Anecdotage

By Levy, Leonard W. | Constitutional Commentary, Spring 1996 | Go to article overview

Anecdotage


Levy, Leonard W., Constitutional Commentary


Justice Felix Frankfurter was probably the foremost influence on my thinking about the Supreme Court. In 1953, as a young instructor at Brandeis University, I had published several articles lambasting judicial decisions that sustained Jim Crow laws. One of the articles appeared in The New Republic, for which Frankfurter had regularly written about the Court when he was a professor at Harvard Law School. Professor Frankfurter could be censurious and biting. My own articles were written in a similar spirit. One, which apparently outraged Frankfurter, dealt with "frauds and fallacies" in the law of segregation. I savaged not only Plessy v. Ferguson but decisions following Plessy, including the 1927 case of Gong Lum v. Rice,(1) in which the Court sustained a Mississippi ruling that classified a Chinese child as black and segregated her.

Frankfurter wrote a letter to my boss at Brandeis, his good friend Max Lerner, demanding to know who was the arrogant young instructor who dared to criticize even opinions of the Court that the "revered" Justices Oliver Wendell Holmes and Louis D. Brandeis had joined. Showing me Frankfurter's letter, Lerner suggested that I answer it and give him a copy. The response took a couple of weeks, as I researched the law on fraud; I defended my view of the Court's failures, covering not only the law of segregation but, on the issue of genteel criticism, precedents of rancorous language by Professor Frankfurter. My letter led to a correspondence and as a result, Frankfurter invited me to Washington as his guest to hear the arguments in Brown v. Board of Education. He also asked me to meet him in his chambers.

The moment I entered his chambers, Frankfurter sharply exclaimed, "There's that damn Jeffersonian liberal!" He starting baiting me and finally succeeded in provoking an argument in which I sought to defend liberal judicial activism rather than judicial self-restraint. At the time, I was considering a book on the Court and the Bill of Rights, in which I expected to champion the position of Hugo Black. Frankfurter made several sharp remarks about Black's inconsistencies and against Black's activist impulses. He also was remarkably spirited in slamming my views. The argument grew intense and I lost my sense of deference. I must have been brazen in my counter-assault, discrediting several of Frankfurter's opinions for inconsistencies.

While talking animatedly, and pacing before his big desk, I suddenly noticed that Frankfurter's face was vividly reddening. Then the slight, distinguished-looking scholarly jurist rose from his high-backed chair and slowly approached me with a clenched fist. I froze and thought, "My God, I'm going to be struck by a Justice of the Supreme Court of the United States." He came around the side of the desk, walked right up to me, flushed and tightfisted, and suddenly, poking a finger under my nose, he declared, "Good point, young man!" Then he returned to his chair, sat back, and beamed at me. He seemed delighted that I had supported my argument even at his expense.

Frankfurter taught me to criticize my most cherished beliefs by demanding valid evidence for any proposition. I learned to see at least two sides to every question and to appreciate the values of judicial self-restraint even more than those of judicial activism. Frankfurter became, for me, a model of intellectual rectitude. And he became a friend. He invited me to his home whenever I was in Washington. Once, when lunching with him, I was thrilled to hear him tell his servant to hold all calls "except from Dean" (Acheson). I had the pleasure of presenting Frankfurter with an honorary degree at Brandeis University.

He was instrumental in my receiving a Guggenhim Fellowship. I had a good project and several all-star scholars as references, including Paul Freund and Mark Howe of the Harvard Law School, and Henry Steele Commager and Richard B. Morris of the Columbia University Department of History, but I have always believed that Frankfurter's letter made the difference. …

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