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f C H A P T E R 3 Felix Frankfurter & Arrogance Rewarded Felix Frankfurter came to the Court in 1939 at the age of ‹fty-seven, believing he had been better prepared to do its work than anyone in its history. Twenty-three years later, he left the Court, implicitly hectoring his brethren for their failure to follow the standard he had articulated throughout his career and claimed to have followed.1 The disappointment and thinly veiled anger in his parting letter was but the ‹nal scene in a drama in which the elements for tragedy had been established during the years he served with Jackson, Black, and Douglas. There was a brief honeymoon of leadership when he was new to the Court and then, rejected in the ‹rst years of the 1941–54 period, he proceeded to years of bitter carping at the ascendancy of Black and Douglas, enjoying only occasional moments of success for himself . His tragedy was that, as a self-appointed chosen justice who was never able to accept his brethren as equals, he ironically failed to appreciate the essential nature of the Court and the role of the justices. f Frankfurter’s was the great story of immigrant success. Born in Vienna, Austria, in 1882, he came with his parents to America when he was twelve years old, not speaking a word of English. Five years later he was graduating from New York’s City College’s combined high school and college program , having gorged himself on all that he could read. Following an interim year of work, he serendipitously ended up at the Harvard Law School in 61 1906. He conquered this alien cultural milieu, graduated ‹rst in his class, and fell under the in›uence of Harvard’s legendary teachers, though the one who in›uenced him most, James Bradley Thayer, had died shortly before Frankfurter began his studies in Cambridge. Off to New York City, Frankfurter’s stint in private practice lasted only a few months. Next was the U.S. Attorney’s of‹ce of Henry Stimson in the Southern District of New York. He followed Stimson to Washington in 1910 and served as the chief legal of‹cer of the Department of War’s Bureau of Insular Affairs and then as special assistant to Stimson, now secretary of war. He returned to Harvard in 1914 and stayed there, with occasional absences for government service, for twenty-‹ve years. This government work, mostly between 1916 and 1919, helped shape Frankfurter’s liberal inclinations. As a roving presidential investigator, he saw the labor battles of the American West ‹rsthand. He served on the President’s Mediation Commission as secretary and counsel, traveling widely and living for many weeks in a railroad car. He defended the rights of labor organizers and wrote an in›uential and highly critical report on the trial of labor organizer Tom Mooney. The academic life to which he returned did not slow his liberal activism. Involving himself in both individual cases and general causes, he worked strenuously on a defense of Sacco and Vanzetti; he wrote on the Scottsboro trial for the New York Times and argued that the Court had vindicated constitutional rights when it overturned the convictions; and he worked with the NAACP, the ACLU, and the National Consumer’s League. He was a founding member of the New Republic and wrote countless articles and editorials for it. He worked on Zionist causes on an international scale, sometimes in the stead of Justice Brandeis, and on the Harvard campus itself he fought for better treatment of Jews in student admission and faculty hiring policies, often to the consternation and irritation of Harvard’s president, A. Lawrence Lowell. Frankfurter’s principal interests as a teacher and scholar were in administrative law and the federal courts, especially the Supreme Court. His administrative law seminars were known as the Case-of-the-Month class because of Frankfurter’s habit of taking one case at a time and dissecting it from front to end. His articles and books on the business of the Supreme Court brought a new perspective to the study of the Court and in›uenced generations of scholars. His writings and casebook on the federal courts similarly in›uenced countless students who went on to academic and judi62 The Great Justices 1941–54 cial careers. Some commentators, in fact, have argued that Frankfurter’s contributions from the ivory tower might exceed those from the bench.2...

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