Supreme Court Justice Harlan F. Stone (Library of Congress)

On October 22, 1935, a middle school student in Minersville, Pennsylvania, named William Gobitas refused to say the Pledge of Allegiance; his sister Lillian followed suit the next day. As Jehovah’s Witnesses, they believed that saluting the flag amounted to idolatry. School officials expelled the children, and other kids threw rocks at them. In 1940, Supreme Court Justice Felix Frankfurter rejected the family’s religious exercise objection to the coerced salute in the 8–1 Minersville School District v. Gobitis decision (the Gobitas family name was misspelled). Frankfurter did not merely defer to the wisdom of local school boards; he also extolled the virtues of “cohesive sentiment” as the “ultimate foundation of a free society.” A wave of violent assaults on Jehovah’s Witnesses and suspensions of students soon followed.

But within three years, the Gobitis consensus crumbled. In 1943, the Supreme Court revisited the issue. Once again, two schoolchildren—Gaithie and Marie Barnett, also Jehovah’s Witnesses—refused to salute the flag and were sent home. Robert Jackson wrote for a new 6–3 majority in West Virginia State Board of Education v. Barnette (in an odd twist of fate, court clerks also misspelled their name), vindicating the dissenters’ rights and systematically taking apart Gobitis—over Frankfurter’s pained dissent. What could have caused such a complete and abrupt about-face?

The Court at War by Cliff Sloan. September 19, 2023.

The answer lies in three factors: Franklin Delano Roosevelt, his court-packing fight, and the Second World War. There is no shortage of books on FDR’s battle with the Supreme Court over his administration’s Depression-era policies, which culminated in an attempt to stack the Court with liberal justices. Even though his court reform proposal failed in Congress, the 32nd president eventually was able to appoint eight new justices over his four terms, capturing the judiciary for the Democratic Party for decades. FDR’s justices—nearly all drawn from a close circle of friends and allies—not only gave his party a supermajority on the nation’s apex court, they also helped chart the path for liberal constitutionalism for more than a generation.

At a time when the constitutional order feels archaic, and the Supreme Court is once again firmly in the hands of appointees from a single party, many observers are mining past periods of consensus and progress for understanding—and perhaps inspiration. A new book, The Court at War, is a highly readable contribution to this trend. Its author, Cliff Sloan, teaches constitutional law at Georgetown and is a former law clerk to Justice John Paul Stevens. Sloan does not focus on the economic constitutional issues that were at the heart of FDR’s clash with the Court during his early terms, but rather on a subset of controversies over individual rights after the United States entered the global war in the winter of 1940 until roughly FDR’s death in 1945. These cases included equality-based challenges to the internment of Japanese Americans; a fight over the government’s effort to strip a Communist Party member of his U.S. citizenship; and an assortment of other free speech and association cases, including those of Jehovah’s Witnesses who objected to saluting the American flag. A 35-year-old Thurgood Marshall makes an appearance partway through the book before the Supreme Court to argue the case of Smith v. Allwright, challenging a Texas Democratic Party rule that barred Black people from voting in the primary election. Behind the scenes, Marshall and the NAACP lobbied the administration ferociously to back their legal argument that the white primary violated the Constitution’s equal protection clause.

Sloan’s central thesis is that close examination of this cluster of legal controversies against the backdrop of the country’s war mobilization will reveal that “World War II was interwoven with every ruling.” He not only describes key events on the war front happening at the same time the major rights cases were being litigated, but also contends that the war environment influenced how elite actors understood the law. His account positively brims with admiration for the Supreme Court. This can be jarring because many ordinary citizens wonder daily whether the justices really have their best interests in mind—or the interests of a narrower slice of society—when they interpret the Constitution’s majestic provisions.

The historical figures in The Court at War are colorfully rendered; the action moves briskly. This is especially true in Sloan’s retelling of the cases challenging the wartime internment of Japanese Americans. He skillfully probes the personal and professional motivations of their major players: Government lawyers concealed evidence to defend the evacuation plan; a general spouted anti-Japanese rhetoric as he implemented the policy; and Supreme Court justices who were close to that general defended internment as a necessary, and not racist, defense measure.

Even so, The Court at War’s greatest achievement—shedding the narrative of methodological and theoretical scaffolding—also represents its greatest weakness as a work of legal and political history. Sloan never commits to any particular explanation as to how the war mobilization shaped constitutional decision-making beyond the observation that “the historical reality is more complicated.”

But larger societal forces may have influenced the War Court’s decisions, and there were long-term consequences—including the troubling possibility that the FDR Court’s muscular liberalism, at first used in defense of individual rights, has bred a culture of judicial supremacy that now risks trampling our liberties and collective capacity to solve societal problems.

Because Sloan focuses on the Washington insiders who jockeyed for influence within the Supreme Court and often beyond its marble walls, The Court at War is not a social or intellectual history. Instead, it is, in the parlance of the presidential scholar Richard Neustadt, an account of judges who take into account a president’s “professional reputation” and “public prestige.” Here and there a dissenter or civic group might appear as a plaintiff in a lawsuit, but readers won’t learn much of the roiling social landscape beyond Washington, D.C., or the pockets of people deeply unhappy with Democratic governance, or those who view the judiciary’s growing influence on American life in darker terms.

Above all, one comes away from this insider account with a stunning sense of the porousness of the Supreme Court to other elite actors within the Beltway. Justices not only gave public speeches but also mingled freely with political figures. During these years, several of the justices nurtured professional aspirations beyond serving on the nation’s highest court, including Frank Murphy, Hugo Black, William O. Douglas, and James Byrnes (who actually was lured off the bench to help lead the war effort). At one point, Sloan writes, FDR brazenly suggested to Frankfurter that the Court’s opinions needed to be “more dramatic,” and offered his speechwriter to help spice up draft opinions. A revelation of this sort today would surely shock the average citizen who has come to believe that equal justice requires a greater degree of separation between political patrons and truly independent jurists. But FDR’s comment showcased how the president saw the justices’ rulings as important vehicles for legitimating his policies and expanding his party’s influence.

Sloan also engagingly recounts Douglas’s machinations to become FDR’s running mate in 1944 once he learned that party elders wished to drop Henry Wallace from the ticket. Wallace, an outspoken but eclectic progressive, made some business leaders and southern Democrats nervous as the election approached. The president took steps to both stoke Douglas’s ambition and keep things fluid—almost certainly to maximize his own place at the center of power. In Sloan’s telling, FDR genuinely had interest in Douglas as a running mate but, as with most matters, was willing to pivot on a dime. Such political flexibility made sense when trying to manage a burgeoning, fractious coalition. When FDR finally raised with party leaders the prospect of nominating Douglas to be his running mate, the idea was met with embarrassing silence. Harry Truman was eventually selected by the party on the second ballot with 1,031 votes, as Douglas wound up with a humiliating four votes. Sloan finds Douglas’s continued participation in cases before the Court while he maneuvered for the VP slot “a problematic immersion in electoral politics” that “undermines the institution.”

Ethical issues aside, Sloan’s portrayal of these episodes underscores the dangers of what he calls “excessive closeness” between presidents and sitting judges. Certainly a president had every reason to nurture proximity. FDR used every arrow in his quiver to ensure that his agenda remained unimpeded. Neustadt once wrote that “the power to persuade is the power to bargain.” By manipulating the egos and aspirations of the justices, FDR kept the justices in their roles as well as receptive to the administration’s entreaties. 

The Korematsu case was another example of such political intimacy. As Sloan writes, Earl Warren, then attorney general of California, supported mass evacuation of the Japanese from the state; Warren would later gain the reputation of liberal stalwart once he became chief justice. Lieutenant General John DeWitt, who drove much of the policy, ominously called people of Japanese ancestry “an enemy race” regardless of their citizenship status or how long they had lived in the U.S. Such a sweeping group-threat stereotype dehumanized a complex community and, in so doing, paved the way for indefinite mass confinement at gunpoint. Sloan reveals that DeWitt was close to Justices Hugo Black and William O. Douglas, and surmises that Fred Korematsu’s lawyers may have hurt their cause by focusing so much attention on DeWitt. And indeed, the Court ultimately upheld the race-based removal policy in an opinion by Black that, in a defensive tone, brushed aside allegations of racial hostility. Frankfurter, who considered himself “a member of the President’s war team,” also voted to reject Korematsu’s equality challenge.

Justice Department lawyers in Korematsu, including Solicitor General Charles Fahy and Edward Ennis, struggled with their ethical obligations to serve their client while being sufficiently honest in characterizing the degree of any actual threat to national security posed by Japanese Americans. Notably, the government attorneys failed to disclose a key intelligence report indicating that fears of espionage were overblown and that it was entirely possible to separate the loyal from the disloyal. Fahy and Ennis disagreed about what to do, and language in the government’s brief was massaged, but the intelligence contradicting its legal position was never mentioned. Sloan endorses the revisionist account that treats this as a breach of legal ethics, but does not give us any new reason to think that, even if the missing reports had been more forthrightly discussed in the government’s legal briefs, the justices would have been willing to disappoint a president of their own party on a grave matter of national security.

Yet successful history is more than scintillating reportage of facts. And there are three possible ways to read The Court at War. One is that partisan processes served as the engine of legal change: A charismatic leader built a large coalition by casting monied elites and guardians of older ways as the enemies of security and prosperity. As Sloan aptly notes, FDR stocked the courts with judges who felt “deep allegiance” to him, all of them loyal Democrats and New Dealers. These justices, who were grateful to an effective party leader and agreed with the wartime president’s general agenda, rendered decisions that gave the affiliated party the legal foundation for its policies.

Another reading of Sloan’s book is what we might call the “gestalt” explanation, which is seemingly evoked when he observes that “every Justice felt intimately connected to the nation’s existential fight against the Nazis and the Japanese Empire.” Unlike the partisan explanation, the gestalt thesis portrays the justices as a part of the broader political community to which every citizen belongs, and unable to resist the fear of a shared external threat or the pull of a national project worthy of assent.

Still a third possibility is a grassroots reading of the past, in which the law changes in large part because an outside community forces elites in charge of institutions to rethink governing principles. A number of the constitutional challenges were brought by despised minorities—Jehovah’s Witnesses with unconventional religious beliefs, people of Japanese ancestry suspected of disloyalty en masse after Pearl Harbor. In this view, outsiders who were unlikely to kowtow to elite priorities nevertheless were willing to exploit a president’s words and deeds to advance their own ends. Quoting FDR’s wartime speeches extolling the value of freedom of speech and religion invited the justices to see dissent in ways that might be compatible with the president’s vision of democracy.

Sloan does not choose among these possibilities, while making the implicit decision to keep insiders on center stage. As a result, the last option is the least likely way to read The Court at War given Sloan’s narrative choice to feature elites so prominently.

So what is really going on with these legal controversies? Why did most of them end up vindicating rights? When the Department of Justice defended laws enacted by Democratic majorities or new bureaucracies as essential to America’s economic recovery before the courts, partisan convergence as an explanation rings true. On civil rights or liberties issues, however, where the administration might be internally divided or political payoff could be uncertain, the calculus became more complicated and the partisan explanation works less well.

Whether the ongoing conflict raging across the globe was a reason to vindicate rights or curb them required reaching a view about war-fighting needs or the legacy of war. Was U.S. involvement in World War II about the overriding value of national unity during a time of crisis or did fighting totalitarianism abroad mean that Americans themselves had to internalize anti-authoritarianism at home? And if the answer was the latter, should judges play an active role in inculcating such values by blocking otherwise valid policies? The legal battle over the coerced flag salute raised these very issues, showcasing sharply conflicting notions of what the war’s legacy would mean for individual rights and state power. It also illustrated how a nation’s leaders—presidents and judges alike—must manage hope and act with principle, or else watch as the seams of political community start to burst.

The second Jehovah’s Witness flag case, in 1943, treated freedom of conscience and dissent as a better legacy of the war against “our present totalitarian enemies” than shared sentiment and ritualistic displays of unity. Perhaps more than any other decision from this period, Barnette represented the soaring aspirations of legal liberalism, a philosophy grounded in the belief that individual rights must be withdrawn “from the vicissitudes of political controversy,” and primarily enforced by unelected judges. Whether judges truly make for reliable defenders of rights was another matter.

The partisan perspective could explain the first decision on the flag salute, given that Frankfurter made so much of the need for national unity during wartime; it has a harder time explaining the second. New additions to the Supreme Court, namely Jackson and Wiley Rutledge, believed Gobitis to be wrongly decided; Stone, elevated to chief justice in the interim, was the lone holdout in the first case. Most glaring, the authors of both opinions, taking exactly opposite positions on the constitutional question, believed they—and not the other—was on the right side of the “Four Freedoms” vision articulated by the president. These disagreements over what it meant to fight the war extended throughout the administration.

And, of course, the oppressed also had a role to play in this reversal of fortune by continuing to resist the Court’s initial pronouncements. If Jehovah’s Witnesses had simply accepted that first ruling and tolerated their fate, the justices would never have had a chance to reconsider. But as this fascinating conflict also reminds us, the Supreme Court’s pronouncements on the meaning of the Constitution are never the last word.

Even so, the question for a historian remains: Was this dramatic turnabout caused by partisan processes, domination of the freedom-inflected version of the war’s legacy, or the persistence of a despised minority? Drawing on existing scholarship (including mine), Sloan is content to relay key facts. But because he does not choose between possible explanations for what happened (full disclosure: I am a proponent of the elite, war-inflected explanation), we get an uncertain understanding of what he believes to be the war’s actual impact on the Supreme Court’s deliberations. It’s possible to be left thinking that, while the Court’s wartime decisions were the product of collective reason, they were also, in Sloan’s telling, sometimes “idiosyncratic.”

When we pan out even further, it seems more obvious that we don’t get a full appreciation of the price society might be paying for the path that the Roosevelt Court put us on. The Court at War ends with FDR’s death in 1945 and Truman’s appointment of Fred Vinson as the new chief after Stone’s sudden demise a year later. Sloan believes that these events mark the close of the War Court. On the other hand, if we accept that America has been almost constantly engaged in armed conflict since those days, then it would be more accurate to say that there has not been just a single War Court but several overlapping ones—including the Court that reviewed War on Terror policies—which have shaped the country’s fundamental law. That Court has now frowned on explicitly bigoted laws, but upheld a cleverly rewritten travel ban on several Muslim-majority countries; it has also approved sweeping detention and surveillance policies so long as there is some minimal role for federal judges to poke and prod individual decisions, even if they do nothing to disturb the basic contours of the modern national security state.

Looking back on the early 1940s, Sloan sounds a triumphalist note. With the exception of Korematsu, which he labels “an indelible stain on American history and on the Supreme Court,” Sloan underscores the “pathbreaking” quality of most of the Roosevelt Court’s civil liberties decisions and insists that they “lit the path for the great achievements of three-quarters of a century after the war.”

But such a characterization of the War Court’s legacy paints an incomplete picture. Sloan is certainly correct that liberal jurists later built on these precedents, but so did conservative ones. The rise of the Supreme Court to its current privileged place of making constitutional policy for the entire country surely represents a mixed bag. In recent years, bouts of judicial supremacy when it comes to enforcing gun rights, corporate speech rights, and the right of religious groups to opt out of equality norms have been followed by judicial rulings that take the federal judiciary largely off the playing field when it comes to voting rights or abortion rights.

FDR’s successful redirection of constitutional law inspired presidents with very different values and priorities such as Richard Nixon and Ronald Reagan to attempt a similar feat. Partisan control of the courts eventually gave way to other strategies for altering the ideological tenor of judge-made law, including turning over the selection of Supreme Court justices to key figures within legal and social restoration movements. The rise of social movements that identify—or even try to cultivate—ideologically friendly jurists is one such adaptation; wealthy benefactors who develop their own cozy relationships with Supreme Court justices represent another. If anything, the stakes of political control of the courts have intensified, with the result that energy is siphoned away from worthy reform projects. It may no longer be sufficient to focus on the behavior of individual justices and politicians and more crucial to consider what steps might be necessary to rethink more broadly a political culture that valorizes judicial policy making when it comes to individual rights.

For while FDR’s justices were brought together for the project of clearing roadblocks to democratic decision-making, their ultimate choice to plunge into a broad range of social questions using the framework of individual rights did just the opposite. Sometimes for the better, but sometimes for the worse, their actions would thrust federal judges into a wider circle of cultural conflict. Their precedents opened the door to muscular rights-based policy making by judges more generally: to create, prioritize, and, most visibly in recent months, even eliminate cherished constitutional rights.

A final, disquieting, possibility should also be put on the table: By wrapping a president’s political agenda in grand constitutional principles, the Roosevelt justices increased the probability of public officials giving idealistic, rights-based reasons for going to war. Such an uptick in Constitution-laden war justifications and intensive societal reliance on judges to make policy should all be treated as legacies of the War Court—and not just the rulings that happen to align with progressive sensibilities. 

An apex court that has become a powerful national policy maker rather than “the least dangerous branch” that the Constitution’s Framers originally envisioned can intervene selectively in favor of some rights and not others and partner consistently with a favorite political party or social movement, while taking actions that undermine the political achievements of those the justices do not support. Judicial decisions that weaken federal and local civil rights laws, erase abortion rights, and hobble campaign finance laws in the name of protecting constitutional rights may be just a prelude for what’s to come.

Sloan has written an eminently readable book. He succeeds in showing us that in the early 1940s war mobilization loomed over everything. During these years, constitutional ideals were consciously reshaped with the war effort in mind. At times, that redounded to the benefit of those affected by government policy; at other times, it did not. In turn, that fusion of war making and constitutional principle became potent stuff for later generations. That’s why it is hard to escape the sense that The Court at War misses an opportunity to show us all the ways in which the imperative to go to war presented both opportunity and peril. We still live with the momentous choices made by Roosevelt’s justices.

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Robert L. Tsai is professor of law at Boston University. He is the author of several books on constitutional law and legal history, including Practical Equality and Demand the Impossible.