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Felix Frankfurter, Incorporation and the Willie Francis Case - William Wiecek

By 1937, the United States Supreme Court had discarded a concept of law and the judicial function that had dominated its work for the preceding half-century. Scholars have variously described this ideology of law as "formalism," "legal orthodoxy," or "classical legal thought." Classical thought provided a comprehensive explanation of the nature and sources of law, the role of judges in a democracy, and law’s relationship to the larger society. Its abandonment deprived the Justices of a powerful explanatory and legitimating paradigm that justified the power of judicial review. They quickly tried to come up with an equally persuasive substitute.

One of the principal problems that classical thought had purported to resolve was the issue of objectivity. In exercising the power of judicial review, judges frustrate the will of democratic majorities. How can they legitimately do so without imposing their own personal values and political preferences?

After 1937, the Justices struggled to provide a plausible response to that challenge. Two major possibilities emerged. Felix Frankfurter urged a rigorous form of judicial self-restraint, deference to the judgments of legislative bodies, and reliance on the traditions of the American people as the criterion for evaluating the constitutionality of legislative policy choice. Hugo L. Black rejected that proposal as subjective and instead developed a literalist and absolutist approach to interpreting the text of the Constitution. He opposed Frankfurter’s position as a misplaced reliance on what he called "natural law," which provided too much discretion to judges. Both men in their differing ways sought to answer the riddle of Lochner v. New York (1905), which each saw as vesting too much power in judges.

The vehicle for the Black-Frankfurter debate was the problem of "incorporation": to what extent, if at all, had the Fourteenth Amendment’s Due Process Clause made the first eight Amendments to the federal Constitution applicable as limitations on state authority? A line of precedent tracing back to Justice William Moody’s opinion in Twining v. New Jersey and through Justice Benjamin N. Cardozo’s opinion in Palko v. Connecticut (1937) provided support for Frankfurter’s jurisprudential approach. Cardozo invoked "a principle of justice so rooted in the traditions and conscience of our people" and "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Twining held that nothing was incorporated; Palko adopted what later scholars call a "selective incorporation" approach, permitting some of the federal constraints to be incorporated, but not necessarily all. Black rejected both approaches as subjective, and insisted instead that all guarantees be incorporated.

Frankfurter and Black fully articulated their positions in Adamson v. California (1947), but they first explored the issues in a case decided earlier in the Term, Louisiana ex rel. Francis v. Resweber (1947). The Court had not encountered a case since Frank Palka’s in 1937 that presented a real-life embodiment of the incorporation issues in gut-wrenching form. That case came before the Brethren in Willie Francis’s case, and it tested the antagonists’ dedication to their principles. In the end, their fidelity to those principles sent a boy to a cruel death.

Louisiana tried Francis, a sixteen year old black male, for the murder of a white druggist, convicted him, and sentenced him to death in the electric chair. The trial was perfunctory: court-appointed counsel offered no defense and did not appeal the conviction, despite well-founded doubts as to whether Francis was in fact guilty. His conviction rested solely on two confessions that might well have been found to be coerced, if counsel had bothered to challenge them. But they did not, and Willie Francis went to the electric chair.

But at the moment of electrocution, the chair malfunctioned: some current flowed through Francis’s body, enough to cause intense pain but not enough to kill him. Neither of the men who had installed the portable electric chair were electricians, and the actual executioners were probably drunk at the time they threw the switch. Prison guards dragged Francis off to his cell and called an electrician. Meanwhile the NAACP and others mounted a crusade to prevent the state from trying to electrocute him a second time.

The state’s bungled execution attempt was the prelude to protracted maneuvering and bargaining on the Supreme Court, as the Justices tried, and ultimately failed, to coalesce around some rationale that would resolve the unprecedented problem facing them: could Louisiana try to kill Francis a second time, after having botched its first attempt? The Court’s first response was itself ill-omened, suggesting how difficult it would be to find a humane and just solution that comported with the abstract principles involved. The original vote on granting certiorari was three in favor (Frankfurter, Frank Murphy, Wiley B. Rutledge), four opposed (Harold H. Burton, Black, William O. Douglas, and Stanley Reed). With Chief Justice Harlan Fiske Stone recently deceased and Robert H. Jackson in Nuremberg, that was actually a vote in favor of granting cert., but the Clerk originally reported a denial, and Francis’s counsel so advised his client. The error was discovered and corrected the next day, but not before the Court’s own fumbling added more to his anguish.

In the conference debates that ensued, Frankfurter’s resolve to defend the Moody-Cardozo approach to incorporation hardened. Black did not recede from his position either, while two Justices, Murphy and Rutledge, raised just the issue that Frankfurter and Black in their differing ways were trying to suppress: the place of a judge’s individual conscience in reaching a just decision. The labyrinthine internal politics of the Court are worth following in their own right, because they demonstrate how fractured the Court was at the onset of Chief Justice Fred M. Vinson’s tenure.

Skelly Wright, then in private practice, argued the case before the Supreme Court. He framed the issue as whether the electrocution retry would violate the Fifth Amendment’s double jeopardy provisions, the Eighth Amendment’s ban on cruel and unusual punishment, or the Fourteenth Amendment’s due process and equal protection requirements. The original vote at conference after argument was 6-3 to affirm, with Murphy, Burton, and Rutledge in dissent. Vinson assigned the opinion to Reed.

Reed’s draft majority opinion found no due process violations as measured by "national standards of decency." He also found no double jeopardy or cruel and unusual punishment, but he did not explicitly explore the incorporation problem. To Reed’s and Vinson’s dismay, this draft promptly spawned three dissents (Rutledge, Murphy, and Burton), two unwelcome concurrences (Frankfurter and Jackson), and a switch of vote by Douglas to the dissent, leaving a precarious 5-4 majority hanging together on the contestable Reed draft.

Burton circulated an impassioned dissent, unusual both for its depth of feeling and for the fact that its author usually voted to sustain the government in criminal-procedure appeals. He argued that a re-execution would constitute cruel and unusual punishment, thereby implicitly assuming the incorporation issue. On this point, he stressed the mental anguish that Francis had faced, and would face again. He also found an equal-protection violation based not on the wretched state of criminal justice extended to African-Americans in the southern states at the time, but on the fact that Francis would be treated differently from other men sentenced to death, who went to the electric chair only once.

Murphy and Rutledge joined Burton, each writing to stress, as Murphy put it, that a judge must take his "humanitarian instincts" into account in resolving the questions that Francis’ case presented. Murphy had committed himself to such an approach several years earlier, spurning formalistic approaches in order to do justice in a particular case. In a dissent in one of the wartime conscientious objector cases, he had written: "The law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution," an apt statement of his judicial outlook. He elaborated that view in his dissent in a right-to-counsel case decided while the Court was considering Francis:

Legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us, facts upon which a man's very life or liberty conceivably could depend. ... But the result certainly does not enhance the high traditions of the judicial process. In my view, when undisputed facts appear in the record before us in a case involving a man's life or liberty, they should not be ignored if justice demands their use. Here the facts in question ... emphasize the absence of an intelligent waiver of counsel and petitioner's failure to comprehend the legal problems placed in his path. They serve to make any decision on the issue in the case more intelligent and more just.

In that frame of mind, he confronted the formalism of Reed’s disposition of Willie Francis’s case: "we have nothing to guide us in defining what is cruel and unusual apart from our own consciences.... Our decision must necessarily be based on our mosaic beliefs, our experiences, our backgrounds and the degree of our faith in the dignity of the human personality." Rutledge adopted a similar position. Burton persuaded both men to shelve their drafts and join him, along with Douglas, in a unified front. Their views directly challenged the core of Frankfurter’s beliefs, which was certain to set him off.

Jackson’s concurrence eroded Reed’s majority, for he explicitly repudiated Reed’s "national standards of decency" criterion. In his distinctive prose, he denied that the Framers "ever intended to nationalize decency." Instead, Jackson relegated the decency test to "Louisiana’s own law and sense of decency." Jackson also emphatically rejected the Murphy/Rutledge reliance on a judge’s personal feelings. Yet perversely, he condemned the death penalty per se – an odd position for one who had been earnestly trying to hang Nazis just a year earlier. But whatever the shortcomings of his position may have been, Jackson had at least enunciated a clear standard, something Frankfurter failed to do.

Jackson’s draft concurrence aptly exposed the incoherence of the Palko standards-of-decency test:

[Reed] arrives at a conclusion which permits what to another is "repugnant to a civilized sense of justice," "inhuman and barbarous" and violates the "first principles of humanitarianism." A third proposes "elementary standards of decency" which brings him to a result exactly opposite the one reached by those who use as [a] guide "national standards of decency." A fourth identifies "national standards of decency" with "mystic natural law" and rejects the whole philosophy, but still comes out with the same result as those who use it.20

As if all these conflicting views were not complication enough, Black drafted a concurrence in which he argued for incorporation of the Fifth Amendment’s double-jeopardy and Eighth Amendment’s cruel-and-unusual-punishment provisions by the Fourteenth Amendment, condemning "a mystic natural law which is above and beyond the Constitution, and which is read into the due process clause so as to authorize us to strike down every state law which we think is ‘indecent,’ ‘contrary to civilized standards,’ or offensive to our notions of ‘fundamental justice.’"

In the internal dynamics of the Court, Frankfurter now became pivotal. It was "not [an] easy case," he declared at Conference. But he resolved it for himself on the basis of a statement he attributed to Oliver Wendell Holmes,Jr., who "used [to express the relationship between the Supreme Court and the States] by saying that he would not strike down State action unless the action of the State made him ‘puke’." The retry "is hardly a defensible thing for the state to do, [but] it is not so offensive as to make him puke – does not shock conscience". He reminisced in after years that the Francis case "told on my conscience a good deal.... I was very much bothered by the problem, it offended my personal sense of decency to do this. Something inside of me was very unhappy, but I did not see that it violated due process of law." How odd that Frankfurter could not see that a legal norm based on nothing more than an individual jurist’s nausea did not rise to the dignity of anything that we would consider law.

In his note to Burton, Frankfurter did not try to dissuade the dissenter; on the contrary, he warmly commended him for his position. This obliged him to explain his own position, though, and he did so at length:

I have to hold on to myself not to reach your result. I am prevented from doing so only by the disciplined thinking of a lifetime regarding the duty of this Court in putting limitations upon the power of a State under the limitations implied by the Due Process Clause.

He insisted that the Justices must exercise judicial self-restraint and defer to the judgment of the state. Frankfurter narrowed this point to the matter of accepting the state Supreme Court’s construction of the Louisiana statute: "for such, and such alone, in view of the relation of the United States to States, and of this Court to State courts, is the exact legal situation before us." (The Louisiana Supreme Court had implicitly construed the state electrocution statute as not prohibiting a retry.)

If Frankfurter’s view had been correct, then his position would have been unassailable, for one of the Court’s oldest and most respected canons of interpretation holds that the Supreme Court must accept a state supreme court’s interpretation of a state statute as authoritative. Frankfurter’s move was a specimen of long-sanctioned lawyers’ reasoning, and had been at the core of common law pleading: a large and complex whole of law and fact was reduced by a series of logical cascades or logic gates to a single question of law, defined as narrowly and specifically as possible. Then the resolution of that small question would be dispositive of the case as a whole. This was one way in which the law had traditionally sought to achieve objectivity in judging, but it avoided confronting all the other issues in the case that had been filtered out by the successive cascades. Specifically, in Willie Francis’s case, it enabled Frankfurter to avoid having to come to terms with his own sincerely-held conviction that it would be wrong to electrocute him a second time.

Having reached a resolution that satisfied his judicial conscience, Frankfurter then turned to formal doctrinal analysis. The due process criterion was to be "the accepted, prevailing standards of fairness and justice," defined as the standards of the state, rather than the nation or the locale of the trial (the rural parish of St. Martin in the Cajun country of southern Louisiana.) To this he superadded a reasonable-man test:

after struggling with myself – for I do think the Governor of Louisiana ought not to let Francis go through the ordeal again – I cannot say that reasonable men could not in calm conscience believe the State has such a power. And when I have that much doubt I must, according to my view of the Court’s duty, give the State the benefit of the doubt and let the State action prevail.

In a subsequent note to Burton, declining his overture to join the dissenters, Frankfurter restated his basic position: "I cannot bring myself to think that if I were to hold there was [a violation of due process standards], I would not be enforcing my own private view rather than the allowable consensus of opinion of the community which, for purposes of due process, expresses the Constitution."

Frankfurter thus defined the two fundamental elements of his view of judging, a view he held consistently through his twenty-three years of service on the Court. First, a judge must determine whether a potential impact of the law’s application would offend the "prevailing standards of justice and fairness." Only if it clearly did could a judge strike down the state’s act. Second, a judge must not impose his "own private view" of what fairness and justice might be, for to do so would be to repeat the error of the Lochner Court.

There were at least two major problems with this position, but Frankfurter did not acknowledge or even recognize either of them. First, his standard of community consensus about fairness and justice was hopelessly subjective. Frankfurter never suggested how a judge determines what these community standards are, or how such a determination could ever be disciplined, not to say objective. Where was a judge to look for persuasive or even plausible evidence of what these standards were? Frankfurter would have been the first to condemn judging by reference to public opinion polls.

But had he troubled himself to inquire just what the actual community consensus in the Francis case really was (as opposed to speculating about what it might be, which is what he did), Frankfurter would have discovered that Governor Jimmie Davis (the former country-western singer and composer of "You Are My Sunshine") had been "deluged with an unprecedented flood of mail.... Thousands of letters, telegrams and postcards poured in from [all parts of the United States] urging clemency for Willie Francis." Reed received impassioned pleas from around the nation urging that Francis’s life be spared. Similarly, editorials in the nation’s press, reacting first to Louisiana’s determination to re-electrocute Francis and then to the Court’s decision upholding the state’s decision, were largely (but not entirely) negative.

Frankfurter had an answer to this challenge, which he had undoubtedly confronted in the privacy of his conscience countless times. He laid out his personal struggles in a letter to his friend and confidant, Learned Hand:

To what extent may a judge assume that his own notions of right moral standards are those of the community[?] But if it is his job – as you and I believe it to be – to divine what may rightly be deemed the standards of the community, by what process is he to make that divination[?] How and where should he look for the disclosure of the community’s mores[?]

He found no answer, though, at least none that he shared with Hand or the rest of the world. Repeating that he thought Louisiana’s conduct "shocking," and "a barbaric thing to do, that would not be the feeling of the community whether the community be Louisiana or the United States at large – and that, therefore, I had no right to find a violation of the Due Process Clause." Perversely, however, an actual inquiry into community belief was improper for a judge to undertake, in Frankfurter’s eyes. How, then, could the utter subjectivity of his standard, which mocked all pretensions to objectivity, have eluded Frankfurter?

The answer is to be found in the second flaw of his position. The self-discipline with which Frankfurter credited himself diverted his attention both from the subjectivity problem and from nearly all issues of law, fact, and conscience posed by the case before him. His determination to stifle his own moral sense in the act of judging made it impossible for him to acknowledge that his own instincts might be congruent with the community’s moral sense, and that he should follow them. By reining in his moral impulses, Frankfurter made it impossible for himself to recognize what the real community sentiment was, and forced himself to substitute some imagined, synthetic community view. This was for him, deliberately or not, first a strategy of avoidance, and then of self-justification. The claim of self-transcendence would serve Frankfurter’s judicial philosophy well in the years to come, masking his reliance on his own personal feelings by his claim to a detached, disciplined impersonality as sanctimonious as it was spurious. A critic might say that Frankfurter’s suppression of his personal feelings was a disingenuous way for him to salve his conscience and yet retain the power to impose his own subjective policy preferences, basking in his own denial. Or, in the words of such a critic, Frankfurter’s position "collapses, on analysis, into little more than a front for policy-making." In the end, sadly, Frankfurter succumbed to the formalism that he previously condemned in "Butler, McReynolds & Co."

Frankfurter futilely demanded that Reed add the following passage to the majority opinion: "We have not before us a situation where officers of the State acted with malevolence or callousness or carelessness toward human life. Nothing in the record remotely warrants such imputation." In a strained and technical sense, that was literally correct: nothing in the record supported that conclusion. But had Frankfurter cared to go beyond the record (something impossible for him to do, given his rigid view of the judge’s function), he would have discovered superabundant malevolence, callousness, and indifference.

Yet if Frankfurter’s refusal to allow any scope to his own feelings seems misguided or worse in retrospect, it nevertheless constituted his earnest effort to resolve the objectivity problem that has bedeviled the modern Court, especially since 1937. The landscape of the twentieth-century Court is littered with the Justices’ failed efforts to devise credible responses to that dilemma: the dogmas of classical legal thought, Black’s literalist fundamentalism, the variant originalisms of the recent Court. So when Frankfurter failed, he was not alone. And yet, and yet.... Did still another victim have to be sacrificed to the Moloch of White Supremacy and bloodlust that ruled the crossroads of race and the death penalty in southern legal culture? Frankfurter exonerated himself at a terrible price.

Spotting weaknesses in Reed’s opinion for the majority, Frankfurter urged several changes, and Reed complied. Frankfurter was gratified: "I am confident HISTORY will approve of them," he scribbled on Reed’s printed draft. But if History approved, Frankfurter did not. To Reed’s dismay, he circulated a concurrence, which when published would deprive Reed’s opinion of majority status.

Frankfurter’s draft concurrence began with a tortured and unpersuasive attempt to show that though Reed had relied on "national standards of decency," he really meant what Jackson adopted in his draft concurrence, state standards of decency. (This effort was preposterous, and Frankfurter dropped it in his published concurrence.) More to the point, Frankfurter set forth at length his views of the Due Process Clause, incorporation, and the Court’s role. In doing so, he both doomed Willie Francis and provoked Black to the confrontation that played out in Adamson. In this sense, Francis v. Resweber was a dress rehearsal for the jurisprudential confrontation that was to come in the ensuing year.

Troubled both by the power of Burton’s dissent and the fact that it spoke for four Justices, Frankfurter announced that he would identify "the criteria by which the State's duty of obedience to the Constitution must be judged" under the Due Process Clause of the Fourteenth Amendment – the majority obviously having failed to do so. Invoking Twining, Hebert, Snyder, and Palko (which by that time had become for him the controlling litany), Frankfurter reaffirmed due process as "the meaning of the struggle for freedom of English_speaking peoples [that incorporates] advances in the conceptions of justice and freedom by a progressive society." In phrases that were provocative to Black, Frankfurter condemned the idea that the Fourteenth Amendment incorporated the Bill of Rights. Rather, it withdrew "from the States the right to act in ways that are offensive to a decent respect for the dignity of man, and heedless of his freedom." He conceded that "these are very broad terms by which to accommodate freedom and authority." He also admitted that this "involves the application of standards of fairness and justice very broadly conceived." But, he insisted, "they are not the application of merely personal standards but the impersonal standards of society which alone judges, as the organs of Law, are empowered to enforce."

Bringing these criteria to focus on the case before him, he concluded:

I cannot bring myself to believe that for Louisiana to leave to executive clemency, rather than to require, mitigation of a sentence of death duly pronounced upon conviction for murder because a first attempt to carry it out was an innocent misadventure, offends a principle of justice 'rooted in the traditions and conscience of our people'. [citations omitted] Short of the compulsion of such a principle, this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh. One must be on guard against finding personal disapproval rooted in more or less universal condemnation. Strongly drawn as I am to some of the sentiments expressed by my brother Burton. I cannot rid myself of the conviction that were I to hold that Louisiana would transgress the Due Process Clause if the State were allowed, in the precise circumstances before us, to carry out the death sentence, I would be enforcing my private view rather than that consensus of opinion which, for purposes of due process, is enjoined by the Constitution.

In that passage, Frankfurter definitively laid out his view of the judge’s role. He adhered to it in theory (but not in practice) till his death.

Circulated in draft, this concurrence annoyed Reed, who thought that he had already gone far to accommodate Frankfurter’s ceaseless demands, only to find that Frankfurter was going to desert him anyway. Matters only got worse as Burton, Murphy, and Rutledge circulated their draft dissents, and Jackson his concurrence. When Black, provoked by Frankfurter’s red flag to his bull, circulated his draft concurrence, Reed found himself in the impossible and absurd position of having only the Chief Justice agree with what had once been his majority opinion, while the other seven members of the Court insisted that it was wrong, five of them detailing its inadequacies at length in written opinions. While Willie Francis languished on what was bayou Louisiana’s equivalent of death row, his case was becoming an obscene parody of the appellate process.

Black rose to the bait of Frankfurter’s provocation, circulating a concurrence that insisted that the Due Process Clause of the Fourteenth Amendment had made the Fifth Amendment’s double jeopardy and the Eighth Amendment’s cruel-and-unusual-punishment provisions applicable to the states. He concluded, though, that the retry would constitute neither. He dismissed Frankfurter’s approach as resting on "a mystic natural law" and as being incurably subjective:

Conduct believed "decent" by millions of people may be believed "indecent" by millions of others. Adoption of one or the other conflicting views as to what is "decent", what is right, and what is best for the people, is generally recognized as a legislative function. Our courts move, I think, in forbidden territory when they prescribe their "standards of decency" as the supreme rule of the people."

Black condemned both the "standards of decency" and "fundamental principles" criteria as based on "the unarticulated assumption that the due process clause adopted the natural law concept that there is a higher law than the Constitution...." To honor such standards would result in leaving courts "free to substitute their ideas of natural justice for the considered policies of state and federal legislatures."

Having been let down by Frankfurter, Reed sought to recoup his majority or whatever part of it he could salvage by inveigling Black to abandon his concurrence. This he accomplished by agreeing to drop the national standards idea, and to water down other expressions in his draft that Black found objectionable. He also made a verbal concession to Black’s position, stating that the Court would "assum[e,] but without so deciding, that violation of the principles of the Fifth and Eighth Amendments, as to double jeopardy and cruel and unusual punishment, would be violative of the due process clause of the Fourteenth Amendment." That bought off Black, but alienated Frankfurter, though the miffed Reed no longer cared.

Now it was Frankfurter’s turn to be upset about Reed’s concession to Black’s hatching heresy. He circulated a memorandum to the Brethren complaining that "it makes for nothing but confusion in the consideration of constitutional issues under the Due Process Clause to cite cases" construing the double jeopardy clause. "The Due Process Clause of the Fourteenth Amendment expresses a demand for civilized standards of life which are not defined by the specifically enumerated guarantees of the Bill of Rights." It and its companion, the Equal Protection Clause, "summarize the meaning of the struggle for freedom of English-speaking peoples." In a gesture that was equal parts pique and principled disagreement, he explicitly refused to join the Reed opinion, thereby reducing it to the status of a plurality.

Reed announced the judgment of the Court on January 13, 1947, dooming Francis to a second trip to the electric chair. Frankfurter then undertook an unprecedented secret campaign to persuade Governor Davis to save Francis by executive clemency. Recognizing that the hint in his opinion might not be sufficient to prod the conscience of Louisiana and its governor, Frankfurter wrote a former classmate and roommate at the Harvard Law School, Monte Lemann, a member of the Louisiana bar, exhorting him to use his influence on Davis to get the sentence commuted. Lemann willingly complied, but to no effect. Frankfurter circulated a copy of Lemann’s letter explaining his actions among the Brethren, but did not tell any of them except Burton that he had instigated it. The state of Louisiana again electrocuted Willie Francis, this time effectively, on May 9, 1947. For him, the travesty of reason in judicial decision-making had come to an end, but the Justices were not yet done with the questions that his fate had placed before them so poignantly.

The Supreme Court bungled Willie Francis’s appeal as badly as the drunken executioners had bungled the first electrocution try. The resultant mischief lives on. Later courts recurrently cite Francis v. Resweber, along with In re Kemmler, as authority for the proposition that the Eighth Amendment does not bar death by electrocution, shutting their eyes to mounds of empirical and graphic data demonstrating beyond any doubt that, far from being "instantaneous and painless", as numerous judges have termed it, death by electrocution is horrifyingly violent, prolonged, and painful. Though no opinion in Francis addressed that issue, the case lives on, misapplied to perpetuate state torture.