A reaffirmation: the authenticity of the Roberts memorandum, or Felix the non-forger.

• Author: Friedman, Richard D.
• Position: Justices Felix Frankfurter and Owen J. Roberts

In the December 1955 issue of this Law Review, Justice Felix Frankfurter published a tribute to his late friend and colleague, Owen J. Roberts.(1) The tribute centered on what Frankfurter claimed was the text of a memorandum that Roberts wrote in 1945 to explain his conduct in the critical minimum wage cases of 1936 and 1937, Morehead v. New York ex rel Tipaldo(2) and West Coast Hotel Co. v. Parrish.(3) Scholars have often challenged the adequacy of Roberts's account of why he cast decisive votes for the conservatives in Tipaldo and for the liberals in West Coast Hotel.(4) Until recently, however, no scholar has doubted that what Frankfurter published was, in fact, Roberts's account. But now, in an article published by the Harvard Law Review, Professor Michael Ariens makes the remarkable suggestion that Frankfurter--"Felix the Cat," Ariens calls him--fabricated the document.(5) The suggestion is demonstrably false. It should be put aside and forgotten. If Roberts did not write the memorandum, then Frankfurter, by fabricating a text and presenting it as Roberts's, committed extraordinary misconduct. So far as I am aware, no one has ever charged Frankfurter with such flagrant misfeasance--and Frankfurter was not without foes. We must therefore approach Ariens's suggestion with a large dollop of skepticism.(6) And that skepticism should survive what appears at first glance to be Ariens's strongest piece of evidence--the missing evidence, the fact that the memorandum cannot now be found. Even without additional evidence, I believe we should be inclined to suppose that some factor other than fabrication by Frankfurter accounts for our present inability to find the memorandum. And, in fact, there are two additional compelling pieces of evidence that make the fabrication hypothesis implausible.

First, Professor John W. Chambers, an historian, saw the Roberts memorandum in the collection of Frankfurter papers at the Library of Congress in the 1960s. In an article published in 1969, Chambers reported on his search for material that might help explain Roberts's votes in the minimum wage cases. He wrote in a footnote:

There are now ... copies of several letters from Roberts in four

folders of the Felix Frankfurter papers which were deposited last

year at the Library of Congress. Although the original letters are

located in Frankfurter's Supreme Court papers at the library of the

Harvard Law School, photocopies of the Roberts-Frankfurter

correspondence from 1930-55 are included in Box 33 of the

Washington collection. Disappointingly, the letters are mainly

chatty notes about life on Roberts's Chester County, Pennsylvania,

farm and shed no new light on his action in the minimum wage

cases.(7) So far, no good. But this sentence immediately follows: "Included is the original three-page typescript of Roberts's memorandum to Frankfurter addressed |To you in confidence/O.R.J' and dated '11-9-45' but it only testifies to the accuracy of the reproduction in the University of Pennsylvania Law Review."(8)

To his credit, Ariens cites the Chambers piece. But he does not quote this passage. Instead, he says that Chambers "searched the Frankfurter Papers inconclusively for the original or a copy of the memorandum."(9) I must confess that as I read Chambers's language it makes his discovery of the original of the memorandum sound very conclusive indeed. Ariens does acknowledge that this language "suggests that Chambers located the memorandum."(10) But, says Ariens, "[t]he language is quite vague" (I have another confession: the ambiguity escaped me) "and on close inspection, it appears that at most what he found was a copy of something that seemed to be the memorandum."(11) I do not think Chambers's language is subject to the interpretation that the memorandum is one of the pieces of correspondence of which he only saw a photocopy. The language is precise: what he saw was both "the original" and a "typescript." Nor could Chambers have been referring to what Ariens did find in the Frankfurter papers--"a typescript copy of unsigned, undated material in the draft of the tribute [by Frankfurter to Roberts] that is identical to the published memorandum."(12) Once again, Chambers is gratifyingly precise: what he saw bore the initials of Owen J. Roberts and the date, November 9, 1945, that Frankfurter claimed for the memorandum in his tribute.

Luckily, though, we do not have to rely on interpretation of Chambers's 1969 language. Chambers himself, a young man in 1969, is not an old man now. As a professor of history at Rutgers University, he is easy to find.(13) And, I have learned, he is accessible and gregarious and has an excellent memory. Ariens made a remarkable canvass of former law clerks, law review editors, and others (including me!) who might be thought to have seen the memorandum.(14) "No one with whom I have spoken," he reports, "remembers ever seeing the original memorandum."(15) But he never spoke to Chambers, the one identified living person who--at least arguably--did claim to have seen the original memorandum.

Chambers says in 1994 that his 1969 language meant exactly what it says, and that it was accurate: he saw the original type-script-not a printed copy, not a photocopy, not a mimeograph--of the memorandum, bearing Roberts's initials and the date, in the Frankfurter collection at the Library of Congress in 1968.(16) His note of disappointment with respect to the memorandum was not attributable to a failure to find, or uncertainty as to whether he had found, the original of the memorandum. Rather, he was disappointed by his failure to find any useful surrounding correspondence that might have explained how Roberts came to write the memorandum or what Frankfurter thought of it at the time.(17) The original memorandum itself was not particularly useful to him. It only testifie[d] to the accuracy of the reproduction' in this Law Review, and that merely confirmed what he had assumed.(18)

Chambers is a highly reputable, well-trained historian.(19) He had no apparent motive to substantiate falsely the existence of the memorandum;(20) on the contrary, a legitimate discovery that Frankfurter had fabricated the memorandum would have been quite a coup for an aspiring scholar. Undoubtedly, it would have led to

But if Chambers saw the memorandum in the Frankfurter papers in 1969...