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Daily Briefing:DEVOTION TO THE LAW: JUSTICE FELIX FRANKFURTER’S ENDURING LEGACY

 ”One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.” — Felix Frankfurter
Table of Contents:

 

Portrait of Associate Justice Felix Frankfurter of the United States Supreme Court. (Wikipedia)

Felix Frankfurter and the Law:  Thomas Halper, British Journal of American Legal Studies | Volume 7: Issue 1, May 30, 2018


Review of “Felix Frankfurter Reminisces”:  Milton I. Goldstein, Washington University Law Review, Volume 1960, Issue 4

The Jewish Advocacy and Zionism Of Felix Frankfurter: Saul Jay Singer, Jewish Press, Sept. 4, 2019
Brandeis:  Felix Frankfurter, The New Republic, Feb. 5, 1915
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Felix Frankfurter and the Law
Thomas Halper
British Journal of American Legal Studies | Volume 7: Issue 1, May 30, 2018 I IntroductionAmericans may not be able to agree on the meaning of greatness when they discuss public figures, but it always seems to entail a strong urge for power. Lincoln’s willingness to sacrifice portions of the Constitution to save the whole system,1 for example, or Lyndon Johnson’s stretching the reach of the Senate majority leader beyond anything that had existed before2 are essential to their reputations. It is not simply that we celebrate their goals, abolishing slavery or fighting racial discrimination; we also celebrate the bare knuckle means they employed because we understand that without them, the goals would have remained unfulfilled. Putting the matter baldly, we accept that the ends justify the means.The central fact of Felix Frankfurter’s judicial career was a very public refusal to accept that justification and that practice. As he often explained in his opinions, this was not always easy, for far from being a Holmesian philosopher uninterested in the world, Frankfurter was highly engaged politically and temperamentally given to constant, often intrusive, activity. Results mattered deeply to him. But as he repeatedly observed, the law mattered more. Indeed, it is his devotion to the law that he considered the most valuable part of his career and his most important legacy.II Frankfurter the Man

Frankfurter was born in 1882 in Vienna, the capital of the declining Austro-Hungarian empire, into a Jewish family that for generations had produced rabbis. As a result of widespread anti-Semitism, many Jews in the empire had come to the more cosmopolitan Vienna, which itself then became more aggressively anti-Semitic, with the creation in 1885 of a student union at the University of Vienna based on hostility toward Jews, with the state in 1887 formally prohibiting foreign Jews from emigrating to the country, and with the election in 1894 of the virulently anti-Semitic mayor, Karl Lueger, whose “followers wore an effigy of a hanged Jew on their watch chains.”3

Hitler, born elsewhere in Austria in 1889, lived for six years in Vienna and later declared in Mein Kampf that because of this experience, he “became an anti-Semite.”4

Frankfurter’s father came to Chicago for its world’s fair in 1893, decided to stay, and the following year sent for the rest of his family. They settled in a cold water flat in the famous Jewish ghetto on the Lower East Side of Manhattan, after a while moving to a more comfortable uptown German neighborhood, Yorkville. From the earliest days, “certainly in the early teens,”5 young Felix was a brilliant student deeply involved in social and labor issues. At nineteen, a mere seven years after he came to this country speaking no English, he graduated from City College third in his class, then worked for a year with the city’s Tenement House Department to help pay for law school, and at twenty was admitted to Harvard, where he edited the Law Review and compiled a stunning record, graduating first in his class. … [To read the full article, click the following LINK – Ed.]
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Review of “Felix Frankfurter Reminisces”
Milton I. Goldstein
Washington University Law Review, Volume 1960, Issue 4

FELIX FRANKFURTER REMINISCES; Recorded in talks with Harlan B. Phillips. By Felix Frankfurter. New York: Reynal & Co., 1960. Pp. ix, 310.

The death of Justice Cardozo in the summer of 1938 created a vacancy on the Supreme Court of the United States. In October, Professor and Mrs. Frankfurter were invited to spend the weekend at Hyde Park. There, President Franklin D. Roosevelt explained to his guest that he could not appoint him because he had “given very definite promises to Senators and party people that the next appointment to the Court would be someone west of the Mississippi.”

He asked Professor Frankfurter, then and later, for his opinion of those under consideration, including Wiley Rutledge, Dean of the Law School of the University of Iowa, and formerly of Washington University, St. Louis.

On Tuesday evening, January 4, 1939, the phone rang in the study of the Frankfurter home in Cambridge, Massachusetts.

“There was the ebullient, the exuberant, resilient warmth-enveloping voice of the President of the United States.”

Mrs. Frankfurter had just gone down, at the sound of the doorbell, to receive their dinner guest, admonishing her husband who was still dressing:

“Please hurry! You’re always late.”

After the usual pleasantries, the President said:

“You know, I told you I don’t want to appoint you to the Supreme Court of the United States.”

“Yes, you told me that.”

“I mean this. I mean this. I don’t want to appoint you to the Supreme Court.”

“Here I was in my B.V.D.’s, and I knew Marion would be as sore as she could be. She had said I’m always late which is indeed substantially true …. You know, he was given to teasing. Some people said that it was an innocently sadistic streak in him. He just had to have an outlet for fun.”

“I was getting bored, really, when he whipped around on the telephone and said, ‘But unless you give me an unsurmountable objection, I’m going to send your name in for the Court tomorrow at twelve o’clock’-just like that, and I remember saying, and it is natural to remember this very vividly-‘All I can say is that I wish my mother were alive.'”

In this manner, Felix Frankfurter recounts how he was notified of his appointment to the Supreme Court. Similarly, he details significant events in his life from the time he arrived from Vienna as an immigrant, not yet twelve, unable to speak a word of English, until he went on the bench. The reader follows him through the New York public schools and City College to the Harvard Law School, where he finished first in his class. He wanted to practice law but not to have clients.  … [To read the full article, click the following LINK– Ed.]
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The Jewish Advocacy and Zionism of Felix Frankfurter
Saul Jay Singer

Jewish Press, Sept. 4, 2019

Felix Frankfurter (1882-1965) is best known as an outspoken promoter of judicial restraint during his service as a Supreme Court justice from 1939-1962; for helping to found the American Civil Liberties Union in 1920 and serving as its legal advisor, which led J. Edgar Hoover to call him “the most dangerous man in the United States”; for his support of American recognition of the newly created Soviet Union in 1919, which led many analysts to describe him as a “disseminator of Bolshevik propaganda”; and for his years as a professor at Harvard, during which he continued his progressive work on behalf of socialists and oppressed and religious minorities.

On an interesting note, Frankfurter hired an Orthodox Jew as a Supreme Court clerk; unable to get home for Sabbath, the clerk regularly slept on the justice’s couch on Friday nights.

Frankfurter also employed an African-American as a clerk (he was the first justice to do so), but he turned down highly-qualified female applicants for the position based entirely upon their gender – including Ruth Bader Ginsburg who, ironically, would later reconstitute the so-called “Jewish seat” on the court.

After Frankfurter served as Assistant U.S. Attorney to Henry Stimson in New York in 1906, his career became entwined with FDR at the Department of the Navy. He maintained a close and lifelong relationship with Roosevelt, beginning with serving as counsel to FDR when the latter was elected governor of New York. He later declined President Roosevelt’s offer to become U.S. Solicitor General on the grounds that he could be more helpful to FDR working outside the administration. During FDR’s presidency, many claimed that Frankfurter was “the most influential single individual in the United States.”

In nominating Frankfurter to the Supreme Court in 1938, FDR ignored the advice of those counseling against permitting two Jews to simultaneously serve on the court (Brandeis was the other). His wife, the very tolerant and respected Eleanor Roosevelt, characterized Frankfurter as “an interesting little man, but very Jew.”

Sadly, but not surprisingly, much of the strongest opposition to his selection came from Jews, including particularly New York Times publisher Arthur Sulzberger, who feared that Frankfurter’s appointment would lend support to those who criticized FDR’s bold initiatives as being “run by the Jews,” including Roosevelt’s “Jew Deal” (New Deal).

Frankfurter also drew significant opposition for not being born in the United States (he is one of six foreign-born justices in American history) and for his support of “Communist infiltration into the country.” As a result, he became the first nominee to testify personally before the Senate Judiciary Committee. … [To read the full article, click the following LINK – Ed.]
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Brandeis
Felix Frankfurter
The New Republic, Feb. 5, 1915

One public benefit has already accrued from the nomination of Mr. Brandeis. It has started discussion of what the Supreme Court means in American life. From much of the comment since Mr. Brandeis’s nomination it would seem that multitudes of Americans seriously believe that the nine Justices embody pure reason, that they are set apart from the concerns of the community, regardless of time, place and circumstances, to become the interpreter of sacred words with meaning fixed forever and ascertainable by a process of ineluctable reasoning. Yet the notion not only runs counter to all we know of human nature; it betrays either ignorance or false knowledge of the actual work of the Supreme Court as disclosed by two hundred and thirty-nine volumes of United States reports. It assumes what is not now and never was the function of the Supreme Court.

The significant matters which come before the Supreme Court are not the ordinary legal questions of the rights of Smith v. Jones. If they were, the choosing of a Supreme Court Justice would be of professional rather than of public interest. In our system of government the Supreme Court is the final authority in the relationship of the individual to the state, of the individual to the United States, of forty-eight states to one another, and of each with the United States. In a word, the Court deals primarily with problems of government, and that is why its personnel is of such nation-wide importance. But though the Court has to decide political questions, it escapes the rough-and-tumble of politics, because it does not exercise power for the affirmative ends of the state. What it does is to define limitations of power. It marks the boundaries between state and national action. It determines the allowable sphere of legislative and executive conduct.

These are delicate and tremendous questions, not to be answered by mechanical magic distilled within the four corners of the Constitution, not to be solved automatically in the Constitution “by taking the words and a dictionary.” Except in a few very rigid and very unimportant specific provisions, such as those providing for geographic uniformity or prohibiting the enactment of bills of attainder, the Justices have to bring to the issues some creative power. They have to make great choices which are determined in the end by their breadth of understanding, imagination, sense of personal limitation, and insight into governmental problems. It is a commonplace of constitutional law, insisted upon by students like David Bradley Thayer, a commonplace to be kept vigilantly in mind, that Justices of the Supreme Court must be lawyers, of course, but above all, lawyers who are statesmen. … [To read the full article, click the following LINK – Ed.]
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FOR FURTHER REFERENCE:

L’Chayim: David Dalin – Jews On the Supreme CourtYouTube, JBS, Jul 5, 2017 — Rabbi and historian David Dalin discusses the contributions of the first three Jewish Supreme Court Justices — Louis Brandeis, Benjamin Cardozo and Felix Frankfurter — profiled in his book Jewish Justices of the Supreme Court. With Mark S. Golub

The 8 Jewish Justices Who Made the US Supreme Court Jump:  Rich Tenorio, Times of Israel, July 31, 2017 — Eight out of 113 justices to have wielded the gavel in the United States’ highest court can also lay claim to membership in another club — the Tribe — and now, a new book is telling their collective story.

The Source Of Justice In the Mind of a Justice:  Alan M. Dershowitz, NY Times, Feb. 22, 1981 — THE ENIGMA OF FELIX FRANKFURTER By H.N. Hirsch. 253 pp. New York: Basic Books. $14.95. THE art of judicial biography is finally coming into its own in America.

Felix Frankfurter’s Revenge? A Democracy Built by Judges YouTube, Dec 10, 2012 — Beginning with its landmark decision in Baker v. Carr (1962), the Supreme Court has been actively involved in shaping American democracy for almost 50 years. In his dissent, Justice Felix Frankfurter warned we would rue the day we allowed judges, acting as amateur political scientists, to have the final word on the functioning of American democracy.
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This week’s Communiqué Isranet is :Communiqué: Une administration très juive, mais sera-t-elle pro-israélienne également

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