Felix Frankfurter

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Judicial judgment must take deep account...of the day before yesterday in order that yesterday may not paralyze today.

Felix Frankfurter (November 15, 1882February 22, 1965) was an Associate Justice of the Supreme Court of the United States.

Sourced[edit]

Judicial opinions[edit]

A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.
The indispensible judicial requisite is intellectual humility.
  • The Amendment nullifies sophisticated as well as simple-minded modes of discrimination.
  • In this Court dissents have gradually become majority opinions.
    • Concurring, Graves v. New York ex rel. O'Keefe, 306 U.S. 446 (1939).
  • The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.
    • Concurring, Graves v. New York ex rel. O'Keefe, 306 U.S. 446 (1939).
  • To be effective, judicial administration must not be leaden-footed.
    • Cobbledick v. United States, 309 U.S. 323, 324 (1940).
  • It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it.
    • Nashville, Chattanooga & St. Louis Railway. v. Browning, 310 U.S. 362, 369 (1940).
  • National unity is the basis of national security. To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression opinion through handbills.
    • Minersville School District v. Gobitis, 310 U.S. 586 (1940).
  • It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guarantee of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guarantee of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.
    • Writing for the court, Milk Wagon Drivers Union of Chicago, Local 753. v. Meadowmoor Dairies, Inc., 312 U.S. 287 (1941).
  • Of compelling consideration is the fact that words acquire scope and function from the history of events which they summarize.
    • Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 185-186 (1941).
  • Litigation is the pursuit of practical ends, not a game of chess.
    • Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69 (1941).
  • The line must follow some direction of policy, whether rooted in logic or experience. Lines should not be drawn simply for the sake of drawing lines.
    • Dissenting in Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558 (1942).
  • No court can make time stand still.
    • Writing for the court, Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942).
  • A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.
    • Concurring, Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54 (1943).
  • The history of liberty has largely been the history of the observance of procedural safeguards.
    • Writing for the court, McNabb v. United States, 318 U.S. 332 (1943).
  • 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... But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.
  • Is that which was deemed to be of so fundamental a nature as to be written into the Constitution to endure for all times to be the sport of shifting winds of doctrine?
  • After all, advocates, including advocates for States, are like managers of pugilistic and election contestants, in that they have a propensity for claiming everything.
    • First Iowa Coop. v. Power Comm'n., 328 U.S. 152, 187 (1946).
  • In any event, mere speed is not a test of justice. Deliberate speed is. Deliberate speed takes time. But it is time well spent.
    • First Iowa Coop. v. Power Comm'n., 328 U.S. 152, 188 (1946).


  • The course of decision in this Court has thus far jealously enforced the principle of a free society secured by the prohibition of unreasonable searches and seizures. Its safeguards are not to be worn away by a process of devitalizing interpretation.
    • Davis v. United States, 328 U.S. 582, 597 (1946).
  • It is not only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.
    • Davis v. United States, 328 U.S. 582, 597 (1946).
  • If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process.
  • In law also the emphasis makes the song.
    • Bethlehem Steel Co. v. New York State Labor Relations Board 330 U.S. 767, 780 (1947).
  • The Procrustean bed is not a symbol of equality. It is no less inequality to have equality among unequals.
    • Dissenting in New York v. United States, 331 U.S. 284, 353 (1947).
  • It has not been unknown that judges persist in error to avoid giving the appearance of weakness and vacillation.
    • Craig v. Harney, 331 U.S. 367, 392 (1947).
  • Decisions of this Court do not have intrinsic authority.
    • Adamson v. California, 332 U.S. 46, 59 (1947).
  • If one starts with the assumption that, in the absence of specific Congressional authority, a fixed rule of law precludes contracting officers from providing in a Government contract terms reasonably calculated to assure its performance even though there be no money loss through a particular default, there is no problem. But answers are not obtained by putting the wrong question and thereby begging the real one.
    • Dissenting, Priebe and Sons v. United States, 332 U.S. 407, 420 (1947).
  • If nowhere else, in the relation between Church and State, "good fences make good neighbors."
    • McCollum v. Board of Education, 333 U.S. 203, 232 (1948).
  • After all, this is the Nation's ultimate judicial tribunal, nor a super-legal-aid bureau.
    • Dissent, Uveges v. Pennsylvania, 335 U.S. 437 (1948).
  • The indispensible judicial requisite is intellectual humility.
    • Concurring, American Federation of Labor v. American Sash & Door Co., 335 U.S. 538 (1949).
  • A court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not on another occasion indulge its own will.
    • Concurring, American Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 557 (1949).
  • Wisdom too often never comes, and so one ought not to reject it merely because it comes late.
    • Dissenting, Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 600 (1949).
  • Ambiguity lurks in generality and may thus become an instrument of severity.
    • McComb v. Jacksonville Paper Co., 336 U.S. 187, 197 (1949).
  • There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men.
    • Watts v. Indiana, 338 U.S. 49, 52 (1949).
  • It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.
    • United States v. Rabinowitz, 339 U.S. 56, 69 (1950).
  • It is a wise man who said that there is no greater inequality than the equal treatment of unequals.
  • The mark of a truly civilized man is confidence in the strength and security derived from the inquiring mind.
    • Dennis v. United States, 241 U.S. 494, 556 (1951).
  • [It is anomalous] to hold that in order to convict a man the police cannot extract by force what is in his mind, but can extract what is in his stomach.
    • Writing for the court, Rochin v. California, 342 U.S. 165 (1952). The unanimous decision reversed the conviction of an alleged drug addict because evidence was obtained by forced stomach pumping.
  • A license cannot be revoked because a man is redheaded or because he was divorced, except for a calling, if such there be, for which redheadedness or an unbroken marriage may have some rational bearing. If a State licensing agency lays bare its arbitrary action, or if the State law explicitly allows it to act arbitrarily, that is precisely the kind of State action which the Due Process Clause forbids.
    • Barsky v. Board of Regents, 347 U.S. 442, 470 (1954).
  • Without a free press there can be no free society. That is axiomatic. However, freedom of the press is not an end in itself but a means to the end of a free society. The scope and nature of the constitutional guarantee of the freedom of the press are to be viewed and applied in that light.
    • New York Times (November 28, 1954).
  • While it is not always profitable to analogize "fact" to "fiction," La Fontaine's fable of the crow, the cheese, and the fox demonstrates that there is a substantial difference between holding a piece of cheese in the beak and putting it in the stomach.
    • Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 170 (1957).
  • Lincoln's appeal to "the better angels of our nature" failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's first and second inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.
    • Concurring, Cooper v. Aaron, 358 U.S. 1 (1958).
  • Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance in the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts.
    • Frank v. Maryland, 359 U.S. 360, 372 (1959); majority opinion in 5-4 ruling that allowed health inspectors to enter a private home without a search warrant (May 4, 1959).
  • Congress is, after all, not a body of laymen unfamiliar with the commonplaces of our law. This legislation was the formulation of the two Judiciary Committees, all of whom are lawyers, and the Congress is predominately a lawyers' body.
    • Callanan v. United States, 364 U.S. 587, 594 (1961).
  • Convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.
    • Rogers v. Richmond, 365 U.S. 534, 540-41 (1961).
  • In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives.
  • Appeal must be to an informed, civically militant electorate.

Other writings[edit]

The mode by which the inevitable is reached is effort.
  • The eternal struggle in the law between constancy and change is largely a struggle between history and reason, between past reason and present needs.
    • Twenty Years of Mr. Justice Holmes' Constitutional Opinions, 36 HARV. L. REV. 909, 931 (1923).
  • In the first place, lawyers better remember they are human beings, and a human being who hasn't his periods of doubts and distresses and disappointments must be a cabbage, not a human being. That is number one.
    • Reported in Proceedings in honor of Mr. Justice Frankfurter and distinguished alumni at the meeting of the Council, Harvard Law School Association in Cambridge, April 30, 1960.
  • Gratitude is one of the least articulate of the emotions, especially when it is deep. I can express with very limited adequacy the passionate devotion to this land that possesses millions of our people, born, like myself, under other skies, for the privilege that that this county has bestowed in allowing them to partake of its fellowship.
    • Speech accepting an award from the National Institute for Immigrant Welfare, Biltmore Hotel, New York (May 11, 1933).
  • No judge writes on a wholly clean slate.
    • The Commerce Clause (1937), p. 12.
  • It is true of opinions as of other compositions that those who are seeped in them, whose ears are sensitive to literary nuances, whose antennae record subtle silences, can gather from their contents meaning beyond the words. All this presupposes, of course, a grasp of the nature of the Supreme Court's functions — the scope and limits of its constitutional authority — and often, as well, familiarity with the record and briefs of a particular case whose opinion record and briefs of a particular case whose opinion is under scrutiny.
    • "'The Administrative Side' of Chief Justice Hughes", 63 Harvard Law Review 1, 2 (1949).
  • The words of the Constitution ... are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.
    • The Supreme Court, vol. 3, no. 1, Parliamentary Affairs (London, Winter 1949).
  • What becomes decisive to a Justice's functioning on the Court in the large area within which his individuality moves is his general attitude toward law, the habits of the mind that he has formed or is capable of unforming, his capacity for detachment, his temperament or training for putting his passion behind his judgment instead of in front of it. The attitudes and qualities which I am groping to characterize are ingredients of what compendiously might be called dominating humility.
    • Foreward, to "Memorial issue for Robert H. Jackson", 55 Columbia Law Review (April, 1955) p. 436; quoted by United States Senator Howell Heflin during the confirmation debate for Justice David Souter, on September 24, 1990, S13540.
  • One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the Supreme Court is zero.
    • "The Supreme Court in the Mirror of Justice," University of Pennsylvania Law Review (April, 1957), p. 786.
  • The mode by which the inevitable is reached is effort.
    • Quoted by Garson Kanin in Atlantic (March 1964).
  • I came into the world a Jew, and although I did not live my life entirely as a Jew, I think it is fitting that I should leave as a Jew. I don’t want to … turn my back on a great and noble heritage.
    • Quoted by Garson Kanin in Atlantic (March 1964).
  • All our work, our whole life is a matter of semantics, because words are the tools with which we work, the material out of which laws are made, out of which the Constitution was written. Everything depends on our understanding of them.
    • Reply to counsel who said a challenge from the bench was “just a matter of semantics,” Reader’s Digest (June 1964).
  • Litigation is the pursuit of practical ends, not a game of chess.
    • News summaries (August 9, 1964).
  • As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.
    • News summaries (August 9, 1964).
  • For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guaradians - those impersonal convictions that made a society a civilized community, and not the victims of personal rule.
    • A Heritage For All Who Love The Law 51 ABAJ 330 (1965); quoted by United States Senator Howell Heflin during the confirmation debate for Justice David Souter, on September 24, 1990, S13540.
  • Judicial judgment must take deep account...of the day before yesterday in order that yesterday may not paralyze today.
    • Quoted in National Observer (Silver Spring, Maryland, March 1, 1965).
  • I know of no title that I deem more honorable than that of Professor of the Harvard Law School.
    • Of Law and Life and Other Things: Papers and Address of Felix Frankfurter (1965).

Felix Frankfurter Reminisces (1960)[edit]

Quotes reported in Harlan Buddington Phillips, Felix Frankfurter Reminisces (1960).

  • Morals are three-quarters manners.
    • P. 12. In the interview, Phillips quotes the line to Frankfurter from a letter written by the Justice, and Frankfurter attributes the phrase to a friend named Matthew Arnold.
  • Emerson said to him, "Young man, have you read Plato?" Holmes said he hadn't. "You must. You must read Plato. But you must hold him at arm's length and say, 'Plato, you have delighted and edified mankind for two thousand years. What have you to say to me?'" Holmes said, "That's the lesson of independence." So off he went and read Plato for a few moths or a year, and then wrote a piece doing in Mr. Plato in one of those ephemeral literary things at Harvard. He laid this, as it were, at the feet of Mr. Emerson and awaited the next morning's mail, hoping to get a warm appreciation from Emerson. And the next day and the next and the next — no sign of life. No acknowledgment from Mr. Emerson. Holmes didn't see him again for about a year. When he saw him, this, that, and the other thing was again talked about. Emerson said, "Oh, by the way, I read your piece on Plato. Holmes, when you strike at a king, you must kill him." Holmes said, "That was the second great lesson — humility."
    • P. 59.
  • I do take law very seriously, deeply seriously, because fragile as reason is and limited as law is as the institutionalized medium of reason, that's all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling.
    • P. 189.

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