The Pledge_ A History of the Pledge of Allegiance - Jeffrey Owen Jones [57]
Often during Supreme Court deliberations a single individual justice will emerge as a highly influential, dominant figure on a case, setting the decision-making path in a particular direction. In the Gobitis case, Justice Frankfurter served in that role. And it was an unexpected one.
Frankfurter, a nonpracticing Jew whose father was a rabbi, moved with his family to the United States from his native Austria in 1894 at the age of twelve. His family settled in the predominately Jewish neighborhood of New York City’s Lower East Side. Knowing no English, Frankfurter struggled along with other immigrants to assimilate into American life and, in Horatio Alger style, broke anti-Semitic barriers, excelled at P.S. 25 on the Lower East Side, and went on to graduate from the City College of New York before going to Harvard. He graduated with a law degree from Harvard Law School in 1906 and would later became a professor at Harvard, specializing in administrative law, but not before throwing himself into politics. Frankfurter campaigned for Theodore Roosevelt’s Bull Moose Progressive Party in 1912 and was one of the founders of the American Civil Liberties Union, which, of course, would become a principal legal ally of the Jehovah’s Witnesses in their anti-Pledge campaign.
With his academic credentials and liberal political perspective, Frankfurter found a place in President Franklin Roosevelt’s New Deal government, serving as an informal, yet influential White House adviser at the beginning of the New Deal. In 1938, Roosevelt appointed Frankfurter to the U.S. Supreme Court.
Frankfurter’s appointment to the Court came on the heels of Roosevelt’s unsuccessful attempt the year before to expand the number of Supreme Court justices in order to tip the balance of ideology on the court so that its rulings would be more sympathetic to Roosevelt’s New Deal agenda, some of which the Court had rejected. Roosevelt wanted an immediate and expanded opportunity to appoint his own judicial allies and counter the influence that he derisively called the “nine old men.” Ironically, federal judges, including Supreme Court justices, were holding on to their positions longer than usual because in the early 1930s Roosevelt had been successful in cutting the pensions of retired judges in half.
Roosevelt claimed that presidents had the power to appoint additional Supreme Court justices for every sitting member over the age of seventy and a half, up to a maximum of an additional six judges. The proposal, famously dubbed the “court-packing plan,” was soundly defeated—the Senate voted 70 to 20 to send the bill back to the Judiciary Committee, from which it did not reemerge.
Beginning in late 1938, however, the natural forces of death and voluntary retirement ultimately gave Roosevelt the opportunity to shift the political perspective on the country’s highest court. While it is generally agreed that Roosevelt didn’t achieve his full goal of majority control of the Supreme Court until 1941, his appointment of Felix Frankfurter was considered at the time to have been an important step in the process.
Frankfurter had been on the high court’s bench for less than two years when the Gobitis case arrived, and it was expected that his perspective would favor his ACLU roots and the Witnesses. But when the decision was announced, on June 3, 1940, it was clear that Frankfurter, who authored the decision, had switched hats. He had suddenly become a supporter of “judicial restraint,” which was the tendency to uphold a law whenever possible, even when a constitutional right might have been violated, in order to support local legislative prerogative. In fact, though the term had been around since the nineteenth century, Frankfurter would become known as a “model of judicial restraint” because of his stand in the Gobitis case. He favored filtering national rights through the laws enacted by local elected officials, the Fourteenth Amendment notwithstanding. Judicial restraint, Frankfurter and others believed, was the best way of ascertaining the correctness of