Inside a Justice's Mind

...Inside a Justice's Mind The Enigma of Felix Frankfurter By H N Hirsch Basic 253 pp $14 95 Reviewed by Robert Lekachman This pleasantly written, concise study of Harvard Law School's apostle of judicial self-restraint and incessant political meddling is inaccurately titled and singularly unpersuasive in its central psychological thrust AsH N Hirsch points out himself, "it would be possible to account for Frankfurter's votes and opinions on the Court without reference to his personality"—or, one might add, without subjecting him to the categories of Karen Horney and Erik Enkson In nontechnical language, FehxFrank-furter was an intellectually gifted individual of strong character and a decided yearning to have his own way Like a probable maj onty of judges and ordinary humans, he was neither excessively consistent m his adherence to professed principles nor invariably scrupulous about the tactics he employed to vanquish antagonists The Horney hypothesis Hirsch is taken with asserts that disruptive events in youth lead to efforts at reconstruction of a satisfactory identity, involving the invention of an idealized self-image Thedamagedpersonthenusesthat self-image as a standard for judging both himself and others In Hirsch's rendition, the death of Frankfurter's father, difficulties in coping with a powerful mother, and the complications of courting a wasp young lady resulted in a personal crisis which the future Justice resolved by glorifying himself as invariably right, courageous and disinterested By inevitable contrast his opponents—whether Harvard President A Lawrence Lowell during the Sacco-Vanzetti controversy, his lapsed disciple Jerome Frank in Franklin D Roosevelt's New Deal, or faithless Supreme Court colleagues like William O Douglas, Hugo L Black and Frank Murphy—all were seen as displaying the indelible stigmata of muddled intellect, self-interest, cowardly reaction to newspaper criticism and, in Douglas' case, political ambition Frankfurter was the more vehement in such ascriptions, claims his biographer, because he was arrested in a narcissism essential to preserving his psychological equilibrium Nothing is necessarily implausible about these musings, but this does not improve their otiose character Hirsch fails to demonstrate, for example, that his protagonist behaved much differently after the crucial biographical events that the psychiatric interpretation depends upon As a youngster, Frankfurter seems to have been nearly as certain of his intellectual superiority as he was on the Supreme Court in the course of instructing Stanley Reed, Harold Burton and any other colleague willing to scan his copious memoranda and listen to his conversational nagging The intensity of the flattery and manipulation he aimed with considerable success at Franklin Roosevelt resembled similar efforts before and during World War I to influence Theodore Roosevelt, Henry Shmson, Louis Bran-deis, and Oliver Wendell Holmes The best and most interesting pages in Hirsch's extended essay concern Frankfurter's judicial philosophy The "enigma" in the title, such as it is, refers to the apparent contradiction between his activism on behalf of labor during World War I and his gallant struggle to save the lives of Sacco and Vanzetti in the 1920s, and his unexpected refusal to deploy the institutional power of the Supreme Court to protect unpopular opinions, "dangerous" radicals and unprotected minorities once he became a Justice Hirsch concludes that Frankfurter was unwilling to join Black and Douglas in their ultimately successful effort to confer preferred status upon the Bill of Rights and the Fourteenth Amendment for strictly psychological, if not psychiatric, reasons The Black-Douglas theme that personal freedoms are more fundamental than mere property rights, and consequently entitled to special attention by the Supreme Court, derived from Justice Holmes, whom Frankfurter venerated But it also stemmed from Harlan Stone As early as 1938 in the famous Footnote 4 to United States v Carotene Products, Stone, still a mere Associate Justice, had foreshadowed the fundamental rights doctrine "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth " And Frankfurter, who was appointed to the Court in 1939, held Stone in contempt as an intellectual inferior There is, however, a readily available alternative explanation of Frankfurter's refusal to ally himself with the Court's liberals The man seems to have had little dif ficulty separating his role as a citizen crusading for justice for a pair of persecuted Italian anarchists from his responsibility as a Justice of the Supreme Court to interpret the Constitution He admired the document with the special fervor of an American patriot born in Europe His doctrine of deference to the elected branches of government complemented the powerful sentiments which, in the Gobitis case, persuaded him to deny the right of children of Jehovah's Witnesses to refrain from saluting the Stars and Stripes in public school The flag, especially in time of war, was for Frankfurter a vital symbol of national unity Similar reluctance to question sacred mechanisms led to his bitter dissenting opinion in Baker v Can, the case that compelled states to move toward at least approximately fair redistricting of Congressional and legislative constituencies Frankfurter was neither more nor less consistent than his friends and enemies When the issue was academic freedom, he became, abruptly, an interventionist quite ready to strike down New Hampshire's attempt to fire Paul Sweezy for failing to cooperate with inquiries into his political beliefs Issues of separation of church and state similarly aroused Frankfurter's passions and dissipated his usual reluctance to overturn the actions of legislative bodies As with Frankfurter, so with Douglas and Black Douglas came much later than Frankfurter to the perception that troubling issues of due process surrounded the trial and sentencing of the Rosenbergs He and his usual ally, Hugo Black, cheerfully ignored the nghts of naturalized Japanese after Pearl Harbor, endorsing their summary removal to "relocation" camps And during his final years on the bench, Black became increasingly impatient with free speech whenever it was mingled with rude action Perhaps all parties to these envenomed controversies were psychiatric cases Yet that is a conclusion too general to be interesting Judging from the available evidence, it is rather more likely that these were all men of unusual arrogance, self-will and determination to prevail Frankfurter came to the Supreme Court imbued with the confidence that a generation of instructing the deferential young at Harvard would easily transmute into similar pedagogical influence over his colleagues Of course their independence distressed him, as his self-righteousness irritated them Conceivably positions on both sides hardened as personal detestation sharpened intellectual differences, but these existed prior to and along with unjudicial emotions Lavishly endowed with charm and wit, Frankfurter was a wonderful fnend and resourceful ally so long as his intellectual supremacy was unquestioned Such are the vagaries of human affairs that his spiritual heirs on the 1981 Supreme Court are not William Brennan and Thurgood Marshall, the surviving liberals of the Earl Warren years, but the so-called strict constructionists appointed by Richard Nixon...