Scorpions

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INTRODUCTION

A tiny, ebullient Jew who started as America's leading liberal and ended as its most famous judicial conservative. A Ku Klux Klansman who became an absolutist advocate of free speech and civil rights. A backcountry lawyer who started off trying cases about cows and went on to conduct the most important international trial ever. A self-invented, tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.

Four more different men could hardly be imagined. Yet they had certain things in common. Each was a self-made man who came from humble beginnings on the edge of poverty. Each had driving ambition and a will to succeed. Each was, in his own way, a genius.

They began as close allies and friends of Franklin Delano Roosevelt, who appointed them to the Supreme Court in order to shape a new, liberal view of the Constitution that could live up to the challenges of economic depression and war. Within months, their alliance had fragmented. Friends became enemies. In competition and sometimes outright warfare, the men struggled with one another to define the Constitution and, through it, the idea of America.

This book tells the story of these four great justices through their relationships with Roosevelt, with each other, and with the turbulent world of the Great Depression, World War II, and the Cold War. At the same time, another story emerges from the vicissitudes of their battles, victories, and defeats: a history of the modern Constitution itself. These four men reinvented the Constitution; and they did so along four divergent paths. The triumph of our Constitution is a story of controversy and competition—and of the greatness that can emerge from them in the realm of ideas.

Book One

CONTACTS

CHAPTER 1

In the Club

The mingled smells of oiled mahogany paneling, polished brass, and good tobacco were familiar ones to Franklin Delano Roosevelt. Folding his slim frame into a leather-upholstered chair in the new, three-story clubroom of the Harvard Club of New York, the recent graduate was exactly where he belonged. He had a job working in an elite Wall Street law firm, intended as a brief interlude before he sought political office. His starting position was enviable. The previous year he had married his cousin Eleanor, the favorite niece of the president of the United States.

Joining Roosevelt for lunch at the club on that spring day in 1906 was another twenty-four-year-old New Yorker, also a newly minted lawyer eager to become involved in politics. There the similarities came abruptly to an end. Rich and impeccably bred, Roosevelt was a favored child of the Hudson Valley aristocracy, educated at Groton, Harvard College, and Columbia Law School. His ancestors had come to what was then New Amsterdam before 1650. Felix Frankfurter had arrived in the United States from Austria at age twelve—in steerage, without a word of English. A dozen years later, after City College and Harvard Law School, he still spoke his acquired language with a noticeable Austrian accent.¹

But speak he did—and with a passionate intensity that exempted no one. Frankfurter would grab his listener by the upper arm, squeezing hard on the bicep while pressing a point. Argument was his favored, almost constant mode of expression. He argued so well, in fact, that he had finished first in his law school class. That was his entrée into the corridors of power. It was the only way a recent immigrant could have been lunching on terms of equality with a Roosevelt.

The paths that Roosevelt and Frankfurter had followed to New York legal practice were as divergent as their backgrounds. Roosevelt had experienced a childhood of ease and privilege, spending time in Europe with his family before returning to the United States for his secondary schooling. His college peers liked him. If there was a hint of the spectacular class betrayal that Roosevelt's future held, it was only that he was perceived as trying a bit too hard. Socially prominent freshmen were publicly ranked by a series of elections to something called the Institute of 1770, which chose one hundred men in groups of ten, the most clubbable coming first. The lone setback Roosevelt suffered as an undergraduate was not being elected until the sixth group.² That signaled he would not be asked to join the Porcellian Club—the pinnacle of college social life, to which Theodore Roosevelt had belonged and which his sons Theodore Jr. and Kermit would join a few years later.³

Roosevelt, who acknowledged the slight as "the greatest disappointment in my life," looked for a different venue to distinguish himself. Unable to make the football team—at six feet one and 146 pounds he was far from solid—he made a run for the presidency of the Harvard Crimson. The membership of the student newspaper was more inclusive than that of the clubs, and it did not hurt that in the fall of his sophomore year, his cousin Theodore became president of the United States.⁴ This time Roosevelt was successful. Choosing electoral politics over pure social status had paid off. He returned from summer vacation in 1903 not to go to class but to lead the Crimson.⁵

By coincidence, Frankfurter arrived at law school that same autumn, although the two never met in the year they overlapped in Cambridge. To Roosevelt's Anglo-Saxon contemporaries, prepared by their boarding schools to be leaders of an emerging great power, Harvard was simply the next training ground. Frankfurter, by contrast, found Harvard overwhelming—a land of giants: "The first day I went to my classrooms I had one of the most intense frights of my life. I looked about me. Everybody was taller."⁶

Frankfurter stood just five feet five inches tall, but his worry about stature was as much social as literal. He had been born in the Vienna of the late Austro-Hungarian Empire, the magical city that produced Freud, Wittgenstein, and Mahler. Yet Frankfurter's small-bourgeois family had little connection to the great world of Viennese arts and letters, which might be why Vienna almost never figured in Frankfurter's later reminiscences of his boyhood. Frankfurter's most accomplished relative was his uncle Solomon, a scholar who eventually became director of the State Library in Vienna. There were rabbis in the family's history, though nearly every European Jew could say as much.

On arrival, the Frankfurters had settled in the Lower East Side of New York, in a German and Yiddish-speaking part of the neighborhood that real estate agents would later rename the East Village. Frankfurter's pleasant and rather ineffectual father sold linens, silks, and furs, sometimes out of their apartment, sometimes door-to-door, and never to much profit.⁷ Money was scarce. Frankfurter attended P.S. 25, and when he was offered only a half scholarship to the Horace Mann School—one hundred of the two-hundred-dollar tuition—he went instead to the College of the City of New York, which offered a combined high school and college degree.⁸

City College was already a hotbed of ambitious and brilliant young Jewish students. Frankfurter enjoyed his classes, and was an active and successful debater. The fervid atmosphere of intellectualism and leftism engaged him without overwhelming him. "I'd sit hours and hours in East Side tea shops," Frankfurter later recalled. Together he and his friends would "drink highball glasses of tea with some rum in it, or lemon, and a piece of cake, and jaw into the morning about everything under the sun."⁹ Frankfurter read widely, browsing across a broad range of subjects and educating himself through the resources of the college and New York City's extraordinary public libraries.¹⁰ While Roosevelt was averaging a gentleman's C at Harvard, Frankfurter finished third in his class at City College and left college (like Roosevelt) with the vague plan of becoming a lawyer.

An obsessive newspaper reader interested in politics and public affairs, Frankfurter did not yet aspire to an active role on the American stage. As a recent immigrant, it would have been odd if he had. Few Jews were then prominent in national affairs, and although Frankfurter had ceased to be religiously observant—he walked out of Yom Kippur services during his junior year and never looked back—his ethnic identity was obvious and permanently fixed. That he would soon become one of the country's best-known and most influential public figures was unimaginable.

Frankfurter spent the next year as a clerk in the Tenement House Department of the city government. While working, he sampled night classes at New York Law School and at New York University School of Law. If for Roosevelt Harvard was a birthright, Frankfurter ended up there by accident. He had been diagnosed with influenza, and the family doctor told him he should get out of New York City for his health. Frankfurter was considering applying to the University of Michigan, but a friend in the Tenement House Department had a brother who was studying at Harvard Law School. Assured by his soon-to-be roommate that the school was not only for the rich, Frankfurter, using the money he had saved while working for the city, decided to enroll. In a sign of his penury, he arrived in Cambridge a week after classes had already begun. He wanted to draw his final full month's salary from the Tenement House Department.¹¹

Frankfurter flourished in the law school's exam-based meritocracy. At first he gloried in the intellectual riches of the campus, satisfying "a gluttonous appetite for lectures, exhibitions, concerts." Then came the first set of practice exams, on which Frankfurter performed badly. "That was the necessary jolt. I buckled down." Class standing was not revealed to the students, but Frankfurter knew that he had done well because he was made an editor of the law review, an indication of accomplishment that conferred status. Through his academic performance, Frankfurter overcame the insecurity that had struck him on arrival in Cambridge. The experience gave Frankfurter what he would call "a quasi-religious feeling about the Harvard Law School."¹²

The invocation of religion was more than an expression. His law school success enabled Frankfurter to do things that other Jews of the time could not. Buoyed by enthusiastic letters of reference from faculty, Frankfurter managed to get a job at a prestigious Wall Street law firm previously closed to Jews. The hiring partner recommended that Frankfurter take the opportunity to change his name—"nothing the matter with it, but it's odd, fun-making." Frankfurter politely declined, remarking that he'd "better get along with what circumstances had given me."¹³

Proud as he was to have gotten the job, Frankfurter found private practice uninspiring. He soon received an offer to work for Henry Stimson, a Harvard Law School alumnus who had been appointed by President Theodore Roosevelt to be the United States attorney for the Southern District of New York. There was a pay cut involved, but Frankfurter was excited by the prospect of government work. Stimson, a distinguished lawyer, planned to reform the U.S. attorney's office. In the past, the U.S. attorney often kept his private clients and farmed out the work of the office to associates at private firms. Stimson proposed to make his own appointment full-time and to keep the work in-house. In Stimson, Frankfurter discovered a lifelong mentor, a member of the upper class who embraced the idea of merit.

Because the U.S. attorney's office did not yet have its own proper headquarters, Frankfurter would do his legal research in the library of the Association of the Bar of the City of New York on West Forty-fourth Street. Once there, he would cross the street to the Harvard Club for lunch. It was in that congenial environment that he was introduced to Roosevelt by a mutual friend, Grenville Clark, who had been a college classmate of Roosevelt's and a law school classmate of Frankfurter's. Clark, who would later become prominent for advocating international law and world peace, was part of the same circle of the wealthy and wellborn as Roosevelt. Effortlessly graceful, a member of the Porcellian, he once dove from a bridge to save a girl who was drowning in the Charles River.¹⁴ In law school he had been an average student—Frankfurter described him as "one of those deep, but slow minds." Yet Clark had respect for the highfliers who sat in the front of the class and engaged the professors.¹⁵ Now he was an associate at the same Wall Street law firm as Roosevelt, and it seemed natural for him to introduce his college friend to his law school colleague.

Roosevelt and Frankfurter did not become friends in New York. Though their circles now overlapped, they still occupied different spheres. They also belonged to different political parties. Roosevelt's political affiliation was the more surprising. It would have been natural for him to become a Republican like Theodore Roosevelt. Strengthening his connection to Theodore was one of the reasons he had chosen to marry Eleanor. She was ungainly and awkward where Franklin was handsome and highly eligible. Franklin's mother, the beautiful and imperious Sara Delano Roosevelt, tried hard to stop the match. Yet Franklin was insistent. He was in love, and the reflected glamour of the presidency must have been part of Eleanor's appeal.

Despite the ambition to bring himself closer to his cousin, Franklin did not want to become Theodore's direct political protégé. In 1910, he entered politics by running for the New York State Senate—not as a Republican but as a Democrat. The reasons for this fateful choice remain uncertain. Probably Franklin thought he would have more influence at the state capital in Albany if he belonged to the majority party there. In addition, Franklin Roosevelt's father had been a Democrat, and local Dutchess County Democrats were the ones who approached him directly and asked him to run.

Whatever the basis, Franklin's choice showed the political prescience that would become his hallmark. Once elected, Roosevelt's family name made him a natural leader for those reform Democrats who wanted to take on the corrupt Tammany Hall Democratic machine. By entering politics as a Democrat, Franklin managed to wear his relative's mantle of reform without tying himself too closely to Theodore's political fate.

Frankfurter, meanwhile, found himself powerfully attracted to the progressive politics of Theodore, the Republican Roosevelt. Frankfurter's mentor, Henry Stimson, was a close associate of Theodore's, and himself a lifelong Republican. When Stimson, with Theodore's encouragement and support, decided to run for the New York governorship in 1910, he chose Frankfurter to manage his campaign. Thus, in the same election in which Franklin Roosevelt was elected to state office as a Democrat, Frankfurter made his first political foray as a Republican operative. He had the exciting experience of riding in a car with the former President Roosevelt, who had left office in 1909. Theodore asked if his speeches on Stimson's behalf were helping the cause; Frankfurter of course told the former president that the speeches were working. But in fact Theodore had overshadowed Stimson. Neither Stimson nor Theodore rode the prevailing political winds as well as Franklin did. It was a Democratic year in New York politics and nationwide, and Stimson lost.

Even in defeat, the Republican connection served Frankfurter well. With the New York governorship out of reach, Stimson agreed (with Theodore's blessing) to become President William Howard Taft's secretary of war. Stimson took Frankfurter with him to Washington as what today would be called his special assistant. The job did not exist then, so Frankfurter was officially made legal adviser in the Bureau of Insular Affairs.

This was a political appointment to the executive branch, one focused on America's recently acquired empire in the Philippines, Guam, and Puerto Rico. In his capacity as legal adviser, Frankfurter argued several cases in the Supreme Court, making a good impression there. For the first time in his life he also experienced notable social success. He roomed with a group of bright and energetic young men, most of whom worked in the administration. (One was a young lord who worked in the British embassy and provided extra tone.) The men dubbed their group apartment "the House of Truth," and invitations to their cocktail parties and dinners achieved a certain Washington cachet. Their regular guests included ambassadors, cabinet officials, and justices of the Supreme Court. Frankfurter got the thrill of his life when Justice Horace Lurton told him, "I hope you mix drinks as well as you argue cases." Then, sipping the cocktail Frankfurter had handed him, Lurton lowered the boom: "You mix drinks even better than you argue cases!"¹⁶

For a Jewish immigrant who was not yet thirty years old, Frankfurter's life in Washington was heady stuff—a sign of the opportunity that an increasingly egalitarian society could provide to a young man of promise. Not by coincidence, while in Washington Frankfurter first met and began to pursue the woman who would in 1919 become his wife. Marion Denman was a recent Smith College graduate. The daughter of a Congregational minister from an old New England family, she was high-strung and highly intelligent. She had studied social work and was interested in politics. Auburn-haired and hazel-eyed, Marion put admirers in mind of a Renaissance Madonna. Even in flats she was a head taller than Frankfurter.¹⁷

The relationship was rocky from the start. Denman was flattered by Frankfurter's attentions but worried that she might be overwhelmed by his dominating personality: "You threaten the securities of a person whose securities are only in the making, and will never be better than slow… and painful."¹⁸ At first reassuring, Frankfurter then backed away, telling Marion he could not marry her because she was not Jewish: "I suppose it resolved itself into a choice between you and mother… To understand you will remember all that clusters around the traditions of thousands of years."¹⁹ But Frankfurter then reversed himself again, and the two were eventually married. Frankfurter's mother did not attend the wedding.

In 1912, Taft ran for reelection, and Stimson supported the president who had appointed him. Frankfurter, still under Theodore Roosevelt's spell, supported the former president's third-party run quietly, without quitting the administration. When the split Republican vote helped elect Woodrow Wilson, a Democrat, Frankfurter's mentor Stimson was out of a job. Frankfurter stayed on in the War Department while he tried to figure out what to do next.

There Frankfurter reencountered Franklin Roosevelt, whose own rise to Washington prominence had been even more meteoric than his own. Despite his family ties to Theodore, Franklin had remained on the sidelines in the presidential election and was now a Democrat in good standing. Having spent all of two years in the New York State Senate, he went to Washington to seek a job in the new Democratic administration. He pulled it off, getting appointed assistant secretary of the navy—a plum position. At thirty, Roosevelt was a member of Woodrow Wilson's subcabinet.²⁰

Frankfurter left Washington in 1914 to become the first Jewish professor at Harvard Law School.²¹ In 1917, though, as the United States entered the war, Frankfurter was invited back to the War Department, where he had made Democratic friends. This time he served as chairman of the War Labor Policies Board, a body that had the task of handling labor relations for the production of munitions and other materiel during World War I. The job was especially delicate and important because many of the unions opposed the war. Roosevelt, still assistant secretary of the navy, served on the board with Frankfurter.

Now the acquaintances were colleagues. They saw each other professionally with some frequency, and their offices were near each other in the grand, high-ceilinged State, War, and Navy Building, which still stands next to the White House. Roosevelt even invited Frankfurter to lunch with his wife. Eleanor was still a long way from the broad-minded humanitarian she would later become. In a letter to her snobbish mother-in-law, she delivered a decidedly mixed verdict on Frankfurter: "an interesting little man but very jew."²²

At war's end, the men's paths diverged again. Frankfurter went back to Cambridge. Over the next decade, he threw himself into a series of controversial and high-profile projects that would make him a national figure. The young professor was already identified with organized labor because of his role in the Wilson administration. At the president's direction, Frankfurter had participated in two high-profile investigations of wartime labor disputes. Each of his public reports reflected sympathy for workers. In one, Frankfurter detailed the way that copper-mine owners in Bisbee, Arizona, had deported a thousand striking workers to New Mexico and left them in the desert without water or supplies. In the other, Frankfurter recommended a pardon for Tom Mooney, an important labor leader who had been convicted on questionable evidence of planning a 1916 bomb attack in San Francisco that killed ten people. Wilson ignored the report, and Mooney remained in prison until 1939, when he was absolved of guilt and pardoned after twenty-two years in San Quentin.²³

Frankfurter's Mooney report had led to a split with Theodore Roosevelt. The former president wrote Frankfurter a furious letter, telling his one-time admirer that by encouraging a pardon, Frankfurter was "engaged in excusing men precisely like the Bolsheviki." In common with many pro-war Americans, Roosevelt was angry with the Bolsheviks who had pulled off the Russian Revolution because they had withdrawn Russia from the war effort, to the detriment of the United States and its allies. Frankfurter, Theodore charged, was "taking on behalf of the Administration an attitude which seems to me to be fundamentally that of Trotsky."²⁴

Frankfurter did not back down. In his calm reply to Theodore, he wrote of his "great sadness" at finding "disagreement between us on an important issue."²⁵ Nor did Frankfurter shrink from causes associated with the left when he returned to Harvard. On Armistice Day, 1919, he chaired and spoke to a rally at Faneuil Hall in Boston in which he called on the Wilson administration to recognize the Soviet Union, a position that again left him open to the charge of Bolshevism.²⁶ It was an inconvenient moment to be identified as sympathetic to the left. The postwar Red Scare was brewing. It went into full gear after the events of June 2, 1919.

CHAPTER 2

Anarchy

That night, a few minutes after 11:00 p.m., a dapper Italian anarchist named Carlo Valdinoci, dressed in a suit and a polka-dot bow tie and carrying a leather briefcase, walked up to 2132 R Street, the Washington, D.C., home of Attorney General A. Mitchell Palmer. As Valdinoci mounted the front steps, the fuse attached to the explosives in his case went off prematurely, turning him into an unwitting suicide bomber. The explosion rocked the elegant residential neighborhood, blowing up the front of Palmer's house and breaking windows a hundred yards around. People were thrown from their beds in the mansions along Embassy Row, just a block away. ²⁷

Directly across from the Palmer town house, at 2131 R Street, lived the attorney general's neighbors, Franklin and Eleanor Roosevelt, in the house they had taken to accommodate their growing family during Roosevelt's tenure as assistant secretary of the navy. By chance, the couple was just returning home from a night out when they heard a blast so loud that their cook screamed that the world was coming to an end. Roosevelt ran upstairs to find his eleven-year-old son, James, out of bed, standing at the broken window in his pajamas. Relieved and unnerved in equal measure, Roosevelt wrapped his son in an embrace that, James remembered, "almost cracked my ribs."²⁸

His family's safety assured, Roosevelt hurried across the street to the Palmers', where he was one of the first people on the scene. Roosevelt and Palmer, looking around, could pick out parts of the bomber's body. Valdinoci's torso ended up hanging from a cornice on S Street; one foot landed some fifty feet away. His scalp would be found on a nearby rooftop, with its long, curly black hair still attached. The next morning, James Roosevelt would find a piece of the bomber's collarbone on the Roosevelts' front steps. It seemed miraculous that no one else had been killed. Roosevelt drove Palmer's wife to safety. Then, with the police, Roosevelt helped gather the anarchist leaflets that the bomber had carried with him and that were now scattered along R Street.²⁹

But the events of that night were not over. Within minutes after the stroke of midnight, bombs went off in cities across the country, including New York, Boston, Philadelphia, Cleveland, and Pittsburgh. Italian anarchists were behind these, too. All targeted government officials connected to the suppression of anarchism. "Midnight Bombs for Officials in Eight Cities," read the New York Times headline the next morning. It was easily the most serious coordinated terrorist attack in the history of the United States to that time.

In the six months following the bombing of his home, Palmer and his special assistant, J. Edgar Hoover, would order hundreds of raids arresting thousands of suspected radicals. A few of those detained could be connected to terrorist activities. Most, though, were socialists, communists, and other leftists of an idealist bent whose revolutionary impulses were more theoretical than actual. The overwhelming majority of those arrested and held without trial were immigrants, and many were deported or scheduled for deportation.

Frankfurter deplored the indiscriminate nature of the Palmer raids and arrests. With his law school colleague, the civil libertarian professor Zechariah Chafee, Frankfurter filed a brief in Boston's federal court on behalf of nineteen Communists who had been arrested and held for deportation. The friend-of-the-court brief was privately solicited by the judge in the case, who was himself outraged by the government's tactics. In it, Frankfurter condemned Palmer's Justice Department for denying the detainees access to lawyers and for obtaining evidence through illegal searches. The judge issued an order relying on Frankfurter's arguments. Then he freed all nineteen detainees, reasoning that the Communist Party did not, in fact, advocate overthrow of the U.S. government by force.³⁰

In the political environment of the Red Scare, standing up for the civil liberties of Communists was unpopular, to say the least. Chafee was subjected to an investigation of his "fitness to teach" by the Harvard administration.³¹ Frankfurter got off only a bit more lightly. Distinguished alumni warned him that any association with Reds could harm their fund-raising and the standing of the university. Frankfurter dismissed the criticism as absurd and misplaced. The purpose of the law school, he told his critics, was not to raise money, but to stand up for certain ethical principles.³²