YOU ARE NOW on the cursus honorum.” The speaker was Professor Abe Chayes, standing beside me at the buffet table of a cocktail party to honor the graduating members of the class of 1958 who had served as editors of the Harvard Law Review. I instantly understood his meaning, “the way of honor.” I was first in my class of five hundred, president of the Harvard Law Review, and on my way to serve as a law clerk to Supreme Court Justice Felix Frankfurter. Thence, following a well-marked, oft-trodden path, I would serve in the “real world,” most probably as an associate with a Wall Street mega-law firm, and then become a professor at “the law school.”
“Fuck that” were the words I didn’t say, as I nodded in seeming acquiescence. I had already concluded that big-time law — i.e., corporate law — was an occupation for skilled servants of business; distinguished from accountants, secretaries, and chauffeurs only by the historic prestige of their professional status and the size of their fees. Yet I did not have an alternative. I had thought of returning to Boston and opening my own one-man law office. But who would my clients be?
Several months before my graduation, Sumner Kaplan, a neighbor in Brookline, who was also a representative to the state legislature, had taken me to a small, upper-floor apartment in downtown Boston where Senator John F. Kennedy maintained his Massachusetts residence. A man called Frank Morrissey took our coats. Morrissey had served as a kind of personal factotum to Joseph P. Kennedy and, for years, had been assigned to keep watch on young John’s activities so the father could be alerted to any hazards — personal or public — that might obstruct the career of his swiftly rising son. The outer room was crowded with a variety of politicians and lobbyists, for whom the senator’s appearance in Boston was a chance to advance a favored project or impress a lucrative client. I knew none of them either by sight or name.
In about twenty minutes we were taken to a small sitting room, where the senator, already standing, greeted my friend Sumner, shook my hand, and said, “I understand you’re going to work for Frankfurter.” As I nodded in confirmation, he added, “He’s not my greatest fan. Give me a call when you get there.” He then waved briefly toward three men who were entering the room behind us, smiled warmly in our direction, and strode toward his new visitors. With a skill whose exercise was totally concealed from my understanding, without the slightest sign of dismissal or termination, our encounter was ended. And, in milliseconds, lest there be any confusion, Morrissey had Sumner by the arm. “It was so nice of you to come. I know the senator appreciates everything you’ve done.”
That was it. I had made my first contact with national politics. As I headed for the subway, I looked at my watch, calculating the time I had remaining to study for an approaching exam. It was back to reality. More than a year passed before I realized that something had happened. I — a hater of organization and contemner of bureaucracies — had taken a first, essential step toward a career in the most monumental, complex, and overpopulated of all American institutions: the government of the whole, frigging United States of America.
Liberated from the schoolhouse, I prepared to return to Washington, unaware my education was to begin. I had gladly accepted the clerkship with Mr. Justice Frankfurter — an unrefusable honor and, not incidentally, a way to postpone career decisions — not knowing that in the brief year with the justice I would have found not an employer, but a mentor, whose beliefs and intensity of engagement with life would irrevocably fortify and shape my own beliefs and values.
Though I had studied some of his opinions, the arid discourse of the classroom had not prepared me for my first personal encounter. In April of my graduation year, on a visit to Cambridge Frankfurter had asked to meet with his new law clerk. Seated in a small sitting room adjoining the offices of Dean Erwin Griswold, I indifferently scanned the morning papers, when the door opened and a small, almost tiny man strode through the door and approached me with hand outstretched, moving swiftly, seeming to bound slightly off the floor with every step, like a gliding kangaroo. “So you’re Goodwin,” he said, placing his hand on my arm with that strong, fierce grip I was to come to know well. “Yes, Mr. Justice,” I replied, suddenly conscious of my rumpled suit, the overlong hair tumbling across my forehead. “Good,” he responded, not, I was later to learn, as a signal of approbation (there was little in my appearance to inspire praise), but a sign that with his fraternal grasp I was being welcomed into that honored group of clerks, now reaching back over a generation, that constituted the justice’s extended family, the formidable substitute for the children he never had.
“They tell me you’re very bright,” he said. I had no response. “Well,” he said, “we’ll find out soon enough,” the smile removing the sting from his words.
“I’ll be down just as soon as the school year is finished.”
“Take a vacation first,” he admonished. “August will be soon enough.”
“I don’t need one. I’d like to get right to work.”
His voice suddenly became solemn, a tone adopted for lessons to be remembered, his finger outstretched; “Young man, there’s something I want you to remember for the rest of your career. The laws of physiology are inexorable.”
What had such laws to do with me, in my twenties, exuberant with anxious vitality? But his manner seemed to convey some undecipherable wisdom. And, he was the boss. (As it turned out, my vacation, even though later abbreviated, could not have been better timed, for early that summer I married Sandra Leverant, a Vassar graduate whom I had known since high school.)
Then, as swiftly as he had entered, the justice relaxed his grip, headed for the exit, turning at the door to repeat in stentorian tones: “Remember, take a vacation.” Then he laughed and was gone. I stood there half-expecting to hear the sound of sleigh bells on the roof of Langdell Hall. It had been a totally unexpected encounter: not an interview, but a kind of laying on of hands, a symbolic initiation. Despite the abruptness of our meeting, I was moved. He cared. Not about my credentials (those had been established) but about me — a child and a stranger — wanted me to understand something, not about law, but a principle of personal life: that the process of life was ironbound by limits that neither the eager energy of youth nor the highest gifts of maturity could rupture or transcend. He was talking about health, but I later understood that the way he said it — “the laws of physiology” — was a clue to a less banal faith — that the well-being of the democracy he so dearly loved, as well as that of the individual, depended upon fierce obedience to the principled process from which its vitality flowed.
In a few brief moments, what had been a job had been transformed into a relationship. I quickly repaired to the library stacks, anxious to know more about the man I was about to serve.
Frankfurter was an incarnation of the American dream. Born to Jewish parents in Vienna, Austria, he had arrived in New York at the age of twelve, unable to speak a word of English. A few years later he had plunged into the melting pot of City College and then gone to Harvard Law School, graduating with the highest honors. Although he was to be one of Harvard’s most honored teachers of law, his energies overflowed the confines of academic life into a continual and fervent engagement with the issues and passions of his time.
Frankfurter had accompanied Secretary of War Henry Stimson to Washington, worked under Woodrow Wilson during World War I. (“A self-righteous pedantic snob” was his verdict on Wilson.) And despite his ambitions for public office, he had not hesitated to engage in some of the most controversial issues of the interwar period: fighting against the anticommunist “red hunting” of Attorney General Mitchell, becoming an eloquent advocate for the condemned Sacco and Vanzetti. These were all “liberal” causes, but at the heart of Frankfurter’s indignation was the transgression of limits on democratic power by public officials.
During this period he formed a close friendship with Franklin Roosevelt, who, upon election to the presidency, turned to Frankfurter for recruitment of many of the bright young men who staffed the New Deal. “Felix’s hot dogs” they were often called, either in scorn or sardonic admiration; and they were among the leaders of an entire generation of gifted young Americans who helped reconstruct the depression-torn nation. In 1939, in recognition of Frankfurter’s abilities and in gratitude for his services, Roosevelt appointed him to the Supreme Court.
From the immigrant gates of New York to the High Court: an American story, which had given Frankfurter a profound love for the country that had made possible his dreamlike passage. To the end of his life he remained an almost childlike patriot, his labors a profound love affair with the nation — not a sightless admiration, but one illuminated by an intelligent understanding of the principles that sustained American freedom, and a worldly knowledge of how easily men of power were tempted to violate those principles. “Nature,” he once told me, “is the great democrat,” bestowing its gifts of intelligence and vitality on the poor and wellborn alike. But it was the structure, the elaborately designed process of American freedom, that allowed those gifts to find fulfillment. The Supreme Court was, for him, not a substitute for the institutions of representative government, not endowed with power to impose its own shifting views on the nation. It was the protector of democracy against itself, the guardian of the Constitution against the abuse, the overweening exercise of power by men and institutions that ignored the carefully constructed confinements of the Founding Fathers — from the red-baiting Attorney General Mitchell, to southern governors resisting desegregation, to William Casey and Oliver North and Ronald Reagan.
Although this wisdom was to become embedded in my own view of public life, I was compelled to begin my term with Frankfurter by disobeying his very first command, cutting my vacation short and going to Washington in early August to attend a special term of court called to consider the cause of Aaron v. Cooper. A lower court had granted the high schools of Little Rock, Arkansas, the right to delay implementation of a desegregation program because of mounting public opposition to integration. Hastily summoned into session, the Supreme Court was called on to consider whether such opposition was a sufficient cause for delay. The answer, of course, had to be no. Permitting public opposition to justify the denial of constitutional rights would destroy those rights, amount to a virtual reversal of the Supreme Court’s historic decision in Brown v. Board of Education.
The lower court was unanimously reversed, although Justice Douglas did not attend the special session, being content to have the opinion dropped to him from a plane into some mountain wilderness where he was enjoying his usual strenuous vacation. Frankfurter was furious, viewing Douglas’s failure to return as a contemptuous degradation of the judicial process. “That man,” he told me, “is an opportunist and a malingerer. He’s more concerned about his public personality than the work of the Court. In fact, he doesn’t do his work. He just decides who he wants to win and then votes — a lazy, contemptible mind.”
I can still recall entering the small, somber courtroom to attend the oral arguments in Aaron v. Cooper; shown by smiling, indulgent guards to the special seats flanking the paneled benches which were reserved for law clerks and guests of the justices; hearing the crack of the gravel, a signal to rise as the black-robed justices, led by Earl Warren, filed silently to their seats. Then the voice of the clerk — “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” I felt an unanticipated chill, awareness that I was at the margins of the long flow of history, old as the Republic, amid which men had presided over the shaping events of a nation. John Marshall had sat on this same court and Roger Taney had returned Dred Scott to slavery and moved the country toward civil war; the New Deal had been demolished by the Nine Old Men and then revived by the men of Roosevelt, including my own employer.
The very case I was attending was a consequence of the latest shaping period in American judicial history — one of those rare times when the magisterial legal pronouncements of the Court reach out to modify the life of the country. The Supreme Court had not, in some aberrant convulsion of arrogance or ideology, designated itself the agent of social revolution. It did not simply convene on its own initiative to decree the end of segregation. That was not within its power, nor its circumscribed role in the democratic structure. Black students, their parents, and attorneys compelled the Court to decision. They sued.
To decide that suit the Court must either uphold its antique precedents, thus ignoring the blatant reality that the doctrine “separate but equal” had become a disguise for American apartheid, or it must decree an end to segregation. Even then, the Court, aware of the enormous and unforeseeable import of such action, delayed until its decision could be made unanimous. Justice Robert Jackson, formerly chief prosecutor at the Nuremberg war trials, was — Frankfurter told me — the last holdout. Once he had been persuaded — more by the necessities than the legal merits of the case — the Court, in 1954, made its decree in Brown v. Board of Education. The opinion was delivered by Chief Justice Warren, on behalf of what was thenceforth to be known as the “Warren Court.” But the true leaders of the Court, the two men whose intellect and personal force were to shape its course, were Justice Black and Justice Frankfurter: southern populist and northern intellectual, fierce adversaries, sharply divided in philosophy, principle, and temperament. But not on this matter. Once it was clear that the case had to be decided, only one outcome was possible.
Enforcement was more difficult. The Court could not — even if it had the power — overturn rooted social structures in a single, sweeping decree. It was the responsibility, the obligation, the power of the president and Congress to implement the Fourteenth Amendment as reinterpreted by the Court. And they did nothing. Thus implementation was left to the district courts, instructed to proceed “with all deliberate speed.” The other institutions of government would let the judges take the blame, and the political heat. They would, with forceful rhetoric, praise or condemn, but not act.
The southern resistance to integration, successful at first, had a wholly unforeseen consequence. Black Americans would no longer leave enforcement of their rights to the white rulers who decreed them. They would fight. Enormous social changes during and after World War II had transformed black temperament, fortified black possibilities. The Court had simply cast a tiny, but necessary, spark of hope on the swelling and flammable contours of black expectations. They would have freedom; peacefully if possible, with blood if necessary. This demonstration that individual citizens — the hitherto impotent and anonymous — could struggle for moral justice and, occasionally, attain it began to fissure the complacent, self-indulgent façade of American innocence. It was an energizing impulse for a multitude of battlegrounds, many of them remote from racial conflict, which were to make the sixties a time abundant with life-enhancing possibilities. “Every man can make a difference,” said Robert Kennedy; but not until Rosa Parks and Martin Luther King and Thurgood Marshall had already given us proof.
Thus, the gradually accumulating forces whose undammed pressures were to shatter the national tranquillity and give special meaning to the decade known as the sixties had established their first Washington outpost in that most unlikely sanctuary, the Supreme Court of the United States.
I did not foresee that America and I were already embarked on so tumultuous a course, as I walked up the stone steps of the Supreme Court each morning, crossed the broad marbled plaza chipped from the quarries of icy Vermont, moved past the three Fates patiently weaving the thread of life — their frozen labors ironically flanked by the figure of Justice sternly unaware that its upraised sword and scales were feeble armor against the gossamer fabric of the adamantine ladies — into my modest office separated by a door from the chambers of the justice.
Seated at my desk in the first days of my employment, reading through the flow of petitions and briefs that inundated the Court, I heard a door open and, almost simultaneously, looked up to see Justice Frankfurter standing before me, his outstretched hand holding a single sheet of paper covered with his cramped, semi-legible handwriting. When the justice wanted to communicate with a clerk, he did not call for you or make a normal entrance, he simply materialized. The illusion was not a trick but a philosophical creation: Life was too short to allow a wasted moment of labor, pleasure, or intimate companionship. The justice lived as if each day might be his last. Much later, as I battled fatigue, struggling through the early-morning hours to perfect a presidential speech or prepare a White House program, I would recall his example — the essential truth of his insatiable grasp for life’s possibility — send for another cup of coffee, shake off my weariness, and resume my labors. I didn’t have it right. Not yet. Not exactly. There would be time to sleep soon enough.
Handing me the paper, the justice waited, shifting his weight impatiently as I struggled to decipher in the scrawled sentences his reasons for denying a petition for appeal to the Supreme Court. “Well,” he said, “what do you think?” The case seemed trivial, a matter of statutory interpretation that did not merit a full review. “I agree with you,” I responded, starting to return the scrawled page. “Don’t agree with me!” he interrupted, refusing to take the page from my hand. “I don’t need to hire the best students from Harvard Law School to agree with me. Anyone can do that. Argue. Tell me what’s wrong with my decision. There must be something wrong. I’m not perfect. That’s the only way you can be of any real service.”
“All right,” I answered, somewhat pedantically, “I think the Court should hear the case. The meaning of a federal statute is in dispute, and if it’s not resolved by the Supreme Court, the lower courts will give it different readings, leaving the meaning of the law in confusion.”
“So!” he said triumphantly, “you think we should take the time of this Court to resolve every insignificant ambiguity in the federal laws. Look at those shelves,” he said, pointing toward the innumerable volumes of federal statues that lined my office. “If we tried to decide what every law means, we’d have to sit until doomsday, and the really important issues could never be considered or resolved with the care they demand.”
The unanticipated debate went on, each new argument demolished with stern ebullience, until, satisfied at last, the justice turned back to his own office. “I’m right,” he said as he left. “Don’t you see that I’m right?” Of course I saw it, had thought him right from the beginning. But I had learned an important lesson: One did not serve a powerful master by flattering accommodation to his views. I would bring this belief with me to the White House, where my contradictions were not always so warmly received.
At the close of my first day at work, the justice took me for an automobile tour of Georgetown, pointing out restaurants suitable for a young couple of modest means. Weeks later, while trying to gnaw through a badly overdone steak, it occurred to me that the justice himself had probably not set foot in a “cheap” restaurant for decades. Yet his evident concern for my digestion was the beginning of awareness that my appointment as a clerk was not merely a job but initiation into a fellowship. The justice sustained an almost paternal relationship with his clerks, past and present; their presence an opportunity to continue, in microcosm, the teaching career he had abandoned for Roosevelt’s appointment to the Court.
On that same ride the justice pointed vaguely toward a Georgetown street which, he told me, had been the residence of Justice Oliver Wendell Holmes, a man he had revered in life and apotheosized in death. “I brought Franklin Roosevelt there,” he told me, repeating a story that had been told to successive law clerks for a generation. “Roosevelt was already president-elect, not yet inaugurated, and he told me he’d like to meet Holmes.” (Then in his nineties, and retired from the Court.) “They talked for several minutes and after accompanying Roosevelt back to his residence, I returned to Holmes’s residence.
“‘What did you think?’ I asked Holmes.
“‘A third-rate intellect but a first-rate temperament.’
“I was a little disappointed,” Frankfurter continued, “but Holmes was right. Temperament. There was the secret of Roosevelt’s greatness. He had the ability to recognize intelligence, wanted bright people around him, but he had the instincts to understand the difference between good ideas and practical possibilities. He knew the limits of his power, and, most of all, he loved being president. No one has ever been a good president who didn’t love his job.”
It was recollection of this incident that led me, six years later, to suggest that President Lyndon Johnson visit the mortally ill Frankfurter, who, to the chagrin of his doctors, left his bedroom and demanded he be suitably dressed to receive the president of the United States.
Twice each year all the Frankfurter clerks — a line that reached back almost twenty years from my tenure — would assemble: once for a celebratory dinner, and once again for a sherry party on the occasion of the justice’s birthday. Among the guests, my predecessors in office, were men who then or later would advise the White House, serve in presidential cabinets, lawyers of national reputation, judges, and the merely successful.
At the dinner that year I was seated next to Phil Graham, who had deserted the law to take over the Washington Post, and was in the course of establishing a publishing empire that has continued to flourish in the years since he blew his brains out in the bathroom of a family house, the victim of a manic-depressive psychosis. My conversation with this man of immense charm and exuberant vitality turned to literary subjects. I was surprised to discover later that he had informed friends — Joseph Alsop, Dean Acheson — that the justice had a clerk who actually read books. But that was before I realized that Washington was a company city: its business politics; its leaders and aspiring juniors largely ignorant of literature, history, philosophy, and all other realms of thought and discourse not directly related to the most mundane and practical concerns. People read memos, not books, hire professors, not acquire learning.
My acquaintance with my predecessor clerks and others in the justice’s large and eclectic network of friends was to have no immediate practical consequence. But it marked me in the minds of many “who counted” as a young man with possibilities, perhaps even a young man on the rise. One day Congressman John Lindsay of New York — stunningly handsome, already exuding an ambience of almost presidential density — was brought into our office by the justice. “These are the kind of people,” he told Frankfurter, waving vaguely in our direction, “I’d like to have around me.” Presumably he meant in the White House, or some other exalted office.
Of far more enduring import than these “contacts” were the lessons learned through continued exposure to the justice’s mind and memory. Large, even historic, public figures — Wilson, both Roosevelts, Eisenhower, Acheson, Truman — were disenthroned from my textbook world, and set upon the level as objects for analysis, gossip, criticism, and personal judgment. The distinctions between men of power were not between nobility and baseness, or virtue and corruption, but that balance between strengths and flaws, beneficent works and ruthless betrayals which coexisted, of necessity, in all men of action — and whose relative measure divided greatness from mediocrity. The necessities of public ambition were hard on virtue. Circumstances constantly challenged conviction. Frankfurter himself, anxious to please his great patron, Franklin Roosevelt, had occasionally violated the boundaries of judicial integrity through direct participation in political conflicts. Purity and power are constant companions only in fairy tales and legends, and even there the fate of their fellowship is the death of Arthur.
Yet, on balance, the justice was the most principled public figure I have known. From his tutelage I would acquire certain fixed guides that — though occasionally transgressed — prevented me from blind compliance with the volatile and unpredictable demands of political life; allowed me to challenge the childish, very American, belief that acts were to be judged by their consequences, that desirable results retroactively blessed the method of their accomplishment.
Two of the cases during my term of court emerged from the final spasms of the anticommunist witch-hunts that had accompanied the growing hostility and fear of Armageddon known as the Cold War. In one case, a college professor, one Mr. Barenblatt, had been convicted of contempt by a federal court for refusing to answer congressional questions about his communist affiliations. While in distant New Hampshire, Mr. Uphaus had been convicted of the same offense for refusing to give a list of his guests at a summer camp suspected of being a “communist front” by the attorney general of New Hampshire, who was zealously enforcing the legislature’s command that he forestall a communist overthrow of that patriotic state. Neither the triviality nor the absurdity of the allegations was before the Court. The issue was the power of government to investigate and expose. One could not question the right of a government to guard against threats to its survival. On the other hand, there was no power to expose and slander those with unpopular opinions. It was — to oversimplify the legal issues — the Court’s job to balance government’s power to protect itself against the individual’s freedom to choose and safeguard his associates.
To me, the “right” decision was plain. Professor Barenblatt was not engaged in subversive activities. He had committed no crime. The congressional committee was simply out to castigate, expose, and slander in its unremitting pursuit of political gain. Nor was the state of New Hampshire endangered by a communist conspiracy emanating from the Uphaus summer camp.
This much seemed obvious. Not just to me, but to all my fellow clerks and, probably, to all the justices. Clearly the convictions should be reversed. There was, however, one obstacle to this otherwise obvious course. Congress and the legislature of New Hampshire had authorized these investigations on the premise that the danger from communist conspiracy was real and its extirpation required far-reaching, virtually unrestrained inquiry. Thus the Court was being asked, indirectly, to overrule these legislative determinations, at least as applied to the particular cases before us. This, Frankfurter, and four other justices, refused to do.
On his return from the regularly scheduled Friday conference where the members of the Court met privately to make their decisions, Frankfurter informed me of his vote. Shortly thereafter I entered his office, and, at his invitation, launched into my carefully prepared argument against his position (always subject to change until the actual opinion had been drafted, circulated, signed, and announced). After a few minutes of patient audience, he interrupted. “Your difficulty, Dick, is that you don’t understand democratic government. And you don’t know the role of this Court.”
“I do know that is up to the Court to protect individual liberties,” I replied.
“Wrong!” he exclaimed in sharply raised tones. “Is that what they teach you up at Harvard now?”
“I think, Mr. Justice, that I read it in one of your opinions.”
“Misread! Our job is to enforce the law, including the Constitution. We have nothing to do with your abstract notions of justice or liberty. Only with what the law provides.”
“I believe —”
“I’m not interested in what you believe. What do you think?”
“I think the Constitution protects freedom of association.”
“You’re begging the question.”
“How?”
“That’s the issue, not the answer — whether these associations are constitutionally protected. You wouldn’t argue there is a constitutional right to join a gang of murderers?”
“Murder is against the law. A danger to society. Barenblatt and Uphaus are not dangerous, and they haven’t broken any law.”
“The Congress and a state legislature have decided there is a danger, and assigned power to investigate it.”
“But they’re wrong. At least in these cases.”
“I agree with you … but not on the main matter. You think they’re in error. I think it. But that doesn’t mean we can substitute our opinion for theirs.”
“If they have violated the Constitution, it is the duty of the Court to overrule.”
“It depends.”
“On what?”
“On a great many things. On precedent, on the recorded intent of the law, on the facts that are presented to us, not what we read in the papers.”
“But here the only motive —”
“We have nothing to do with motives. We are not a court of mind-readers. It is not up to us to decide why a legislature acted, only what they did. On the record. If there is a real danger of subversion, a real conspiracy against government, there is power to prevent it, and that includes investigation. I know what you want. You want me to say they’re wrong, that there is no danger, that they’re just out to get votes by scaring the public no matter who gets hurt.”
“That’s just what they are doing. And you agree with me.”
“Privately, perhaps. But as a justice I have no right to substitute my judgment for that of a legislature. Not on a matter like this. Or perhaps you think we should have our own investigation, appoint a special master to examine all the evidence of the last decade to decide whether there is a conspiracy.”
“Of course not. But when the case is clear.”
“To you. Not to Congress or the New Hampshire legislature. It is beyond us. Beyond our capacities and thus beyond our power.” Then, lowering his voice, speaking in almost avuncular tones: “I was appointed when this Court almost wrecked the country and itself by trying to substitute its economic views for those of the president and Congress. I am not going to impose my views about communism on the rest of the government.”
Then, as I turned to leave, only half convinced, but the argument clearly lost, he interrupted my exit, almost musingly. “It is what we mean by democratic government. I don’t believe that when the Founding Fathers wrote the Constitution they meant for basic questions of social and political policy to be decided by nine men meeting in a secret conference on Friday afternoon.”
The contempt convictions would be affirmed by a vote of 5–4.
Reentering my office that day, I sensed, in the justice’s words, a resonance, only vaguely apprehended, from some awakening truth at the heart of understanding. I, whose still inchoate politics were to mature into “Kennedy liberalism” and, later, to far more radical, if nameless, form, was becoming an institutional conservative. And have so remained.
Yet it would take years of experience, roaming the highest echelons of public power, before I would fully understand the meaning and wisdom of the justice’s cryptic, almost metaphorical, injunction. He was talking about his beloved Court. But behind his argument was the principle that reconciles democratic freedom with all the institutions that govern a nation. “I have never known a man of power,” he once told me, speaking of Roosevelt’s plan to pack the Supreme Court, “who did not resent any obstruction to its exercise.” His observation was only a slightly modernized version of Jefferson’s assertion that the basis of democracy was not “confidence” but “jealousy”; meaning that we could not entrust our liberties to men of power — however beneficent their intentions — that their will and ambition had to be hedged and confined by other repositories of power: institutions, laws, and, ultimately, the people themselves.
Those who drafted the charter for a new nation understood the central dilemma of democracy: No man, and no group of men, can be trusted with power. Yet no organized society can function without public authority. They tried to resolve this contradiction by writing a Constitution that fragmented public power — among the institutions of the federal government, between state and nation, between the people and those who governed them. Whether called “checks and balances” or “separation of powers” or “federalism,” it reflected a wisdom derived from two millennia of Western history: that the guardians must be guarded, that the often frustrating, occasionally paralyzing, clash of will and desire between men and institutions was the necessary foundation of a lasting democracy. We could maintain our freedoms only by making sure that no one was strong enough to take them away. They would use the impulse toward self-aggrandizement, so firmly embedded in human nature, as a protection against excessive power, by contriving a structure that made every assertion of authority by one a threat to the authority of others.
In our time this conflict has been most dramatically manifested in the tendency of the presidential institutions to overflow their bounds, to pursue goals heedless of the desires and prerogatives of the Congress and, by indirection, the people who elect it. There was no discussion of constitutional limits at the meetings I attended in preparation for the Bay of Pigs. I heard no expression of deference to the clear congressional authority over questions of war and peace as Lyndon Johnson led us, secretly, deceptively, into an undeclared war in Southeast Asia. The enormous cost of these disruptive failures only confirms the Founders’ apprehension, and should remind us that democracy is not an artifact but a process, not a form of power — like dictatorship or monarchy — but a continual, unresolvable struggle against the restraints that make men free.
Of all the constitutional institutions, the Supreme Court alone cannot be checked or overruled by other institutions or by popular dissent. Their decisions cannot be vetoed or overruled in an election. That is the theory. The reality is that the power of the Court itself rests on popular consent or, at least, acquiescence and would swiftly dissolve were that support withdrawn. Frankfurter often referred to the “self-inflicted wounds” of the Court — meaning decisions that so exceeded its mandate that they jeopardized the Court itself. The Dred Scott decision did not legitimize slavery — although it purported to do so; nor could the Nine Old Men obstruct the reforming impulses of the New Deal. By trying to exercise such power, attempting to impose, by judicial fiat, the justices’ own views of important social and economic questions, the Court undermined its own authority. It transgressed the boundaries of the judicial power, and, as a result, almost ended its own.
Those boundaries are not laid down in the written Constitution but in the doctrine known as “judicial self-restraint,” which must also be understood as “judicial self-preservation.” It is not an easy doctrine to define. But behind it is the democratic faith that the people, acting through the institutions of representative government, must be trusted to resolve the great moral and social issues of the day. The Supreme Court can guard against excesses, protect the helpless individual, but on the large issues it must respect the process of democracy. For the reality is that even though it can pronounce on issues that divide the nation, it cannot enforce its pronouncements. Even the decision in Brown v. Board of Education, a necessary exercise of power by the institution that had itself validated segregation, would have been a nullity had it not touched the conscience of the country and helped stimulate long-suppressed black anger.
In the sixties, although I approved the result of the Warren Court’s decisions, I found myself at odds with many liberals, being convinced that the Court was exceeding its proper bounds, that its members were seeking desired results despite precedent and constitutional tradition. “This transformation of the Court’s role,” I wrote in 1967, “will come back to plague us when, as they inevitably must, judicial personnel and attitudes change.” They are changing. And if the Rehnquist Court takes as spacious a view of its role as did its predecessors, we may find that the net result of judicial activism has been a diminution of personal liberty, and the dissolution of established restraints on economic power.
Midway through my year at the Court I called Senator Kennedy’s secretary, Evelyn Lincoln, told her of the senator’s earlier invitation to “call on him,” and, shortly thereafter, received an appointment to visit his Senate office located only half a block from the marble temple of the judicial branch.
With the exception of a couch or two, and some narrow passageways left free for human traffic, all the space in the small outer offices was covered by desks, each virtually concealed by a sprawl of papers, and behind which sat a human being whose ear was firmly attached to a telephone receiver. The ambience of confused, cacophonous vitality signaled a world far different from the judicial sanctum from whose ordered tranquillity I had walked. It was my first visit to a Senate office since, as a twelve-year-old boy, I had roamed the legislative corridors on occasional forays from my junior high school, surreptitiously descending to the basement monorail that connected the office buildings with the Capitol across the street. There, I and my companions would ride the train until a guard, noticing our frequent reappearances at the entrance, informed us that “this isn’t an amusement park.” Perhaps not. But it was the closest a boy could come to one in the District of Columbia.
The harried animation of the cubicled offices testified to the rapidly mounting intensity of Kennedy’s four-year campaign for the presidency, already — by early 1959 — more than halfway to the time of decision. As a secretary closed the door to the senator’s private office behind me, I was abruptly in an enclave of deceptive serenity. The tall, handsome Kennedy rose from behind his desk, shook my hand, and, smiling warmly, his eyes never leaving my face, showed me to a soft leather chair and resumed his seat. Quickly, with some trace of nervousness, I told him that I would like to be of help in the campaign, but, of course, could do nothing until my year at the Court was finished. (Lest I inadvertently breach the constitutional separation of powers.)
“I appreciate your offer,” he said, his smile friendly but non-committal. “Your boss is not one of my supporters.” The remark was not a question but a statement of fact, intended, perhaps, to elicit a reaction that might tell him whether I had absorbed some of the justice’s well-known hostility to his candidacy. I did not tell him of Frankfurter’s remark to me that his father, Joseph P. Kennedy, was “the most wholly evil man” the justice had ever known; their early New Deal friendship having been transformed into intense animosity rooted in the older Kennedy’s anti-Semitism, opposition to American involvement in the struggle against Nazi Germany, and, perhaps, to other conflicts of principle and ambition of which I knew nothing. “He said,” I responded, “that no one was ever a good president who didn’t really enjoy his job.” “You tell him,” the senator replied, his tone slightly sharper, “that I’m going to have a hell of time.”
Then, softening, he asked about my work on the Court, what I had thought of Harvard Law School; the casual amiability of our conversation belied only by the probing intensity of his eyes. His curiosity — about me and the Court — was genuine, but he was also taking my measure. This intense but unthreatening concentration was, I later learned, among the most consistent traits of his character. Even in a crowded gathering, he made his companion of the moment feel as if they were joined in solitary fellowship. The curiosity was real, as was the calculation.
After ten or fifteen minutes he rose. “Let me introduce you to my staff,” he said, motioning me to accompany him to the outer offices, where I met some of the men with whom I was, little more than a year later, to join in close, often uneasy, association. “Keep in touch,” he admonished as he turned back to his office, and the more important business of the day.
No promises had been made, even implied. My brief interview had been only one among a multitude of encounters through which — every day of every week — Kennedy was extending his reach, preparing for the days of combat ahead. The wasted time, the meetings without consequence, were an inescapable element of an endeavor in which one did everything, talked to everybody, in hopes that something would have results. Politics, like war, is waste. I had been given no reason to think my visit might irrevocably alter my life. I had, however, been reminded that I was halfway through the year, and must act soon if I was to find an alternative to the jobs offered by major law firms, which were arriving in such abundance. At the same time, somewhere in Kennedy’s office, my name was being entered in a large card file of “bright young men” who might someday, somehow, be of some use in the approaching campaign.
A few months later, during the spring of 1959, I received a letter from the placement director at Harvard Law School. The House Subcommittee on Legislative Oversight — an adjunct of the Committee on Interstate and Foreign Commerce — was looking for young lawyer-investigators, and Harvard Professor Clark Byse had suggested my name. This was the committee that had recently conducted an investigation of Sherman Adams, Eisenhower’s chief of staff, its disclosures forcing the resignation of the second most powerful man in government.
Sensing an opportunity to avoid, or at least postpone, a decision to practice law, motivated also by a nascent fascination with public life and the vaguely sensed, still unformed spirit of the decade just ahead, I paid a visit to the chief counsel of the committee, Robert Lishman. “The committee has jurisdiction over all the administrative agencies,” Lishman explained. “All of them?” I interrupted wonderingly. “Every one,” he replied. “Of course we can’t do everything at once.” Even so, the choices seemed virtually limitless. The committee was empowered to investigate the entire fourth branch of government, bureaucracies established over decades to supervise almost every substantial activity of American commerce — railroads and trucks; the stock market and the banks; advertising and drugs; telephones, radio, and television. Often heedless, even defiant, of the public interest they were established to defend, all of them, with age, had moved toward partnership with the interests they regulated. What a gold mine! What fun it would be!
“I’d like to try it,” I told Lishman, and he, somewhat astonished to find a former president of the Harvard Law Review among his applicants, offered me a job on the spot. My work was to begin immediately after the Supreme Court’s summer recess terminated my one-year appointment.