Felix Frankfurter

Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judicial restraint in its judgements.

Frankfurter was born in Vienna, immigrating to New York City at the age of 12. After graduating from Harvard Law School, Frankfurter worked for Henry L. Stimson, the U.S. Secretary of War. During World War I, Frankfurter served as Judge Advocate General. After the war, he helped found the American Civil Liberties Union and returned to his position as a professor at Harvard Law School. He became a friend and adviser of President Franklin D. Roosevelt, who appointed him to fill the Supreme Court vacancy caused by the death of Benjamin N. Cardozo. Although Frankfurter’s personal political views were strongly liberal, his experience with the Supreme Court’s Lochner era in which conservative justices struck down economic regulations, led him to oppose judicial intervention and his jurisprudence was generally conservative.^[3]

Frankfurter served on the Court until his retirement in 1962, and was succeeded by Arthur Goldberg. Frankfurter wrote the Court’s majority opinions in cases such as Minersville School District v. Gobitis, Gomillion v. Lightfoot, and Beauharnais v. Illinois. He wrote dissenting opinions in notable cases such as Baker v. Carr, West Virginia State Board of Education v. Barnette, Glasser v. United States, and Trop v. Dulles.

Overall, Frankfurter’s work gave him an opportunity to learn firsthand about labor politics and extremism, including anarchism, communism and revolutionary socialism. He came to sympathize with labor issues, arguing that “unsatisfactory, remediable social conditions, if unattended, give rise to radical movements far transcending the original impulse.” His activities led the public to view him as a radical lawyer and supporter of radical principles.^[20] Former President Theodore Roosevelt accused him of being “engaged in excusing men precisely like the Bolsheviki in Russia”.^[22]

As the war drew to a close, Frankfurter was among the nearly one hundred intellectuals who signed a statement of principles for the formation of the League of Free Nations Associations, intended to increase United States participation in international affairs.^[23]

Frankfurter was encouraged by Supreme Court Justice Louis Brandeis to become more involved in Zionism.^[7] With Brandeis he lobbied President Wilson to support the Balfour Declaration, a British government statement supporting the establishment of a Jewish homeland in Palestine.^[7] In 1918, he participated in the founding conference of the American Jewish Congress in Philadelphia, creating a national democratic organization of Jewish leaders from all over the US.^[24] In 1919, Frankfurter served as a Zionist delegate to the Paris Peace Conference.^[7]

Frankfurter’s activities continued to attract attention for their alleged radicalism. In November 1919, he chaired a meeting in support of American recognition of the newly created Soviet Union.^[26] In 1920, Frankfurter helped to found the American Civil Liberties Union.^[7] 

“the most dangerous man in the United States”,

Following the arrest of suspected communist radicals in 1919 and 1920 during the Palmer raids, Frankfurter, together with other prominent lawyers including Zechariah Chafee, signed an ACLU report which condemned the “utterly illegal acts committed by those charged with the highest duty of enforcing the laws” and noted they had committed entrapment, police brutality, prolonged incommunicado detention, and violations of due process in court.

Frankfurter and Chafee also submitted briefs to a habeas corpus application to the Massachusetts Federal District Court. Judge George W. Anderson ordered the discharge of twenty aliens, and his denunciation of the raids effectively ended them.^[27][28][29] It was during this time that J. Edgar Hoover followed Frankfurter, referring to him as “the most dangerous man in the United States”, and describing him in a report as a “disseminator of Bolshevik propaganda”.^[30][31]

Following the inauguration of Franklin D. Roosevelt in 1933, Frankfurter quickly became a trusted and loyal adviser to the new president. Frankfurter was considered to be liberal^[34] and advocated progressive legislation.^[35] He argued against the economic plans of Raymond Moley, Adolf Berle and Rexford Tugwell, while recognizing the need for major changes to deal with the inequalities of wealth distribution that had led to the devastating nature of the Great Depression.^[36]

Frankfurter successfully recommended many bright young lawyers toward public service with the New Deal administration; they became known as “Felix’s Happy Hot Dogs”.^[36][37] Among the most notable of these were Thomas Corcoran, Donald Hiss and Alger Hiss, and Benjamin Cohen. He moved to Washington, D.C., commuting back to Harvard for classes, but felt that he was never fully accepted within government circles. He worked closely with Louis Brandeis, lobbying for political activities suggested by Brandeis. He declined a seat on the Supreme Judicial Court of Massachusetts and, in 1933, the position of Solicitor General of the United States.^[37] Long an anglophile, Frankfurter had studied at Oxford University in 1920. In 1933–34 he returned to act as visiting Eastman professor in the faculty of Law.^[37][38]

A 1935 newspaper article describes the happy hot dogs as:^[39]

• Dean Acheson, Undersecretary of the Treasury
• Thomas Gardiner Corcoran, legal staff member of the Public Works Administration
• James M. Landis, head of the Securities and Exchange Commission
• Alger Hiss, “right hand man” of Solicitor General Stanley Forman Reed, U.S. Department of Justice
• Paul Freund, also legal staff member of the U.S. Department of Justice

Other “Frankfurter men” in the New Deal included:^[39]

• Benjamin V. Cohen, legal staff member of the Public Works Administration
• Jerome Frank, counsel to Reconstruction Finance Corporation, former general counsel of the Agricultural Adjustment Administration
• Charles Wyzanski, solicitor of the U.S. Department of Labor
• Thomas Elliott, general counsel for the new social security organization (Social Security Administration)
• Gardner Jackson, formerly assistant consumers’ counsel of the Agricultural Adjustment Administration

Even after his appointment to the Supreme Court, Frankfurter remained close to Roosevelt. In July 1943, on behalf of the President, Frankfurter interviewed Jan Karski, a member of the Polish resistance who had been smuggled into the Warsaw ghetto and a camp near the Belzec death camp in 1942, in order to report back on what is now known as the Holocaust. Frankfurter greeted Karski’s report with skepticism, later explaining: “I did not say that he was lying, I said that I could not believe him. There is a difference.”^[40][41]

Supreme Court justice[edit]

Frankfurter (right) giving testimony before the Senate Judiciary Committee during the January 1939 hearings on his nomination to be an associate Justice of the Supreme Court

Following the death of Supreme Court associate justice Benjamin N. Cardozo in July 1938, President Roosevelt turned to Frankfurter for recommendations of prospective candidates to fill the vacancy. Finding none on the list to suit his criteria, Roosevelt nominated Frankfurter.^[42] Frankfurter’s nomination quickly became highly controversial, and a number of witnesses gave testimony in opposing the nomination during the confirmation hearing before the Senate Judiciary Committee. In addition to the objection that he was considered to be the president’s unofficial advisor, that he was affiliated with special interest groups, that there were now no justices from west of the Mississippi, opponents pointed to Frankfurter as foreign-born and deemed to be affiliated with an anti-Christian movement viewed as part of a broader Communist infiltration into the country.^[43] As a result, the Judiciary Committee requested that Frankfurter appear before it and answer questions from the committee. He agreed, but only to address what he considered to be slanderous allegations against him. He was only the second Supreme Court nominee ever to testify during hearings on their nomination (the first was Harlan F. Stone in 1924), and the first to be requested to do so.^[44][45] Even so, he was confirmed by the U.S. Senate by voice vote on January 17, 1939.^[46]

Frankfurter retired in 1962 after suffering a stroke and was succeeded by Arthur Goldberg.^[70] He was awarded the Presidential Medal of Freedom by John F. Kennedy in 1963.

Felix Frankfurter died from congestive heart failure in 1965 at the age of 82. His remains are interred in the Mount Auburn Cemetery in Cambridge, Massachusetts.^[88][89]