Cliff Sloan, "The Court at War" : CSPAN3 : June 2, 2024 12:30pm-1:31pm EDT : Free Borrow & Streaming : Internet Archive (2024)

when. forces can be airlifted to part of the world within a single day. today's soldiers had better physically prepared to meet the challenge before he gets there.

cliff comes to us from georgetown university law center. he has served in all three branches of government and he's argued, remember, the number of cases before the united states supreme court. so he brings a really nice, diverse set of experiences to a book. the court during this era. cliff also has worked with the washington post company and. he has gosh, you've written extensively in the media about court related issues and and other issues so i'd like to welcome cliff stone. well thank you so much, bill

thank you. and thank you all for here. and i just want to say it is an honor and a pleasure for me to here, and especially as bill was saying, the publication date is this is really the first official launch of the book. and this is such a special place to have it and it's so meaningful me, because i spent many days researching at the wonder library here with, the very helpful personnel and so it's just terrific to be here. and i really appreciate it. well, that's great. let's just launch right in. as i was saying before, i think it's wonderful how the this roosevelt court and a period of time aligned themselves so perfectly world war two and the personalities involved here to give a perfect natural framework for a discussion of the court at

war. what what led you to write about this period and an assemblage of people of great and varied personalities as the members of the court at the time well the way that i got interested in it and started working on the book is you mentioned i've had different government positions and in 2013 and 2014 i was the special envoy for guantanamo closure. and in connection with that position and that work i was reading the supreme court's detention cases and that included the infamous shameful korematsu decision. and i read a case that preceded korematsu by a year. it was the first of these terrible anti-japanese decisions called it was about a curfew targeted at japanese-american citizens. and i noticed that exactly seven days before the hirabayashi decision, exactly one week

before it, the supreme issued its famous opinion in west virginia board of education versus barnett, striking down at the height of world war two a mandatory salute in west public schools. in this famous eloquent opinion by justice robert jackson. and it really struck me that within week, the supreme issued one of the greatest civil liberties decisions in its history and one of the worst civil liberties decisions in its history. and so i got very interested reading about the court this period and learning about and i discovered that there's very written about the court and world war two as a subject as i'm sure you all know, there's a ton written about fdr battles with the court in the 1930s and the famous failed court packing plan and the switch in time that

saved nine where one justice changed his vote and then they started upholding new deal programs and then there's a lot written on the warren court beginning the 1950s. but there was very written and the supreme and world war two. so i really digging into it and it turns out to be quite a story because the war dominated everything for the justices. it dominated all of their cases, whether they were directly related to the war or not, and it also dominated their lives off of the court. the let me just tell you two brief anecdotes that i think really kind of illustrate point. and the first was told to me by a gentleman who just turned 100 years old and pearl harbor day, he was 18 years old and. he was working as an aide at the supreme court in library. and so the day after pearl harbor day on december 8th, 1941, he was doing what a

library aide does dropping off books, picking up books. and all of a sudden the front door, he saw all of these u.s. army soldiers come with their weapons drawn and take positions at the windows and the roof all around the court. and the reason was because at noon that day fdr was going to be at the capitol, right across the street from the supreme court. that's where he gave his famous day of infamy speech. that december 7th is a date which will live in infamy. and in fact, the justices adjourned early. so that they could go there and be there. and the soldiers were there as part of an expanded security perimeter. this was just one day after this devastating surprise attack in pearl harbor. but what you see is quite literally, the war, the quiet prison of the supreme court. and the second anecdote was the day after christmas, 1941, and

winston churchill had made this dramatic surprise by his visit to washington earlier in the week. and he was addressing a joint session of congress and december 26, 1941. and he gives this rousing eloquent churchillian speech. and again, the justices are in the row and at the churchill pauses and looks out at the crowd and, lifts his fingers in his famous v for sign and in the front row very prominently justice harlan fiske stone lifts his fingers in a v for victory sign in response, and that exchange was prominently reported in newspapers throughout the country. and the meaning of it was clear the court was in the fight. and so the war really dominated everything for the justices. but the franklin roosevelt dominated things for all of the justices, too, didn't he?

he he let's talk about a few of the personalities talk about that shift in the from the court packing that disaster all the way through in the next few years how suddenly the court turned over and you've got a new set of personalities or a largely new set of personalities there. it's remarkable story. and actually, it's one that i think is under appreciate it. you know, everybody knows about the failed court packing plan, but not as many people realize that by the summer of 1941, due to a wave resignations and deaths, fdr had appointed some seven of the nine justices and he had elevate an eight to be chief justice. eight of the nine owed their positions to fdr. it was by the biggest impact on the supreme court of any president since george washington. and it wasn't just the number of

justices. they were all extremely to fdr in some instances too close to they had very, very close personal relationships. and just to kind of briefly get the players on the table, they sort of into three groups, four of the justices were very well known, hugo black, felix frankfurter, william douglas, robert jackson. those are the four very well known ones. then there are four who were not very well, stanley reed, frank murphy, james burns and you know, burns had been a senator from south carolina and he was only on the court for 14 months because in the fall of 1942, fdr to him come work with me in the white house. you'll be the assistant president overseeing the domestic economy and burns left the supreme to join fdr in the white and the fourth justice in

this category of lesser known justices in the fdr appointees was wiley rutledge, who was appointed to be burns's replacement. and then the third group is the justices who were not initially appointed by fdr and are only two in this category. one of them was harlan fiske stone, who had been appointed in 1925 by calvin coolidge, his amherst college buddy, and as i mentioned, fdr elevated him to be chief justice in 1941. in the summer of 1941. and it's very clear that fdr did so because he was a single mindedly focused and preparing the country for war, which thought was inevitable and. so he was trying to project by part us and shape as much as possible as, i'm sure you know, the country very divided in 1941. and there was a strong isolation in the sentiment and he wanted

to send signals of bipartisan sonship. and so he loved the idea of elevating stone this republican appointee, this coolidge appointee. he had done the same thing the previous summer in naming prominent republicans to be secretary, war and secretary of the navy and then the final justice in this period was owen roberts, who was appointed to the court, herbert hoover, in 1930, and roberts, the one who had the famous switch in time that saved nine. he was perceived as flipping his vote so that the supreme court now was upholding new deal programs instead of striking them down, but was just a tremendous impact. fdr had, both in terms the number of justices and in terms of his very, very close relationships with them. and those close relationships just of a personal nature, preceded his presidency. they were political relationships in many cases, and they continued on the court and

policy relationships. and frankly, this something that today's eyes and ears is really kind of astounding. it's something that i really learned about in in working and and the book is let me give you a couple of examples. so jimmy byrnes, as i just mentioned he was the justice had been a senator from south carolina and he was the one who left in the fall of 1942 to go to the white house. but while he was on the supreme court while he was a sitting justice after pearl harbor, fdr made clear to everybody in his administration that any related legislation had go through. jimmy byrnes and again, this is while he's a sitting justice and byrnes was frequently working out of the white house and he became a chief intermediary between the white house and the administration and congress.

and, of course, this legislation could come before the supreme court. and so it's really remarkable. and as i say, sort of astonished by today's standards that here you have a justice working out of the white house and the administration legislation, another very conspicuous example, in 1944, when fdr was running for his fourth term and had decided that he was not going to run again with incumbent vice president henry wallace, whom this building is named after. and so then there was the question of who is going to be his who was going to be wallace successor, an fdr running mate, and fdr very much drawn to william douglas to be his running mate. he was kind of infatuated with with douglas frizzell personally. they had a very close relationship. douglas was part his poker circle. he loved the way douglas told

good stories, said and this was very, very important to fdr. he said that douglas made the best martinis of anybody in washington, but he also douglas would have great political appeal because of his background, his sort of modest, humble background from pacific northwest. he, douglas, also appealed to kind of liberal constituency, was very much backing wallace and fdr even said that the the way douglas is hair blue in the wind, he thought he would be a very appealing political figure. but political pros around him, the head of the dnc and others were very suspicious. douglas he had never run for political office and the head of the dnc was from missouri and was very close harry truman. and so the political pros were pushing for truman and ultimately the convention fdr

said he was going to leave the choice up to the convention, but he released a letter publicly saying that he would be very happy to run with either harry truman or william douglas. and those were the only two people he mentioned. and there were people at democratic convention in chicago. and behalf working hard to get him the nomination douglas himself didn't attend the convention, but they had been in close touch with. douglas, and they were working very hard to get him the nomination. and douglas was viewed as elite contender right until the final day of the convention. so here you have a sitting justice who comes very, very close to being fdr, his running mate. and of course, he would have been president the following when fdr died. but are only two examples. there are a lot of other examples we could go through each of the justices and talk

about the different kind of formal and informal and policy related missions and assignments that fdr gave to them. and we have these there these policies in personal relationships. but what we also have is the usual with not a lot of experience, the bench itself, it's a very, very striking contrast to today's supreme court. so you had almost all of the justices that fdr appointed, had lived public lives. you had former senators, former governor, former us general, the former head, the securities and exchange commission, a former leading public intellectual, only one of them, wiley rutledge, had been a federal judge and hugo black and frank had had very limited as local judges, in addition to their political offices, murphy had

been mayor of detroit and governor of michigan, in addition to other positions, including u.s. attorney general, and, of course, black had been a senator from alabama. today's supreme court, in contrast, all except one justice, were had previously been federal appellate judges. and so a very, very dramatic and striking contrast. and there's a lot of discussion among people who follow the supreme court and think about the supreme court about the different in that kind background compared to the background of today's justices. well, when you think about some of the cases we'll momentarily which become so strikingly contradict in ways you mentioned one it's it's interesting to wonder about what that experience brought as well their very large personality is of some of them i think it's

interesting you put the four in the and the four because there seem to the ones who are very quiet, you don't see in the news and then the ones who are constantly in the press or at least engage in sort of, say, rivalries. well, that's a very, very interesting point about the fdr justices. so we were talking about the number that he had appointed, you know, seven of the nine appointed and eight elevated to chief justice. and at the time that the roosevelt court really shape in the summer of 1941, many observers and predicted that the justices were going to march in lockstep. and again, they were you know, they were all very close to fdr or had extensive relationships with them. and so people thought they were going to, you know, act in unity and very quickly that that did not happen at all. they tended to split into

different blocs. one of them was headed by hugo black and of them was headed by felix frankfurter. and, you know, part of it was substantive. black in his plain meaning reading of the constitution he gave an expansive interpretation to constitutional provisions and constitutional rights in many cases, and frankfurter on the other scarred by the pre 1937 court striking down lots of economic and social legislation at the federal state levels tended to have more a hands off view across board for the for the justices for the federal judiciary. now these blocks weren't set in stone. i mean in in my opinion they were not as fixed as you we think of with today's

conservative super majority and the three liberals they weren't as fixed as that but the generalization did hold true in a number cases and very importantly that's how it was perceived by the public. and that's how it was perceived by the justices themselves. and harlan fiske stone tended to back and forth between two blocks. now he mentioned that some of it was substantive, but some of it was very much personal. and bill, this relates to the point that you were making about their difference in because the in background between those justices and the current justices because that they had all had these large lives each of the justices felt he could and should be leading the court and this was especially true of felix frankfurter. he had devoted his life to studying the supreme court

writing about it. he had close to these judicial icons like oliver wendell holmes and louis brandeis. and he thought was his natural fate. and destiny to lead the court and for the other justices to fall line behind him and the other justices didn't quite see it that way, and that really bothered frankfurter. he was very about it. and in fact, during the war years, during some of the war years, he kept a journal and a diary. and in it he recorded every grievance and perceived insult. and he was very, very unhappy it and he even took to calling the other justices black and douglas and murphy and rutledge the axis. now is at the height of world war two when we're fighting the axis enemies, you know. it's as if after 911 when justice started calling another group of justices al qaida. but it also was not a one way

street. for example, there are from douglass to murphy this period where he refers to frankfurter as der führer and the little --. so there's all of personal enmity then among the justices and. what i find interesting with that, too, and then i'll focus to some of the cases in what's going on, both in terms of the war and in terms of domestic affairs. but it's so much it does play out in public there regularly to groups around the country in what almost seems like very political way. or maybe they are just overtly very political. you know, again this is remarkable and this is part of their allegiance to fdr. but again, in 1941, when country was really sort of split, there was strong isolationist sentiment. just about every one of the justices delivers, a very public

speeches, strongly supporting fdr his war preparation and talking how important it is. and some of these were explicitly with fdr and the white house. frank murphy was the only catholic on the court at that time. and so he speaks to the knights of columbus and and he about the fact that, you know, the soviet union had recently entered joined forces with britain because, as you all know, because germany had invaded soviet union. but but the catholic in the u.s. were very skeptical of an alliance with, the soviet union, because it was so anti-religious. and so murphy goes to the knights of columbus and gives this speech about how the most thing is defeat hitler and the fascists. and we should welcome the soviet

union in this fight. and and he coordinates that with the white house and fdr lets him know afterwards that he was, quote, tickled to death by his speech. but even when they weren't explicit coordinating, they knew this fdr, his highest priority. and they were giving all sorts of speeches, supporting it. and then, you know, after the war, they were giving speeches hugo black attended this massive i am an american rally in in central park with the boxer, joe louis, who was then a private in the army. and so in this wonderful exhibit, you have an african-american kins in civil rights. there's a picture of joe louis as a private, but they appear and it's to rally support for the war effort in war bonds. fdr has frank murphy at one point, who again had been mayor of detroit and governor of michigan, go to detroit and examine the state of readiness

with the automotive industry there, because they supplying critical vehicles and machinery for the war effort, tanks and jeeps. and so murphy very does this inspection tour and then goes on national radio reporting on his findings and saying that we actually have to do much more in terms of preparedness. and he also publicly. murphy also very publicly called on management and labor to you know both be working together to so that they would be more supportive the war effort and these are just some examples there were very extensive as you say, very extensive public speeches by the justices during this period on policy related issues. and so the war and what i find found fascinating running throughout it is questions of which isn't necessarily surprising during wartime of

civil liberties, but also how those overlap and intermingled with questions of civil rights. and so we have some directly related to actions because of the war and then we have others that have been percolating around to an end. it's thinking of our exhibit regarding the rights of individuals within this country. and there and their constitutional rights. early on, they were cases in 4142 involving domestic affairs, domestic civil rights. how did a couple of those cases lay the groundwork for what, later? and how did they set up a sharp contrast? some of the decisions that were related around the war. a big apologies, but about let's lay down that work. absolutely. so really, you know, as i as i was indicating the beginning, it's really a tale. two courts during world war. it's the best of court and the

worst of course and and the best of courts as you're it, bill, there's a whole series of decisions in the war where in self conscious contrast to the totally that we were fighting to the fashion to the authoritarians to the nazis in very self-conscious the supreme court recognized and protect it and expanded constitute national rights and civil liberties. and so to give a few examples of those in skinner versus oklahoma in 1942 at the supreme court strikes down an oklahoma law that called for the compulsory sterilizing zation of people who had been convicted of three or more crimes of moral turpitude and the crimes of moral turpitude was interpreted very broadly to include, you know, everyday crimes, burglary and

robbery. it strikes down this compulsory sterilization law. and as the court was considering the case as it made its way to the court very much part of context was the awareness that hitler and the nazis had engaged and a massive program, compulsory sterilization in the interest of racial purity and racial supremacy. and, you know, example, the prisoners in oklahoma who were facing forced sterilization action were attacking the law and saying it represented to the hitler possession of american law. and it very much is part of the context. and in the opinion striking it down, douglas says that in evil or reckless hands, compulsory sterilization can be used to eliminate entire categories of people. and everybody knew.

exactly who and what he talking about. and so the war context played a very important role in that i mentioned at the beginning the west virginia board of education compulsory flag salute case. and again this is this famous by justice robert jackson, where he very eloquently says that in this country no government official can tell what you have to think or believe. and so when these jehovah's witness children were refusing to salute the flag, they had a right to do that. and justice robert jackson famously says, that is a fixed star in our constitutional constellation. but again, the war context is very important for the here in the opinion jackson explicitly draws a contrast with our totalitarian enemies. we don't force to give their obvious sense to, you know, a particular idea or a particular

creed. and he even in the course of the opinion, talks about how the flag salute that issue, which required the children to stand like this to the flag i have a picture of it in the book had a resemblance to the nazi flag salute so again the contrast with enemies was very important. and then you were talking about with civil. so in 1944, the supreme court decides case smith versus. all right, it's thurgood marshall's first big victory, a case that he argues in the supreme court. and it strikes down the all white democratic primary in texas. and throughout south. a very in south carolina, too right where the justice. burns yes. yes yes, yes, absolutely. and yet all of the southern states basically had and everybody knew the particular case was texas, but everybody knew that it was going to have implications. all of those other southern

states and. and again, it's very a part of the kind of the context of the case that we were fighting a regime based on racial supremacy. and here the, you know, this this very blatant discrimination in voting was presented to the supreme court. and it was at a time of great civil rights, ferment and turmoil in, the country connected to the war know the african-american community had embraced what it called the double the campaign victory over fascism abroad and racism at home. and there were civil rights demonstrations and also the dislike haitians of the war economy, with so many people being in the military and being away opened up industries and positions that had previously been excluded for two african americans.

and this led to a very ugly white in some instances, there were what was called hate strikes, where whites walked off the job in response. and and in the summer of 1943, there was a lot of violence against blacks in a lot of cities. there. white riots. and so this was all part of the context of smith versus. all right and the importance of again drawing a contrast between our constitutional democracy as the court says in that opinion and then and the regimes we were fighting abroad and it was very much perceived that way in the kind of reaction and the public coverage of the case when it was decided. and certainly black americans, you can see this in the exhibit are i it's itself apparent. i mean, it's it's obvious. the the injustice of the distinct that we're being drawn. and yet now we can look at japanese-americans and americans of japanese descent, some of

whom were also born japan. but all american citizens regardless, frankly, whether american citizens, the cases that come represent the worst moment, one of the worst moments of the roosevelt years. and in american in the court, ultimately, unfortunately, played a role in those as. right. well, this is so is the worst of courts and as say well a truth a shameful history by the supreme and and by president and the roosevelt administration, by the congress across the board. but definitely among the very decisions the supreme court has ever issued, you know, upholding, as you all this very blatant discrimination that led to the persecute and incarceration of american citizens of japanese descent, as

well as lawful japanese nonresidents for no other reason than the ancestry of parents. in the case of many of the americans of japanese descent and or the that they had come and just a kind of truly shame episode and the justices this hugo black who in other contexts was a civil libertarian said well hardships are part of war and they were deferring to the what was presented to them as the exigencies of war. now has also come out since then that the roosevelt administration what the justice and the war department were extremely deceitful and misleading in their presentation to the supreme court. they there were wildly inflated claims of national security but

there also was evidence specifically undermined and the claim that this was necessary from a security perspective and they deliberately decided not to present that to the supreme court. now that doesn't excuse the supreme court all i mean, based on what was before it it were truly shameful, a truly shameful decision as three justices to, their credit recognized at the time, but even i think from this kind of worst of legacy, or maybe especially from this worst of legacies, i think there are important for today. and you one of them is the danger of excessive death to the government's claims of national security for the reasons just said that it was wildly inflated here we could add to that tager hoover not exactly known as a great defender of civil liberties. this country knew that there was no evidence. j j edgar hoover was very much against the incarcerate in the

fbi. there were voices within federal government. hoover the best known you, the attorney general, francis biddle, initially was opposed it, and he had a couple of young aides who were fighting very hard against it bitterly at a certain capitulated and was sort of tried to wash his hands of it and never told fdr that it would be unconstitutional. and so but but but in terms of the the kind of security perspective, you're absolutely right. j edgar hoover was very strongly against it. and there was other evidence. you know, the war department claim there had been signaling to shore from ships which showed and that they were probably from japanese. and this showed the dangers and the federal communication commission told the justice department very explicitly this false. we have extensive records of

this. this simply did not happen. and yet it was one of the things that the war department relied upon. but the second lesson that i think is also very important to take away from this is that when you look at the best courts and the worst of courts, a major difference, if not the fundamental, is that for issues like the compulsory sterilization or the flag salute code or the all primary in texas, the justices did not have to fdr and they didn't have to cross them on a war related issue. and they would have had to do with korematsu. and i that's an especially important today. and korematsu to give a little background to what the basis that case was. well, the court what that case in the supreme court upheld the

incarceration of an american citizen of japanese descent for no reason other than the fact that his parents had been from japan. that's that's what the korematsu case itself is. and it's up there, you know, with dreads as one of the very worst opinions. the supreme court had ever issued, probably along with plessy versus upholding jim crow as well. but that's that's the korematsu decision is. but and but this that the failure, the unwillingness to cross the preserve that who had appointed them, who is their political patron. and that resulted in a judicial disaster and a judicial catastrophe. and that is an especially lesson today at a time when the votes of the justices quarrel, date

with the preferences of the political party of the president who appointed them more than at any time in our history. so it's a very, very important lesson about the need for justices to be able and willing to stand up to the president who appointed them and to the political patrons and backers of president and the political party that them now, could that have been influencing. what personal relationships, but also by the elective office within the recent past of several of the justices who were perhaps more attuned to public opinion than what we might potentially justices are. how do you think that way did were the justices at it what the general attitude was in the country and trying to reflect from their experience or or not or did that not play into their. well, you know, i think my own

view as a general matter and this is true of every age. it would be overly simple mistake to think justices are not affected by the environment that they live in and to think that they're not part of times that they're in. you know, i previously wrote a book and the marbury versus madison supreme court decision and decision is so grounded in the political setting of the early 1800s. and it's really a kind of tale of washington d.c. and that is true. all time. at the same time, i also think it would be overly simplistic to say that's the only thing justices care about. i mean, i think justices bring their, you know, sort of judicial philosophy to bear. and so how that all gets woven, you know, can kind of vary at

different times. but absolutely the justices are part of the times that they're that living in. and, you know, the justices very, very much a part of the war. as i mentioned before the war dominated every aspect of their personal lives you know five of the justices had sons who were serving in the military. a sixth had a son in law who was serving in the military. and and it especially really affected hugo black. they were obviously all concerned about their sons in the military. black had two sons in the military and it took a terrible toll. and his wife, she suffered terribly had psychological breakdown during this period was confined to her room for weeks and months on end and much of it was connected to her worry about her sons, the felix frankfurter, his wife, didn't have children, but they had a couple english

children or three english children staying them during a significant period of time. they were the children of, a lawyer who had been a protege of frankfurter. he was a professor at harvard law school. and the frankfurter took them in because their parents were concerned about the bombing raids in london and throughout england. and the frankfurters adored the children and they would take them to see fdr, who delighted their antics. frank murphy, who was a bachelor, went them all better. he actually enlisted in the military in the summer of 1942, when the supreme court was in recess. he got a special assigned out in the army, and he was uniform. and there would be newsreels in, movie theaters showing him in his uniform in, tanks doing military maneuvers during the day and. at night, he'd be sitting in the barracks going through supreme court filings, know requests for supreme court review, that kind of thing.

and just the only one other point about the war dominating justices personal lives is that they lived the same bazaar byzantine world of rationing and controls and wage controls that everybody else in the lived in. you know, i have a picture in the book of justice wiley rutledge's rationing card. he had a ration incurred just like everybody else. there are letters from harlan fiske stone. one is to a friend where he talks about how cold it is in the house because of the rationing of of home heating oil. he and his wife go to local civil defense meetings where they're where the local neighborhood warden them what to do in the event a bombing raid and he comes home and writes his sons that he's convinced that if there is a bombing raid we're just going to have to sit and take because there's no plan

that he sees that's going to do anything. and there's actually, you know, there were in washington and other major cities to try to make bombing raids more difficult. and so all the government buildings, including the supreme court, were blacked out at night. the monuments were blacked out, the private buildings were blacked out. and so there are newspaper articles that tell people what to do if. they're out during a blackout and they everybody to have a lit cigaret at their lips so that if somebody is walking by, they'll know there's a person and they won't bump into you. but so, i mean, it was just the war absolutely pervaded every aspect of their daily lives. well, let's about legacy as think about heading towards questions how quickly this curious assemblage of people with in some cases radically different personalities how quickly this roosevelt caught the caught which you don't you hear that expressing is very often how quickly that that

disappeared fdr death and what be in the long term is some of the you know some of the lasting impacts of that court. so first of all you're you're absolutely right, bill, that the war really the time of the pure roosevelt court because very after the war a number of justices die or resign and. stone himself dies suddenly 1946, while he's on the bench in the course of reading an opinion he's stricken and you're right you don't hear about the stone court he had the third shortest tenure of any chief justice in american history. he was only there about five years. but by 1949, truman had appointed four justices, almost half the court. so world war two really corresponds the time of the roosevelt court. but some of the roosevelt

justices, of course, including black and douglas, you know, served for a considerable period of time. but there was a sort of very great turnover, very quickly, the legacy of the court. on the other hand, in my view was very long and all, you know, the areas we were talking about where the supreme court recognized protected constitutional rights in self conscious contrast to our enemies those became very cornerstones of the supreme court's jurisprudence for many decades so just as examples skinner versus oklahoma, the compulsory sterilizing law. it was the first time the supreme court recognized a fundamental liberty interest in the decision about whether to a child or not. and it became a very influential opinion. it is cited in versus wade and other reproductive cases. and of course now we have dobbs

and the dissent turns in dobbs and dobbs decision that overruled roe versus wade. the dissenters in dobbs specifically point to skinner, oklahoma, as one of the opinions that they think is very much threatened by the logic in the framework of dobbs. but it had important implications other areas also skinner is cited and relied on in the same sex marriage case by the supreme court, and it's cited and relied on in the interim in the interracial marriage case by the supreme court. so again, had a long lasting impact. and it in many ways it seems to be under fire. the smith all right. the voting rights case that had a tremendous impact, some historians believe, that launched the trajectory of civil rights. the culminated ten years later in brown versus board of education and it had a

tremendous impact on voting. now, full voting rights wouldn't be secured until the courageous of many citizens. the passage of the voting rights act in 1965. but smith versus. all right. was a very important foundation for that. and it represents a door opening approach to voting rights and. of course, many critics, the current court believe that the many of the decisions of the supreme court, including the shelby county decision from 2013 that struck down a part of the voting act of 1965. so critics, the current court, think it reflects door closing approach to voting rights. in contrast. smith versus all right and there's one other area that we haven't touched on that was very the issue that perhaps united the post 1937 court more than any other was the need for the

federal government as well as state governments to broad authority in tackling complex economic problems, social problems, novel crises that was the sort of fundamental reaction against the pre 1937 court and that was really and the supreme court doing war two upheld these very extensive rationing and price control and other government along those lines and that governed the that we had for the next quarters of a century and the current court there are many doctrines that are in play now that the court is supporting that would dramatically the ability of government to respond to complex

problems and novel crises. one is the what's called the brand new major questions doctrine which the current supreme court has invoked to strike down government initiatives on. issues ranging from covid to climate change and another is an interest on the part of many of the current justices in reviving an aggressive non delegation doctrine that would have limits on the power that congress can delegate the executive branch. and that was a kind of hallmark of the pre 1937 court. so the short answer your question, bill, terms of the legacy in the law is that many these decisions in world war two were very fundamental cases for many decades and to some extent they're very under fire right

now. do we have any questions from the audience? yes, i see. oh, please come to the microphone if you do. and we may have some from our virtual audience. well, we do. let's see what we have. this is from mary on youtube a watching on youtube. did fdr his personal relationship with justices break tradition is another president previously who did the same. who i can think of a couple of personal relationships maybe in the johnson era but maybe not to this. yeah well you know there are examples both before and after and certainly you know lbj is bill was saying you only know president had a very close relation ship with justice abe fortas had been somewhat problematic. yes yes, it was. and it became problematic when it all came to light. and as you may know, there were

also issues, financial issues related to fortas that ultimately led to him resigning from the supreme court. but he was advising lbj on a lot of issues and became very while he was on the court. and that became very controversial when it when it came out. so i think there are other examples both before and after. i do think one of the things that is unique about this era is the pervasiveness of it because fdr had so many close relationships with so many these justices. so it it wasn't this sort of one off, you know, with abe fortas. i mean, it really extended to many of the justices. and, you know, the other point is that just because are other examples doesn't necessarily mean it's okay. and i just want to highlight, you know, we talked about

douglas being very prominent as, a possible vice presidential candidate in 1944. there have been examples of. who were very interested in the political arena. i mean, it almost seems inconceivable to us now there would be a kind of active candidate, but for example, in 1881 of the justices was very actively campaigning for the nomination. but are counterexamples also in 1876, the chief justice morris and wait there was an effort to draft him to be the republican candidate and he very firmly rejected it and he said justices should stay far the political whirlpool and so what it underscores for me and this is also very important at a time when we're thinking a lot about the of justice as possible ethical is that it is that my opinion it is very important to

have a very sort of public binding ethical codes justices and very strong ethical norms so that there would be a very strong public reaction. that and i think, you know, the fact this these issues came up with the roosevelt appointees and you mentioned the lbj appointee, abe fortas highlights. this isn't a partizan issue. it's not it should be approached on a bipartisan and a nonpartisan basis because seen these issues come up with justices appointed by presidents of both parties, these are self-regulating it it it sets that because that was the argument with and jackson i know we don't have time to get into that became very personal and public vitriolic. there's a question here i don't know if you'll be able answer it. i can't. well, i think i know the answer. has anyone yet discovered the who stole the 42 frank? further diaries.

i'm sure you did research and yeah in those diaries i'm not aware of. no, no, no, no. that. just in terms too of i guess what i find ultimate li very curious in terms of legacies in the court sitting outside can i can, i just say one thing to clarify that because there is and what that's a reference to is there are you know frankfurter records and a part of the diary seemed to have been stolen at some point and there's a mystery but there is a diary diary i was referring to from the from 1942, 1943, which it was published by joseph lasch. so so there is so we do, we do have a diary of frankfurter from that period that survives. but there is a very conspicuous in the frankfurter records the of course to our archival holdings that we have to protect them so carefully because history can be changed. the record is incomplete. but one thing i think of when a

looking at the court, we bring this conversation into to a close. unfortunately is when a president picks a justice. he thinks knows what he's getting but he ultimately really knows what he has. so know, did fdr, was he thinking long term or just to accomplish a few? well, i mean, as casualties, i'm about to say it accomplished a few political things to secure some of the his agenda at the time. do you think he looking longer term at long term legacy? well i as everybody here knows i'm sure you know, one of the fascinating things about franklin roosevelt is that his mind was very similar, heinously operating at several levels. you know what frances perkins called his four track mind. and so with the justices, i think there were many things going on when he appointed them. now, first in form, most he

absolutely to make sure that it it wasn't going to be a justice was going to be striking down new deal programs. i mean when he thought about the supreme getting away from what he thought was a nightmare for the country. the horse and buggy court striking down these innovative approaches from. a constitutional perspective. i that was kind of first and foremost in his now secondly he was very interested generally in his personal relationships with the justice as you know and as we and when even when they were on the court he didn't view them as kind of often some ivory tower never to be talked to again. so he it was all part of them being part his team even on the supreme court. and third, i think he did think about political advantage. there were things, you know, i mentioned with harlan fiske stone he liked the idea of

elevating a republican and thought that would help with the war effort now stone also had been one of the justices who had been voting to uphold the new deal programs, but it was definitely very much on his mind that bipartisanship in those days, geographic diversity was very important and so at the time, douglas was appointed, he was very much interested in appointing a westerner. and, you know, douglas had grown in washington state. now he, had spent his professional career and the east coast. and, you know, during this period, douglas had some of supporters work with some and reporters to kind of really highlight his western roots. and there was a western senator that came out very publicly and said we see douglas as a westerner like us, and that was very important. so there were those kinds of political concerns as well. well, cliff, we could keep because i would love to just dig

into the material, douglas, or or hugo black and his background certainly wouldn't seem to lend itself to decisions relating to civil rights later. but we're out of time. but what i do would like is the book, the court at war, fdr, justices and the world made i think this is a great read by cliff sloan it's available out here us in the lobby momentarily. thank you for being here today. we really appreciate thank you. thank all of you. i really appreciate it. thanks so

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