“The Court at War” Tackles the Supreme Court During WWII

In The Court at War, Georgetown law professor Cliff Sloan digs into the hugely consequential Supreme Court that was mostly appointed by FDR amid World War II. During his long law career, Sloan has argued cases in front of the Supreme Court and was appointed by President Obama as the special envoy tasked with trying to shut down the Guantánamo prison. We talked to him about his latest chapter as an author.

Why did you want to write a book on the Supreme Court during World War II?

I was the special envoy for Guantánamo closure in 2013 and 2014, and I was reading the Supreme Court cases on military detention. I read the infamous Korematsu case [upholding the government’s use of internment camps for Japanese Americans], where there’s a deep stain on the country with these anti-Japanese, very discriminatory decisions, and I realized that at the same time during World War II there were also some of the greatest civil-liberties decisions in our history, like striking down a compulsory flag salute in West Virginia public schools. I became interested in reading about the Supreme Court during World Ward II, and I discovered there’s very little actually written on the subject. The issues of the court are very important, but I also think it’s just a terrific story. You’ve got an incredible cast of very memorable characters in the justices. You’ve got notable lawyers appearing before the Supreme Court in this period, like Wendell Willkie and a young Thurgood Marshall.

Which justice stood out the most to you?

It’s really an ensemble drama, because all of the justices play an important role. But the justice who I think was most interesting is Frank Murphy. He wasn’t popular like Felix Frankfurter or Hugo Black, and he didn’t have the dazzling legal skills of the other justices. But he knew enough to be the most critical and the most skeptical of the government’s shameful anti-­Japanese-discrimination opinions during this time. And, of course, he actually enlisted in the Army in the summer of 1942 while he was a justice.

You’re a law professor, but it’s a very readable book even for lay people.

The issues of the court are very important, but I also think it’s just a terrific story. You’ve got an incredible cast of very memorable characters in the justices. You’ve got notable lawyers appearing before the Supreme Court in this period like Wendell Willkie—who lost to FDR in 1940—and a young Thurgood Marshall, who won his first big victory. 

What do you mean by a Washington story?

It’s understanding all of the different currents in Washington, which include the role of the Supreme Court and the justices as they’re considering the issues in the executive branch, Congress, the press, and also just the atmosphere and dynamic in the city and in the country.  It’s understanding what it was like to be in Washington during WWII, where they—like the other people in DC and in the country at large—were dealing with this bizarre and byzantine world of rationing and shortages and price controls. It’s all of the cross currents of the city in terms of the three branches and their own distinctive dynamics.

You write a lot about how the war court was a really productive force for progressive policy but was also very timid when it came to challenging FDR.

It is really a tale of two courts: It’s both the best of courts and the worst of courts. On the positive side, the court was in very self-conscious contrast to the Nazis and the fascists, the totalitarians, the authoritarians. The court recognized and protected and expanded constitutional rights in areas like reproductive rights, in civil liberties in terms of striking down the compulsory flag salute, voting rights, the broad authority of a government to deal with novel and complex problems. Those decisions created very important principles that dominated for three quarters of a century, and a lot of them are under fire now. I think it’s very important to realize that these principles were forged in drawing a self-conscious contrast with the totalitarian and authoritarians whom we were fighting at the same time.  

With the worst of courts [part], there’s a negative legacy in terms of the shameful anti-Japanese decisions and the way the court handled the Nazi saboteur case [which involved eight men, including two US citizens, who were tried via military tribunal rather than civilian courts; six were later executed]. I think there are two important lessons in the negative legacy. One is the importance of justices being willing to stand up to the president who appointed them and to their political patrons and backers. The difference between cases that protected and recognized constitutional rights and and these catastrophes is that in the former the judges didn’t have to cross FDR, and they didn’t have to cross him on a war issue—which they would have had to do with the anti-Japanese and Nazi saboteur cases. 

Now we live in a time where 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. And so I think it’s a very important lesson about the catastrophes that result when the justices are unwilling to stand up to the president who appointed them, a president they revered. 

The other important lesson is that in those cases, the justices gave excessive deferences to the government’s wildly inflated claims about national security, and that’s a recurring problem. In cases like Korematsu, the government actually had in its possession evidence that belied and undermined its own claims of national security, and they deliberately did not share that with the Supreme Court. So even from the negative side of the court’s legacy, there are very important lessons for us today.

I think of FDR as just the politically progressive New Deal guy. But it sounds like when it comes to the court, the history is more complicated?

Listen, I revere Franklin Roosevelt as a president. I greatly admire and appreciate [a lot of what] he did. But at the same time, it’s important to recognize there are some things that he did as president that were deeply objectionable and troubling. The blatant discrimination against Japanese-American citizens and lawful Japanese non-citizens who were forcibly evicted from their homes and incarcerated in prison camps for years is very, very shameful—a deep stain on the country and on the Supreme Court. 

The other thing about FDR that people don’t realize is that in 1941 he had appointed seven of the justices and elevated an eighth to Chief Justice, so eight of the nine owed their positions to him. And his appointees were extremely close to him—sometimes excessively close. Lines were definitely crossed. I do think it is important to realize that even with this great president, in my view, there’s some very troubling issues about his relationship with the justices that he was very, very close to.  

How does all of that relate to what’s happening with the court today?

I think it’s a reminder that we need to have ethical standards for the justices and they need to abide by them. Most of the issues that came up in the war years were about crossing improper lines of being excessively close to FDR, and were political in nature. The issues that come up today are financial in nature, but it’s a very important illustration and reminder of the fact that we absolutely need clear ethical standards that the justices must abide by.

What are some similarities and differences between the court then and now?

One thing I think is very important and unfortunate is that the current court seems very hostile to some of the important decisions that the war court issued and the constitutional structure that it created—like protecting reproductive rights for the first time when it struck down a compulsory-sterilization law. The war court had a door-opening approach to voting rights, and the current court, in a number of decisions, has had a door-closed approach to voting rights.

The war court established a structure in many areas in self-conscious contrast to our totalitarian enemies that served us well for three-quarters of a century, and now it’s under fire. In my view, that’s very, very troubling.

A version of this article appears in the September 2023 issue of Washingtonian.

Malcolm Ferguson

Editorial Fellow