Thompson then pointed out various misstatements in Thayer’s decision—such as that the Supreme Court had approved the jury’s verdict, when it had done nothing of the kind—and accused him of being so overwrought by the case that he was not capable of reasoning “with a calm mind free from impartiality.” Beyond all the renewed arguments about Madeiros, the Department of Justice, and other points, Thompson’s chief contention was that the defendants were entitled to a new trial because there had been an abuse of judicial discretion.
In the thin winter light of the musty echoing courtroom the stiff faces of the five justices looked like Copley portraits of a century and a half earlier. Chief Justice Arthur Prentice Rugg presided, flanked by Henry King Braley, William Cushing Wait, John Crawford Crosby, and Edward Peter Pierce—New England names, bloodless New England features. To Thompson they seemed as chill as the city streets outside.
Vanzetti was pessimistic about the appeal:
We know that in a case of such nature as ours, legallity alone is insufficient. Mr. Thompson has known to place the case in such perfect manner before the Supreme Court, that if the justices wish, they can give us justice now.... Therefore, if they are going to a refusal, it would unmistakably prove that they have prostituted their consciences, their intellect, and will to a categoric order of an invisible and trascendental master or class.
The appearance of Felix Frankfurter’s article, “The Case of Sacco and Vanzetti,” in the March issue of the Atlantic Monthly initiated the final world-shaking stage of the case. The Atlantic still remained the voice of conservative intellectual America. For seventy years its staid ocher cover with the oval intaglio cut of Poseidon and his sea horse had borne the names of Lowell, Longfellow, Whittier, Emerson, Hale, Holmes, James, and Howells. That it should now feature an article by a Harvard Law School professor attacking the trial, the jury, the witnesses, the verdict, and the Massachusetts judiciary, gave the affair at once a national significance. The stirrings in Europe, the mutterings in New England had now become articulate. Frankfurter’s article was like a lighted fuse leading to a powder magazine. Sacco and Vanzetti became familiar names in all the forty-eight states, not just among the urban left-liberals but in the suburbs and the small towns and the women’s clubs and the little brick Carnegie libraries.
For most of those who read it, Frankfurter’s attack was their factual introduction to the background of a case they had heard about only vaguely. Deftly and concisely the law-school professor explained how the two men had come to be arrested, described the method of selecting the jury, Katzmann’s harrying cross-examination of Sacco, Judge Thayer’s patriotic rhetoric, and the later discrediting of various witnesses. Accepting the hypothesis that the Morelli gang committed the South Braintree murders, he asserted “with deep regret” that Thayer’s ruling on the Madeiros motion was “a farrago of misquotations, misrepresentations, suppressions and mutilations.”
The weakness in Frankfurter’s article was that basically the prosecution had a more formidable case against the two men than readers of the Atlantic would have gathered. Of the expanded book version that appeared the same month, Justice Oliver Wendell Holmes wrote to Harold Laski:
My prejudices were all with Felix’s book. But after all, it’s simply showing, if it was right, that the case was tried in a hostile atmosphere. I doubt if anyone would say there was no evidence warranting a conviction.
With the appearance of the Atlantic article, Frankfurter became the moving spirit of the Sacco-Vanzetti defense. Even Thompson turned to him. His were the final decisions as to tactics and action. Lithe, dark, youthful in manner but obviously the professor, the forty-five-year-old Frankfurter was as intense as he was opinionated, the picture of academic intellectualism without its self-deprecatory pose. Whenever he appeared at the Hanover Street headquarters he always managed to look as brisk as if he had just walked over from Cambridge—as he sometimes had. He and Governor Fuller shared a common start from nothing and were both driven by the same fierce will to succeed, but the governor saw success as the power of money while the professor saw it as the power of the mind.
Felix Frankfurter had been sure of himself from the day he arrived in New York from Vienna as a twelve-year-old immigrant, bookish and eager, speaking no English yet shortly afterward leading his classes in the Lower East Side’s Public School 25. At the Harvard Law School, which he entered more or less by chance in 1903, he stood for three years first in his class, receiving the highest honor of becoming an editor of the Law Review. After graduation he served as assistant to Secretary of War Henry Stimson in the Taft administration, continuing briefly into Wilson’s first term. Just ten years after the unknown Frankfurter had entered the Harvard Law School, Professor Edward Warren enticed him back with an invitation to join the faculty.