| Original Full Text | Touro Law Review Volume 39 Number 3 Article 10 2024 Mediating Pluralism: Felix Frankfurter’s Commitment to Majoritarian Democracy Dalia Tsuk Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Judges Commons, and the Supreme Court of the United States Commons Recommended Citation Tsuk, Dalia (2024) "Mediating Pluralism: Felix Frankfurter’s Commitment to Majoritarian Democracy," Touro Law Review: Vol. 39: No. 3, Article 10. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/10 This Symposium: The Life, Work and Legacy of Felix Frankfurter is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact lross@tourolaw.edu. 871 MEDIATING PLURALISM: FELIX FRANKFURTER’S COMMITMENT TO MAJORITARIAN DEMOCRACY Dalia Tsuk* “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution . . . [A]s judges, we are neither Jew nor Gentile, neither Catho-lic nor agnostic. We owe equal attachment to the Con-stitution and are equally bound by our judicial obliga-tions whether we derive our citizenship from the earliest or the latest immigrants to these shores.”1 ABSTRACT This Article explores parallels between Frankfurter’s faith in democracy, that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the Ameri-can polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. The Article argues that Frankfurter’s commitment to judicial restraint was his means of mediating the pluralist dilemma, that is, the need to ac-commodate within the law diverse cultures and values; just as Felix * Professor of Law and the John Marshall Harlan Dean’s Research Professor of Law, The George Washington University Law School. I am grateful to Rodger Citron and Touro Law Review for inviting me to participate in this symposium and to Rodger Citron and participants in faculty workshops at Touro University Jacob D. Fuchsberg Law Center and The George Washington University Law School for their comments on earlier drafts. The George Washington University Summer Research Fund pro-vided financial support. All errors are mine. 1 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646-47 (1943) (Frankfurter, J., dissenting). 1Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024872 TOURO LAW REVIEW Vol. 39 Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic particularism, Justice Frankfurter sought to shield the Court from having to balance the competing values, identities, and view-points that characterized modern American society. Evading the dif-ficult task of choosing between competing interests and values, Frank-furter’s decisions often became an apology for the status quo, that is, the social position of the insider and the political position of the ma-jority. As the Article further suggests, in the 1950s and 1960s, Frank-furter’s students and clerks reinvigorated his vision into an ideal of procedural democracy. Frankfurter can thus be described as linking early-twentieth century Progressivism with the postwar ideal of proce-dural democracy; in different reiterations this model of democracy has come to dominate American legal theory in the second part of the twentieth century. At the same time, Frankfurter’s vision may also be described as giving rise to a particular strand of Jewish legal thought. Historians often emphasize Jewish-American jurists’ celebration of pluralism and their role in the midcentury fight for civil rights and lib-erties. In these narratives, Frankfurter’s judicial record is deemed an anomaly. But, as this Article concludes, advocates of procedural de-mocracy were often first- and second-generation Jewish Americans who were both committed to the protection of civil rights and liberties and concerned about calling attention to ethnic differences. I hope this Article encourages further explorations of the relationship among the ideal of procedural democracy, Progressivism, and Jewish-American history. 2Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 873 I. INTRODUCTION On January 9, 1942, the West Virginia Board of Education adopted a resolution requiring all public school students and teachers to salute the flag while reciting the Pledge of Allegiance.2 Marie and Gathie Barnette, eight- and nine-year-old Jehovah’s Witnesses, were instructed by their parents not to participate and, as a result, were ex-pelled from school.3 The Barnettes sued for an “injunction to restrain enforcement of these laws and regulations against Jehovah’s Wit-nesses,” who have deemed the salute and Pledge the equivalent of for-bidden idol worship.4 Three years earlier, Justice Felix Frankfurter wrote the U.S. Supreme Court’s opinion in Minersville School District v. Gobitis,5 which upheld a similar expulsion of students, who were also Jehovah’s Witnesses, for refusing to salute the American flag;6 seven justices joined him.7 In Barnette,8 six justices voted to overrule Gobitis; Frankfurter wrote the only dissent.9 With an extraordinary and uncharacteristic nod to his Jewish heritage, followed by a subtle reference to Paul’s letter to the Galatians,10 Frankfurter defended the West Virginia Board of Education’s resolution.11 As he put it, justices 2 Id. at 626 (majority opinion). 3 West Virginia State Board of Education v. Barnette (1943), NAT’L CONST. CTR., https://constitutioncenter.org/the-constitution/supreme-court-case-library/west-vir-ginia-board-of-education-v-barnette (last visited Mar. 4, 2024); A Stand of Courage and Conscience Established Supreme Court Precedent 75 Years Ago, JEHOVAH’S WITNESSES (June 14, 2018), https://www.jw.org/en/news/region/united-states/bar-nett-anniversary-20180614/. 4 Barnette, 319 U.S. at 629. 5 310 U.S. 586 (1940). 6 Id. 7 Id. 8 Barnette, 319 U.S. at 624. 9 Id. at 646 (Frankfurter, J., dissenting). 10 Galatians 3:28 (“there is neither Jew nor Greek, there is neither slave nor free, there is no male and female, for you are all one in Christ Jesus”); see also Paul Finkelman, Felix Frankfurter: The Jewish Justice Who Lost Track of Justice and His Heritage, ASS’N FOR JEWISH STUD. (Fall 2022), https://associationforjewishstud-ies.org/justice-issue/in-justice-in-history-the-jewish-justice-who-lost-track-of-jus-tice-and-his-heritage#endnote-1 (arguing that Frankfurter “ironically paraphras[ed] Paul’s letter to the Galatians”). According to Finkelman, “given Frankfurter’s in-credible education (and the fact that he studied classics at City College of New York), it is not unreasonable to assume that this was deliberate.” Id. 11 Barnette, 319 U.S. at 647 (Frankfurter, J., dissenting). 3Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024874 TOURO LAW REVIEW Vol. 39 had to exercise judicial restraint irrespective of their personal convic-tions.12 Further explaining his decision, Frankfurter wrote: “the ‘lib-erty’ secured by the Due Process Clause” did not grant the Court “au-thority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the pro-motion of good citizenship, by employment of the means here cho-sen.”13 Many legal scholars and historians have found Frankfurter’s position in Gobitis and Barnette perplexing, a puzzlement confounded by Frankfurter’s support for the incarceration of Japanese Americans in Korematsu v. United States14 and his defense of Sunday blue laws, which “proscribe[d] all labor, business and other commercial activities on Sunday,” despite the economic harm such laws imposed, for exam-ple, on Orthodox Jews forced to close their businesses on both Satur-day and Sunday.15 As many have since asked: how could a first-gen-eration Jewish American, whose uncle was apprehended in Vienna because he was Jewish, whose people the Nazis were murdering in Eu-rope, who himself had endured antisemitism, not defend minority groups, especially religious minorities, against persecution?16 More broadly, opinions about Frankfurter’s legacy vary. In an article about Jewish judges, Jeffrey Morris argued that Frankfurter’s “philosophy of judicial restraint” was “rooted in a deep faith in democ-racy . . . as well as in the belief that the Supreme Court had transgressed its proper function in the American system during the early decades of the twentieth century.”17 Brad Snyder has labeled Frankfurter “a dem-ocrat,” stressing the Justice’s steadfast trust in democratic institutions, namely the legislative and executive branches, and his almost stubborn 12 Id. 13 Id. 14 323 U.S. 214, 225 (1944) (Frankfurter, J., concurring). 15 McGowan v. Maryland, 366 U.S. 420, 422 (1961); see also Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 630-32 (1961). 16 Finkelman, supra note 10 (commenting that “although Frankfurter’s uncle was incarcerated in Vienna for being Jewish, Frankfurter justified the persecution of members of a minority faith in the United States on the grounds that forcing children to violate their religion . . . would instill patriotism in them”). 17 Jeffrey B. Morris, The American Jewish Judge: An Appraisal on the Occasion of the Bicentennial, 38 JEWISH SOC. STUD. 195, 209 (1976). 4Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 875 adherence to judicial restraint.18 Morton Horwitz, in turn, considered Frankfurter a conservative,19 an antithesis to other early- and midcen-tury Jewish jurists who, according to Horwitz, combined “a pre-mod-ern, prophetic, and essentialist moralistic passion for social justice with critical modernist sense of socially constructed character of social cat-egories and institutions.”20 Robert Burt pointedly noted that, having assimilated, Frankfurter “derived a mandate zealously to protect the values and status of insiders, such as he had become,”21 and Paul Finkelman charged that Frankfurter lost track of “justice and his herit-age.”22 Seeking to make sense of such conflicting evaluations, this Ar-ticle explores parallels between Frankfurter’s “faith in democracy,”23 that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the American polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. Frankfurter believed that assimilation, that is, the rejection of ethnic particularities and the embrace of the dominant American culture, was the first step toward achieving solidarity and the improvement of social and eco-nomic conditions.24 Frankfurter’s vision of democracy was similar— 18 BRAD SNYDER, DEMOCRATIC JUSTICE: FELIX FRANKFURTER, THE SUPREME COURT, AND THE MAKING OF THE LIBERAL ESTABLISHMENT (2022). 19 MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 56 (1998) (noting that Frankfurter led “the conservative wing of the Supreme Court”); see also DAVID G. DALIN, JEWISH JUSTICES OF THE SUPREME COURT: FROM BRANDEIS TO KAGAN 159 (2017) (describing Frankfurter as the Court’s “foremost judicial conservative”). 20 Morton J. Horwitz, Jews and Legal Realism, in JEWS AND THE LAW 309, 314-16 (Ari Mermelstein et al. eds., 2014). 21 ROBERT A. BURT, TWO JEWISH JUSTICES: OUTCASTS IN THE PROMISED LAND 46 (1988). 22 See generally Finkelman, supra note 10. 23 Philip Kurland, Constitutional Faiths: Felix Frankfurter, Hugo Black, and the Process of Judicial Decision Making (book review), 2 CONSTITUTIONAL COMMENTARY 191, 192 (1985). 24 The word “assimilation” has negative connotations and troubling history, given that it was often forced on cultural, religious, and ethnic minorities. See, e.g., Russell A. Kazal, Revisiting Assimilation: The Rise, Fall, and Reappraisal of a Concept in American Ethnic History, 100 AM. HIST. REV. 437, 440 (1995). It is thus important to note that the belief that historically marginalized groups should strive to assimilate into and embrace the dominant culture was prevalent at least through the first half of 5Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024876 TOURO LAW REVIEW Vol. 39 just as he prioritized majoritarian culture, his jurisprudence of judicial restraint privileged majoritarian norms. Throughout his career as a lawyer, scholar, and justice, Frankfurter stalwartly held on to this ma-joritarian vision of democracy, even in midcentury when his progres-sive brethren embraced a conception of democracy that focused on the U.S. Supreme Court’s role in protecting members of different cultural, religious, and ethnic groups against discrimination.25 Legal scholars and historians have examined the relationship between Frankfurter’s social vision and his jurisprudence. Richard Danzig argued that Frankfurter’s jurisprudence was premised on a con-cept of rationality, and that “notions of rationality and assimilation were basic to his conception of democracy.”26 Robert Burt evaluated how Frankfurter’s experiences of antisemitism and immigration influ-enced his decisions.27 And Nomi Stolzenberg astutely demonstrated how “Frankfurter[’s] . . . understanding of the problem of judicial re-view was informed in good measure by [his] shared view of the ac-ceptability, indeed the positive value, of using the state’s authority over education as a tool of cultural assimilation.”28 Building upon these analyses, this Article situates Frankfurter within the early twentieth-century debates about the relationship be-tween the individual and the group in American society. Amidst a scholarly revolt against moral and legal absolutism and growing skep-ticism toward universal social norms and values, Progressive jurists (and later legal realists and postwar jurists) struggled with the the twentieth century; indeed, support for and advocacy of assimilation often came from members of underprivileged communities. See, e.g., Kenneth W. Mack, Re-thinking Civil Rights Lawyering and Politics in the Era before Brown, 115 YALE L.J. 256, 280 (2005) (discussing the concept of race uplift that Black lawyers adopted at the turn of the twentieth century. According to Mack, “race uplift affirmed both the rights and duties of citizenship, and based its equality claims on the argument that African-Americans were exhibiting the type of civic responsibility required of those who deserved equal civil rights”); David Cole, Strategies of Difference: Litigating for Women’s Rights in a Man’s World, 2 L. & INEQ. 33, 55 (1984) (describing Ruth Bader Ginsburg’s strategy for “assimilating” women into “a man’s world”). 25 See discussion infra Section III.B. 26 Richard Danzig, Justice Frankfurter’s Opinions in the Flag Salute Cases: Blending Logic and Psychologic in Constitutional Decisionmaking, 36 STAN. L. REV. 675, 698 (1984). 27 BURT, supra note 21. 28 Nomi M. Stolzenberg, Un-Covering the Tradition of Jewish “Dissimilation”: Frankfurter, Bickel, and Cover Judicial Review, 3 S. CAL. INTERDISC. L.J. 809, 814 (1993). 6Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 877 following modernist dilemma: how should law respond to or accom-modate the plurality of interests, cultures, values, and opinions that characterize modern American society? I have previously explored how, in search of a way out of this pluralist dilemma, some jurists con-tinued to hold on to certain absolute norms, loosely described as pro-moting social justice; others stressed the need to develop a conception of group rights to substantiate the liberal commitment to individual rights; still others overcame the uncertainties produced by pluralism and skepticism by putting their trust in empiricism as an objective way to learn about society and promote social change.29 This Article sug-gests that Frankfurter’s solution was to reject cultural pluralism and embrace majoritarian culture and norms as universal. And while over the course of the twentieth century, jurists have responded to changing social and cultural terrains by finding new ways out of the pluralist dilemma, Frankfurter, for the most part, held on to majoritarianism and its concomitant jurisprudence of judicial restraint.30 Why such a strong commitment? As this Article suggests, for Frankfurter, mediating the modernist dilemma was an intellectual as well as a personal endeavor.31 Embracing both majoritarian culture and judicial restraint allowed Frankfurter to evade pluralism. Yearning perhaps to break away from the legacy (and memories) of antisemi-tism, Frankfurter evaded the possibility of cultural pluralism by privi-leging one set of cultural values over all others;32 in turn, his judicial 29 Dalia Tsuk Mitchell, Transformations: Pluralism, Individualism, and Democ-racy, in TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF PROFESSOR MORTON J. HORWITZ 185, 186-89 (Daniel W. Hamilton & Alfred L. Bro-phy eds., 2008). 30 See discussion infra Section III.B. 31 See Jason Schulman, The Limits of Liberalism: A Constitutional Reconsidera-tion of American Jewish Politics 6 (2014) (Ph.D. dissertation) (on file with the au-thor) (noting that “[f]or American Jews, as part of their historical experience in mo-dernity, the relationship between the individual and the group in society has been a constant negotiation”). 32 In her examination of Frankfurter’s decisions in the flag-salute cases, Nomi Stolzenberg carefully distinguished between “rejecting parochial identities [that] re-sults in the transcendence of all particular cultural allegiances—the cosmopolitan ideal” and assimilation that “merely leads to the replacement of subgroup affiliations with allegiance to the culture of a particular nation-state.” Stolzenberg, supra note 28, at 814-15. In this Article, I suggest that Frankfurter was an assimilationist in the latter sense, wishing immigrants to embrace the dominant American culture. Russell Kazal used the term “Anglo-conformity,” as distinguished from “melting pot,” to describe this allegiance to the dominant culture. Kazal, supra note 24, at 442 (noting 7Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024878 TOURO LAW REVIEW Vol. 39 approach removed the judiciary, ironically the branch empowered to interpret the Constitution, from participating in deliberations over val-ues.33 Put differently, just as Felix Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic particularism, Justice Frankfurter sought to shield the Court from having to balance compet-ing values, viewpoints, and identities. Evading the difficult task of choosing between competing interests and values, Frankfurter’s juris-prudence of judicial restraint rapidly became an apology for the status quo, that is, the social position of the insider and the political position of the majority. Part II of this Article, Identity and Jurisprudence at A Cen-tury’s Turn, recounts Frankfurter’s integration into American society. As I suggest, many first- and second-generation Jewish Americans shared Frankfurter’s assimilationist hopes (albeit to different degrees of intensity). Informed by their experiences of persecution and poverty in Europe and thus concerned about appearing to dwell on ethnic par-ticularities, Jewish Americans gravitated toward Progressive goals, namely social and economic equality, as universal solutions to the dif-ferent American experiences.34 While a student at Harvard Law School, Frankfurter’s embrace of such Progressive goals morphed into a faith in majoritarian democracy.35 Again, he was not alone. Many Progressive jurists, who were troubled by the U.S. Supreme Court’s usage of the Due Process Clause of the Fourteenth Amendment to strike down social and economic legislation (i.e., maximum hours and minimum wage laws), described electoral processes as the foundation of democratic legitimacy and called on judges and justices to exercise judicial restraint when reviewing legislation so as not to overturn that “[i]deas of Anglo-conformity ‘demanded the complete renunciation of the im-migrant’s ancestral culture in favor of the behavior and values of the Anglo-Saxon core group,’ [while] [m]elting pot concepts foresaw ‘a biological merger of the An-glo-Saxon peoples with other immigrant groups and a blending of their respective cultures into a new indigenous American type’”). 33 But see Susan D. Carle, The Failed Idea of Judicial Restraint: A Brief Intellec-tual History, L & SOC. INQUIRY 1, 2 (2023) (noting that “one can be in favor of judi-cial restraint and judicial supremacy and vice versa; there is no necessary relationship between the two ideas although proponents of judicial restraint sometimes are also critics of judicial supremacy”). 34 IRVING HOWE & KENNETH LIBO, HOW WE LIVED: A DOCUMENTARY HISTORY OF IMMIGRANT JEWS IN AMERICA 1880-1940, at 161, 174 (1979). 35 See discussion infra Section II.B. 8Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 879 decisions of democratically elected officials.36 As Brad Snyder writes, this became Frankfurter’s lifelong vision.37 The election of Franklin D. Roosevelt and the passage of his New Deal policies helped bring many progressive reforms to fruition. In the 1940s, with totalitarianism in Europe and a greater realization of the impact of racism, antisemitism, and nativism in the United States, jurists’ attention began shifting from universal social and economic citizenship to the rights of historically underprivileged groups, most significantly religious minorities and Black Americans.38 Gradually, the liberal wing of the U.S. Supreme Court came to view the protection of minority interests from majoritarian power as the cornerstone of democratic legitimacy.39 Concerned about legislators promoting anti-civil rights legislation, jurists turned to the U.S. Supreme Court to strike down such laws as unconstitutional.40 Collectively, these jurists described the Court as primarily responsible for defending members of diverse groups against the tyranny of the majority41 and turned the pro-tection of minority groups into the foundation of the American demo-cratic ideal.42 It was the Court’s role to balance majoritarian power to protect the plurality of particular cultures, values, and opinions that characterized modern American society.43 As Part III of this Article, The Midcentury Civil Rights Chal-lenge, explores, it was in this intellectual milieu that Frankfurter’s 36 See, e.g., Carle, supra note 33, at 9 (describing Judge Learned Hand’s argument “that legislatures, not courts, were best able to ‘experiment’ with new Progressive-era ideas; courts were biased, supported the wealthy over the poor, and relied on abstract theory rather than scientific fact”). See also infra discussion in Section II.B. 37 SNYDER, supra note 18, at 8. 38 See, e.g., ALAN BRINKLEY, LIBERALISM AND ITS DISCONTENTS 97-102 (1998). 39 See Barnette, 319 U.S. at 644 (Black & Douglas, JJ., concurring) (“Decision as to the constitutionality of particular laws which strike at the substance of religious tenets and practices must be made by this Court. The duty is a solemn one . . . laws must, to be consistent with the First Amendment, permit the widest toleration of con-flicting viewpoints consistent with a society of free men. Neither our domestic tran-quility in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual con-demnation.”). 40 See, e.g., HORWITZ, supra note 19, at 79. 41 Id. 42 Id. (“The Warren Court recognized not only that representation of minorities was an integral part of democracy but also that truly effective representation required that all people be guaranteed dignity and worth.”). 43 Id. 9Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024880 TOURO LAW REVIEW Vol. 39 steadfast commitment to judicial restraint and his refusal to strike down legislation or executive actions even when they disadvantaged different religious and cultural groups appeared to diverge from his earlier commitment to Progressivism. Focusing on the flag-salute cases, I illustrate how Frankfurter held onto the (classical liberal) belief that a strict separation existed between the private and public realms and that pluralism belonged in the former, not the latter. As I suggest, a jurisprudence of judicial restraint allowed Frankfurter not only to evade explicitly addressing the plurality of interests that characterized modern American society but also to repeatedly demonstrate his com-mitment to majoritarian norms and culture. Rather than viewing the flag-salute and similar cases as addressing a conflict between particu-lar values and majoritarian norms, Frankfurter carefully reframed these cases as involving the appropriate scope of judicial review, thus cau-tiously sidestepping a conflict that was, especially in view of Nazism in Europe, too personal.44 In the 1950s and 1960s, Frankfurter’s students and clerks rein-vigorated his conception of democracy.45 Frankfurter’s majoritarian-ism can thus be described as linking early twentieth-century Progres-sivism with the postwar ideal of procedural democracy;46 in different 44 According to Joseph Lash, such sidestepping “uncoupled [Frankfurter] from the locomotive of history.” Joseph P. Lash, A Brahmin of the Law: A Biographical Es-say, in FROM THE DIARIES OF FELIX FRANKFURTER 72-73 (1975). 45 See, e.g., HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959); ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS (1978). See also GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY’S END 42 (noting that “the progressive strand of legal realism remained active in legal studies, but it became largely the theory of the legislative process as legal process scholars of the 1950s and 1960s developed new conceptual theories based on the values of principle and con-sistency to explain how judicial law making could be consistent in a constitutional democracy that allocated law making authority to the legislature”). 46 On the concept of procedural democracy, see Morton J. Horwitz, The Constitu-tion of Change: Legal Fundamentality without Fundamentalism, 107 HARV. L. REV. 30, 62-64 (1993) (suggesting that proponents of procedural democracy view “politi-cal equality . . . at most, [as] the only substantive commitment to democratic theory required”; as such, procedural democracy has “nothing to say about the protection of minorities. . . . and judicial review [is] characterized negatively as ‘counter-majori-tarian’”). On the alternative—substantive democracy—see id. at 63 (explaining that for proponents of a substantive conception of democracy, “democracy [is] not . . . some mechanical and undigestible version of ‘the majority must always win,’ but . . . a multilayered system of public values”). 10Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 881 reiterations, the latter has dominated American legal theory in the sec-ond half of the twentieth century.47 At the same time, Frankfurter’s vision may also be described as giving rise to a particular strand of Jewish-American legal thought. Historians have emphasized Jewish-American jurists’ celebration of pluralism and their role in the midcen-tury fight for civil rights and liberties. In these narratives, Frankfur-ter’s judicial record on civil liberties is deemed an anomaly. But, as this Article concludes, Frankfurter was not alone in his rejection of particularism and his reluctance to join in the growing emphasis on ethnic and cultural diversity that characterized American discourse in the second half of the twentieth century.48 While committed to the protection of civil rights and liberties, Jewish-American jurists were often concerned about calling attention to ethnic differences. Many advocates of a procedural conception of democracy in the 1950s and 1960s were first- and second-generation Jewish Americans. I hope this Article encourages future explorations of the relationship among Pro-gressivism, Jewish-American history, and the ideal of procedural de-mocracy. II. IDENTITY AND JURISPRUDENCE AT A CENTURY’S TURN To uncover the origins of Frankfurter’s commitment to majori-tarianism, this Part II recounts Frankfurter’s formative experiences as a first-generation Jewish American. I argue that Frankfurter’s path fol-lowed that of other Jewish immigrants whose families settled in New York City. What distinguished Frankfurter, and to his mind ensured his success, was his unwavering desire to shed relics of his religion and birth culture and embrace American culture. Once a lawyer, this com-mitment became intertwined with his belief that in a diverse demo-cratic society, the elected legislative and executive branches were re-sponsible for alleviating social and economic conditions and that the judiciary should exercise caution when reviewing their actions. A 47 See Brad Snyder, The Former Clerks Who Nearly Killed Judicial Restraint, 89 WIS. L. REV. 2129, 2131 (2014) (noting that “[d]emocratic constitutional theory, ad-vocated by Larry Kramer, Robert Post, Pam Karlan, and others, began to look a lot like legal process theory of the 1950s and 1960s”). 48 See Murray Friedman, Opening the Discussion of American Jewish Political Conservatism, 87 AM. JEWISH HIST. 101, 101 (1999) (noting that while it is “a truism that American Jews are prototypical liberals,” it is still true that “a significant, con-servative, Jewish, political tradition indeed exists”). 11Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024882 TOURO LAW REVIEW Vol. 39 wish to assimilate into the dominant culture became a commitment to majoritarian rule. As I further argue, Frankfurter’s views fit Progres-sive politics and helped mark Frankfurter, before his appointment to the U.S. Supreme Court, as a Progressive and liberal lawyer. A. Di Goldene Medina Felix Frankfurter’s was an immigration success story. Born in Vienna on November 15, 188249 (“the third son in a family of six chil-dren”50), his family immigrated to the United States when he was eleven, settling in New York City’s East Village, “a thriving German neighborhood with Italian and Chinese immigrants living nearby.”51 The Lower East Side, where “Eastern European Jewish immigrants crowded into tenement houses” was only a few blocks away.52 As German-speaking Jews, the Frankfurters were deemed “better off, so-ciologically and geographically, than their Russian and Eastern Euro-pean Jewish counterparts.”53 Despite different backgrounds and experiences, German and Eastern European Jews alike shared a vision of the United States as “the golden land” (di goldene medina). Having come to America in search of a promised land, seeking to leave behind a history of segre-gation and discrimination, Jewish immigrants associated emigration to the United States with “biblical narratives of flight from oppression and the coming of the Messiah.”54 Even as Frankfurter’s family con-tinued to struggle to make ends meet (his father “peddled door to door” selling linen55), in the golden land and the promised city, their children could dream of assimilation and success.56 49 SNYDER, supra note 18, at 10. 50 H.N. HIRSCH, THE ENIGMA OF FELIX FRANKFURTER 12 (1981). 51 SNYDER, supra note 18, at 12. 52 Id. 53 Id. 54 HADASSA KOSAK, CULTURES OF OPPOSITION: JEWISH IMMIGRANT WORKERS, NEW YORK CITY, 1881-1905, at 37 (2000). 55 HIRSCH, supra note 50, at 13. 56 HOWE & LIBO, supra note 34, at 17-26. On the immigrants’ vision of New York City as the Promised City, see Selma C. Berrol, Education and Economic Mobility: The Jewish Experience in New York City, 1880-1920, in Jeffrey S. Gurock ed., EAST EUROPEAN JEWS IN AMERICA, 1880-1920: IMMIGRATION AND ADAPTATION 983 (1998). 12Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 883 Frankfurter was eager to assimilate, embracing the plans that many American reformers had for immigrants at the turn of the twen-tieth century. As millions of immigrants, most of them from poor east-ern and southern European towns, poured into the United States, social workers and educators sought to Americanize them—to help immi-grants remold their behavior in accordance with the values of main-stream America. German Jews, many of whom were often already as-similated and embarrassed by their ethnic brethren, whom they viewed as “uncouth, barbaric, ill-mannered, [and] fanatical,” put money and effort into helping transform Eastern European Jews into respectable American citizens.57 Advocates of assimilation urged immigrants to divest themselves of every vestige of their native culture and embrace the presumably homogeneous American culture.58 Some Jewish reformers believed that immigrants should hold on to their unique cultures. Most notably, Horace Kallen in his De-mocracy Versus the Melting Pot, used a metaphor of “multiplicity in unity” to argue that America ought to remain a nation composed of many cultural or ethnic nations and to urge harmonious cooperation between different cultures.59 Seeking to demonstrate that “Jewish dis-tinctiveness could be a legitimate contribution to American national-ity,”60 Kallen compared American society to an orchestra, with “each ethnic group . . . the natural instrument, its temper and culture . . . its theme and melody and the harmony and dissonances and discords of them all . . . the symphony of civilization.”61 57 HOWE & LIBO, supra note 34, at 55; James R. Barrett, Americanization from the Bottom Up: Immigration and the Remaking of the Working Class in the United States, 1880-1930, 78 J. OF AM. HIST. 997 (1992); KOSAK, supra note 54, at 11, 92-93, 98. 58 WERNER SOLLORS, BEYOND ETHNICITY: CONSENT AND DESCENT IN AMERICAN CULTURE 66, 97 (1986). 59 Id. Horace M. Kallen, Democracy Versus the Melting-Pot, reprinted in CULTURE AND DEMOCRACY IN THE UNITED STATES 125 (1924) (originally published in THE NATION, Feb. 18 and 25, 1915). On Horace Kallen’s cultural pluralism, see David A. Hollinger, Ethnic Diversity, Cosmopolitanism and the Emergence of the American Liberal Intelligentsia, 27 AM. Q. 142 (1975); Elmer N. Lear, On the Unity of the Kallen Perspective, in Milton R. Konvitz ed., THE LEGACY OF HORACE M. KALLEN 116 (1987); Sidney Ratner, Horace M. Kallen and Cultural Pluralism, in Milton R. Konvitz ed., THE LEGACY OF HORACE M. KALLEN, 50 (1987). 60 JEROLD S. AUERBACH, RABBIS AND LAWYERS: THE JOURNEY FROM TORAH TO CONSTITUTION 152 (1990). 61 Kallen, supra note 59. Kallen, whose family immigrated to the United States from Germany when he was five and whose father was a rabbi in Boston, wanted to 13Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024884 TOURO LAW REVIEW Vol. 39 For the most part, though, cultural pluralist ideas did not find receptive audiences during the Progressive Era. As Nomi Stolzenberg and David Myers have noted, the allure of assimilation had a long his-tory; “the liberal promise of emancipation somehow excluded tradi-tional Jewish identity and faith. Jewish life could continue under a regime of liberal tolerance, but only in the private realm.”62 Similarly, Eric Goldstein argued that most Jewish immigrants wished “not to be the subject of scholarly debate and extensive discussion. Jews who came to America wanted, for the most part, to be unobtrusive, unseen, and unproblematic because they saw minimal public visibility as a pre-requisite for full acceptance here.”63 First- and second-generation Jewish Americans thus embraced the universal Progressive ideals of social and economic equality rather than cultural pluralism. Informed by centuries of persecution and eco-nomic struggles, Jewish immigrants helped shape the Progressive American identity,64 describing human fraternity as a means of ending “the exploitativeness, the inhumane competitiveness, the moral frigid-ity associated with capitalism.”65 Consider, for example, Morris Co-hen, Frankfurter’s close friend and a renowned philosopher at City College of New York (CCNY).66 In 1919, Cohen accused cultural plu-ralists of cultural determinism, of embracing the “very popular racial be identified as an American, not as a Jew. LOUIS MENAND, THE METAPHYSICAL CLUB: THE STORY OF IDEAS IN AMERICA 388 (2001). But at the influence of his professors at Harvard University, especially Barrett Wendell and William James, Kallen accepted that being Jewish was not inconsistent with being an American. Id. at 389. Thereafter, Kallen wanted to make race and ethnicity positive elements of the American experience, although, ironically, Kallen’s concept of cultural pluralism was traceable to the scientific, even racist, assumptions of anti-immigrationists and their racial determinism. Id. at 392. “Men,” Kallen wrote, “may change their clothes, their politics, their wives, their religions, their philosophies, to greater or lesser ex-tents, but they cannot change their grandfathers.” Id. at 392-93. 62 Nomi Maya Stolzenberg and David N. Myers, Community, Constitution, and Culture: The Case of the Jewish Kehillah, 25 U. MICH. J.L. REF. 633 (1992). 63 Eric L. Goldstein, Race and the Construction of Jewish Identity in America, 1875-1945, at 6 (Ph.D. dissertation, 2000) (on file with the author). 64 KOSAK, supra note 54, at 134; see also HOWE & LIBO, supra note 34, at 20; GERALD SORIN, THE JEWISH PEOPLE IN AMERICA: A TIME FOR BUILDING: THE THIRD MIGRATION, 1880-1920, at 117 (1992). 65 HOWE & LIBO, supra note 34, at 161, 174. 66 Guide to the Morris Raphael Cohen Papers 1898-1981, U. CHI., https://www.lib.uchicago.edu/ead/rlg/ICU.SPCL. MRCOHEN.pdf (last visited Mar. 2, 2024). 14Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 885 philosophy of history,” that is, “the constant tendency to emphasize the consciousness of race.”67 In contrast, Cohen described “liberal Amer-ica” as “stand[ing] for separation of church and state, the free mixing of races, and the fact that men [could] change their habitation and lan-guage and still advance the process of civilization.”68 Years later, Co-hen succinctly captured the rejection of ethnic particularism in favor of economic solidarity when he wrote that there were “many human problems, of which Jews, as human beings, [had] perhaps more than their share. But these problems, traced to their ultimate roots in reality, [were] also the problems of other minority groups, and [every] group of human beings [was] . . . a minority in one situation or another.”69 Celebrating solidarity and the improvement of economic con-ditions offered a sense of inclusion, of belonging with others in a strug-gle against injustice. It allowed Jewish Americans to maintain a polit-ical identity while disavowing ethnic differences.70 As the following Section II.B elaborates, such was Frankfurter’s attitude; it also in-formed his jurisprudential vision. B. Assimilation, Democracy, and Judicial Restraint Frankfurter traced his rejection of ethnic particularism and his steadfast embrace of the dominant American culture to the actions of his elementary school teacher, Miss Hogan.71 Frankfurter did not speak English when he joined her class, and Miss Hogan, who “be-lieved in corporal punishment . . . told the other boys that if anybody was caught speaking German with [Frankfurter], she would punish 67 MORRIS R. COHEN, Zionism: Tribalism or Liberalism?, in THE FAITH OF A LIBERAL: SELECTED ESSAYS BY MORRIS COHEN 328 (1946) (The article was pub-lished in the NEW REPUBLIC in 1919 as a critique of Zionism, which Morris Cohen associated with Kallen’s pluralism.); SUSANNE KLINGENSTEIN, JEWS IN THE AMERICAN ACADEMY, 1900-1940: THE DYNAMICS OF INTELLECTUAL ASSIMILATION 50 (1991); Hollinger, supra note 59. 68 COHEN, supra note 67, at 329-30. 69 MORRIS R. COHEN, A DREAMER’S JOURNEY: THE AUTOBIOGRAPHY OF MORRIS RAPHAEL COHEN 233-34 (1949); see also KLINGENSTEIN, supra note 67, at 53. 70 HOWE & LIBO, supra note 34, at 188; DEBORAH DASH MOORE, AT HOME IN AMERICA: SECOND GENERATION NEW YORK JEWS 201-30 (1981). 71 Dr. HARLAN B. PHILLIPS, FELIX FRANKFURTER REMINISCES: RECORDED IN TALKS WITH DR. HARLAN B. PHILLIPS 4-5 (1960) [hereinafter FRANKFURTER REMINISCES]. 15Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024886 TOURO LAW REVIEW Vol. 39 him”; the students obliged.72 Likely viewing the German language—a relic of Frankfurter’s birth culture—as an obstacle to assimilation into American society, Miss Hogan ensured that Frankfurter would not use it. Years later, Frankfurter reminisced that Hogan’s actions guar-anteed his successful integration into American society and, as a result, his rewarding career.73 CCNY and Harvard Law School solidified Frankfurter’s as-similation.74 America’s first municipally owned public college, CCNY was established in 1847 at the initiative of Townsend Harris, a wealthy businessman and the president of the New York City Board of Education.75 At the time, New York City had no public secondary schools and only two private institutions of higher education, Colum-bia College and the University of the City of New York (now New York University).76 The Free Academy (renamed CCNY in 1866) for-mally opened on January 21, 1849, on East Twenty-Third Street.77 It offered a program of study that lasted five years—one preparatory year followed by four years of college.78 By the turn of the twentieth cen-tury, working-class first- and second-generation Jewish Americans dominated the student body; many of them had little choice but to at-tend CCNY because Ivy League colleges, faced with a rising number of Jewish students, instituted quotas to limit the number of Jews they admitted (usually about ten percent).79 CCNY admitted anyone who qualified, with no restrictions based on ethnicity or race.80 Many 72 Id.; see also SNYDER, supra note 18, at 9. 73 SNYDER, supra note 18, at 9. 74 HIRSCH, supra note 50, at 13. As Hirsch notes, Jewish immigrants “emphasized education as a means of survival and advancement in the New World.” Id. 75 JAMES TRAUB, CITY ON A HILL: TESTING THE AMERICAN DREAM AT CITY COLLEGE 21 (1994). 76 Id. 77 Id. at 24. 78 SHERRY GORELICK, CITY COLLEGE AND THE JEWISH POOR: EDUCATION IN NEW YORK, 1880-1924, at 62 (1981). 79 BETH S. WEGNER, NEW YORK JEWS AND THE GREAT DEPRESSION: UNCERTAIN PROMISE 23 (1999); see also JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925, at 278 (1992) (“Beginning in 1919, New York University instituted stringent restrictions. Columbia soon cut the number of Jews in her incoming classes from 40 to 22 percent. At Harvard, where Brahmin students feared that the university was becoming a new Jerusalem, President Lowell in 1922 moved, with unseemly frankness, to raise the bars.”). 80 Id. at 28. GORELICK, supra note 78, at 123 (noting that “by the turn of the cen-tury three-quarters of the students at CCNY were Eastern European Jews, although 16Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 887 students were also poor, and CCNY was free.81 Over time, these Jew-ish students helped transform CCNY “from a symbol of Jacksonian democracy to a symbol—perhaps the symbol of the new America of assimilation, competition, and mobility.”82 As one commentator put it, CCNY was the “proletarian Harvard.”83 For Frankfurter, CCNY was a significant turning point. In 1897, having graduated P.S. 25, “steeped in his new country’s new language, politics, and history,” he entered CCNY’s “combined five-year high school and college program.”84 Shortly thereafter, Frankfur-ter, who as a boy was “religiously observant,”85 “abandoned organized religion . . . walk[ing] out of synagogue [during Yom Kippur services] . . . and never returning.”86 In 1919, he would marry Marion Denman, the daughter of a Congregational minister (Frankfurter’s mother re-fused to attend the ceremony).87 As Robert Burt elaborated, “For Frankfurter, Jewishness was inextricably linked to the immigrant world in which he had been raised.”88 Leaving the latter also required abandoning the former. While Frankfurter “claimed never to have lost his concern for ‘whatever affects the fate of Jews,’” Jerold Auerbach wrote, “in time he redirected his deepest loyalties, even his feelings of piety and worship, to the Harvard Law School . . . to the American rule German Jewish names predominated among the graduates at least until the 1930s, the dropout rate being extremely high”). 81 TRAUB, supra note 75, at 27-28. 82 Id. at 32. 83 Berrol, supra note 56, at 984. 84 SNYDER, supra note 18, at 13. 85 FRANKFURTER REMINISCES, supra note 71, at 289 (noting that he “wouldn’t eat breakfast until [he] had done the religious devotions in the morning”); see also BURT, supra note 21, at 38; Mendes Hershman, Review of Felix Frankfurter by Liva Baker, 33 JEWISH SOC. STUD. 74 (1971) (noting that Frankfurter’s father “trained for the rab-binate and [was] fond of singing Jewish ritual to opera tunes”); AUERBACH, supra note 60, at 154 (noting that Frankfurter’s “father descended from a long line of rab-bis”). 86 SNYDER, supra note 18, at 14; see also FRANKFURTER REMINISCES, supra note 71, at 290 (remembering thinking “it’s a wrong thing for me to be present in a room in a holy service, to share these ceremonies, these prayers, these chants, with people for whom they gave inner meaning as against me for whom they have ceased to have inner meaning”). 87 SNYDER, supra note 18, at 123. 88 BURT, supra note 21, at 39. 17Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024888 TOURO LAW REVIEW Vol. 39 of law; and to the United States, the adopted country of his child-hood.”89 Harvard Law School was the zenith of Frankfurter’s education path as well as his social assimilation. If CCNY bolstered Frankfur-ter’s embrace of American culture, Frankfurter likely viewed being ad-mitted to Harvard as a signal that American culture accepted him. In-deed, while Frankfurter often described choosing Harvard as happenstance,90 Harvard Law School, as Joseph Lash writes, “awed” him.91 “I have a quasi-religious feeling about the Harvard Law School,” Frankfurter is quoted to have said about his first year there; “I regard it as the most democratic institution I know anything about.”92 The law school was “democratic” because it appeared meri-tocratic (as Snyder writes, “Harvard Law School was the ultimate mer-itocracy—at least for white men”).93 “What mattered,” Frankfurter noted in retrospect, “was excellence in your profession to which your father or your face was equally irrelevant.”94 When, based on his per-formance on the first-year final exams, Frankfurter was elected to the Harvard Law Review, he echoed his initial sentiment, noting: “There was never a problem whether a Jew or a Negro should get on the Law Review. If they excelled academically, they would just go on automat-ically.”95 89 AUERBACH, supra note 60, at 154. 90 FRANKFURTER REMINISCES, supra note 71, at 15-16. Notably, before he at-tended Harvard, Frankfurter tried New York Law School and New York University Law School. He found both “so bad [he] couldn’t stand it.” After these experiences, Frankfurter planned to apply to Columbia Law School, but a confluence of events and chance meetings landed him at Harvard. Years later, Frankfurter told Harlan Phillips, “I told my parents that I was going to go to Cambridge. I don’t remember any discussion about it . . . It was fixed up like that . . . It seemed Harvard was a good place to go, and off I went.” Id. at 16-17; see also HIRSCH, supra note 50, at 18. 91 Lash, supra note 44, at 3. 92 FRANKFURTER REMINISCES, supra note 71, at 19. 93 SNYDER, supra note 18, at 19. 94 FRANKFURTER REMINISCES, supra note 71, at 26-27; see also AUERBACH, supra note 60, at 155 (noting that “Frankfurter’s life was a continuing struggle to overcome . . . the legacy of his ‘father’ and his ‘face’—his origins as an immigrant Jew”). 95 FRANKFURTER REMINISCES, supra note 71, at 27; see also SNYDER, supra note 18, at 19; Jerold S. Auerbach, From Rags to Robes: The Legal Profession, Social Mobility and the American Jewish Experience, 66 AM. J. HIST. Q. 249, 252 (1976). 18Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 889 Harvard not only opened doors into the highest echelons of American society,96 but it also introduced Frankfurter to Progressive legal thought and its critique of absolutism, a critique that would in-form Frankfurter’s jurisprudence of judicial restraint. Frankfurter credited three scholars for shaping his view of the judicial role: James Bradley Thayer, Oliver Wendell Holmes, and Louis Dembitz Brandeis. Frankfurter described Thayer, Holmes, and Brandeis as sharing a commitment to democratic institutions and processes; he saw their work as emphasizing the role of state legislatures and Congress in bringing about social change and the expectation that judges would exercise judicial restraint.97 For one, Thayer’s 1893 article, The Origin and Scope of the American Doctrine of Constitutional Law, called on federal judges to refrain from striking down federal legislation and ex-ecutive action, unless it was “very clear” that the action was unconsti-tutional.98 As Snyder writes, Frankfurter “embraced Thayer’s theory of limited judicial review and deference to elected officials in all but the most extreme circumstances.”99 In a similar manner, Frankfurter described Holmes’s famous 1905 dissent in Lochner v. New York,100 which chided the majority for striking down a maximum-hours law, as a “rallying cry against judicial power run amok.”101 As to Brandeis—if Thayer’s scholarship and Holmes’s decisions influenced Frankfur-ter’s jurisprudential vision, Brandeis became his professional (if not also cultural) role model. Shortly after Lochner was decided, Frank-furter heard a talk by Brandeis and determined that he, too, “could be a different type of lawyer; he could oppose monopolies, defend the 96 See, e.g., HIRSCH, supra note 50, at 21 (noting that “Frankfurter’s academic suc-cess was translated into a certain degree of academic acceptance from Brahmin, Yan-kee culture”). 97 SNYDER, supra note 18, at 20. 98 James B. Thayer, The Origin and Scope of the American Doctrine of Constitu-tional Law, 7 HARV. L. REV. 129 (1893). 99 SNYDER, supra note 18, at 20-21. It is worth noting that Thayer’s concern fo-cused on “the Court’s restrictions of Congress’s power after the Civil War, on matters including but not limited to Congress’s powers to enforce the Reconstruction Amendments.” Carle, supra note 33, at 7. Thayer’s article criticized the U.S. Su-preme Court’s decision to “[strike] down the provisions of the Civil Rights Act of 1875 that prohibited discrimination in quasi-public facilities (The Civil Rights Cases 1883).” Id. at 8. 100 198 U.S. 45, 75 (1905). 101 SNYDER, supra note 18, at 21-22. 19Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024890 TOURO LAW REVIEW Vol. 39 labor movement, and make America’s growing industrial democracy more fair and just.”102 As Brad Snyder concludes: “Frankfurter emerged as the foremost champion of Thayer’s and Holmes’s view that it was up to legislatures, not the Court, to make social and economic policy. . . if Thayer was his constitutional theorist and Holmes his ideal jurist, then Brandeis exemplified the lawyer as a social reformer.”103 In 1915, in a speech he delivered at the American Bar Associ-ation annual convention, Frankfurter—by then a professor at Harvard Law School—drew upon the lessons he learned from Thayer, Holmes, and Brandeis to “outline[] a vision for lawyers and law schools during an age of industrial revolution.”104 He called on judges to “adjust legal principles to changing social and economic conditions,”105 urged law schools “to teach their students to view law not as a closed system but as an evolving science driven by the discovery of new facts [and] social realities,”106 and “challenged lawyers to play a leading role in the coun-try’s economic and social transformation.”107 Legislation and regula-tion were the tools of change, and the courts were assigned a rather limited, restricted power of review. As Frankfurter’s close friend, Morris Cohen, put it, “to be ruled by a judge is, to the extent that he is not bound by law, tyranny or despotism.”108 Frankfurter heeded his own advice, becoming a lawyer and ad-vocating for maximum hours and minimum wage legislation as well as laws recognizing “organized labor as the lawful representative of workers.”109 In the 1920s, as the Supreme Court struck down social and economic legislation,110 Frankfurter used the pages of the New 102 Id. at 23. 103 Id. at 22-23. 104 Id. at 68. 105 Id. 106 Id. 107 Id. at 69. 108 Morris R. Cohen, Positivism and the Limits of Idealism in the Law, 27 COLUM. L. REV. 238, 244 (1927); see also Edward A. Purcell, Jr., American Jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory, 75 AM. HIST. REV. 424, 435 (1969) (discussing Cohen’s critique of legal realism). 109 SNYDER, supra note 18, at 79. 110 This line of cases, traceable to the U.S. Supreme Court’s decision in Lochner (Lochner v. New York, 198 U.S. 45 (1905)), illustrates the Court’s usage of the Four-teenth Amendment’s Due Process Clause to strike down laws that (per the Court) substantively interfere with liberties such as the right to contract. See, e.g., Michael 20Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 891 Republic and Harvard Law Review to promote his vision for the mod-ern industrial state as well as judicial restraint. Notably, when address-ing issues beyond social and economic rights, Frankfurter also criti-cized the Court “for not invoking due process to protect freedom of speech and fair criminal trials”111—two universal rights, the corner-stones of procedural democracy. Embracing majoritarianism (constrained only by minimal pro-cedural rules) was Frankfurter’s means of addressing, or perhaps avoiding, the plurality of values that characterized modern American society.112 In the nineteenth century, the recognition of diversity in society was tied to a belief in progress and the assignment of subordi-nated positions to certain social and cultural groups.113 At the turn of the twentieth century, though, the pragmatic critique of absolutism led to growing skepticism toward existing social norms and values (what historians have described as cultural and ethical relativism, respec-tively)114 and toward “traditional foundations of thought and structures of understanding” (what historian Peter Novick labeled cognitive rel-ativism).115 However, when Progressive jurists, including Frankfurter, tried to describe ways to improve the legal system, they were con-fronted with the normative implications of such skepticism: does J. Phillips, How Many Times was Lochner-Era Substantive Due Process Effective, 48 MERCER L. REV. 1049 (1997). 111 SNYDER, supra note 18, at 129. 112 While not explored in this Article, it is worth noting here Frankfurter’s friend-ship with the philosopher Isaiah Berlin, remembered as a “staunch advocate of plu-ralism . . . [who] considered the very notion that there could be one final answer to organizing human society a dangerous illusion that would lead to nothing but blood-shed, coercion and the deprivation of liberty.” Marilyn Berger, Isaiah Berlin, Phi-losopher and Pluralist, is Dead at 88, N.Y. TIMES, Nov. 7, 1997; see also Maimon Schwarzschild, Value Pluralism and the Constitution: In Defense of the State Action Doc-trine, S. CT. REV. 129, 130 (1988) (noting that Berlin insisted that “human values are many and varied and cannot be made to harmonize”). 113 LYNN DUMENIL, THE MODERN TEMPER: AMERICAN CULTURE AND SOCIETY IN THE 1920S, at 145 (1995). 114 DALIA TSUK MITCHELL, ARCHITECT OF JUSTICE: FELIX S. COHEN AND THE FOUNDING OF AMERICAN LEGAL PLURALISM 44-47 (2007). 115 PETER NOVICK, THAT NOBLE DREAM: THE “OBJECTIVITY QUESTION” AND THE AMERICAN HISTORICAL PROFESSION (1988); see also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 180-82 (1992); RICHARD H. PELLS, RADICAL VISIONS AND AMERICAN DREAMS: CULTURE AND SOCIAL THOUGHT IN THE DEPRESSION YEARS 4 (1998). 21Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024892 TOURO LAW REVIEW Vol. 39 skepticism toward one’s own legal system and ideals entail a nonjudg-mental attitude toward all customs and values? No early-twentieth century jurist adopted a nonjudgmental at-titude toward all cultures, values, and structures of understanding; they refused to accept that skepticism implied a relativist stance toward all aspects of life. That which was intellectually possible, and maybe in-evitable, was not only practically impossible but also personally desta-bilizing. A nonjudgmental view of all customs, values, and forms of knowledge involved a level of uncertainty about law and the world that very few could endure. Some legal scholars resolved the tension by suggesting the need to recognize certain group rights; others, many of them Jewish, held on to certain universal or absolute values; still, oth-ers, including, to some extent, Brandeis, put their trust in science as the ultimate form of knowledge and in empiricism as an objective way to verify facts and learn about the world.116 Frankfurter put his faith in majoritarianism.117 Throughout his career, Frankfurter credited Holmes and Brandeis for shaping his ideas. It is thus worth emphasizing that neither shared Frankfurter’s unfaltering commitment to majoritarianism or ju-dicial restraint.118 For one, Holmes’s dissent in Lochner, far from be-ing an endorsement of majoritarianism, drew on the pragmatic revolt against moral absolutism to challenge the classical vision of law as an 116 For a detailed description of these positions, see TSUK MITCHELL, supra note 114, at 44-47. Notably, Brandeis and others who turned to the social sciences imbued their empirical research with strong moral convictions. As Bruce Murphy writes, “Brandeis’s deep moral convictions gave him a considerable measure of security in suggesting reforms for society. He always recommended solutions to social prob-lems in accordance with his own view of life.” BRUCE ALLEN MURPHY, THE BRANDEIS/FRANKFURTER CONNECTION: THE SECRET POLITICAL ACTIVITIES OF TWO SUPREME COURT JUSTICES 21 (1982). 117 By choosing majoritarianism rather than progressive social science, Frankfurter ultimately distanced himself from Brandeis. On their fallout, see EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH CENTURY AMERICA 195-228 (2000). 118 See Jeffrey Rosen, The Liberal Justice Who Warned Against an Activist Su-preme Court, N.Y. TIMES, Aug. 26, 2022 (reviewing SNYDER, supra note 18) (noting that “Justices Oliver Wendell Holmes and Louis Brandeis, Frankfurter’s judicial he-roes, also believed in general deference to Congress and the states, but they balanced this deference with a commitment to defending the rights protected by the First and Fourth Amendments. Frankfurter, on the other hand, took judicial deference to new extremes”). 22Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 893 autonomous body of abstract axioms from which judges could deduce rules. “General propositions do not decide concrete cases,” Holmes stated in his dissent, adding: “the Fourteenth Amendment does not en-act Mr. Herbert Spencer’s Social Statics.”119 Instead of viewing legal rules as embedded in absolute values, Holmes described law as the outcome of debatable policy judgments about the social utility of di-verse activities in a rapidly changing society.120 As Morton Horwitz explains, if law was “merely a battleground over which social interests clash, then the legislature [was] the appropriate institution for weigh-ing and measuring competing interests.”121 But not always. “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion,” Holmes noted, “unless it can be said that a rational and fair man nec-essarily would admit that the statute proposed would infringe funda-mental principles as they have been understood by the traditions of our people and our law.”122 Similarly, Brandeis was keen on ensuring that the U.S. Su-preme Court did not strike down Progressive legislation, not on pro-moting majoritarianism. Trusting the newly emerging social sciences, Brandeis’s (and Josephine Goldmark’s) now famous “brief” in Muller v. Oregon123 used pages of sociological data demonstrating that overly long days had negative effects on working women and their families to convince the U.S. Supreme Court to uphold a law mandating maxi-mum working hours for laundresses.124 Rather than emphasizing 119 Lochner v. New York, 198 U.S. 45, 76 (1905). 120 As Rodger Citron notes, “Holmes also maintained a skeptical attitude toward the law, defining it as nothing more than ‘the incidence of public force through the instrumentality of the courts.’” Rodger D. Citron, The Nuremberg Trials and Amer-ican Jurisprudence: The Decline of Legal Realism, The Revival of Natural Law, and The Development of Legal Process Theory, 2006 MICH. ST. L. REV. 385, 389 (2006). 121 HORWITZ, supra note 115, at 142. 122 Lochner, 198 U.S. at 75. See also Carle, supra note 33, at 10 (writing that “Holmes . . . came to view judicial restraint as inappropriate in cases involving rights to speech and conscience. . . . Holmes authored opinions that propelled the Court’s expansion of First Amendment protections, such as his dissent in Abrams v. United States . . . in which he argued that the experiment of U.S. democracy required the courts to protect even the most loathsome speech if it did not present a ‘clear and imminent danger’”). 123 208 U.S. 412 (1908). 124 BRANDEIS ON DEMOCRACY 7-13 (Philippa Strum ed., 1995). 23Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024894 TOURO LAW REVIEW Vol. 39 judicial restraint, the Brandeis brief explained why the legislation was within the state’s police power and thus constitutional.125 For a while, whether Frankfurter’s description of Holmes and Brandeis was accurate or self-serving did not matter. Given the con-servative leaning of the U.S. Supreme Court at the time, Frankfurter’s advocacy of judicial restraint fit the Progressive agenda. Whether fo-cusing on social scientific studies, advocating for social justice, or ar-guing in support of group rights, Progressives’ concerns centered on what they viewed as the Court’s attack on Progressive legislation (be-tween the 1880s and the 1930s, the Court held that private property and contracts reflected natural rights and voluntary choices that should be protected from the coercive power of the state to strike down pro-tective labor legislation as an unconstitutional interference with the property rights of employers or with freedom of contract).126 Frank-furter’s commitment to labor and his support for the administrative state further placed him within the ranks of Progressive legal schol-ars.127 Frankfurter’s book on the labor injunction (written with New York labor lawyer Nathan Greene) remains part of the canon of Pro-gressive literature. Frankfurter and Greene traced the history of the labor injunction and criticized its use to “prevent peaceful strikes, pick-eting, and boycotts.”128 In 1932, Congress passed the Norris-La Guar-dia Act, which Frankfurter helped draft; it “banned yellow-dog con-tracts and labor injunctions and marked the beginning of the federal government’s support for organized labor.”129 After the election of Franklin D. Roosevelt, Frankfurter helped draft and pass most of the New Deal legislation—working behind the scenes to ensure support for each of Roosevelt’s initiatives.130 Once Frankfurter joined the U.S. Supreme Court, though, amid changing demands on the Court, his steadfast commitment to majori-tarianism and judicial restraint quickly put him at odds with 125 Id. See also Carle, note 33, at 9 (noting that in “Gilbert v. Minnesota, Brandeis dissented from the Court’s rejection of a challenge to a state sedition law that made it unlawful to discourage enlistment in the military. Such a law, Brandeis argued, interfered with the First Amendment right to freedom of conscience”). 126 On the Progressives’ and legal realists’ critique of liberal legal thought, see HORWITZ, supra note 115. 127 Id. at 184-85. 128 SNYDER, supra note 18, at 193. 129 Id. 130 Id. at 219-25. 24Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 895 progressivism (and the legacy of Holmes and Brandeis).131 “Billed as the Court’s liberal savior,”132 Frankfurter joined two other Roosevelt appointees: Hugo L. Black and Stanley Reed (William O. Douglas was appointed shortly after Frankfurter to replace Brandeis).133 Together, they were expected to safeguard the New Deal. Yet, as the following Part III explores, not the New Deal policies but a different issue came to occupy the Court’s attention in the 1940s—namely the rights of in-dividuals to be free from persecution and discrimination. In that con-text, old commitments were put to a challenge. As Robert Cover aptly wrote: “[s]ubstantive due process applied to economic regulation was properly subject to the criticism that it was anti-democratic. But that did not mean that, in the age of Hitler, majoritarianism itself would not require more in the way of justification than its professedly democratic nature.”134 Yet, while others on the Court (and progressive jurists more broadly) were able to adapt their ideas to the changing terrain, Frank-furter remained stubbornly committed to majoritarianism. Rapidly, his decisions not only diverged from the reform-minded commitments of Holmes and Brandeis but also became an apology for the status quo. Part III examines this transformation within the context of Jewish-American history. III. THE MIDCENTURY CIVIL RIGHTS CHALLENGE The 1940s witnessed a jurisprudential shift toward civil rights and liberties. As other legal historians have explored, in the early twentieth century, legal scholars associated rights with economic and social needs, specifically the rights of individuals to work, to liveli-hood, to social insurance, and to economic independence.135 The so-called cultural politics of the 1920s, including the rebirth of the Ku Klux Klan and the passage of restrictive immigration laws, turned 131 Mark A. Graber, False Modesty: Felix Frankfurter and the Tradition of Judi-cial Restraint, 47 WASHBURN L. REV. 23, 23 (2007) (noting that “Frankfurter was the leading intellectual advocate of a restrained judiciary in constitutional cases and the least effective champion of that approach to the judicial function”). 132 SNYDER, supra note 18, at 312. 133 Id. at 340. 134 Robert M. Cover, The Origins of Judicial Activism in the Protection of Minor-ities, 91 YALE L.J. 1287, 1289 (1982). See also PURCELL, supra note 117, at 198. 135 William E. Forbath, Civil Rights and Economic Citizenship: Notes on the Past and Future of the Civil Rights and Labor Movements, 2 U. PA. J. LAB. & EMP. L. 697, 697-98 (2000). 25Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024896 TOURO LAW REVIEW Vol. 39 American intellectuals away from direct engagement with racial prob-lems.136 Race and culture were seen as divisive issues, especially after racial and cultural battles almost destroyed the Democratic Party in 1924.137 But in the second third of the twentieth century, amidst grow-ing apprehension about the potential spread of European totalitarian-ism and growing agitation over racial injustice in the United States, jurists’ attention shifted to civil liberties; gradually, the concept of civil rights became associated with the rights of cultural, ethnic, and reli-gious minorities, specifically the right to be different.138 The Warren Court is remembered as the champion of a vision of democracy that focused on individual rights and liberties.139 According to these legal histories, the shift from economics to culture was paralleled by a new understanding of the role of the three branches of government in protecting individual and group rights.140 In the early twentieth century and during the New Deal, progressive legal scholars emphasized the role of the executive and legislative branches in promoting social and economic rights.141 In the 1940s, as legal scholars grew concerned about the relationship between statism and tyranny,142 they reimagined a role for the judiciary. New Dealers turned to the courts, especially the U.S. Supreme Court, to limit the power of the legislative and executive branches to encroach upon in-dividual rights and liberties.143 In this changing world, rather than leading the Court on issues of civil rights, Frankfurter, who, according to one commentator, “pushed the doctrine of judicial restraint to an 136 ALAN BRINKLEY, THE END OF REFORM: NEW DEAL LIBERALISM IN RECESSION AND WAR 165 (1995). 137 Id. at 165-66. 138 Id. at 166-70. 139 HORWITZ, supra note 19, at 3, 91 (noting that the Warren Court “[took] the first steps toward elaborating a vision of ‘positive liberty’ that would accord with its evolving conception of democracy as requiring both political and substantive equal-ity”). 140 William E. Forbath, The New Deal Constitution in Exile, 51 DUKE L.J. 165, 169 (2001). 141 Id. 142 See, e.g., BRINKLEY, supra note 136, at 154-70. 143 Forbath, supra note 140, at 169. 26Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 897 extreme that violated the spirit of Holmes,”144 became rapidly dissoci-ated from his former friends and supporters.145 Recalling another element of these histories, Part III examines Frankfurter’s flag-salute decisions in the context of the Jewish-Amer-ican community’s reactions to the rise of totalitarianism and Nazism in Europe and antisemitism in the United States. Viewed through this lens, Frankfurter’s almost stubborn commitment to judicial restraint becomes intertwined with his early assimilationist aspirations, grounded as they were in his belief that ethnic and cultural identities were irrelevant in the public realm of law and politics and that one (especially Jewish Americans) should not call attention to them.146 A. Hopes and Fears Jewish immigrants to the United States viewed America as the land of opportunities with open doors and sympathy for persecuted mi-norities; Progressive Jewish jurists assumed that universal economic and social citizenship, irrespective of ethnic particularities, would en-sure that everyone had access to these opportunities.147 In the interwar years, progress seemed within reach. “Jewish people in the United States became more and more American Jews, comfortable with a modern, urban way of life.”148 Still, American society continued to exhibit nativist and anti-alien sentiments. Fears that foreigners would subvert American democratic ideals were as prevalent as the belief in those ideals itself, and government immigration policies reflected the suspicion of the Anglo-Saxon Protestant majority toward racial and 144 Lash, supra note 44, at 72-73. 145 Id.; see also Michael E. Parrish, Felix Frankfurter, the Progressive Tradition, and the Warren Court, in THE WARREN COURT IN HISTORICAL AND POLITICAL PERSPECTIVE 54 (Mark Tushnet ed., 1993). 146 On the public-private split in this context, see, e.g., Pnina Lahav, The Eichmann Trial, the Jewish Question, and the American-Jewish Intelligentsia, 72 B.U. L. REV. 555, 560 (1992) (noting that “Liberalism invited Jews to assimilate, to observe a public/private distinction by becoming ‘like everyone’ in the public domain while remaining ‘Jews’ at home (if they so desired)”). 147 See discussion supra Section II.A. 148 HASIA R. DINER, A NEW PROMISED LAND: A HISTORY OF JEWS IN AMERICA 68, 69 (2003). 27Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024898 TOURO LAW REVIEW Vol. 39 religious minorities—Black Americans, Chinese, Jews, and Roman Catholics.149 In the 1930s, economic insecurity, with as many as fifteen mil-lion individuals unemployed during the worst periods, led Americans to endorse the nativist slogans “America for the Americans” or “100 percent Americanism.”150 Fears that Hitler or the communist regime in the Soviet Union might attempt to corrupt American institutions with the help of immigrants, as well as general anxiety about the preservation of American culture, added to the nativist and anti-alien sentiments.151 By 1940, seventy-one percent of the respondents to a Roper poll were convinced that Germany had already begun to form “a ‘Fifth Column’” in the United States.152 Antisemitism was also on the rise. Americans were not im-mune to the fear, popularized by Hitler, that “‘Red Jews,’ ‘alien Jews,’ ‘Jewish-Bolshevists,’ ‘Jewish radicals,’ and ‘non-Aryans’ were plot-ting to destroy the foundation of Anglo-Saxon civilization.”153 Old-time patriotic organizations, panicked businessmen, and critics of Roo-sevelt’s “Bolshevist” New Deal quickly embraced this antisemitic propaganda.154 The German American Bund, with 25,000 dedicated members, worked to frustrate any plan to harbor refugees from 149 RICHARD BREITMAN & ALAN M. KRAUT, AMERICAN REFUGEE POLICY AND EUROPEAN JEWRY, 1933-1945, at 7 (1987). Notably, immigration restrictions were imposed against the Chinese and Japanese in the late nineteenth century and, after World War I, also against Europeans. Id. A visa system was instituted at the end of the War, and immigration laws in 1921 and 1924 established limits on immigration from European countries. See id. On September 8, 1930, President Hoover issued an executive order instructing consular officers to refuse to issue visas if they be-lieved “that the applicant may probably be a public charge at any time, even during a considerable period subsequent to his arrival.” See DAVID S. WYMAN, PAPER WALLS: AMERICAN AND THE REFUGEE CRISIS, 1938-1941, at 4 (1985). Combined with the Alien Contract Labor Act of 1885, which prevented immigrants from secur-ing jobs in advance to their arrival, Hoover’s directive meant that “only the inde-pendently wealthy” could emigrate to America. SAUL S. FRIEDMAN, NO HAVEN FOR THE OPPRESSED: UNITED STATES POLICY TOWARD JEWISH REFUGEES, 1938-1945, at 22 (1973). According to one account, “[i]mmigration totals . . . dropped from 241,700 in 1930 to 97,139 in 1931 and to 35,576 in 1932.” Id. 150 BREITMAN & KRAUT, supra note 149, at 113. 151 Id. at 113-17. 152 Id. at 117. 153 FRIEDMAN, supra note 149, at 25. 154 Id. at 26. 28Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 899 Germany.155 William Dudley Pelley’s Silver Shirt Legion of America, with a claimed membership of 100,000, advocated a program of “Christian Democracy.”156 Father Charles E. Coughlin of Royal Oak, Michigan, helped spread Nazi propaganda through his tabloid newspa-per Social Justice, “with a reported weekly circulation of one mil-lion,”157 and his Sunday radio broadcasting, “heard by a regular audi-ence of 3,500,000.”158 And the American Liberty League, which was organized in 1934 “to preserve the principles of the Declaration of In-dependence for succeeding generations of Americans,” “bombarded Congress” with objections to changes in immigration policy, claiming that new immigrants would make jobs scarce.159 This was a message that even more respectable organizations such as the American Feder-ation of Labor (AFL) at times endorsed.160 Closer to Frankfurter, the growing number of Jews throughout Roosevelt’s administration elic-ited the description of the New Deal as “Jew Deal.”161 And Frankfur-ter’s role in securing their positions earned his students the label “Happy Hot Dogs,” “a playful take on Frankfurter’s first and last names by New York Herald Tribune columnist Mark Sullivan . . . [that] took on a derogatory and anti-Semitic cast.”162 Meanwhile, the safety of Jews in Europe was deteriorating. Since the Nazi Party’s rise to power, German Jews, who constituted less than two percent of the Reich’s population in 1933, were subject 155 Id. 156 Id. This antisemitic program included: [A]n alien registration day for persons of “Hebrew Blood,” impris-onment of Jews who attempted to use gentile names, prosecution of Jews who supported a Zionist state (on grounds of sedition), disenfranchisement of Jews, abrogation of all civil rights for He-brews (including the right to hold property), and the establishment of an urban ghetto in one city in every state to pen up all Jews. Id. 157 Id. at 27. 158 Id. 159 Id. at 29. 160 Id. at 29-31. 161 RICHARD L. ZWEIGENHAFT & G. WILLIAM DOMHOFF, DIVERSITY IN THE POWER ELITE: IRONIES AND UNFULFILLED PROMISES 16-17 (2018). Notably, some Jewish lawyers were also concerned about the number of Jews in Roosevelt’s admin-istration; see AUERBACH, supra note 60, at 159-60 (quoting a letter from Jerome Frank to Frankfurter, in which Frank, “an assimilated German Jew from Chicago,” expressed concerns about “having too many Jews on the legal stuff”). 162 SNYDER, supra note 18, at 224-25. 29Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024900 TOURO LAW REVIEW Vol. 39 to political, economic, cultural, and physical persecution.163 Under the Nuremberg Laws, adopted in September 1935, Jews, who had already been banned from the professions, universities, and public service, lost their citizenship and were subject to business regulations that rapidly prevented them from pursuing, let alone making, a living.164 In 1938, shortly after Germany annexed Austria, Frankfurter’s uncle, Salomon, “one of [Vienna’s] leading academics and a member of the Austrian government’s cultural advisory council” was arrested.165 He was re-leased to house arrest at the intervention of the U.S. State Depart-ment.166 The Jewish American community was at a crossroads. As Ger-ald Sorin writes, Jewish Americans were “not well prepared for the crisis.”167 By the 1930s, “the traditional sources of unity, religion and a common culture and language, had grown somewhat weaker,” and “the community was rent by various strategies and ideologies and de-grees and kinds of religious persuasion, as well as by duplication and competition.”168 Jewish-American organizations were divided, disor-dered, and, often, in disagreement. B’nai B’rith, the American Jewish Committee, the Zionist Organization of America, the Jewish Labor Committee, and the American Jewish Congress pressed Roosevelt for action to help their European brethren. But they failed to cooperate in a concerted effort.169 While some groups advocated opening American borders, some were concerned that advocacy on behalf of European Jews would make them appear “less than ‘100 percent American,’”170 and many feared “that a large influx of Jewish refugees would inflame anti-semitism in America.”171 Zionists wanted to settle Jewish refu-gees from Europe in Palestine, while religious organizations such as the Central Conference of American Rabbis, together with others who 163 WYMAN, supra note 149, at 27. 164 Id. at 27-29. 165 SNYDER, supra note 18, at 295. 166 Id. at 296. Still under house arrest, Salomon died of bronchitis in September 1941. Id. at 381. 167 GERALD SORIN, TRADITION TRANSFORMED: THE JEWISH EXPERIENCE IN AMERICA 190 (1997). 168 Id. 169 FRIEDMAN, supra note 149, at 42. 170 Sarah E. Peck, The Campaign for an American Response to the Nazi Holocaust, 1943-1945, 15 J. CONTEMP. HIST. 367, 369 (1980). 171 Id. 30Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 901 feared that Jewish nationalism only reinforced the idea that Jews were a distinctive race, opposed any such plan.172 Historians differ as to whether divisions within the Jewish community impacted Roosevelt’s actions. Some suggest that these di-visions prevented American Jews from doing much. As Saul Friedman pointedly put it, “Insecure themselves, constantly wary of raising the specter of double-loyalty which was the grist of anti-Semites,” even Roosevelt’s close Jewish advisers “ever exerted themselves to display their Americanism, their concern for this nation’s welfare to the exclu-sion of all others, even when doing so meant the deaths of loved ones in Europe.”173 Other historians maintain that, for the most part, these divisions reflected the general frustration of Jewish organizations at their inability to persuade Roosevelt and the State Department to at-tempt to save the refugees; frustrated that they could not achieve ma-terial results, “they blamed each other.”174 As Gerald Sorin explains, political pressure from the Jewish-American community was unlikely to convince Roosevelt to act, because the President never worried about losing their votes; Jewish Americans were “the most loyal Dem-ocratic group in the history of the party.”175 Roosevelt listened to in-dividual Jews and Jewish organizations but did not make public state-ments or change policies to assist Jewish refugees.176 Given widespread public and congressional support for restrictionist immi-gration policies, Roosevelt was concerned that any relaxation of the rules would carry little, if any, political gain but would risk stirring up voters’ emotions.177 Why such loyalty in face of inaction? Jerold Auerbach points to the Jewish-American community’s continued eagerness to assimi-late. According to Auerbach, American Jews were loyal to Roosevelt because he did not treat them as Jews; “by giving them nothing as 172 BREITMAN & KRAUT, supra note 149, at 80-111. 173 FRIEDMAN, supra note 149, at 45-50; see also Peck, supra note 170, at 369 (noting that Roosevelt’s Jewish advisors, “sensitive to comments about Roosevelt’s ‘Jew Deal,’ as critics called it, avoided advocating any action that might bias the Administration in favor of Jews”). 174 BREITMAN & KRAUT, supra note 149, at 110. 175 SORIN, supra note 167, at 192. 176 See, e.g., FRIEDMAN, supra note 149, at 23-24 (noting that occasionally Roose-velt relaxed some of the administrative procedures that visa applicants faced, but overall, throughout the 1930s, American consular offices in Germany were liberal in their interpretation of restrictions imposed by the Hoover administration). 177 BREITMAN & KRAUT, supra note 149, at 222-28. 31Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024902 TOURO LAW REVIEW Vol. 39 Jews, [Roosevelt] was confirming their status as Americans.”178 And they were willing to pay the price—”to assert no interest as Jews inde-pendent of presidential definitions of the national interest.”179 As to Frankfurter—perhaps closer to Roosevelt than most—he raised the relaxation of immigration rules with the president, but not directly. Ever careful not to call attention to his Jewish background, Frankfurter “relied on his connections to high level officials,” urging them to raise the matter with the president.180 Even when his uncle was apprehended in Austria, Frankfurter did not contact Roosevelt, not wanting to “seek favors from” the president.181 After Salomon’s re-lease to home arrest, Frankfurter played down the State Department’s assistance, again not wanting to appear as using his connections with Roosevelt.182 Public opinion regarding immigration remained unchanged even after the horrific Kristallnacht.183 Many Jewish leaders continued to express fears that any attempt to modify immigration policies would lead to a devastating counterattack on the Jewish community.184 While a few newspapers immediately called for vigorous action, the General Jewish Council, which met on the day following the massive pogrom, did not discuss the issue; and when the leaders of the American Jewish Congress, the American Jewish Committee, B’nai B’rith, and the Jew-ish Labor Council finally addressed it, they resolved that it was “the present sense of the General Jewish Council that there should be no parades, public demonstrations, or protests by Jews.”185 178 AUERBACH, supra note 60, at 166. 179 Id. at 167. 180 SNYDER, supra note 18, at 226-27. 181 Id. at 296. 182 Id. 183 FRIEDMAN, supra note 149, at 31, 72-73. 184 DAVID MORRISON, HEROES, ANTIHEROES, AND THE HOLOCAUST: AMERICAN JEWRY AND HISTORICAL CHOICE 129-30 (1995). 185 Id. See also David Brody, American Jewry, the Refugees and Immigration Re-striction (1932-1942), in AMERICA, AMERICAN JEWS, AND THE HOLOCAUST 181-209 (1998); Rafael Medoff, American Jewish Responses to Nazism and the Holocaust, in THE COLUMBIA HISTORY OF JEWS AND JUDAISM IN AMERICA 291, 297 (Marc Lee Raphael ed., 2016). 32Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 903 Less than two months after Kristallnacht, on January 4, 1939, Roosevelt nominated Frankfurter to the U.S. Supreme Court.186 For some, the nomination proved America’s superiority over Germany. As Lori Ringhand writes, “numerous media sources noted the symbolic importance of an American President appointing a Jew to such a pres-tigious position at a time when Nazism was on the rise in Europe.”187 Others turned to common antisemitic tropes to protest the nomination. For one, Allen A. Zoll, executive vice-president of the American Fed-eration Against Communism, who testified in Congress against Frank-furter’s nomination, stated: There are two reasons why I oppose the appointment of Professor Felix Frankfurter to the Supreme Court of the United States. One is because I believe his record proves him unfitted for the position, irrespective of his race, and the other is because of his race. . . .[T]he Jew has been fostering movements that are subversive to our government.188 Notably, public opinion polls in the early 1940s revealed that “nearly two-thirds of Americans believed Jews as a group had ‘objectionable traits,’ and over fifty percent of Americans thought that German anti-Semitism stemmed either partially or wholly from the actions of the German Jews.”189 186 Frankfurter is Nominated as Supreme Court Justice, N.Y. TIMES, Jan. 5, 1939, at 1; Melvin I. Urofsky, The Failure of Felix Frankfurter, 26 U. RICH. L. REV. 175, 176 (1991). 187 Lori A. Ringhand, Aliens on the Bench: Lessons in Identity, Race and Politics from the First “Modern” Supreme Court Confirmation Hearing to Today, 2010 MICH. ST. L. REV. 795, 800 (2010). 188 Id. at 797 (citing from Nomination of Felix Frankfurter to be an Associate Jus-tice of the Supreme Court: Hearing Before the Subcomm. of the Comm. on the Judi-ciary, 76th Cong. 95 (1939)). See also SNYDER, supra note 18, at 318 (noting that Zoll was an “ally of anti-Semitic radio preacher Father Coughlin[,] . .. was involved in the Coughlin-inspired Christian Front and founded his own far-right organization American Patriots”). 189 Edward S. Shapiro, World War II and American Jewish Identity, 10 MODERN JUDAISM 65, 68-69 (1990). See also ZWEIGENHAFT & DOMHOFF, supra note 161, at 16–17 (3d ed. 2018) (noting that polls conducted in the 1930s and 1940s revealed that “over half the general public thought Jews were greedy and dishonest, had too much power, were a greater threat to the country than any other religious or racial group, and should face various restrictions in their activities”). 33Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024904 TOURO LAW REVIEW Vol. 39 Antisemitic sentiments did not dissuade Roosevelt’s closest al-lies. Shortly after the nomination, “a group of top New Dealers gath-ered to celebrate in the office of Secretary of the Interior, Harold L. Ickes”; among others, the group included Attorney General Frank Murphy, Tommy Corcoran, and then-Chairman of the Securities and Exchange Commission, William O. Douglas.190 “All of them heartily agreed with Ickes, who described the nomination as ‘the most signifi-cant and worthwhile thing the President had done.’ Liberals in the government, academics, and the general community joined in celebra-tory praise.”191 None of those in attendance could have predicted that Frankfurter—the Progressive, pro-labor lawyer and scholar—would become one of the most conservative midcentury justices. Committed as they all were to the New Deal causes, none realized Frankfurter’s deep personal and intellectual inclination toward majoritarianism and judicial restraint. Frankfurter considered himself a Jew “without any of the usual ‘Jewish’ conflicts or difficulties.”192 According to Jerold Auerbach, by the time Frankfurter was nominated, “his involvement in Jewish affairs, sporadic at best, had all but evaporated . . . [and] he remained detached from Jewish issues during the most destructive and creative years in modern Jewish history.”193 Concerns about the war in Europe and fears of rising antisemitism only intensified Frankfurter’s reluc-tance to explicitly embrace or address the plurality of values and opin-ions that characterized American society.194 As the following Section III.B explores, while justices associated with the liberal wing of the Court began reevaluating their Progressive predecessors’ advocacy of judicial restraint, Frankfurter remained almost unwavering in his ac-ceptance of majoritarian rule, norms, and values. As I argue, while his liberal colleagues undertook the task of balancing particularism and 190 Urofsky, supra note 186, at 176. 191 Id. (quoting HAROLD L. ICKES, 2 THE SECRET DIARIES OF HAROLD L. ICKES 55 (1954)). 192 See AUERBACH, supra note 60, at 160. 193 Id. at 162. 194 As early as 1937, as the Court reversed course on the New Deal legislation, Frankfurter expressed his concerns about judicial activism. As Purcell writes, “while New Dealers rejoiced at their dramatic constitutional victories, Frankfurter expressed anguish and disgust at the Court’s dishonesty. ‘To me it is all painful beyond words—the poignant grief of one whose life has been dedicated to faith in the disinterested-ness of a tribunal and its freedom from responsiveness to the most obvious immedi-acies of politics.’” PURCELL, supra note 117, at 207. 34Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 905 universalism, Frankfurter held on to his faith in assimilation and judi-cial restraint. Eager to maintain a clear separation between law and politics, and to remove jurists from the messy task of choosing among competing private visions or values, Frankfurter offered litigants (and members of minority groups more broadly) what emancipation had of-fered the Jews a century earlier—the “quid pro quo of assimilation for rights.”195 B. “Neither Jew nor Gentile, neither Catholic nor Agnostic”196 The first victory for the modern discourse of civil rights came in 1938 (before Frankfurter’s nomination) as Justice Stone (soon to be Chief Justice) authored what has since been known as Carolene Prod-ucts Footnote Four.197 Stone, who “viewed the events taking place in Nazi Germany with great alarm,”198 suggested a critical role for the Supreme Court in a democratic society, namely the protection of civil rights and liberties against tyranny of the majority.199 Carolene Prod-ucts addressed “the constitutionality of the Filled Milk Act of 1923, which forbade the shipment in interstate commerce of skimmed milk containing fat or oils.”200 Mindful of the judiciary role, Stone, who wrote the majority opinion, exercised judicial restraint when evaluat-ing the statute, concluding that it was “reasonably related” to the leg-islative purpose, and therefore valid.201 Then, he “worked closely with his Jewish law clerk, Louis Lusky, on . . . [a] footnote”202 suggesting situations in which the Court might more strictly scrutinize legislative 195 See, e.g., Stolzenberg & Myers, supra note 62, at 635-36, 639. 196 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646-47 (1943) (Frankfur-ter, J., dissenting). 197 United States v. Carolene Prods. Co., 304 U.S. 144, 152-55 (1938). 198 HOWARD BALL, THE SUPREME COURT IN THE INTIMATE LIVES OF AMERICANS, Case Study: U.S. v. Carolene Products, 1938, Footnote 4, at 19 (2002). 199 See, e.g., Lincoln Caplan, Ruth Bader Ginsburg and Footnote Four, THE NEW YORKER, Sept. 13, 2013 (concluding that Footnote Four provides “a coherent justi-fication for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake”). 200 BALL, supra note 198. 201 Carolene Products Co., 304 U.S. at 154 (concluding that “the prohibition of shipment in interstate commerce of appellee’s product, as described in the indict-ment, is a constitutional exercise of the power to regulate interstate commerce”). 202 BALL, supra note 198, at 19. 35Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024906 TOURO LAW REVIEW Vol. 39 and executive actions. These situations included laws that infringed upon guarantees of the Bill of Rights, laws that “restrict[ed] . . . polit-ical [process],” and laws that discriminated against “discrete and insu-lar minorities.”203 As Laura Kalman summarizes the footnote’s im-pact: Stone “seized ‘the high ground of democratic theory’ from advocates of judicial restraint by claiming that the defects of the ma-joritarian process created the need for judicial review.”204 Rather than describing judicial review as “inherently undemocratic,” Stone aimed to “develop a theory of judicial review that could be compatible with a commitment to democracy.”205 Less than a year later, Lusky helped draft the ABA Special Committee on the Bill of Rights’ friend-of-the-court brief in Miners-ville School District v. Gobitis.206 The litigation was brought by the parents of William and Lillian Gobitas (misspelled Gobitis by the Court), who were expelled from their elementary school for refusing to salute the flag.207 The Gobitases questioned a local board of educa-tion’s requirement that all pupils participate in a daily ceremony of sa-luting the national flag while reciting the Pledge of Allegiance to it “and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all.”208 As Jehovah’s Witnesses, the Gobitas children were raised to believe that “such a gesture of respect for the flag was forbidden by command of [S]cripture.”209 Notably, the Pledge of Allegiance was composed in 1892 to define and protect “‘true Americanism’ against the rising tide of south-ern and eastern European immigrants ‘pouring over our country’ in the early 20th century from ‘races which we cannot assimilate without a lowering of our racial standard.’”210 Francis Bellamy, who drafted the Pledge, wanted to “‘mobilize the masses to support primary American 203 Carolene Products Co., 304 U.S. at 152. 204 LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 20 (1996). 205 HORWITZ, supra note 19, at 78. 206 Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 COLUM. L. REV. 1915, 1955 (2004). 207 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 591 (1940). 208 Id. 209 Id. at 591-92. 210 Christopher Petrella, The Ugly History of the Pledge of Allegiance—and Why It Matters, WASH. POST (Nov. 3, 1917), https://www.washing-tonpost.com/news/made-by-history/wp/2017/11/03/the-ugly-history-of-the-pledge-of-allegiance-and-why-it-matters/. 36Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 907 doctrines’ by warding off internal enemies hostile to ‘true American-ism’ . . . to consolidate white Anglo-Saxon Protestant American values that the white mainstream perceived as under siege.”211 In the late 1920s, states began requiring the recitation of the Pledge in schools around the country.212 By the time Gobitis was argued, the U.S. Su-preme Court had already “upheld state court decisions validating com-pulsory flag-salute laws four times.”213 For Lusky, Gobitis was an opportunity to promote the demo-cratic vision embedded in Footnote Four. The ABA brief was thus carefully crafted, concluding that “the compulsory flag salute violated the children’s free exercise of religion and individual liberty.”214 As Richard Danzig writes, “Gobitis’ lawyers saw [the] case as a conflict between the individual’s right of free exercise of religion and the sec-ular authority’s power to coerce conduct.”215 Seeking to bring the case within the promise of Footnote Four, the ABA brief thus focused on the difference between justifying democracy by reference to majoritar-ian rule and embracing a more substantive definition of democracy. As the brief stated: The philosophy of free institutions is now being sub-jected to the most severe test it has ever undergone. Ad-vocates of totalitarian government point to the speed and efficiency with which such systems are adminis-tered and assert that democracy can offer nothing to outweigh these advantages. The answer is to be found in the value of certain basic individual rights and the assurance afforded by free institutions that these shall not be required to yield to majority pressure no matter how overwhelming.216 211 Id. Bellamy was “a former pastor of Boston’s Bethany Baptist Church,” who was asked by Youth’s Companion (a children’s magazine) “to fashion a patriotic pro-gram for schools . . . to commemorate the 400th anniversary of Christopher Colum-bus’s ‘arrival in America’ by ‘raising the U.S. Flag over every public school from the Atlantic to the Pacific.’” Id. The words “under God” were added in 1954 to ward off “godless Communism.” Id. 212 Id. See also Jennifer Jacob Henderson, The Flag Salute before Gobitis and Barnette, 47 J. CHURCH & STATE 747, 750 (2005). 213 Urofsky, supra note 186, at 188. 214 SNYDER, supra note 18, at 352. 215 Danzig, supra note 26, at 680. 216 SNYDER, supra note 18, at 352. 37Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024908 TOURO LAW REVIEW Vol. 39 The strength of American democracy was its commitment to the pro-tection of individual rights and liberties against majoritarian will and power. Chief Justice Hughes saw matters differently; as did Frankfur-ter, whose “moving statement at conference on the role of the public education in instilling love of country in our pluralist society” con-vinced Hughes to assign the case to him.217 Reformulating the issue as a matter involving the appropriate institutional role of the Court (not the protection of First Amendment rights against tyranny of the major-ity),218 Frankfurter focused on judicial restraint. “Conscientious scru-ples,” do not “relieve[] the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs,” Frank-furter began.219 “Religious convictions” did not release citizens “from the discharge of political responsibilities.”220 Elected legislatures (and boards of education) were tasked with determining the balance be-tween particular values and majoritarian norms, not the Court. As Frankfurter put it: It is not our province to choose among competing con-siderations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while re-specting at the same time individual idiosyncrasies among a people so diversified in racial origins and reli-gious allegiances. So to hold would, in effect, make us the school board for the country. That authority has not been given to this Court, nor should we assume it.221 Rejecting Footnote Four’s substantive ideal of democracy, Frankfurter declared that it was not the Court’s role to mediate the plurality of identities, viewpoints, and values that characterized American soci-ety.222 217 Id. at 352-53. 218 Danzig, supra note 26, at 682. See also Urofsky, supra note 186, at 190 (noting that “Frankfurter paid practically no attention to the Gobitis’ claim that First Amend-ment rights of free exercise of religion had been violated, and in a nominal bow to balancing, found national unity a far more pressing matter”). 219 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594 (1940). 220 Id. at 594-95. 221 Id. at 598. 222 See, e.g., SNYDER, supra note 18, at 361 (“His Gobitis opinion reflected Frank-furter’s beliefs in a limited policy-making rule for the judiciary.”). 38Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 909 Frankfurter’s judicial restraint was intertwined with a deep commitment to the liberal separation of the public realm of politics and the private realm of identity, and a faith in assimilation. As Michael Parrish notes, Frankfurter “believed deeply in the public schools as nurseries of social cohesion and in the melting pot and assimilation as the only viable outcome for the nation’s ethnic and religious diver-sity.”223 Others commented that an obvious thread connected Frank-furter’s decision in Gobitis to his elementary school teacher’s insist-ence that in America one should speak English.224 Viewed through Jewish-American history lenses, Frankfurter’s decision reached deeper. With Nazism in Europe, Frankfurter was not only asserting a place in America to all individuals, irrespective of eth-nic origin, or religious affiliation, so long as they shed their individual differences, but also reaffirming his loyalty to his adopted country over his ethnic identity.225 As Frankfurter saw it, to dwell on or protect individual (or even group) beliefs against the expressed will of the ma-jority was disloyal as a social and legal matter. On New Year’s Day 1940, only a few months before the oral argument in Gobitis, Frank-furter wrote to Roosevelt explaining why loyalty to one’s country was so important to him: Not even you can quite feel what this country means to a man like me, who was brought here as an eager sen-sitive lad of twelve . . . from the moment we landed on Manhattan I knew, with the sure instinct of a child, that this was my native spiritual home. I began to read Eng-lish avidly, and very soon Lincoln became my hero.226 223 Parrish, supra note 145, at 56; see also Stolzenberg, supra note 28. 224 SNYDER, supra note 18, at 353; BURT, supra note 21, at 42. 225 Edward Purcell suggested a similar connection between Frankfurter’s eager-ness to assimilate and Frankfurter’s negative reaction to Brandeis’s decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), noting that Frankfurter’s reaction was “both personal and idiosyncratic for another, more speculative, reason. At the core of his values and self-image lay a deep ambivalence about the fact that he was Jewish. He harbored an intense desire to assimilate, to embrace the culture of the Anglo-Saxon Protestant elite, and to become—and to be considered—a true and authentic ‘American.’” PURCELL, supra note 117, at 212. According to Purcell, by rejecting Erie, Frankfurter sought to distance himself from Brandeis, “a Jew closely linked with Zionism, and identif[y] him[self] with near perfect and ‘Progressive’ embodi-ments of traditional, established. upper-class, old-family, Anglo-Saxon Protestant America.” Id. 226 SNYDER, supra note 18, at 348. 39Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024910 TOURO LAW REVIEW Vol. 39 Majoritarianism and loyalty were joined at the root.227 “National unity is the basis of national security,” Frankfurter stressed in Gobitis;228 he then elaborated: “The ultimate foundation of a free society is the bind-ing tie of cohesive sentiment. . . . ‘We live by symbols.’ The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.”229 National unity required a commitment to majoritarian symbols and values. Lest one forgets, Frankfurter was an advocate for civil rights. Back in the late 1910s, Frankfurter joined with others to publish a “Re-port upon the Illegal Practices of the United States Department of Jus-tice,” addressing abuses of the Espionage Act; he accepted an invita-tion to join the newly formed American Civil Liberties Union shortly thereafter.230 In 1927, he was chief among Progressive jurists who tirelessly attempted to prevent the execution of Nicola Sacco and Bar-tolomeo Vanzetti, the Italian anarchists who, as a remnant of the Red Scare of post-World War I, were convicted of robbery and murder in Braintree, Massachusetts, based on very sketchy evidence.231 Yet, when asked as a justice to uphold individual (and group) beliefs against majoritarian culture and rule, Frankfurter balked. If the Gobitas family was dissatisfied, his decision concluded, they could “fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies.”232 As Brad Snyder writes, “several people close to Frankfurter were horrified by his opinion.”233 Frankfurter’s law clerks were so shocked that they declared the decision “the end of our Justice’s role on the Court.”234 Justice Stone, who wrote the only dissent in Gobitis, charged that “the flag salute violated both freedom of speech and free 227 Id. at 353 (suggesting that during the conference on Gobitis, Frankfurter reiter-ated what he wrote to Roosevelt, leading Chief Justice Hughes to assign him the responsibility of writing the opinion). 228 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 595 (1940). 229 Id. at 596. 230 Lash, supra note 44, at 31. 231 SNYDER, supra note 18, at 160-86. 232 Gobitis, 310 U.S. at 600; see also SNYDER, supra note 18, at 356 (noting that, according to Frankfurter, “[i]f the parents did not like what the school was doing . . . the solution was not judicial intervention but resort to the democratic political pro-cess”). 233 SNYDER, supra note 18, at 359 234 Id.; see also Lash, supra note 44, at 69-70 (describing Harold Laski’s and Ben-jamin Cohen’s negative reactions). 40Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 911 exercise of religion.”235 As Stone saw it, Frankfurter’s opinion failed to follow the spirit of Footnote Four.236 Stone criticized Frankfurter’s decision, stating that “there are other ways to teach loyalty and patri-otism which are the sources of national unity, than by compelling the pupil to affirm that which he does not believe and by commanding a form of affirmance which violates his religious convictions[.]”237 Even Eleanor Roosevelt felt the need to say something. A few weeks after the decision was announced, she told Frankfurter that “there seemed to be something wrong with an opinion that forced little chil-dren to salute a flag when such a ceremony was repugnant to their con-science. She feared the decision would generate intolerance, espe-cially in a period of rising hysteria.”238 Despite his colleagues’ and friends’ reactions, Frankfurter would not budge. As Melvin Urofsky writes, “in the weeks following the decision, there had been hundreds of attacks on Witnesses, espe-cially in small towns and rural areas, and this pattern continued for at least two years.”239 But Frankfurter would not change course or even reevaluate his commitments. Two years after Gobitis, in Schneider-man v. United States,240 Frankfurter voted to revoke Schneiderman’s “naturalized citizenship on the grounds that he was an active Com-munist party member when naturalized,” a membership that the gov-ernment described as “necessarily inconsistent” with his Naturaliza-tion Oath of Allegiance.241 While Frankfurter did not write an opinion, his diary included a description of the case conference: I am saying what I am going to say because perhaps this case arouses in me feelings that could not be entertained by anyone else around this table. It is well known that a convert is more zealous than one born to the faith. None of you has had the experience that I have had with 235 SNYDER, supra note 18, at 356. 236 Danzig, supra note 26, at 687. 237 Gobitis, 310 U.S. at 603-04 (Stone, J., dissenting). 238 Lash, supra note 44, at 70. 239 Melvin I. Urofsky, William O. Douglas and Felix Frankfurter: Ideology and Personality on the Supreme Court, 24 THE HIST. TCHR. 7, 11. See also Justin Driver, The Greater Talker of His Time, THE ATLANTIC, Aug. 12, 2022 (noting that the “mis-begotten decision provoked violent attacks against Jehovah’s Witnesses across the nation and elicited scorn from journalists and academics alike”). 240 320 U.S. 118 (1943). 241 BURT, supra note 21, at 38. 41Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024912 TOURO LAW REVIEW Vol. 39 reference to the American citizenship . . . As one who has no ties with any formal religion, perhaps the feel-ings that underlie religious forms for me run into inten-sification of my feelings about American citizenship.242 Loyalty to a country superseded any concern for diverse values and opinions. Just as Frankfurter rejected particularism as a child, shed-ding old religious loyalties, he expected Schneiderman to have left the Communist Party before he became an American citizen.243 Seven justices joined Frankfurter in Gobitis; two years later, however, the liberal side of the Court began embracing a more sub-stantive vision of democracy. Rather than viewing democracy as a commitment to majoritarian rule, they developed a concept of democ-racy that was grounded in the protection of minorities against majori-tarian power. In Schneiderman, five justices rejected the federal gov-ernment’s attempt to denaturalize Schneiderman.244 Justice Murphy delivered the opinion of the Court, joined by Justices Black, Reed, Douglas, and Rutledge.245 A week before the decision in Schneiderman was announced, in West Virginia State Board of Education v. Barnette,246 a similar majority (Justice Jackson joined by Stone, Black, Douglas, Murphy, and Rutledge) overruled Gobitis.247 Justice Jackson wrote the majority opinion, explaining: “The very purpose of a Bill of Rights was to with-draw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”248 Then, refram-ing the flag-salute controversy as analogous to issues involving free-dom of speech,249 Jackson elaborated: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assem-bly, and other fundamental rights may not be submitted to vote; they 242 Id. at 40-41. 243 Id. at 42. 244 Schneiderman, 320 U.S. at 161. 245 Id. 246 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 638 (1943). 247 A year earlier, in Jones v. Opelika, 316 U.S. 584 (1942), Murphy, Black, and Douglas had already indicated that they were wrong in Gobitis. Urofsky, supra note 239, at 10-11. 248 Barnette, 319 U.S. at 638. 249 Danzig, supra note 26, at 711. 42Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 913 depend on the outcome of no elections.”250 As the majority opinion saw it, these were not issues left to the legislative or executive branches; the Court’s role was indeed to safeguard the “individual id-iosyncrasies” that Frankfurter refused to protect in Gobitis.251 Douglas and Black, who voted with Frankfurter in Gobitis, clarified why they changed their position, offering a direct assault on Frankfurter’s focus on loyalty. As they explained: Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions. These laws must, to be con-sistent with the First Amendment, permit the widest tol-eration of conflicting viewpoints consistent with a so-ciety of free men.”252 Against European totalitarianism, Douglas and Black anchored the le-gitimacy of democratic regimes not in majoritarianism but in a com-mitment to civil rights and liberties. Frankfurter wrote the only dissent in Barnette, again stressing his commitment to majoritarian rule and culture. Refusing to see the issue differently than the way he framed it in Gobitis, Frankfurter’s decision began with a personal statement: “One who belongs to the most vilified and persecuted minority in history is not likely to be in-sensible to the freedoms guaranteed by our Constitution.”253 But even the personal statement was equivocal. Frankfurter did not explicitly state that he was Jewish; rather, he belonged to a “vilified and perse-cuted minority.”254 As his statement continued, his rejection of plural-ism became more pronounced. Responding to calls he received sug-gesting that, as a Jew, he should protect minorities’ rights,255 Frankfurter stressed that the solution to the minority problem (and the Jewish one) demanded a trust in majoritarian democracy. “As a mem-ber of this Court” Frankfurter wrote: 250 Barnette, 319 U.S. at 638. 251 See discussion supra circa notes 218-232. 252 Barnette, 319 U.S. at 644. 253 Id. at 646. 254 Id. 255 Lash, supra note 44, at 253-54. 43Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024914 TOURO LAW REVIEW Vol. 39 I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cher-ish them or how mischievous I may deem their disre-gard. . . . I cannot bring my mind to believe that the ‘lib-erty’ secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legit-imate legislative end, namely, the promotion of good citizenship, by employment of the means here cho-sen. . . . Any person may therefore believe or disbelieve what he pleases. He may practice what he will in his own house of worship or publicly within the limits of public order. But the lawmaking authority is not cir-cumscribed by the variety of religious beliefs, other-wise the constitutional guaranty would be not a protec-tion of the free exercise of religion but a denial of the exercise of legislation.256 Individuals were free to practice their religion in the private sphere, but in public, majoritarian culture and norms ruled. In a letter to Justice Jackson, Frankfurter explained that his dis-sent in Barnette was “the expression of my credo regarding the func-tion of this Court in invalidating legislation.”257 The First Amendment granted “freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma,” Frankfurter sim-ilarly wrote in his dissent.258 It provoked Justice Douglas’s harsh crit-icism: “The Frankfurter philosophy was finally exposed in that dissent: he held that although free exercise of religion was guaranteed by the First and Fourteenth Amendments, the legislature could nonetheless regulate it by invoking the concept of due process, provided they stayed within reasonable limits.”259 And five decades later, Melvin Urofsky wrote: “The tragedy of Mr. Justice Frankfurter was that he became a prisoner of an idea—judicial restraint—and failed to 256 Barnette, 319 U.S. at 647, 654. 257 Urofsky, supra note 186, at 193. 258 Barnette, 319 U.S. at 653. 259 WILLIAM O. DOUGLAS, THE COURT YEARS, 1939-1975, at 45 (1981); see also Urofsky, supra note 186, at 193. 44Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 915 distinguish between the regulation of economic and property rights and limitations upon individual liberties.”260 Frankfurter’s dissenting and concurring decisions in the fol-lowing years continued to reflect his commitment to judicial restraint and assimilation. For one, in 1944, he joined the Court in upholding the internment of Japanese Americans, stressing that the issue was one for elected officials to determine, not the courts.261 “To find that the Constitution does not forbid the military measures now complained of,”—Frankfurter felt the need to emphasize in his concurring opinion in Korematsu v. United States—“does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.”262 In 1949, he directly attacked Footnote Four, stressing that “the Carolene footnote did not purport to announce any new doctrine . . . . It certainly did not assert a presumption of invalidity against all legislation touching matters related to liberties protected by the Bill of Rights and the Fourteenth Amendment.”263 And in 1951, in Dennis v. United States,264 Frankfurter concurred in upholding the conviction of top leaders of the American Communist Party for advocating the vio-lent overthrow of the U.S. government.265 Against the legacy of his heroes, Holmes and Brandeis, Frankfurter extended judicial deference to legislation affecting freedom of speech.266 “History teaches,” Frankfurter’s concurrence in Dennis stressed, “that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing be-tween competing political, economic and social pressures.”267 260 Urofsky, supra note 186, at 195. 261 Korematsu v. United States, 323 U.S. 214, 225 (1944) (Frankfurter, J., concur-ring). 262 Id. 263 Kovacs v. Cooper, 336 U.S. 77, 91 (1949) (Frankfurter, J., concurring); see also Cover, supra note 134, at 1290. 264 341 U.S. 494 (1951). 265 Id. at 517. 266 HORWITZ, supra note 19, at 58-59 (noting that Frankfurter substituted “a bal-ancing test, weighing the government’s interest in suppressing speech against the individual speaker’s First Amendment interest” for Holmes’s and Brandeis’s “clear and present danger” rule. The balancing test “gave the government much more lee-way to enact measures repressive of political speech.”). 267 Dennis, 341 U.S. at 525 (Frankfurter, J., concurring). To understand the rift between Frankfurter and his liberal colleagues, it is worth comparing Frankfurter’s statement in Dennis to a statement Justice Douglas delivered in Bell v. Maryland, 45Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024916 TOURO LAW REVIEW Vol. 39 “Frankfurter’s opinion in Dennis, read in light of history,” Melvin Urofsky pointedly wrote, “reflects more of judicial abdication of re-sponsibility than measured deference and restraint.”268 Notably, Frankfurter’s reluctance to address pluralism reached deeper than his commitment to judicial restraint. Often, he used the rhetoric of judicial restraint as a justification for upholding laws, but on several occasions, evading pluralism required striking down legis-lative actions. Two such cases involved programs that allowed for re-ligious education (or release for such education) in public schools: McCollum v. Board of Education269 and Zorach v. Clauson.270 In both, Frankfurter described the arrangements as being 378 U.S. 226 (1964), a case involving the conviction for trespass of Black students who engaged in a sit-in demonstration at a Baltimore restaurant. Because, prior to disposition of the case on writ of certiorari, the State of Maryland enacted laws “that abolish the crime of which petitioners were convicted,” id. at 228, Justice Brennan, writing for the court, vacated and reversed the judgments of the Maryland Court of Appeals, remanding the case to the latter “so that it may consider the effect of the supervening change in state law.” Id. Douglas wrote a concurring opinion, sharply criticizing the court’s refusal to address the issue: The whole Nation has to face the issue; Congress is conscien-tiously considering it; some municipalities have had to make it their first order of concern; law enforcement officials are deeply implicated, North as well as South; the question is at the root of demonstrations, unrest, riots, and violence in various areas. The issue, in other words, consumes the public attention. Yet we stand mute, avoiding decision of the basic issue by an obvious pretense . . . [W]e leave resolution of the conflict to others, when, if our voice were heard, the issues for the Congress and for the public would become clear and precise. The Court was created to sit in troubled times, as well as in peaceful days. Id. at 242-43. 268 Urofsky, supra note 186, at 203. 269 333 U.S. 203, 212-32 (1948) (Frankfurter, J., concurring). McCollum involved a First and Fourteenth Amendment challenge to a decision of the Champagne Board of Education to allow “religious teachers, employed by private religious groups . . . to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there, for a period of thirty minutes, substitute their religious teaching for the secular education provided under the compulsory education law.” Id. at 205. 270 343 U.S. 306, 320-23 (1952) (Frankfurter, J., dissenting). Zorach involved a “New York City . . . program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises.” Id. at 308. 46Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 917 unconstitutional.271 In both, his message was consistent with cases in which he exercised restraint—the majoritarian secular culture need not, in fact could not, accommodate particular beliefs (or different re-ligious cultures more broadly).272 In 1961, similar assumptions led Frankfurter to uphold Sunday blue laws. Rejecting a suggestion made by Orthodox Jews, among others, that one-day-a-week laws could ef-fectively substitute for Sunday laws, Frankfurter wrote: [O]ne day a week laws do not accomplish all that is ac-complished by Sunday laws. They provide only a peri-odic physical rest, not that atmosphere of entire com-munity repose which Sunday has traditionally brought and which, a legislature might reasonably believe, is necessary to the welfare of those who, for many gener-ations have been accustomed to its recuperative ef-fects.273 The trust in majoritarian rule was anchored in an endorsement of ma-joritarian culture.274 Indeed, even his decision to join the Court’s unan-imous opinion in Brown v. Board of Education275 reflected Frankfur-ter’s belief that all individuals—irrespective of their background—should assimilate into the dominant American culture.276 271 See McCollum, 333 U.S. at 231 (Frankfurter, J., concurring) (“‘The great Amer-ican principle of eternal separation’—Elihu Root’s phrase bears repetition—is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court’s duty to enforce this principle in its full integrity.”); Zorach, 343 U.S. at 321 (“The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released time program are compelled to attend”.). 272 See also Stolzenberg, supra note 28, at 829 (arguing that McCollum, perhaps more than Gobitis and Barnette, supports the suggestion that Frankfurter’s “endorse-ment of judicial restraint was actually driven by his personal approbation of state-sponsored assimilation rather than the other way around”). 273 McGowan v. Maryland, 366 U.S. 420, 506-07 (1961) (Frankfurter, J., concur-ring). 274 Notably, at least one study suggested that Frankfurter did not exercise judicial restraint in cases that involved economic questions, specifically labor and business regulation. See generally Harold J. Spaeth, The Judicial Restraint of Mr. Justice Frankfurter—Myth or Reality, 8 MIDWEST J. POL. SCI. 22, 23 (1964). 275 347 U.S. 483 (1954). 276 See Stolzenberg, supra note 28, at 835 (“Although centrally concerned with the meaning of racial equality, Brown was also a case about the nature, and legitimacy, of acculturation conducted via the public schools. Both proponents and critics of 47Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024918 TOURO LAW REVIEW Vol. 39 Using the rhetoric of judicial restraint, Frankfurter refused to defend what he viewed perhaps as individual idiosyncrasies; in fact, he refused to consider the Court’s role in protecting the multiplicity of values, identities, and viewpoints that characterized modern American society. As Louis Jaffe said at the time, Frankfurter was “forever dis-posing of issues by assigning their disposition to some other sphere of competence.”277 Alexander Bickel, the clerk who worked with Frank-furter on Brown,278 similarly commented that Frankfurter “devised all these jurisdictional ways of withdrawing from problems that were in-soluble or that were overly difficult.”279 Concerned about antisemitism in Europe and the United States, Frankfurter devised a jurisprudence that allowed him to evade the question that troubled legal scholars at least since the turn of the twentieth century: in a pluralistic society, are all values, opinions, and identities valid? IV. EPILOGUE At least since Oliver Wendell Holmes challenged the descrip-tion of law as a body of natural and neutral rules, jurists struggled with the modernist dilemma. On the one hand, to allow the state to exercise power over diverse groups risked imposing one’s own concededly par-tial interests and beliefs in the name of a public good. On the other hand, the alternative of deferring to groups risked moral relativism, maybe even nihilism. Faced with diverse social and cultural interests and hence with a variety of visions of what law ought, as a social and political matter, to be, some jurists adopted one system of beliefs and treated it as the primary guiding light in their analysis of law. Many Progressives and New Dealers, for example, assumed the existence of correct answers to policy questions and the inability of conservative judges to reach them.280 Similarly, the idea of shared fundamental values deeply in-fluenced the decisions of the Warren Court. But by midcentury, the growing emphasis on ethnic and cultural differences gradually eroded school integration perceived it as a method of assimilating students into the public culture.”). 277 Louis L. Jaffe, The Judicial Universe of Mr. Justice Frankfurter, 62 HARV. L. REV. 357, 359 (1949). 278 SNYDER, supra note 18, at 572. 279 Lash, supra note 44, at 82 (quoting Bickel). 280 See, e.g., TSUK MITCHELL, supra note 114, at 44-47. 48Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 919 Progressives’ and New Dealers’ trust in universal answers and, in so doing, placed the modernist dilemma at the center of social, political, and legal debates. The academic reaction to the Warren Court and the civil rights movement illustrated how intensely scholars experienced this di-lemma. In certain circles, Horace Kallen’s ideal of cultural pluralism rapidly gained prominence. Writing in 1950, Oscar Handlin, for ex-ample, celebrated the hyphenated Jewish-American, reassuring Amer-ican Jews that “their support of Israel did not imply disloyalty to Amer-ica.”281 According to Handlin, the American ideal was one of multiple loyalties, of expansive national identity.282 In 1956, Kallen himself, while reassessing his cultural pluralist ideal, labeled it “the American ideal.”283 As Kallen saw it, this ideal “was embodied in four revolu-tionary theses set forth in the Declaration of Independence”: “that all men are created equal”; “that ‘life, liberty, and the pursuit of happi-ness’ are every man’s unalienable rights”; that the government has a duty to “secure these rights”; and “that when government neglects or fails to perform the services for which it was devised, the people who instituted the government may ‘alter or abolish it’ and replace it with a ‘new government.’”284 While Kallen clearly recognized that these ideals were not always fulfilled, the successes of the civil rights move-ment sustained his belief that they would eventually be realized.285 Other scholars pushed the pendulum in the other direction. Across the spectrum of academic literature, the 1950s saw the prioriti-zation of form and procedure over the discussion of values. As Morton Horwitz has written, “from analytical philosophy to legal positivism and behaviorism in the social science to New Criticism in literature, postwar academic thought sought to repress politics by devoting its 281 EDWARD S. SHAPIRO, WE ARE MANY: REFLECTIONS ON AMERICAN JEWISH HISTORY AND IDENTITY 45-46 (2005). 282 Oscar Handlin, Do Israel Ties Conflict with U.S. Citizenship? America Recog-nizes Diverse Loyalties, COMMENTARY (Mar. 1950) (“By the nature of its heritage America is committed; only by denying its own past could it turn away from the multi-cultural pattern which has thus far enriched it. That is not likely to happen.”). 283 Ratner, supra note 59, at 53. 284 Id. at 53-54. 285 Id. See also Horace M. Kallen, Cultural Pluralism and the American Ideal: An Essay in Social Philosophy (1956). 49Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024920 TOURO LAW REVIEW Vol. 39 energies to form instead of substance and to technical accomplish-ments at the expense of social and political insight.”286 In law, the turn to process reinvigorated Frankfurter’s jurispru-dential approach as a new cohort of legal scholars, including Alexan-der Bickel, Herbert Wechsler, Harry Wellington, Albert Sacks, and Henry Hart, sought to find institutional and conceptual frameworks that would promote democracy by ensuring judicial restraint.287 Against the Warren Court’s substantive conception of democracy, that is, the notion that the Court’s role was to protect minority groups against the tyranny of the majority, these scholars reintroduced Frank-furter’s conception of democracy. Relying on the newly developed political theory of interest group pluralism, these scholars described the legislature as the governmental body best situated to make policy choices that would accommodate the needs of diverse interest groups, while the role of the judiciary was limited to offering guidance to the legislature, specifically about appropriate processes, and to guarantee-ing that legislative processes would not unfairly exclude certain groups, specifically Black Americans.288 As the following elaborates, these scholars’ analysis of the Court’s limited role helped shift the at-tention of the legal community from concerns about the rights of mi-nority groups to apprehension about the Court’s power of judicial re-view—from substantive evaluations of power and vulnerability to obsession with process and procedure. Take, for example, Herbert Wechsler’s search for neutral prin-ciples that could justify Brown v. Board of Education. Finding it dif-ficult to accept that “racial segregation is, in principle, a denial of equality to the minority against whom it is directed,” Wechsler wrote: For me, assuming equal facilities, the question posed by state-enforced segregation is not one of discrimination at all. Its human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of the 286 HORWITZ, supra note 115, at 253. 287 See also PURCELL, supra note 117, at 223 (noting that “[d]uring the 1950 the jurisprudence of institutional process came to dominate academic legal thought. One variant, emphasizing what its proponents called ‘reasoned elaboration’ and ‘process jurisprudence,’ was inspired by Frankfurter and associated with Harvard Law School”). 288 Reuel E. Schiller, From Group Rights to Individual Liberties: Post-war Labor Law, Liberalism, and the Waning of Union Strength, 20 BERKELEY J. EMP. & LAB. L. 13-16 (1999). 50Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 921 freedom to associate, a denial that impinges in the same way on any groups or races that may be involved.289 Ironically, Wechsler was at a loss to provide a neutral principle for holding that “where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it . . . the Constitution demands that the claims for association should prevail[.]”290 Still, he insisted that the freedom of association was a neutral principle while antidiscrimination could not serve this function. Freedom of association was neutral, because un-like the discourse of antidiscrimination, freedom of association did not require recognition of the unique experiences of Black Americans.291 In turn, Alexander Bickel viewed “judicial review [as] at least potentially a deviant institution in a democratic society”292 (Bickel coined the term countermajoritarian difficulty). Bickel, who was de-scribed as “an inveterate confronter of orthodoxies—liberal or con-servative,”293 wanted the Court to abstain from addressing cases in-volving values: The Court is able to play its full role, as it did in the Segregation Cases, maintaining itself in the tension on which our society thrives, because at least in modern times it nearly always has three courses of action open to it: it may strike down legislation as inconsistent with principle; it may legitimate it; or it may do neither. When it does neither, it need not forsake its educational function, nor abandon principle. Indeed, very often it engages in a Socratic dialogue with the other institu-tions and with society as a whole concerning the neces-sity for this or that measure, for this or that compro-mise.294 289 Wechsler, supra note 45, at 33-34. 290 Id. at 34. 291 HORWITZ, supra note 115, at 265-68. On the significance of freedom of asso-ciation to postwar jurisprudence, see also Tsuk Mitchell, supra note 29, at 201-04. 292 Alexander M. Bickel, Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 47 (1961). 293 Abraham Chayes, Alexander M. Bickel: A Personal Remembrance, 88 HARV. L. REV. 693, 694 (1975). 294 Bickel, supra note 292, at 50. 51Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024922 TOURO LAW REVIEW Vol. 39 As Gary Minda notes, “Bickel followed Wechsler’s neutral principles theory to its logical conclusion . . . that the Supreme Court should stay out of ‘social policy’ adjudication altogether. By the early 1970s, Bickel embraced Burkean conservatism to justify limiting the role of the Court.”295 Similarly, Harry Wellington argued that the Court should not impose constitutional constraints “whenever any organization or group performs a function of a sufficiently important public nature.”296 Only as “a last resort” could the Court strike down legislation to promote values that “most people in society desired in the long run.”297 Finally, Henry Hart and Albert Sacks wanted to shift attention from the traditional emphasis on the common law to the role that leg-islation and regulation, as well as institutional structures, had in pro-moting social change. “The starting point of the response which hu-man beings seem invariably to make to the basic conditions of human existence,” Hart and Sacks explained, “is to recognize the fact of their interdependence with other human beings and the community of inter-est which grows out of it. So recognizing, people form themselves into groups for the protection and advancement of their common interests, or they accept membership in groups formed by others.”298 Given such multiplicity of groups in modern society, Hart and Sacks stressed: [S]ubstantive understandings or arrangements about how the members of an interdependent community are to conduct themselves in relation to each other and to the community necessarily imply the existence of what may be called constitutive or procedural understand-ings or arrangements about how questions in connec-tion with arrangements of both types are to be set-tled. . . . These institutionalized procedures and the constitutive arrangements establishing and governing them are obviously more fundamental than the substan-tive arrangements in the structure of a society, if not in 295 MINDA, supra note 45, at 45; see also id. at 39 (noting that “Bickel thought that the Supreme Court could avoid adjudicating controversial issues, which raised es-sentially political questions, more appropriately resolved by the legislative and pop-ular vote”). 296 Harry H. Wellington, The Constitution, the Labor Union, and “Governmental Action,” 70 YALE L.J. 345, 374 (1961). 297 Schiller, supra note 288, at 16. 298 HART & SACKS, supra note 45, at 3. 52Touro Law Review, Vol. 39, No. 3 [2024], Art. 10https://digitalcommons.tourolaw.edu/lawreview/vol39/iss3/102024 MEDIATING PLURALISM 923 the realization of its ultimate aims, since they are at once the source of the substantive arrangements and the indispensable means of making them work effec-tively.299 Building upon the progressives’ and legal realists’ argument that adju-dication involved policymaking, Hart and Sacks argued that adherence to procedure would allow judges to avoid making “subjective value decisions.”300 As Morton Horwitz pointedly noted, “the Legal Process materials symbolize the moment in post-war history at which the New Deal lawyers’ conception of the ‘common interest’ came to be thor-oughly transformed from one of substance to one of procedure.”301 Rarely, discussions of this postwar turn to process note that, like Frankfurter, most of the scholars mentioned above were first- and second-generation Jewish Americans.302 Such an omission has helped sustain a vision of legal theory as immune to the influences of cultural, social, and even personal interests. Yet, calling attention to jurists’ cultural and religious background can only enrich our understanding of the development of American legal thought in the twentieth century. At the very least, I hope this Article demonstrated that Frankfurter’s commitment to judicial restraint, indeed his faith in majoritarian de-mocracy, was informed by his personal experiences as a first-genera-tion Jewish American. 299 Id. at 3. 300 MINDA, supra note 45, at 35. 301 HORWITZ, supra note 115, at 255. 302 For exceptions, see Stolzenberg, supra note 28; Schulman, supra note 31. Of course, not all writers associated with the legal process school were Jewish. For more on different scholars that can be associated with the legal process school, see David Wolitz, Herbert Wechsler, Legal Process, and the Jurisprudential Roots of the Model Penal Code, 51 TULSA L. REV. 633, 633 n.3 (2016). 53Tsuk: Mediating PluralismPublished by Digital Commons @ Touro Law Center, 2024 |
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