by Peter Irons
Like a drum major, Black led a parade of New Dealers to the Court. Next in line was Stanley Reed, replacing George Sutherland, the Four Horsemen’s advocate general, who retired in January 1938 after being wounded by the Court’s reversal of his Adkins decision. Born in 1884 in Kentucky, Reed held undergraduate degrees from Kentucky Wesleyan College and Yale and studied law at the Sorbonne in Paris. He later attended Columbia and the University of Virginia and completed his legal education by “reading law” with a Kentucky lawyer. Reed built a thriving corporate practice and served a term in the state legislature as a Wilsonian progressive. But he was more attracted to public service than to politics and joined the Hoover administration in 1929 as counsel to the Federal Farm Board. Reed moved to the Reconstruction Finance Corporation in 1932 and remained in that post after Franklin Roosevelt took office.
The new president heard good things about the hardworking lawyer and named Reed as solicitor general in 1935. Hard as he tried, Reed could not rescue the Schechter and Butler cases from Supreme Court rejection. Some lawyers faulted his performance in oral argument as too cautious and plodding, but Reed kept working and finally prevailed in the Jones & Laughlin case. Relatively young at fifty-three and a loyal New Dealer, he neatly fit Roosevelt’s goal of adding “younger” blood to a “liberal-minded” Court. But as a justice, Reed moved slowly to the right and hardly ever galloped with his spirited colleagues down new constitutional paths. Much like a draft horse, Reed found himself tugged one way and then another by the forces of change and continuity.
The death of Benjamin Cardozo in July 1938 offered Roosevelt his third chance to reshape the Court. Six months passed before the president asked the Senate to confirm his successor. Part of the delay stemmed from indecision; Justice Sutherland’s retirement had left the Court, without, a westerner, and FDR felt pressure to look beyond the Mississippi. He asked his old friend and trusted adviser, Felix Frankfurter, to prepare dossiers on prospective candidates. The peppery Harvard Law School professor had already salted New Deal agencies with dozens of former students, who became known as “Felix’s Happy Hot Dogs.” Born in Vienna in 1882, Frankfurter emigrated with his parents to New York City’s Lower East Side at the age of twelve. Entering public school as a German-speaking foreigner, he emerged as a fully assimilated American, able to recite the Gettysburg Address in perfect English. Jewish in heritage but secular in outlook, insecure in personal relations but cocksure of his opinions, Frankfurter was an “outsider” who curried favor with “insiders” like Franklin Roosevelt.
After reviewing Frankfurter’s files on prospective candidates for Cardozo’s seat, Roosevelt concluded that “there isn’t anybody in the West . . . of sufficient stature.” Solicitor General Robert Jackson urged the President to choose someone “with scholarship and with sufficient assurance to face Chief Justice Hughes in conference and hold his own in discussion.” Frankfurter fit Jackson’s model to a T. The author of The Business of the Supreme Court had no rivals in knowledge of its history and decisions. And he had no rivals in assurance that struck many as arrogance. Roosevelt took Jackson’s advice and sent Frankfurter’s nomination to the Senate, which confirmed him without dissent. This was probably the last time he received the unanimous approval of any group. Once he joined the Court, Frankfurter treated his colleagues like first-year law students; his endless lectures annoyed even those who agreed with him. “All Frankfurter does is talk, talk, talk,” one fellow justice complained. “He drives you crazy.”
Frankfurter certainly drove Hugo Black crazy. Their judicial disputes flared into personal animosity. “I thought Felix was going to hit me today, he got so mad,” Black told his son after one conference battle. The former Harvard professor and the former police court judge differed profoundly in constitutional philosophy. Frankfurter preached the gospel of judicial “self-restraint” and seldom voted to invalidate a legislative decision. His few exceptions to this deferential rule included racial discrimination and bias against aliens. But political and religious dissenters found little sympathy in Frankfurter. Justice Black, on the other hand, read the Bill of Rights literally and had no sympathy for lawmakers who muzzled dissenters of any kind. Frankfurter construed the Due Process Clause broadly and the First Amendment narrowly, while Black took the opposite view. However revealing of their combative natures, the conflict of these two New Dealers also shows that political agreement does not always produce judicial accord. Placed on the Court by a president whose vision they shared, Frankfurter and Black read the Constitution through very different lenses.
Two weeks after Frankfurter took his seat on the Court’s bench, Louis Brandeis stepped down at the age of eighty-two. His retirement in February 1939 gave Roosevelt a fourth nomination; having found no lawyers of “sufficient stature” in the West, he picked a former westerner who still rode horses after twenty years in New York, New Haven, and Washington. Born in Minnesota in 1898 and raised in Washington state, William O. Douglas went east as a young man to Columbia Law School, where he taught after graduating at the top of his class. He moved to Yale’s law faculty in 1928, joining the “legal realists” who looked behind judicial doctrine to explore the social, political, and economic forces that shaped the law. Douglas staked a claim in the growing field of public and corporate finance, and Roosevelt picked the young professor to head the Securities and Exchange Commission. Word got around that Douglas was a card shark, and he soon became one of the president’s “poker buddies” and a New Deal insider. Ironically, the only four senators who voted against his confirmation opposed Douglas as a “reactionary tool of Wall Street.”
William Douglas joined the Court at forty, the youngest justice since Joseph Story. He stayed for thirty-six years, the longest tenure of any justice. Douglas came to the bench without a well-defined judicial philosophy, and left as he came. Much like the woodsman he was, Douglas avoided the beaten path and blazed his own trail. Raised in poverty and struck by polio as a child, he developed a visceral sympathy for society’s “outcasts,” including Communists and criminals. He shared Frankfurter’s expansive view of due process and Black’s “absolutist” devotion to the Bill of Rights. Douglas was often criticized for failing to articulate a coherent judicial philosophy. Certainly he never followed the narrow—but divergent—paths from which Frankfurter and Black rarely strayed. But there was an animating principle behind the twelve hundred opinions Douglas wrote over more than three decades. “Our starting point has always been the individual, not the state,” he wrote in 1958. However far he wandered from the beaten path, Douglas never lost sight of his judicial lodestar.
No president before or since Franklin Roosevelt appointed three justices with the longevity and legacies of Hugo Black, Felix Frankfurter, and William Douglas. They served for ninety three years between them and wrote close to three thousand opinions, almost one of every ten in the Court’s history. And their opinions had great impact on American law and society: Black’s “absolutist” defense of First Amendment rights, Frankfurter’s “compendious” vision of due process, and the “privacy” that Douglas sought for himself and protected for all. But these men of very different backgrounds—an urban immigrant Jew, a rural southern Baptist, and a wide-open-spaces agnostic—ascribed very different meanings to the Constitution’s narrow words and broad phrases. We see reflected in their differing judicial approaches the lights and shadows of personality and principles.
Roosevelt added one more justice before his second term ended. Pierce Butler’s death in November 1939 left James McReynolds as the lone horseman on the Court’s right flank. In naming Frank Murphy of Michigan to Butler’s seat, the president replaced one Irish Catholic midwesterner with another. But he also replaced one of the Court’s most reactionary justices with perhaps the most liberal in its history. Born in 1890, Murphy absorbed his father’s radical politics and his mother’s devout Catholicism. The British hanged his Irish greatgrandfather for insurrection and jailed his father as
a youth for Fenian sympathies. His mother’s influence, Murphy later wrote, would not allow him to “remain silent in the face of wrong.”
Frank Murphy viewed law and politics as inseparable, and he pursued an ambitious political career, with the White House as the ultimate goal. First elected as a Detroit criminal judge in 1923, he treated black defendants with respect and fairness, and the black vote helped him win election as Detroit’s mayor in 1930. Murphy helped swing Michigan to Roosevelt in 1932 and was named governor of the Philippines in reward. He became popular by supporting the independence movement and bringing money from Washington for jobs and welfare. The political bug lured Murphy back to Michigan in 1936; his term as governor began with the crisis of sit-down strikes by autoworkers. He called out National Guard troops to maintain peace while laboring behind the scene to head off industrial warfare. The irony of his success was that both sides accused him of favoring the other, and Murphy lost his reelection bid in 1938.
President Roosevelt paid his political debts by appointing Murphy as attorney general in 1939. His major achievement in this post was creation of the Civil Liberties Unit, whose lawyers dusted off unused federal laws to prosecute local officials who abused—and even murdered—blacks and union organizers. Murphy’s crusading zeal made enemies—including the FBI’s imperious director, J. Edgar Hoover—and Roosevelt appeased Hoover and unhappy southern Democrats by shifting Murphy to the Supreme Court. With the 1940 election looming, Roosevelt also removed a potential contender for the presidential nomination. During nine years on the Court, Murphy never abandoned the sympathy he absorbed from his parents for those who “have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs,” as he wrote in one opinion. Murphy gave less deference to lawmakers than Frankfurter, more sympathy to underdogs than Douglas, and greater latitude to the Bill of Rights than Black. Refusing to bind himself to the Constitution’s text. Murphy wrote in 1947 that “fundamental” rights deserved judicial protection “despite the absence of specific provisions in the Bill of Rights.” He summed up his constitutional philosophy in one sentence: “Only by zealously guarding the rights of the most humble, the most unorthodox and the most despised among us can freedom flourish and endure in our land.” No justice ever rivaled Murphy in devotion to the rights of the most despised; even Japanese war criminals, Nazi saboteurs, and Soviet spies received fair hearings from the keeper of the Court’s conscience.
SECTION V
“Beyond the Reach of Majorities”
26
“We Live by Symbols”
The New Deal justices that Franklin Roosevelt added to the Supreme Court continued the “Constitutional Revolution” their predecessors had begun in 1937 by shifting their agenda from property rights to human rights. They were led in this judicial crusade by Harlan Fiske Stone, who had served on the Court since 1925 and was a nominal Republican. But his Yankee conscience was affronted by intolerance and bigotry, and Stone read the newspapers in 1937 and 1938 with growing concern. Stone expressed his concerns in an unusual way, by adding an important footnote to an opinion in an otherwise unimportant case. Almost unnoticed when it appeared in 1938, Footnote Four in United States v. Carolene Products soon became the deadliest weapon in the judicial war against those who deny minorities their rights.
The story of Footnote Four deserves far more space than it occupies in Stone’s opinion. It really began in 1933 with the rise to power of two men, Franklin Roosevelt and Adolf Hitler. One courted the votes of blacks and Jews; the other vowed to maintain “Aryan” racial purity and to purge his country of Jewish influence. Despite their political differences, both men headed parties with powerful factions that employed violence against the minorities they despised. Roosevelt could not control the white-hooded Klansmen, many of them loyal Democrats, who waved the Confederate flag, while Hitler totally controlled the brown-shirted thugs who marched under the Nazi swastika in Germany. But the Great Depression, which swept both men into office, also fueled racial and religious violence in both countries. During the 1930s, American blacks and German Jews became victims of lawless mobs. More than a hundred blacks, most accused of raping white women, were lynched in the South, while Nazi mobs beat hundreds of Jews and murdered dozens suspected of Communist sympathies.
Justice Stone viewed these atrocities with disgust and growing alarm. Early in 1938, he decided to offer the Supreme Court as a refuge for persecuted minorities. The West Coast Hotel and Jones & Laughlin decisions had effectively cleared the Court’s docket of economic regulation cases, but several remained for argument and decision. Searching the list, Stone picked an unlikely podium for his announcement of a new judicial agenda. The case of United States v. Carolene Products Company involved the Filled Milk Act of 1923, in which Congress prohibited the shipment in interstate commerce of “skimmed milk compounded with any fat or oil other than milk fat.” The Carolene Products company made something called Milnut, a compound of condensed milk and coconut oil. During the Depression, many families could not afford whole milk for their children and turned to products like Milnut, cheaper than whole milk but lacking its nutritional value. After the company’s indictment for selling “an adulterated article of food, injurious to the public health,” its lawyers challenged the law as violating both the Commerce and Due Process Clauses. They won the first round in federal court and the government appealed to the Supreme Court.
The Carolene Products case was argued on April 6, 1938. Justice Stone read in that morning’s New York Times that under Nazi rule in Austria, “2,000 Jewish lawyers in Vienna will be excluded from the bar” and that “Jewish physicians and surgeons have been removed from all hospitals.” That week’s Time magazine reported a speech by Hitler’s propaganda minister, Joseph Goebbels: “Our racial theory is the sole basis for the correct solution of the Jewish problem.” Stone had earlier read in the New York Times that Roosevelt Townes, accused of murder in Duck Hill, Mississippi, was tied to a tree, his “eyes were gouged out with an ice pick,” and he was “tortured slowly to death with flames from a blow-torch.” The week before the Carolene Products argument, Stone read about the death of the federal antilynching law at the hands of southern Democrats. Mississippi senator Theodore Bilbo, whose racist diatribes rivaled those of Goebbels, railed against “the Ethiopian who has inspired this proposed legislation” and “the lust and lasciviousness of the rape fiend in his diabolical effort to despoil the womanhood of the Caucasian race.”
Justice Stone expressed his reaction to these reports in a letter to Irving Lehman, a New York judge: “I have been deeply concerned about the increasing racial and religious intolerance which seems to bedevil the world, and which I greatly fear may be augmented in this country.” With the aid of his Jewish law clerk, Louis Lusky, Stone drafted a footnote for his Carolene Products opinion, which reversed the district judge and upheld the Filled Milk Act as “an appropriate means of preventing injury to the public.” Stone emphasized that the Court would presume the constitutionality of regulatory laws “affecting ordinary commercial transactions” if they rested upon “some rational basis within the knowledge and experience of the legislators.” He did not invent the “rational basis” test, but applied it to Carolene Products like a schoolmaster.
Stone could have ended the lesson on that note, but he continued his lecture in Footnote Four. “There may be narrower scope for operation of the presumption of constitutionality,” he wrote, “when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” Boiled down, this lengthy sentence expressed the doctrine that the Fourteenth Amendment “incorporated” at least some provisions of the Bill of Rights and applied them to the states. Stone warned that “legislation which restricts those political processes which can ordinarily be expected
to bring about repeal of undesirable legislation” would in the future “be subjected to more exacting judicial scrutiny” than regulatory laws such as the Filled Milk Act. Stone devised in this sentence what soon became known as the “strict scrutiny” test for laws that were challenged as violations of the Bill of Rights. Under the “rational basis” test, regulatory laws enjoyed a presumption of constitutionality; Stone’s new test reversed that presumption for laws that restricted political rights.
Stone continued with another warning to lawmakers who might be swayed by “popular passions” against religious, national, or racial minorities. Laws directed at members of these groups would also lose their presumption of constitutionality and trigger “more searching judicial inquiry” of the motives behind their passage. Stone provided examples by citing prior cases that dealt with Catholics, people of German or Japanese origin, and blacks. He added that laws reflecting “prejudice against discrete and insular minorities” of other kinds would also be subjected to the “strict scrutiny” test. Stone left this category open, but his wording suggested that members of groups “set apart” from the majority by some characteristic other than religion, rationality, or race would be equally protected from official prejudice.
