THE BRANDEIS/FRANKFURTER CONNECTION contains at once a great historical find and a thoughtful and, at times, brilliant essay on judicial propriety. This book deals superbly with questions not only of a citizen's legitimate expectations for Supreme Court behavior but also of the broader role and hope for the performance of government.
As many may know from the extensive press treatment, Professor Bruce Allen Murphy's book exposes two justices--Louis D. Brandeis and Felix Frankfurter--who could not keep their hands out of Washington politics while they sat on the high court. During separate periods --Brandeis from 1916 to 1939, and Frankfurter from 1939 to 1962--the two men cleverly and oppressively interlaced themselves into the life of the capital, deeply offending the Platonic ideal of the "separation of powers."
In the World War II period alone, from his seat on the Court, Frankfurter "had helped to prepare the nation for its entry into the war, and had secured assistance, both material and monetary for Great Britain. . . . Together with Jean Monnet, he served as a catalyst for the adoption of a mobilization program. . . . Finally, he maneuvered his diplomatic contacts to support the Europe-first priorities. . . . It is impossible to assess how many mundane, day-to-day decisions were influenced by Frankfurter's constant attention to the major actors (including President Roosevelt) and by his genius for helping place allies in key administration posts and then informing, cajoling, directing, and, at times, even commanding them."
The documentation is the true historical find. The book cites some 300 letters that show how, for about 22 years, Justice Brandeis made then Harvard law school professor Frankfurter his paid political lieutenant. Funds from the large Brandeis fortune in the amount of $3,500 a year for 12 of the years Brandeis was on the Court went to Frankfurter's special account. The payment--equivalent to at least $20,000 a year in today's dollars--was to fund special lobbying and writing to bring about reform.
Professor Murphy is brought kicking and screaming to the implications of his discovery. He is a very reluctant muckraker who, after laying out the details, tries in a four-page conclusion to take much of it back, insisting that both the late justices "will survive as giants of twentieth-century America."
Well, not exactly. He has inflicted a substantial wound but somehow says, "For all the ethical problems created by the transfer of money from Brandeis to Frankfurter it cannot be said that Frankfurter used the relationship to line his own pockets." Yes, Murphy has not caught Frankfurter buying women or Senate votes with the money, but after all, Frankfurter did use it to supplement his notoriously low Harvard salary. A payoff is a payoff-- secret money for secret lobbying and other efforts.
Probably to Murphy's credit he treats all this "transfer of money" rather tenderly and doesn't dwell on it. Allow me. A whore may like and believe in his or her work but prostitution is just that, despite the passions one might bring to it. Perhaps there has been too much attention given to Justice Brandeis' violation of judicial propriety with this unseemly money transfer. But what of Frankfurter's academic corruption? Should professors be in the secret pay of government officials? Certainly not. If uncovered today, the situation would create a major academic scandal likely to taint both recipient and donor equally.
On another level, this new information soils the Brandeis-Frankfurter friendship. The only contemporary examples of such a relationship are the unsavory "gifts" of "loans" Nelson Rockefeller used to bestow on his prot,eg,es. Financial ties of this kind are seamy in any form.
The book also proves nicely that bold hypocrisy is not a modern invention. After Brandeis' death in 1941, Frankfurter wrote in the Harvard Law Review, "A man so immersed in affairs as Louis D. Brandeis must have closed the door on many of his interests when he went on the bench."
Or, in 1944, when Frankfurter was asked to comment on the possibility of Roosevelt running for a fourth term, Frankfurter said, "I have an austere and even sacerdotal view of the position of a judge on this Court, and that means I have nothing to say on matters that come within a thousand miles of what may fairly be called politics."
Murphy adds: "A strange response indeed from the man who had helped mastermind FDR's 1940 presidential campaign from his seat on the Court."
But Murphy's focus is much broader than the financial connection and he dwells effectively on the ideas, gossip, information, concepts, strategy, and political goals transmitted to others in Washington and elsewhere by the two justices. They were energy sources; they seemingly were at the center of Washington life, de facto members of friendly administrations. Brandeis had enormous impact on President Woodrow Wilson, particularly regarding World War I; Frankfurter had a large influence on Roosevelt, again especially on FDR's policies before and during World War II.
As the extent of the old boy network is revealed, Murphy also by implication exposes a major weakness in political Washington today. Supreme Court justices are isolated to a fault. President Reagan's counselor Edwin Meese probably could benefit from some private conversations or secret correspondence with the more diligent members of the current court, say Justice William Rehnquist or Lewis Powell. And Rehnquist and Powell could surely do with some insight into the way the executive branch really functions.
Reagan himself and Justice Harry Blackmun, author of the controversial 1973 abortion ruling, might each learn something over a private dinner. The members of the current court need desperately to come down from their citadel, talk with law professors and students, and maybe tour the South Bronx or far Northeast Washington. Reagan, his attorney general, the justices, senators, House members, even journalists and academics ought to spend a weekend locked in a room to thrash out the school busing issues.
The point is a simple one. Washington could use a Brandeis or a Frankfurter to stir the pot. The existence of such meetings and discussions, should they ever occur, should probably be announced to the public. Supreme Court Justices are permitted to read speeches and papers from the other branches of government; they can read books and newspapers. It is poppycock to think that an honest exchange with the real people behind the words could somehow corrupt the Court.
Government has become more of a mess than ever. The parts don't talk to each other very well, if at all. This breakdown accounts in part for the recent failures of the Supreme Court. As widely noted, opinions are frequently splintered--with no majority speaking in a loud, clear voice. Too often the opinions are tuned to the sensibilities of the justices or their law clerks, with justice so and so joining the opinion in parts 1, 3 and 7, concurring in the result but agreeing with another justice's dissent in part 2. From this comes chaos. Few can tell what the Court is saying. And those who have to govern abandon all hope for clarity and simplicity. In practicing judicial purity, the Court has become the monastery that Frankfurter imagined but never believed in.