Is the Supreme Court’s Role Undemocratic?

Justice Felix Frankfurter, to great controversy, said yes.

Image of Gardner Cox’s unconventional 1960 Felix Frankfurter portrait
Gardner Cox’s unconventional 1960 Frankfurter portraitPortrait courtesy of the Harvard Law School Library, Historical & Special Collections

Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, by Brad Snyder (W.W. Norton & Company, $45)

Felix Frankfurter, LL.B. 1906, LL.D. ’56, was a titan as a Harvard Law School professor for 25 years in the early twentieth century. For the next 23 years, until he retired in 1962, he was often a cause of confusion as a Supreme Court justice. Previously known as a fervent campaigner for liberal causes, he regularly voted with conservatives in major cases based on his adherence to judicial restraint: he believed that federal courts should largely decline to review laws passed by the national, state, and local governments, out of deference to majority rule and the political process. When he died three years later, the New York Times obituary emphasized that his judicial philosophy was “a subject of the greatest controversy, bringing denunciations from some who had been his admirers and praise from former enemies.”

The Times described him as “the most vivacious, the most ebullient of men, bursting with joy and wit and sarcasm, eager to exchange gossip or debate eternal verities—but, at any rate, to talk.” In the Court’s stately halls, he whistled “Stars and Stripes Forever.” An acclaimed 1960 painting depicts Frankfurter at 78 as a mass of coiled energy. It captures what a friend of the justice had written about him a few years earlier: he had “an electric presence.” The artist Gardner Cox ’28 broke with a long tradition of portraying judges as sober and correct. The “stylized likeness of the justice’s face, framed by bold, impressionistic brushstrokes,” Legal Affairs magazine observed, “redefined the boundaries of legal portraiture.”

A reproduction of the painting on the book jacket of Brad Snyder’s new biography of Frankfurter softens the contrast of the original, lowering the justice’s voltage to a discreet hum. Paired with the book’s title of Democratic Justice, the facsimile freezes Frankfurter as an exalted eminence. The aim of the book, Snyder says directly, is to rehabilitate Frankfurter’s standing in the history of American law, especially of the Court. He presents the justice as a champion of twentieth-century American liberal democracy.

The book is important, about an amazing American, who lived an American immigrant success story after arriving from Austria at 11, speaking no English. He had an astonishingly weighty, sometimes rule-bending career. He was a world-class mentor, counselor, and placer of protégés in heady jobs. In the run-up to and during World War II, even as a busy justice, he advised President Franklin D. Roosevelt ’04, LL.D. ’29, who appointed him in 1939, about how the United States could help win the war, in Snyder’s words, “to save civilization from Hitler and the Nazi regime.” His influence lasted long after his death: he helped shape the mid- and late-twentieth-century liberal establishment, in law, government, and the legal academy, especially at Harvard Law School (HLS).

As the Times obit recounted, “His public career spanned the years from Theodore Roosevelt’s Presidency to John F. Kennedy’s” (T.R., A.B. 1880, LL.D., 1902; J.F.K. ’40, LL.D. ’56). By the time he went on the Court, “he had already won a place in history as an adviser to Presidents, the holder of a variety of Government jobs and a leader in the fight for dozens of social causes.” The biography is about all of that, in an impressive, engrossing, jam-packed narrative.

Snyder, a professor of law at Georgetown University, where he teaches constitutional law and history and sports law, writes with relish about the history and with intelligence about its context and consequence. (A generation ago, he was a student in a seminar I taught at Yale Law School where he got his J.D.) He also wrote a companion volume, the excellent The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (2017). The rowhouse was the gathering place in the early-twentieth century for Frankfurter and others who sought to harness law and public opinion for vital progressive causes like strengthening the rights of workers.

Frankfurter didn’t address something fundamental about the United States and our constitutional system. The nation had changed enormously.

Yet Democratic Justice falls short of being the “definitive” biography of Frankfurter, as its publisher claims, and of rehabilitating his reputation as a justice. In ardently taking his side, the book embraces his shortcomings on the bench. Frankfurter’s idealism about democracy made him myopic about its defects and the Court’s duty to address them; Snyder’s romanticism about Frankfurter made him myopic about the downsides of the justice’s philosophy. Frankfurter prided himself on being an empiricist—on helping shape the nation’s law to the needs of his time. In key cases, he failed to do that, which made him a disappointment and perhaps “the most divisive Justice ever,” according to Jill Lepore, Kemper professor of American history.

Frankfurter didn’t address something fundamental about the United States and our constitutional system. During the Great Depression and World War II, the nation changed enormously, shattered by economic calamity, then galvanized by the struggle of America and her allies against the Axis nations. The federal budget and the number of federal employees grew massively, the number of federal laws markedly: those changes altered the national and state governments, as well as the relationship between them. A debate between evolution and restraint arose and has recurred since. That dispute is now heated, though Frankfurter chose not to assess the constitutionality of laws in key cases despite the political effects and today the controversy is about review or avoidance of it as driven by politics. There is increasing support for making the Supreme Court less supreme and the political branches more assertive in fulfilling the Constitution’s democratic values. During Frankfurter’s tenure, over his opposition, the Court showed its critical role in that quest.

The Political Thicket

From his days as a brilliant Harvard Law student at the start of the twentieth century, Frankfurter was a passionate disciple of James Bradley Thayer, LL.B. 1856 and an HLS professor from 1874 to 1902. Thayer died the year before Frankfurter enrolled, but an 1893 article of Thayer’s about the scope of constitutional law struck Frankfurter as “the most important single essay” on the topic. Thayer advocated extreme restraint: very narrow judicial review. Focusing on the relationship between federal courts and Congress and the presidency, he held that the courts should declare federal laws unconstitutional only when mistakes in them were “very clear.” His goal, Snyder summarized, was to promote participation in democracy: “Thayer called on the American people and legislators to take their constitutional duties more seriously—people needed to do a better job of electing legislators, and legislators needed to a better job drafting laws.”

Frankfurter’s heroes as justices were Oliver Wendell Holmes, A.B. 1861, LL.B. ’66, LL.D. ’95, and Louis D. Brandeis, LL.B. 1877, among the most influential in history. Holmes was an illustrious practitioner of judicial restraint in reviewing all forms of law, including those of states. The epitome of judicial power run amok was the 1905 ruling in Lochner v. New York. The Court struck down a state law prohibiting bakers from working more than 10 hours a day or 60 hours a week. In a renowned dissent, Holmes emphasized that the majority had indefensibly acted as a super-legislature, reading its laissez-faire economic views into the Constitution. As the Times commented about Frankfurter when he was a justice, his belief in judicial restraint “was hardened in the crucible of the Nineteen Twenties and Thirties, when the private views of a slim majority on the Supreme Court overturned urgent economic measures of state and nation.”

With the nation greatly changing in mid-century and Frankfurter much less so, that conviction was a source of tension between him and other justices throughout his Court tenure. Snyder elaborates on Frankfurter’s deviations from restraint in cases dealing with racial discrimination, like his vote with a unanimous Court in Brown v. Board of Education: in 1954, momentously, it struck down racial segregation in public schools. But the southern backlash to Brown re-hardened Frankfurter’s commitment to reflexive restraint, as his last opinion displayed. It came in 1962 in Baker v. Carr, which Chief Justice Earl Warren called “the most important case of my tenure on the Court”—even more important than Brown.

The case dealt with the apportionment of districts in the Tennessee legislature and the right to fair representation in government—as fundamental as any element of democracy, as our current politics affirms. The Tennessee legislature hadn’t redrawn its districts since 1901. From the turn of the century until 1960, the state’s population had grown by 75 percent, from around two million people to around three and a half million. The number of eligible voters had grown by 200 percent, from about half a million to two million. The shift in population to cities and suburbs had left one rural district with 2,340 voters and packed a city district with 42,298, giving those rural voters 18 times as much power in the legislature. Almost two-thirds of the state legislatures were similarly mired in malapportionment.

In 1946, in an opinion for a divided Court, Frankfurter had intoned that reapportionment had “a peculiarly political nature” and judged that “Courts ought not to enter this political thicket.” As Anthony Lewis ’48, NF ’57, wrote in the Harvard Law Review, the opinion rested “basically on the judgment that it is wiser in a democracy to leave to the political branches a matter so intimately a part of the political process.” In the 1962 case, Frankfurter underscored again in a judicial opinion that the Court lacked power to address apportionment of legislative districts. But that one, in a 6-2 ruling, was a dissent. Justice William J. Brennan Jr., LL.B. ’31, LL.D. ’68, among the most influential justices of the modern era, wrote the majority opinion in Baker. The Court held that the Constitution gave federal courts power to consider the claim that, due to malapportionment, many Tennessee voters were being denied the law’s equal protection. It laid the groundwork for the standard of one-person, one-vote and for districts to have roughly the same number of voters.

In Democratic Justice, Snyder writes reproachfully about Brennan’s opinion, “It was a breathtaking assertion of judicial supremacy—that the Supreme Court was entitled to the last word on the Constitution,” as if Brennan and the Warren Court had invented a dangerous new principle. He doesn’t mention Brennan’s citation of Marbury v. Madison, the classic 1803 case, in which Chief Justice John Marshall famously wrote, “It is emphatically the province and duty of the Judicial Department to say what the law is.”

In the early-nineteenth century, Marshall was the Court’s pioneer in the practice of judicial review, regarding it as essential to protect life, liberty, and property of citizens against unconstitutional actions by other branches of government. Brennan also relied on a celebrated 1938 opinion by Justice (later Chief Justice) Harlan Fiske Stone. He sketched what Lewis called “a modern philosophy of judicial review,” including that “courts should be ‘more exacting’ in their view of restrictions on political liberties.”

About the Frankfurter dissent, Snyder comments that he “was writing for the American people with a prophetic warning about the future of their democracy.” But Brennan and the justices who joined his majority opinion were just as concerned about democracy. And their ruling had a strikingly beneficial effect: within two years of the Baker decision, 26 states reapportioned their legislatures more fairly; within four years, almost all—46—did.

Reviving Democracy

Frankfurter’s idea of democracy favored federalism, the dispersal of power among national, state, and local governments. Judicial restraint was a means of deferring to those disparate centers of democracy. He recognized the importance of individual rights, as Snyder details, but federalism and judicial restraint provided him overriding reasons not to protect them. As Lewis explained, Frankfurter was convinced that “in a democracy excessive reliance on the courts weakens the responsibility of the legislature and of the voters.”

By contrast, as Robert Post ’69, Ph.D. ’80, professor at and former dean of Yale Law School, explained, Brennan’s idea of democracy favored individualism because democracy gives the people the power to choose their government. For people to exercise that power, the nation, including the Supreme Court, must protect their individual rights: Brennan wrote that “the supreme value of a democracy is the presumed worth of each individual.”

That was especially so in the decades following World War II, Brennan wrote, when “the rise of mass education and mass media of communication” created a national culture that undercut the parochial premises of Frankfurter’s federalism and his fighting-the-last-war way of thinking about the Court and the Constitution. Brennan believed that “the judicial function” was “the soul of a government of laws,” as the protector of individuals in conflict with the state.

Lewis wrote, “Legislative fairness in districting is inhibited by factors built into our political structure.” He went on, “Voting for a fair apportionment bill would in many cases mean voting oneself out of office. That is too much to ask of most politicians.” The Court needed to correct that problem for representative democracy to flourish.

Archibald Cox ’34, LL.B. ’37, LL.D. ’75, was solicitor general when the Court heard the Baker case. He argued that it was both constitutional and necessary for the justices to take on reapportionment. In lectures at Oxford in 1975, he addressed Frankfurter’s position that, by taking on the issue, the justices would weaken the American people’s capacity to engage productively in politics.

Looking back at a decade of evidence showing the impact of the Baker and related rulings, Cox concluded that those cases had done the opposite of what Frankfurter predicted: they “revived majoritarian democracy.” The Court had to act, he declared, because other branches of government had not.  

Lincoln Caplan ’72, J.D. ’76, a contributing editor, is a senior research scholar and a visiting lecturer in law at Yale Law School and the author of six books about the law. His most recent Harvard Magazine article (January-February 2022) was his feature on Tomiko Brown-Nagin.


Read more articles by Lincoln Caplan

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