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life. Mr.

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Chief Justice, may I please report? It's

0:37

an old joke, but when a argued man

0:40

argues against two beautiful ladies like this, they're

0:42

going to have the last word. She

0:46

spoke, not elegantly, but

0:48

with unmistakable clarity. She

0:51

said, I ask no

0:53

favor for my sex. All

0:56

I ask of our brethren is

0:59

that they take their feet off

1:01

our necks. Welcome

1:16

back to Strict Scrutiny, your podcast about the

1:18

Supreme Court and the legal culture that surrounds

1:20

it. We are your hosts. I'm Kate Shaw.

1:22

I'm Melissa Murray. And I'm Leah Litman. The

1:25

Supreme Court is not hearing oral arguments this

1:27

week, which means we have the luxury of

1:29

doing a deep dive on a great recent

1:31

book about Supreme Court history. Cliff Sloan's The

1:34

Court at War, FDR, His Justices, and the

1:36

World They Made. So that discussion

1:38

is on tap for this episode. Melissa and I

1:40

had a great conversation with Cliff about his book.

1:42

But before that, we wanted to bring you up

1:44

to speed on some important developments at the

1:46

court since last week. So we will cover

1:48

that before turning to our conversation with Cliff.

1:51

So the court entered a stay on the shadow

1:53

docket and granted a case for next term. And

1:55

we wanted to talk about both developments. So

1:58

first up is the. That are docket

2:01

stay. On our last episode, we

2:03

noted that in the oral argument

2:05

individually A vs. Texas the new

2:07

Texas Solicitor General began his opening

2:09

remarks by proudly announcing that no state

2:11

in the country values property more

2:13

than Texas does, and we suggested that

2:15

even if that were true, there

2:17

are reasons to think Texas does

2:19

not value life quite as much, in

2:22

part because it is endangering women's

2:24

lives through it's abortion restrictions every day,

2:26

and because as we noted, Texas

2:28

was also endangering migrants flies. Through his

2:30

actions at the Border those actions at the Border

2:32

or what teed up the way The shadow doc

2:34

a decision. And Department of Homeland Security

2:37

versus Texas. That this is

2:39

this case is as follows. Texas

2:41

sued the United States. Nothing new

2:43

there. Texas state suing the United

2:45

States that this lawsuit argued that

2:47

federal officials trespass on chattels I

2:50

he went onto land and damage

2:52

property and therefore we're under Texas

2:54

tort law. The. Theory here is

2:56

that Federal immigration officials had damage some

2:59

barbed wire and wired senses that Texas

3:01

had erected at certain places along the

3:03

border, and specifically along a twenty nine

3:05

mile stretch of the Rio. Grande River.

3:08

Now if you're thinking. Of

3:10

Second. Can. Est Sue the Federal

3:12

government and federal officials for. Doing.

3:15

Their jobs. While. Listeners, you

3:17

are not alone in being slightly confused

3:19

and flux of the entire theory of

3:21

this case. And part of

3:24

the confusion should arise because I

3:26

have some vague recollection that this

3:28

was may be resolved by one

3:30

of the most foundational cases and

3:33

American constitutional law, Mcauliffe vs Maryland,

3:35

which was about Maryland's efforts to

3:37

tax the Federal Bank. In that

3:39

case, the supreme court upheld the

3:41

principle of federal supremacy. The supreme

3:44

court said that the supremacy clause

3:46

of the constitution prevent states from

3:48

imposing impediments to federal offices and

3:50

federal officials when the federal offices.

3:53

or constitutional in one several official for

3:55

asking under legal several authorities in was

3:57

probably the most important part of the

3:59

case she Justice Marshall said that Congress

4:01

had the authority to create the

4:03

National Bank. But in another very

4:05

important holding, Marshall concluded that the

4:07

state of Maryland could not tax

4:09

the bank and undermine the bank's

4:11

functioning. Quote, the power to tax

4:13

involves the power to destroy McCulloch

4:15

recent. And states don't have the

4:17

power to destroy federal offices and

4:19

federal officials. So after

4:22

that, there was a nullification crisis

4:24

and a civil war, which were

4:26

also about whether states had the

4:28

power to undermine federal law. In

4:30

the early 1800s, South Carolina claimed the

4:32

authority to nullify federal terrorists during the

4:34

Civil War. Southerners declared that southern states

4:36

had the power to nullify or veto

4:38

federal laws. These events also

4:41

were kind of resolved on the

4:43

basis of federal supremacy. States cannot

4:45

actually nullify federal law and the

4:47

federal government. But as we have

4:50

suggested many times before, in

4:52

order to be on the cutting edge of

4:54

conservative legal thought, it is no longer enough

4:56

to question the New Deal or

4:59

to question reconstruction. No, no, no,

5:01

no, no, no. You've got to

5:03

go back to the founding itself

5:05

and but actually Chief Justice John

5:08

Marshall, McCulloch versus Maryland, and federal

5:10

supremacy itself. I

5:12

mean, this really butts up against the

5:14

whole history and tradition thing since McCulloch versus

5:16

Maryland was decided in 1819. And

5:19

it seems like it has a little originalist

5:21

flavor. We're rolling the

5:23

clock back to pre-Muckulloch. Why not? Roll

5:25

it all back. I'm going to show

5:27

John Marshall some originalism. What

5:30

did he know? Yeah. So

5:32

look, in case it's not obvious from what Melissa

5:34

and Leah were just saying, the states did not

5:36

prevail in this existential dispute the

5:39

federal government did. And yet here we are in early 2024 with

5:41

the state of one account

5:44

of history. According to originalism though, you

5:46

wonder. Yeah,

5:49

well, they clearly have a very different account

5:51

of history. And maybe it is one in which

5:53

the states were victorious or at

5:55

least they should have been. Because in 2024, again. we

6:00

have Texas basically saying those

6:02

states fundamentally resisting federal power, they

6:04

were really on to something. And

6:08

so this is essentially what the

6:10

Texas position in this dispute boils down to.

6:12

And in some ways, the most shocking

6:15

part is that four Supreme Court justices

6:17

appear to have agreed with Texas here.

6:20

So before we get to the justices, let's back up a little

6:22

bit. After the lawsuit in which Texas

6:24

sued the United States insisting that it had the power

6:26

to impose liability on the federal government

6:28

and impede the federal government from carrying

6:30

out actions authorized by federal law, the

6:33

district court correctly refused to enter an

6:35

injunction prohibiting the United States from entering

6:37

onto lands around the border and

6:40

removing these wired fences that Texas had

6:42

constructed. The US Court

6:44

of Appeals for the Fifth Circuit,

6:46

however, unsurprisingly but horrifyingly, decided

6:49

to enter the injunction that Texas had

6:51

sought. This injunction blocked the federal government

6:53

from doing anything about the barbed wire

6:56

fences that Texas had erected that blocked

6:58

federal officials' access to the border. And

7:00

in doing so, the Fifth Circuit said

7:02

that federal officials could cut the wired

7:04

fences in the event of a medical

7:06

emergency. But that exception was woefully inadequate

7:09

for the reasons that the federal government

7:11

explained in its opening brief to the

7:13

Supreme Court. Quote, while Texas and the

7:15

Court of Appeals believed a narrow exception

7:17

permitting agents to cut the wire in

7:20

the case of extant medical emergencies would

7:22

leave federal agents free to address life-threatening

7:24

conditions, they ignored the uncontested evidence that

7:26

it can take 10 to

7:28

30 minutes to cut through Texas' dense layers

7:31

of razor wire. By the time

7:33

a medical emergency is apparent, it may be

7:35

too late to render life-saving aid. End quote.

7:38

Upshot of all of this is that

7:40

Texas is really effing bad about addressing

7:42

emergency situations and the federal government basically

7:44

called them on it in this brief.

7:46

Yeah, this does seem to be a through

7:49

line in many of the multi-stakes cases that we

7:51

have been talking about in the early, late 2020s.

7:53

I love that they didn't even mention abortion, though.

7:55

I mean, this by itself is bad

7:57

enough, but when you factor in all the abortion

7:59

emergencies, just really bad about emergencies.

8:01

Figuring out and actually, you know, giving

8:03

teeth to the concept. They aren't interested. You

8:06

know, I would be curious to know, we'll

8:08

get to Texas's theory, more of their theory

8:10

of the case later on, but I do

8:12

wonder whether Texas believes that they

8:14

are at war or under attack

8:17

because of the persistence of abortion

8:19

in Texas, like because of the

8:22

continued existence of medication abortion. Anyways,

8:24

we're getting ahead of ourselves, but

8:26

I think the answer is yes. Right,

8:28

obviously. The United States filed a second supplemental

8:30

brief with the Supreme Court after the incident

8:32

at the border we described in our previous

8:35

episode where several migrants, including children drowned

8:37

at the border region, that Texas officials

8:39

had blocked federal officers from entering. This

8:42

second supplemental brief basically begged the Supreme

8:44

Court to do something. You know, it

8:46

argued that quote, Mexican officials advised CBP

8:48

that there were migrants in distress and

8:50

that others had drowned, end

8:52

quote, and that, you know, CBP had asked

8:54

Texas officials what was going on and could

8:56

we enter and they were then refused entry.

8:59

So as the United States explained, federal law

9:01

allows border patrol agents to enter onto private

9:03

lands without a warrant. When those lands are

9:05

within 25 miles of the border, federal

9:07

law also allows border patrol agents to

9:09

interrogate and arrest people entering or attempting

9:12

to enter the United States. Federal law

9:14

also deems people physically in the United

9:16

States who haven't been admitted, applicants

9:18

for admission to the United States who again,

9:21

federal officials can inspect, arrest and detain. It's

9:23

also granted federal officers the power and duty

9:25

to control and guard the boundaries and borders

9:27

of the United States. And that is what

9:29

state officials were interfering with. Or you

9:31

might even say nullifying. Right.

9:35

So as the federal government... That's a good callback,

9:37

Kate. Right. A callback. So as

9:39

the federal government's initial opening brief explained,

9:41

the injunction prohibits agents or federal agents

9:43

from passing through or moving physical obstacles

9:45

erected by the state that prevent access

9:47

to the very border that they, meaning

9:50

federal officials, are charged with patrolling and

9:52

the individuals they are charged with apprehending

9:54

and inspecting. It removes a key form

9:56

of officer discretion to prevent the development

9:59

of deadly situations. including by

10:01

mitigating the serious risks of drowning and death

10:03

from hypothermia or heat exposure, almost

10:05

seems like maybe that's the point. And

10:07

the Fifth Circuit entered the injunction by

10:10

declaring, and this is not a joke,

10:12

that the federal officers cut through wire,

10:14

quote, for no apparent purpose other than

10:17

to allow migrants easier entrance further inland,

10:19

end quote, stating that a video exhibit

10:21

in the case showed that the migrants

10:23

were never interviewed or questioned as citizenship

10:26

and that border patrol left the migrants

10:28

to walk as much as a mile

10:30

or more to a processing center without

10:33

supervision. You know, this is basically putting

10:35

the Fox News theory of America

10:37

and the border into judicial

10:39

opinions. The United

10:42

States asked the Supreme Court to vacate the

10:44

stay on January 2nd, and

10:46

it filed a supplemental brief on January

10:48

12th, noting that the Texas National Guard

10:50

was putting up new wire that limited,

10:52

quote, border patrol's ability to view this

10:55

portion of the border to a narrow

10:57

sliver from a single surveillance camera located

10:59

outside of the newly fenced area, end

11:01

quote. And it then filed a

11:03

second supplemental brief after the migrants drowned

11:05

at the border. The Supreme

11:07

Court finally acted, and by a 5-4

11:09

vote, the court stayed the injunction issued

11:11

by the Fifth Circuit. So it allowed

11:13

federal officials to enter lands and cut

11:15

the wire. The vote breakdown

11:18

was the Democratic appointees with the Chief

11:20

Justice, and the fifth vote came from

11:22

Justice Amy Coney Barrett. The four noted

11:24

dissenters were Thomas, Alito, Gorsuch, and Kavanaugh.

11:27

No one explained their votes, so we

11:29

have no idea why the dissent believes

11:31

that Texas can block federal immigration officials

11:33

from doing what federal immigration law clearly

11:36

says they can do. This

11:38

is the most recent, I think, and really

11:40

vivid illustration of the mystifying and wholly inadequate

11:42

nature of the shadow docket that our friend

11:44

Steve Laudick has written about in his great

11:46

book, titled The Shadow Docket. But

11:48

again, just to be clear, the supremacy clause of

11:50

the Constitution, and McCulloch versus

11:53

Maryland, but most importantly, the actual language

11:55

of the Constitution, makes federal law the

11:57

supreme law of the land. to

12:00

have decided that it can prevent federal officers from doing

12:02

things they are clearly empowered to do under federal law.

12:05

It is the most existential kind of

12:07

challenge to this basic structural feature of

12:09

our democracy. And not

12:11

only Texas' conduct is terrifying,

12:14

but so too, and in some ways more terrifying, is

12:16

the fact that four Supreme Court justices are cool with

12:18

this, that they are essentially willing

12:20

to co-sign Texas' interference in this way

12:22

with the operations of the federal government.

12:25

So, a few thoughts on the case and

12:27

whatnot. One dynamic to note is the Fifth

12:30

Circuit's track record in the Supreme Court on

12:32

immigration. This is now the third

12:34

consecutive time where the Supreme Court has overturned

12:36

something the Fifth Circuit did on immigration. Previously,

12:38

there was United States versus Texas in 2023

12:40

that said states were outstanding to

12:43

challenge DHS' immigration enforcement guidelines. The year

12:45

before, there was Biden versus Texas, where

12:47

the Supreme Court ruled 5-4 that the

12:50

Biden administration ending the migrant protection

12:53

protocol or remain in Mexico program

12:55

did not violate the INA.

12:58

That decision was 5-4, although Justice Barrett

13:00

technically agreed on the marriage. She just didn't think

13:02

there was jurisdiction. But these are just

13:05

examples of how out there the Fifth Circuit is.

13:08

And it doesn't mean that the Supreme Court is

13:10

moderate. It is a sign of how outlandish the

13:12

Fifth Circuit is. And really, what is likely to

13:14

happen with the Supreme Court if there is another

13:17

Republican administration and more Republican judicial appointments to the

13:19

Court. Can we say just

13:21

hit on that one more beat? No

13:23

one's really talking about this in the mainstream media.

13:25

But this particular election cycle is

13:27

one where the Court is very definitely on

13:29

the ballot, maybe even in a more profound

13:31

way than was the case in 2020. Because

13:35

if there is a Republican president, Alito and

13:37

Thomas are going to step down and they're

13:39

going to be literally replaced by teenagers and

13:41

or fetuses. And that's

13:43

the Court for the next generation and a half.

13:46

And the lower courts, too. Yes. In

13:49

the Court, we cannot emphasize enough, frequently enough,

13:51

loudly enough that the Court is and should

13:53

be at the front of everyone's mind when

13:55

thinking about the upcoming presidential election. In

13:58

terms, though, of the current composition of the Court. The

14:00

thing I thought was most striking actually about the vote

14:02

breakdown, I mean the most striking thing is that anyone

14:04

on the Supreme Court believed that Texas was

14:07

in the right here. But the next

14:09

most striking thing was that Mr. Executive

14:11

Power himself, Brett Kavanaugh, at

14:14

least Mr. Presidential Power, not agencies

14:16

obviously, or their own thing at least

14:18

in Democratic administrations, maybe Presidential Power is

14:21

too, but that he was in the

14:23

dissent here. Of course, again,

14:25

he didn't tell us why, how he could possibly

14:27

have justified the vote, and maybe

14:29

the reason there's no explanation is because

14:31

they simply could not generate one that

14:33

was facially plausible, but I thought

14:35

they are not that surprising,

14:37

I suppose, that Thomas and Alito and

14:40

maybe even Gorsuch were where they were,

14:42

but Kavanaugh, I just –

14:44

I would like to hear him try to explain himself, and I'm

14:46

not sure what he would say. We also

14:48

should note an apparent change in the

14:50

court's orientation toward federal authority at the

14:52

border and presidential sovereignty at the border,

14:55

and this change weirdly seems to have occurred

14:57

after 2020. So from

14:59

2016 to 2020, the

15:02

court seemed to be quite emphatic in its view

15:04

that presidents had lots of power and sovereignty

15:06

over the border, but now it seems

15:08

they're not so sure. So

15:11

what changed in that intervening period

15:13

after 2020? Really

15:15

hard to say, but here are some

15:17

examples of what we mean. From

15:20

2016 to 2020, the court allowed the Trump

15:22

administration to carry out the Remain in Mexico

15:24

policy after lower courts and validated it. The

15:27

court also allowed the Trump administration to implement

15:29

the travel ban and eventually upheld it. The

15:32

court allowed the administration to carry

15:34

out Title 42 expulsions. The court

15:37

allowed the Trump administration to implement the

15:39

public charge rule, excluding people at the

15:41

border on the ground that they would

15:43

become public charges. And now

15:45

the court is saying that states can

15:47

interfere with federal officials at the border,

15:49

so this seems completely inconsistent with everything

15:51

that I just enumerated. The

15:53

federal government now does not have the authority

15:55

to empower federal immigration officers to apprehend

15:58

and inspect people at the border. the

16:00

border. Super weird. I wonder what happened

16:02

in 2020. Any ideas? Well,

16:05

it wasn't because Joe Biden won the presidency. But

16:08

because Texas is not content with nullifying

16:10

federal statutes and federal immigration officer function,

16:12

Texas is apparently flirting with not abiding

16:14

by the US Supreme Court's decision in

16:16

this case, even though it's not clear

16:18

what that would even mean. The Texas

16:20

Republican Party is fundraising off of that

16:22

prospect. So they had a tweet that

16:24

was basically like, stand with us and

16:26

encourage Governor Greg Abbott, like to defy

16:28

this ruling. And then some federal

16:31

officials from Texas were encouraging the same.

16:33

So Representative Roy said on Twitter, this

16:35

opinion is unconscionable and Texas should ignore

16:37

it. Representative Higgins, you know, also said

16:39

on Twitter, I think he's from Louisiana,

16:41

my thoughts are that the feds are

16:43

staging a civil war and Texas should

16:46

stand their ground. And Governor Greg Abbott

16:48

statement about the case says, quote, the

16:50

federal government has broken the compact between

16:52

the United States and the States, and

16:54

that the failure of the Biden administration

16:56

to fulfill its duties triggered Article One,

16:58

Section 10, Clause Three. Now

17:01

they have the Constitution? Well, not

17:03

really. They don't really read the Constitution

17:05

because Abbott claims that the federal government is

17:08

violating Section Four of Article Four, which says

17:10

the United States shall guarantee to every state

17:12

in this union a Republican form of government

17:14

and shall protect each of them against invasion.

17:17

And the idea that what is happening at

17:19

the border is an invasion is just a

17:21

way of again, tracking the Great Replacement Theory

17:23

and Donald Trump's horrible remarks about immigrants poisoning

17:26

the blood of the nation, a clip that,

17:28

you know, people talked about, you

17:30

know, when he said it, but well, let's hear it. They're

17:33

poisoning the blood of our country. That's

17:35

what they've done. They poisoned mental institutions

17:37

and prisons all over the world,

17:40

not just in South America, not just the

17:42

three or four countries that we think about,

17:44

but all over the world. They're coming into our

17:47

country from Africa, from Asia,

17:49

all over the world. They're pouring into our country.

17:52

Nobody's even looking at them. They just come in.

17:55

And the Abbott letter says that Texas's ability

17:57

to nullify federal law comes from Article 10,

18:00

Clause 3, which says, no state

18:03

shall come up without the consent

18:05

of Congress, comma, dot

18:07

dot dot dot dot, you know, engage

18:09

in war unless actually invaded. And, you

18:12

know, this provision allows states to do things with

18:14

the consent of Congress, which there isn't. But

18:16

this is the legal theory. Again, it just

18:18

sounds a great replacement. And I don't know

18:20

why they think they are subject to invasion,

18:23

but it's a whole thing.

18:25

You should consider this history alongside the

18:27

history, the recent history of SB 8,

18:29

the Texas law that nullified Roe versus

18:32

Wade and Planned Parenthood versus Casey before

18:34

the court actually nullified Roe versus Wade and

18:36

Planned Parenthood versus Casey. Also, it's giving

18:38

a little glimmers of Brown

18:40

versus Board of Education and the massive

18:43

resistance that resulted in the wake of

18:45

Brown. So very on

18:47

brand for Texas. They've been here

18:49

before. Yes. Yeah.

18:51

So federal supremacy, federal

18:53

government. We hardly knew you.

18:56

Look, we knew the court was coming after

18:58

effective government and government as we know it

19:01

this term. I think we had conceived of

19:03

it more in terms of the kind of

19:05

horizontal separation of powers, shifting power from the

19:07

agencies and the executive branch to the judicial

19:09

branch. I'm not sure we also had on

19:12

our bingo card completely reallocating authority as between

19:14

the federal and the state governments, at least

19:16

if we're talking about red states. But once

19:18

again, how quickly things are proceeding, I think

19:21

as bad as we thought it would be, it's

19:23

already getting worse. And again, this was 5-4, so

19:26

Texas loses this skirmish, but only by the narrowest

19:32

of margins. And I am

19:34

not sure what is in the law thing.

19:37

So in other news, the court granted cert

19:39

in Richard Glossop's case after the court had

19:41

been sitting on that cert petition for a

19:43

while. The briefing was completed in July

19:46

2023. The case had initially been

19:48

scheduled for the court's September conference. The court

19:50

just now granted the case, which means it

19:52

will likely be heard next term rather than

19:54

this term. And to refresh

19:56

your memory, Richard Glossop was convicted of murder and

19:58

sentenced to death after his with

20:00

schedule, he unsuccessfully challenged the state's method

20:03

of execution, that is their

20:05

execution protocol in Glossop versus Gross, but

20:07

Mr. Glossop has also consistently maintained his

20:09

innocence. And it has subsequently come out

20:12

that the state's main witness against him

20:14

and the person who actually killed the

20:16

murder victim implicated Mr. Glossop in the

20:18

murder after bringing said Mr. Glossop's name

20:21

and threatened with execution. We

20:23

previously had one of Mr. Glossop's lawyers, John Mills,

20:25

on the podcast to discuss Mr. Glossop's case, and

20:28

specifically to discuss the way that

20:30

Oklahoma, the state that prosecuted him,

20:32

has actually confessed error in this

20:34

case. Oklahoma now concedes that it

20:36

violated its constitutional obligation to turn

20:38

over evidence of Mr. Glossop's innocence.

20:41

It didn't turn over evidence that the state's main

20:43

witness, who implicated Mr. Glossop, had been

20:45

seen by a psychiatrist and diagnosed with a condition that

20:47

rendered him volatile and violent when

20:49

the witness used meth, which he was abusing

20:51

at the time of the murder. The state

20:54

instead allowed the witness to tell the jury

20:56

he hadn't seen a psychiatrist. The

20:58

state also now concedes that the police department

21:00

intentionally destroyed items of potentially exculpatory evidence,

21:02

like physical evidence from the crime scene

21:04

and records relevant to the state's theory

21:07

of motive. Although the

21:09

state confessed error, the Oklahoma courts refused

21:11

to order a new trial. For

21:13

the Supreme Court, the state filed a brief

21:15

in support of Sir Shih-Rari and

21:18

noted NYU campus enthusiast Paul Clement is

21:20

on the brief. That brief argues that

21:23

the state court's quote, refusal to accept

21:25

the state's concession of a serious constitutional

21:27

violation is untenable and

21:29

demands correction, end quote. Neil

21:32

Gorsuch is recused in the case, so it will be

21:34

decided by an eight-member court rather than nine. We're going

21:36

to be anxiously watching this case next term. All

21:39

right, that's a lot of court culture. And I

21:41

think the one thing we can glean from all

21:43

of this is that the Fifth Circuit stays on

21:45

its hustle. But guess what, folks? So do we.

21:48

I would like some AMA and

21:50

Pod Save America PSA crossover content.

21:52

Join me on Thursday, February 1st

21:54

in Crooked's Friends of the Pod

21:56

discord for a round of Ask

21:58

Me Anything. Really interested to hear

22:00

from you all. Or

22:03

if you're not a member, you can head

22:05

to crooked.com backslash friends now to sign up.

22:08

Or catch me on PodSafe America on

22:10

Wednesday's episode to listen, make sure to

22:12

subscribe to the PodSafe America feed wherever

22:14

you pod. Coming up next

22:17

is our interview with Cliff Sloan who

22:19

has a fantastic new book out about

22:21

the FDR court and World War II.

22:23

So he's up next in conversation with me

22:25

and Kate. Six

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you today

25:56

we are delighted to bring you a conversation with the

25:58

author of one of the best recent books we have

26:00

read on the Supreme Court. Friend of

26:02

the show and friend of ours, Cliff Sloan.

26:04

Cliff, welcome to Strix Grittney. Thanks

26:06

so much. I'm thrilled to be here

26:08

with you. So very much looking forward

26:10

to this conversation. Cliff,

26:13

we are definitely looking forward to the conversation,

26:15

but I just want to say thank you

26:17

for finding time to do this in between

26:19

your massive, massive resume, which is just exploding.

26:22

So I'm going to give our readers a little glimpse

26:24

of what you have been up to. So

26:27

these days, Cliff is teaching at Georgetown

26:29

Law School, but he's had an incredible

26:31

career in law, diplomacy, and media, which

26:33

includes tours in the Clinton White House,

26:35

in the Justice Department, and the Obama

26:37

State Department, and on the Hill, and

26:40

with the Iran Contra Independent Council. He

26:42

was also at the Washington Post and

26:44

was a publisher of Slate. And

26:46

he's done a number of important Supreme Court

26:49

arguments as both a government lawyer and an

26:51

attorney in private practice. And so in your

26:54

spare time, you decided to author this

26:56

terrific new book that Kate just mentioned,

26:58

The Court at War, FDR, His

27:00

Justices, and the World They Made.

27:03

And we are so excited

27:05

to talk to you about this book, which is great.

27:07

But I actually first want to plug your previous book,

27:09

The Great Decision, which is an excellent read about Marbury

27:11

versus Madison. I probably have it top of mind right

27:13

now because I am in the middle of teaching Marbury

27:16

to my 1Ls. But to 1Ls

27:18

and prospective 1Ls out there, this is a

27:20

terrific book if you just can't get enough

27:22

Marbury. But onto The

27:24

Court at War. So this is a book that

27:26

focuses on a pivotal period, which is the period

27:28

of the Second World War. And I

27:31

think it is no secret that this was a critically important

27:33

period in world history and American history.

27:35

But I do think that less well-known

27:37

is how critically important a period this

27:39

was for the Supreme Court. So Cliff,

27:41

let's start by asking, how you got

27:44

interested in writing this particular book? Well,

27:47

I was working as special

27:49

envoy for Guantanamo closure in 2013 and

27:51

2014. And

27:54

in the course of doing that, I

27:56

was reading the Supreme Court's decisions on

27:59

military detention. including the infamous

28:01

Korematsu case, which I'm sure we'll

28:03

talk about. But I also read

28:06

a decision that was announced

28:08

a year before Korematsu called

28:10

Hirabayashi. And Hirabayashi was the

28:12

first of these very, very

28:14

shameful anti-Japanese cases and the

28:16

court upheld a criminal

28:19

curfew targeted against

28:21

Japanese-American citizens. And

28:24

I noticed that exactly one

28:26

week before, exactly seven days

28:28

before Hirabayashi, the Supreme Court

28:30

had decided West Virginia Board

28:32

of Education versus Barnett.

28:34

The famous eloquent opinion

28:37

by Justice Robert Jackson that struck

28:39

down at the height of the

28:41

war, a mandatory flag

28:43

salute in West Virginia public schools

28:46

on behalf of what has been

28:48

a reviled and despised religious minority,

28:50

the Jehovah's Witnesses. And it really

28:52

struck me that within this span

28:55

of one week, he had

28:57

one of the greatest civil liberties decisions in

28:59

the history of the Supreme Court and one

29:01

of the worst civil liberties decisions in the

29:03

history of the Supreme Court. So

29:06

I got interested in reading up on

29:08

the Supreme Court during World War II. And I

29:11

discovered that there's very little written

29:13

on that as a subject. There

29:15

is a ton written on FDR's

29:17

battles with the Supreme Court in

29:19

the 1930s and the failed court

29:21

packing plan in 1937 and

29:25

what is perceived to be the switch in

29:28

time that saved nine where one justice changed

29:30

his vote to allow New Deal programs to

29:32

be upheld. And then of course, there's a

29:34

lot written on the Warren Court beginning in

29:36

1953, but there

29:38

was very, very little written on the Supreme

29:40

Court during World War II as a subject.

29:43

So I started really diving into it. And

29:45

it turns out to be quite

29:47

a story because the war

29:49

dominated everything for the justices.

29:51

It dominated their personal lives,

29:53

their activities, and it dominated

29:55

all of their decisions, including the

29:58

ones that did not explicitly. relate

30:00

to the war. I like

30:02

to think of this book as kind of

30:04

a buddy story, right, Cliff? Like you're basically

30:06

telling not just the story of the court

30:08

but the story of

30:10

the court as sidekick to the

30:13

ultimate buddy FDR. And I think

30:16

readers will actually be really surprised

30:18

by how cozy the relationship was

30:20

between the president and the justices,

30:23

especially when viewed through the lens

30:25

of the modern relationship between the

30:27

executive and the court. And

30:30

I also think they'll be really interested

30:32

to see how different the

30:34

career trajectories of the justices were. Like

30:36

now we're very used to people going

30:38

to the court from a career on

30:40

the bench, but FDR's wartime

30:42

court was sort of singular in the

30:44

diversity of the experiences that the justices

30:46

brought to the bench when they became

30:49

justices. So could you talk a little

30:51

bit about the coziness of

30:53

FDR and his court, I mean

30:55

literally his court, and then the

30:57

separate question of how he selected

31:00

these judges from such a diverse

31:02

array of experiences

31:04

and opportunities? Sure, absolutely.

31:06

So let's start with the

31:09

coziness. And it was

31:11

something that the sort of depth of it

31:13

and extent of it I really discovered as

31:15

I got into it and I had not

31:17

been aware of it. But let's step back

31:19

for a second because as I was saying

31:21

people are sort of generally familiar with that

31:23

story about the 1930s and

31:25

the and the court packing plan and the

31:28

switch in time save night. But what is

31:30

less well understood is that by the

31:32

summer of 1941 FDR had

31:35

appointed seven of the

31:37

nine justices and elevated an

31:39

eighth to chief justice. This was due

31:41

to a wave of deaths and resignations.

31:44

It was by far the biggest

31:47

impact on the court of any

31:49

president since George Washington. And as

31:51

you say Melissa, it wasn't just

31:54

the number of justices. They were

31:56

extraordinarily close to him, sometimes excessively

31:58

close. judicial policy

32:01

matters. But FDR

32:04

really viewed them all as

32:06

kind of part of his

32:08

official family, part of his

32:10

personal family, and

32:12

they viewed it that way too.

32:14

They revered him. They admired him.

32:17

And you talk about their backgrounds,

32:19

and that's very important because almost

32:22

all of them had lived

32:25

large public lives before going

32:27

on the court. You

32:29

had former senators, former

32:31

governor, former U.S. Attorneys General,

32:34

former chair of the Securities

32:36

and Exchange Commission, former leading

32:38

public intellectual. There

32:40

was only one justice, his

32:43

final appointment, Wiley Rutledge, who

32:45

had any federal judicial experience

32:48

at all, and he

32:50

had been on the DC

32:52

circuit. It's such a sharp

32:54

contrast to today's court where,

32:57

of course, all except for one,

32:59

all except for Justice Kagan, had

33:01

previously been federal appellate judges. And

33:04

I think that that had profound

33:06

implications in a number of

33:09

different ways, but it's really very, very striking.

33:12

Can we talk about Justice Frankfurter in

33:14

particular and the nature of the relationship

33:16

between Frankfurter and FDR at any particular

33:18

moment or sort of across the years

33:20

of the story that you're telling?

33:22

Absolutely. And maybe

33:25

it's helpful to just get out

33:27

on the table the players during

33:29

this period, the justices during the

33:31

war, and they really

33:33

fall into three groups. And there's

33:35

one group, the Roosevelt appointees, who

33:38

are very well known. And so that's

33:41

Hugo Black, Felix Frankfurter, William O.

33:43

Douglas, and Robert Jackson. The

33:45

second group is the FDR

33:48

appointees, who are not very well

33:50

known. So that's Stanley Reed, Frank

33:52

Murphy, James Burns. Now, Jimmy Burns

33:54

was only on the court for

33:57

about 14 months because in the fall of 1942,

34:00

who FDR said, come

34:02

to the White House. You'll be

34:04

assistant president in charge of the

34:06

economy. I'll focus on military matters.

34:08

You'll run the economy. And

34:10

so Burns left the court to go

34:12

to the White House. It was one

34:14

of the shortest tenures of any Supreme

34:17

Court justice. And he was replaced by

34:19

Wiley Rutledge, the final justice in this

34:21

group. And then the third group is

34:23

the group of justices who were not

34:26

initially appointed by FDR. So that's Harlan

34:28

Fisk Stone, who was appointed to the

34:30

court in 1925 by

34:32

his Amherst college buddy, Calvin

34:34

Coolidge. And then FDR

34:37

elevated him to be Chief Justice in

34:39

the summer of 1941. And

34:41

it's very well documented that the

34:43

reason FDR did that primarily

34:46

had to do with the war,

34:48

because FDR was single-mindedly concerned with

34:50

preparing the country for the war,

34:52

which he thought was inevitable. There

34:55

was considerable isolation of sentiment in

34:57

the country. And so he

34:59

wanted as bipartisan a government as

35:01

possible. So he loved the idea

35:03

of elevating this Republican, elevating this

35:05

Coolidge appointee. He had done something

35:07

very similar the previous summer when

35:09

he had named prominent Republicans to

35:11

be Secretary of War and Secretary

35:13

of the Navy. And then the

35:16

only other justice who did not owe

35:19

his initial appointment to FDR was Owen

35:22

Roberts. And he was the only justice

35:24

on the court who didn't know his

35:26

position to FDR during

35:29

the war. And Owen Roberts was the one

35:31

who was the famous switch in time that

35:33

saved 90. And he had been appointed by

35:35

Herbert Hoover in 1930. So

35:38

let's talk about Frankfurter, because he

35:40

was one of the justices who

35:43

was very, very close to FDR.

35:45

They had actually first gotten to

35:47

know each other in Washington

35:50

during World War I. And

35:53

then when FDR was governor of

35:55

New York and Frankfurter was

35:57

at Harvard Law School, FDR was a

35:59

governor. a constant source

36:01

of ideas and suggestions

36:04

for him. And FDR

36:06

loved it. He really,

36:08

he liked Frankfurter personally, and

36:10

he also really valued his

36:13

intellect and his suggestions. He one

36:15

time said that Frankfurter had more

36:17

ideas per minute than anybody he

36:19

had ever met. And this

36:22

continued after FDR became president. And so

36:24

throughout the 1930s, Frankfurter

36:26

is very involved with FDR.

36:28

He would send them these dear

36:31

Frank letters, very involved

36:33

with their legal strategy. But

36:35

all of this very much continued after

36:38

Frankfurter goes on the court in

36:40

1939. He's

36:42

very close with FDR. He has

36:45

a wide ranging portfolio

36:47

of issues in Washington. Everything, foreign

36:49

policy, personnel management. He has his

36:51

hands in everything. Now there's the

36:54

famous Felix's Happy Hot Dogs. These

36:56

were his proteges from Harvard Law

36:58

School, who he had strategically placed

37:01

throughout the government. And he was

37:03

constantly reaching out to them to

37:05

hear what was happening, to

37:07

hear gossip, to give them

37:10

suggestions, to tell them what to do.

37:12

And even at the top levels of

37:15

the Roosevelt administration, he was

37:17

very, very influential. He

37:19

had urged, I mentioned

37:21

that FDR had named the prominent

37:23

Republican to be secretary of war.

37:26

That was Henry Stimson. And he

37:28

had been Frankfurter's mentor

37:30

when he was US attorney for the

37:32

Southern District. And he had

37:34

brought on Frankfurter when he was a

37:36

young assistant. They were very close. He

37:39

convinced FDR to bring him on as

37:41

secretary of war. Frankfurter was constantly in

37:43

touch with Stimson, constantly meeting with him,

37:45

constantly giving him his

37:48

advice about what to do.

37:50

And so Frankfurter had his

37:52

hands in absolutely everything. And he

37:55

also would send FDR

37:57

this stream of war. letters

38:00

and telegrams that were full

38:03

of flattery and praise, but

38:06

it was an extraordinarily close relationship.

38:09

And again, Frankfurter was

38:11

involved in every conceivable issue that

38:13

you can imagine. Throughout the

38:15

war years, Frankfurter

38:18

kept a diary, and in

38:20

his diary, he records these

38:22

wide ranging policy areas that

38:25

he was very much involved

38:27

in. And he loved being in touch with

38:29

the Roosevelt administration official. Now, one

38:31

thing we can talk about, divisions emerged

38:33

among the Roosevelt justices, and in his

38:35

diary, he's not very happy with a

38:38

lot of his fellow justices, but he

38:40

loves being in touch with the

38:42

Secretary of War, other top people in

38:45

the War Department, top people in the

38:47

Justice Department, top people throughout the government.

38:50

So it's not just Frankfurter who

38:52

has this cozy relationship. FDR really

38:54

regards the court in this moment as kind of

38:56

a bench from which he can draw to

38:59

fill various positions and needs

39:01

in Washington. Owen Roberts writes

39:03

the Pearl Harbor Commission Report.

39:07

You have justices working with Congress

39:09

to write legislation. I mean, this

39:11

stuff is wild. I mean, by

39:13

today's expectations, how did this

39:15

happen? I mean, that's generally my question. There

39:18

are no ethics probes, like the sort of separation

39:20

of powers doesn't seem to exist. How did it

39:22

come to be that the court

39:24

just becomes a kind of

39:26

farm team for FDR's administration?

39:29

Well, a couple of things

39:31

about that. From FDR's perspective,

39:33

these were his people, and

39:35

he absolutely- He's very Trumpian.

39:38

What does that think? He

39:42

did not think of

39:44

any kind of separation. These

39:47

were his friends and allies, and this came

39:49

after the period, of course, when he was

39:51

battling the Supreme Court, denouncing it and calling

39:53

it the horse and buggy court. And now

39:56

he had gotten these people who had been

39:58

in the trenches with them. You

40:00

know, some of them had been his attorney

40:02

general playing prominent roles in his

40:04

administration. Frank Murphy had been attorney general.

40:06

He also had been governor of Michigan

40:08

and mayor of Detroit. Robert

40:11

Jackson had been his attorney general

40:13

and solicitor general. Frankfurter went back

40:15

a long way. Black

40:18

and Burns had been close allies with

40:20

him in the Senate. And you know,

40:22

FDR's mindset was that, you know, first

40:25

with the New Deal and then of

40:27

course with the war, he was just

40:29

going to use people in a way

40:31

that he thought would

40:34

contribute to this fundamental

40:36

effort. And the justices

40:38

were very will-like. I mean, Harlan

40:40

Fisk Stone at one point was

40:43

a bit reluctant. He turned down

40:45

FDR's request that he had a

40:47

committee on the production of rubber,

40:49

but he's about the only

40:51

one who does that. And just to,

40:53

you know, kind of highlight your point,

40:55

Melissa, you mentioned Owen Roberts was appointed

40:58

by FDR to head a Pearl Harbor

41:00

Commission report right after Pearl Harbor. The

41:02

other commissioners are all high ranking generals

41:04

and admirals. Roberts takes the

41:06

lead from the court with

41:09

the commissioners to go to Hawaii for

41:11

a couple months, prepares this big report,

41:13

sits with FDR for hours privately, one

41:15

on one, and gives him the report

41:17

and they release it. About

41:20

1941, when there is, as we

41:22

talked about, this considerable isolationist sentiment

41:25

in the country, almost all of

41:27

the justices are out on the

41:29

hustings giving speeches saying, we have

41:32

to support FDR. We

41:34

have to support this war effort.

41:36

And sometimes it was explicitly coordinated with the

41:38

White House. And even when it wasn't, everybody

41:40

knew this was the biggest issue for FDR.

41:43

It was the biggest public policy issue in

41:45

the country, one of which there was a

41:47

lot of division. But one

41:49

example where it was explicitly coordinated,

41:52

Frank Murphy was the only Catholic on the court.

41:55

And so FDR and the White House had him go

41:57

and talk to the Knights of Columbus. urged

42:00

very strong support for FDR. And even

42:03

though FDR was now embracing the Soviet

42:05

Union, which after having been invaded was

42:07

on England's side and there was concern

42:10

in the Catholic Church and other religious

42:12

communities about this anti-religious Soviet Union. And

42:14

Murphy is saying, the biggest threat is

42:16

Hitler. We all need to welcome anybody,

42:19

including the Soviet Union to this. And

42:21

FDR lets him know afterwards that he

42:23

was tickled to death by

42:25

his speech. And there are

42:27

other assignments that FDR gives

42:29

to the justices, informal assignments.

42:31

He sends Hugo Black to

42:33

his native state of

42:35

Alabama to Birmingham to look into

42:37

the state of war-related industries there

42:39

and report back to him on

42:41

the readiness. He has Frank Murphy

42:43

do that in Detroit, where again,

42:45

Murphy had been mayor and governor.

42:48

And Murphy does it in a

42:50

very public way. And he goes

42:52

on national radio, and to millions

42:54

of people, he reports on his

42:56

findings. And Detroit was very

42:58

important because it was making jeeps and

43:00

tanks and other war-related machinery.

43:02

And he says, we're not doing enough.

43:04

Business, you need to do more. Labor,

43:06

you need to do more.

43:09

Business and labor, you need to

43:11

come together. But in terms of

43:13

your point, Melissa, about how

43:16

did this happen and everything, one of the

43:18

things that's really kind of remarkable about this

43:20

is that a lot of this was reported

43:22

at the time. And there's

43:25

almost nobody's raising an eyebrow. Every now

43:27

and then there might be an editorial

43:29

that says, oh, this is

43:31

a little too much, the FDR

43:33

family. But when Frank Murphy gives

43:35

a big speech on what we

43:37

need to do, military

43:40

matters, the Washington Post does a full

43:42

page quoting his speech. And one of

43:44

the other really remarkable examples of this

43:46

had to do with Jimmy Burns. And

43:49

as I mentioned, he left the court

43:51

in the fall of 1942. But

43:54

while he was still a sitting justice,

43:57

after Pearl Harbor, FDR,

44:00

put him in charge of

44:02

war-related legislation for the White House.

44:04

He told his attorney general

44:06

and others in the cabinet, any

44:09

war-related legislation has to go through

44:11

Jimmy Burns. He was frequently working

44:14

out of the White House, huddled

44:16

with FDR and his aides. Again,

44:20

in charge of this war-related legislation,

44:23

a lot of which was very important, and of

44:25

course, all of it could have come before the

44:27

Supreme Court. It was constitutionality and executive actions as

44:29

well. I'm just sitting here trying to imagine Joe

44:31

Biden tapping Katonji

44:34

Brown Jackson to oversee some commission on

44:36

how to do student debt relief in

44:38

a way that will survive another round.

44:40

Can you imagine it is such a

44:42

different world of relationship? No, it absolutely

44:45

is. And there even is a newspaper

44:47

article at the time that I saw

44:49

that just in passing says Justice Burns

44:51

is the key intermediary between the White

44:53

House and Congress. And of course, he

44:55

was a former senator, knew them all

44:57

very well. Hugo Black is

45:00

a justice. Claude

45:02

Pepper from Florida, who is in Congress,

45:04

went to see Hugo Black while he's

45:06

a justice, to say, how should we

45:08

shape this War Powers Act? And he

45:10

has a long session with Hugo

45:12

Black about it. What would be good for you in

45:14

a War Powers Act? What

45:17

would you like to see? Exactly.

45:20

It does feel like the exigency of war was

45:23

part of this. The context is really important.

45:25

But also, these were individuals

45:28

who were sort of used to

45:30

acting politically and playing on relationships

45:32

in a way that the current

45:34

court has constituted. They

45:37

don't have that experience, with the exception of Justice

45:39

Kagan, maybe. Well, in Kavanaugh and Roberts, I mean,

45:41

these guys were political in their ways. They

45:44

were not elected officials. Right. That's

45:47

right. Like public facing. Right. No, no,

45:49

absolutely. I mean, look, I

45:51

think there can be a

45:54

very positive aspect to justice

45:56

as having broad

45:59

public experience. experience, you

46:01

know, and I think that's something that's

46:03

lacking on the current court. So that's

46:05

a separate conversation. I don't

46:07

think a justice who had had

46:10

experience in Congress, for example, would think

46:12

much of the major questions doctrine just

46:14

for starters, you know. But

46:16

so, you know, I think there is something

46:19

that is missing when we

46:21

have this kind of homogenous experience, for

46:23

the most part, that we have now.

46:26

But it absolutely was true that it

46:28

was one of the things that was

46:30

contributing to their comfort and ease in

46:32

the political world. So it was

46:34

all just very brave. I mean, I'll tell you one other

46:37

anecdote about another justice

46:40

that I think really kind of

46:43

highlights this point. So Stanley Reed,

46:45

one of the lesser known justices,

46:47

and he had been Solicitor General,

46:49

FDR's second appointment after Hugo Black.

46:53

And so one thing I found at the

46:55

FDR Library kind of buried in the files

46:57

was that Reed, before his first

46:59

full term in 1938, in October of 1938, he

47:01

sends FDR a memo and he says, I'd

47:08

like to come over and meet with

47:10

you so that I can better understand

47:12

your objectives for me on the court.

47:15

And FDR sort of scrawls on

47:18

it to his secretary, have him

47:20

in for lunch next week, and

47:22

it's on FDR's schedule that they

47:25

meet privately one on one

47:27

for an hour. And undoubtedly, they talked,

47:29

and this is before the war. So

47:31

yes, the war was important, but this

47:34

was 1938, and he's seeking guidance on

47:36

FDR's objectives for him on the court.

47:40

And then bookending that, shortly,

47:42

right after FDR dies,

47:46

Reed has a conversation with Frankfurter

47:49

that records in the memo where Reed

47:51

says to Frankfurter, now that

47:53

FDR has died, Reed says,

47:55

he will feel more free to vote

47:57

his conscience. While

48:00

FDR was alive, he was always thinking

48:02

about what would help the president. So

48:04

it's really kind of amazing. But from

48:07

a historical perspective, and again, it is

48:09

so shocking to our eyes and ears,

48:11

I'll say a couple things. You

48:14

do find kind of one-off relationships

48:16

like this historically.

48:19

I think one of the things that

48:21

was unique about this experience with FDR

48:24

was the extent of it and how

48:26

pervasive it was. And part of

48:28

that had to do with what

48:31

was sort of the fortuity of the

48:33

fact that he had these

48:35

seven appointments and these seven justices who he

48:38

was all very close to. And the other

48:40

thing I'll say is that there's at least

48:42

one historian who thinks that

48:45

the event that really kind

48:47

of changed public perceptions on this was

48:50

Abe Fortis in the 1960s with LBJ. Because

48:53

there was a lot of controversy about

48:55

the fact that Fortis continued to advise

48:57

Johnson on policy matters while he was

48:59

on the Supreme Court, and also there

49:01

were financial issues that

49:04

came up. But that does seem to be

49:06

sort of a watershed on some of these

49:08

issues. But if I could also say one thing

49:10

that relates to current times and

49:12

the whole question of an ethics code. Because

49:15

I think this really highlights

49:17

the need for a strong

49:19

and binding ethics code.

49:22

And also for very strong public

49:24

norms on the ethics of Supreme

49:26

Court justices. And one of

49:28

the things that I think

49:31

is very unfortunate is that the

49:33

current debate has become one that

49:35

has a partisan cast. Because it's

49:37

appointees of Republican presidents and it's

49:39

financial issues. But here you

49:41

have appointees of a Democratic president,

49:43

a president who I greatly admire.

49:47

And I think a lot of the things that they're doing

49:49

are improper. And I just think it

49:51

highlights the fact that the

49:54

case for a very strong binding ethics

49:56

code should be a bipartisan issue. It

49:58

should be a nonpartisan issue. I'm

50:00

so glad we have this really great

50:03

ethics code now and all of the

50:05

justices are just really on top of this.

50:07

So check, check. We're done. We're

50:09

done here. I'll take them care of. We've clearly

50:11

prevented all of the shenanigans that you just walked

50:13

through, Cliff. No question. All of that would clearly

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for the love of home. You

51:27

just gave us so many wonderful anecdotes.

51:29

There's also a bunch of events around

51:31

FDR's selection of his 1944 running mate.

51:35

Not only are the sitting justices actively

51:38

advising and serving in various capacities,

51:41

formally or informally, with the

51:43

White House and the executive branch, some

51:46

of them are vying to actually become the

51:48

vice president. Let's

51:50

just briefly, Cliven, then we'll turn to the cases. Tell

51:52

us about the sort of machinations

51:55

around FDR's selection of his 1944 running mate.

51:58

Sure, absolutely. It's

52:00

quite a tangled political story,

52:03

but it's very important in

52:06

terms of understanding the relationship

52:08

between FDR and the justices.

52:11

So in 1944, FDR, as

52:13

he was preparing to run

52:15

for his fourth term, had

52:17

decided to dump his

52:19

Vice President Henry Wallace, who had been

52:21

there for his third term. And

52:24

Wallace was viewed as eccentric

52:26

and erratic and unreliable and

52:29

a political liability. So the question was,

52:31

who would be FDR's running mate? And

52:34

FDR initially very much favored

52:36

Douglas. Now, you know, FDR

52:38

and Douglas were very close.

52:41

Douglas had had a meteoric rise. When

52:43

FDR appointed him to the court in 1939, he was only

52:45

40 years old. He

52:48

had already been one of the first

52:50

chairs of the Securities and Exchange Commission.

52:52

He was part of FDR's poker circle.

52:56

And FDR really enjoyed Douglas's company.

52:58

He said there were two things he

53:00

really liked about Douglas. He told

53:02

great stories. And also,

53:04

and this was very important to FDR, Douglas

53:06

made the best martinis of anybody in Washington.

53:10

But when it came time to think of his

53:12

running mate, he liked

53:15

and favored Douglas as his running

53:17

mate. He thought Douglas would have

53:20

great political appeal. His

53:22

modest upbringing in the Pacific Northwest,

53:24

the way he carried himself in

53:27

public, his images and outdoorsman. FDR was

53:29

actually even a little infatuated with Douglas.

53:31

He talked about how Douglas's hair blew

53:33

in the wind. And so

53:36

he told his political aides

53:38

that he wanted Douglas as

53:40

his vice president. And they

53:42

were very skeptical. Douglas

53:45

had never run for office. And the

53:47

head of the Democratic National Committee was from Missouri and

53:49

was very close to Harry Truman. And

53:51

so ultimately, FDR nominally said he

53:54

was going to leave it up

53:56

to the convention. And

53:59

there were lots of other. candidates also

54:01

in the public eye and who

54:04

FDR would like to keep everybody

54:06

off balance was giving encouraging science

54:08

to including former Justice Jimmy Burns

54:10

and actually even incumbent Vice President

54:12

Henry laws. He said he would

54:14

let the convention decide but

54:17

the week of the convention he

54:19

releases a letter and he

54:21

says he would be very happy to

54:23

run with either Harry Truman or William

54:25

O. Douglas as his running mate. This

54:27

is the only two names on

54:30

the letter and right up until the

54:32

last day of the convention and the

54:34

vote at the convention Douglas

54:36

was viewed as a leading candidate to be

54:38

Vice President and in some accounts the

54:41

leading candidates. Now Douglas

54:43

himself was not at the

54:45

convention in Chicago and... Judicial

54:48

restraint, I like that. You're

54:52

keeping a little distance from it

54:54

but he had a team there

54:56

that was working around the clock

54:58

for him and frantically trying to

55:01

get him the vice presidential nomination

55:04

all while he's a sitting justice. So

55:06

it's kind of a remarkable story but

55:09

and just one other point about these

55:11

you know justices your talking about Douglas

55:13

vying to be vice president while he's

55:16

a sitting justice but a number

55:18

of the justices several of them sent

55:20

communications to FDR during the war when

55:23

it first broke out and after that.

55:25

If you want me to do anything

55:27

else you know I'm happy to you

55:29

know help you in the war effort

55:31

leave the court you know Frank Murphy

55:33

wanted to be secretary of war he

55:36

was trying to he was angling to

55:38

do that. Douglas and

55:40

Jackson made clear to FDR they

55:42

would leave the court in a heartbeat you know

55:44

if he thought you know they could have kind

55:46

of major efforts in the

55:49

war so they were all looking

55:51

at their court seats almost as

55:53

stepping stones to other positions. It's

55:56

very clear that the war looms

55:58

large in the nation. nature of

56:00

the relationships between the justices and the

56:02

president. But it also, of course, shapes

56:04

the substantive content that the court produces

56:07

during this period. And there

56:09

are a number of cases that our listeners will be

56:11

familiar with that you can visit in the book, but

56:13

there are some that may be unfamiliar. And

56:16

one that may be especially interesting is

56:18

the case of Ex parte

56:20

Cuiran, which you may have

56:22

read in federal courts or whatnot,

56:24

the case about military tribunals. But

56:27

when you actually hear the backstory

56:29

of this case, it's absolutely fascinating.

56:31

I mean, this is like genuinely

56:33

fifth column stuff and Nazi saboteurs

56:35

washing up on the shores of

56:37

Ponte Vedra, Florida and Amagansett, New

56:39

York. I mean, so can you

56:41

say a little bit about Ex

56:43

parte Cuiran and then the turmoil

56:46

that it threw the court into

56:48

because FDR very much expected a

56:50

particular outcome? Right. Absolutely.

56:53

And so just to put this in the

56:55

overall context of the war court, it's

56:57

really a tale of two courts, the best of

56:59

courts, the worst of courts. I was mentioning this

57:01

sort of paradox that I came

57:04

across with Hirabayashi and Barnett. And

57:06

then the best of court side

57:08

of things, they're protecting and recognizing

57:11

constitutional rights and civil liberties in

57:13

contrast the totalitarian and the authoritarian

57:16

that were fighting. But

57:18

on the worst of court side, we've

57:20

got Ex parte Cuiran and then we've

57:22

got the anti Japanese cases. So what

57:25

happened with Ex parte Cuiran was that,

57:28

as you say, there were two teams of

57:32

Nazi saboteurs, four

57:35

members in each team that landed

57:37

on Long Island and in Florida.

57:39

And they were sent here to

57:41

blow up buildings and commit

57:44

other kinds of sabotage

57:46

while they were here. Now

57:49

they were very quickly

57:51

captured. And the

57:53

reason that they were very quickly captured

57:55

is that one of the leaders of

57:58

them, almost immediately.

58:00

immediately after they landed decided

58:02

he wanted to blow the

58:04

whistle on the whole thing. And

58:06

so he tries to reach out to

58:08

the US government. And so he is

58:10

calling the FBI, he's calling the War

58:12

Department. They're all treating it as

58:14

crank calls. They keep hanging up on them.

58:17

And finally he gets through to

58:19

somebody at the FBI who's interested

58:22

and sends a cab for him because

58:24

he had come to DC trying to reach

58:26

somebody in government. And he talks

58:28

for days and tells them everything. And

58:31

then they very quickly capture all of

58:33

them. Now none of that was known

58:36

for many years. What happened is J.

58:38

Edgar Hoover announces this, the capture of

58:40

these eight Nazi spies and

58:42

it's viewed as this tremendous triumph for

58:45

the FBI. Somehow they infiltrated the ring

58:47

and cracked the case and that kind

58:49

of thing. In any

58:51

case, as you can imagine, it

58:53

was a public uproar when

58:56

it was revealed. And FDR

58:59

was very, very much

59:01

personally interested. And

59:03

he immediately told his Attorney

59:06

General Francis Fiddle that

59:08

he wanted them promptly tried and

59:11

hung. And FDR

59:13

was a history buff.

59:15

And so he was pointing to examples

59:17

in history of this.

59:19

And he didn't want it to

59:22

get bogged down in the trial.

59:24

And so very quickly FDR and

59:26

the Attorney General and Secretary of

59:28

War set up a

59:31

special military commission so that they

59:33

can be very promptly tried and

59:35

executed. And they'll have far fewer

59:38

rights in the military commission, including

59:41

no jury trial, including much more

59:43

relaxed evidentiary rules. And it's going

59:46

to go very, very quickly. And

59:48

so the lawyer for the saboteurs wants

59:52

to get Supreme Court review because this

59:54

is a speeding train and they're about

59:57

to be convicted or executed. So

59:59

he asked for a actually goes to see

1:00:01

Owen Roberts to try to get

1:00:04

a stay. Roberts is interested and

1:00:06

the Francis Biddle for the US

1:00:08

government, they also want a very quick

1:00:10

resolution because they want this speeding

1:00:13

train to go

1:00:15

forward and to get the prompt

1:00:17

convictions and executions. So the court

1:00:19

immediately has a special summer session

1:00:21

and the justices of course are

1:00:23

scattered around the country and they

1:00:25

all come back at the end

1:00:27

of July. So the

1:00:29

justices hear two days of

1:00:31

oral argument and then the

1:00:33

next day they issue a

1:00:35

very brief order that

1:00:38

basically says we reject the

1:00:40

objections. They don't give any

1:00:42

reasoning. They say reasoning to

1:00:44

come later. The decision

1:00:47

will take effect forthwith immediately

1:00:51

and again, opinion to follow. And within

1:00:54

one week, all of

1:00:56

the accused saboteurs were

1:00:58

convicted and six of them were executed. Two

1:01:00

of them, their sentences were commuted to labor.

1:01:03

And by the way, when I was talking

1:01:05

about that conference before they

1:01:07

went out for oral argument, Roberts

1:01:10

also reported to the other justices

1:01:12

that he had heard from Francis

1:01:14

Biddle, the attorney general that

1:01:17

FDR had told Biddle,

1:01:19

he didn't care how the Supreme Court

1:01:21

ruled. He wasn't gonna turn

1:01:23

over the saboteurs under any circumstances

1:01:25

and he was gonna make sure they

1:01:28

were executed no matter what. And

1:01:30

none of the justices say anything and

1:01:32

then Harlan Fiske Stone says, well,

1:01:35

that would be a dreadful thing. So

1:01:37

they knew how important this was

1:01:39

to FDR. And so

1:01:41

again, within a week, they're all

1:01:44

convicted, six of them are executed, but

1:01:46

now the justices had a problem because they

1:01:48

had to come up with the reasoning to

1:01:51

justify what they had done. And

1:01:53

now they basically fell apart because

1:01:56

they couldn't agree on the

1:01:58

reasons. And they knew this was a case. was a

1:02:00

terrible situation because six people had

1:02:02

already been executed based on their

1:02:04

decision, and they couldn't figure out

1:02:07

why. And so they have these

1:02:09

long disputes and back and forth.

1:02:12

And eventually, kind of bloodied and

1:02:14

bruised, they come together in a

1:02:16

unanimous opinion three months later. But

1:02:19

almost since the day it's been issued,

1:02:21

it's been subject to withering

1:02:24

criticism for sort

1:02:26

of gaping holes

1:02:28

in the analysis very

1:02:30

serious problems. And a number of

1:02:33

the justices themselves, including Frankfurter and

1:02:35

Douglas, later said this was the

1:02:37

wrong way to do business, to

1:02:40

issue the decision and allow them to

1:02:42

be executed and then try to figure

1:02:44

out the reasons afterwards. But the bottom

1:02:46

line is that there was this very

1:02:49

sort of shoddy shortcut

1:02:52

that was taken, short circuiting

1:02:54

the system to do

1:02:57

something and the FDR very much

1:02:59

won, which was the prime conviction

1:03:01

and execution of the saboteurs. Yeah,

1:03:03

it's a macabre and disturbing

1:03:06

sequence of events. And

1:03:08

we'll stay with like the clear and

1:03:10

explicit war-tied cases for another couple of

1:03:12

minutes. And I think you say this

1:03:15

in the book and it comes through

1:03:17

all the cases, whether or not they're

1:03:19

explicitly about military power and war are

1:03:22

very influenced by the wartime backdrop.

1:03:24

But you have alluded a couple of times now to

1:03:28

the cases involving the internment of Japanese

1:03:30

Americans, Hirabayashi and then Korematsu and Endo.

1:03:33

Korematsu is the one that people are probably most

1:03:35

familiar with. Maybe if you wanna say a brief word

1:03:37

about Hirabayashi, which sort of got you

1:03:39

on the path to writing this book, and then maybe

1:03:41

we could just briefly talk about

1:03:44

both the internal executive branch

1:03:46

dynamics around Korematsu and

1:03:48

the dynamics in conference. Because it is an

1:03:51

interesting fact about Korematsu that despite

1:03:53

these loyalists that we have

1:03:55

been talking about and

1:03:57

their desire to provide this

1:03:59

power. president with what he wants,

1:04:01

Korematsu is not a unanimous decision. And it's

1:04:03

actually even less unanimous when they're first in

1:04:06

conference than the ultimate 6-3 vote that emerges

1:04:08

in the case. So we just tell us

1:04:10

a little bit about the paths to Korematsu

1:04:12

and then what's happening inside the executive branch

1:04:14

and inside the justices deliberations as they are

1:04:16

considering this question of whether the

1:04:18

Constitution permits the forcible relocation and

1:04:20

internment of Japanese Americans. Sure.

1:04:23

Pirabayashi and Korematsu,

1:04:26

of course, is in a very deep stain

1:04:28

on the court and on the history, broadly

1:04:32

permitting the persecution of American

1:04:34

citizens for no reason other

1:04:36

than the country their parents

1:04:38

came from and including non-citizens

1:04:40

who were lawfully resident.

1:04:42

But in Hirabayashi, there

1:04:45

was this criminal curfew. So FDR

1:04:47

had issued an executive order in

1:04:50

February 1942 that just

1:04:52

gave the military

1:04:55

broad authority to do

1:04:58

whatever they thought necessary. And what

1:05:01

had happened on the West Coast

1:05:03

for a few weeks after Pearl

1:05:05

Harbor, things were relatively calm and

1:05:07

sane. And then a hysteria took

1:05:10

hold and a wide

1:05:12

range of politicians on the

1:05:15

West Coast, Democrats and Republicans,

1:05:17

and including the then Attorney

1:05:19

General of California, Earl Warren,

1:05:22

were very strongly in favor

1:05:25

of expulsion and

1:05:27

incarceration. And this became

1:05:29

a kind of raging

1:05:31

political issue. And some of it actually

1:05:33

was triggered by some loose

1:05:36

comments that Owen Roberts and his

1:05:38

other commissioners had included in their

1:05:40

report. That was one of the

1:05:42

matches with the fire. Now

1:05:44

one thing that I found interesting, by

1:05:46

the way, which I hadn't realized before,

1:05:48

is there also is a very brazen

1:05:50

economic motivation that the growers in California

1:05:53

did not like the competition.

1:05:55

Japanese Americans and Japanese

1:05:57

non-citizens have been very successful. agriculture and they

1:06:00

were very explicit. We want them out, we

1:06:02

don't want them back, they're

1:06:04

taking our farms and that kind

1:06:06

of thing. But so the

1:06:08

first step, and there was a

1:06:11

very racist commander on the west

1:06:13

coast, John DeWitt, who actually

1:06:15

personally had relationships with both Black

1:06:18

and Douglas, and the first

1:06:20

step was this criminal

1:06:23

curfew, applicable only

1:06:25

to Japanese American citizens. And

1:06:27

then came the expulsion from

1:06:29

their homes and the

1:06:31

accompanying incarceration.

1:06:34

And so Hirabayashi,

1:06:37

in another case, established

1:06:39

the lawfulness

1:06:42

and the constitutionality in the

1:06:44

court's view of the curfew.

1:06:46

Now Frank Murphy had reservations

1:06:48

about it and he

1:06:51

initially was going to write a dissent. But then

1:06:54

there was a lot of pressure on him, oh

1:06:56

we should be unanimous on this. And so he

1:06:58

ended up writing a

1:07:00

concurrence that expressed a

1:07:03

lot of concerns and was sort

1:07:05

of saying this and no further.

1:07:07

And so then Korematsu comes

1:07:10

up the following year and it's

1:07:12

really about the forced expulsion. Korematsu

1:07:15

was also challenging the accompanying

1:07:18

incarceration because they went hand

1:07:20

in hand. And as

1:07:23

you say, Kate, in conference initially,

1:07:26

it was five to four. The

1:07:28

three who eventually

1:07:31

dissented were

1:07:33

Jackson, Frank Murphy,

1:07:35

who again had been the most

1:07:37

reluctant in Hirabayashi, and Owen Roberts,

1:07:39

who had written the report. And

1:07:41

Murphy writes a very, very strong

1:07:44

dissent that we have fallen into the

1:07:46

ugly abyss of racism. Now Douglas at

1:07:50

first was dissenting, but he

1:07:52

ultimately worked with Black

1:07:55

to get some language and he

1:07:57

ultimately joined the majority so that...

1:08:00

it was a 6-3 opinion. And

1:08:03

there's a remarkable tone and quality to

1:08:05

Black's opinion where he just sort of

1:08:07

shrugs and says, well, war is a

1:08:09

series of hardships, you know, when you're

1:08:11

talking about this sort of blatant

1:08:14

racism that's

1:08:17

going on. And I will just say on

1:08:19

this, on the justices, there

1:08:21

were some who, both on the

1:08:24

Supreme Court and in the government,

1:08:26

who later expressed regret over their

1:08:28

roles, Doug listed, Black

1:08:31

literally until his dying day, it was very defensive.

1:08:33

It was the right thing to do. You didn't

1:08:36

know who was loyal. You didn't know who was

1:08:38

not loyal. Now the executive

1:08:40

branch, and there's a

1:08:42

particularly pernicious

1:08:46

role that the executive branch

1:08:48

plays here. They're vigorously defending

1:08:50

the policy, but both

1:08:53

with Kiribayashi and Korematsu,

1:08:56

the Justice Department and the War

1:08:58

Department were aware of

1:09:01

evidence that specifically

1:09:03

contradicted, specifically allied

1:09:06

the national security justification that they

1:09:08

were giving to the court. And

1:09:12

they deliberately decided

1:09:14

not to submit it to the court.

1:09:16

Now none of this gets the court

1:09:18

off the hook, because even on the

1:09:20

record as it went to the court,

1:09:22

the opinions were an abomination. And of

1:09:24

course, you know, Korematsu is up there

1:09:26

with Dred Scott and Plessy versus Ferguson

1:09:28

is among the worst decisions ever.

1:09:30

But it adds another dimension

1:09:32

when you realize that

1:09:35

the government deliberately withheld

1:09:37

evidence. In my mind,

1:09:39

there are, you know, at least two

1:09:41

very important lessons from the anti-Japanese

1:09:44

cases, as well as the Querin

1:09:46

case, which is one, the

1:09:49

danger of excessive deference when the

1:09:51

government waves the flag of national

1:09:53

security, because in both cases, there

1:09:55

were wildly inflated claims of national

1:09:58

security, the government withholding evidence. evidence

1:10:00

really highlights that. And

1:10:02

the second is that when you

1:10:04

look at the difference between the

1:10:06

cases that upheld constitutional rights on

1:10:08

the one hand, like in the

1:10:10

Flaxel case, and these cases

1:10:12

on the other, the difference is

1:10:14

that in cases where there were upholding

1:10:16

constitutional rights, they didn't have to cross FDR

1:10:18

and they didn't have to cross the amount of war

1:10:21

issue. And to my mind,

1:10:23

it illustrates the judicial

1:10:25

catastrophe, the disaster that

1:10:28

results when justices are unwilling

1:10:31

to confront the president

1:10:33

who appointed them or

1:10:35

that president's political backers or patrons.

1:10:38

And I think that's an especially

1:10:40

important lesson today when

1:10:42

the votes of the justices correlate

1:10:44

with the preferences of

1:10:47

the political party of the president who appointed

1:10:49

them more than at any time in our

1:10:51

history. You raised a really

1:10:53

interesting point just about the

1:10:55

war context leading to this sort

1:10:57

of unparalleled deference to

1:10:59

the executive. And the justices,

1:11:02

not only because of their cozy relationships

1:11:04

with FDR, but just not knowing what's

1:11:06

around the corner and maybe assuming that the

1:11:08

executive has a better sense of what is

1:11:11

going to happen or what is a threat and what

1:11:13

isn't making these decisions about national

1:11:15

security that are perhaps more conservative and

1:11:17

less protective of civil liberties than we

1:11:19

would like. But then there are these

1:11:21

other civil liberties cases this is sort

1:11:24

of the good court that you imagine

1:11:26

where the court is being

1:11:28

especially protective of civil liberties,

1:11:30

especially for minority religious

1:11:32

sex. And so there are a couple

1:11:35

of cases involving the Jehovah's Witnesses and

1:11:37

they're not divorced from the war context

1:11:39

because the witnesses are seamlessly

1:11:42

pacifist but militaristic

1:11:44

in their pacifism. Like they do not like

1:11:46

the war effort and they

1:11:48

are opposed to it. And yet they

1:11:51

find themselves in a more

1:11:53

traditional society where their views are out of

1:11:55

step with the majority. And they often find

1:11:57

themselves as litigants because of it. So there's...

1:11:59

There's one case, Gobitis versus

1:12:01

Minersville School District, where the

1:12:04

court upholds a compulsory flag

1:12:06

pledging, the Pledge of Allegiance.

1:12:09

And then the court reverses very

1:12:11

shortly thereafter that decision

1:12:13

in West Virginia, Board of Education versus

1:12:15

Barnett. Barnett is decided in 1943. In

1:12:19

1944, there's another case involving

1:12:21

the witnesses called Prince versus Commonwealth

1:12:23

of Massachusetts involving parental rights

1:12:25

and child welfare, where the court

1:12:27

upholds the state's prerogative to

1:12:29

legislate in ways that limit

1:12:32

parental authority. And the parent in question

1:12:34

happens to be a Jehovah's Witness who

1:12:36

wants her child to be able to

1:12:38

sell the watchtower during the evening in

1:12:41

violation of the state law. So

1:12:44

it seems like there's a lot of

1:12:46

competing threads here. The war is overshadowing

1:12:48

everything. The antipathy for the witnesses is

1:12:50

definitely part of it. And Frank Murphy

1:12:52

raises this at various points in his

1:12:54

separate writings here. How

1:12:56

do you reconcile the Gobitis

1:12:58

shift to Barnett and then

1:13:00

the resulting, I guess,

1:13:03

antipathy for the witnesses that shows

1:13:05

up in Prince versus Commonwealth of

1:13:07

Massachusetts? And can I throw one more

1:13:09

thing in, which is that I did not know about the

1:13:11

hit the post-Gobitis spate of violence

1:13:13

against Jehovah's Witnesses that is unleashed

1:13:15

in the latter half of 1940.

1:13:18

So could you also talk a little

1:13:21

bit about that in telling this story?

1:13:23

Sure, absolutely. And, you know, literally in

1:13:25

a period of about six or seven

1:13:27

years, there are about two dozen cases

1:13:29

involving Jehovah's Witnesses in

1:13:31

the court because it's, you

1:13:33

know, there are all these civil liberties issues that

1:13:36

come up. But let's either talk

1:13:38

about Gobitis and Barnett to

1:13:40

begin with, because those are both flag salute

1:13:42

cases. And in 1940,

1:13:45

the court says eight to

1:13:47

one. Yes, you can

1:13:49

force them to salute the flag. And

1:13:51

they were saying it was against their

1:13:53

religion to be forced to do that

1:13:56

in public schools. And, Kate, as

1:13:58

you were just saying. That

1:14:00

unleashes this terrible violence

1:14:02

against Jehovah's Witnesses. It's

1:14:05

a very, very important

1:14:07

demonstration of the Supreme

1:14:09

Court's signaling function when

1:14:12

it decides cases because

1:14:14

that really

1:14:17

emboldened people

1:14:19

who are hostile to Jehovah's

1:14:21

Witnesses to go after them and

1:14:25

there's all sorts of sadistic beatings

1:14:27

of them and other kinds of

1:14:29

demonstrations and famously there's a reporter

1:14:33

asking the policeman why he's not stopping and

1:14:35

he says, you know, ain't you heard? The

1:14:38

Supreme Court says we can run these Jehovah's

1:14:40

Witnesses off. So it just shows you that

1:14:42

signaling function of the Supreme Court. But

1:14:46

by 1943, a

1:14:48

number of things have happened. You know,

1:14:50

when the court decided in 1940, it

1:14:53

was at the very dark moment

1:14:55

when France was fallen and the

1:14:58

clerks at the court called it Felix's Fall

1:15:00

of France. But

1:15:03

by 1943, first of all, there

1:15:05

had been changes in

1:15:07

personnel on the court and some people

1:15:09

like Jackson and Rutledge who had been

1:15:11

critical of Gobitis, now were on the

1:15:13

court and Black and Douglas

1:15:15

and Murphy, who all had joined the

1:15:17

opinion in Gobitis, now were convinced that

1:15:20

it was wrong and it was partly

1:15:22

in reaction to all of the violence.

1:15:24

But also, it's now the middle

1:15:27

of the war and the way Jackson saw it

1:15:29

was, and this relates to some of

1:15:31

the other cases on the good side

1:15:33

of the court also, is

1:15:36

that we are

1:15:38

in an existential fight for

1:15:40

our identity as a constitutional

1:15:42

democracy. And when you

1:15:44

read Barnett, the war

1:15:46

is very much a part of

1:15:49

what Jackson is talking about. He

1:15:51

says very explicitly, this is what

1:15:53

makes us different from, quote, our

1:15:56

totalitarian enemies. They compel

1:15:58

unity of thought and belief. We

1:16:00

don't do that in this country.

1:16:02

That's a fixed star in our

1:16:04

constitutional constellation. And he even points

1:16:06

out that the flag salute, which

1:16:09

had the children standing with

1:16:11

their hands raised and their pounds out

1:16:13

to the flag, bore

1:16:15

a very close resemblance to the

1:16:17

Nazis salute. And so in

1:16:20

Burnett, it was drawing this

1:16:22

very, very sharp contrast with,

1:16:26

as he said, our totalitarian enemies.

1:16:28

And then, you know, Melissa, more

1:16:30

generally with the witnesses, the

1:16:32

court tended to be sort

1:16:35

of split on some cases about

1:16:37

the general applicability of certain kinds

1:16:39

of laws. And they tended to

1:16:42

be closely divided. And in fact,

1:16:44

in a lot of other Jehovah's

1:16:46

Witnesses cases, Jackson tended

1:16:48

to sort of favor the

1:16:50

government in closing its generally

1:16:52

applicable laws. But when it

1:16:54

came to what he thought was compelling thought

1:16:57

and belief by making

1:16:59

them salute the flag, as opposed

1:17:02

to, you know, applying sort

1:17:04

of leaf-litting restrictions or other things

1:17:06

like that, he viewed that as

1:17:09

a fundamental contrast with the totalitarian

1:17:11

from the fascists and the Nazis

1:17:13

that we were fighting. So

1:17:16

another case that arises in the context of

1:17:18

the war, but doesn't have much to do

1:17:20

with the war, at least on its face,

1:17:22

is Skinner versus Oklahoma, where the court takes

1:17:24

up the sterilization of

1:17:27

Jack Skinner, a one-footed chicken

1:17:29

thief who has been thrice-conficted

1:17:31

of crimes of, quote,

1:17:33

moral turpitude. This

1:17:35

case really presented the justices with

1:17:37

an opportunity to make a statement

1:17:39

about bodily autonomy, which they do

1:17:41

in this case, but it's not disconnected

1:17:44

from the war itself. So can you

1:17:46

say a little bit about how the

1:17:48

war even managed to infiltrate this question

1:17:50

about whether Oklahoma could sterilize

1:17:52

Jack Skinner for his chicken's

1:17:54

ivory? Absolutely, and I think

1:17:57

the war context was

1:17:59

very important. important in Skinner.

1:18:01

So Oklahoma had passed a

1:18:04

law for the compulsory sterilization

1:18:06

of anybody who was convicted

1:18:08

for three crimes of moral

1:18:10

turpitude. And they interpreted moral

1:18:12

turpitude very broadly to include

1:18:15

everyday crimes like burglary or

1:18:17

chicken thievery. And

1:18:19

so the prisoners who were imminently

1:18:22

going to be sterilized were

1:18:24

challenging this. And it was very much

1:18:26

a part of the context of the

1:18:29

case and how it was perceived publicly

1:18:32

that everybody knew that Hitler

1:18:34

had been engaged in this

1:18:36

massive program of forced sterilization

1:18:39

in the interest of

1:18:41

racial purity and racial

1:18:44

improvement. And the

1:18:46

prisoners and their lawyers said

1:18:49

repeatedly that if the Supreme

1:18:51

Court upholds this law, it

1:18:54

will represent the Hitlerization of

1:18:56

American law. And in the

1:18:59

opinion, Douglas finds

1:19:02

a fundamental liberty

1:19:04

interest in the decision

1:19:06

whether to have a child in reproductive

1:19:09

freedom the first time the court finds

1:19:11

that. And then he finds a violation

1:19:13

of equal protection. It's the first time

1:19:16

the court applies strict scrutiny. And

1:19:19

the reason was because while it

1:19:21

applied broadly to all these crimes,

1:19:23

somehow the Oklahoma legislators hadn't seen

1:19:26

fit to include certain white collar

1:19:28

crimes like, say, political corruption. Three

1:19:31

convictions on that wasn't going to get

1:19:34

you sterilized, or tax fraud, or embezzlement.

1:19:36

And so the court found an equal

1:19:38

protection violation. But it's

1:19:41

very clearly part of the

1:19:43

context of the case, everybody's

1:19:45

awareness of this massive sterilization

1:19:48

program by Hitler and the Nazis.

1:19:50

And in the opinion, Douglas

1:19:52

very pointedly says that we know

1:19:54

that quote, in evil

1:19:57

or reckless hands, compulsory.

1:19:59

and sensory sterilization can lead to

1:20:02

the disappearance of entire

1:20:04

categories of people. And

1:20:06

everybody knew exactly who

1:20:09

and what he was talking about. And

1:20:12

it was widely reported in that

1:20:14

context. So it's a great example,

1:20:16

as you say, of a case

1:20:18

that didn't explicitly relate to the

1:20:20

war. But like Barnett, the

1:20:23

war context was very

1:20:25

important for this very

1:20:27

self-conscious recognition of constitutional rights

1:20:29

as part of our identity

1:20:31

in contrast to our own

1:20:34

limits. And there are

1:20:36

cases that you talk about that we don't really have time

1:20:38

to cover, but involving the kind of

1:20:40

functioning of democracy. I'm thinking of course about

1:20:42

the white primary cases. You talk at length

1:20:44

about a case that the second case, not

1:20:46

the first that young Thurgood Marshall argued involving

1:20:49

Texas is then all white primary, which again

1:20:51

is a case on the advancing

1:20:53

rather than thwarting basic constitutional values like

1:20:56

equality and liberty side of the ledger.

1:20:58

So readers will have to dive in

1:21:00

if they're interested in that, but there's

1:21:02

wonderful storytelling there as well. Wanted

1:21:04

to come back a little bit away from

1:21:06

the docket and back to the justices. And

1:21:09

here to ask a little bit, not about the

1:21:11

justices' relationships with FDR, but with each other, which

1:21:13

is also an important through line in the book.

1:21:15

So can you talk a little bit, we

1:21:17

of course on our podcast are really

1:21:20

interested in both the substantive

1:21:22

coalitions between the justices, about their interpersonal

1:21:24

relationships. We want the tea clip. What

1:21:26

is the tea about the FDR court in

1:21:28

the book? So fill

1:21:31

some of it with us. She's being so decorative.

1:21:33

I'd like to tell us the gossip,

1:21:35

who hated whom? Right,

1:21:38

what Melissa said. This is

1:21:41

a fascinating part of the

1:21:43

court because contrary to expectations,

1:21:46

contrary to the predictions

1:21:49

of the court watchers

1:21:51

and pundits, the

1:21:53

Roosevelt justices did not

1:21:56

march in lockstep. They

1:21:58

did not act in unity. very far

1:22:00

from it. They quickly devolved into two

1:22:03

blocks, one headed by Hugo Black and

1:22:05

one headed by Felix Frankfurter. And you

1:22:07

know, I don't want to overstate it

1:22:09

because I don't think it was as

1:22:11

sort of set in stone as we view

1:22:14

the current conservative supermajority in the

1:22:16

three liberal justices, but it

1:22:18

held in many cases and

1:22:21

very importantly that's how the public

1:22:23

perceived it and that's how the

1:22:25

justices themselves perceived it. Now some

1:22:27

of it was substantive because Hugo

1:22:29

Black with his plain reading

1:22:31

approach to the Constitution and the Bill

1:22:34

of Rights tended to give expansive interpretations

1:22:36

to constitutional rights and Frankfurter scarred by

1:22:38

the pre-1937 experience of federal courts and

1:22:43

the Supreme Court striking down

1:22:45

all kinds of federal and

1:22:47

state laws and regulations tended

1:22:49

to be more averse to

1:22:51

judicial intervention across the board.

1:22:54

But some of it also was

1:22:56

very definitely personal. And we talked

1:22:58

about the large public lives that

1:23:00

the justices had led

1:23:03

and maybe because of that,

1:23:05

each justice felt that he

1:23:08

could and should be leading the

1:23:10

court, none more so than Felix

1:23:12

Frankfurter. You know Frankfurter had devoted his

1:23:14

life to the Supreme Court. He'd written books

1:23:17

and articles about it. He had been

1:23:19

very close to Supreme Court icons like

1:23:21

Oliver Wendell Holmes and Louis Brandeis and

1:23:24

he was convinced that it

1:23:26

was his fate and destiny to

1:23:28

lead the court and that the

1:23:31

other justices would just fall in

1:23:33

line behind him and somehow the

1:23:35

other justices didn't see it that

1:23:37

way and that really bothered Frankfurter

1:23:40

in the diary that he kept

1:23:42

during the war years. He records

1:23:44

every slight and grievance and perceived

1:23:47

insult from Black and Douglas

1:23:49

and Murphy and Rutledge and he

1:23:51

even takes to calling them the

1:23:54

Axis. Now this is at the height of

1:23:56

World War II when we're fighting the Axis

1:23:58

nations of Germany, Italy, and Italy. in Japan.

1:24:00

It's a little as if after 9-11,

1:24:02

you know, one justice started calling another

1:24:05

group of

1:24:11

justices Al Qaeda. But

1:24:14

it was not a one-way street.

1:24:16

There are notes from Douglas to

1:24:19

Murphy in this period where he

1:24:21

refers to Frankfurter as Der Fuhrer

1:24:23

and the little bastard. Wait,

1:24:26

wait, wait. Well, he said Der

1:24:28

Fuhrer when Frankfurrer was right there.

1:24:32

Mist opportunity. Mist

1:24:34

opportunity. Exactly. But,

1:24:37

and, you know, Harlan Fisk-Stone had proved

1:24:40

to be a very weak Chief Justice.

1:24:42

He had strengths as an Associate Justice,

1:24:44

but he was totally unable to bring

1:24:46

the justices together or to, you know,

1:24:49

kind of mitigate their fights. It would

1:24:51

have been a challenge for any Chief

1:24:53

Justice with his personalities,

1:24:56

but Stone was completely

1:24:58

not up to the

1:25:00

task. So it was a very sort

1:25:02

of fractious and feuding group

1:25:05

of justices. Not

1:25:07

like the court we have now, obviously. They

1:25:09

get along very, very well with

1:25:11

their billionaire patrons. Too soon. So

1:25:15

Cliff, you've painted this really amazing

1:25:17

story. There's lots of great tea

1:25:20

here. The book is essential reading.

1:25:22

It's also an important reminder, though,

1:25:24

that despite the court's insistence that

1:25:26

it stands outside of politics, it

1:25:29

has always been part of and

1:25:31

embedded within this larger political

1:25:33

life of the nation. And I

1:25:36

guess having spent so much time deeply

1:25:38

immersed in this period where that was

1:25:40

obvious, what are the

1:25:42

important lessons that we can glean

1:25:44

from the book that are applicable

1:25:46

to our understanding of today's court? You

1:25:49

know, I would say I think there

1:25:51

are lessons both from the best of

1:25:54

courts and from the worst of courts.

1:25:56

They're saying, and from the positive side

1:25:58

of the court's life, There

1:26:02

were many decisions that

1:26:04

really were cornerstones of our

1:26:06

constitutional order for

1:26:09

the next three-quarters of a century. And

1:26:11

they're very much under fire today. And

1:26:13

so just to give a few examples,

1:26:16

we're talking about the Skinner

1:26:18

case. Well, in the Dobbs

1:26:21

decision, the dissenters specifically point

1:26:23

to Skinner as a landmark

1:26:26

opinion that is threatened

1:26:28

by the court's reasoning

1:26:30

and framework in Dobbs. And

1:26:32

the Skinner decision

1:26:35

was very important, not only

1:26:37

in reproductive rights decisions. It

1:26:39

was cited and relied on in Roe

1:26:42

and many other reproductive rights decisions. But

1:26:44

it was cited and relied on in

1:26:47

the interracial marriage decision. It was cited

1:26:49

and relied on in the marriage equality

1:26:51

decision. So it was a very important

1:26:54

sort of fundamental cornerstone

1:26:57

that the current court's approach really

1:26:59

very much threatens. We

1:27:01

talked about Smith versus Albright.

1:27:04

Kate mentioned that the case that

1:27:06

struck down the all-white primary in

1:27:08

Texas and throughout the South, the

1:27:10

all-white Democratic primary, Thurgood Marshall's first

1:27:12

big victory in the case he

1:27:15

argued in the Supreme Court. Well,

1:27:18

that was a very important decision that

1:27:20

launched a trajectory, many historians say, that

1:27:22

resulted in Brown versus Board of Education

1:27:25

10 years later. And

1:27:27

also more generally represents this

1:27:29

very important door-opening approach to

1:27:31

voting rights. And of course,

1:27:33

with Shelby County and a

1:27:35

series of other decisions, we

1:27:37

have a kind of door-closing

1:27:39

approach to voting rights. One

1:27:42

thing we haven't talked about, the issue that

1:27:44

probably united the post-1937 court more than any

1:27:46

other, was deference to

1:27:49

the government and the

1:27:51

political branches in dealing

1:27:53

with novel problems and

1:27:55

complex crises. And they

1:27:57

upheld wartime. and

1:28:01

rationing, and that really dominated the

1:28:03

court's approach and those opinions have

1:28:05

been often cited. And now

1:28:07

with things like the major

1:28:09

question doctrine and a renewed

1:28:12

interest in non-delegation doctrine and

1:28:14

a whole series of others,

1:28:16

it's a very, very different

1:28:18

approach. So these decisions

1:28:20

which, you know, were mainstays

1:28:22

of constitutional order for

1:28:25

decades and I

1:28:27

think, you know, contributed very

1:28:30

positively to our constitutional order

1:28:33

are very much under fire on

1:28:36

the current court. And in my opinion,

1:28:38

to kind of borrow a phrase from

1:28:40

Robert Jackson, they actually should continue

1:28:42

to be guiding stars in our constitutional

1:28:44

constellation. And I also, and in terms

1:28:46

of the worst side of the court,

1:28:48

as they, as we talked about before,

1:28:50

I think we can

1:28:53

learn about the dangers

1:28:55

both of excessive deference when

1:28:57

the executive branch waves the flag

1:29:00

of national security and also the

1:29:02

danger when justices are unwilling to

1:29:04

confront the presidential point of events

1:29:07

or that president's political

1:29:09

backers and network and patrons.

1:29:12

Well, the book is wonderful history and has obvious

1:29:14

and urgent lessons for the present. So Cliff Sloan,

1:29:16

thank you so much for taking the time to

1:29:19

talk to us today. Thank you.

1:29:21

I really appreciate it. The book,

1:29:23

once again, for our listeners by Cliff Sloan is

1:29:25

The Court at War, FDR, His Justices, and The

1:29:27

World They Made. Find it wherever you get your

1:29:29

books. Is there an audiobook, Cliff? There is an

1:29:31

audiobook. There is an audiobook now. Okay, so you

1:29:33

can listen to it or read it. And once

1:29:36

again, great thanks for taking the time. Terrific. Thank

1:29:38

you. Thank

1:29:55

you. Be

1:30:00

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