The Passionate Restrainer

Rarely has the Supreme Court of the U.S. known a richer personality than Mr. Justice Felix Frankfurter. "F.F.," as he was known to his brethren, grated on some of them as a hyperactive pedant: he charmed others as the most rewarding friend of their lives. He was insatiably curious; he knew everyone, read everything. He talked incessantly --warm, wise, witty words about everything under the sun. Dean Acheson said of him: "One needs to see, to hear--particularly to hear his laugh, his general noisiness--to realize what an obstreperous person this man is, to have one's arm numbed by his viselike grip just above one's elbow, to feel the intensity of his nervous energy. Above all, one needs years of experience to know the depth of his concern about people."

F.F. was electricity made human, and when he died last week of a heart attack at 82, it almost seemed that Washington's lights visibly dimmed. What remains is a paradox: the memory of a passionate man whose entire judicial career was aimed at controlling judicial passion.

Sovereign Prerogative. Frankfurter saw the Constitution as "a vessel out of which meaning is drawn and into which meaning is poured." Vast power to alter that meaning, he pointed out, rested with nine fallible men: "The Supreme Court is the Constitution." For that very reason, Frankfurter feared that lifetime judges, free of popular veto, might easily impose their own notions of "justice." He warned repeatedly that diffusion of power is the basic premise of U.S. Government. In public policy, he said (borrowing a phrase from his hero Justice Holmes), "the sovereign prerogative of choice" should always rest with elected compromisers and the people to whom they answer.

Frankfurter's "judicial restraint" seemed completely antithetical to his personal activism. Born in Vienna, the scion of a long line of rabbis, he came to New York at the age of twelve, his English so poor that he decided a man named "laundry" must be very rich to own so many stores. In 1902, after graduating from C.C.N.Y., he moved on to Harvard Law School. Inevitably, he became editor of the Law Review and wound up No. 1 in his class. By 1917, already on the law school faculty, he was spending most of his time as assistant to the Secretaries of War and Labor--to say nothing of his service as chairman of the War Labor Policies Board. "Mr. Wilson has charge of foreign policy," Harold Laski wrote to Justice Holmes. "Felix seems to sponsor the rest of the Government."

Happy Hot Dogs. For 20 years between world wars, Professor Frankfurter starred at Harvard as a scholar so exuberantly analytical that one of his gaily glacial courses was tagged "The Case of the Month Club." He was among the era's loudest liberals. He toiled for the N.A.A.C.P., helped found the American Civil Liberties Union. In the fledgling New Republic, he flayed the conservative Supreme Court for blocking urgently needed social and economic legislation. In 1927, he horrified proper Bostonians by attacking the murder case against Anarchists Nicola Sacco and Bartolomeo Vanzetti as "a farrago of misquotations, misrepresentations, suppressions and mutilations." Irate alumni nearly got Frankfurter fired, but Harvard could hardly dump a man whom Justice Louis D. Brandeis called "the most useful lawyer in the United States."

Though he rejected the job of U.S. Solicitor General in 1932 (the same year he turned down a judgeship on Massachusetts' highest bench), Frankfurter became such an intimate adviser of Franklin Roosevelt that Mississippi Congressman Daniel McGhee labeled him "the Rasputin of this administration." As F.D.R.'s top talent scout, Frankfurter manned the New Deal ramparts with such proteges as Dean Acheson, Jerome Frank, David Lilienthal, Thomas Corcoran and the ill-fated Alger Hiss. Predictably, they were called "Happy Hot Dogs," from the Latin felix for happy. Then came "the 1939 death of Justice Benjamin N. Cardozo, who had officiated at Frankfurter's marriage to Marion A. Denman, the daughter of a Congregational minister. F.D.R. phoned Cambridge, where he caught his friend dressing for dinner. Standing in his underwear, Frankfurter heard the "warmth-enveloping" voice asking him to succeed Cardozo. "All I can say," muttered Frankfurter "is that I wish my mother were alive."

Balancing Interests. Doctrinaire conservatives were aghast at the appointment. Later on, Frankfurter infuriated dogmatic liberals, who had thought he was their captive. The man who had attacked the business-minded Supreme Court in the '20s now upheld the right of states to enjoin even peaceful picketing. The man who had denounced "Red raids" after World War I now sustained constitutionally debatable sanctions against Communists. Leading a 5-to-4 majority, Frankfurter was often the key supporter of cold-war security measures that appalled his judicial foe (but personal friend) Justice Hugo Black.

Frankfurter seemed a prime example of the futility of trying to predict how a new justice will vote. But partisans of both sides failed to grasp his steady, if elusive, consistency. To spur "the self-confidence of a free people," he insisted on the primacy of legislative action. Thus, he lambasted the pre-1936 court for flouting the popular will. Thus, he later upheld anti-Communist laws based on detailed congressional findings. As he saw it, the court was no more entitled to second-guess the legislature in the '40s and '50s than it had been in the '30s.

In 1943, the court voided a West Virginia law compelling school children to salute the flag even though the ritual was contrary to their religious beliefs. In a memorable dissent, arguing that the Constitution permitted West Virginia to enact "a general nondiscriminatory civil regulation," Frankfurter summed up his entire judicial philosophy: "One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms 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. 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."

Popular Conscience. Like his idol Justice Brandeis, Frankfurter prized "the right to be left alone." Thus, he condemned lawless police searches and denounced wiretapping. He wrote the famous 1943 McNabb decision excluding confessions obtained from federal prisoners during unnecessary delays in arraignment. "The history of liberty," he said, "has largely been the history of the observance of procedural safeguards."

Despite all that, Frankfurter recoiled from ordering states to match federal criminal-law procedures. He hotly opposed Justice Black's theory that specific safeguards in the Constitution's first eight amendments, which are binding on the Federal Government, apply to the states by "incorporation" in the due-process clause of the 14th Amendment. To Frankfurter, due process was a flexible concept to be shaped by trial and error; he would ban only police conduct that "shocks the conscience." As for legislative reapportionment, Frankfurter loudly warned his brethren to shun all such cases and avoid "the political thicket."

In 1955, Frankfurter led in the landmark decision implementing school desegregation; it was he who united a divided court by offering the compromise order, "with all deliberate speed." But the court was slowly shifting toward a more activist majority. Black's incorporation theory has yet to prevail, but his libertarian ideas have. In a spate of recent decisions, the court has increasingly "federalized" state criminal-law procedures and raised them to Bill of Rights standards. In 1962, the court also tackled reapportionment, over Frankfurter's last despairing dissent that it was "a massive repudiation of the experience of our whole past."

Since his stroke and retirement in 1962, the court has become ever more activist with the addition of his liberal successor, Justice Arthur Goldberg. That activism is born of a sobering failure in the political process: the fact that laggard legislatures have driven Americans to seek relief in the courts. But courts are not legislatures; ballots are ultimately more effective than judges. Felix Frankfurter may already have had the last word when he said: "In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives."

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