Felix Frankfurter, in 1894 at the age of twelve, was brought from Vienna to an America in the midst of a great depression. He watched the people of New York hiss the President of the United States at a ceremonial occasion, the dedication of Grant's Tomb. At his first school his teacher believed in corporal punishment. His father did not prosper. And yet apparently to the young boy this was—as it was to be for the man through his long life—the Promised Land. Just as his teacher was one of his greatest benefactors—she taught him English by threatening the other boys with “gentle uppercuts” if they spoke to him in German—everything that happened to him was always for the best. His best piece of luck, he seems to have believed, was the series of accidents that kept him out of Columbia Law School and caused him to go to Harvard. While on his way to Morningside Heights to matriculate, he was induced by a friend to go to Coney Island for the day; later, when he was ill he was advised not to go to a city law school and chose Harvard because he thought Cambridge was in the country.

His career as a student in Harvard Law School has something of the legendary quality of Brandeis's there. He was first in his class each year. For some time after he graduated, and before he was famous, Professor Smith read to the class in torts a brilliant passage from Frankfurter's first-year examination. The letters of recommendation that the Dean, who was given to understatement, wrote for him were so glowing that one lawyer was surprised on studying the signature to see that it was genuine.

Frankfurter obtained a job in one of the best law firms in New York; it was an office that he wanted to be in not only because of its excellence but also because he had heard that “they had never taken a Jew and wouldn't take a Jew.” A friendly junior partner suggested that this was a good time to change his name: “. . . there's nothing the matter with it, but it's odd, fun-making.” He refused, as Jews often have, to give up a name that must have been in the family for only a relatively short period of time. His refusal did not hurt his prospects, for when he left to join the staff of the new United States Attorney, Henry L. Stimson, he was told that he could come back if he wanted to.

He never returned to private practice in an office or to the chance of making a fortune. His only problem in giving up his job had been whether he was being fair to his employers in not staying with them longer. Characteristically, it was a solace to him that with public service went a reduction in pay, from $1,000 to $750 a year. He seems always to have felt that there was something wrong in being well paid for doing what one likes to do and was never paid for his advocacy in the causes he served in private life. At law school the great John Chipman Gray had asked him, “How would you like to work a month with me on . . . my casebook on Property?” To Frankfurter, as he has told us, this was, “How would you like to enter the Elysian Fields?” and when Gray sent him a check for $100 for his work Frankfurter returned it twice until finally a note came, “Dear Frankfurter, Don't be a damn fool. Yours Cordially, John C. Gray.” Years later, Frankfurter would say to his wife when she brushed aside compliments on her beauty, “Marion, you must learn to face the truth even when it's pleasant.” One feels that Frankfurter himself could never quite see that in refusing money there was possibly something pleasant that he was refusing to face.

The young Frankfurter was in government service for almost eight years, first in the United States Attorney's office in New York and then in Washington when Stimson became Secretary of War under President Taft. The War Department was probably one of the most interesting branches of the government to work in. It was in effect the colonial office and the ministry of public works, and Frankfurter's faith in government as an instrument of public welfare may have come not only from books but in part from his experience in a conservative Republican administration. Frankfurter was so successful in his work that Taft kept him on although he supported Theodore Roosevelt in 1912, and when Wilson became President he stayed on under the new administration.

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His greatest success was social. His friendships ranged from the young Lord Eustace Percy, the seventh son of the seventh Duke of Northumberland, to the aging Justice Holmes. He was one of the first of the great judge's young Jewish friends who made him happy in his last years by celebrating his greatness on every occasion. Frankfurter met everyone, a practice he continued through his entire life. He seems early to have hit on the rule of life that he formulated for Ella Winter at the Peace Conference: “. . . use every chance to make personal contacts. They are what count in life. You never know when one may become important.” Put bluntly, this sounds embarrassing, the calculating advice of a Babbitt, But it is the calculation of a man who really enjoyed meeting people, as perhaps Babbitt did also. His open joy in meeting and knowing the great of this world was probably the source of what Holmes amusedly called his “unimaginable gift of wiggling in wherever he wants to.” It was not a weakness, but, as with Proust, his strength.

In 1914 he joined the faculty of Harvard Law School. He was as surprised at being asked as if he had an invitation from an East Indian princess to marry her. He found it a difficult offer to accept. Stimson was against it; he thought Frankfurter particularly fitted for public life. Holmes, who as a young man had attacked Plato, warned him of the dangers of the academic life as against thinking under fire, the irresponsibility of running the universe on paper. It was, however, something like the Platonic vision that in the end decided Frankfurter; Harvard would give him time to think, to know what he really thought about things.

He was able, as he had hoped, to combine teaching with work for social welfare, in fact literally, if we accept an unfriendly account in the pre-Villard Nation of his argument in the Supreme Court in 1917 for the constitutionality of Oregon's minimum wages and hours laws: “Professor Felix Frankfurter . . . had merely exchanged one group of pupils for another. He lectured the court quietly, . . . and . . . was becomingly tolerant when the gray-haired learners asked questions which seemed to him unnecessary, and gentle when he had to correct a mistaken assumption.”

When we entered World War I, Frankfurter returned to government service, working chiefly on labor problems. At President Wilson's request he investigated several ugly situations. His report on the Mooney Case emphasized that the labor leader had been convicted on perjured testimony, and his report on the Bisbee deportations told how members of the I.W.W. had been forcibly removed from Bisbee to New Mexico and left to suffer in a desert town. His old hero, Theodore Roosevelt, much changed in the last few years, denounced him for failing to point out that the I.W.W. were revolutionaries as dangerous as the Bolsheviks. Even before Frankfurter returned to Harvard—he was at the Peace Conference as a Zionist—there was a movement to oust him. It failed, but it had seemed serious enough to Holmes to cause him to write to President Lowell in praise of Frankfurter.

Frankfurter took up teaching again in the fall of 1919, as popular with his students as ever, despite the Red Scare, and despite it as busy as ever in what were then considered radical causes: spending his Easter vacation fighting a labor injunction against the Amalgamated Clothing Workers, briefing at a federal judge's request the rights of aliens who were being deported as revolutionaries, presiding at a meeting for the recognition of Russia. Of an illiberal decision by Taft invalidating Arizona's labor injunction statute, Frankfurter complained in an unsigned New Republic editorial, “For all the regard that the Chief Justice of the United States pays to the facts of industrial life, he might as well have written this opinion as the Chief Justice of the Fiji Islands.” In the England that Frankfurter so loved this statement might have sent him to jail, but it turned out to be an utterly safe one to be made in the United States, even by a lawyer who argued before the Supreme Court; for the next year, when Frankfurter lost the District of Columbia minimum wage case, not only his friend Holmes but Taft as well was on Frankfurter's side in dissent.

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It was inevitable that Frankfurter should come to the aid of Sacco and Vanzetti when he learned of the misleading character of Captain Proctor's testimony as a ballistics expert for the Commonwealth. Trained as a prosecutor under Henry Stimson, a man so scrupulously honorable that later as Secretary of State he was to abolish spying as a State Department function, Frankfurter could only be outraged—as the highest court of Massachusetts and the Lowell committee were not—by what was most likely routine shabby unfairness on the part of a prosecutor. Frankfurter's powerful argument in the March 1927 Atlantic Monthly failed to save the two men but shook opinion outside of Massachusetts; published as a book and used as the basis of the account of the case in The Letters of Sacco and Vanzetti, it seems to have been one of the important sources of the belief that not only were the two men unfairly tried but also that they were innocent, a matter on which Frankfurter had expressed no opinion.

With the coming of the New Deal, Frankfurter moved from a position on the edge of power to its very center. He had known Roosevelt when they had both been in Washington, and Roosevelt when Governor of New York had asked his advice on occasion. Frankfurter refused Roosevelt's offer of the post of Solicitor General of the United States, although it was likely to lead to the Supreme Court, just as he had recently refused to go on the highest court of Massachusetts, another possible road to the Supreme Court. It may be that the prospect of a year at Oxford as Eastman Professor was irresistible. After his year in England, one of the happiest in his life, he continued teaching at Harvard, but he was in Washington often, frequently as a guest at the White House.

It is easy to exaggerate Frankfurter's role. The First New Deal was, after all, much more of a Columbia than a Harvard intellectual product. Frankfurter seems to have had little to do with the grand improvisations that were to control economic life; he was much more concerned with achieving some of the limited objectives of traditional liberalism, like the Securities Act that was intended to make Wall Street truthful, and the Public Utilities Holding Company Act, a Brandeisian kind of attack on bigness. His greatest personal success in legislation, writing the ideas in his book The Labor Injunction into law, the Norris-LaGuardia Act, had actually been effected in the Hoover administration, during which he had never stayed in the White House. But just because he held no position under Roosevelt and denied that he exercised any power and was discreet—writers still disagree whether this talkative man who indulged in reminiscences freely was for or against the Court-packing plan—he seemed to be Roosevelt's grey eminence, acting effectively behind the scenes like the Court Jew of some benevolent despotism, a sinister or saintly figure, depending on one's view of Jews and despots.

If there is any truth to Hugh Johnson's celebrated characterization of Frankfurter as “the most influential single individual in the United States,” it lay in the fact that the country was feeling not so much the direct inflence of Frankfurter the adviser as the indirect influence of the great teacher of law. For years Frankfurter had been choosing law clerks for Holmes and Brandeis from the graduating class at Harvard Law School and had been recommending other bright young graduates for positions with some of the largest New York law firms. Now, with its huge expansion of activities under the New Deal, the government became the chief employer of young lawyers. For work in new fields whose nature was not quite known, young men with fresh open minds were wanted, and inevitably Frankfurter was called on to supply many of them. The Happy Hot Dogs, to use the phrase Frankfurter disliked, were by no means all of one kind, for many of them had been taught or had learned to think for themselves, some even to think their way into the closed world of Communism, a risk peculiar in the 30's to intellectuals of open mind.

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When holmes resigned in 1932, Benjamin Cardozo was so much his logical successor that President Hoover appointed him to the Court even though he was a Democrat and even though this gave a single state, New York, three judges. When Cardozo himself died early in July 1938, Frankfurter seemed to many the logical successor to both Cardozo and Holmes; he was exactly the kind of liberal that they were. For some reason Roosevelt was reluctant to accept the obvious. He said that he wanted someone from west of the Mississippi and had Frankfurter report to him on the qualifications of many men, but none would do.

While the search went on, Roosevelt found himself subjected to a mounting, and at times annoying, pressure from almost everyone whose opinion he respected to appoint Frankfurter. Justice Stone told the President that to form a distinguished court he would have to ignore geography. Ickes and Hopkins, disagreeing on so much, agreed on Frankfurter. Even the Chief Justice of Australia while on a visit to Washington wrote a memorandum urging his appointment. Rich Jews, according to Tom Corcoran, had convinced Roosevelt not to make the appointment. Presumably they were afraid that in a world in which Hitler was daily growing more powerful, Frankfurter's appointment would increase anti-Semitism. Roosevelt may have shared this feeling for he seems at one time to have hoped to wait until Brandeis retired, and Harold Laski even urged Brandeis to quit—or at least he told Ickes that he did—to make room for their friend. Brandeis stayed on, and Roosevelt finally, in January 1939, gave in. A fortnight after Frankfurter took his seat on the Court, Brandeis retired.

By the time of Frankfurter's appointment, the Court that Roosevelt had threatened to pack in 1937 was reduced to a hopeless minority. In part the Court had reformed itself, in part it had been reformed by Roosevelt. Without any change in its personnel it had melodramatically reversed its trend immediately after the Court-packing plan was announced, and in addition Roosevelt had already made two appointments and was to make two more within a year of Frankfurter's. There was no longer a majority on the Court who would declare that economic or welfare legislation would “deprive any person of life, liberty or property without due process of law” or violate any other clause of the Constitution. The battle that Frankfurter was so well equipped to fight as Holmes's follower was already won.

Roosevelt's appointees by and large seem to have come on the Court with the view that their chief duty was to protect legislation from judges—that is, from themselves. As the old majority had been quick to find liberty infringed by welfare laws, the new majority was at first slow to act in the name of liberty, even in the case of regulations interfering with speech, religion, or the rights of Negroes. Frankfurter in the 20's had refused to be impressed by the occasional Supreme Court decisions against intolerant statutes. The Supreme Court could not guarantee toleration, he asserted, for much that was illiberal would still be constitutional and could be stopped not by a liberal court but only by a liberal community which would elect liberal legislators.

True to his views on constitutionality, Frankfurter early in June 1940 held that school authorities could expel two children who for religious reasons—their parents were Jehovah's Witnesses-refused to take part in the daily ceremony of saluting the flag. What astonishes us, if we do not keep in mind the date of the opinion and Frankfurter's personal background, is the issue that he sees involved in the case. It is no less than national unity, which is the basis of national security, and in its interest the school authorities had the right to determine that the compulsory flag salute was an appropriate means “to evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious.” While Frankfurter was delivering his opinion, German armies were sweeping through France; our survival seemed to him to be threatened. (Frankfurter, Ickes wrote in his diary at this very time, “is really not rational these days on the European situation.”) In his opinion he never mentioned his own school days, but in his careful description of the flag ceremony one is aware of the earnest immigrant child to whom the daily ceremony must have been part of the natural way to become an American. It is as if he were willing to permit the state to try Pascal's method: if lighting a few candles and saying a few prayers every day, even without faith, can in the end make a man religious, perhaps saluting the flag daily, even against one's beliefs, may in the end bring one to the religion of the flag, patriotism.

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Frankfurter's friends were shocked by his decision, although it was completely in accord with his prior views and even in fact with theirs. For a few weeks there was an outbreak of illegal compulsory flag-saluting; people entered other people's houses carrying a flag and demanding that it be saluted. Moscow, Idaho adopted a regulation that to obtain a license to distribute circulars the applicant would have to salute the flag, a requirement that would of course keep Jehovah's Witnesses away. It was perhaps these unfortunate but unnecessary consequences of the case that caused Black and two other Roosevelt appointees to announce that they regretted their vote. A little over three years after Frankfurter's opinion, the Court reversed itself and held that school authorities could not compel a child who was a Jehovah's Witness to salute the flag. In the midst of a great war the Court found unconstitutional a compulsory ceremony of allegiance that it had upheld while we were still at peace.

Frankfurter stood fast. The most interesting part of his opinion is not his plea for self-restraint, which dissenting judges often address to the majority, but his warning on the logical implications of the decision. If not saluting the flag could be a matter of religious right protected by the Constitution, many questions that had always been left to local authorities for decision—free lunches or free transportation for children in parochial schools, compulsory reading of the King James version of the Bible in public schools—would become troublesome constitutional issues for the Court. One would assume that he meant that these were matters in which the Court should not interfere, yet when they did come before the Court he was on the side of interference, even to a more radical extent than the liberal majority. He voted with a minority to hold unconstitutional free transportation for parochial school children and the New York system of released time for off-premise religious instruction.

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On the whole, however, Frankfurter was consistent in his career on the Court. As a liberal critic he had attacked a conservative Court for its seizure of power in outlawing legislation and was self-consciously determined not to be guilty of this offense. Generally, he practised the self-restraint he had preached and tried to be guided by those famous words of Cromwell that he had once as a lawyer urged on the Court as a guide. “Brethren . . . by the bowels of Christ I suffer ye to conceive it possible that ye may be wrong.” But his judicial humility rarely sat easily on him. At times he almost glories in the unpleasantness of the legislation that it his judicial duty to uphold: “. . . whether immigration laws have been crude and cruel, whether they may have reflected xenophobia in general or anti-Semitism or anti-Catholicism, the responsibility belongs to Congress . . . .” There is a traditional view that the true greatness of a judge is most clearly shown when he acts against his deepest feelings; the ideal of this high impartiality is the elder Brutus condemning his sons to death and sitting sternly amid their mangled bodies.

If Frankfurter was to be faithful to Holmes and Brandeis, he had to uphold, as he did, the constitutionality of the Smith Act. Whether wisely or foolishly dealt with by the Smith Act, the Communist party in the United States during the Cold War of the late 40's was surely more of a threat to national welfare than the small group of radicals whose conviction in the 20's under the California Criminal Syndicalism Act was upheld by Holmes and Brandeis.¹ Frankfurter, with the majority in upholding the conviction of the Communist leaders, was also with the majority in reversing the conviction of second-string Communists for reasons difficult to understand if one pays attention only to what the Court said. Justice Harlan, who has great gifts of clarity of expression, wrote with incredible obscurity on this occasion, and Frankfurter, who so often wrote concurring opinions to clarify what the Court was deciding, was silent. If the Court's verbal logic was weak, its unexpressed strategic logic was probably sound; it left the Smith Act standing, but only for a possible serious crisis and not for use every day.

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Similarly, the court tended not to stand up boldly to Congress on the question of the powers of its investigating committees. The Court seemed reluctant to define clearly the forbidden areas of Congressional inquiry infringing on freedom of speech and thought, but contented itself and Frankfurter with ad hoc decisions aiding Congressional committee victims by announcing rules not suspected before and not always followed consistently thereafter. The Congressional power of inquiry, one surmises, is too important an instrument of government to be seriously cut down, and the best the Court can do apparently is to try occasional evasive action. Freedom's victories are sometimes better won by unedifying devious means than by direct onslaughts of admirable, magnificent rhetoric.

Other judges, Black particularly, were for stronger action and a more open stand for freedom. One can, with a reasonable amount of distortion, see much of the history of the Court in Frankfurter's time as a slowly emerging struggle between a group of judges allied with Black and a group allied with Frankfurter, with Black's group the victor, expanding due process and extending the Court's power. The victorious group has found in the unchanging words of the Constitution a new set of prohibitions on government action, limiting police activities, overturning long-established modes of trial and traditional ways of electing legislatures. Misreading history creatively, Black has asserted that whatever the Bill of Rights forbids the federal government to do, it forbids also to the states. Frankfurter and other first-rate scholars have demolished the historical basis of Black's claim and have shown it to be a distortion of history, but this has not prevented the adoption by the Court of a considerable part of Black's position; possibly all that the scholars have demonstrated is that here, as with Magna Carta, bad history can make good law.

In the first of the reapportionment cases that was to lead ultimately to the rule, “One man, one vote,” Frankfurter unashamedly urged the Court's weakness as a reason against its bold new course and unashamedly used the logic and language of the 18th century (“The Court's authority—possessed of neither the purse nor the sword . . .”) to prove its weakness. Many students of the Court's history agreed with Frankfurter that only ill could come of the new venture. It appears, however, to have succeeded, and today it does not seem revolutionary to hold that if gerrymandering against Negroes and in favor of whites is unconstitutional, gerrymandering in favor of rural districts and against large cities—even when disguised as Jeffersonian political theory—deprives city folk of the equal protection of the laws.

The Court in the reapportionment cases, as in the desegregation cases, has of course done more than merely veto unconstitutional laws. It has had to govern, to supervise, with the aid of the lower federal courts, educational policies and plans of reapportionment. If the Court has moved into fields in which it would be theoretically more appropriate for others to act, they are fields in which as a practical matter no one would act but the Court. Perhaps the Court has come through its recent crises so well because it is felt that it has by and large seized power only where others have abandoned their duties.

A Congress for more than two decades illiberal and inactive, as far as the public welfare was concerned, may have made the liberal active Court appear so necessary. Liberal opinion thirty years ago, when the Court was obstructing Congress, was certain that a constitutional amendment was needed to curb the Court, which as long ago as the days of John Marshall had usurped power over acts of Congress. In recent years liberals, if they criticized the Court, have complained that it has not sufficiently curbed Congress, and John Marshall is now recognized as our greatest judicial statesman for having made the Court strong. It may be that if Congress continues to be as active for the public welfare as it was in the last session, our scale of values and our view of the role of the Court may change again.

If our sense of the eternal verities which are the Court's business shifts again, our appraisal of its members is likely to shift with it. At the moment, Felix Frankfurter may seem not to have measured up to the great expectations held out for him on his appointment. No one appeared then so likely to be one of the greatest judges in our history as he. His entire life since he had entered Harvard Law School, a number of careers fine in themselves, could be regarded as training for his final career on the Court. As a student of the Court he was fully aware of the organic nature of the Constitution as a living instrument of government. Severe as his criticism of the Court was at times, he was deeply respectful of its traditions, especially as they were embodied in the work of his idol, Holmes.

And yet, perhaps he may have been the victim of his splendid training, unfitted by it for the work that the Court was actually called on to do. If he fell short of greatness it may be because he had been prepared by life for an era that was already past and was not to come again, at least in his lifetime. Holmes had said in speaking of John Marshall, “A great man represents a great ganglion in the nerves of society, or, to vary the figure, a strategic point in the campaign of history, and part of his greatness consists of his being there.” Holmes himself had the good luck to have this part of greatness, and if Frankfurter did not, it may be just because he thought Holmes a great man. One sometimes has to deny a hero his stature to free oneself of his influence, and this Frankfurter, with his deep loyalty to Holmes, could never do.

If Frankfurter turns out ultimately to have failed of greatness, it will be probably because, like Holmes, he respected power in others and tried to refuse it for the Court on which he sat. Pleased as Frankfurter had always been with the sense of power, he lacked the ruthlessness necessary to those who would possess it; if this turns out to have been a fault, it will always be deemed, whatever else history says of him, to have been a most attractive failing.

¹ We forget that Brandeis s eloquent statement in the California case on freedom of speech, in which Holmes joined, was made in the course of a concurring, not a dissenting, opinion. After stressing that speech may be within the protection of the Constitution even if it advocates law-breaking and is likely to result in some violence, and that it can be suppressed only if there is clear imminent danger of a serious evil, Brandeis nevertheless found that assisting in the organization of the Communist Labor party of California and being a member of it and meeting with it could properly be held to be a felony. There was evidence, Brandeis stated, “which tended to establish . . . a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes; and likewise to show that such a conspiracy would be furthered by the activity of the [Communist Labor party].” Apparently all that the party had actually done was to commend the I.W.W. for its words and deeds and pledge support to it.