A Controversial Judge Leery of Court Power Grabs Is Born

Felix Frankfurter rose from playing craps in the street to the top of the judicial system and helped found the ACLU – but could never overcome his tendency to take opposition personally.

David B. Green
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This picture was taken while Felix Frankfurter was in office as an Associate Justice of the Supreme Court of the United States, taken on or around July 12, 1918
Felix Frankfurter, Associate Justice of the Supreme Court: Portrait photo taken around July 12, 1918.Credit: Webmol, Wikimedia Commons
David B. Green

November 15, 1882, is the birthdate of Felix Frankfurter, one of the most colorful justices in the history of the U.S. Supreme Court -- and one of the most controversial. While there is consensus that Frankfurter was a jurist of unusual brilliance, with a personal charisma that made him anything but forgettable, his lengthy tenure on the court was marked by a stubborn, uncompromising insistence on the principle of judicial restraint. Additionally, on the personal level, Frankfurter harbored a need to dominate his environment that may have worked well for him when he was a law professor, but that didn’t sit well with fellow justices on the most vaunted court in the United States.

Felix Frankfurter was born in Vienna, capital of the Austro-Hungarian empire. His father, Leopold Frankfurter, was descended from a long line of rabbis, and himself attended rabbinical seminary in Vienna, but left in his last year when he decided to marry Emma Winter. Leopold then became a merchant. Felix was the third of the couple’s six children.

In 1894, Leopold brought the family to New York, settling on the Lower East Side. Leopold became a linens salesman, and did well enough that he was able to move the family uptown.

Playing craps in the street

Felix learned English with great speed, and excelled both at school and in the street, playing craps. Just three years after arriving in the U.S., he entered a five-year program at City College, from which he emerged – ranking third in a class of 775 – with both a high school diploma and a college degree.

Next came Harvard Law School, where Frankfurter was first in his class in each of his three years. When he graduated, in 1906, he found himself a job at a Wall Street firm that had never hired a Jew before. However, he left during his first year when he was appointed assistant to Henry Stimson, the U.S. attorney for New York’s Southern District.

When Stimson became secretary of war, in 1911, he brought Frankfurter with him to Washington, making him an official in the office that oversaw America’s overseas territories.

Around the same time, however, New York philanthropist Jacob Schiff endowed a chair at Harvard Law School for Frankfurter, and over the next quarter century, he moved back and forth between Cambridge and D.C., academia and government. Under his tutelage, many of his students also went off to government service.

A Roosevelt man

It was President Franklin D. Roosevelt who appointed Frankfurter to the Supreme Court, in 1939. He remained until 1962.

Frankfurter’s politics may seem counter-intuitive today: In 1920, he served as co-founder of the American Civil Liberties Union, and he was a champion of labor, a supporter of America’s entry into the League of Nations, and later, of FDR’s New Deal.

President Franklin D. Roosevelt, who appointed Felix Frankfurter to the Supreme Court in 1939Credit: AP

But Frankfurter was convinced that change had to be initiated by the legislative and executive branches, not by court decisions, and that powers not explicitly delegated to the federal government were implicitly reserved for the states.

Frankfurter’s commitment to judicial restraint took priority over his liberalism, and sometimes conflicted with it, and he seemed to assume that his considerable rhetorical skills would always suffice to win over his colleagues on the bench. When that didn’t happen, he could become vindictive, and the court was full of justices who had disappointed Frankfurter, and had him turned against them.

As an identifying, if not observant, Jew, and a Zionist, in 1943, at FDR's request, Frankfurter met with Polish resistance member Jan Karski, who had recently arrived from occupied Poland and was attempting to get word out to the world about the ongoing genocide in Nazi Europe. After listening to Karski for a half-hour, Frankfurter confessed that he was unable to believe what the Pole was describing, and he got up and left the room.

Frankfurter suffered a debilitating stroke in 1962, which is when he retired. He died three years later, on February 22, 1965, of congestive heart failure. He was survived by his wife of 46 years, the former Marian Denman, the daughter of a Congregational minister. Marian suffered from mental illness through much of their marriage, and the couple had no children.