became a deep intellectual discipleship despite their disparity in background and temperament. Frankfurter admired not merely the style of Holmes – learning worn with grace – but his fastidiousness of mind and disinterestedness of judgment; and they shared an ardent love of country, instilled in the one by arduous service in the Civil War, in the other by the experience of seeing the vistas of opportunity opened to a gifted immigrant boy. -Professor and Public Servant In 1914 Frankfurter accepted an appointment to a professor-ship at Harvard Law School, which he held until his appointment to the Supreme Court 25 years later. As a teacher and scholar he concentrated on the procedural aspects of law – the administration of criminal justice, the jurisdiction of the federal courts, the process of administrative tribunals, and the ill-starred use of the injunction in labor disputes. He earned a reputation as a radical reformer, but his concern was for the integrity of the law's processes, upon which a reasoned approach to the maintenance of a just society depended. Misunderstanding of his concern – its mistaken identification with the particular causes that motivated the victims of injustice – led some observers to conclude that Frankfurter was a radical who became a conservative on the bench. During World War I Frankfurter was called to Washington as legal officer of the President's Mediation Commission, charged with investigating and resolving serious labor disturbances. In that capacity he inquired into the vigilante action against strikers in the Arizona copper mines, finding that the companies' refusal to accept unionism was the root cause of the troubles, and he investigated the conviction of Tom Mooney on a bombing charge in California, finding that the trial had been vitiated by improper tactics of the prosecution. These were a forerunner of Frankfurter's involvement in the Sacco-Vanzetti murder case in Boston, the most bitter experience in his life, in which he fought unsuccessfully to have the verdict set aside on grounds of prejudicial conduct by the trial judge and prosecuting attorney, and thereby provoked against himself the burning hostility of the entrenched interests in the community. He was one of the founders of the American Civil Liberties Union, a legal adviser to the National Association for the Advancement of Colored People, and counsel to the National Consumers' League. -Zionist Frankfurter became closely associated with louis d. brandeis , who practiced law in Boston until his appointment to the Supreme Court in 1916. This association brought Frankfurter deeply into the Zionist movement, and in 1919 he went to Paris with the Zionist delegation to the peace conference. Through T.E. Lawrence he met Emir Feisal, head of the Arab delegation, and in consequence of their talks he received from Feisal the historic letter of 1st March, 1919, stating that the Arab delegation regarded the Zionist proposal as "moderate and proper," that they "will wish the Jews a most hearty welcome home," and that the "two movements complete one another" and "neither can be a real success without the other." In 1921 Frankfurter withdrew from formal participation in the Zionist movement, when the Brandeis-Mack-Szold group seceded over issues of organization and fiscal autonomy for American Zionism. Thereafter, nevertheless, he maintained his active interest in the upbuilding of the Jewish national home in Palestine, and in 1931, disturbed by the tendency of Britain to shirk its responsibility as the mandatory power, he published a notable and much-cited critical article in Foreign Affairs (9 (1931), 409–34), entitled "The Palestine Situation Restated." Despite the break with the formal Zionist organization, his relations with Weizmann remained cordial. -In Politics In politics Frankfurter was more concerned with men and policies than with party labels. He served under Stimson in a Republican administration, was an admirer of Theodore Roosevelt, and in 1924 supported Robert M. La-Follette, the Progressive third-party candidate, for the presidency. In 1928 he campaigned for Alfred E. Smith, to whom he had been an informal adviser on problems of public-utility regulation when Smith was governor of New York. In 1932, quite predictably, he warmly supported Franklin D. Roosevelt. Roosevelt, as assistant secretary of the Navy, served with Frankfurter on an interdepartmental board concerned with wartime labor relations. When Roosevelt became governor of New York, he called on Frankfurter for counsel, and upon his election as president, Roosevelt asked Frankfurter to become solicitor general, intimating that if he held this post it would be easier to   appoint him in due course to the Supreme Court. Frankfurter declined, however, on the ground that he could be more useful to the President's program without an official place in the administration. He continued to teach at Harvard while advising Roosevelt on certain appointments and lending a hand in speech writing and in the drafting of legislation, notably in relation to the regulation of securities and the stock exchange. When, in 1938, Justice benjamin n. cardozo died, there was widespread sentiment that by virtue of intellect and philosophy – not for reasons of religion – Frankfurter was the rightful successor to this chair, which had been occupied before Cardozo by Justice Holmes. Disregarding the advice of some timorous Jewish friends who pointed to the fact that Justice Brandeis was still on the Court, Roosevelt made the nomination, which was confirmed on January 17, 1939. -Supreme Court Justice Upon assuming judicial office, Frankfurter's roving commission in law and public affairs was ended, but the gravity of the world situation made it impossible for him to become a judicial recluse. He had recognized the menace of Hitler before most of his compatriots, and when war came, his insight, experience, and judgment were drawn upon. Perhaps his most notable service in this regard was his recommendation of his old mentor, Henry L. Stimson, to be secretary of war. As a judge Frankfurter conceived his role to be more complex than that of a teacher or publicist, since a judge on the Supreme Court must subordinate his merely personal views when judging the validity of the acts of a coordinate branch of government. He rejected the claims of absolutism for even the most cherished liberties of speech, assembly, and religious belief, maintaining that they must be weighed against the legitimate concerns of society expressed through government. When those concerns were relatively tenuous or could be satisfied in a less intrusive way, the liberty of the individual must prevail. Thus when a state attorney general conducted an investigation into the teaching of a college lecturer, Frankfurter wrote a powerful opinion upholding the sanctity of the university classroom against the threat of domination by the state (Sweezy v. New Hampshire, 354 U.S. 234 (1957). When a school board introduced released-time instruction in religion in the public schools, on a voluntary basis, Frankfurter joined in condemning the program as a breach of the "wall of separation" between church and state (Mc-Collum v. Board of Education, 333 U.S. 203 (1948). But when a compulsory flag-salute exercise in the public schools was resisted by Jehovah's Witnesses as a profanation of their religious tenets, Frankfurter concluded that the government had not gone beyond permissible bounds in seeking to inculcate loyalty and national pride in schoolchildren (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). His dissenting opinion begins with his most explicit and deeply felt statement of his judicial philosophy in the troubled area of individual freedom: „ One who belongs to the most vilified and persecuted minority in „ history is not likely to be insensible to the freedom guaranteed by „ our Constitution. Were my purely personal attitude relevant I should „ wholeheartedly associate myself with the general libertarian views in „ the Court's opinion, representing as they do the thought and action of „ a lifetime. But as judges we are neither Jew nor gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard…. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law. He joined wholeheartedly in the decisions holding legally segregated public schools to be a denial of equal protection of the laws (Cooper v. Aaron, 358 U.S. 1 (1958). But in another pathbreaking action of the Court, upsetting malapportionment in legislatures, he dissented vigorously, on the ground that the courts were entering a "political thicket" that would enmesh them in party politics (Baker v. Carr, 369 U.S. 186 (1962). -Retrospect In 1962 Frankfurter suffered a stroke, and resigned from the Court. Though invalided, he was able the following year to receive the Presidential Medal of Freedom, the highest civilian honor within the bestowal of the President. The citation read: "Jurist, scholar, counselor, conversationalist, he has brought to all his roles a zest and a wisdom which has made him teacher to his time." The citation suggested the many-sided liveliness of the man, but could not capture the full measure of what he liked to call the Blue Danube side of his nature: the bouncy step, the love of argumentation, the steely grip on his interlocutor's elbow, the roars of laughter, what Dean Acheson called affectionately the "general noisiness" of the man. Nor could the citation capture his astonishing range of friendships, which embraced statesmen, scholars, artists, former students, and writers around the world. His correspondence was prodigious. He was refreshed by uninhibited communication as others are refreshed by solitude. Although not an observing Jew ("a believing unbeliever," he called himself), he retained a familiarity with Jewish lore, and toward the end of his life he felt drawn closer to his heritage. -Writings Frankfurter's own talk and writings of interest to the general reader include: Felix Frankfurter Reminisces (1960); Law and Politics (1939); Of Law and Men (1956); Of Law and Life (1965); Roosevelt and Frankfurter; their Correspondence 1928–1945; Felix Frankfurter on the Supreme Court (1970). -BIBLIOGRAPHY: H.S. Thomas, Felix Frankfurter: Scholar on the Bench (1960); L. Baker, Felix Frankfurter (1969); W. Mendelson (ed.), Felix Frankfurter: A Tribute (1964); idem, Felix Frankfurter: The Judge (1964); Jaffe, in: Harvard Law Review, 62 (1949), 357–412; P.A.   Freund, On Law and Justice (1968), 146–62; For further bibliography see R. Dahl and C. Bolden (eds.), American Judge (1968), nos. 4274–92 and 6366–437; P.B. Kurland, Felix Frankfurter on the Supreme Court (1970). ADD. BIBLIOGRAPHY: J.D. Hockett, R.E. Morgan, and G.J. Jacobsohn (eds.), New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (1996); J.F. Simon, Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America (1989); N.L. Dawson, Louis D. Brandeis, Felix Frankfurter and the New Deal (1980; M.I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (1991). (Paul A. Freund)