On Jewish Justices
When I served as a law clerk, I attended a luncheon program at the court where the featured speaker, a reform rabbi and lawyer, was to speak on the topic of the Jewish Justices of the Supreme Court. The Jewish Justices, including the current two, are on the whole a group in whom the American Jewish community can justifiably take great pride, but I nonetheless listened to the address with pricked up ears. What I was listening for was an honest appraisal of Justice Frankfurter. I didn't hear it. An honest appraisal of Justice Frankfurter simply must deal with his votes in
Korematsu v. U.S. and
Board of Education v. Barnette, and his cowardly
dissenting opinion in the latter case. The speaker didn't even mention them. I didn't let it pass then, and in view of the similar defect in
Justice Ginsburg's recent article in the
Forward , I feel compelled to speak up again.
At the outset, I concede that there is much to admire in Justice Frankfurter, including his intellect and much good that he did before he was appointed to the High Court, all of which Justice Ginsburg mentions in her article.
But in the two cases I mentioned, both landmarks, albeit of very different kinds, Justice Frankfurter was on the wrong side. These were not ordinary cases, and his votes not just simple mistakes of judgment. They were moral failings that must be accounted for in any evaluation of the man.
In
Korematsu, Justice Frankfurter was complicit in one of the darkest stains in the history of the Court, voting to uphold the Roosevelt administration's unconscionable policy of imprisoning Japanese-Americans during World War II. At the time that Justice Frankfurter blithely approved of the herding of Japanese-Americans into camps (for the simple crime of being of Japanese descent), his own people were being herded into camps as well, for the simple crime of being Jews (I'm aware, of course, that the camps here and in Europe were not in the same league; but it is no defense of our actions to say that "at least we didn't gas them.") If Justice Frankfurter was troubled by the dissonance, he hardly showed it. The Talmud tells the tale of an encounter between Hillel, one of the great sages in the history of Judaism, and a proselyte. The proselyte challenges Hillel, saying explain the Torah to me while I stand on one foot. Hillel responds: that which is hateful to you, do not do unto your neighbor. That is the whole Torah. All the rest is commentary. Now go study the commentary."
Talmud Bavli, Shabbat 31a.
One would think a Jewish justice might have done well to heed that injunction. That's not to say that Frankfurter should have looked to the Talmud for either his judicial philosophy generally or his rule of decision in a particular case, but when the topic is "Jewish justices" and the pride that American Jews can take in them, then I think it appropriate to inquire whether, in their role as justices, they acted as one might expect a Jew to act. And Frankfurter himself was not above asserting his Judaism as a prophylactic to ward off criticism, which brings us to his dissent in
Barnette. That case involved a mandatory flag salute in West Virginia schools, from which the defendants in the case, devout Jehovah's Witnesses, demurred on religious grounds. (just as an aside, the flag salute in question at the time consisted of a right arm extended stiffly in front of one, which was thereafter changed because of its resemblance . . .) The Supreme Court, in an opinion by Justice Jackson which remains (in my view) one of the true gems in 225 years of Constitutional adjudication, held that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The Court therefore affirmed the lower court's injunction against enforcement of the mandatory flag salute. It is from this holding that Justice Frankfurter felt bound to dissent. He opened his dissent in this way: "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 then went on to assert that much as he agreed with the sentiments behind the opinion of the Court, he could not join it, because the liberty not to salute a flag did not fit within his crimped view of what liberty entailed.
Frankfurter's votes in these two cases can be defended. Indeed, the sort of judicial restraint he exercised is very much in vogue in certain circles today. But to me Frankfurter's votes in these cases represent the thinking of a court Jew, servile and morally obtuse. When the history of American law is written many generations hence, Frankfurter may well loom as one of the giants. In these two vital cases, he erred greatly, and any encomium that elides these failures does not render a true picture.