My Amazon Review of Brad Snyder's "Democratic Justice: Felix Frankfurter..........."

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 20^th Century liberalism lived or visited one time or another at 1727 19^th 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)