after his retirement, fdr, franklin delano roosevelt, appointed his old friend and adviser, felix frankfurter, and he served two weeks with brandeis before brandeis officially retired. frankfurter -- just briefly, frankfurter and fdr had met at a lunch at new york's harvard club in 1906. they were both recent law school graduates from very different backgrounds, both very ambitious politically, and their connection and friendship continued on again, off again for 33 years until fdr's appointment of frankfurter. >> okay. >> okay. >> so, we've got three -- so far by my count, we've come up with three and one anti-jewish justice. >> right, right. >> so, we got mcreynolds out of the way. >> and he retires in the 1940s with -- >> all right. i promise you, we're coming back to all of these people, except mcreynolds. >> of course, of course. >> but who's next? >> okay, next is. >> so, frankfurter passes away. >> frankfurter passes away in 19 -- actually, he retires in 1962, passes away in 1965. he, interesting to note, all of the jewish justices were liberal justices by any definition. frankfurter h

this apparently set felix frankfurter off. >> can you imagine frankfurter for 90 minutes. you see there's two copied and reading and lecturing whit taker, whit taker ultimately decided -- tentatively catch it. stewart was really on the fence. he had serious doubts that if the court allowed the district courts to hear cases he didn't think on the merits the petitioners could win. he recognized there was a problem but he wasn't willing to make up his mind. they waited a week, he said, i don't know what to do on this. can we reargue in the fall? that's actually why the case was reargued in october because it was a 4-4 split and potter stewart asked for it to be put over until the next term. >> it might be worth mentioning that they do not have that kind of conference anymore. there's no three-hour arranging that goes on. they're relatively short. they do the votes. they explain what their decisions are to their colleagues. now, none of us know because none of us have been in that room, only the nine justices are in the room. most junior justice sits by the door. if anybody ha

had passed away, right after his retirement, franklin delano roosevelt appointed his adviser felix frankfurter. for two weeks, frankfurter served on the court before he retired. >> briefly, frankfurther and fdr had met at a lunch in new york's harvard club in 1986 and they were both recent high school graduates from very different backgrounds, both very ambitious politically and their connection and friendship continued on again, off again for 33 years until fdr's appointment of frankfurter. >> okay. so we've got -- so far by my count we've had three and we've had one anti-jewish justice. we have mcreynolds out of the way. >> yes. he retires in the 1940s. >> all right. i promise you, we're coming back to all of these people except mcreynolds. >> of course. of course. >> but who's next? >> next is -- >> so frankfurter passes away. >> frankfurter passes away in 19 -- actually, he retires in 1962 and passes away in 1965. he, interesting to note, all of the jewish justices were liberal justices by any definition. frankfurter had been a flaming liberal harvard law professor and attorney, but he bec

right after his retirement, fdr appointed his old friend and advisor felix frankfurt. he served on the court for two weeks with brandeis before he retired. frankfurter and fdr met at a lunch at new york's harvard club. >> who's next? >> next is -- >> frank fuffurter passes away. >> he retired in 1962, passes away in 1965. all of the jewish justices were liberal justices by any definition. frankfurter had been a flaming liber liberal, but he became more and more conservative in his 23 years on the court. and when he resigned in 1962, he was the most conservative member of the court. and he became a prophet or advocate of judicial restraint. anyway, john f kennedy had -- he was probably the best known labor lawyer in the country. president kennedy appointed him secretary of labor. and he served the shortest tenure, less than three years on the court. >> we're going to come back for sure. >> lbj persuaded him to leave a lifetime position. he lived until 1991. to accept a position of ambassador of the united nations. he had a falling out with lbj and he was out of the u.n.

the one holdout was justice felix frankfurter. what's fascinating about frankfurter is he wrote a decision called wolf v. colorado. he did something remarkable, he declared what using the incorporation doctrine, that the fourth amendment was a fundamental freedom. duly of as much protection as possible. >> but the order of liberties of being an american. >> the concept of order of liberty. >> also then said in the next paragraph that the exclusionary rule which he called a remedy which is judicially, could not be extended to the states. he didn't find merit in that idea. so felix frankfurter didn't want to hear this case, but eight of the nine justices granted review. >> and a couple of justices have joined, since our last landmark case, the new faces on the court, john harlan, potter stewart and charles whittaker. can either of you talk about how the dynamics of the court have changed with these three new justices? where are the factions? >> you had at that time the liberal branch of the court led by the chief justice earl warren

what can you tell us about felix frankfurter? >> well, he was an appointee of franklin roosevelt and he was very much a liberal. he had been involved in the naacp, he was involved in the aclu. he is one of the most distinguished academic and legal thinkers in the united states. but he was a pass nate believer in judicial restraint, on the role of judges, and concern that if judges pushed the envelope too far, that would be bad for the court and bad for the judiciary because it's interesting going back for a moment on the warren breb than thing. earle warren was appointed by president eisenhower. william prbrennan said the mistakes that he made were these two justices that turned out to be quite liberal. here was justice -- he's very, very passionate about the issue, and i suppose we'll talk about that a little bit more, but that was among the debates. the first time the court heard the case, i think it was argued in april. and the court i think your viewers probably know this, the court starts hearing arguments on the first monda

brandeis joined the court in shank, but as he later told felix frankfurter, quote, i have never been quite happy about my concurrence. i had not then thought the issues of freedom of speech out. i thought at the subject not through it. thinking at the subject meant relying on the state of first amendment jurisprudence in 1918, thinking through it would lead to the modern notions of what free speech entails in a democratic society. that summer, brandeis and holmes, especially the latter, were bombarded with letters and visitors arguing that the first amendment protected speech far more than the shank opinion allowed. the arguments bore fruit and that fell on abrams versus the united states. the two men took the first step toward endowing the speech clause with all of the vig ar its framers had intented. the majority convicted abrams calling for a general strike to protest american intervention in russia. justice clark mechanically applied the clear and present danger test and dismissed the first amendment claim. >> holmes penned what may be his most famous dissent. he had no use for t

and the language came from our friend felix frankfurter who said once again, i know from english common law and principles of equity. when you're not sure a particular decree will be immediately enforced, you can give the parties a little bit of discretion and tell them, they hugo black. he said, "if you give it any room, it will be worse." frankfurter put it in that language, and these knots of other hedges in that decision in brown to, while giving weight to public and private considerations, should make a prompt and reasonable start. the courts can consider problems related to administration, but disagreement -- the court did say the vitality of the constitutional principles can't be allowed to yield simply because of disagreement with them. the bottom line is with all deliberate speed was a huge pass to the south, basically saying, go ahead, we're not really going to be on you if you resist. as tomiko absolutely just pointed out, it wasn't until not only the passage of the civil rights act in 1964, but the guidelines adopted by the department of health, education and welfare just a

felix frankfurter was infuriated. why?he had written wolf, the case that said that the exclusionary rule does not apply to the state. >> and it was about to be overturned. >> and he knew it was going to be overturned which is why he voted against review of the case. and why he focused on the obscenity question. what's interesting about oral arguments, kearns has appeared before the court for the first time. he spent 16 minutes talking about the facts of the case. frankfurter was infuriated. at one point he said can you tell me what the issue in this case is. and he kept on asking kearns so are you asking us to overturn wolf v. colorado. and kearns -- >> he didn't seem familiar with the case. so frankfurter knew something was up. he was so frustrated at the point he turned his back to kearns when he was arguing the case and wouldn't listen to him any longer. but during the oral arguments the ohio branch of the american civil liberties union had a lawyer appearing. the first time they had done so. and they argued just briefl

on the funeral train, on the way home from the funeral, felix frankfurter says to colleagues, this is the first indication i have had that there is a god. but then the court argues the case and wait to hear what happens the second time around. >> first, i want to get the attorneys on the docket for our viewers because there's a familiar name. the defended attorneys include john davis, who has been in now three of our landmark cases, who was john davis and why was he at the helm in so many of these important cases? >> he was the presidential candidate, unsuccessful presidential candidate turned one of the great appellate lawyers of his age. courtly, silver haired, fit. you could call him a strict constructionist. he definitely said, i don't believe in a living constitution, although i think the constitution can occasionally adopt as the commerce clause shows but feels like he was defending southern traditions and for him, this is an easy case. look, the courts repeatedly affirmed segregation and the text doesn't forbid this segregation, the original understanding clearly allowed segreg

the majority in a decision by felix frankfurter said it should not. according to the majority, they reconceptualized how the exclusionary rule should be looked at saying that rather than being constitutionally mandated it was a judicially created mandate to correct a wrong. the other thing that happened in wolf was the court suggested for the first time that the reason for the exclusionary rule was the deterrence of police misconduct. that becomes important later on, because by taking the rule away from its constitutional moorings it led to an erosion of the rule later on. frankfurter based his decision on the principle of federalism. he believed states should decide on their own how to address fourth amendment violations. he saw the exclusion of evidence as one of many types of responses that a state could take. and at the time of wolf versus colorado about a third of the states had the exclusionary rule and he wanted them to be able to make their own decision. but this presented a practical problem. in 1949, if the federal government seized evidence

and they are people like felix frankfurt and others. the other groups he call judicial activist. it's the first time we know of traditional activism was used. th in the art call he said what the people decided they were deciding to reconsider this restraint idea. the problem before wouldn't that the judges were acting -- the problem is they said it was inevitably the judges would be acting politically. the question is what would they be acting politically for. they we were acting politically for the wrong thing. he did social one side of the court with the jail law school, didn't associate the other side with the harvard law school though, he might have. lochner doesn't play a role here yet, we have a split on the supreme court all between good new deal judges. we have the new deal conservator restrain jays, we have the post-new deal more in court activists judges and that brings us to the 1960s in the case of griswold versus connecticut. that case is decided, and what does it do. it protects an un-enumerated rights in this case to use, possess and sell contraceptives. and the qu

chief justice earl warren, hugo black, felix frankfurter, sherman minten, and stanley reed. what was the second round of arguments and did they differ? >> the oral arguments the second time around were focused on these questions of original intent. and the trouble there, jeffrey has already explained what the problems were. the pdivision that was put befoe the naacp lawyers, they struggled a bit. and the problem was that the answer was not going to be found in the answers that had been put before the lawyers in the court. >> the question before the court in this case, does racial segregation of children in public schools deprive ninort children of equal protection of the laws under the 14th amendment? so i would like you to tell a story because the chief justice decide it had to be unanimous. how did he get to uniimity. >> the arguments are heard, and the justices have their vote in private conference, and warren begins by saying this is an easy case. it's easy because segregation has the intent of dividing. and they begin to take a vote. and it's not entirely clear what the

in the 1950s, justice felix frankfurter serve on the historic records and national pubication. in the 1960s justice arthur goldberg served on the archivist advisory council. including associate justice steven breyer, clarence thomas. yale law professor and constitutional scholar leads the discussion related to the constitution and the their impact of the american people. and those are available on youtube or ustream. now let's get to tonight's program. please welcome to the podium justice smith of the greater historical society of washington. [ applause ] >> thank you. good evening, everyone. and welcome. i am delighted of on behalf of the jewish historical society to thank the national archives especially susan clifton for partnering with us on this annual program. we also want to thank the supreme court historical society and its staff for joining us in tonight's program. and a special thank you to dr. arnoeld, arnold, a long time friend who first suggested dr. dallen first come to us as a speaker. what a pair tonight. i want to welcome frank gilbert, a past president of the

it's really important and the language came from our friend felix frankfurter who always had something up his sleeve and he said, once again, i know from english common law and principles of equity that when you are not sure if a particular decree could be in force you can give the party discretion and tell them they don't have to do it immediately and this principle was resisted by hugo black unlike frankfurt who actually was from the south, and black said if you give the south any room it will be worse, but frankfurter put in that language and there's lots of other hedges in that decision in brown to while giving weight to public and private consideration, it should make a prompt and reasonable start. the courts can consider problems related to administration, but disagreement, the court did say the vitality of the principles can't be allowed to yield and the problem is it was a huge pass to the south, basically saying, go ahead, we're not going to be really be on you if you resist, and as tamiko, had such a central point that she made. it wasn't until the passage of the civil rights

were justices hugo blank, felix frankfurter, william o.as, robert jackson, harold burton and tom clark. and the minority chief justice vinson voted with the president who appointed him, justices stanley reed and sherman minton. so we're going to return to another oral argument. and this is from one of the other clerks. his name is george nybank and in an exchange between justices jackson and clark about their decision in this case. let's listen. >> after they announced the decision at that time tom clark sat on one side of jackson, probably on the left. and tom clark announced his concurrence. i don't remember whether he wrote an opinion or not. but jackson leaned over to him and whispered i'm glad to see that you've decided to be a judge, tom. now, jackson told me that. >> you reacted when you heard that. >> it's very interesting, yes. of course, jackson's talking about this from his own experience. he was attorney general under roosevelt. during which time he made some arguments very similar. same thing happened with korematsu. and, for

justice felix frankfurter called friendly the best judge on the american scene. judge richard poster identified him as the most powerful legal racer in american legal history. justice sandra day o'connor observed when we are looking for a court of appeals decision for use as authority we look first for opinions of henry friendly. and justice thurgood marshall quipping on the conventional second circuit wisdom that one should quote learned but followed guts said that for him the rule would always be quote friendly and follow friendly. his productivity on this court was simply staggering. he wrote 1056 signed public opinion. he was producing 20% more opinions than the average production of his fellow active judges. his opinions clarified roughly every area of the law he touched to pick in addition to run the time of this judgeship he wrote scholarly articles, making seminal contributions to our understanding of federal jurisdiction, administrative law, judicial discretion, the common-law process in the federal courts and criminal law. it is a measure of the respect