The Court at War: FDR, His Justices, and the World They Made By Cliff Sloan
President Franklin D. Roosevelt (FDR) proposed legislation to expand the Supreme Court by the number of justices (then six) over seventy. This “court packing” plan did not pass.
FDR lost the battle but won the war. The Supreme Court that previously declared New Deal policies unconstitutional unexpectedly upheld them one after another. Conservative justices retired and died. He ultimately selected seven of nine and elevated one of the justices who did not oppose his policies to be Chief Justice. They were “his justices.”
Many justices strongly supported him personally, including continuing to play poker games with him. Multiple members previously worked in the Roosevelt Administration. They ultimately broke into two camps based on personality and jurisprudential views. But, the justices were nearly all New Dealers, wanting to do all they could to support the president who chose them.
Hugo Black was a senator who was a strong supporter. Felix Frankfurter was an academic whose “Happy Hot Dogs” (former students) served in important policy-making positions. Justice Frankfurter continued to pepper FDR with advice. Justice Roberts, the only justice FDR did not select, led a commission to investigate the attack on Pearl Harbor.
The Court At War focuses on how these justices handled World War II. They were strong patriots, who repeatedly spoke out in support of the war. Multiple justices helped the president and Congress to help craft policy. One resigned after a year to be the “assistant president.”
The book also talks about the landmark court cases of these years. The justices had to address many matters involving civil liberties, including the sterilization of prisoners, students required to salute the flag, “white primaries” that barred African Americans, and the infamous Japanese internment cases. The justices repeatedly protected civil liberties except when it interfered with FDR’s policies. Their record, including Japanese internment, was much more mixed.
FDR’s Supreme Court started to break up soon after the end of the war, including with the untimely deaths of two leading liberals. President Truman chose four replacements, including a new Chief Justice. Multiple Roosevelt justices continued their influential tenure, Justice Douglas (a leading option for vice president in 1944) serving until 1975.
The Court At War is an engaging account of a momentous moment in the development of the modern Supreme Court. It informs and criticizes as appropriate. Check it out.
Why I Read This Book (And You Should Too)
Cliff Sloan previously wrote a book on Marbury v. Madison, an important precedent in the development of judicial review. I enjoyed it and looked forward to what he would write next. My interests include Supreme Court history, which often provides a good window into the times.
Sloan continues his skillful ability to translate history and law into an engaging account that reads like a novel. He has argued in front of the Supreme Court repeatedly. He served as a law clerk to a justice who served as a law clerk to Justice Wiley Rutledge, a FDR justice.
Professor Eric Segall, who has written two books on the Supreme Court, raved about this book. The blurbs on the back cover from other law professors and historians (including Ken Burns) show the respect Sloan has from many specialists.
A person who wants an in-depth analysis of the legal cases should go elsewhere. The court cases covered are summarized. We are provided striking moments from some of the oral arguments, including from colorful advocates. But, we do not get an extended breakdown of the opinions.
This book is also for the general reader. Sloan translates a chunk of material in an engaging and easily understandable fashion. This volume would make an excellent addition to the classroom.
The book covers a lot of ground. I have a few disagreements with its choices, including an extended chapter on the political maneuvering of Justice Douglas’s supporters who wanted him to be the vice presidential candidate. I think it was too long.
Nonetheless, the reader is not only supplied with the usual details (a few famous cases). Many striking moments are included, including Justice Frankfurter receiving a first-person account of the full extent of Nazi Germany’s handling of the Jews.
The book is longer (about 350 pages plus many endnotes) than the Marbury volume. It is a significant work of scholarship. It has eight pages of black and white photographs.
Did the Court Violate the Separation Of Powers?
An aspect of our constitutional system is the presence of three separate branches of government. The executive, legislative, and judiciary each play a fundamental role.
Chief Justice Stone, originally placed on the Supreme Court by President Coolidge, was concerned about how much the justices interacted with President Roosevelt. They repeatedly offered to resign if the president believed they would better serve the war effort.
One justice honestly noted that after FDR died, he felt “freer” because he always felt a need “to help him and not hinder him in matters that came before the Court.”
Justice Frankfurter refused to admit that he agreed. Frankfurter claimed the other justice did not “know what you are talking about.”
Frankfurter doth protested too much. He not only advised on federal policy but also helped with matters that came in front of the Supreme Court. Multiple justices did so. Justice Douglas seriously aimed to be FDR’s running mate. It is not just “the past was different.”
Justices over the years have continued to engage with people in government. The Stone Court, however, took things to a new level. We would not accept this bending of boundaries today.
Mixed Civil Liberties Record
FDR was so upset with the Supreme Court repeatedly declaring progressive economic policy unconstitutional that he considered court packing.
The new justices gave the government broad powers to regulate the economy. They accepted the growth of administrative agencies (such as the Securities and Exchange Commission), which had broad discretion to apply the guidelines set forth by Congress.
One exception to judicial restraint was in the area of civil liberties. Economic policy was a public matter that legislatures should have broad discretion to determine. Individual rights were different. A majority could abuse their power and invade the rights of individuals.
Justice Frankfurter, a strong progressive before becoming a judge, was wary about overturning legislative policy even in this area. An infamous example is his support of requiring schoolchildren to salute the flag, even if it clashed with their religious beliefs.
A majority, however, began a period of strong support of civil liberties (limited somewhat during the Red Scare). Cliff Sloan notes that they did a better job in various areas than the current Supreme Court is doing. Sloan is not a big fan of the overturning of Roe v. Wade.
The book helps show that there are hard decisions here. Justice Robert Jackson eloquently defended schoolchildren’s right not to salute the flag. Nonetheless, he dissented in many cases involving Jehovah’s Witnesses. For instance, Jackson felt that their practices invaded the sanctity of the home. Sometimes, administrative agencies also can overreach.
The justices never seriously challenged the Roosevelt Administration. The same justices who later determined President Truman wrongly seized steel mills during the Korean War upheld Roosevelt’s war policies. The low point involved cases dealing with German saboteurs and Japanese internment. There was a limit to their respect for civil liberties.
The first thing we see in the book, right after the table of contents, is a summary of “The Justices.” We provided a thumbnail biography of each, including the years of their tenure.
A significant part of historical accounts, including those addressing the Supreme Court, are personal stories. People make history. Justices are not fungible. Their personalities matter.
The Court At War finds a way to highlight each justice. They have a chance to have their moment in the sun. Sloan supplies a snapshot of each, letting each have their moment in the sun.
The Stone Court is known for its strong personalities, including multiple “feuds” between the justices. Frankfurter thought he should be the leader of the Court. He was shocked when others did not provide the respect he felt he deserved. Three colleagues upset him so much that he called them “the Axis,” the name given to Nazi Germany and its allies.
Hugo Black refused to sign a retirement letter for Owen Roberts because it was too complimentary and noted they were sorry to see him go. Douglas despised Frankfurter. Black and Jackson feuded in part because Jackson thought Black blocked his nomination to be Chief Justice. Was this a Supreme Court or a soap opera?!
A Window To The Future
We study history for many reasons, including because it is just plain interesting.
An elemental reason we study history is that it provides lessons on how we came to be who we are. The Court At War supplies insights into the nature of the modern Supreme Court. A Supreme Court filled with dynamic personalities firmly assured of their abilities.
One person we encounter is Thurgood Marshall, the great civil rights advocate, who later became a Supreme Court justice. This period overlaps with his first Supreme Court arguments, including a voting rights case, an important precedent in the battle for racial justice.
Other cases, including protecting reproductive liberty (Skinner case), were fundamental civil liberty precedents. The Supreme Court decides cases by building off previous ones.
The Supreme Court misstepped when they heard a case involving German saboteurs. Nonetheless, even there, they demanded a minimum level of court oversight of the war policy. This precedent would be significant during the war on terror.
Read more in this excellent book.