Powerbrokers

By Hunter R. Clark

THE BRANDEIS/FRANKFURTER CONNECTION:

THE SECRET POLITICAL ACTIVITIES OF TWO

SUPREME COURT JUSTICES by Bruce Allen Murphy Oxford; 482 pages; $18.95

"The doctrine of the separation of I powers," wrote Supreme Court Justice Louis D. Brandeis in Myers vs. United States, "was adopted ... not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was ... to save the people from autocracy." His ardent disciple Felix Frankfurter, "half brother-half son," as Brandeis characterized him, agreed in his personal diary: "When a priest enters a monastery, he must leave ... all sorts of worldly desires behind him. And this court has no excuse for being unless it's a monastery."

But as it happened, Brandeis was a closet autocrat, and Frankfurter was far from monkish in his ambitions. In this startling volume, Bruce Allen Murphy, an assistant professor of political science at Pennsylvania State University, reveals that two of the nation's most revered Justices simultaneously practiced law and politics. Previously unpublished documents show that during his service on the Supreme Court (1916-39), Brandeis paid his protege Frankfurter, then a Harvard law professor, some $50,000 to act as a political lieutenant. Frankfurter's mission: to promote social activist goals that might have been viewed as inappropriate for Brandeis himself to advocate.

In 1927, in a scathing article for the Atlantic Monthly, Frankfurter argued the need for criminal justice reform after Sacco and Vanzetti were convicted and sentenced to death. In 1933 he engineered John Maynard Keynes' open letter to Franklin D. Roosevelt in the New York Times, urging the President to forsake balancing the budget and adopt deficit spending to spark the economy, a position favored by Brandeis.

Moreover, Frankfurter used the Harvard Law Review to lend credibility to New Deal legislation instigated by his mentor. During the '30s, Brandeis met regularly with Thomas G. Corcoran and Benjamin V. Cohen, F.D.R.'s legislative drafting team. According to Murphy, Together, Corcoran and Cohen drafted Brandeis' proposals into viable legislative acts, while simultaneously acting as Frankfurter's eyes and ears in the capital."

Brandeis could also assert his power directly. Murphy unearths a rift that developed early in the New Deal. The Brain Trust, composed of Rexford Tugwell, Raymond Moley and Adolf Berle,posed attacking the Depression with big Government and monopolistic enterprises. This ran contrary to the Brandeis )ias against a strong central Government, Big Business in general, and many of the New Deal's collectivist approaches. "Bigness is always badness," became his familiar refrain. At one point, he threatened "to hold the Government control legislation unconstitutional from now on," unless the Administration reversed the Big Business trend in industry and agriculture. Eventually he recanted, but his threat was taken seriously in the White House.

The Brandeis/Frankfurter connection's influence was not limited to domestic affairs. Brandeis, a leader of the Zionist movement, promoted and helped write the Balfour Declaration of 1917, fostering Jewish settlement of Palestine. Frankfurter, who served on the Supreme Court from 1939 to 1962, was instrumental in putting the War Department under Henry L. Stimson's direction in 1940. He also encouraged and drafted the Lend-Lease agreement with Britain.

These disclosures make The Brandeis/ Frankfurter Connection one of the most controversial books of the year. It will undoubtedly fuel the ongoing debate over the proper role of judges and the appropriate uses of judicial power. "There may be a need to change the public's expectations," says Murphy. "If the public doesn't expect these activities to occur, it will always be disappointed to learn that the court isn't really a monastery, after all." --ByHunterR. Clark

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