During his twenty-three years as an associate justice, Frankfurter, a dedicated liberal in his personal life, was a major advocate of judicial self-restraint. As a justice, he attempted to decide cases procedurally rather than to reconstruct the judicial system.
Frankfurter was twelve when he arrived in the United States from his native Austria. He learned English quickly and in 1902 was graduated third in his class from the City College of New York. Four years later, he received a law degree with highest honors from Harvard University. He soon left the private practice of law to take a position as assistant to Henry L. Stimson, U. S. attorney for New York’s southern district. In 1914 he became a faculty member at Harvard University Law School.
During World War I (1917-1918), Frankfurter became a legal adviser on industrial matters to Secretary of War Newton D. Baker. In 1917 he served as secretary and later as counsel to President Woodrow Wilson’s Mediation Commission. The following year, he chaired the War Labor Policies Board. These government appointments gave Frankfurter the opportunity to deal with a broad variety of circumstances involving labor unrest. They also brought him to the attention of a broad range of government officials, some of whom were distressed by his liberal stands in relation to matters involving labor but many of whom admired his ability to deal objectively with controversial situations.
Frankfurter was Woodrow Wilson’s legal adviser at the Paris Peace Conference in 1919, after which he resumed his teaching career at Harvard. During the next decade, he was instrumental in founding the American Civil Liberties Union and helped to launch the New Republic, a magazine of political opinion. He was highly visible as a liberal activist, writing an impassioned article for the March, 1927, issue of The Atlantic Monthly in which he called for a new trial in the famous Sacco-Vanzetti case, whose defendants were both sentenced to death for a murder committed during a payroll robbery even though their trial was tainted in several ways.
When Franklin D. Roosevelt became president in 1933, Frankfurter became a frequent legal adviser to him. The president’s respect for Frankfurter grew through the years, and Roosevelt became increasingly dependent upon him for legal guidance as he proceeded with implementing the New Deal.
On January 5, 1939, Roosevelt nominated Frankfurter to serve as an associate justice of the Supreme Court. The nomination was unanimously confirmed in the Senate and, on January 17, 1939, Frankfurter was sworn in. The United States was in the midst of the New Deal, and Washington officials rejoiced at the appointment of a liberal activist who had proved his mettle as a champion of civil liberties. The Nation magazine proclaimed that Frankfurter’s whole life had been a preparation for service on the Court.
Even the conservative press applauded the appointment, acknowledging Frankfurter’s even-handedness in judicial matters. Frankfurter’s qualifications as a jurist could hardly be questioned. Few feared that his decisions would reflect narrow prejudices or unbalanced partisanship.
Frankfurter, the quintessential liberal when appointed to the Court, in time came to be known as one of the Court’s staunch conservatives. This transformation occurred because the Court, during the Roosevelt administration, came to be dominated by liberals who viewed it as their duty to promote liberal goals through their decisions. Some of these liberals felt hostility toward Frankfurter and considered him a turncoat.
Frankfurter believed fervently in Justice Oliver Wendell Holmes’s dedication to judicial self-restraint, which grew out of the Court’s tendency, when it was dominated by conservatives at the beginning of the twentieth century, to vote against cases brought before it that promoted progressive social legislation. During Frankfurter’s term, the Court had a majority of liberal justices, and he feared that it was becoming more concerned with making law than with interpreting the Constitution as it related to the cases brought before it. Because he realized the necessity of the separation of powers that characterizes democratic societies, Frankfurter frequently voted with the conservative minority rather than with the liberal majority, often casting the deciding vote in 5-4 decisions.
Frankfurter’s greatest contribution as a justice was to maintain to the best of his ability the separation of powers that assures government by the people rather than government by the government. Ironically, it was Frankfurter’s deep-seated liberalism that forced him into taking conservative stands. He recognized that a Court dominated either by liberals or conservatives bent on changing society rather than on interpreting the law as it is set forth in the Constitution overstepped its authority, taking on duties specifically assigned by the Constitution to the legislative branch of government. The Constitution is, after all, the U.S. government’s contract with its citizens.
Frankfurter’s transformation into a judicial conservative did not represent a contradiction in his thinking. Rather, it was totally consistent with his most closely held beliefs. He never at any point in his life failed to support the concept of government by the people.
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Roosevelt, Franklin D.
Separation of powers