The Warrin’ Court

REVIEW: ‘The Court at War: FDR, His Justices, and the World They Made’ by Cliff Sloan

Justices of the U.S. Supreme Court April 1940 (Harris & Ewing/Library of Congress)
December 10, 2023

When I first learned there was a new book out about the Supreme Court during the Second World War, I was intrigued but apprehensive. We seem to be living through yet another surge in interest in the last war that all Americans felt good about, with Band of Brothers rereleased on Netflix. But what does that have to do with the nine robed gentlemen—Sandra Day O’Connor wouldn’t arrive till 1981, though the first female clerk, Lucile Lomen, happened to serve in 1944-45—at the "marble palace" on One First Street?

This would be about the military trial of the German saboteurs washed up on Long Island, right? Plus the "case that will live in infamy," approving the internment of Japanese Americans on the West Coast? And maybe a smattering of rulings upholding New Deal economic policies as essential to the war effort? Well, yes, the unusual Ex parte Quirin—ruling first, reasoning months later, after the executions—and the discredited Korematsu are the alpha and omega of Cliff Sloan’s The Court at War, and there’s one (but only one) chapter on industrial policy. But this isn’t a compendium of the Court’s military-related jurisprudence, or at least not exclusively that. Nor is at an earnest series of vignettes about aged lawyers rolling up their sleeves, buying bonds, and otherwise behaving as good citizens on the home front—though Justice Frank Murphy did go so far as enlist in the Army reserves.

Instead, it’s a story of a nation at war told through the lens not just of its High Court but of justices selected almost entirely by its wartime president. By the time of Pearl Harbor, Franklin Roosevelt had appointed seven of the nine justices and made an eighth their chief. That’s why this book is at base a hagiography of FDR himself, emphasizing that, even as the justices famously fought among themselves, most of them maintained deep loyalty to their patron.

Felix Frankfurter advised the president on a host of matters; William O. Douglas and Robert Jackson were in close touch with him socially and professionally (Douglas almost became the VP nominee in 1944); Stanley Reed acted like he was still in the Justice Department; James Byrne worked extensively with the White House on legislative assignments (ultimately leaving the Court to head the Office of Economic Stabilization, then becoming secretary of state under President Harry Truman). Chief Justice Harlan F. Stone, initially appointed by Calvin Coolidge, felt uneasy at this fraternization—at one point he removed from his chambers display a medicine ball he had used in Herbert Hoover’s famous early-morning fitness sessions, seeing the hypocrisy—and declined FDR’s request to head a study of rubber production for the war effort.

This president-centered approach is unsurprising coming from an author who’s a serious and accomplished man of the left, one who surely holds up FDR as an icon and imagines that he would’ve been part of the Hyde Park brain trust back in the day. Sloan mildly chides FDR, by way of the safe criticism of Korematsu, but generally wishes he were still running the show—and that the Court now could be like it was then, deferential to progressive policy priorities.

But all that almost wasn’t to be. After significant churn in the Court’s personnel in the decade leading up to FDR’s election in 1932, the new president was stymied by the "Nine Old Men" who kept rejecting his ambitions. Only three justices voted consistently in favor of an expansive view of federal power, and Roosevelt had no opportunities to get new blood his entire first term. Accordingly, the landslide-reelected Roosevelt sent to Congress in February 1937 a plan for a massive judicial "reorganization" that would conveniently allow him to appoint six new justices. This court-packing plan met with fierce opposition, splitting the Democratic super-majority in Congress and drawing public rebuke from Vice President John Nance Garner. Curiously, three future justices supported the plan, including the man who would become FDR’s first nominee, Senator Hugo Black. Meanwhile, the publisher of the left-wing The Nation testified that the bill "opens the way for dictatorship."

Two important things happened between the plan’s announcement and its failure. First, the Court started upholding legislation of the sort it had previously invalidated, with Chief Justice Charles Evans Hughes and Justice Owen Roberts shifting their allegiance to the New Deal-friendly "Three Musketeers." But second, and perhaps even more importantly, Justice Willis Van Devanter, the oldest and longest-serving of the conservative "Four Horsemen" announced that he would retire on June 1, 1937. Finally, four and a half years into his consequential presidency, FDR would have a Supreme Court vacancy. More followed quickly: By mid-1941, only one justice remained whom FDR hadn’t appointed or elevated (Roberts). In a very real sense, then, FDR packed the Court the old-fashioned way, by maintaining control of the White House and Senate and waiting for natural attrition.

Thus the War Court was seated, with the cataclysmic battles of the "constitutional revolution of 1937" eclipsed by younger members’ eagerness to advance the Roosevelt agenda at home and abroad. Sloan provides basic biographical details about each of Roosevelt’s nine appointments—more than any president but George Washington, understandably—whose routes to high office illustrated FDR’s grip on the commanding heights of U.S. government during World War II.

It wasn’t quite a team of rivals, but it wasn’t Shangri-La either (as Camp David was then known). Often bitter enemies personally and professionally, the justices would split on all sorts of issues that went beyond economic regulation and federal power. Justice Frankfurter ended up labeling four of his colleagues—Black, Douglas, Murphy, and Rutledge—"the Axis" and the two groups sat and "visited" separately on the train back from FDR’s funeral. They couldn’t even agree on a farewell missive to Roberts and, when Stone died in 1946, Jackson couldn’t resist bad-mouthing Black to Truman, thereby dooming his own chances at elevation.

It’s hard to gauge whether any individual justice among FDR’s nine led to major changes in jurisprudence because, coming as they did in rapid succession, they diluted each other’s personal impact. In retrospect, Roosevelt’s appointees shared little other than faith in and legal support for the New Deal and its progenitor—so the Court essentially reconstituted itself after the war. Indeed, Justice Reed confided that, beyond grief, he felt "liberated" by FDR’s death. "I wanted to help [Roosevelt] and not hinder him in matters that came before the Court," Reed told Frankfurter, "and I have found it very difficult not to decide things in the way in which I think he would be helped." That’s remarkable sycophancy, but indicative of the judicial mood from 1941 to 1945. As Sloan details in remarkable political play-by-play, the president reciprocated that loyalty, considering the justices to be part of his "official family."

Despite these personal foibles, "the War Court’s legacy was profound," the author summarizes, featuring "some of the best and worst decisions since the founding of the republic." Sloan points to its major impact in four areas: reproductive rights, voting rights, civil rights and liberties, and "the constitutional authority of the political branches to respond innovatively to evolving needs and crises." Indeed, cases like Skinner v. Oklahoma (invalidating a law mandating the sterilization of criminals), West Virginia v. Barnette (prohibiting public schools from forcing students to salute the flag and say the Pledge of Allegiance), and Smith v. Allwright (stopping racially restricted primaries, in the second case that Thurgood Marshall argued at the High Court), were all seminal in the development of constitutional law.

All that is well and good, and the stories about the behind-the-scenes maneuvering to get there are worth the price of admission. But at the end of his book, Sloan can’t help but take a swipe at the Court’s contemporary incarnation, in contrast to the imperfect but "bending toward justice" Roosevelt Court. He harshly criticizes the overturning of Roe v. Wade, for example, as well as the Shelby County decision that invalidated an unusual Voting Rights Act emergency provision after Congress failed to update its "coverage formula" in light of a half-century of changed voting patterns. And he head-scratchingly contrasts protection for "despised religious-minority children" with rulings that "seem increasingly tilted to favor majority religions." This critique of the (John) Roberts Court culminates in an attack on "aggressive new Supreme Court doctrines choking the ability of government to respond to evolving circumstances." Just in time for a term that is indeed reconsidering the fundamentals of the administrative state, Sloan can’t help but throw some wartime ghosts into the mix.

"The War Court," he concludes, "understood that, under the Constitution and its intentionally broad language, the government has wide and necessary latitude in addressing vexing social, economic, and administrative issues." Well, maybe the government does have all the power it needs to govern—but there are constitutional limits, including delineations as to which branch has that power in a given situation. The main New Deal economic programs were legislated, after all: Congress created the agricultural quotas at issue in Wickard v. Filburn, not some deputy undersecretary of agriculture. That’s a far cry from the pen-and-phone (and Tweet) governance we’ve seen, where with the exception of Obamacare, which provoked its own constitutional fight, most "major questions" of regulatory power are indeed first decided by administrative agencies.

But I do agree with Sloan’s characterizing the Roosevelt Court as "a cautionary tale—a story of excessive deference to the Executive Branch and its inflated claims of national security at times of severe national stress." Hot takes on the present day aside, it’s a tale worth reading.

The Court at War: FDR, His Justices, and the World They Made
by Cliff Sloan
PublicAffairs, 512 pp., $32.50

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and the forthcoming Canceling Justice: The Illiberal Takeover of Legal Education (HarperCollins). He also writes the Shapiro’s Gavel newsletter on Substack.