THE BRANDEIS/FRANKFURTER CONNECTION: The Secret Political Activities of Two Supreme Court Justices by Bruce Allen Murphy
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THE BRANDEIS/FRANKFURTER CONNECTION: The Secret Political Activities of Two Supreme Court Justices

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The recent front-page news that Professor Murphy (Political Science, Penn State) had discovered a hitherto ""secret"" collaboration between Brandeis and Frankfurter was, at the least, misleading. As Murphy himself acknowledges (but only in a footnote), the fact that Brandeis, a millionaire, supplied Frankfurter, whom he regarded as ""a son,"" with money for their ""joint adventure"" (and also helped defray his wife's medical expenses), has appeared in books on both men; it has been known, too, that their joint endeavors has tangible issue: as Michael E. Parrish puts it in an upcoming Frankfurter biography (to be reviewed in the next issue), ""These activities included everything from researching an article for The New Republic to preparing legal briefs for the Consumers League."" For Parrish, that's it. For Murphy, the financial arrangement ""was designed to free Brandeis from the shackles of remaining nonpolitical while on the bench""; to enable him ""to propose his programs surreptitiously. . .[and] to get the necessary information on a topic from a reliable source."" Many of Murphy's specific allegations are impossible to assess because he supplies no substantiating evidence other than a footnote reference to an archival letter; and his snide manner of writing about both men does not inspire trust (""Still, masterminding the lobbying effort through such a political minefield was not an impossible task for Louis Brandeis""). But in one respect the question of whether Murphy has made too much of the Brandeis/Frankfurter connection, or others have made too little, is answered in his favor: Brandeis, on the Court, did present ideas to Frankfurter, at Harvard Law; Frankfurter did have his students research them and write them up; some of these ideas did subsequently become legislation; some of that legislation did ultimately go to the Court for review--and both the legislation and the Court decisions, it can reasonably be argued, owed something to the law review articles (and others) that Brandeis and Frankfurter inspired. Whether that amounts to a de facto conspiracy, in the absence of the historical context, is something else. The remaining sections detail: the early New Deal Brandeis/Frankfurter/FDR linkage; Frankfurter vs. the Brain Trusters (a split Murphy minimizes--on the basis of FF/Moley contacts); Brandeis' disaffection from New Deal ""bigness"" and direct intervention; the Brandeis/Frankfurter chill over FDR's court-packing plan; and Frankfurter, on the Bench, as more ""aggressively political"" by nature and circumstance. Much of this is derived from those ever-present, often-unquoted letters, and its general tenor is in any case familiar; Suspect scholarship played as an exposÉ--but likely, on both scores, to stir up a fuss.

Pub Date: March 25th, 1982
Publisher: Oxford Univ. Press