Felix Frankfurter: Concurrence in Cooper v. Aaron

About the Author

Before Felix Frankfurter came to the U.S. Supreme Court, he had had a long and accomplished career as a liberal political activist and academic. Most onlookers assumed that he would continue to function in both roles on the Court but that his liberalism, rather than his academic nature, would predominate. In fact, it was his academic side that did. Frankfurter's penchant for pedantry combined with his philosophy of deference to legislative and administrative decision making, and the result muted both others' expectations and his own judicial accomplishments. His philosophy of judging, which emphasized process over results, was designed to be a value-neutral method of reaching a decision. This process jurisprudence, as it has come to be known, has been championed by some as an admirable form of judicial restraint. To others, Frankfurter's brand of judging more closely resembled abdication of responsibility.

Perhaps ironically, given Frankfurter's avowedly impersonal approach to his job on the Court, more than one Frankfurter observer has associated the justice's uncommonly reverential attitude toward the institutions of American government and their codified roles with his biography. Born in Vienna, Austria, in 1882, Frankfurter immigrated to the United States with his family when he was twelve years old. Like many other European immigrants, the Frankfurters settled on the Lower East Side of Manhattan. Within five years, however, the Frankfurters had moved uptown to the more affluent Yorkville section of New York City. Felix discovered his own route to upward mobility to be in education, entering City College in 1901 and going from there to Harvard Law School, where he graduated first in his class in 1906. At Harvard, Frankfurter was introduced to the case method, an innovative, ostensibly scientific method of studying law.

But Harvard also introduced Frankfurter to the kind of idealism about the law espoused by Louis D. Brandeis, the “people's attorney,” who would later become both a Supreme Court justice and one of Frankfurter's closest friends. Frankfurter followed Brandeis's example by choosing a career in public service, beginning with a position in the office of Henry L. Stimson, the U.S. Attorney for New York. Frankfurter had a gift for friendship, and his alliance with Stimson stood him in good stead as he followed the latter to Washington to serve in the administrations of Presidents Theodore Roosevelt and William Howard Taft. Stimson left Washington after the election of Woodrow Wilson, and Frankfurter followed shortly thereafter when he was invited to join the Harvard Law School faculty. Frankfurter had, of course, logged a sterling academic record while at Harvard, but it was a talk he had delivered in 1912 at the twenty-fifth anniversary of the Harvard Law Review that seems to have clinched the job. That speech, which emphasized the limited role of courts in interpreting economic regulation, stressed the necessity of permitting legislatures to experiment in order to meet the shifting necessities of a changing world. “The Constitution,” Frankfurter intoned prophetically, “was not intended to limit this field of experimentation” (Urofsky, p. 7).

Frankfurter taught at Harvard, focusing on the new field of administrative law, from 1914 until he joined the Supreme Court in 1939, but his commitment to public service and to economic progressivism frequently took him far from Cambridge, Massachusetts. Together with the editors Walter Lippmann and Walter Weyl, he was instrumental in founding the influential political and cultural magazine New Republic. Although he had never been an observant Jew, at the urging of Brandeis, Frankfurter helped spearhead the new American Zionist movement. After lobbying in support of Brandeis's ultimately successful Supreme Court nomination, Frankfurter took over his friend's role defending progressive labor legislation for the National Consumers' League.

During World War I, Frankfurter served as secretary and counsel to the Mediation Commission on Labor Problems, established to settle defense industry strikes, and chaired the War Labor Policies Board. These experiences familiarized him with labor politics, and he came to sympathize with those he viewed as underdogs, such as the radical labor leader Thomas Mooney. After the war, Frankfurter helped found the controversial American Civil Liberties Union. And in 1927 he took up the even more controversial cause of the immigrant anarchists Nicola Sacco and Bartolomeo Vanzetti, whom many believed had been framed for murder. The article he published in the prestigious Atlantic Monthly focused on the judicial overreaching that marred the Sacco and Vanzetti trial, and it cemented Frankfurter's reputation in some quarters as a radical.

In 1932 Frankfurter turned down a seat on the Massachusetts Supreme Judicial Court and took up the cause of Franklin Delano Roosevelt. When Roosevelt moved into the White House in 1933, Frankfurter became one of the president's staunchest “Brain Trust” lieutenants, supporting New Deal legislation and supplying bright young Harvard Law graduates—who came to be known as Frankfurter's “Happy Hot Dogs”—to staff the administration. Roosevelt rewarded him first with an offer to become solicitor general (which Frankfurter declined), and then, in 1939, with a nomination to replace Benjamin Cardozo on the Supreme Court. Owing to Frankfurter's activism on behalf of liberal causes and his continuing alliance with Roosevelt, observers expected him to continue along a progressive track once on the Court. A few years earlier, the previously conservative Court had experienced a profound reorientation in response to Roosevelt's ultimately unsuccessful plan to pack it with supporters, and during Frankfurter's tenure this leftward shift intensified. But Frankfurter, who many believed would assume intellectual leadership of the Court, was obliged to take a back seat as his onetime friend, Hugo Black, acted as midwife to the birth of new individual rights. Frankfurter, ideologically opposed to abstract principles and political outcomes, reconciled with his archrival only toward the end of their mutual Court tenures, by which time Black had drifted closer to Frankfurter's judicial conservatism. Frankfurter retired from the Court in 1962 after suffering a debilitating stroke. He died two and a half years later, at the age of eighty-two.