Complex Justice

By Evan Thomas

THE ENIGMA OF FELIX

FRANKFURTER by H.N.Hirsch

Basic Books; 253 pages; $14.95

Felix Frankfurter was a Jewish immigrant who became an Anglophile snob. He was a shameless flatterer who fired a secretary for flattering him. He could be sparkling, open and warm. He could also be strident, bitter and neurotic. Fifteen years after his death, Frankfurter remains one of the most influential jurists of this century. Yet while serving on the U.S. Supreme Court, he increasingly failed to sway his colleagues. He was an early supporter of the American Civil Liberties Union and a defender of Sacco and Vanzetti. Yet, as a Justice, he spent 24 years vainly trying to halt the high court's historic expansion of individual rights.

The Enigma of Felix Frankfurter attempts a full-scale analysis of this outsize paradox of a man. Author H.N. Hirsch, a Harvard government professor, is to be congratulated on his audacity as well as his scholarship. Psychobiography is a risky undertaking; putting a Supreme Court Justice on the couch is downright breathtaking.

Frankfurter fancied himself an expert at "personalia," his word for charming, persuading and manipulating others. As a Harvard law professor in the '30s, he inaugurated the Cambridge-to-Washington shuttle, becoming one of the first of a long line of academics to serve as White House sages. While he personally stroked F.D.R.'s liberalism, he dispatched his best and brightest students, his "happy hot dogs," like Tommy ("the Cork") Corcoran, Dean Acheson and Alger Hiss, to mold the New Deal bureaucracy.

When F.D.R. rewarded him with a seat on the Supreme Court in 1939, Frankfurter continued to play the role of public pedant. He treated the high court's conference room like his old Harvard Law School classroom, and his colleagues as mere pupils. He nattered and chided them, picked favorites and virtually graded their judicial opinions.

Strong-minded Justices like Hugo Black and William O. Douglas were not inclined to become Frankfurter's happy hot dogs. In Frankfurter's first year on the court, Black and Douglas went along with a Frankfurter opinion that allowed public schools to require a morning "flag salute," even if salutations violated the religious principles of some schoolchildren. But four years later, they reversed their decision. Frankfurter was furious. "One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution," he began his emotional dissent. Even so, Frankfurter scolded, a Justice's "duty" is to submerge his personal views while passing judgment. But fellow Justices perceived an other obligation: to protect certain individual rights, like free speech and due process, from the dominance of the majority. Frankfurter, once the great civil libertarian, resisted the court's activism for the rest of his career.

Why? Hirsch looks beyond Frankfurter's jurisprudence to his shaky psyche. An immigrant Jew in a Brahmin's world, the Justice never felt truly secure, even in success. To compensate for this, he built an "idealized self-image" that could not tolerate sustained opposition. "Betrayed" by Black and Douglas, piqued even more by their ability to win over others on the court to their views, Frankfurter became rigid and obsessed. By night he wrote invectives against his judicial enemies (Black is "part fanatic, part demagogue," Douglas "shamelessly immoral"); by day he sounded an increasingly shrill note on the virtues of "judicial self-restraint" as exemplified by Felix Frankfurter. In his self-righteous rage he lost the thread of history.

Frankfurter's last significant vote was against the court's landmark one-man, one-vote decision in 1962 (on the grounds that social change should not come through the courts). It was a sad valedictory, but by then Frankfurter was old and ill, preoccupied with inducing biographical scholars to write his version of the past. Hirsch has written another version, less flattering but far more acute, about the workings of the lawgivers, and, more significantly, the law itself.

--By Evan Thomas

This file is automatically generated by a robot program, so viewer discretion is required.