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26 U. Rich. L. Rev. 175 (1991-1992)
The Failure of Felix Frankfurter

handle is hein.journals/urich26 and id is 199 raw text is: THE FAILURE OF FELIX FRANKFURTER Melvin I. Urofsky* There is, unfortunately, no way one can predict whether a per- son appointed to the Supreme Court will be a great justice or a mediocre one. The nomination of John Marshall, for example, evoked numerous complaints about his lack of ability. The Phila- delphia Aurora characterized him as more distinguished as a rhetorician and sophist than as a lawyer and statesman, and the Senate, in fact, delayed its confirmation vote for a week hoping President John Adams would change his mind.' When Woodrow Wilson appointed Louis D. Brandeis to the Court in 1916, pillars of the bar crowded into the Senate judiciary sub-committee hearings to denounce Brandeis as unfit to sit on the nation's highest court.2 On the other hand, some appointees who gave much promise of greatness have proven disappointing. Harlan Fiske Stone, for ex- ample, had been so praised as an associate justice in the 1930's that Franklin Roosevelt elevated him to chief justice in 1941. Stone, however, proved a disaster in the center chair and could not control an increasingly fractious bench. Perhaps the greatest dis- appointment in the high court was Felix Frankfurter, appointed to succeed Benjamin Nathan Cardozo in 1938. Many held high hopes that he would become the intellectual leader of the Court; instead, he proved a divisive figure whose jurisprudential philosophy is all but ignored today. What happened to this man whom Brandeis once called the most useful lawyer in the United States?'4 This article suggests that Frankfurter's failure can be traced in * Professor of History, Virginia Commonwealth University; B.A., 1961, Columbia Univer- sity; Ph.D., 1968, Columbia University; J.D., 1983, University of Virginia. 1. CHARLES WARREN, 1 THE SuPREME COURT IN UNrIED STATES HISTORY 177-82 (rev. ed. 1935). Adams, however, believing Marshall would in fact be a great justice later declared that my gift of John Marshall to the people of the United States was the proudest act of my life. Id. at 178. 2. ALDEN L. TODD, JUSTICE ON TRIAL: THE CASE OF Louis D. BRANDEIS ch. 5 (1964); see also ALPHEUS T. MASON, BRANDEIS: A FREE MAN'S LIFE chs. 30-31 (1946). 3. ALPHEUS T. MASON, HARLAN FIsE STONE: PILLAR OF THE LAW pt. 6 (1956). 4. Letter from L.D. Brandeis to Harold Laski (Nov. 29, 1927), reprinted in BRUCE MUR- PHY, THE BRANDEIs/FRANKFURTER CONNECTION 43 (1982).

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