Felix Frankfurter - Supreme Court

Supreme Court

Following the death of Supreme Court Justice Benjamin N. Cardozo in July 1938, President Franklin D. Roosevelt asked his old friend Frankfurter for recommendations of prospective candidates for the vacancy. Finding none on the list to suit his criteria, Roosevelt nominated Frankfurter himself, and he was confirmed without dissent. The Senate confirmation hearing on the nomination of Frankfurter is notable for being the first time that a nominee for the Supreme Court appeared in person before the Judiciary Committee. He served from January 30, 1939 to August 28, 1962. He wrote 247 opinions for the Court, 132 concurring opinions, and 251 dissents.

Frankfurter became the court's most outspoken advocate of judicial restraint, the view that courts should not interpret the fundamental law, the constitution, in such a way as to impose sharp limits upon the authority of the legislative and executive branches. He also usually refused to apply the federal Constitution to the states. In the case of Irvin v. Dowd, Frankfurter would state what was for him a frequent theme: "The federal judiciary has no power to sit in judgment upon a determination of a state court... Something that thus goes to the very structure of our federal system in its distribution of power between the United States and the state is not a mere bit of red tape to be cut, on the assumption that this Court has general discretion to see justice done...".

In his judicial restraint philosophy, Frankfurter was heavily influenced by his close friend and mentor Oliver Wendell Holmes, Jr., who had taken a firm stand during his tenure on the bench against the doctrine of "economic due process". Frankfurter revered Justice Holmes, often citing Holmes in his opinions. In practice, this meant Frankfurter was generally willing to uphold the actions of those branches against constitutional challenges so long as they did not "shock the conscience." Frankfurter was particularly well known as a scholar of civil procedure.

Frankfurter's adherence to the judicial restraint philosophy was shown in the 1940 opinion he wrote for the court in Minersville School District v. Gobitis, a case involving Jehovah's Witnesses students who had been expelled from school due to their refusal to salute the flag and recite the Pledge of Allegiance. He rejected claims that First Amendment rights should be protected by law, and urged deference to the decisions of the elected school board officials. He stated that religious belief "does not relieve the citizen from the discharge of political responsibilities" and that exempting the children from the flag-saluting ceremony "might cast doubts in the minds of other children" and reduce their loyalty to the nation. Justice Harlan Fiske Stone issued a lone dissent. The court's decision was followed by hundreds of violent attacks on Jehovah's Witnesses throughout the country, and was subsequently overturned in March 1943 by the Supreme Court decision on West Virginia Board of Education v. Barnette. Former ally, Supreme Court justice Robert H. Jackson wrote the majority opinion in this case, which also concerned Jehovah's Witnesses students expelled from school for refusing to salute the flag. Jackson's opinion, which contradicted Frankfurter's on most points, elicited an impassioned dissent from Frankfurter. In it he rejected the notion that as a Jew he ought "to particularly protect minorities." He reiterated his view that the role of the Court was not to give an opinion of the "wisdom or evil of a law" but only to determine "whether legislators could in reason have enacted such a law".

In the apportionment case of Baker v. Carr, Frankfurter's position was that the federal courts did not have the right to tell sovereign state governments how to apportion their legislatures; he thought the Supreme Court should not get involved in political questions, whether federal or local. Frankfurter's view had won out in the 1946 case preceding Baker, Colegrove v. Green – there, a 4–3 majority decided that the case was non-justiciable, and the federal courts had no right to become involved in state politics, no matter how unequal district populations had become. However, the Baker case would settle the matter – the drawing of state legislative districts was within the purview of federal judges, despite Frankfurter's warnings that the Court should avoid entering "the political thicket."

Frankfurter reaffirmed this view in a concurring opinion written for the 1951 Dennis v. United States Supreme Court ruling. The decision affirmed, by a 6–2 margin, the conviction of eleven communist leaders for conspiring to overthrow the US government under the Smith Act. In it, he once again argued that judges "are not legislators, that direct policy-making is not our province." He also recognized that curtailing the free speech of those who advocate the overthrow of government by force, also risked stifling criticism by those who did not, writing that " is a sobering fact that in sustaining the convictions before us we can hardly escape restriction on the interchange of ideas."

A pivotal school desegregation case came before the court in Brown v. Board of Education. It was argued, and was set for reargument when Chief Justice Fred M. Vinson died. It has been reported that Frankfurter remarked that Vinson's death was the first solid piece of evidence he had seen to prove the existence of God. It should be noted that this story was tied to a scheduled reargument in which Vinson's vote could be crucial (in Brown vs. Board of Education, where ostensibly Vinson was not disposed to overrule Plessy vs. Ferguson), and in any event, some believe the story to be "possibly apocryphal."

Frankfurter demanded that the opinion in 1955's Brown v. Board of Education II order desegregation with the phrase of "all deliberate speed". The phrase gave school boards across the country an excuse to defy the demands of the first Brown decision. For fifteen years, schools in the South remained segregated, until the Supreme Court's opinion in Alexander v. Holmes County Board of Education. There, the Court would write that "The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools."

Frankfurter was hands-off in the area of business. In the 1956 government case against DuPont, started because DuPont seemed to have maneuvered its way into a preferential relationship with GM, Frankfurter refused to find a conspiracy, and said the Court had no right to interfere with the progress of business. Here again, Frankfurter opposed the views of Justices Warren, Black, Douglas, and Brennan (though Frankfurter lost 4–3).

Later in his career, Frankfurter's judicial restraint philosophy frequently put him on the dissenting side of ground-breaking decisions taken by the Warren Court to end discrimination.

Frankfurter believed that the authority of the Supreme Court would be reduced if it went too strongly against public opinion: He sometimes went to great lengths to avoid unpopular decisions, including fighting to delay court decisions against racial intermarriage.

For the October 1948 Supreme Court Term, Frankfurter hired William Thaddeus Coleman as a law clerk, the first African American to serve as a Supreme Court law clerk.