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Touro Law Review

Touro Law Review

Dalia Tsuk

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 American 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 accommodate within the law diverse cultures and values; 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 the competing values, identities, and viewpoints that characterized modern American society. Evading the difficult task of choosing between competing interests and values, Frankfurter’s decisions often became an apology for the status quo, that is, the social position of the insider and the political position of the majority. As the Article further suggests, in the 1950s and 1960s, Frankfurter’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 procedural 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 liberties. In these narratives, Frankfurter’s judicial record is deemed an anomaly. But, as this Article concludes, advocates of procedural democracy 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.

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