The Supreme Court, World War II, and a Great New Book

When legal scholars and historians think about the most important periods of Supreme Court decision making, the most cited are probably the Lochner era or the Warren Court, and maybe decades from now the Roberts court will be seen by Court watchers as particularly significant. But one important and somewhat understudied period is the Court during WWII. Other than the tragic and now repudiated Japanese internment cases, and the universally applauded Barnette pledge-of-allegiance case, law professors and law students do not spend too much time on the Court for the roughly five years of America's involvement in World War II. But it turns out that the Court during World War II is a fascinating and important study full of important lessons for today. And, lucky for us, Professor Cliff Sloan has brilliantly documented those years in his forthcoming book "The Court at War."

The point of this blog post is not to present a comprehensive summary of the book but to induce readers to take a look. It is that good. I'll have a couple of nitpicks as well.

First, as to style, Sloan's writing is smooth, smart, and accessible to lawyers and non-lawyers. I tell my students to "say exactly what you mean in as few words as possible." Sloan is a master of that skill while still reeling off fascinating facts and compelling personal accounts of the justices who served during that time and the politicians around them, including the complex and wildly intriguing figure Franklin Delano Roosevelt. The book is simply a joy to read.

Some of the names of the justices who served on the Court during the War are extremely recognizable: Frankfurter, Black, Stone, and Jackson. Others, like Wiley Rutledge and James Byrnes, much less so. The book is told in chronological order with long background sections on the justices that are intriguing and well-told. As Sloan documents, the relationships between and among some of the justices were raw and seemingly much more tense than today. The animosity and struggles between Black and Frankfurter are well-documented by many fine scholars and historians but Sloan's telling of that difficult relationship is fresh and compelling.

Perhaps the most surprising part of the book is how often the justices are seen cooperating with the President and his people. Frankfurter had discussions in the White House with FDR about what kinds of New Deal programs could pass Congress and the Court. Rutledge seemed to admit to factoring in FDR's thinking in Rutledge's own deliberations. And, in one of the most interesting episodes Sloan documents, Justice William O. Douglas badly wanted to be FDR's VP running mate in 1944. That desire led him to deal with political party bosses, other rivals for the position, and an intertwining of law and politics we might not see again. In the end, of course, Douglas did not receive the nomination, and then served for three more decades (and more than a few wives).

The intermixing on a personal level between the President's men and the justices suggests that the Court during the War was more of a tool of the President than an independent court of law. Maybe that's how it should be during a crisis of that magnitude, I don't know, but it does put into perspective the Roberts Court's ties to the Federalist Society and the American Constitution Society as well as Thomas's connections to the very rich. As sordid as all of that is, it pales compared to how the World War II justices dealt with the President of the United States.

The most important and notorious case during the War was Korematsu v. United States, in which the Could upheld the forced relocation of all people of Japanese descent on the West Coast just because of their ancestry. Not everyone knows that the true designer of the internment plan was General John DeWitt who, let's just say, was not exactly a civil rights icon and who intentionally exaggerated and even fabricated much of the data the government relied on in its briefs--with the added bonus that the justices knew it! The famous law Professor Herbert Wechsler (of "neutral principles" fame) plays a role in mediating some but by no means all of the disagreements among the justices about what to do with this misleading information at the argument. Let's just say, in Sloan's telling this was not Wechsler's finest moment. 

The story of how the Court upheld a mandatory pledge salute for school children in Minersville School District v. Gobitis in 1940 only to reverse itself just a few years later in Barnette has been oft-told. Sloan's chapter on this shift, however, is told mostly from the perspectives of the justices involved and his legal realist account of the change is spot-on and important.

During the War years, the justices also overruled a prior decision and invalidated Texas' all-white Democratic Political Primary. Sloan's discussion of this landmark case is one of the best parts of the book both because it focuses on the incredible Thurgood Marshall who argued the case (as well as 31 others for a combined record of 29 and 3!) and for its discussion of Felix Frankfurter. He was disappointed when, after being initially assigned the important opinion, a few other justices thought it would be a terrible idea if he wrote what was going to be an extremely controversial decision. Jackson told Frankfurter that he should be the last justice to author the case because Frankfurter, "from the point of view of Southern prejudice," has "three disqualification." Stone told him that he was "a New Englander, ... a Jew, and you are not a Democrat." Frankfurter's response: "all three accusations are true." Eventually, Justice Stanley Reed from Kentucky wrote the opinion.

Another important case from this time period is Ex Parte Quirin, in which the Court allowed the execution of a number of Germans who had come to America allegedly to blow up parts of our war machine. One of the defendants was an American citizen. After being informed through an intermediary that FDR was not going to turn over the prisoners to the civilian courts, as they requested, no matter what the Court did or said, the justices issued a short order denying the defendants' request. Only after most were executed did the Court give its reasons. Justice Scalia once remarked that Quirin "was not this Court's finest hour." Professor Sloan's account of this incident dramatically supports Scalia's indictment of the case.

The book is not perfect (no book is). I would have liked a little discussion of how strict scrutiny for racial classifications was born in Korematsu even though the Court upheld the government's actions in that case. I also might have enjoyed a little more discussion of what happened to the Court after the War. But those are nit-picks. Sloan has written a readable, informative, and provocative book about a lesser known time in Supreme Court history. I strongly recommend it!