The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America. - book reviews

National Review, Dec 31, 1989 by James H. Andrews

The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America

FELIX FRANKFURTHER was born to serve on the Supreme Court. When President Roosevelt nominated the Harvard law professor in 1939, progressives and civil libertarians uncorked the champagne. This, it was widely agreed, was Roosevelt's first great Court appointment--certainly better than his appointment two years earlier of the populist Southern senator Hugo Black, or of the forgettable Stanley Reed.

Court watchers assumed that leadership of the Court's liberal wing naturally would devolve on Frankfurter. Brilliant, impassioned, and tireless, Frankfurter made himself, in James F. Simon's words, "the nation's foremost citizen-academic, a professor with a limitless public-service portfolio." As a founder of the ACLU and champion of Sacco and Vanzetti, he had impeccable civil-libertarian credentials. Yet within a few years Frankfurter had forfeited his "liberal" pre-eminence to Black, and had become the Court's "conservative" voice.

The role reversal could hardly have been more unlikely. Felix Frankfurter, a Vienna-born Jew, first in his class at Harvard Law, protege of Henry L. Stimson and friend of Justices Holmes and Brandeis, and a member of FDR's brain trust, was endowed with a supple and penetrating intellect with which, through more than a quarter-century of articles and briefs, he dazzled the public-policy community.

Hugo Black was the son of a poor Alabama storekeeper and red-clay farmer. After studying under the University of Alabama's two-man law faculty, he became a trial lawyer, judge, and county solicitor in Birmingham. Preparing for his successful bid for the Senate in 1926, Black found it politically expedient to join the Ku Klux Klan (a brief association he explained away in a Checkers-like radio broadcast after his nomination). To many, his appointment to the Court was just a payoff for his pugnacious investigations, at FDR's bidding, of corporate malefactors.

It was the Southern politico, however, and not the Harvard don, who was the chief intellectual architect of what became the Court's defining activity for the next thirty years: the expansion of individual rights. Not that Frankfurter sank into irrelevance. While Black was fashioning himself into the Court's principal exponent of civil-libertarian activism, Frankfurter emerged as its apostle of judicial restraint and defence to the political branches of government. This book is the fascinating story of their running and often acrimonious battle over 23 years for, as Simon says, the soul of the Court.

The main battle lines were drawn over two issues: interpretation of the Bill of Rights, especially the First Amendment, and the question of whether the Bill of Rights, which limits actions of the Federal Government, is equally applicable to the states through "incorporation" into the Fourteenth Amendment. On the First Amendment, Black was an absolutist. And he pretty much invented the incorporation doctrine, i.e., that the Fourteenth Amendment's due-process clause cast over states' actions the full panoply of Bill of Rights jurisprudence.

Frankfurter, on the other hand, contended that the scope of constitutional rights, including those created by the religion, speech, and association clauses of the First Amendment, should be defined by an intricate process of historical scholarship, contextual analysis, and the weighing and balancing of individual rights against legitimate government interests. He rejected incorporation, asserting that the Fourteenth Amendment provided only that states must adhere to standards of procedural due process consistent with fundamental principles of justice.

Above all, Frankfurter differed from Black in his insistence on judicial restraint. Not only did he believe as a matter of democratic principle that courts should keep a slack rein on the people's elected representatives, but he also feared that excessive activism by the unelected branch would cost the Court the only real sources of its influence--its prestige and public trust.

The two Justices are commonly relegated to "liberal" and "conservative" camps on the basis of these philosophical differences. Simon, dean of New York Law School, wisely eschews those labels, though, and his lucid exposition--which he makes accessible to laymen without rendering it reductive--makes clear how misleading judicial labels can be.

For example, would judicial restraint be "conservative" when exercised in deference to legislation expanding racial quotas or comparable worth? And wasn't Black's desire to bring the Fourteenth Amendment's due-process clause inside the written borders of the Bill of Rights less "liberal" than what he called Frankfurter's "natural law" approach, which allowed judges to read their own values into the definition of fundamental justice? Isn't thedefense of individual rights against government infringement--getting government off our backs--the very essence of American conservatism? (Simon notes that, after each purportedly neutral balancing of individual rights against government interests, Frankfurter generally accepted the government's justifications.)