The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices

by Bruce Allen Murphy

Explores the relationship between Supreme Court Justices Louis Brandeis and Felix Frankfurter and their joint efforts to influence government policy and encourage legal and political reform

Genres: History

473 pages, Hardcover

First published January 1, 1982

About the author

Bruce Allen Murphy graduated summa cum laude from the University of Massachusetts-Amherst in 1973 and received his Ph.D. in Government and Foreign Affairs from the University of Virginia in 1978. He taught Political Science and American History and Politics at Pennsylvania State University, and has been the Fred Morgan Kirby Professor of Civil Rights at Lafayette College in Easton, Pennsylvania since 1998.

Reviews

[Phoenix · Rating 1 out of 5]

Murphy's Law and Balaam's Brief


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Murphy's Law and Balaam's Brief, March 1, 2016





This review is from: The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (Hardcover)
Or the scandal that wasn't there.

A perplexing book in that in the concluding chapter the author demolishes his own objections. For much of the book Murphy tries to ascribe a sense of scandal to the relationship between the two justices and label the nature of their activities as ethically improper, yet by the end he admits that neither exceeded the limits afforded other justices contemporary, following or previous. Further he admits that what both men accomplished neither conflicted with the business of the court nor proved to be to the detriment of the nation. Indeed when we examine each of the activities as Murphy describes them we find that they uphold the finest of American traditions and like the story of Balaam, he winds up praising them: “both Brandeis and Frankfurter should properly be classified among those justices who were best able to separate their political views from their judicial decisions.” (pp342)

Brandeis treated Wilson with the same respect he would have given an important client, even from the start of their relationship years before he was appointed to the Supreme Court. Wilson in return regarded Brandeis as an incredibly useful ally and sagacious adviser whom he could make use of almost everywhere. Frankfurter saw Roosevelt as a close friend, and aside from Frankfurter's Anglophilia, Frankfurter was in all respects a staunch American patriot “always singing or whistling to himself – exhibiting his unabashed patriotism, it was often the same tune 'Stars and Strips Forever” (pp33) and “in the form of hard work performed tirelessly and loyally for his two great loves – FDR and the United States of America” (pp251) Nor was this unique – Murphy documents that Roosevelt had a close advisory relationship with the other supreme court justices as well.

So what did Brandeis and Frankfurter actually do that Murphy objects to, and was there actually anything wrong or detrimental about it? Murphy has several complaints. One is that large numbers of appointees for government offices came as suggestions by Frankfurter, many when he was on leave to the war office from his position as a professor of Law at Harvard and paid to do just that. A large number had been Frankfurter's law students. The only problem with that being a problem is that we call this "networking" and Murphy also reports that others, including supreme court justices, were doing the same thing. Murphy records that Thomas Corcoran solicited recommendations from 4 of the Justices for the position of Solicitor General, yet after Frankfurter refused to sign on the two men never spoke again. (pp192) Another was that both Frankfurter and Brandeis took activist roles in the legislation designed to advance American preparedness for war, Frankfurter noting how France and Britain had been caught short by the Nazi attacks. Both advocated and proposed policies, including opposition to the power of big business and big government, the use of taxation to break up large holding companies, unemployment insurance, and “a massive public works on infrastructure financed by financed by a progressive tax system and reform of the nations financial institutions.” (pp123) Brandeis's reforms of 1935 can be credited with saving the New Deal, It was Frankfurter who promoted John Maynard Keynes, whom he had met at the 1919 Paris Peace Conference to Roosevelt. Both men had the ear of their respective sponsoring Presidents, Wilson and Roosevelt, but only to the extent that they were selected for having similar views in the first place. In 1941 Frankfurter recommended William H. Hastie, Dean of Howard Law School, and a former black student of his as an aid to Secretary of War Stimson to investigate and deal with charges of racism in the military. Both justices were drafted to work on and plan presidential campaigns. Even more so than Wilson, Roosevelt treated members of the Supreme court, many appointed because of their New Deal sympathies, as his personal advisors.

The other extrajudicial activity is both men's interest in Zionism, but this was a well known in both cases, there was nothing secret about either man's position on the subject and there was no conflict of interest or impact on any of their other political activities or the court. WRT Brandeis Murphy remarks on Brandeis' declining involvement in Zionism (pp184) and mentions that Brandeis, troubled by Nazi policies against German Jews had tried to convince Roosevelt to liberalize immigration policies that would allow them into the US (pp184), but without success. Additionally, Murphy reports that after Brandeis' death in 1941 Frankfurter was,much less active in this regard and only involved himself twice, in truth once, on behalf of Zionism. The first example, which Murphy gets wrong, is Frankfurter's advocacy after the Vichy defeat by Allied forces in Algeria for the revocation of anti-Jewish legislation which had carried on for several months after the successful Allied invasion. ,This was solely about Jewish rights in Algeria and not about Zionism at all. The second and only true example was a phone call made to the Ambassador of the Philippines asking for support of Partition, but this may simply be calling in a favour for Frankfurter's prior support of Philippine independence. The fact is that after Roosevelt's death, Frankfurter was very much an outsider to both the Truman and the Eisenhower Administrations and his influence on the Administration minimal.

Perhaps the only useful chapter is the rapid historical survey in the Appendix. Here Murphy looks at a variety of formative American documents including Hamilton's Federalist Papers and is disappointed to find that there are no political restrictions on extrajudicial activity by members of the court . Chief Justice Story had the same kind of relationship with famed Congressman Daniel Webster as Brandeis had with Frankfurter who was a private citizen. Justice Catron was both Polk's brother-in-law and adviser on administrative organization and States issues. Chief Justice Chase drafted elements of the 14th Amendment (1868) and campaigned with Justice Noah Swayne for the ratification of the 15th Amendment (1870) which secured the rights of people of colour. Justice Moody, a friend of Teddy Roosevelt, continued to advise the President on a variety of policy issues. Justice Hughes continued to serve as Governor of New York for months after being appointed to the court. Let us not forget, Robert Kennedy served as Attorney General in the administration of his brother Jack. Justices Rehnquist and Warren campaigned for the appointment of Sandra Day O'Connor, the first woman to serve on the Supreme Court.

Murphy's perspective is that members of the Supreme Court should abstain from any and all external involvement with any extrajudicial aspect of politics or government including legislative advice, recommendations of employment, drafting legislation or political campaigning. It's an arguable point of principle, but as Murphy himself shows, it's never been American practice. Murphy writes: “The Founders wished for an independent judiciary – but did not forbid judges from participating in any extrajudicial political activities – indeed favoured it and it was common practice for justices to run for office and campaign for others and to publicly advise members of other branches.” (pp345).

[Edward]

Historian Otto Scott commented on this book: "Justice Brandeis has been given the status of one of our demagogues and he had admirers for years, flattering articles for years and so forth. He had professor Frankfurter who was at the Harvard Law School on his private and personal payroll for many years and then when Frankfurter, after Brandeis died, Frankfurter was nominated and chosen for the Supreme Court, Frankfurter continued the political activities of his mentor Brandeis.

Now these two jurists, if you could call them jurists, very famous, considered shining stars of intellect and so forth violated every tenet of judicial ethics while they sat on the Supreme Court of the United States. They lobbied behind the scenes for legislation that they were interested in. They connived with various presidents. They spent money to convince other people in the media and in the professoriate and in the judiciary and in the legal circles. They were actual governors. They acted as though they had been elected to govern the United States and its people. "