Vol. 7 No. 3 (March 1997) pp. 134-136.

HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934 by Robert M. Mennel and Christine L. Compston (Editors). Hanover and London: University Press of New England, 1996. xlii + 302 pp. Cloth $45.00

Reviewed by Ian Mylchreest, Department of History, Monash University.
 

The papers of Justices Oliver Wendell Holmes and Felix Frankfurter have taken an inordinate time to be published. Both men had planned their literary legacies rather meticulously, but their care meant that control of the documents passed to one authorized biographer and then another who struggled to complete the official version of the justices’ lives. The logjam was finally broken in the early 1980s and this volume of their letters is another part of the recent wave of biographies, analytical studies and scholarly editions of their works.

This collection will inevitably be compared with Mark Howe’s monumental editions of Holmes’s correspondence with Sir Frederick Pollock and Harold Laski. Indeed, the editors invite that comparison by following Howe’s editorial methods of silently punctuating the letters, expanding abbreviations for clarity and providing notes explaining allusions to books, people and cases. Physically, this book resembles those earlier collections which have already made Holmes familiar. Here again we see a Malthusian who insisted that "the crowd already has all there is." It is the same Holmes who remained detached from religious and political creeds, but waxed enthusiastic about the common law and the science of legislation; the same judge who politely disdained popular nostrums, but who nonetheless deferred to them. And, of course, we again see the intellectual who wrote constantly to his friends about his reading in history, literature and philosophy.

Whatever the similarities, the differences are much more striking. Holmes and Pollock wrote as equals with a great academic interest in the law. Laski’s relentless intellectual energy constantly sparked Holmes’s philosophical interests, and Laski was unafraid to challenge Holmes’s thinking. The relationship between Holmes and Frankfurter revealed in these letters was, however, quite asymmetrical. The routine greetings sent every year on Holmes’s birthday and the anniversary of his elevation to the Supreme Court have been omitted, but the flavor of deference seeps through when one of Frankfurter’s letters is signed "Happily - one of your boys." (p. 11) His letters often seem perfunctory when they are not simply cloying; very little is revealed about his thinking. Indeed, a footnote appears repeatedly to warn us that a letter of Frankfurter’s is missing, and the editors speculate that Frankfurter may have destroyed many of his own letters.

The imbalance in the relationship may be disappointing, but this correspondence does document a real affection between two legal minds. Holmes had been a member of the Supreme Court for a decade when he met the circle of friends from the House of Truth, the home which Frankfurter shared with some of Washington’s best and brightest bachelors. Frankfurter sought Holmes’s advice when he was about to leave the Wilson administration to accept an appointment at Harvard Law School. Frankfurter had already decided to move to Cambridge, but Holmes warned about the "half life" of the academic cloister which would leave him unfit for the worldly struggle. Frankurter justified his decision at some length, arguing that he would not be a conventional academic, but would bring something akin to the Wisconsin idea of social scientific reform to Harvard Law School. And he was already promising Holmes that he would stay active in worldly affairs citing the "economic clashes of the day" which provided "great nourishment." Holmes encouraged his protege "to try to put what rationality [he could] ¼ into the semirational prejudices which govern the world." (pp. 12, 14 & 20)

These letters are punctuated by a chorus of praise for Holmes’s opinions. Frankfurter routinely celebrated Holmes’s judgments which defended state legislation against the constraints fashioned from expansive readings of Fourteenth Amendment liberty. Holmes dissented in COPPAGE V. KANSAS (1915), for example, asserting that the Constitution did not prevent states from outlawing yellow-dog labor contracts. In both his judgments and private correspondence Holmes reiterated his belief that minimum wage laws and regulating corporations were ineffective, but he took the long historical view that only the inevitable failure of these policies would establish this economic truth for the public. Finding that belief beside his utilitarian view of rights ("I say Law in Books is merely Sibylline leaves of prophecy as to when the public force will be brought to bear on you through the courts. ¼ And a statement of rights is merely part of these prophecies ¼ " (p. 37)), reminds us why Holmes has become a hero to modern critics of the Warren and Burger Courts. The cases that Frankfurter discussed with Holmes also provide an interesting trajectory over two decades. They originally focused on labor legislation, moved to the regulation of commerce and in the last years moved yet again to state taxing power. For the most elite legal circles at least, this suggests how the battleground of substantive due process changed.

Frankfurter’s extant letters very rarely indicate any disagreement with Holmes. He did, however, remind Holmes a few times about his activities in labor reform which seem to have been his main contact with "the world" after he left Washington. In 1915 he asked Holmes’s opinion of an article about industrial arbitration, although every indication had been, of course, that Holmes had little faith in progressive solutions for industrial struggles. In September 1917 Frankfurter began serving as secretary and legal counsel to Wilson’s Mediation Commission, a temporary institution designed to obviate conflict in essential national industries, but they all proved poor models for arbitration. A few years later, Frankfurter volunteered to defend the Amalgamated Clothing Workers of America. He took the case, as he explained to Holmes, to create a new record on which the appellate courts would overturn the prevailing case law on labor injunctions. His plan was foiled, however, when the trial court refused to grant an injunction. In 1921 Frankfurter again drew Holmes’s attention to an editorial in the NEW REPUBLIC which advocated a permanent staff to support unions. Frankfurter went out of his way here to reconcile his contention that the courts had to integrate the new industrial realities into their reasoning with Holmes’s 1894 article, "Privilege, Malice and Intent" which abandoned the traditional objective standard in favor of a standard of actual malice. Frankfurter’s views seem muted especially because so many of his letters are missing, but his best diplomatic efforts did not persuade Holmes that the judiciary had any but a restrained, even minimal, role to play in labor disputes.

Frankfurter took particular "pride" in Holmes’s First Amendment jurisprudence, in no small part because he had tried to shape Holmes’s thinking. With his dissent in ABRAMS V. UNITED STATES (1919), Holmes originated the long process which reoriented the concept of free speech. Two years later Frankfurter cheered Holmes’s "magisterial" dissent when the Court upheld the Post Office’s revocation of the MILWAUKEE LEADER’s mailing privileges because it had criticized the war. Holmes’s denied that the Espionage Act authorized the government to make such content-based choices. (p. 106) This decision echoes modern First Amendment doctrine which precludes content-based restrictions, but Holmes’s dissent relied on his construction of the statute. Despite Holmes’s growing support for unrestricted free speech, he never softened his caustic view of radical ideas. He described his dissent in GITLOW V. NEW YORK (1925), written at the end of the term, as "an expiring kick on the last day in favor of the right to drool on the part of the believers in the proletarian dictatorship." (p. 184) Holmes remained similarly skeptical that Sacco and Vanzetti were anything but robbers, and this despite Frankfurter’s role in publicizing the anarchists’ cause. (p. 217)

These letters offer other interesting personal insights. Frankfurter and Harold Laski had both run foul of the powers that be at Harvard because they appeared to support radicals during the 1919 Red Scare. Laski was forced out and took a job at the London School of Economics, but despite his friends’ plight Holmes could see both sides of the issue. He told Frankfurter that he believed in academic freedom but also warned that "a professor’s conduct may affect the good will of the institution to which he belongs. It may turn aside gifts that otherwise would have come to it or students that it would like to have." What, Holmes went on, if his appearance at a public meeting had "caused a rich old bird to knock out a legacy of a million to this college." It amounted to a choice between silence and resignation. (p. 78) The more things change the more they still seem to stay the same!

A reviewer could continue retailing such interesting morcels for a long time, but readers might as well enjoy the letters for themselves. There are no big surprises in these letters, and the most surprising of the small surprises are probably Holmes’s octogenarian asides on novels he read, or in the case of LADY CHATTERLEY’S LOVER, abandoned. (p. 266) Even when Holmes’s preferred an undistracted bachelor as his secretary or exulted in the intellectual thrill of the challenge to the Virginia Sterilization Statute (pp. 212 & 217), his vigor and candor elsewhere engage us. There are a few typographical errors (pp. 195, 196 & 266), but the editing is generally as good as Howe’s earlier volumes. The only real disappointment is the small glimpse of Frankfurter here, which exaggerates only slightly the enormity of Justice Holmes.


Copyright 1997