Supreme Court justice
Following the death of Supreme Court associate justice Benjamin N. Cardozo in July 1938, President Roosevelt turned to Frankfurter for recommendations of prospective candidates to fill the vacancy. Finding none on the list to suit his criteria, Roosevelt nominated Frankfurter. Frankfurter's nomination quickly became highly controversial, and a number of witnesses gave testimony in opposing the nomination during the confirmation hearing before the Senate Judiciary Committee. In addition to the objection that he was considered to be the president's unofficial advisor, that he was affiliated with special interest groups, that there were now no justices from west of the Mississippi, opponents pointed to Frankfurter as foreign-born and deemed to be affiliated with an anti-Christian movement viewed as part of a broader Communist infiltration into the country. As a result, the Judiciary Committee requested that Frankfurter appear before it and answer questions from the committee. He agreed, but only to address what he considered to be slanderous allegations against him. He was only the second Supreme Court nominee ever to testify during hearings on their nomination (the first was Harlan F. Stone in 1924), and the first to be requested to do so. Even so, he was confirmed by the U.S. Senate by voice vote on January 17, 1939.
Frankfurter served from January 30, 1939, to August 28, 1962. He wrote 247 opinions for the Court, 132 concurring opinions, and 251 dissents. He became the court's most outspoken advocate of judicial restraint, the view that courts should not interpret the Constitution in such a way as to impose sharp limits upon the authority of the legislative and executive branches. He also usually refused to apply the federal Constitution to the states. In the case of Irvin v. Dowd, Frankfurter stated what was for him a frequent theme: "The federal judiciary has no power to sit in judgment upon a determination of a state court ... Something that thus goes to the very structure of our federal system in its distribution of power between the United States and the state is not a mere bit of red tape to be cut, on the assumption that this Court has general discretion to see justice done".
In his judicial restraint philosophy, Frankfurter was strongly influenced by his close friend and mentor Oliver Wendell Holmes Jr., who had taken a firm stand during his tenure on the bench against the doctrine of "economic due process". Frankfurter revered Justice Holmes, often citing Holmes in his opinions. In practice, this meant Frankfurter was generally willing to uphold the actions of those branches against constitutional challenges so long as they did not "shock the conscience". Frankfurter was particularly well known as a scholar of civil procedure.
Frankfurter's adherence to the judicial restraint philosophy was shown in the 1940 opinion he wrote for the court in Minersville School District v. Gobitis, a case involving Jehovah's Witnesses students who had been expelled from school due to their refusal to salute the flag and recite the Pledge of Allegiance. He rejected claims that First Amendment rights should be protected by law, and urged deference to the decisions of the elected school board officials. He stated that religious belief "does not relieve the citizen from the discharge of political responsibilities" and that exempting the children from the flag-saluting ceremony "might cast doubts in the minds of other children" and reduce their loyalty to the nation. Justice Harlan Fiske Stone issued a lone dissent.
The court's decision was followed by hundreds of violent attacks on Jehovah's Witnesses throughout the country. It was overturned in March 1943 by the Supreme Court decision in West Virginia Board of Education v. Barnette. A frequent ally, Justice Robert H. Jackson, wrote the majority opinion in this case, which reversed the decision only three years prior in poetic passionate terms as a fundamental constitutional principle, that no government authority has the right to define official dogma and require its affirmation by citizens. Frankfurter's extensive dissent began by raising and then rejecting the notion that as a Jew, he ought "to particularly protect minorities," although he did say that his personal political sympathies were with the majority opinion. He reiterated his view that the role of the Court was not to give an opinion of the "wisdom or evil of a law" but only to determine "whether legislators could in reason have enacted such a law".
In Baker v. Carr, Frankfurter's position was that the federal courts did not have the right to tell sovereign state governments how to apportion their legislatures; he thought the Supreme Court should not get involved in political questions, whether federal or local. Frankfurter's view had won out in the 1946 case preceding Baker, Colegrove v. Green – there, a 4–3 majority decided that the case was non-justiciable, and the federal courts had no right to become involved in state politics, no matter how unequal district populations had become. But, in the Baker case, the majority of justices ruled to settle the matter – saying that the drawing of state legislative districts was within the purview of federal judges, despite Frankfurter's warnings that the Court should avoid entering "the political thicket".
Frankfurter had previously articulated a similar view in a concurring opinion written for Dennis v. United States (1951). The decision affirmed, by a 6–2 margin, the conviction of eleven Communist leaders for conspiring to overthrow the US Government under the Smith Act. In it, he again argued that judges "are not legislators, that direct policy-making is not our province." He recognized that curtailing the free speech of those who advocate the overthrow of government by force also risked stifling criticism by those who did not, writing that "[it] is a sobering fact that in sustaining the convictions before us we can hardly escape restriction on the interchange of ideas."
A pivotal school desegregation case came before the court in Brown v. Board of Education. The case was scheduled for re-argument when Chief Justice Fred M. Vinson, whose crucial vote appeared to be opposed to overruling the pro-segregation precedent in Plessy v. Ferguson, died before the court's decision was made. Frankfurter reportedly remarked that Vinson's death was the first solid piece of evidence he had seen to prove the existence of God, though some believe the story to be "possibly apocryphal".
Frankfurter demanded that the opinion in Brown II (1955) order schools to desegregate with "all deliberate speed". Some school boards used this phrase as an excuse to defy the demands of the first Brown decision. For fifteen years, schools in many states of the South remained segregated; in some cases systems closed their schools, and new private schools were opened by white parents for their children. In Alexander v. Holmes County Board of Education, the Court wrote, "The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." Frankfurter's "all deliberate speed" formula was intended to constrain the federal judiciary toward a gradualist approach to school integration, but his formula backfired. By divorcing the plaintiff's injury from the remedy afforded, Brown II gave birth to modern Public Law Litigation, which today affords federal courts broad power to reform state institutions.
Frankfurter was hands-off in the area of business. In the 1956 government case against DuPont, started because DuPont seemed to have maneuvered its way into a preferential relationship with GM, Frankfurter refused to find a conspiracy, and said the Court had no right to interfere with the progress of business. Here again, Frankfurter opposed – and lost out to – the views of the court majority made up of Justices Warren, Black, Douglas and Brennan. Later in his career, Frankfurter's judicial restraint philosophy frequently put him on the dissenting side of ground-breaking decisions taken by the Warren Court to end discrimination.
Frankfurter believed that the authority of the Supreme Court would be reduced if it went too strongly against public opinion: he sometimes went to great lengths to avoid unpopular decisions, including fighting to delay court decisions against laws prohibiting racial intermarriage.
For the October 1948 court term, Frankfurter hired William Thaddeus Coleman Jr., the first African American to serve as a Supreme Court law clerk.
In 1960, despite a recommendation from the dean of Harvard Law School, Frankfurter turned down Ruth Bader Ginsburg for a clerkship position because of her gender. She later became an associate justice of the Supreme Court herself, and was the first Jewish woman to do so.
Frankfurter's specific seat later came to be informally known as the "Jewish seat," as between 1932 and 1969 it was occupied by four consecutive Jewish justices: Cardozo, Frankfurter, Goldberg, and Abe Fortas. From 1994 to 2022, the seat was occupied by Stephen G. Breyer, who is also Jewish.
