Strict Scrutiny - Who Has Final Authority At The Border?

Episode Date: January 29, 2024

Kate, Melissa, and Leah break down the legal fight in Texas at the U.S.-Mexico border, and the Supreme Court's take on it all. Plus, Melissa and Kate do a deep dive on another outlandish era in the Supreme Court's history with Cliff Sloan, author of The Court At War: FDR, His Justices, & The World They Made. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw. I'm Alyssa Murray. And I'm Leah Littman. The Supreme Court is not hearing oral arguments this week, which means we have the luxury of doing a deep dive on a great recent book about Supreme Court history, Cliff Sloan's The Court

at War, FDR, His Justices, and The World They Made. So that discussion is on tap for this episode. Melissa and I had a great conversation with Cliff about his book. But before that, we wanted to bring you up to speed on some important developments at the court since last week. So we will cover that before turning to our conversation with Cliff. So the court entered a stay on the shadow docket and granted a case for next term. And we wanted to talk about both developments. So first stay on the shadow docket and granted a case for next term. And we wanted to talk about both developments. So first up is the shadow docket stay. On our last episode, we noted that in the oral argument in De Villiers versus Texas,

the new Texas Solicitor General began his opening remarks by proudly announcing that no state in the country values property more than Texas does. And we suggested that even if that were true, there are reasons to think Texas does not value life quite as much, in part because it is endangering women's lives through its abortion restrictions every day. And because as we noted, Texas was also endangering migrants lives through its actions at the border. Those actions at the border are what teed up the latest shadow docket decision in Department of Homeland Security versus Texas. The gist of this case is as follows.

Texas sued the United States. Nothing new there. Texas stays suing the United States. But this lawsuit argued that federal officials trespassed onto chattels, i.e., went onto land and damaged property, and therefore were under Texas tort law. The theory here is that federal immigration officials had damaged some barbed wire and wired fences that Texas had erected at certain places along the border, and specifically along a 29-mile stretch of the Rio Grande River. Now, if you're thinking, wait a second, can a state sue the federal government and federal officials for doing their jobs? Well, listeners, you are not alone in being slightly confused and flummoxed at the entire

theory of this case. And part of the confusion should arise because I have some vague recollection that this was maybe resolved by one of the most foundational cases in American constitutional law, McCulloch v. Maryland, which was about Maryland's efforts to tax the federal bank. In that case, the Supreme Court upheld the principle of federal supremacy. The Supreme Court said that the supremacy clause of the Constitution prevents states from imposing impediments to federal offices and federal officials when those federal offices are constitutional and when federal officials are acting under legal federal authority. In what's probably the most important part of the case, Chief Justice Marshall

said that Congress had the authority to create the national bank. But in another very important holding, Marshall concluded that the state of Maryland could not tax the bank and undermine the bank's functioning. Quote, the power to tax involves the power to destroy McCulloch-Resend, and states don't have the power to destroy involves the power to destroy McCulloch recent and states don't have the power to destroy federal offices and federal officials. So you know, after that, there was a nullification crisis and a civil war, which were also about whether states had the power to undermine federal law in the early 1800s. South Carolina claimed the authority to nullify federal tariffs during the Civil War, Southerners declared that Southern states had the power to nullify or veto federal laws.

These events also were kind of resolved, you know, on the basis of federal supremacy. States cannot actually nullify federal law and the federal government. But as we have suggested many times before, in order to be on the cutting edge of conservative legal thought, it is no longer enough to question the New Deal, or to question Reconstruction. No, no, no, no, no, no, you got to go back to the founding itself, and but actually, Chief Justice John Marshall, McCulloch v. Maryland, and federal supremacy itself. I mean, this really butts up against the whole history and tradition thing, since McCulloch v. Maryland was decided in 1819. And it seems like it has a little originalist flavor, but we're rolling the clock back to pre McCulloch. Why not? Roll it all back. Roll it all back. Right. I'm going to show John Marshall some originalism. What did he know? Right. Yeah. So look, in case it's not obvious from what Melissa and Leah were just saying, the states did not prevail in this existential dispute. The federal government did.

And yet, here we are in early 2024 with the state. That's one account of history, Kate. According to originalism, though, you wonder. You wonder. Yeah. Well, they clearly have a very different account of history. And maybe it is one in which the states were victorious, or at least they should have been. Because in 2024, again, we have Texas basically saying those states resisting, fundamentally resisting federal power.

They were really on to something. And so this is essentially what the Texas position in this dispute boils down to. And in some ways, the most shocking part is that four Supreme Court justices appear to have agreed with Texas here. So let's, before we get to the justices, let's back up a little bit. After the lawsuit in which Texas sued the United States, insisting that it had the power to impose liability on the federal government and impede the federal government from carrying out actions authorized by federal law, the district court correctly refused to enter an injunction prohibiting

the United States from entering onto lands around the border and removing these wired fences that Texas had constructed. The U.S. Court of Appeals for the Fifth Circuit, however, unsurprisingly but horrifyingly, decided to enter the injunction that Texas had sought. This injunction blocked the federal government from doing anything about the barbed wire fences that Texas had erected that blocked federal officials' access to the border. And in doing so, the Fifth Circuit said that federal officials could cut the wired fences in the event of a medical emergency, but that exception was woefully inadequate for the reasons that the federal government explained in its opening brief to the Supreme Court. Quote, while Texas and the Court of Appeals believed a narrow exception permitting agents to cut the wire in the case government explained in its opening brief to the Supreme Court, quote, while Texas and the Court

of Appeals believed a narrow exception permitting agents to cut the wire in the case of extant medical emergencies would leave federal agents free to address life-threatening conditions, they ignored the uncontested evidence that it can take 10 to 30 minutes to cut through Texas's dense layers of razor wire. By the time a medical emergency is apparent, it may be too late to render life-saving aid, end quote. Upshot of all of this is that Texas is really effing bad about addressing emergency situations, and the federal government basically called them on it in this brief. Yeah, this does seem to be a through line in many of the most high-stakes cases that

we have been talking about in the early, late 2023, early 2024. I love that they didn't even mention abortion, though. I mean, it's like, this by itself is bad enough. But when you factor in all the abortion emergencies, like Texas, just really bad about emergencies, figuring out and actually, you know, giving teeth to the concept, they aren't interested. You know, I would be curious to know, we'll get to Texas's theory, more of their theory of the case later on. But I do wonder whether Texas believes that they are at war or under attack because of the persistence of abortion in Texas, like because of the continued existence of medication abortion. Anyways, we're getting ahead of ourselves. I think the answer is yes. Right, obviously.

The United States filed a second supplemental brief with the Supreme Court after the incident at the border we described in our previous episode where several migrants, including children, drowned at the border region that Texas officials had blocked federal officers from entering. This second supplemental brief basically begged the Supreme Court to do something. You know, it argued that, quote, Mexican officials advised CBP that there were migrants in distress and that others had drowned, end quote, and that, you know, CBP had asked Texas officials what was going on and could we enter, and they were then refused entry. So as the United States explained, federal law allows Border Patrol agents to enter onto private lands without a warrant when those lands are within 25 miles of the border. Federal law also allows Border Patrol agents to interrogate and arrest

people entering or attempting to enter the United States. Federal law also deems people physically in the United States who haven't been admitted, applicants for admission to the United States who, again, federal officials can inspect, arrest, and detain. It's also granted federal officers the power and duty to control and guard the boundaries and borders of the United States. And that is what state officials were interfering with. Or you might even say nullifying. Right. So as the federal government's initial... That's a good callback, Kate. Right.

Good callback. So as the federal government's initial opening brief explained, the injunction prohibits agents or federal agents from passing through or moving physical obstacles erected by the state that prevent access to the very border that they, meaning federal officials, are charged with patrolling and the individuals they are charged with apprehending and inspecting. It removes a key form of officer discretion to prevent the development of deadly situations, including by mitigating the serious risks of drowning and death from hypothermia or heat exposure. Almost seems like maybe that's the point. And the Fifth Circuit entered the injunction by

declaring, and this is not a joke, that the federal officers cut through wire, quote, for no apparent purpose other than to allow migrants easier entrance further inland, end quote, stating that a video exhibit in the case showed that the migrants were never interviewed or questioned as to citizenship and that Border Patrol left the migrants to walk as much as a mile or more to a processing center without supervision. You know, this is basically putting the Fox News theory of America and the border into judicial opinions. The United States asked the Supreme Court to vacate the stay on January 2, and it filed a supplemental brief on January 12,

noting that the Texas National Guard was putting up new wire that limited, quote, border patrols ability to view this portion of the border to a narrow sliver from a single surveillance camera located outside of the newly fenced area, end quote. And it then filed a second supplemental brief after the migrants drowned at the border. The Supreme Court finally acted, and by a 5-4 vote, the court stayed the injunction issued by the Fifth Circuit. So it allowed federal officials to enter lands and cut the wire. The vote breakdown was the Democratic appointees with the Chief Justice, and the fifth vote came from Justice Amy Coney Barrett. The four noted dissenters were Thomas, Alito, Gorsuch, and Kavanaugh.

No one explained their votes, so we have no idea why the dissent believes that Texas can block federal immigration officials from doing what federal immigration law clearly says they can do. This is the most recent, I think, and really vivid illustration of the mystifying and wholly inadequate nature of the shadow docket that our friend Steve Vladek has written about in his great book titled The Shadow Docket. But again, just to be clear, the supremacy clause of the Constitution and McCulloch versus Maryland, but most importantly, the actual language of the Constitution, makes federal law the supreme law of the land.

And yet Texas seems to have decided that it can prevent federal officers from doing things they are clearly empowered to do under federal law. It is the most existential kind of challenge to this basic structural feature of our democracy. And not only Texas's conduct is terrifying, but so too, and in some ways more terrifying, is the fact that four Supreme Court justices are cool with this, that they are essentially willing to co-sign Texas's interference in this way with the operations of the federal government. A few thoughts on the case and whatnot. One dynamic to note is the Fifth Circuit's track record in the Supreme Court on immigration. This is now the third consecutive time where the Supreme Court has overturned something the Fifth Circuit did on immigration. Previously, there was United States

versus Texas in 2023 that said states lack standing to challenge DHS's immigration enforcement guidelines. The year before, there was Biden versus Texas where the Supreme Court ruled 5-4 that the Biden administration ending the Migrant Protection Protocol protocol or remain in Mexico program did not violate the INA. That decision was 5-4, although Justice Barrett technically, you know, agreed on the marriage, she just didn't think there was jurisdiction. But these are just examples of how out there the Fifth Circuit is. And it doesn't mean that the Supreme Court is moderate, it is a sign of how outlandish the Fifth Circuit is, and really what is likely to happen with the Supreme Court if there is another Republican administration and more Republican judicial appointments to the court. That's, I think, can we say just hit on that one more beat? I mean, no one's really talking about

this in the mainstream media. But this particular election cycle is one where the court is very definitely on the ballot, maybe even in a more profound way than was the case in 2020. Because if there is a Republican president, Alito and Thomas are going to step down and they're going to be literally replaced by teenagers and or fetuses. And that's the court for the next generation and a half. I mean, and the lower courts too. Yes, the court, we cannot emphasize enough,

frequently enough, loudly enough, that the court is and should be at the front of everyone's mind when thinking about the upcoming presidential election. In terms, though, of the current composition of the court, the thing I thought was most striking, actually, about the vote breakdown, I mean, the most striking thing is that anyone on the Supreme Court believes that Texas was in the right here. But the next most striking thing was that Mr. Executive Power himself, Brett Kavanaugh, at least Mr. Presidential Power, not agencies, obviously, or theiravanaugh, at least Mr. Presidential power, not agencies, obviously, or there are their own thing, at least in democratic administrations,

maybe presidential power is too, but that he was in the dissent here. Of course, again, he didn't tell us why, how he could possibly have justified the vote. And maybe the reason there's no explanation is because they simply could not generate one that was facially plausible. But I thought they're not that surprising, I suppose, that Thomas and Alito and maybe even Gorsuch were where they were. But Kavanaugh, I just, I would like to hear him try to explain himself, and I'm not sure what he would say. We also should note an apparent change in the court's orientation toward federal authority at the border and presidential sovereignty at the border. And this change, weirdly, seems to have occurred after 2020. So from 2016 to 2020, the court seemed to

be quite emphatic in its view that presidents had lots of power and sovereignty over the border. But now it seems they're not so sure. So what changed in that intervening period after 2020? It's really hard to say. But here are some examples of what we mean. From 2016 to 2020, the court allowed the Trump administration to carry out the Remain in Mexico policy after lower courts invalidated it. The court also allowed the Trump administration to implement the travel ban and eventually upheld it. The court allowed the administration to carry out Title 42 expulsions. The court allowed the Trump administration to implement the public charge rule, excluding people at the border on the

ground that they would become public charges. And now the court is saying that states can interfere with federal officials at the border. So this seems completely inconsistent with everything that I just enumerated. The federal government now does not have the authority to empower federal immigration officers to apprehend and inspect people at the border. Super weird. I wonder what happened in 2020. Any ideas? Well, it wasn't because Joe Biden won the presidency. But because Texas is not content with nullifying federal statutes and federal immigration officers function, Texas is apparently flirting with not abiding by the US Supreme Court's decision in this case, even though it's not clear what that would even mean. The Texas Republican Party is fundraising off of that prospect. So they had a tweet that

was basically like, stand with us and encourage Governor Greg Abbott to defy this ruling. And then some federal officials from Texas were encouraging the same. So Representative Roy said on Twitter, this opinion is unconscionable and Texas should ignore it. Representative Higgins also said on Twitter, I think he's from Louisiana, my thoughts are that the feds are staging a civil war and Texas should stand their ground. And Governor Greg Abbott's statement about the case says, quote, the federal government has broken the compact between the United States and the states, and that the failure of the Biden administration to fulfill its duties triggered Article 1, Section 10, Clause 3. Now they read the Constitution?

Well, not really. They don't really read the Constitution, because Abbott claims that the federal government is violating Section 4 of Article 4, which says the United States shall guarantee to every state in this union a Republican form of government and shall protect each of them against invasion. And the idea that what is happening at the border is an invasion is just a way of again, tracking the great replacement theory and Donald Trump's horrible remarks about immigrants poisoning the blood of the nation, a clip that you know, people talked about, you know, when he said it, but well, let's hear it.

They're poisoning the blood of our country. That's what they've done. They poison mental institutions and prisons all over the world, not just in South America, not just the three or four countries that we think about, but all over the world. They're coming into our country from Africa, from Asia, all over the world. They're pouring into our country. Nobody's even looking at them. They just come in. And the Abbott letter says that Texas's ability to nullify federal law comes from Article 1, Section 10, Clause 3, which says no state shall, comma, without the consent of Congress, comma, dot, dot, dot, dot, dot, you know, engage in war unless actually invaded. And, you know, this provision allows states to do things with the consent of Congress, which there isn't. But this is the legal theory. Again, it just sounds like great replacement and i don't know why

they think they are subject to invasion but it's it's a whole thing you should consider this history alongside the history the recent history of sb8 the texas law that nullified roe versus wade and planned parenthood versus casey before the court actually nullified roe versus Wade and Planned Parenthood versus Casey before the court actually nullified Roe versus Wade and Planned Parenthood versus Casey. Also, it's giving a little glimmers of Brown versus Board of Education and the massive resistance that resulted in the wake of Brown. So very on brand for Texas. They've been here before. Yes. Yeah.

So federal supremacy, federal government. We hardly knew ye. Look, we knew the court was coming after effective government and government as we know it this term. I think we had conceived of it more in terms of the kind of horizontal separation of powers, shifting power from the agencies and the executive branch to the judicial branch. I'm not sure we also had on our bingo card completely reallocating authority as between the federal and the state governments, at least if we're talking about red states. But once again, you know, how quickly things are proceeding, I think, as bad as we thought it would be, it's already getting worse. And again, you know, this was 5-4. So Texas loses this skirmish, but only by the narrowest of margins.

And I am not sure sort of what is in the offing. So in other news, the court granted cert in Richard Glossop's case after the court had been sitting on that cert petition for a while. The briefing was completed in July 2023. The case had initially been scheduled for the court's September conference. The court just now granted the case, which means it will likely be heard next term rather than this term. And to refresh your memory, Richard Glossop was convicted of murder and sentenced to death after his execution was scheduled. He unsuccessfully challenged the state's method of execution, that is their execution protocol in Glossop v. Gross.

But Mr. Glossop has also consistently maintained his innocence, and it has subsequently come out that the state's main witness against him and the person who actually killed the murder victim implicated Mr. Glossop in the murder after being fed Mr. Glossop's name and threatened with execution. We previously had one of Mr. Glossop's lawyers, John Mills, on the podcast to discuss Mr. Glossop's case and specifically to discuss the way that Oklahoma, the state that prosecuted him, has actually confessed error in this case. Oklahoma now concedes that it violated its constitutional obligation to turn over evidence of Mr. Glossop's innocence. It didn't turn over evidence that the state's main witness who implicated Mr. Glossop had been seen by a psychiatrist and diagnosed with a condition that rendered him volatile and violent when the witness used meth, which he was abusing at the time of the murder. The state instead allowed the witness to

tell the jury he hadn't seen a psychiatrist. The state also now concedes that the police department intentionally destroyed items of potentially exculpatory evidence, like physical evidence from the crime scene and records relevant to the state's theory of motive. Although the state confessed error, the Oklahoma courts refused to order a new trial. For the Supreme Court, the state filed a brief in support of Sarsha Rari, and noted NYU campus enthusiast Paul Clement is on the brief. That brief argues that the state court's, quote, refusal to accept the state's confession of a serious constitutional

violation is untenable and demands correction, end quote. Neil Gorsuch is recused in the case, so it will be decided by an eight-member court rather than nine. We're going to be anxiously watching this case next term. All right, that's a lot of court culture. And I think the one thing we can glean from all of this is that the Fifth Circuit stays on its hustle. But guess what, folks? So do we. If you would like some AMA and Pod Save America PSA crossover content, join me on Thursday, February 1st in Crooked's Friends of the Pod Discord for a round of Ask Me Anything. Really interested to hear from you all. Or if you're not a member, you can head to crooked.com backslash friends now to sign up. Or catch me on Pod Save America on Wednesday's episode. To listen, make sure to subscribe to the Pod Save America

feed wherever you pod. Coming up next is our interview with Cliff Sloan, who has a fantastic new book out about the FDR court and World War II. So he's up next in conversation with the author of one of the best recent books we have read on the Supreme Court, friend of the show and friend of ours, Cliff Sloan. Cliff, welcome to Strict Scrutiny. Thanks so much. I'm thrilled to be here with you. So yeah, very much looking forward to this conversation. Cliff, we are definitely looking forward to the conversation. But I just want to say thank you for finding time to do this in between your massive, massive resume, which is just exploding. So I'm going to give our readers a little glimpse of what you have been up to. So these days, Cliff is teaching at Georgetown Law School, but he's had an incredible career in law, diplomacy, and media, which includes tours in the Clinton White House and the Justice Department and the Obama State Department and on the Hill and with the Iran-Contra Independent Council. He was also at the Washington Post and was a publisher of Slate.

And he's done a number of important Supreme Court arguments as both a government lawyer and an attorney in private practice. And so in your spare time, you decided to author this terrific new book that Kate just mentioned, The Court at War, FDR, His Justices, and the World They Made. And we are so excited to talk to you about this book, which is great. But I actually first want to plug your previous book, The Great Decision, which is an excellent read about Marbury versus Madison. I probably have it top of mind right now because I am in the middle of teaching Marbury to my 1Ls. But to 1Ls and prospective 1Ls out there, this is a terrific book if you just can't get enough Marbury. But on to The Court at War. So

this is a book that focuses on a pivotal period, which is the period of the Second World War. And I think it is no secret that this was a critically important period in world history and American history. But I do think that less well known is how critically important a period this was for the Supreme Court. So Cliff, let's start by asking how you got interested in writing this particular book. Well, I was working as special envoy for Guantanamo closure in 2013 and 2014. And in the course of doing that, I was reading the Supreme Court's decisions on military detention, including the infamous Korematsu case, which I'm sure we'll talk about. But I also read a decision that was announced a year before Korematsu called Hirabayashi.

And Hirabayashi was the first of these very, very shameful anti-Japanese cases. And the court upheld a criminal curfew targeted against Japanese American citizens. And I noticed that exactly one week before, exactly seven days before Hirabayashi, the Supreme Court had decided West Virginia Board of Education versus Barnett, the famous eloquent opinion by Justice Robert Jackson that struck down at the height of the war a mandatory flag salute in West Virginia public schools on behalf of what was then a reviled and despised religious minority, the Jehovah's Witnesses. And it really struck me that within this span of one week, you had one of the greatest civil

liberties decisions in the history of the Supreme Court, and one of the worst civil liberties decisions in the history of the Supreme Court. So I got interested in reading up on the Supreme Court during World War II. And I discovered that there's very little written on that as a subject. There is a ton written on FDR's battles with the Supreme Court in the 1930s and the failed court packing plan in 1937 and what is perceived to be the switch in time that saved nine, where one justice changed his vote to allow New Deal programs to be the switch in time that saved nine, where one justice changed his vote to allow New Deal programs to be upheld. And then, of course, there's a lot written on the Warren Court beginning in 1953. But there was very, very little written on the Supreme Court during World War II as a subject.

So I started really diving into it. And it turns out to be quite a story because the war dominated everything for the justices. It dominated their personal lives, their activities, and it dominated all of their decisions, including the ones that did not explicitly relate to the war. I like to think of this book as kind of a buddy story, right, Cliff? You're basically telling not just the story of the court, but the story of the court as sidekick to the ultimate buddy, FDR. And I think readers will actually be really surprised by how cozy the relationship was between the president and the justices, especially when viewed through the lens of the modern

relationship between the executive and the court. And I also think they'll be really interested to see how different the career trajectories of the justices were. Like now we're very used to people going to the court from a career on the bench, but FDR's wartime court was sort of singular in the diversity of the experiences that the justices brought to the bench when they became justices. So could you talk a little bit about the coziness of FDR and his court? I mean, literally his court, and then the separate question of how he selected these judges from such a diverse array of experiences and opportunities? Sure, absolutely. So let's start with the coziness. And it was something that the sort of depth of it and extent of it, I really discovered as I got into it, and I had not been aware of it. But let's step back for a second, because as I was saying, people are sort of generally familiar with that

story about the 1930s and the court packing plan and the switch in time to save night. But what is less well understood is that by the summer of 1941, FDR had appointed seven of the nine justices and elevated an eighth to chief justice. This was due to a wave of deaths and resignations. It was by far the biggest impact on the court of any president since George Washington. And as you say, Melissa, it wasn't just the number of justices. They were extraordinarily close to him, sometimes excessively close on nonjudicial policy matters. But FDR really viewed them all as kind of part of his official family, part of his personal family. And they viewed it that way too. They revered him. They admired him. And you talk about their backgrounds, and that's very

important because almost all of them had lived large public lives before going on the court. You had former senators, former governor, former U.S. Attorneys General, former chair of the Securities and Exchange Commission, a former leading public intellectual. There was only one justice, his final appointment, Wiley Rutledge, who had any federal judicial experience at all, and he had been on the D.C. Circuit. It's such a sharp contrast to today's court, where, of course, all except for one, all except for Justice Kagan, had previously been federal appellate judges. And I think that that had profound implications in a number of different ways. But it's really very, very striking.

Can we talk about Justice Frankfurter in particular and the nature of the relationship between Frankfurter and FDR at any particular moment or sort of across the years of the story that you're telling? Absolutely. And, you know, maybe it's helpful to just get out on the table the players during this period, the justices during the war. And they really fall into three groups. And there's one group, the Roosevelt appointees, who are very well known. And so that's Hugo Black, Felix Frankfurt, or William O. Douglas and Robert Jackson.

The second group is the FDR appointees who are not very well known. So that's Stanley Reed, Frank Murphy, James Burns. Now, Jimmy Burns was only on the court for about 14 months because in the fall of 1942, FDR said, come to the White House. You'll be assistant president in charge of the economy. I'll focus on military matters. You'll run the economy. And so Burns left the court to go to the White House. It was one of the shortest tenures of any Supreme Court justice. And he was replaced by Wiley Rutledge, the final justice in this group. And then the third group is the group of justices who were not initially appointed by FDR. So that's Harlan Fisk Stone, who was appointed to the court in 1925 by his Amherst College buddy, Calvin Coolidge. And then FDR elevated him to be chief justice in the summer of 1941.

And it's very well documented that the reason FDR did that primarily had to do with the war, because FDR was single-mindedly concerned with preparing the country for the war, which he thought was inevitable. And there was considerable isolationist sentiment in the country. And so he wanted as bipartisan a government as possible. So he loved the idea of elevating this Republican, elevating this Coolidge appointee. He had done something very similar the previous summer when he had named prominent Republicans to be Secretary of War and Secretary of the Navy. And then the only other justice who did not owe his initial appointment to FDR was Owen Roberts. And he was the only justice on the court who didn't know his position to FDR during the war. And Owen Roberts was the one who was the famous switch in time that saved nine. And he had been appointed by Herbert Hoover in 1930. Okay, so let's talk

about Frankfurter because he was one of the justices who was very, very close to FDR. They had actually first gotten to know each other in Washington during World War I. And then when FDR was governor of New York and Frankfurter was at Harvard Law School, FDR was a constant source of ideas and suggestions for him. And FDR loved it. He really he liked Frankfurter personally. He also really valued his intellect and his suggestions. He one time said that Frankfurter had more ideas per minute than anybody he had ever met. And this continued after FDR became president. And so throughout the 1930s, Frankfurter is very involved with FDR. He would send them these Dear Frank letters, very involved with

their legal strategy. But all of this very much continued after Frankfurter goes on the court in 1939. He's very close with FDR. He has a wide-ranging portfolio of issues in Washington, everything, foreign policy, personnel management. He has his issues in Washington. Everything, foreign policy, personnel management, he has his hands in everything. You know, there's the famous Felix's Happy Hot Dogs. These were his protégés from Harvard Law School who he had strategically placed throughout the government. And he was constantly reaching out to them to hear what was happening, to hear gossip, to give them suggestions, to tell them what to do. And even at the top levels of the Roosevelt administration, he was very, very influential.

He had urged, I mentioned that FDR had named a prominent Republican to be Secretary of War. That was Henry Stimson. And he had been Frankfurter's mentor when he was U.S. attorney for the Southern District. And he had brought on Frankfurter when he was a young assistant. They were very close. He convinced FDR to bring him on as Secretary of War. Frankfurter was constantly in touch with Stimson, constantly meeting with him, constantly giving him his advice about what to do. And so Frankfurter had his hands in absolutely everything.

And he also would send FDR this stream of letters and telegrams that were full of flattery and praise. But it was an extraordinarily close relationship. And again, Frankfurter was involved in every conceivable issue that you can imagine. You know, throughout the war years, Frankfurter kept a diary. And in his diary, he records these wide-ranging policy areas that he was very much involved in. And he loved being in touch with the Roosevelt administration official. Now, one thing we can talk about, divisions emerged among the Roosevelt justices. And in his diary, he's not very happy with a lot of his fellow justices. But he loves being in touch with the Secretary of War, other top people in the War Department, top people in the Justice Department, top people throughout the government. So it's not just Frankfurter who has this cozy relationship. Like FDR really regards the court

in this moment as kind of a bench from which he can draw to fill various positions and needs in Washington. Owen Roberts writes the Pearl Harbor Commission report. You have justices working with Congress to write legislation. I mean, like this stuff is wild. I mean, by today's expectations, how did this happen? I mean, that's generally my question. We're like, there are no ethics probes, like the sort of separation of powers doesn't seem to exist. How did it come to be that the court just becomes a kind of farm team for FDR's administration?

Well, a couple of things about that. You know, from FDR's perspective, these were his people. And he he was very Trumpian. He did not he did not think of any kind of separation. These were his friends and allies. And this came after the period, of course, when he was battling the Supreme Court and denouncing it and calling it the horse and buggy court. And now he had gotten these people who had been in the trenches with them. You know, some of them had been his attorney general playing prominent roles in his administration. Frank Murphy had been attorney general. He also had been governor of Michigan and mayor of Detroit. Robert Jackson had been his attorney general and solicitor general. He also had been governor of Michigan and mayor of Detroit. Robert Jackson had been his attorney general and solicitor general. Frankfurter went back a long way. Black and Burns had been close allies with him in the Senate. And, you know, FDR's mindset was that,

first with the New Deal, and then, of course, with the war, he was just going to use people in a way that he thought would contribute to this fundamental effort. And the justices were very willing. I mean, Harlan Fisk Stone, at one point, was a bit reluctant. He turned down FDR's request that he had a committee on the production of rubber. But he's about the only one who does that. And just to kind of highlight your point, Melissa, you mentioned Owen Roberts was appointed by FDR to head a Pearl Harbor Commission report right after Pearl Harbor. The other commissioners are all high-ranking generals and admirals. Roberts takes a leave from the court with the commissioners to go to Hawaii for a couple months, prepares this

big report, sits with FDR for hours privately, one-on-one, then gives him the report and they release it. Throughout 1941, when there is, as we talked about, this considerable isolationist sentiment in the country, almost all of the justices are out on the hustings giving speeches saying, we have to support FDR. We have to support this war effort. And sometimes it was explicitly coordinated with the White House. And even when it wasn't, everybody knew this was the biggest issue for FDR. It was the biggest public policy issue in the country, one in which there was a lot

of division. But one example where it was explicitly coordinated, Frank Murphy was the only Catholic on the court. And so FDR and the White House have him go and talk to the Knights of Columbus and urge very strong support for FDR. And even though FDR was now embracing the Soviet Union, which after having been invaded was on England's side, and there was concern in the Catholic Church and other religious communities about this anti-religious Soviet Union. And Murphy is saying the biggest threat is Hitler. We all need to welcome anybody, including the Soviet Union, to this. And FDR lets him know afterwards that he was tickled to death by his speech.

And there are other assignments that FDR gives to the justices, informal assignments. He sends Hugo Black to his native state of Alabama, to Birmingham, to look into the state of war-related industries there and report back to him on the readiness. He has Frank Murphy do that in Detroit, where, again, Murphy had been mayor and governor. And Murphy does it in a very public way. And he goes on national radio and to millions of people, he reports on his findings. And he said, and Detroit was very important because it was making jeeps and tanks and other war related machinery. And he says, we're not doing enough business. You need to do more labor. You need to be doing more business and labor. You need to come together. But, you know, in terms of your point, Melissa, about, you know, how did this happen and everything, one of the

things that's really kind of remarkable about this is that a lot of this was reported at the time, and there's almost nobody's raising an eyebrow. You know, every now and then there might be an editorial that says, you know, oh, this is a little too much, the, you know, FDR family. But, you know, when Frank Murphy gives a big speech on what we need to do in military matters, the Washington Post does a full page quoting his speech. And one of the other really remarkable examples of this had to do with Jimmy Burns. You know, as I mentioned, he left the court in the fall of 1942. But while he was still a sitting justice, after Pearl Harbor, FDR put him in charge of war-related legislation for the White House.

He told his attorney general and others in the cabinet, any war-related legislation has to go through Jimmy Burns. He was frequently working out of the White House, huddled with FDR and his aides, and again, in charge of this war-related legislation, a lot of which was very important. And of course, all of it could have come before the Supreme Court. Of course, it was constitutionality and executive actions as well. I'm just sitting here trying to imagine Joe Biden like tapping Justice Katonji Brown Jackson to oversee some commission on how to do student debt relief in a way that will survive another round. I mean, can you imagine? It is such a different world of relationships.

No, it absolutely is. And there even, you know, it's a newspaper article at the time that I saw that just sort of in passing says Justice Burns is the key intermediary between the White House and Congress on this. And of course, he was a former senator, knew them all very well. Hugo Black is a justice. Claude Pepper from Florida, who was in Congress, went to see Hugo Black while he's a justice to say, how should we shape this War Powers Act? And he has a long session with Hugo Black about it. What would be good for you in a War Powers Act? What would you like to see? Exactly. I mean, it does feel like the exigency of war was part of this. The context was really important. But also, these were individuals who were sort of used to acting

politically and playing on relationships in a way that the current court as constituted, just they don't have that experience, like with the exception of Justice Kagan, maybe. Well, and Kavanaugh and Roberts. I mean, these guys were political in their ways. They were not elected officials. Right. That's right. Like public facing. Right. No, no, absolutely. I mean, look, I think there can be a very positive part aspect to who had had experience in Congress, for example, would think much of the major questions doctrine, just for starters, you know. But so, you know,

I think there is something that is missing when we have this kind of homogenous experience, for the most part, that we have now. But it absolutely was true that it was one of the things that was contributing to their comfort and ease in the political world. So it was all just very brazen. I mean, I'll tell you one other anecdote about another justice that I think really kind of highlights this point. So Stanley Reed, one of the lesser known justices, and he had been Solicitor General, FDR's second appointment after Hugo Black. And so one thing I found at the FDR library, kind of buried in the files, was that Reed, before his first full term in 1938, in October of 1938, he sends FDR a memo. And he says, I'd like to come over and meet with you so that I can better understand your objectives for me on the court.

And FDR sort of scrawls on it to his secretary, have him in for lunch next week. And it's on FDR's schedule that they meet privately one on one for an hour. And undoubtedly, they talked. and this is before the war. So yes, the war was important, but this was 1938. And he's seeking guidance on FDR's objectives for him on the court. And then bookending that, shortly, right after FDR dies, Reed has a conversation with Frankfurter, that Frankfurter records in a memo where Reid says to Frankfurter, now that FDR has died, Reid says he will feel more free to vote his conscience because while FDR was alive, he was always thinking about what would help the president. So it's really kind of amazing.

But, you know, from a historical perspective and again, it is so shocking to our eyes and ears, I'll say a couple of things. You do find kind of one-off relationships like this historically. I think one of the things that was unique about this experience with FDR was the extent of it and how pervasive it was. And part of that had to do with what was sort of the fortuity of the fact that he had these seven appointments and these seven justices who he was all very close to. And the other thing I'll say is that there's at least one historian who thinks that the event that really kind of changed public perceptions on this was Abe Fortas in the 1960s with LBJ, because there was a lot of controversy about the fact that Fortas continued to advise Johnson on policy matters while he was on the Supreme Court. And also there were financial issues that came up. But that does seem to be sort of a watershed on some of these issues. But if I could also say one thing that relates to current times and the whole question of an ethics code, because I think this really highlights the

need for a strong and binding ethics code and also for very strong public norms on the ethics of Supreme Court justices. And, you know, one of the things that I think is very unfortunate is that the current debate has become one that has a partisan cast because it's appointees of Republican presidents and it's, you know, financial issues. But here you have appointees of a Democratic president, a president who I greatly admire. But and I think a lot of the things that they're doing are improper. And I just think it highlights the fact that the case for a very strong binding ethics code should be a bipartisan issue. It should be a nonpartisan issue. I'm so glad we have this really great ethics code now and all of the justices are just really on top of this.

So check, check. We're done. All taken care of. Would have clearly prevented all of the shenanigans that you just walked through, Cliff. No question. All of that would clearly be prohibited. You just gave us so many wonderful anecdotes. There's also a bunch of events around FDR's selection of his 1944 running mate. So not only are the sitting justices actively advising and serving in various capacities formally or informally with the White House and the executive branch, some of them are vying to actually become the vice president. Just briefly, Cliff, and then we'll turn to the cases.

Tell us about the sort of machinations around FDR's selection of his 1944 running mate. Sure, absolutely. And it's quite a tangled political story, but it's very important in terms of understanding the relationship between FDR and the justices. So in 1944, FDR, as he was preparing to run for his fourth term, had decided to dump his vice president, Henry Wallace, who had been there for his third term. And Wallace was viewed as eccentric and erratic and unreliable and a political liability. So the question was, who would be FDR's running mate? And FDR initially very much favored Douglas. Now, you know, FDR and Douglas were very close. Douglas

had had a meteoric rise when FDR appointed him to the court in 1939. He was only 40 years old. He had already been one of the first chairs of the Securities and Exchange Commission. He was part of FDR's poker circle. And FDR really enjoyed Douglas's company. He said there were two things he really liked about Douglas. He told great stories. And also, and this was very important to FDR, Douglas made the best martinis of anybody in Washington. But when it came time to think of his running mate, he liked and favored Douglas as his running mate. He thought Douglas would have great political appeal. His modest upbringing in the Pacific Northwest, the way he carried himself in public, his image as an outdoorsman. FDR was actually even a little infatuated with Douglas. He talked about how Douglas's hair blew in the wind. And so he told his political aides that he wanted Douglas

as his vice president. And they were very skeptical. Douglas had never run for office. And the head of the Democratic National Committee was from Missouri and was very close to Harry Truman. And so ultimately, FDR nominally said he was going to leave it up to the convention. And there were lots of other candidates also in the public eye and who FDR would like to keep everybody off balance, was giving encouraging signs to, including former Justice Jimmy Burns and actually even incumbent Vice President Henry Wallace. He said he would let the convention decide. But the week of the convention, he releases a letter and he says he would be very happy

to run with either Harry Truman or William O. Douglas as his running mate. Those are the only two names on the letter. And right up until the last day of the convention and the vote at the convention, Douglass was viewed as a leading candidate to be vice president and in some accounts, the leading candidate. Now, Douglass himself was not at the convention in Chicago. And judicial restraint. I like that. He's keeping a little distance from it. But he had a team there that was working around the clock for him and frantically trying to get him the vice presidential nomination all while he's sitting justice. So it's kind of a remarkable story.

But just one other point about these justices. You're talking about Douglas vying to be vice president while he's a sitting justice. But a number of the justices, several of them, sent communications to FDR during the war when it first broke out and after that. If you want me to do anything else, you know, I'm happy to help you in the war effort, leave the court. Frank Murphy wanted to be secretary of war. He was trying to, he was angling to do that. Douglas and Jackson, it made clear to FDR, they would leave the court in a heartbeat, if he thought they could have kind of major efforts in the war.

So they were all looking at their court seats, almost as stepping stones to other positions. It's very clear that the war looms large in the nature of the relationships between the justices and the president. But it also, of course, shapes the substantive content that the court produces during this period. And, you know, there are a number of cases that our listeners will be familiar with that you canvas in the book, but there are some that may be unfamiliar. And one that may be especially interesting is the case of Ex Parte Queren, which you may have read in federal courts or whatnot. It's a case about military tribunals.

But when you actually hear the backstory of this case, it's absolutely fascinating. I mean, this is like genuinely fifth column stuff and Nazi saboteurs washing up on the shores of Ponte Vedra, Florida and Amagansett, New York. I mean, so can you say a little bit about Ex parte Queren and then the turmoil that it threw the court into because FDR very much expected a particular outcome? Right, absolutely. And so just, you know, to put this in the overall context of the war court, it's really a tale of two courts, the best of courts, the worst of courts. I was mentioning the sort of paradox that I came across with Hirabayashi and Barnett. And on the best of court side of things, they're protecting and

recognizing constitutional rights and civil liberties in contrast to the totalitarians and the authoritarians that were fighting. But on the worst of court side, we've got ex parte Quirin and then we've got the anti-Japanese cases. So what happened with ex parte Quirin was that, as you say, there were two teams of Nazi saboteurs, four members in each team that landed on Long Island and in Florida. And they were sent here to blow up buildings and commit other kinds of sabotage while they were here. Now, they were very quickly captured. And the reason that they were very quickly captured is that one of the leaders of them, almost immediately after they landed, decided he wanted to blow the whistle on the whole thing. And so he tries to reach out to the U.S. government. And so he is calling the FBI. He's calling the War Department. They're all treating it as crank calls. They keep hanging up on him. And finally, he gets through to somebody at the FBI who's interested and sends a cab for him because he had come to D.C. trying to reach somebody in government. And he talks for days and tells them everything. And then they very quickly capture all of them. Now, none of that was known for many years. What happened is J. Edgar Hoover announces

the capture of these eight Nazi spies, and it's viewed as this tremendous triumph for the FBI. Somehow they infiltrated the ring and cracked the case and that kind of thing. But in any case, as you can imagine, it was a public uproar when it was revealed and FDR was very, very much personally interested. And he immediately told his attorney general, Francis Biddle, that he wanted them promptly tried and hung. And FDR was a history buff. And so he was pointing to examples in history of this. And he didn't want it to get bogged down in the trial. And so very quickly, FDR and the attorney general and secretary of war set up a special military commission so that they can be very promptly tried and executed.

And they'll have far fewer rights in the military commission, including, you know, jury trial, including much more relaxed evidentiary rules. And it's going to go very, very quickly. And so the lawyer for the saboteurs wants to get Supreme Court review because this is a speeding train and they're about to be convicted or executed. So he actually goes to see Owen Roberts to try to get a stay. Roberts is interested. And the Francis Biddle for the U.S. government, they also want a very quick resolution because they want this speeding train to go forward and to get the prompt convictions and executions. So the court immediately has a special summer session. And the justices, of course, are scattered around the country. And they all come back at the end of July. So the justices hear two days of oral argument, and then the next day they issue a very brief

order that basically says we reject the objections. They don't give any reasoning. They say reasoning to come later. The decision will take effect forthwith, immediately, and again, opinion to follow. And within one week, all of the accused saboteurs were convicted and six of them were executed. Two of them, their sentences were commuted to labor. And by the way, when I was talking about that conference before they went out for oral argument, Roberts also reported to the other justices that he had heard from Francis Biddle, the attorney general, that FDR had told Biddle he didn't care how the Supreme Court ruled. He wasn't going to turn over the saboteurs under any circumstances, and he was going to make sure they were executed no matter what. And none of the justices say anything. And then Harlan Fitzstone says,

well, that would be a dreadful thing. So they knew how important this was to FDR. And so, again, within a week, they're all convicted. Six of them are executed. But now the justices had a problem because they had to come up with the reasoning to justify what they had done. And now they basically fell apart because they couldn't agree on the reasons. And they knew this was a terrible situation because six people had already been executed based on their decision, and they couldn't figure out why. And so they have these long disputes and back and forth and eventually kind of, you know, bloodied and bruised. They come together in a unanimous opinion three months later. But almost since the day it's been issued, it's been subject to withering criticism for sort of gaping holes in the analysis and,

you know, very serious problems. And a number of the justices themselves, including Frankfurter and Douglas, later said this was the wrong way to do business, to issue the decision and allow them to be executed and then try to figure out the reasons afterwards. But the bottom line is that there was this, you know, very sort of shoddy shortcut that was taken short circuiting the system to do something that FDR very much wanted, which was a prompt conviction and execution of the saboteurs. Yeah, it's a macabre and disturbing sequence of events. And we'll stay with like the clear and explicit war tied cases for another couple of minutes. And I think you say this in the book, and it comes through all the cases, whether or not they're

explicitly about military power and war, are very influenced by the wartime backdrop. But you have alluded a couple of times now to the cases involving the internment of Japanese Americans, Hirabayashi, and then Korematsu, and Endo. Korematsu is the one that people are probably most familiar with. Maybe if you want to say a brief word about Hirabayashi, which sort of got you on the path to writing this book, and then maybe we could just briefly talk about both the internal executive branch dynamics around Korematsu and the dynamics in conference, because it is an interesting fact about Korematsu that despite these loyalists that we have been talking about and their desire to provide this powerful president with what he wants, Korematsu is not a unanimous decision.

And it's actually even less unanimous when they're first in conference than the ultimate 6-3 vote that emerges in the case. So will you just tell us a little bit about the path to Korematsu and then what's happening inside the executive branch and inside the justices' deliberations as they are considering this question of whether the Constitution permits the forcible relocation and internment of Japanese Americans? Sure. Pirabayashi and Korematsu, of course, this very deep stain on the court and on the history, broadly permitting the persecution of American citizens for no reason other than the country their parents came from, and including non-citizens

who were lawfully resident. But, you know, in Hirabayashi, there was this criminal curfew. So FDR had issued an executive order in February 1942 that just gave the military broad authority to do whatever they thought necessary. And what had happened on the West Coast for a few weeks after Pearl Harbor, things were relatively calm and sane. And then a hysteria took hold and a wide range of politicians on the West Coast, Democrats and Republicans, and including the loose comments that Owen Roberts and his other commissioners had included in their report. That was one in California did not like the competition. Japanese Americans and Japanese non-citizens had been very successful in agriculture, and they were very explicit. We want them out. We don't want them back. They're taking our farms and that kind of thing. But so the first step, and there was a very racist commander on the West Coast, John DeWitt, who actually

personally had relationships with both Black and Douglas. And DeWitt, the first step was this criminal curfew applicable only to Japanese American citizens. And then came the expulsion from their homes, and the accompanying incarceration. And so Hirabayashi, in another case, established the lawfulness and the constitutionality in the court's view of the curfew. Now, Frank Murphy had reservations about it, and he initially was going to write a dissent. But then there was a lot of pressure on him. Oh, we should be unanimous on this. And so he ended up writing a concurrence that expressed a lot of concerns and was sort of saying this and no further. And so then Korematsu comes up the following year, and it's really about the forced expulsion.

Korematsu was also challenging the accompanying incarceration because they went hand in hand. And as you say, Kate, in Owen Roberts, who had written the report. And Murphy writes a very, very strong dissent that we have fallen into the ugly abyss of racism. Now, Douglass at first was dissenting, but he ultimately worked with Black to get some language, and he ultimately joined the majority so that it was a six to three opinion. And, you know, there's a remarkable tone and quality to Black's opinion where he just sort of shrugs and says, well, war is a series of hardships, you know, when you're talking about this sort of, you know, blatant racism that's going on. And I will just say on this, on the justices, that there were some who in both on the Supreme Court and in the government who later

expressed regret over their roles. Douglass did. Black, literally until his dying day, was very defensive. It was the right thing to do. You didn't know who was loyal. You didn't know who was not loyal. Now the executive branch. And there's a particularly pernicious role that the executive branch plays here. They're vigorously defending the policy. But both with Hirabayashi and Korematsu, the Justice Department and the War Department were aware of evidence that specifically contradicted, specifically belied the national security justification that they were giving to the court. And they deliberately decided not to submit it to the court. Now, none of this gets the court off the hook, because even on the record as it went to the court, the opinions were an abomination. And of course, Korematsu is up there with Dred Scott and Plessy v. Ferguson is among the worst decisions ever. But it adds another dimension when you realize that the

government deliberately withheld evidence. In my mind, there are at least two very important lessons from the anti-Japanese cases, as well as the Quirin case, which is one, the danger of excessive deference when the government waves the flag of national security, because in both cases, there were wildly inflated claims of national security. The government withholding evidence really highlights that. And the second is that when you look at the difference between the cases that upheld constitutional rights on the one hand, like in the flag salute case, and these cases on the other, the difference is that in cases where they were upholding constitutional rights, they didn't have to cross FDR and they

didn't have to cross them on a war issue. And to my mind, it illustrates the judicial catastrophe, the disaster that results when justices are unwilling to confront the president who appointed them or that president's political backers or patrons. And I think that's an especially important lesson today, when the votes of the justices correlate with the preferences of the political party of the president who appointed them more than at any time in our history. You raise a really interesting point just about the war context leading to this sort of unparalleled deference to the executive and the justices, not only because of their cozy relationships with FDR, but just not knowing what's around the corner and maybe assuming that the executive has a better sense of what

is going to happen or what is a threat and what isn't, making these decisions about national security that are perhaps more conservative and less protective of civil liberties than we would like. But then there are these other civil liberties cases, and this is sort of the good court that you imagine, where the court is being especially protective of civil liberties, especially for minority religious sects. And so there are a couple of cases involving the Jehovah's Witnesses, and they're not divorced from the war context, because the Witnesses are famously pacifists, but militaristic in their pacifism. Like, they do not like the war effort, and they are opposed to it. And yet, they find themselves in a more traditional society where their views are out of step with And yet, they find themselves in a more traditional society where

their views are out of step with the majority, and they often find themselves as litigants because of it. So there's one case, Gobitis versus Minersville School District, where the court upholds a compulsory flag pledging, the Pledge of Allegiance. And then the court reverses very shortly thereafter, that decision in West Virginia Virginia Board of Education versus Barnett. Barnett is decided in 1943. In 1944, there's another case involving the witnesses called Prince versus Commonwealth of Massachusetts involving parental rights and child welfare, where the court upholds the state's prerogative to legislate in ways that limit parental authority. And the parent in question happens to be a Jehovah's Witness who wants her child to be able to sell the watchtower during the evening in violation of the state law. So it seems like there are a lot of competing threads here.

Like the war is overshadowing everything. The antipathy for the witnesses is definitely part of it. And Frank Murphy raises this at various points in his separate writings here. How do you reconcile the Gobitis shift to Barnett and then the resulting, I guess, antipathy for the witnesses that shows up in Prince versus Commonwealth of Massachusetts? And can I throw one more thing in, which is that I did not know about the post-Gabitis spate of violence against Jehovah's Witnesses that is unleashed in the latter half of 1940. So could you also talk a little bit about that in telling this story?

Sure, absolutely. And, you know, literally in a period of about six or seven years, there are about two dozen cases involving Jehovah's Witnesses in the court because it's, you know, there are all these civil liberties issues that come up. But let's, you know, talking about Gobitis and Barnett to begin with, because those are both flag salute cases. And in 1940, the court says eight to one, yes, you can force them to salute the flag. And they were saying it was against their religion to be forced to do that in public schools. And Kate, as you were just saying, that unleashes this terrible violence

against Jehovah's Witnesses. It's a very, very important demonstration of the Supreme Court's signaling function when it decides cases, because that really emboldened people who are hostile to Jehovah's Witnesses to go after them. And there's all sorts of sadistic beatings of them and other kinds of demonstrations. And famously, there's a reporter asks a policeman why he's not stopping. And he says, you know, ain't you heard? The Supreme Court says we can run these Jehovah's Witnesses off. So it just shows you that signaling function of the Supreme Court. But by 1943,

a number of things have happened. You know, when the court decided in 1940, it was at the very dark moment when France was falling. And the clerks at the court called it Felix's fall of France opinion. And but by 1943, first of all, there had been changes in personnel on the court and some people like Jackson and Rutledge who had been critical of gobitus now were on the court and Black and Douglas and Murphy who all had joined the opinion in gobitus now were convinced that it was wrong and it was partly in reaction to all the violence but also it's now the middle of the war and the way Jackson saw it was and and this relates to some of the other cases on the good side of the court also, is that we are in an existential fight for our identity as a constitutional democracy.

And when you read Barnett, the war is very much a part of what Jackson is talking about. He says very explicitly, this is what makes us different from, quote, our totalitarian enemies. They compel unity of thought and belief. We don't do that in this country. That's a fixed star in our constitutional constellation. And he even points out that the flag salute, which had the children standing with their hands raised and their palms out to the flag, bore a very close resemblance to the Nazi salute. And so in Burnett, it was drawing this very, very sharp contrast with, as he said, our totalitarian enemies. And then, you know, Melissa, more generally with the witnesses, the court tended to be

sort of split on some cases about the general applicability of certain kinds of laws, and they tended to be closely divided. And in fact, in a lot of other Jehovah's Witnesses cases, Jackson tended to sort of favor the government imposing its generally applicable laws. But when it came to what he thought was compelling thought and belief by making them salute the flag, as opposed to, you know, applying sort of leafleting restrictions or other things like that, he viewed that as a fundamental contrast with the totalitarians and the fascists and the Nazis that we were fighting. So another case that arises in the context of the war, but doesn't have much to do with the war, at least on its face, is Skinner versus Oklahoma, where the court takes up the sterilization of Jack

Skinner, a one-footed chicken thief who has been thrice convicted of crimes of, quote, moral turpitude. This case really presented the justices with an opportunity to make a statement about bodily autonomy, which they do in this case, but it's not disconnected from the war itself. So can you say a little bit about how the war even managed to infiltrate this question about whether Oklahoma could sterilize Jack Skinner for his chicken thievery? Absolutely. And I think the war context was very important in Skinner. So Oklahoma had passed a law for the compulsory sterilization of anybody who was convicted for three crimes of moral turpitude. And they interpreted moral turpitude very broadly

to include everyday crimes like burglary or chicken thievery. And so the prisoners who were imminently going to be sterilized were challenging this. And it was very much a part of the context of the case and how it was perceived publicly, that everybody knew that Hitler had been engaged in this massive program of forced sterilization in the interest of racial purity and racial improvement. And the prisoners and their lawyers said repeatedly that if the Supreme Court upholds this law, it will represent the Hitlerization of American law. And in the opinion, Douglas finds a fundamental liberty interest in the decision whether to have a child in reproductive freedom, first time the court finds that. And then he finds a violation of equal protection. It's the first time the court finds that. And then he finds a violation of

equal protection. It's the first time the court applies strict scrutiny. And the reason was because while it applied broadly to all these crimes, somehow the Oklahoma legislators hadn't seen fit to include certain white collar crimes, like say political corruption, you know, three convictions on that wasn't going to get you sterilized or tax fraud or embezzlement. And so the court found an equal protection violation. But it's very clearly part of the context of the case. Everybody's awareness of this massive sterilization program by Hitler and the Nazis. And in the opinion, Douglas very poignantly says that we know that, quote, in evil or reckless hands, compulsory sterilization can lead to the disappearance of entire categories of people. And everybody knew exactly who and what he was

talking about. And it was widely reported in that context. So it's a great example, as you say, of a case that didn't explicitly relate to the war. But like Barnett, the war context was very important for this very self-conscious recognition of constitutional rights as part of our identity in contrast to our enemies. And there are cases that you talk about that we don't really have time to cover, but involving the kind of functioning of democracy. I'm thinking, of course, about the white primary cases. You talk at length about a case that the second case, not the first, that young Thurgood Marshall argued involving Texas's then all-white primary, which, again, is a case on the advancing rather than

thwarting basic constitutional values like equality and liberty side of the ledger. So readers will have to dive in if they're interested in that, but there's wonderful storytelling there as well. I wanted to come back a little bit away from the docket and back to the justices, and here to ask a little bit not about the justices' relationships with FDR, but with each other, which is also an important through line in the book. So can you talk a little bit, we, of course, on our podcast are really interested in both, you know, the substantive coalitions between the justices, but their interpersonal relationships. We want the tea, Cliff. What is the tea about the FDR court? In the book. So spill some of it with us. She's being so decorous. I'd be like, tell us the gossip. Who hated whom? Right. What Melissa said. This is a fascinating part of the court because

contrary to expectations, contrary to the predictions of the court watchers and pundits. The Roosevelt justices did not march in lockstep. They did not act in unison, very far from it. They quickly devolved into two blocks, one headed by Hugo Black and one headed by Felix Frankfurter. And, you know, I don't want to overstate it because I don't think it was as sort of set in stone as we view the current conservative supermajority and the three liberal justices. But it held in many cases. And very importantly, that's how the public perceived it. And that's how the justices themselves perceived it. Now, some of it was substantive because Hugo Black, with his plain reading approach to

the Constitution and the Bill of Rights, tended to give expansive interpretations to constitutional rights. And Frankfurter, scarred by the pre-1937 experience of federal courts and the Supreme Court striking down all kinds of federal and state laws and regulations, tended to be more averse to judicial intervention across the board. But some of it also was very definitely personal. And we talked about the large public lives that the justices had led. And maybe because of that, each justice felt that he could and should be leading the court. None more so than Felix Frankfurter. You know, Frankfurter had devoted his life to the Supreme Court. He'd written books and articles about it. He had

been very close to Supreme Court icons like Oliver Wendell Holmes and Louis Brandeis. And he was convinced that it was his fate and destiny to lead the court and that the other justices would just fall in line behind him. And somehow the other justices didn't see it that way. And that really bothered Frankfurter in the diary that he kept during the war years. He records every slight and grievance and perceived insult from Black and Douglas and Murphy and Rutledge. And he even takes to calling them the Axis. Now, this is at the height of World War II when we're fighting the Axis nations of Germany, Italy, and Japan. It's a little as if- A little overstated. A little overstated.

Well, it's a bit as if after 9-11, one justice started calling another group of justices Al-Qaeda. But it was not a one-way street. There are notes from Douglass to Murphy in this period where he refers to Frankfurter as Der Fuhrer and the little bastard. Wait, wait, wait. Well, he said Der Fuhrer when Frank Fuhrer was right there. Missed opportunity. Missed opportunity. Missed opportunity. Exactly. But and, you know, Harlan Fisk Stone had proved to be a very weak chief justice.

He had strengths as an associate justice, but he was totally unable to bring the justices together or to, you know, kind of mitigate their fights. It would have been a challenge for any chief justice with these personalities, but Stone was completely not up to the task. So it was a very sort of fractious and feuding group of justices. Not like the court we have now.

Obviously, they get along very, very well with their billionaire patrons. Too soon. So, Cliff, you've painted this really amazing story. There's lots of great tea here. The book is essential reading. It's also an important reminder, though, that despite the court's insistence that it stands outside of politics, it has always been part of and embedded within this larger political life of the nation. And I guess having spent so much time deeply immersed in this period where that was obvious, what are the important lessons that we can glean from the book that are applicable to our understanding of today's court? You know, I would say I think there are lessons both from the best of courts and from the worst of courts. And from the positive side of the court's legacy, there were many decisions that really were cornerstones of our constitutional order for the next three quarters of a century.

And they're very much under fire today. And so just to give a few examples, we were talking about the Skinner case. Well, in the Dobbs decision, the dissenters specifically point to Skinner as a landmark opinion that is threatened by the court's reasoning and framework in Dobbs. And the Skinner decision was very important, not only in reproductive rights decisions, it was cited and relied on in Roe and many other reproductive rights decisions, but it was cited and relied on in the interracial marriage decision. It was cited and relied on in the marriage equality decision. So it's a very important sort of fundamental cornerstone that the current court's approach really very much

threatens. We talked about Smith versus Allwright. Kate mentioned it, the case that struck down the all-white primary in Texas and throughout the South, the all-white Democratic primary, Thurgood Marshall's first big victory in the case he argued in the Supreme Court. Well, that was a very important decision that launched a trajectory, many historians say, that resulted in Brown v. Board of Education 10 years later, and also more generally represents this very important door-opening approach to voting rights. And of course, with Shelby County and a series of other decisions, we have a kind of door-closing approach to voting rights. One thing we haven't talked about, the issue that probably united the

post-1937 court more than any other, was deference to the government and the political branches in dealing with novel problems and complex crises. And they upheld wartime price controls and rationing, and that really dominated the court's approach, and those opinions have been often cited. And now, with things like the major question doctrine and a renewed interest in non-delegation doctrine and a whole series of others, it's a very, very different approach. So these decisions, which were mainstays of the constitutional order for decades, and I think contributed very positively to our constitutional order, are very much under fire on the current court. And in my opinion, to kind of borrow a phrase from Robert Jackson, they actually should continue to be guiding stars in our constitutional constellation. And in terms of the worst side of

the court, as we talked about before, I think we can learn about the dangers both of excessive deference when the executive branch waves the flag of national security, and also the danger when justices are unwilling to confront the president who appointed them or that president's political backers and network and patrons. Well, the book is wonderful history and has obvious and urgent lessons for the present. So Cliff Sloan, thank you so much for taking the time to talk to us today. Thank you. I really appreciate it. The book, once again, for our listeners by Cliff Sloan is The Court at War, FDR, His Justices,

and The World They Made. Find it wherever you get your books. Is there an audio book, Cliff? There is an audio book. There is an audio book now. Okay, so you can listen to it or read it. And once again, great. Thanks for taking the time. Terrific. Thank you.