Klein, Fannie J.

English

University of Miami School of Law

University of Miami Law Review Volume 15 Number 3 Article 16 5-1-1961 FELIx FRANKFURTER: SCHOLAR ON THE BENCH. By Helen Shirley Thomas. Baltimore, Md.: The Johns Hopkins Press, 1960. Fannie J. Klein Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Fannie J. Klein, FELIx FRANKFURTER: SCHOLAR ON THE BENCH. By Helen Shirley Thomas. Baltimore, Md.: The Johns Hopkins Press, 1960., 15 U. Miami L. Rev. 337 (1961) Available at: https://repository.law.miami.edu/umlr/vol15/iss3/16 This Book Review is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. BOOK REVIEWFELIx FRANKFURTER: SCHOLAR ON THE BENCH. By Helen Shirley Thomas.Baltimore, Md.: The Johns Hopkins Press, 1960. Pp. 381. ($6.50)In a letter to Mr. Justice Holmes, Sir Frederic Pollock wrote: "It ispleasing to see that the learned Felix Frankfurter has written in yourpraise in the Harvard Law Review warmly but without being fulsome ortedious."' Two decades have since gone by and he who bestowed the praiseis himself the recipient of a scholarly tribute that is warm and neitherfulsome nor tedious.The author, a member of the faculty of Goucher College, has notessayed a full-length biography of Justice Frankfurter, but, instead, hasattempted an analysis of his legal philosophy as gleaned from his writings,judicial and extra-judicial.The winds of controversy have swirled about the head of Justice Frank-furter for many years and it is inevitable that any book written abouthim by one not hostile to his views of the judicial function, would besomewhat of an apologia. Perhaps the greater portion of the criticismthat has been directed at the Justice springs from the disappointment ofthose of liberal persuasion who had imagined that he would espouse theirviews when he was appointed to the Supreme Court by President FranklinD. Roosevelt.2 The author correctly points out that this expectation hadvery little basis in fact; that "His philosophy precludes adoption of whole-sale changes in the law.' 3After a brief biographical sketch, the author discusses the Justice'sopinions with occasional illumination derived from his other writings. Al-though her admiration for Justice Frankfurter is apparent all through thebook, she does not hesitate to offer criticism where she thinks it necessary,nor does she fail to quote sources definitely opposed to the Justice's phi-losophy.Under the heading of Symbolism and Social Unity, Frankfurter'semphasis on symbolism as a factor in the transmission of the continuingvalues of a civilization is disclosed and advanced as an explanation of hisopinions in the Flag Salute Cases.4 His belief in the symbolic role of the1. 2 HOLMES-POLLOCK LETTERS 213 (Howe ed. 1941).2. For an unexpected view of the Justice's sentimentality and impish humor, readhis own account of his appointment and how Senator Pat McCarran, a virulent opponentsubsequently came to him for a favor. FELIX FRANKFURTER, REMINISCENCES 283, 287(1960).3. P. 39 of the book reviewed herein.4. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646-671 (1943)(dissent); Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).UNIVERSITY OF MIAMI LAW REVIEWCourt as a protector of social interests and therefore not to be burdenedwith trivia is said to underly his opposition to the granting of certiorari incases involving the Federal Employers Liability Act.The difference within the Court as to the extent of the incorporationof the Bill of Rights into the Fourteenth Amendment is treated under theheading, The Uses of History. Although Frankfurter has referred to naturallaw as "not much more than a literary garniture" and "Not a guiding meansfor adjudication," 5 his insistence that only those "rights implicit in theconcept of ordered liberty" be granted the sanctity of incorporation in theFourteenth Amendment is a fair example of natural law thinking. Theauthor suggests that this and other contradictions are the consequencesof Frankfurter's use of history as a means of determining societal andpersonal values and his frontiers of legal thought. This position of extremevulnerability is little more than a groping explanation for the phenomenonof inconsistency which seems to be one of the occupational hazards ofjudging.In her discussion of Dennis v. United States,6 the author quotes JohnP. Frank's devastating comment on Frankfurter's concurring opinion. 7Whether or not the Communist threat provided sufficient justification forthe contraction of the permissible area of freedom of speech will long bedebated. That the Court itself entertained doubts is apparent from itsholding in Yates v. United States,8 which modified the Dennis doctrineby requiring incitement rather than mere advocacy of the forcible over-throw of the government to constitute a crime under the Smith Act. Sur-prisingly, the Yates case is not discussed in the book.Many pages are devoted to an exegis of the "preferred-position" con-troversy between the advocates of judicial self-restraint on the Court ledby Justice Frankfurter, and the "libertarian-activist" approach championedby Justices Black and Douglas. The so-called libertarian-activities would, ineffect, erect a presumption of unconstitutionality with regard to legislationpurporting to abridge the civil liberties embraced in the Bill of Rights.9The view of Justice Frankfurter and his followers is that faith must beplaced in the legislature and not in the judiciary to work out the accom-modations between liberty and order.105. FRANKFURTER, JOHN MARSHALL IN GOVERNMENT UNDER LAw 15, 16 (1956).6..341 U.S. 494 (1951).7. "This opinion is the very epitome of intellectual liberalism at its most in-effective." Frank, The United States Supreme Court: 1950-51, 19 U. CHI. L. REV. 165,187 (1952).8. 354 U.S. 298 (1957).9. See Black, The Bill of Rights, 35 N.Y.U.L. REV. 865 (1960) and for a recitalof the attempts to constitutionally limit the Court, see Elliott, Court-Curbing Proposalsin Congress, 33 NOTRE DAME LAw. 597 (1958).10. It would give one small comfort to be deprived of civil rights in the interestsof a concept called "judicial self restraint." One is reminded of Baron Surrebutterexplaining to client Crogate that he had lost the case but had thereby vindicated therules of special pleading. See Hayes, Crogate's Case, 9 HOLDSWORTH, HISTORY OFENCLIsH LAW 417 (1926).[VOL. XVBOOK REVIEWOne of the best parts of the book is the chapter headed "The ManWho Talks So Much," which relates various aspects of the judicial function,such as the writing of opinions and the behavior of the Justice during oralargument. His sharp interrogation of counsel and his insistence on theregularity of procedure are reminiscent of the dramatis personae of theYear Books such as Judges Bereford, Stonore, Hervey, et al., whose verbalexchanges with counsel over the metaphysics of procedure were sometimesmore amusing than enlightening.Perhaps because the author is not formally trained in the law, dis-cussion of the Justice's opinions in various highly technical legal fields havebeen omitted. In these, whether writing for the majority or dissenting, theJustice has seemed more often than not to have given the correct decision.Whether one agrees or disagrees with his judicial views, however, it wouldbe unfair to deny that he has proven worthy of the appellation "Scholaron the Bench." One puts down this book with the feeling that a greaterunderstanding has been obtained of one of the most brilliant and complexpersonalities of our time.FANNIE J. KLEIN Assistant Director and LibrarianInstitute of Judicial AdministrationNew York University School of Law1961]

FELIx FRANKFURTER: SCHOLAR ON THE BENCH. By Helen Shirley Thomas. Baltimore, Md.: The Johns Hopkins Press, 1960.

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FELIx FRANKFURTER: SCHOLAR ON THE BENCH. By Helen Shirley Thomas. Baltimore, Md.: The Johns Hopkins Press, 1960.

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