A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

Felix Frankfurter at his nomination hearing in 1939

A Prisoner of His Own Restraint | Jed S. Rakoff | The New York Review of Books

by Jed S. Rakoff (U.S. District Judge, SDNY]

Felix Frankfurter was renowned as a liberal lawyer and advocate. Why did he turn out to be such a conservative Supreme Court justice?

Over the course of American history, the US Supreme Court has usually been the most conservative of the three branches of government, often to a reactionary extreme. Indeed, an objective observer might well conclude that it has frequently encouraged our nation’s darkest tendencies.

In the decades immediately preceding the Civil War, the Court not only rigidly enforced slave laws but also declared that even free African Americans were not US citizens (Dred Scott v. Sandford, 1857). It reduced Native Americans from sovereign nations to wards of the state (Cherokee Nation v. Georgia, 1831), which was free to remove them from their treaty-prescribed lands and send them on the deadly Trail of Tears to bleak reservations hundreds of miles west. In the decades following the Civil War, it undermined Reconstruction (the Civil Rights Cases of 1883), legitimized Jim Crow (Plessy v. Ferguson, 1896), denied women the right to vote (Minor v. Happersett, 1875), and treated union activities as illegal conspiracies (Loewe v. Lawlor, 1908).

In the first decades of the twentieth century, the Court went to great lengths to hold progressive legislation unconstitutional (for example, in Lochner v. New York, 1905), especially laws that sought to protect women and children from exploitation (Adkins v. Children’s Hospital, 1923). And when, in response to pressure from (and ultimately appointments by) President Franklin Roosevelt, the Court somewhat relaxed its disapproval of federal social welfare legislation, it continued in many cases to show a callous disregard for the rights of individuals and minorities, as demonstrated by such decisions as its cavalier approval of the internment of loyal American citizens of Japanese descent during World War II (Korematsu v. United States, 1944).

There was a brief period in the 1950s and 1960s when the Court sought to recognize its past mistakes and move forward, and while the advent of the Warren Court in 1953 was something of a fluke (no one remotely expected that Earl Warren and William Brennan—both nominated by a Republican president, Dwight Eisenhower—would develop into the great champions of liberty they became), in its relatively short duration it demonstrated how the Court could, if it wished, be a leader in the enhancement of civil rights and the protection of minorities. But beginning in the 1970s, the Court gradually resumed its traditional conservative stance, for example by limiting the Warren Court’s efforts to combat police misconduct (City of Los Angeles v. Lyons, 1983). And now, thanks to President Donald Trump’s appointments, the current majority has reduced some of the Court’s most progressive past decisions to ashes.

What accounts for the Court’s being so often on the wrong side of progress and history? Democratic Justice, an impressive new biography of Felix Frankfurter by Brad Snyder, a professor at the Georgetown University Law Center, gives us a chance to consider that question. Though as a lawyer and academic he was a great liberal, as a justice Frankfurter increasingly facilitated the Court’s conservative tendencies. Snyder, who greatly admires him, contends that his principles, formed early in his adult life, remained consistent throughout his career. But a more detached observer may well view it as a foolish consistency.