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In The Court at War, Georgetown Professor Cliff Sloan Offers Deep Dive Into the Making and Impact of FDR’s War Court
October 06, 2023
Professor Cliff Sloan’s newly released book, The Court at War — FDR, His Justices, and the World They Made, paints the “War Court” era of President Franklin Roosevelt as a time of judicial controversy. Roosevelt not only appointed a majority of the U.S. Supreme Court justices, but he also wielded significant influence over them.
Sloan, who currently teaches constitutional law and criminal justice at Georgetown University Law Center, has served as the special envoy for the Guantanamo closure, associate counsel to President Clinton, and assistant to the solicitor general. He has also argued seven cases before the Supreme Court.
The D.C. Bar spoke with Sloan about how debates over the FDR War Court’s partisanship can inform contemporary discussions on Supreme Court ethics and accountability.
The Supreme Court was at the center of several controversies during the FDR administration. How do issues relating to the High Court today reflect the issues raised then?
I think the War Court has tremendous relevance today in at least two areas. The first involves the Supreme Court justices and how they conduct themselves. During the war years, the Roosevelt-appointed justices, to a very surprising degree, were active on political- and policy-related matters.
There are two conspicuous examples. One concerns Justice James Byrnes, who, while he was on the Supreme Court, was actually spending a lot of time working out of the White House [heading the Office of War Mobilization]. FDR gave an order to top officials that any war-related legislation had to go before Byrnes. He was a chief intermediary for the administration, all while he was a seated justice. The other example is that Justice William O. Douglas was a top contender for the vice president slot in 1944, right up until the very last day of the convention in Chicago.
In both of those, and in many other areas, you see the justices involved in many different activities involving policy and policymaking. That raises very profound concerns and problems regarding the conduct of justices in the political arena, and the importance of an ethical code and ethical norms.
The second way that the FDR War Court is relevant today involves the substance of its opinions. In a series of opinions, in which the justices self-consciously contrasted our country with the totalitarian systems we were fighting, the Court recognized, protected, and expanded constitutional rights in ways that are very relevant today — in the areas of reproductive freedom, voting rights, the protection of religious minorities, and the ability of government to address complex problems and novel crises.
In all these areas, the Court issued pathbreaking opinions that would be an important part of our constitutional architecture for three-quarters of a century. It also issued some of the most shameful decisions in our nation’s history with Korematsu and other anti-Japanese decisions. There’s a lesson in those as well.
How did FDR’s relationship with the Court change the status quo? Where was it successful, and where did it fall short?
By the summer of 1941, FDR [had] appointed seven of the nine justices, and elevated an eighth to be chief justice. It was, by far, the biggest impact on the Supreme Court by any president since George Washington. Every justice but one owed his appointment to FDR.
People remember the story of FDR’s failed Court-packing plan, and then the “switch in time that saved nine,” where Justice Owen Roberts changed his vote, and the Court began upholding New Deal programs. But a lot of people don’t realize that, only four years after that, while FDR had failed with his legislation to add seats to the Court, he had packed the Court. Almost the entire Court had resigned, or died, so he had this profound impact.
Many of [those he appointed] were remarkable justices who made terrific contributions to our jurisprudence. Some are very well known, like Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson … some less well known, such as Frank Murphy and Wiley Rutledge.
It’s a very interesting contrast to the current Supreme Court, as regards the backgrounds of the justices. Only one of the justices on the Court during the war years had any federal judicial experience at all, and that was Wiley Rutledge. Almost all of the justices had very prominent public lives and had exercised very significant public responsibility. You had former senators, a former governor, former attorneys general, a former chair of the Securities and Exchange Commission, a leading public intellectual … a very sharp contrast to today’s Court, where almost all of the justices previously served as federal appellate judges.
At the same time, there was one serious problem that arose from the Roosevelt appointees, which wasn’t just the number of justices that he appointed … they all revered him. They adored him, and they worked very closely with him on a wide range of issues. In cases where it would have required crossing FDR, confronting him in some very striking cases, the justices refused to do so.
As a result of their failure, their unwillingness, to confront President Roosevelt, the Court issued some of the worst decisions [like Korematsu] in its history. It shows the dangers and the catastrophes that can result when justices refuse to confront the president that appointed them or their political patrons.
Would a code of ethics have addressed concerns about the Supreme Court in FDR’s time? Will it address ethics issues facing the Court now?
I think that a binding code of ethics, then or now, is not a magic bullet that is going to solve all problems, but whatever the limitations of a code of ethics, it is far worse not to have one. To me, it is common sense that you should have a binding code of ethics … common sense that the political activities by the justices during the war years should have been prohibited.
In addition, there should be a very strong sense of ethical norms. Looking at the War Court, it should be obvious that a justice should not be working out of the White House and acting as an intermediary for the White House on legislation, including legislation that might come before the Supreme Court, the way James Byrnes did. It should be obvious that when a justice, like William O. Douglas, is prominently mentioned as a vice presidential candidate, he should definitively rule himself out as a candidate, or he should leave the Court. It seems to me that those are very basic, practical positions.
It seems to me equally clear that we should have a binding ethics code today. It should cover political activities. It should cover financial activities. It is crucial to respect for the Court and the integrity of the Court. One more point: The War Court justices we’ve been discussing were appointed by a Democratic president. It highlights the fact, in my mind, that this is not a partisan issue. I think it is very unfortunate that the current debate over a code of ethics has become, to some extent, a partisan issue. This should be a bipartisan cause.
What other historical lessons or considerations are relevant to current discussions regarding the Court?
There are a couple of very important historical lessons. The first is that the constitutional principles that were forged … on issues such as recognizing the right to reproductive freedom by striking down a compulsory sterilization law; the importance of a strong view of voting rights and striking down the all-white primary in the South; the importance of government flexibility and authority in dealing with novel problems and complex crises … all of those are, I think, very powerful lessons for us today. These decisions were central in our existential fight for freedom and democracy, and I think that they should continue to be a guiding star for us today.
Second, the importance of the willingness of justices to stand up to the president who appointed them, and their political patrons, is especially significant today, during a time in which votes by justices correlate with the positions of the party of the president who appointed them more than at any other time in history. A decision like Korematsu shows the disaster that can result.