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Holmes and Frankfurter: Their Correspondence, 1912-1934.

From 1912 to 1934, Felix Frankfurter spread the gospel that justice Oliver Wendell Holmes was the champion of liberal causes. Frankfurter became one of the aging justice's closest friends, and he chose law clerks for Holmes. Holmes asked Frankfurter to burn his letters after his death, and he entrusted Frankfurter with the task of writing his official biography.

After Holmes's death, as one of Franklin Delano Roosevelt's Supreme Court appointees, Frankfurter helped transform Holmes's dissents into the law of the land. But Frankfurter never burned the letters or wrote the biography. And when Frankfurter later forced schoolchildren to salute the flag in violation of their faith, critics began to ask whether Frankfurter was a true disciple or the anti-Holmes. Holmes's biographers also challenged the Frankfurter "myth" that Holmes was a liberal.

Holmes &Frankfurter: Their Correspondence, 1912-1934 publishes the Holmes-Frankfurter letters for the first time. During this period, Holmes wrote some of his best-known opinions, great dissents that shaped First Amendment law, announced the exclusionary rule, and anticipated the Erie doctrine. During this period, he also penned the notorious opinion upholding forced sterilization.

During these same years, Frankfurter was teaching law at Harvard and championing progressive causes, including his courageous support for Italian-born anarchists Nicola Sacco and Bartolomeo Vanzetti. The two were convicted and sentenced to death for a robbery-murder during the height of anti-radical furor. Frankfurter's careful evaluation of the weak case against them helped fuel a worldwide protest but did not prevent their execution in 1927.

Handsomely printed, with an introduction balancing recent scholarship and with notes identifying most references, this book is a substantive addition to the existing collection of works about Holmes and Frankfurter. It is ably edited by Robert M. Mennel, a history professor at the University of New Hampshire, and Christine L. Compston, past director of the National History Education Network and History Teaching Alliance.

The letters document important activities in the authors' lives. But more important, the correspondence shows how Holmes, a Boston Brahmin, and Frankfurter, an Austrian Jewish immigrant, forged one of the great friendships of the 20th century.

Truth in advertising, however, requires an admission that the Holmes-Frankfurter correspondence does not rank among the world's best. It is not even Holmes's best.

Because the writers did not depend on letters for regular communication, their written exchanges lack continuity and often ignore the major issues of the day. For example, the two made no mention of the declaration of World War I. To make matters worse, someone, probably Frankfurter himself, destroyed many of his own letters. The editors, too, have sinned. They omitted and abridged letters without clearly indicating what was omitted or why.

Causes for the lack of spark in the letters go deeper. Too often, the writers failed to connect. Frankfurter's extravagant expressions of filial veneration decreased over time, but he remained docile. Even when Holmes threw down the gauntlet, suggesting the jury properly convicted Sacco and Vanzetti, Frankfurter avoided conflict, just as he ignored Holmes's cynical barbs. While encouraging Holmes to write about recent decisions, Frankfurter attempted to provide moral support for the legally isolated Holmes. But Holmes wanted diversion from law and yearned to exercise his nonlegal learning in letters.

Lawyers will follow Holmes's remarks about judging with particular interest. He was repeatedly vexed when forced to cut or soften language to placate other justices. Shortly before retiring, he confessed he had trouble understanding the oral arguments "but the dear [Louis] Brandeis helps me to understand."

More often, the letters illuminate the eternal truths of the human condition--from bouts with the dentist to reflections on the limits of human reason. As the years passed, Holmes expressed increasing concern about whether it was fair to hire clerks who might find themselves unemployed midyear due to his death.

The correspondence recalls a time when educated readers eagerly awaited the publication of Supreme Court decisions and when justices read petitions for certiorari, wrote their own opinions, and considered it bad form to criticize the opinion of another justice. Even those who were in the minority with their opinions viewed the future of the law with optimism. This book is required reading for those interested in Holmes and Frankfurter and is highly recommended for those interested in the history of the Supreme Court.

Edited by Robert M. Mennel and Christine L. Compston University Press of New England 23 South Main St. Hanouer, NH03755 344 pp., $45
COPYRIGHT 1997 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Hoffheimer, Michael H.
Publication:Trial
Article Type:Book Review
Date:Oct 1, 1997
Words:733
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