Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing

Abstract

Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing DOUGLAS E. ABRAMS I. Introduction In 1943, the Supreme Court handed down West Virginia State Board ofEducation v. Barnette) With Justice Robert H. Jackson writing for the six-Justice majority, the Court upheld the First Amendment right ofJehovah’s Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state-imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson’s effort “maybe the mosteloquent majority opinion in the history ofthe Supreme Court.”2 Barnette reached the Court as the nation waged global war, a dire moment in history that Part II of this article describes. For its high drama and the endurance of its doctrine, the case continuesto engage historians and stu­ dents of the Court.3 This article concerns the singulareloquencepinpointedby Judge Posner and others.4 Justice Jackson adroitly balanced two ingredients—reason andpassion—that (as Part III describes) have marked assessments of rhetoric and human experience since ancient times, that guided the nation’s Founders and early Presidents, that have now moved Presi­ dent Obama in both of his memoirs, and that otherwise continue as dual touchstones fre­ quently applied in law and popular culture. Few cases summon the high drama that energized the Court in Barnette during wartime, but (as Part IV describes) focusing on reason and passion throughout the opinion­ writing process remains a usefuljudicial com­ pass today. Justice Jackson’s blend ofthese two ingredients, and his mastery ofthe written lan­ guage, bequeathed a decision whose bedrock JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 31 West Virginia State Board of Education’s resolution requiring all public-school students and teachers to salute the flag and recite the Pledge of Allegiance each day followed quickly after Pearl Harbor was attacked. First Amendment holding, according to Pro­ fessor Charles Alan Wright, “teems with vivid expressions and memorable statements” that still enrich the fabric of the law as statements of core American values.5 II. II. “Among the Darkest Times in Recent Memory” Barnette's record began in early January of 1942, barely a month after Japan attacked the Pacific naval fleet at Pearl Harbor. His­ torian David McCullough recalls these days as “[a]mong the darkest times in recent memory.”6 “Hitler’s armies were nearly to Moscow;... German submarines were sink­ ing our oil tankers off the coasts of Florida and New Jersey, within sight of the beaches, and there was not a thing we could do about it;... halfour navy had been destroyed at Pearl Harbor. We had scarcely any air force. Army recruits were drilling with wooden rifles. And there was no guarantee whatever that the Nazi war machine could be stopped.”7 General James H. Doolittle’s daring bombing raid over Tokyo and other Japanese cities would buoy American morale, but the raid was still a few months away (April 18). So too were the first great American victo­ ries, in the Battle of the Coral Sea (May 48 ) and at Midway Island (June 4-7). Without the reassurance of hindsight available to later generations who know the war’s outcome, Americans in mid-winter 1942 remained res­ olute and committed, yet aware that the nation faced an epic challenge to vanquish the Axis Powers in total war. In the weeks following Pearl Harbor, ap­ peals to patriotism summoning young and old spread quickly from coast to coast. On 32 JOURNAL OF SUPREME COURT HISTORY January 9,1942, the West Virginia State Board ofEducation followed a number of other state and local school boards by passing a resolu­ tion that required all public school students and teachers to salute the flag and recite the Pledge of Allegiance each day.8 The West Virginia resolution allowed no exemptions because, the state board found, “national unity is the basis ofnational security.”9 Noncompliance carried draconian pun­ ishment. Where West Virginia schoolchildren refused to salute or recite in their classrooms, their parents faced imprisonment for violat­ ing compulsory education acts and citation for child neglect, which might cause tem­ porary or...