A Tale of Two Justices
The Brandeis-Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices.
by Bruce Allen Murphy.
Oxford University Press. 473 pp. $18.95.
The story line of this book was somewhat obscured by its pre-publication publicity. Essentially, it is an account of some inside Washington politics. It discusses the preoccupations of one particular Washington network that formed around Supreme Court Justice Louis Brandeis and Harvard Law Professor Felix Frankfurter, from the time Brandeis went on the Court in 1916 to the death of Frankfurter in 1962. On the whole their preoccupations make fascinating reading. There is a description of infighting between “collectivists” in the early New Deal and the smaller-is-better crowd around Brandeis. There are speculations on what lay behind Frankfurter’s unwillingness to attack Roosevelt’s court-packing plan and his desertion of his friend Thomas Corcoran when Corcoran needed his endorsement for nomination as Solicitor General. These are only two examples; no doubt they are old stuff to aficionados of the 1930’s, but they make good reading anyway.
Because the author’s special contribution rests on his use of a previously unopened cache of letters between Brandeis and Frankfurter, heavy emphasis has been laid on whatever can be made of this find. For example, there is the revelation that Brandeis, a millionaire, while he was on the Court subsidized some of Frankfurter’s political activities to the tune of $2,500 or $3,500 a year, from 1916 until 1938. These political activities were extensive, and included policy advocacy over a wide range of issues, foreign and domestic; the placement of protégés, friends, and allies in high places; the stimulation of a climate of opinion through law-review articles and magazine editorials; and the waging of bureaucratic combat in numerous agencies of government. The letters indicate that Brandeis was busy behind the scenes in encouraging this activity, and in some instances Frankfurter acted in Brandeis’s behalf. Whether the evidence of this longstanding alliance is enough to sustain the author’s suggestion that the association was para-military in its configuration (with Frankfurter following orders, acting as Brandeis’s “lieutenant,” deploying forces, and so forth) is another matter. I daresay some corrective quibbling will go on before the complexities of the relationships among all the various actors are fully sorted out.
Murphy also raises the issue of the propriety of the behavior of the major actors. Brandeis frequently claimed his judicial role precluded various sorts of public leadership, and Frankfurter was given to preaching about the obligations that judges have to refrain from political activity as well as from letting political considerations influence their judicial work. All this fastidiousness has to be reconciled in some fashion with the fact that both Justices were deeply and busily engaged in the politics of their time. Murphy is particularly ingenious in discussing Frankfurter in this connection, suggesting, among other things, that his elaboration of the doctrine of judicial self-restraint performed the personal function of helping Frankfurter compartmentalize his activities as a jurist from the intense political dabbling of his private life.
Contemporary commentators evidently feel the need to pronounce upon the merits of all this extra-judicial activity. Sorting out the pros and cons of activities that took place as long as six decades ago is a little bit like trying to audit George Washington’s expense account, and Murphy is appropriately respectful of the inherent difficulties in recapturing context. But he does raise some ethical issues worth thinking about.
For instance, how can a judge be sure that his political activities will not involve matters which will end up, in some form or other, before him for judicial determination? The answer seems to be that he can not, and therefore any sort of political activity risks the possibility that he may find himself unable to do the job for which he is being paid. If he is scrupulous, he must withdraw—as Brandeis did in the Sacco-Vanzetti case (conceivably because of his covert activities in behalf of the defendants, although there may have been other reasons). Or he may attempt to be the judge in what, in some respect or other, may be his own cause. Because it is hard—especially in the United States—to predict when a matter may turn up on a judge’s calendar, the presumption is that judges must exercise caution in getting politically involved.
On the other hand, it was undoubtedly regarded as not terribly risky to maintain an interest in Zionism, such as Brandeis did, or in foreign policy during World War II, which greatly engaged Frankfurter. Even so, the 1940 deal whereby the U.S. transferred destroyers to the British in exchange for leases on naval and air bases did involve a legal issue or two, and Frankfurter evidently fed advisory opinions to members of the executive branch, as he also may have done on one or two other occasions. This surely invaded a gray area. The Court traditionally interprets its job as precluding the furnishing of advisory opinions, but that norm applies to the Court as a collective entity. Individual Justices are not supposed to tip their mitts for the reasons given above: they might have to disqualify themselves as in some sense already involved parties if the matter showed up on their docket.
Justices of the Supreme Court serve during good behavior, and the ultimate judge of that behavior is the Congress with its power to impeach. Nobody ever seriously entertained the idea of impeaching either Brandeis or Frankfurter. Would they have done so if the two had behaved less discreetly (or circumspectly, or secretively, or furtively) in pursuing their political interests—in, for example, recommending tax policies, as Brandeis did, or recruiting people to public office, as Frankfurter did? I can not give a confident answer. It would, no doubt, have depended on calculations of advantage made by those who might have disagreed with them, supplemented by the thrusting of wet fingers into the contemporary political breezes.
Murphy’s account of the political activities of these two Justices gives no evidence that what they did was for private or personal gain in any simple sense. Brandeis was an ascetic prophet interested in social reform; Frankfurter, as Murphy says, was “notably improvident” in his personal finances and cared principally about politics and about being in the thick of things. So readers who take up this book looking for some precursor to Watergate will be wasting their time. It is only incidentally an exposé. It is primarily a serious and commendable work of scholarship, a partial but engaging and persuasive portrait of the Washington political community for a good slice of the 20th century, and of some of the machinations that engaged one of its most important liberal groups.