Jewish Justices of the Supreme Court by David G. Dalin

Author:David G. Dalin
Language: eng
Format: epub
Publisher: Brandeis University Press

Frankfurter’s Enigmatic Legacy

Felix Frankfurter was one of the twentieth century’s most influential jurists. As a Harvard law professor for twenty-five years, he trained a generation of lawyers, judges, legal scholars, and public servants—Dean Acheson, Henry Friendly, Paul Freund, Louis Henkin, Charles Wyzanski Jr., James Landis, Benjamin Cohen, Joseph Rauh Jr., David Riesman, Fred Graham, Richard Goodwin, Elliot Richardson, Archibald MacLeish, Charles Houston, William Hastie, Louis Jaffe, Thomas Corcoran, and Harry Shulman among them—who would make enduring contributions to academia and American public life. As a Supreme Court justice for twenty-three years—the third longest tenure of the FDR appointees, behind Justices Black (1937–1971) and Douglas (1939–1975)—he mentored an extraordinary group of law clerks, who, in their later academic, judicial, and government positions, would continue “to spread his influence so that it remains almost as potent today as it did in his lifetime.”183 His clerks included a future Washington Post publisher, a librarian of Congress, a touted presidential speechwriter, a Securities and Exchange Commission chairman, the attorney general and lieutenant governor of Massachusetts, an ambassador to England, cabinet members in the Nixon and Ford administrations during the 1970s, and deans of Harvard, Yale, and Columbia Law Schools during the 1980s.

Despite occupying the “scholar’s seat” on the court previously held by Holmes and Cardozo, Frankfurter, as we saw, while at Harvard achieved more success in his popular than his academic writings. To be sure, he lectured frequently at academic institutions, with these lectures published, most notably, as The Public and Its Government, based on his Dodge Lectures at Yale Law School, The Commerce Clause under Marshall, Taney and Waite, and Mr. Justice Holmes and the Supreme Court, with the last based on three Harvard lectures he delivered in 1938. He also published The Business of the Supreme Court: A Study in the Federal Judicial System, coauthored with his student James Landis. His best known book remains undoubtedly The Case of Sacco and Vanzetti, the expanded version of his Atlantic Monthly defense of the convicted anarchists. However, Frankfurter never produced an enduring classic of legal scholarship comparable to Holmes’s The Common Law or Cardozo’s The Judicial Process. Nor did he achieve the “scholar on the bench” stature enjoyed by Holmes and Cardozo. In his legal scholarship, Frankfurter did, however, exceed the accomplishments of Brandeis, whose only lasting work of legal scholarship was his 1891 Harvard Law Review article “The Right to Privacy,” coauthored with his law partner Samuel Warren.

Yet Frankfurter contributed to legal scholarship in other ways, such as by inspiring his former students and clerks to write judicial biographies as well as studies of the Supreme Court. Even when he was old and ill, just before retiring, Frankfurter “was occupied about what history would record about him and . . . his legacy” and sought also to choose biographers to chronicle the lives of the great jurists he had known.184 He selected Andrew Kaufman for Cardozo, Philip Kurland for Robert Jackson, Mark de Wolfe Howe for Holmes, and Alexander Bickel for himself, although

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