Felix Frankfurter and the Law
| Author | Thomas Halper |
| Position | Baruch College & CUNY Graduate Center |
| Pages | 115-136 |
Felix FrankFurter and the law
Thomas Halper*
Baruch College & CUNY Graduate Center
ABSTRACT
Felix Frankfurter, renowned as a public intellectual ghting for justice, became as a
member of the Supreme Court a gure proclaiming his devotion to the rule of law and its
corollary, judicial self restraint, even when its results conicted with his deepest beliefs.
Yet an analysis of several of his leading opinions suggests that his famous balancing
tests had little to do with law. In sacricing his policy and ethical goals in the service
of law, he often failed to serve the law, and in that sense, his well publicized sacrices
were for nothing.
KEYWORDS
Frankfurter; judicial review; judicial self restraint; balancing tests; Thayer.
CONTENTS
Br. J. Am. Leg. Studies 7(1) (2018), DOI: 10.2478/bjals-2018-0003
© 2018 Thomas Halper, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Thomas.Halper@baruch.cuny.edu.
i. introduction ...............................................................................................116
ii. FrankFurter the Man ............................................................................... 116
iii. Minersville school district v. Gobitis .................................................. 120
iv. coleGrove v. Green ................................................................................. 125
v. dennis v. united states ............................................................................127
vi. rochin v. caliFornia ............................................................................... 130
vii. closinG thouGhts ..................................................................................133
7 Br. J. Am. Leg. Studies (2018)
i. introduction
Americans may not be able to agree on the meaning of greatness when they discuss
public gures, but it always seems to entail a strong urge for power. Lincoln’s
willingness to sacrice 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 ghting racial
discrimination; we also celebrate the bare knuckle means they employed because
we understand that without them, the goals would have remained unfullled. 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 justication 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 efgy 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 at 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
1 Letter to Albert G. Hodges, April 4, 1864, abrahaM lincoln, 10 coMplete works 66
(John Nicolay & John Hays eds. 1913).
2 robert a. caro, Master oF the senate: the Years oF lYndon Johnson (2002).
3 J. sidneY Jones, hitler in vienna, 1907-1913 111 (1982).
4 adolF hitler, Mein kaMpF 66-84 (1941).
5 harlan b. phillips, Felix FrankFurter reMinisces 5 (1960).
116
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