Justice for All (54 page)

By 1937, Roosevelt had been returned to office, and on the strength of that mandate, he set out to overcome the Court's resistance. Without acknowledging the underlying purpose of his proposal—namely, to bring to the Court justices more amenable to his economic plans—FDR called on Congress to allow the president to name a new justice for every sitting member of the Court who was over age seventy. This, the president said, would help alleviate the strain on the Court, whose aging justices were struggling to keep up with their docket. The insult to the justices cost Roosevelt support there—Louis Brandeis, generally a New Deal supporter, was particularly incensed. More important, the obvious falseness of that position undermined Roosevelt's credibility, and the proposal quickly was exposed for the “Court-packing” plan that it was. And yet, though it failed, the justices got the message: Owen Roberts, who had joined the Four Horsemen in overturning many of the earlier New Deal programs, in early 1937 reversed field and decided to uphold a minimum-wage law from Washington state. Although Roberts changed his vote in conference before FDR announced his Court-packing proposal, the decision was announced afterward. Many have speculated that it was at least influenced by the growing public antagonism toward the Court and at most directly affected by early knowledge of FDR's proposal. In either case, the “switch in time that saved nine” achieved what the president was seeking without adding new members to the bench. It brought the Court into line with the new economic demands of the Depression and the perceived need for aggressive executive action without judicial interference.

To Frankfurter, then at Harvard and both a friend and an adviser to Roosevelt, the Court's resistance to change through those early Depression years validated his belief that judges should defer to executives in order to make way for social and economic progress. In that view, Frankfurter was heir not only to Progressivism but also to the considered jurisprudence of some of the Court's great visionaries, notably Brandeis and Frankfurter's idol, Oliver Wendell Holmes.

By the time Warren arrived, in 1953, Frankfurter had been on the bench for more than fourteen years and had sharpened his views on judging into a hard philosophy of judicial self-denial. He had, moreover, become something of a scold. Fond of lecturing his colleagues, Frankfurter steadily had worn away his welcome with several; Douglas in particular had given up suffering Frankfurter and turned instead to nettling him. Eventually, Douglas would grow so exasperated that he would walk out of the conference room while Frankfurter was speaking, tossing back over his shoulder instructions to be summoned when Frankfurter had finished. The rest of the justices accepted his cloying condescension with varying degrees of equanimity, but Frankfurter's manner, by the early 1950s, had left him increasingly in a fight for support. In Warren, then, he hoped for a colleague and a vote, a fellow Progressive who had served as an innovative chief executive, just the sort of leader who, Frankfurter hoped, would allow great latitude by reining in the judiciary. Frankfurter thus greeted Warren's arrival with great hope.

Frankfurter's most eloquent ally on the Court in 1953 was Robert H. Jackson, arguably the greatest courtroom advocate ever elevated to the Supreme Court of the United States. Precise and direct, a master of the simple metaphor and the gentle witticism, Jackson was so gifted at argument that during his years as solicitor general, Justice Brandeis once remarked to Frankfurter, “Jackson should be Solicitor General for life.”
¹⁷

In contrast to Earl Warren's lackadaisical youth, Jackson showed his promise early, excelling under the tutelage of a high school teacher in the rural New York where he grew up. He was, from his earliest days, determined and independent. Taken young by the law, Jackson defied his father, who saw no future for a lawyer and refused to help his son pay for law school. Robert Jackson borrowed the money instead, and attended a year of law school before striking out on his own. After passing the bar, Jackson built a successful small-town practice and caught the eye of New York's governor, one Franklin Roosevelt. As president, FDR shuffled Jackson through a series of important posts. Jackson served as general counsel to the Internal Revenue Service, where he earned national attention for his tax-evasion prosecution of Andrew Mellon (Mellon was forced to pay $750,000). Jackson then moved rapidly through a series of Justice Department positions before becoming solicitor general in 1938, a role at which he was so effective that some maintained he elevated the Court itself by the logic of his arguments.
¹⁸
In 1940, Jackson became FDR's attorney general, succeeding Frank Murphy in that job at the age of forty-seven. The following year, when Chief Justice Charles Evans Hughes retired, Jackson followed Murphy again, this time to the Supreme Court.

From his earliest time with the brethren, it was clear that Jackson belonged among them. A case in point was his decisive impact on the Court's view of religious freedom. Shortly before Jackson joined the Court, Frankfurter had written for the majority in a case brought by Jehovah's Witnesses who objected to their children being forced to pledge allegiance at the opening of the school day. Frankfurter, who always resisted granting special protection to First Amendment rights, was unmoved by the Witnesses, concluding, “The ultimate foundation of a free society is the binding tie of cohesive sentiment.”
¹⁹
He added his familiar note that the legislature, no less than the Court, is committed to “the guardianship of deeply cherished liberties” and with that, upheld the compulsory pledge against the objections of the Witnesses.

Three years later, Jackson had joined the bench, and World War II was at its height. Again, the Court considered the pleas of the Witnesses, this time along with the PTA, Boys and Girls Clubs, and other civic organizations in West Virginia. Drawing its support from the Court's earlier ruling by Frankfurter, the state had ordered a compulsory flag salute, and had directed that any student who refused to take it would be found insubordinate and expelled.
²⁰
Nothing of consequence had changed since Frankfurter's opinion in 1940; if anything, the years of war had only hardened the patriotic impulses behind Frankfurter's earlier decision, which won a majority of the Court. But a new voice had arrived in the form of Jackson, and it was a persuasive one. Jackson's opinion witheringly dissected Frankfurter's reasoning, overturning it with a new and magnificent conception of the relationship between patriotism and government power:

 

It was, however, Jackson's most memorable paragraph that established his reputation as the Court's prose poet:

 

Justices Douglas and Black, who had joined with Frankfurter in 1940, now abandoned him for Jackson and the poetry of his logic. Frankfurter was not used to being outthought, and he responded with a personal dissent that crystallized his discomfort with the self-restraint he adopted to fulfill what he believed was his judicial duty. “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution,” he wrote. “Were my purely personal attitude relevant I should whole-heartedly associate myself with the general libertarian view in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew, nor Gentile, neither Catholic, nor agnostic. . . . As a member of this Court I am not justified in writing my private notions of policy into the Constitution.”
²³
This time, Frankfurter's exhortation of restraint was unpersuasive; freedom, as articulated by Jackson, carried the day over deference.

Jackson's stirring opinion in
West Virginia Board of Education v. Barnette
demonstrated his independence from Frankfurter, but the two men in fact were doctrinally not so different. Both were New Deal liberals, determined to allow Roosevelt the opportunity to lead the nation with a minimum of judicial interference. Thus, through their early years together, Jackson and Frankfurter generally upheld the government, and despite Frankfurter's dismay over the flag cases, Jackson's real rival was not the Harvard law professor but rather the Southern individualist anchor of the Court wing that Frankfurter sneeringly dubbed “the Axis.” That justice was Hugo Black.

Hugo Lafayette Black was the youngest of eight children, born on a rainy night in 1886 in the backcountry of Alabama, “a Clay County hillbilly,” as he described himself.
²⁴
He grew up poor but in an atmosphere of learning, of farming and small-town stores and a home full of books—a Southern version of Earl Warren's Western childhood. But where both Warren and Black were taught to love reading, Hugo Black's personal library was a particularly distinguished one. Young Earl Warren read
Peck's Bad Boy;
young Hugo Black was given Shakespeare, Milton, and the Bible.

Black's ascent through the country politics of post-Civil War Alabama began, as Jackson's did in New York, with a small-town law practice. Unlike Jackson, who was lured to government service by appointment, Black sought it through politics. He was elected to the Senate as a Democrat from Alabama in 1926, and there joined Roosevelt as an aggressive proponent of the New Deal. Black was armed with an abiding sense of personal loyalty, an extraordinary memory and an intensely probing intellect, a man whose searching mind was in “constant intellectual rebellion,” biographer Roger Newman notes in his extraordinary study of the justice.
²⁵
Black joined the Senate in 1927, starting slowly but building into a forceful legislator who used his position to bully opponents and champion friends, including labor and especially President Roosevelt. He was gracious and generous, in love with his wife and an enveloping, devoted father to two sons and a daughter. But Black could be vicious in a fight, “a cruel strategist with a biting tongue. . . . Men who had crossed swords with him rarely forgot or forgave the experience.”
²⁶
Within a short time, the Senate was full of men who had their grudges with the senator from Alabama.

Court-packing did not give Roosevelt the spots he had hoped for on the Court, but time yielded what politics did not, as Roosevelt's reelection in 1936 extended his time in office. Black had demonstrated his loyalty to the New Deal and had supported Roosevelt in the Court-packing debacle as well. When it came time at last to name a justice of his own, Roosevelt predicted that the Senate would be forced to take Black because of its long tradition of senatorial courtesy, notwithstanding Black's unpopularity in that body and the persistent rumor that he had been, or even might still be, a member of the Ku Klux Klan. With a flourish, FDR signed the nominating letter in front of Black and sent along the name to the Senate.

During the confirmation process, some senators and others rumbled quietly about the rumors of Black's Klan membership. He did not address them publicly but allowed colleagues to deny them for him. With that matter on the periphery of the debate, the Senate, as FDR had predicted, fell into line behind a colleague and confirmed him just five days after the president sent the nomination to the Hill. Black then sailed for Europe. While he was away, Ray Sprigle, an enterprising reporter from the
Pittsburgh Post-Gazette
, traveled to Alabama, where he struck up a relationship with a former Grand Dragon. The Klansman gave Sprigle Black's Klan membership card, a list of committee assignments, and his resignation from the organization, among other things. The story broke as a series in September 1937, and Sprigle not only presented the evidence that Black had been a Klansman but also suggested that he still was (Black had, in fact, resigned from the Klan at the outset of his 1926 Senate campaign). That placed the Senate in an awkward position, as it had just confirmed Black and now was faced with the jurisdictional debate over whether it still could take action against a justice who had been confirmed but not yet seated. Black retreated into silence, fending off, among others, a young James Reston who tried and failed to elicit comment from him for the
New York Times
.
²⁷
Eventually, however, the uproar became too much for Black to ignore. He returned home and delivered a radio address to the nation; so anticipated was it that it attracted the second-largest radio audience of all time up to that point in history, surpassed only by Edward VIII's abdication of the British throne. With millions tuned in across America, Black admitted that he had been a member of the Invisible Empire, denied any current ties to the order, and emphasized that his liberal record in the Senate made clear that his membership had been practical, not heartfelt. With that, he refused to speak of it again, and took his place on the Court.