Talent Scout for the Administrative State
You can view Brad Snyder’s “Democratic Justice” as the
sequel to his “The House of Truth” where the leading lights of early 20th
Century liberalism lived or visited one time or another at 1727 19th
Street in Washington D.C. from 1912-1919. (Shulmaven:
My Amazon Review of Brad Snyder's "The House of Truth: A Washington
Political Salon and the Foundations of American Liberalism") One of those occupants was Felix Frankfurter
who was to become a confidant of Franklin Roosevelt and the leading talent
scout for the New Deal.
Arriving in 1894 at age 12 from Austria, a mere
fourteen year later Felix Frankfurter would find himself with a Harvard law
degree and working as an assistant U.S. attorney for the Southern District of
New York under the leadership of Henry Stimson. Stimson would go on to become
Secretary of War under both Howard Taft and Franklin Roosevelt and Secretary of
State under Hoover. Stimson would be
Frankfurter’s mentor and instill in him the importance of public service.
After leaving the War Department, Frankfurter returned
to Harvard Law School as a professor, but would soon find himself involved with
the House of Truth. He would help found The New Republic in 1914 and the ACLU
in 1920. Along the way he ran Wilson’s War Labor Board, attended the Versailles
Conference and under the wing of Louis D. Brandeis became an ardent Zionist. It
was in the Wilson Administration where Frankfurter met Franklin Roosevelt and
formed a bond that last until Roosevelt’s death in 1945.
Frankfurter’s judicial idols were justices Oliver Wendell
Holmes and Brandeis, both of The House of Truth and later Benjamin Cardozo. All
three supported minority rights and importantly were reluctant to overturn economic
regulations passed by the elected branches of government. In their view and
Frankfurter’s as well they did not see the Supreme Court as a super-legislature.
Hence Snyder’s title “Democratic Justice.” To me a major inconsistency with
that view, while Frankfurter and his brethren were unwilling to give authority
to unelected judges, they were more than willing to give authority to unelected
regulatory agencies of the administrative state. Snyder is clearly a proponent
of the administrative state.
Frankfurter comes into his own with the arrival of the
new deal. He has near complete access to the White House, and he was able to
place his former students across a vast swath of the ever-growing bureaucracy.
They would include Dean Acheson (Treasury and later Secretary of State under
Truman), Alger Hiss (State Department and Soviet spy), James Landis (S.E.C.) Ben
Cohen and Tom Corcoran who wrote the securities laws and the Public Utility
Holding Company Act.
Roosevelt ultimately appoints to Frankfurter to the
Supreme Court. His was the first of the
modern confirmation hearings where the nominee actually testified before
Congress. His clerks would go onto become prominent law professors (Anthony
Amsterdam, Alexander Bickel, and Paul Freund), Washington Post owner Phil
Graham, Appellate Judge Henry Friendly, FCC Chairman Newton Minow, civil rights
lawyer Joseph Rauh and Attorney General Elliot Richardson.
When Frankfurter was appointed to the Supreme Court
the betting was that he would vote as a traditional liberal. That would not be
the case because his philosophy of judicial restraint which was completely in
accord with upholding much of the New Deal, would now be supportive of
governmental actions supportive of national defense (Japanese internment),
mandating the reciting of the Pledge of Allegiance in public schools and
reapportionment. In case of the last he did not want the Supreme Court to get
involved in the “political thicket.’’ (Baker v. Carr). To me given how
political the Supreme Court has become in recent years, it would be a breath of
fresh air to have the court pull back from what are essentially political
controversies that should rightfully be settled by the political branches of
government.
In the famous Brown vs. Board of Education we witness
Frankfurter playing a critical roll in bringing the court to a unanimous
decision which was absolutely critical to the legitimacy of the decision. He also
was responsible for the words “with all deliberate speed” taken from a much
earlier Holmes decision. Frankfurter and Justice Black for that matter believed
that integration could not be accomplished in one fell swoop.
Snyder also writes of Frankfurter’s long marriage to
Marion and how he cared for her as a nurse in her later years. Though childless
the couple took in three children from a friend in England at the start of
World War II. Parenthood was a new and loving experience for them.
I learned from Snyder that the famous “switch in time that saved nine” in 1938 by Justice Owen Roberts was not in response to Roosevelt’s court packing scheme. The decision was made several months before but was not read until one of the justices had recovered from an illness. I also learned that internal arguments within the Supreme Court among the justices take on some of the aspects of a middle-school cafeteria and that Frankfurter and William O. Douglas hated each other. Brad Snyder has written the definitive biography of Felix Frankfurter. However, I do warn the reader it is 992 pages long in the print edition.
For the full Amazon URL see: Talent Scout for the Administrative State (amazon.com)
