The Court at War, and the War at the Court

Abstract

The Court at War, and the War at the Court Melvin I. Urofsky OliverWendell Holmes, Jr., once commented about the alleged calmness oflife on the Supreme Court: “We are very quiet there, but it is the quiet of a storm centre.”1 Had Holmes been on the Court during World War II, he might well have reconsidered his well-known aphorism. There was indeed a great storm blowing not only out­ side the Court but around the world in the form of the most destructive war ever fought in hu­ man history. Such turmoil could hardly leave the Supreme Court unscathed, and the Court af­ fected and was in turn affected by that great storm. Moreover, the Court could hardly be consid­ ered a calm refuge as personal feuds and jealou­ sies poisoned the well ofcollegiality. Ifthe storm that blew within these walls lacked violence and bloodshed, it nonetheless made the Court a sort of battleground. Thus the title of this article, “The Court at War, and the War at the Court.” I The day after Pearl Harbor Felix Frankfurter told his law clerk, Philip Elman, “Everything has changed and I am going to war.”2 It was a sentiment the otherJustices shared; some wanted to resign from the Court in order to provide greater service to their country. Robert H. Jack­ son later recalled that while there were “occa­ sional cases of importance involving the war power,” such cases were “peaks of interest in a rather dreary sea of briefs and arguments, many of which seemed to have little relationship to the realities of what was going on about us.”3 In the end, however, only James F. Byrnes, Jr., stepped down to assume a key role in the Roosevelt ad­ ministration. Byrnes felt isolated from the great events happening around him. The Court’s slow and deliberative pace frustrated him, and he de­ clared that “I don’t think I can stand the abstrac­ tions ofjurisprudence at a time like this.” When Roosevelt intimated that he needed Byrnes off the Bench, the South Carolinian jumped at the chance. William O. Douglas, Frank Murphy, and Robert H. Jackson also yearned to go back to the executive branch, but Roosevelt, although sorely tempted at times to take them, had gone through too much effortto get them on the Court.4 Furthermore, if any wartime measures actually came before the judiciary, the President wanted to have men in sympathy with his programs hear­ ing those cases. This did not, of course, mean that the Court and the Justices played no role in wartime af­ fairs. Sometimes the Court received a specific war-related request from the administration, such as one to change the rules of admiralty to allow 2 THE COURT AT WAR admiralty courts to impound documents that might be of aid to the enemy and to conduct hear­ ings in secret.5 The Court also had to decide critical issues that affected both the conduct of the war as well as domestic matters. The old Latin phrase—inter arma silent leges—during war law is silent, does not really apply to this war. While the Court has been criticized for its decisions in the Japanese-American relocation cases, in many areas the Court continued devel­ opments in the protection of civil rights and civil liberties begun earlier, and in the accompanying articles that record is examined. The Court is, of course, both an institution as well as a collection of individuals, and the men who sat on this Bench at that time wanted to do all they could to assist their nation in a time of travail. Even before Pearl Harbor, Dou­ glas, Murphy, Jackson, and Frankfurter helped out in many ways, from drafting speeches and legislation to suggesting names for key roles. When the President had to replace the isolation­ ist Harry Woodring as Secretary ofWar in 1940, it had been Frankfurter who arranged matters to bring Henry L. Stimson back to the War De­ partment. Frankfurter also helped draft the Lend-Lease Act, made key recommendations on industrial policy, and would later advise the ad­ ministration on its plans to try the captured Nazi saboteurs.6 Frank...