CAUSES AND CONSEQUENCES OF DIVERSE
NO ONE DOUBTS FELIX FRANKFURTER’S liberal pedigree. Before serving on the Court, Frankfurter helped found the American Civil Liberties Union (ACLU), wrote a book criticizing death sentences for Nicola Sacco and Bartolomeo Vanzetti, and advised Franklin Roosevelt. However, on the Court, Frankfurter was widely viewed as a conservative jurist. He took conservative positions on anti-communist cases (Friedman 2009, 255) and labor cases (Spaeth and Altfeld 1986) and frequently butted heads with liberal justices (Urofsky 1991, 63; Ely 1980, 3). Statistical studies place him on the conservative end of the bench (Bailey 2007; Martin and Quinn 2002).
One source of Frankfurter’s judicial conservatism was that he believed “unless a statute violates a clear constitutional prohibition, courts should not void a law because judges disagree with its premises” (Urofsky 199l, x). This led him to repeatedly vote to uphold legislation and government actions that he opposed on policy grounds. Frankfurter testified against the death penalty before the Royal Commission on Capital Punishment in London in 1950, but he did not systematically rule against it as a justice (Urofsky 1991, 215). He opposed anti-subversion acts such as the Smith Act of 1940, writing to Justice Brennan that “there isn’t a man on the Court who personally disapproves more than I do of the un-American Committees, of all the Smith prosecutions, of the Attorney General’s list etc etc,” but he generally did not vote against such government activities (Friedman 2009, 255; Urofsky 1991, 115).1
Frankfurter’s reluctance to strike laws or government actions makes sense in light of his personal history. In the early twentieth century when Frankfurter entered public life, the Supreme Court struck progressive legislation with relentless regularity. In Pollack v. Farmers Loan and Trust (1895) it struck the income tax. In Lochner v. New York (1905) it struck limits on the work week. In Bailey v. Drexel Furniture (1922) it struck child labor laws. In Adkins v. Children’s Hospital (1923) and Morehead v. New York (1936) it struck minimum wage laws. And in Schechter Poultry v. United States (1935) it struck the New Deal’s centerpiece National Industrial Recovery Act. Not surprisingly, liberals were fed up with Court intervention.