The Supreme Court: The Passionate Restrainer

Rarely has the Supreme Court of the U.S. known a richer personality than Mr. Justice Felix Frankfurter. "F.F.," as he was known to his brethren, grated on some of them as a hyperactive pedant: he charmed others as the most rewarding friend of their lives. He was insatiably curious; he knew everyone, read everything. He talked incessantly —warm, wise, witty words about everything under the sun. Dean Acheson said of him: "One needs to see, to hear—particularly to hear his laugh, his general noisiness—to realize what an obstreperous person this man is, to have one's arm numbed by his viselike grip just above one's elbow, to feel the intensity of his nervous energy. Above all, one needs years of experience to know the depth of his concern about people."

F.F. was electricity made human, and when he died last week of a heart attack at 82, it almost seemed that Washington's lights visibly dimmed. What remains is a paradox: the memory of a passionate man whose entire judicial career was aimed at controlling judicial passion.

Sovereign Prerogative. Frankfurter saw the Constitution as "a vessel out of which meaning is drawn and into which meaning is poured." Vast power to alter that meaning, he pointed out, rested with nine fallible men: "The Supreme Court is the Constitution." For that very reason, Frankfurter feared that lifetime judges, free of popular veto, might easily impose their own notions of "justice." He warned repeatedly that diffusion of power is the basic premise of U.S. Government. In public policy, he said (borrowing a phrase from his hero Justice Holmes), "the sovereign prerogative of choice" should always rest with elected compromisers and the people to whom they answer.

Frankfurter's "judicial restraint" seemed completely antithetical to his personal activism. Born in Vienna, the scion of a long line of rabbis, he came to New York at the age of twelve, his English so poor that he decided a man named "laundry" must be very rich to own so many stores. In 1902, after graduating from C.C.N.Y., he moved on to Harvard Law School. Inevitably, he became editor of the Law Review and wound up No. 1 in his class. By 1917, already on the law school faculty, he was spending most of his time as assistant to the Secretaries of War and Labor—to say nothing of his service as chairman of the War Labor Policies Board. "Mr. Wilson has charge of foreign policy," Harold Laski wrote to Justice Holmes. "Felix seems to sponsor the rest of the Government."