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Hey, Trump, Justice Frankfurter Was 'Ethnic,' Too

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Donald Trump’s claim that a Mexican-American judge would be biased against him has put the topic of judicial ethnicity front and center. So it’s worth pausing to consider the most important -- and controversial -- discussion of the significance of a judge’s ethnic or religious background in the history of Supreme Court opinions.

That would be this declaration by Justice Felix Frankfurter in 1943:

As judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores.

Before you get excited about using Frankfurter’s oratory as a rebuttal to Trump, consider this: He prefaced the statement with a profession of his Jewishness that his colleagues tried to suppress. And he did all this in a dissent that argued that Jehovah’s Witnesses shouldn’t be exempt from pledging allegiance to the flag.

The Frankfurter dissent marked a turning point in the history of the court, of his leadership on it and of liberal jurisprudence itself. The story began three years previously, in June of 1940, when the Supreme Court decided its first case about young Jehovah’s Witnesses refusing to pledge allegiance and salute the flag in their schools.

That decision, Minersville v. Gobitis, went 8 to 1 against the Witnesses. Frankfurter, a relatively new justice who was expected to become the leader of the liberals whom President Franklin D. Roosevelt was in the process of appointing, wrote the court’s opinion himself.

The opinion’s thrust was that religious minorities were not entitled to an automatic exception from a law that applied broadly and was not targeted at them. To this, Frankfurter added an argument in favor of judicial restraint, reasoning that it was up to state and local authorities to decide what sort of schoolhouse ritual would best prepare young people to serve the nation and potentially fight in its cause.

Several thoughts animated Frankfurter, including the worry that children shouldn’t be treated differently in the classroom based on religion. But foremost in his mind was Hitler’s sweep across Europe. One colleague later referred to the case as “Felix’s fall-of-France opinion.”

The decision was a bad one, and its consequences were quickly felt. Angry mobs attacked Jehovah’s Witnesses across the country, burning down Kingdom Halls and in one case seriously injuring a Witness. Several of the court’s liberals realized the error, and in other opinions hinted that the issue should be brought back to the court.

That set the stage for the replay decision, West Virginia v. Barnette. This time the court went 8 to 1 in the opposite direction. The opinion for the court was written by Justice Robert Jackson, who hadn’t been appointed when the Gobitis decision was issued.

Jackson, one of the two best writers ever to sit on the court, made the most of the opportunity. He transposed the issue from religious freedom to free speech, and more or less invented a right not to speak to go alongside the First Amendment protection of speech itself. He announced:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

Most important, Jackson explained for the first time in the Supreme Court’s history that the key job of the Court was to protect minorities. “The very purpose of a Bill of Rights,” he wrote, “was to withdraw 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.”

Frankfurter went ballistic. His principle of judicial restraint was being trashed. His leadership of the court’s liberals was slipping away, never to return. And he worried that he, a Jew, looked like he lacked sympathy for religious minorities.

His dissent upset his colleagues because he broke tradition to refer to his own ethnic-religious identity. It began, “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.”

Justice Frank Murphy, the court’s only Catholic at the time, begged Frankfurter to remove the phrase because he believed that it drew inappropriate attention to the justices’ personal identities.

Frankfurter went on to say that his religion was irrelevant to his decision, using language (“neither Jew nor Gentile, neither Catholic nor agnostic”) that echoed St. Paul’s statement in Galatians 3:28 that “there is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.”

But the statement was highly equivocal. On one hand, Frankfurter was denying that religion or ethnicity should matter to a judge. On the other, he was drawing attention to his own ethnicity to do it. And the result in the case was one that arguably did reflect his own positional concerns, especially in connection with fighting the war against Hitler.

The upshot is that while Trump’s assertion that a judge who is Mexican-American or American Muslim would not treat him fairly is morally repugnant, it also reflects an uncomfortable truth. Which is that judges are human and can indeed be affected by experiences, beliefs and identities. We should be able to affirm that while knowing that nearly all judges will try to overcome those feelings and be fair.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net