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- [00:01]
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- [00:32]
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- [02:05]
Caroline Cornett
I'm Caroline Cornett in Turnout Lawfare with an episode from the Lawfare archive for June 15, 2025. Earlier this month, two district courts issued contradictory rulings on President Donald Trump's invocation of the Alien en Act. A judge in the Western District of Texas found that the proclamation is illegal as it stretches the meaning of invasion in the act beyond its plain meaning, while a judge in the Central District of California found that the President has virtually unlimited authority to invoke the Act. For today's Archive episode, I selected an episode from December 26, 2023, in which Clifford Sloan joined Jack Goldsmith to Discuss the Supreme Court's decisions during World War II and the court's relationship with President Roosevelt. They talked about notable opinions, such as Korematsu versus United States, in which the government cited the Alien Enemies act, ex parti Querine, the Nazi Saboteur Military Commission case, and more.
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Jack Goldsmith
I'm Jack Goldsmith and this is The Lawfare Podcast. December 26, 2023. The Supreme Court during World War II issued some of the most notorious opinions in its history, including the Japanese exclusion case, Korematsu vs United States, and the Nazi Saboteur Military Commission Case Ex Parte Kieran. For a fresh take on these and related cases and a broader perspective on the Supreme Court during World War II. I sat down with Cliff Sloan, a professor at Georgetown Law center and a former special envoy for Guantanamo closure, to discuss his new book, which is called the Court at fdr, His Justices and the World They Made. Sloan and I discussed how the Court's decisions during World War II were informed by the very close personal bonds of affection that most of the Justices had with President Roosevelt and by the Justice's intimate attachment to and involvement with the war effort. We also discussed the fascinating internal deliberations in Korematsu Kiran and other momentous cases, and the puzzle of why the same court that issued these decisions also during the same period, issued famous rights expanding decisions in the areas of reproductive freedom, voting rights, and freedom of speech. It's the Lawfare podcast, December 26, the court at War.
- [04:38]
Cliff Sloan
Cliff, your book is called the Court at War. It's about the Supreme Court during World War II. World War II began for the United States on December 7, 1941. I suppose we declared war a few days later, and then FDR died on April 12, 1945. So the book is really about a three and a half year period in the Supreme Court at the kind of height of World War II. Who were the main Justices? It was quite an array of characters. Who were the main Justices? What was their relationship to fdr?
- [05:11]
Guest Speaker
So there's a very important point that this time period that you're talking about is also the time period of the pure Roosevelt Court. Everybody's sort of generally familiar with FDR's battles with the court in the 1930s and the failed Court packing plan and things. The switch in time that saved nine, where one justice was perceived to change his position, and then the Court upheld New Deal legislation and regulations. 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, Harlan Fiskestone, to be chief justice. There was only one justice on the Court, Owen Roberts, who didn't owe his position to fdr. And it was by far the biggest impact on the Supreme Court of any President since George Washington. And as you mentioned, Jack, it wasn't just the number of Justices which was overwhelming, but almost all of them had very, very close relationships with FDR personally. So just to kind of get the players out on the table, they kind of fall into three groups. And the first is the Roosevelt appointees, who are very well known. Hugo Black, Felix Frankfurter, William O. Douglas and Robert Jackson. And the second is the group of FDR appointees who are not very well known. So that's Stanley Reed, Frank Murphy, James Byrnes. Now, Jimmy Burns had been a senator from South Carolina. He was a close legislative ally of FDR. He was appointed in the summer of 1941, but he only served on the court until the fall of 1942. Because in the fall of 1942, FDR said, come to the White House, you'll be the assistant president, you'll be overseeing the wartime economy while I focus on military matters. And so then Burns was replaced by the last FDR appointee, Wiley Rutledge. And then there were two justices who were not initially appointed by fdr, Harlan Fisk Stone, who was appointed to the court in 1925 by his Amherst College buddy Calvin Coolidge and then elevated to Chief justice by FDR in the summer of 1941. And that was very much related to the war. And we can talk about that. And finally, Owen Roberts, the only one who didn't owe his position to him. But you know, with just about every one of the FDR appointees, you could go through it and you could go through each one and talk about their very, very close relationship with fdr. And I'll just highlight two, including while they were on the Supreme Court. And you know, one of them, I was just mentioning Jimmy Burns. And while he was on the Supreme Court, while he was a sitting justice, he had a remarkable relationship with fdr. Right after Pearl Harbor, FDR called Burns to the White House and he made clear to his administration that Jimmy Burns was sitting justice at the time, was in charge of all war related legislation for the administration. He told his Cabinet that any war related legislation had to go through Burns. Burns was frequently working out of the White House with FDR and his aides. In fact, there was one day when he was supposed to announce an important opinion and he couldn't because he was huddled with FDR and his aides and FDR made it clear he was, quote, a key intermediary between the administration and Congress on all the war related legislation. And there was a lot of it and it was very important and all of it could have come before the court. And so they had this very, very close relationship during the period Burns was on the court and then afterwards when Burns was actually working in the White House. But I'll just give you one other example, and that's William O. Douglas. Now, FDR and Douglas were personally very close. Douglas had had this meteoric rise he was appointed to the court in 1939 by FDR when he was only 40 years old. He had already served as one of the first chairs of the securities and Exchange Commission appointed by FDR. He was part of FDR's poker circle and he would regularly see FDR. FDR said there were two things he greatly enjoyed about Douglas. The first was that he told great stories. And the second, and this was very important to fdr, was that he made the best martinis of anybody in Washington. But in 1944, when it came time for FDR to run for his fourth term, he decided to to sack his Vice President, Henry Wallace. And the question became who was going to be his running mate. And FDR initially very much favored Douglas for the Vice Presidency. He thought that Douglass's humble upbringing in the Pacific Northwest would be very appealing. He loved the way Douglass carried himself in public. He was even he was a bit infatuated with Douglass. He talked about how Douglas's hair blew in the wind. And so FDR told his political appointees he wanted Douglas on the ticket with him. And his political appointees were skeptical. FDR had never run for office and the chair of the Democratic National Committee was from Missouri and was very close to Truman. So they were pushing Truman. And FDR nominally left it up to the convention. But the week of the convention, FDR released a letter publicly saying he'd be very happy to run with either Harry Truman or William O. Douglas. They were the only two names on the letter. And again, Douglas is a sitting justice during this period and he didn't go to the convention in Chicago. But a group of people who were very close to him was working around the clock trying to get him the nomination. And right up until the final day of voting, Douglas was widely perceived and discussed in the press as a leading candidate for the Vice Presidency and in some reports as the leading candidate to be Vice President. And so these are just examples of the kinds of close personal relationships and also the kinds of non judicial policy and political activities that the Justices were involved in supporting FDR during this period.
- [11:44]
Cliff Sloan
I want to come back later and talk about Douglas almost being the vice president in 1944. And that's a great example obviously of how close Roosevelt was to the Justices. I just want to mention two more, but let me just say in general, and I'm just summarizing what you said, what's remarkable about the Roosevelt court during this period is he nominated seven of the nine and it wasn't. Again, I'm just summarizing what you said, it wasn't just any seven. These were people who were extremely close to him. You just mentioned two, but Felix Frankfurter, another one was he was extremely close to. And he sought his advice and they talked all the time. Robert Jackson was his Attorney General and Solicitor General and they were extremely close. So it was really not just the numbers, but these were men who were close to Roosevelt and who revered him. They really revered Roosevelt, is that right?
- [12:36]
Guest Speaker
Oh, absolutely. And you know, in addition to that, among the lesser known ones, you know, Stanley Reed had been his Solicitor General at the height of FDR's battles with the Supreme Court in the 1930s. And they had a close relationship. And Frank Murphy, who had been, you know, mayor of Detroit and governor of Michigan, and he had also been Attorney General, he was Jackson's predecessor. And they all, you know, prided themselves on this very close relationship that they had with fdr. And FDR regarded them really as part of his official family and part of his sort of extended personal family in Washington.
- [13:15]
Cliff Sloan
Part of your claim is that these close relationships in some sense, maybe corrupted is too strong a word, but influence the justices in some important wartime decisions to go with the President. And we'll come to that. But I want to give a couple more pieces of background before we get to that. One is, you also make clear, and this is something else I hadn't realized, I didn't realize how close, I guess I knew to some degree, but not the extent to which you paint it, how close these men were to Roosevelt and how much they revered him. Also the really extraordinary extent to which they were aggressively involved in the war cause. Can you give us some examples of that?
- [13:57]
Guest Speaker
Sure. So in, in 1941, even before Pearl harbor, when of course, there was a great deal of isolationist sentiment in the country, and FDR was very committed to trying to get the country as prepared for war as possible, which he thought was. In that it. That war was inevitable. And he was pushing preparedness as much as he could with this significant isolationist sentiment. But almost all of the justices were actually out on the hustings, giving speeches, strongly supporting FDR's preparedness program. This was probably without a doubt the biggest, most contentious political issue and policy issue in the country. And they were very explicitly supporting FDR's program. And sometimes it was coordinated with the White House. And even when it wasn't, they knew it was very much in support of him on his most important priority. And, you know, one example of one that was coordinated with them was that Frank Murphy was The only Catholic on the court. And he went to the Knights of Columbus to give a kind of strong speech supporting FDR and also supporting, now that the Nazis had invaded the Soviet Union and the Soviet Union was fighting Germany, supporting aid to the Soviet Union, which was very controversial within the Catholic Church because of the Soviet Union's stance toward religion. And, you know, this was coordinated with the White House. And after Murphy gave his kind of rousing speech in support of fdr, FDR let him know that he was, quote, tickled to death by his speech. But justice after justice was out there giving speeches on it. And all of this kind of continued during the war, strongly supporting FDR's war effort. Just, you know, a few examples of some justices appearing at rallies. There was an I Am An American rally in Central park, and the featured speaker was Hugo Black, along with Joe Louis, the boxer who was then a private in the Army. Jimmy Burns, while he was still on the court, addressed a packed stadium in Spartanburg, South Carolina. And he said that anybody who's criticizing the administration is giving aid and comfort to the enemy and should stop right away. And he also said he was confident of victory because we have God and Russia and time on our side. And FDR would give the justices informal missions. He secretly sent Hugo Black to Birmingham in Black's home state of Alabama to explore the state of war related industries. He very publicly sent Frank Murphy, who as I mentioned had been mayor of Detroit and governor of Michigan, to Detroit to similarly inspect the war effort in terms of industry and labor. And so Murphy very publicly does this investigation goes to all these industries. And of course, Detroit was very important as the arsenal of democracy, making tanks and jeeps and other armaments. And then Murphy delivers a national radio address reporting on his findings and saying we have to do more industry and labor both have to step up and do more to support the war effort. And Murphy actually, in fact enlisted in the military during the course of World War II. In the summer of 1942, during the court summer recess, he secured an appointment as a lieutenant colonel in the army. And he was at these military bases in the South. And he. There were newsreels in movie theaters that showed Murphy behind tanks, behind weapons. I have a picture of him behind the weapon in the. In the book and doing all these military maneuvers during the day and then at night in the military barracks reviewing cert petitions and other Supreme Court documents. And at the same time, on some occasions, FDR gave them formal assignments. I mean, one example of a formal assignment was that shortly after Pearl harbor. He appointed Owen Roberts to head a commission to investigate what went wrong at Pearl Harbor. And so Roberts took a two month leave from the Court. All the other members of the commission were very high ranking generals and admirals. They went to Hawaii for two months. They did all sorts of interviews, reviewing documents, held public hearings. And then Roberts came back to Washington, met one on one with FDR for several hours, and also gave him a written report by the Commission, which FDR then released publicly. And then Roberts had a whole series of kind of public appearances discussing the Commission report. So this kind of deep involvement in supporting FDR on the war effort off of the bench was very, very extensive.
- [19:00]
Cliff Sloan
There's one more story that I thought was extraordinary, and that was Churchill gave a speech in December of 1941. And just tell the story about the victory sign, because that was really emblematic of the Court's role in seeing themselves as central to the war effort.
- [19:19]
Guest Speaker
Yes, absolutely. On December 26, 1941, Winston Churchill addressed a joint session of Congress. He had come to DC when earlier that week, in a surprise, dramatic visit, he was staying at the White House. And so he addresses this joint session of Congress. And the Justices are all in the front row. And Churchill gives this rousing, eloquent Churchillian speech. And he pauses and he looks out at the crowd and he gives his famous V for Victory sign with the two fingers raised. And in the front row, very prominently, Chief Justice Harlan Fisk Stone lifts his fingers in a V for Victory sign in response. And that exchange between the Prime Minister and the Chief justice was prominently reported in newspapers throughout the country. And the meaning of it was very clear. The Court was in the fight. And if I might, Jack, there's one other anecdote from around that time that I think also highlights that, that very important point, and this was the day after Pearl Harbor. And this was told to me by a gentleman who just turned 100. And at the time, he was, his job was as a library aide in the supreme court. He was 18 years old. And so December 8, 1941, he shows up at the Supreme Court for his job, and he's doing what a library aide does, dropping off books, picking up books. And suddenly, through the front door of the Supreme Court, he sees this group of heavily armed US Soldiers with their weapons drawn come rushing into the Supreme Court. And they take up positions at the windows and at the doors and on the roof. And the reason was because later that day at noon, FDR was going to be addressing a joint session of Congress. This is his famous Day of infamy speech and again, the Justices attended. They actually adjourned court early so that they could be there. They're all in the front row. But the reason for the soldiers was that this was part of an expanded security perimeter around the Capitol, right across the street from the Supreme Court. This was only one day after this devastating surprise attack. But again, what you see quite vividly and quite literally is the war invading the quiet precincts of the Supreme Court.
- [21:45]
Cliff Sloan
Let me ask you about this because this background informs the criticisms you're going to make of the court of basically caving to serve FDR's interests in a whole bunch of important cases that are today seen as disreputable. But why were the Justices doing this? Is there a case to be made that this war was different from any other war except perhaps the Civil War? We were engaged in total war. It was, the whole country had been mobilized, the threat was very serious. And I mean, the Justices were not acting normally. I don't believe they acted this way in World War I. They didn't act this way in the Civil War either. So they perceived themselves, as you just said, as they were involved in the war effort. But is that, are they to be criticized for that? Is that to have been expected given the stakes and given the context? Were they doing that because they were close to Roosevelt or would they. They have done that in any event, if any president asked them to do so? I'm trying to set the context and understand the context for some of their later decisions.
- [22:51]
Guest Speaker
Right. And by the way, one point I just want to make clear and you know, we'll probably talk about this more, but you know, there's a duality to the court in World War II and, and it all relates to the war. It's really a tale of two courts. It's the best of courts and the worst of courts. And as I say, both sides of it relate to the, to the war. But on the worst of courts side, where they, you know, capitulated to FDR and refused to confront them. I mean, I think there were a couple things going on. So first of all, absolutely, like every American, they were completely, you know, immersed in the war, in support for the war, felt this very personal stake. You know, five of the Justices had sons serving in the military. A sixth had a son in law in the military. As I mentioned, Frank Murphy went them all one better and actually served in the military. The Frankfurters didn't have any children, but during a significant part of the war, they had three English children staying with them. And the reason they were there was because an English lawyer who had been a protege of Frankfurter at Harvard Law School, he and his wife sent the children to stay with the Frankfurters because they were concerned about the bombing that was going on in London and throughout England. And the Frankfurters delighted in the children, and they took them to see fdr, who also sort of reveled in their antics. And in addition, in their daily lives, they were subject to the bizarre byzantine world of rationing and shortages and price controls and civil defense of all Americans and had, you know, many sort of distinctive experiences with regard to that. So absolutely, like every American during the war, they were very much kind of caught up in the war effort. But I do think there is this additional important dimension to it, which is that they had these singularly close relationships with fda. And of course, and that is distinctive. And you know, of course the Supreme Court tends to be very deferential to administrations in the midst of war and on national security issues. But in some ways, I think this actually is a kind of cautionary tale about the danger, the catastrophe that can result, you know, when you look at cases like the incarceration of the Japanese American citizens, but the disaster and catastrophe that can result when Justices are unwilling to confront the President who appointed them a president that they revere or that President's supporters or backers or political networks. So there absolutely was a lot connected with the war itself, but it was also very much intertwined with their extremely close relationships with fdr. I mean, let me give you one example that I think is really striking. You know, Stanley Reed, again, one of the lesser known Justices who've been FDR Solicitor General. A couple weeks before his first full term on the court in 1938, he sends FDR a letter saying he would like to come over and meet with him so he could better understand FDR's objectives for him while he's on the Supreme Court. And, you know, FDR scribbles on the letter to his secretary, have him in for lunch, and it's on FDR's schedule that they have a 90 minute lunch about a week later. There's no record of what they talked about, but here was Reid specifically asking for guidance from FDR on his objectives for him on the Supreme Court and bookending that after FDR dies in April 1945, there's a memo, Frankfurter writes a memo to the file about a conversation that he has with Reid where Reid says that, well, now that FDR has died, he will feel freer to vote his conscience because he was always concerned about how their decisions would affect FDR because he admired them so much. And you know, Frankfurter, in his memo to the file kind of archly says, well, and he told Reid that he never thought of FDR when he was making a decision and if he did, he didn't let it affect him. And you know, I think it's very telling that even on that point, Frankfurter felt the need to argue in the alternative. And of course, Frankfurter, throughout the war years and before, was sending FDR a constant stream of policy recommendations on every conceivable area and had his proteges, his happy hot dogs, strategically placed throughout the administration and was involved in the entire portfolio of issues before the administration. So I do think that is an important and a distinctive element of it as well. Jack.
- [27:55]
Cliff Sloan
Okay, let's get to the cases. And you draw a distinction, and you alluded to this earlier, between the courts in this three and a half year period, they issued some very important progressive civil liberties decisions that were kind of intermixed in these anti civil liberties decisions related to the war powers of the President and the civil liberties decisions. They weren't directly anyway related to the war powers of the President. And you draw a contrast between these. Can you just quickly review some of the highlights of the important civil liberties decision in this period as a contrast?
- [28:31]
Guest Speaker
Sure, absolutely. So, you know, I'll mention three that I think really kind of illustrate this point. So one of them was Skinner versus Oklahoma in 1942, when there's an opinion by Douglas striking down a compulsory sterilization law from Oklahoma, forced sterilization for habitual criminals. And in that opinion where Douglas and the court find a fundamental liberty interest in, in the decision whether to have a child or not. It's the first time the Supreme Court does that and then strikes it down on equal protection grounds. But the war is very much an important context of that because everybody was very aware that Hitler had been engaged in this program of forced sterilization throughout the 1930s and into the 1940s in the interest of racial purity and racial supremacy. And, and in fact, the prisoners who were challenging the sterilization and their lawyers said very publicly and repeatedly that if the court upheld this forced sterilization law, it would represent the Hitlerization of American law. And in the opinion, Douglas very pointedly says that we know that, quote, in evil or reckless hands, forced sterilization can lead to the disappearance of, of entire categories of people. And everybody knew exactly what and who he was talking about. The following year in 1943, the Supreme Court decides the very famous case of West Virginia Board of Education versus Barnett. The very eloquent opinion by Justice Robert Jackson striking down at the height of the war, this mandatory flag salute that had been adopted in a wave of patriotic fervor after Pearl Harbor. And they did it on behalf of what was then a reviled and despised religious minority, the Jehovah's Witnesses. But again, the war was very important because in Jackson's opinion, he says, this is what makes us different from what he says, quote, our totalitarian enemies. They try to compel uniformity of belief in our country. Under our constitutional democracy, no government official can tell you what you have to think or believe. And Jackson even points out that the mandatory flag salute, which had the children standing with their hands raised to the flag, it was very, very similar to the Nazi salute. And at the time the decision was announced and while the case was pending, it was very much seen in this context of the contrast with the Nazis. And then again in 1944, the next year, in Smith vs Allwright, the Supreme Court, in an opinion by Stanley Reed, strikes down the all white Democratic primary in Texas and throughout the South. And again, it's very much a part of the context of the case and how it's discussed and how it's understood that we are fighting a regime premised on racial supremacy. And this was at a time when there was great civil rights fermented and turmoil in the country. The African American community had adopted what it called the Double V Campaign, victory over fascism abroad and racism at home. And Smith vs. Allwright actually was Thurgood Marshall's first big victory in a case that he argued in the Supreme Court. But again, with regard to all of these, the Court is recognizing and protecting and expanding constitutional rights and civil liberties and, and directly doing it as part of the identity of our constitutional democracy compared to the fascists, the totalitarians, the Nazis that were fighting. So even though those cases don't explicitly relate to the war itself, the war is very much a part of it.
- [32:22]
Cliff Sloan
Why wasn't that same sentiment driving the Justices in the three Japanese discrimination cases, Hirabayashi, Endo and Korematsu, and these cases were in some instances just weeks apart. And it seems obvious that, you know, if the we're not like them logic was driving some cases, why wasn't it driving other cases?
- [32:49]
Guest Speaker
Because the difference between cases like Skinner and Barnett and Smith vs. Allwright on the one hand and the anti Japanese cases on the other, is that in the cases where they protected and recognized constitutional rights and liberties. They didn't have to cross FDR and they didn't have to cross them on a war issue. And of course that was fundamental in the anti Japanese cases that it flowed from an executive order that FDR personally had issued. His administration was vigorously defending it, saying it was necessary for the, for the war effort. And so that's really the critical difference in my view between the decisions that are the best of court and the decisions that are the worst of courts.
- [33:39]
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- [37:33]
Cliff Sloan
So let's talk a little bit about the Japanese cases. One of the things that your book reminded me of is that it's still Roosevelt's role and attitude in all of this is still kind of inscrutable to me. It didn't seem like a big deal to me. It didn't seem like it was a big deal to him. He didn't seem that he wrung his hands over it very much and it didn't seem like he was particularly engaged in it. Many of his subordinates, especially in the Justice Department, were. But for Roosevelt, the decision to issue the executive order seemed he just didn't seem terribly bothered by it. Is that correct?
- [38:10]
Guest Speaker
Yes, that is correct. And you know, he issued the executive order and allowed the policy to go forward, really for two reasons. One, there was a push from the War Department that this was necessary for the war effort on the West Coast. This, you know, persecution and incarceration of Japanese American citizens and lawful resident Japanese non citizens. And you know, it was really driven by, there was a very racist general and the on the west coast, but there were also people at the top tier of the War Department who were pushing it very aggressively and saying.
- [38:55]
Cliff Sloan
Is that duet.
- [38:57]
Guest Speaker
Yes. General DeWitt. Yes, exactly. Who by the way, knew Black and Douglas personally. But in any case, General DeWitt was pushing this very aggressively. But then there are people in the War Department, I mean, you know, John J. McCloy, you know, who had renown as the chairman of the, of the board of the American establishment in the post war world, really played a kind of shameful role in this. And he was one of the top officials in the War Department. And then they got the Secretary of War, Stimson, behind it, even though he initially had doubts about it. So, so one very important element is that the War Department was pushing it. There were young lawyers at the Justice Department who were very much against it. And the Attorney General, Francis Biddle, was against it, but sort of tepidly because he didn't want to get on the wrong side of FDR and the War Department. And so while he advised against it as a policy matter, crucially, he never said that it would pose legal issues or be unconstitutional. And he deliberately refrained from doing that. And he basically didn't want to stick his neck out that far. So on the one hand you've got this push in the administration from the War Department, and on the other hand, it had become a real political problem for FDR because, you know, after an initial sort of, you know, quiet and kind of sane and rational period in on the west coast, this had become a very hot political potato. And the all of the political figures from the west from both parties were very much pushing for a very harsh anti Japanese position, including the Attorney General of California who was then running for Governor, Earl Warren, the great liberal Chief Justice Warren embraced it. Warren's opponent in the gubernatorial election, the incumbent governor, embraced it. But the congressional delegation from California was being very vehement that the administration had to take action. Now. You know, interestingly, one thing I didn't realize, there also were some economic interests. The sort of California growers and farmers were very resentful of the success that the Japanese farmers had had in California. And they were very explicit that that was part of their motivation. We want them out. They've been taking all our land and they've been taking our business. We can run those farms and we don't want them ever to come back. But in any case, it had become a tremendous kind of political controversy. And, you know, FDR's view, unfortunately, because obviously this persecution of American, of American citizens for no reason other than the country their parents came from, is it a deep stain on the country and on the Supreme Court? But, you know, I think FDR's view, and some of the people who dealt with him during this period expressed this later, was, look, I've got a war to win over in Europe and in the Pacific. And if, you know, the military is telling me they want to do this, this is a huge political problem. So I'm just going to let it go forward. I don't want there to be some politically disruptive issue now. And I also don't want to overrule the War Department. And in fact, in 1944, when a number of top officials in the government were telling fdr, we no longer need to have this, he said, I don't want to do anything till after the election because he did not want to risk it becoming a political issue in the election. So he deliberately delayed kind of phasing out the incarceration camps, the internment camps, until after the election. So there was that, that political dimension to it for FDR as well.
- [42:53]
Cliff Sloan
So one of the other amazing, really, there are so many connections between the Court and the war effort and indeed, in stirring up anti Japanese sentiment was Owen Roberts. As you alluded to earlier, Justice Roberts was the person who wrote the report about what happened at Pearl Harbor. And there were sentences in his report that suggested that there were Japanese Americans in Hawaii who were serving, serving Japan's intelligence interests. And that was one of the, I think, three things you mentioned that really stirred up the anxiety about the intelligence exposure from Japanese Americans on the West Coast.
- [43:34]
Guest Speaker
You know, absolutely. The Roberts report was, you know, one of the matches that, that lit the flame of this, this kind of hysteria that, that took hold on the West Coast. And so that was sort of, you know, directly from Roberts and had, had recorded it in his diary that at a kind of key point as he was reflecting on the policy, he had a private conversation with Roberts. And Roberts was concerned about the espionage threat that he had seen in Hawaii, which actually was debunked by others, including J. Edgar Hoover, who was opposed to this program and who said, look, you know, the FBI, we are handling it, we can handle it. You don't need to, you know, incarcerate everybody. But the, but the Roberts report definitely played an important role. But, you know, interestingly, by the time Korematsu comes around, Roberts is one of the three dissenters at that point. So, yeah, but, yeah, no, The Roberts Pearl Harbor Commission report definitely played a very important role.
- [44:42]
Cliff Sloan
And you talk about this famous report, this intelligence report by this lower level person, I believe in the Defense Department suggesting that there was no real intelligence threat. But you just said that Hoover himself was one of the people most vehemently opposed. Was there nothing to the claim that there was an intelligence threat on the west coast posed by Japanese Americans? I mean, there were some important people who said that there was no serious intelligence threat or it was a threat that could be handled without having to exclude or to have curfews and the like. But was there just, was there no evidence on the other side? Was it pure racism? Was DeWitt just a racist top and bottom, or was there. Were there genuine concerns about threats to the west coast and they were just exaggerated and the remedy was way overboard? I just couldn't figure out which one of those stories was the right story.
- [45:35]
Guest Speaker
Well, you know, I think there were elements of both actually. And let me explain why I say that because, you know, two of the principal justifications that DeWitt and the War Department gave were one, that there was evidence of shore to ship signaling, and I'll come back to that. And two, that there simply wasn't time to separate the loyal from the disloyal. And, and there certainly, you know, could be a lot of, you know, disloyal Japanese Americans or Japanese resident non citizens, and there simply wasn't time and no way to separate the loyal from the disloyal. Okay, so as to those two justifications, one of the really shocking things about this series of anti Japanese cases is that the government, the Justice Department and the War Department had information that directly belied and contradicted both of those. So with regard to the shore to ship signaling, which again feature prominently in DeWitt's report, which the War Department relied on when the Justice Department looked into it as the cases were pending in the Supreme Court, it turned out that first of all, the Federal Communications Commission had looked into this extensively and said there was absolutely nothing to it and advised DeWitt of that long before he relied on it as his justification. And that was just factually wrong, but the government deliberately decided not to include that in the submission to the Supreme Court. And there was a big debate in the Justice Department, but ultimately the Solicitor General, Charles Fahey, decided not to reveal that to the court, both in the briefs and in the argument. And then similarly, this sort of very major justification that the government relied on, that there simply wasn't time to determine who was loyal and who was disloyal. And yes, some of them might be loyal, but there was no way to have a procedure. And that's where there was this report within the War Department by a kind of naval intelligence officer that, yes, it was very possible the government knew who were the suspicious characters or the likely disloyal characters. And J. Edgar Hoover very strongly backed that up. He said, you know, we had this extensive program. We had it before the war, we've continued it during the war. They had rounded up, you know, kind of more, I think, more than 1,000 people based on their surveillance. And he said, we've got this under control. We've got a good sense of who's loyal and disloyal. And once again, the government did not present that to the Supreme Court even while arguing as a principal justification that there's just not time for it. So, you know, that all goes to the point of there not being the threat that was there. And. But the reason I said both, Jack, is because to the extent there was a threat, both the FBI and a sort of major figure in naval intelligence felt that they had adequate means to address it. So there was both the kind of contradiction of the underlying rationales as well as systems in place that could be much more targeted to any threat that would emerge. And I just want to emphasize one other point. So it's really, again, we're talking about how shameful these anti Japanese decisions are. It's also, in my view, very shameful that the government did not reveal this information to the Supreme Court. Now, none of that gets the Supreme Court off the hook because that was my.
- [49:28]
Cliff Sloan
That was my next question.
- [49:29]
Guest Speaker
Yeah, because even on the record, as it went to the court, you know, it was a, it was a debacle. I mean, these are, you know, Korematsu, rightly, in my opinion, is viewed as one of the worst decisions the court has ever issued up there, you know, with Dred Scott and Plessy versus Ferguson. So it doesn't get the court off the hook, but it does add still another, you know, very troubling and disturbing dimension. You know, one other point I just want to mention. So, you know, the first of the big anti Japanese decisions, Hirabayashi, which upheld a criminal curfew targeted at Japanese American citizens and upheld convictions under it, the court was unanimous. And, you know, Frank Murphy was very troubled. And up until, you know, almost the last day, he was going to write a dissent, but he didn't want to be the lone dissenter, so he wrote a concurrence that expressed a lot of skepticism. And when the court decided Korematsu the following year, it was a 63 decision. And Jackson and Murphy and Roberts dissented, and Black wrote the majority opinion. You know, some of the people involved in the case and from different positions later expressed great regret. Douglas expressed very great regret about his vote with the majority. But Black was completely unrepentant. You know, to his dying day. He said that it was justified and that you can't tell the difference among Japanese people. And so it was necessary. And so there was an interesting contrast in how the justices later looked back on the opinion.
- [51:09]
Cliff Sloan
Let me talk about some different issues sort of outside the court that are so interesting. In your book, you have this amazing chapter about Felix Frankfurter being visited by Jan Karski, who informed him about what was going on in the Holocaust. And do I just tell the exchange? Because it's kind of amazing. And tell us what the significance is.
- [51:32]
Guest Speaker
Yeah. So, you know, Karski, as people may be aware, was a very interesting and heroic figure. And he had been working in the Polish underground, and he had actually both gone into the Warsaw ghetto and into a concentration camp. And he. And then had managed, through sort of elaborate maneuvers, both to go in and to get out. But he. He was a firsthand witness to the horrors of the Warsaw Ghetto and the concentration camp and what was going on in the Holocaust at a time when there was some information. But his. His eyewitness testimony was very, very powerful and added tremendously to the picture. And he was sent to the U.S. to, you know, rally support for Poland. The. The government in exile was concerned about what the Soviet Union wanted to do with Poland, but he also very much wanted to carry the message about what was happening and to ask for dramatic action. And he had promised people in the Jewish community in Warsaw and those he had encountered that he would do this. And so when he arrives in Washington, there's a dinner with the ambassador of the Polish government in exile, Karski, Frankfurter, and two other prominent Jewish Americans in government. And Karski is talking about the whole picture. And then Frankfurter says he wants to stay afterwards. And it's just Karski and the ambassador and Frankfurter. And Frankfurter says to Karski, he says, you know, I am Jewish. I want to hear what you have to say. And Frankfurter had been very involved in trying to rally efforts against the Nazis in the 1930s. He had personally gotten his uncle out of a Nazi prison in Vienna. You know, Frankfurter had been born in Vienna. He had come to the US As a child. And so Karski then goes on in detail about what he's seen in the concentration camp and also in the Warsaw ghetto. And it's just extremely vivid accounts that Karski gives. And he finishes, and Frankfurter looks at him and he says, I cannot believe you. And the Polish ambassador says, felix, what are you talking about? Our government stands by this man. How can you say he's lying? And Frankfurter says, I did not say he was lying. I said, I cannot believe him. And he gets up and he walks out. And there's no record that Frankfurter ever did anything about this. And Frankfurter kept a diary during this period about his full range of policy activities with all of the different agencies and departments of the government. He never mentions this meeting. It's unexplained what he means when he says, I cannot believe you. But I think a kind of a reasonable inference is just that the enormity of what he was hearing from Karski was something that if he believed him, if he fully took that in, he would have to take very dramatic and drastic actions. And for all of his, you know, very laudable efforts to rally support against the Nazis both before and after the war, that was a step he was unwilling to make. And by the way, Karski also met with other American officials. He met with fdr, and kind of scarred by his experience with Frankfurter, he didn't go into detail with FDR about the concentration camp that he had witnessed or the Warsaw ghetto. He did talk about that there was a very real threat of the extermination of the three. More than 3 million Jews in Poland. It was the largest Jewish community, and that they were going to be wiped out by the Nazis. And FDR sort of very abstractly said, you tell your people we're going to win this war. And he sort of, you know, gave him those reassuring words at a very general level. And Karski talks about how he was so awed and dazzled by fdr, he walked out of the room backwards. He didn't want to turn his back on this great American president. But he later realized FDR had said nothing about the Jews. Now, there were others who thought that maybe it did have an impact on fdr, and there were some efforts that happened with the government. But with Frankfurter, it's just very striking and very haunting that all he said after that very vivid testimony was, I cannot believe you.
- [56:24]
Cliff Sloan
I didn't really appreciate why it was. This is a different topic. Why Roosevelt wanted Douglas to be his running mate in 44. What was the political appeal of Douglas? I mean, why did FDR think this was a good idea politically? It didn't seem to make any sense to me politically.
- [56:42]
Guest Speaker
So I think there were two reasons that FDR was very much drawn to Douglas. First, he actually thought that Douglas would have great political appeal. Again, the way he carried himself in. In public. He thought that he would have a, you know, a sort of dynamic presence. He thought that his life story of growing up very humble in the Pacific Northwest would be very appealing. You know, FDR thought that he was a good judge of political talent. You know, there had been, at one point, Robert Jackson was being considered for political office, but possibly to run for governor of New York. And FDR liked Jackson very much, but he privately said to others that he wasn't sure if he was ruthless enough, you know, to succeed. But with Douglass, he saw somebody who he thought would have great political appeal. He thought he was shrewd. But the other thing which was important is that Wallace was, you know, very much a hero to the liberals and labor in the Democratic coalition. And so there was a political risk to FDR in dumping Wallace. And, you know, he wanted to dump Wallace for various reasons. Wallace was sort of very erratic. It had come out in the 1940 election that he consulted a mystic. He seemed kind of unreliable to fdr. He would go off and do his own things. The political pros deeply disliked Wallace, but FDR was concerned about kind of alienating that wing of the party, the liberals and labor. And he thought that Douglas would be viewed very, very favorably by that, by that wing of the party. So that's another reason that he was very much drawn to Douglas. And, you know, it's interesting, throughout this period, you know, fdr, who is famous for operating at many different levels and keeping everybody off balance and sort of steering his way. He kept a number of candidates in play, including Jimmy Burns, who is the most conservative candidate, Douglas, who was viewed as a kind of liberal champion, and Harry Truman, who is kind of in the middle and at various times, those sort of three leading contenders. FDR is both kind of playing them all off against each other. And he's also kind of giving assurances, you know, that that person is the one that he really favors. And he even did that with Wallace. I mean, he said to Wallace that, you know, he wasn't going to endorse him, and again, he was going to nominally leave it up to the convention. But he did, you know, tell Wallace, oh, I hope we can keep the same team together. And he had an agreement with Wallace that he said, well, if he was a delegate, he personally would vote for Wallace, but all the delegates were free to vote their conscience. And then all of FDR's top aides, with his, at his direction and with his blessing, were working very hard to make sure that Wallace wasn't the candidate. But I do think that that was an important part of it for FDR also, was that he, one thing he didn't want to do was kind of create a breach with the kind of liberal labor wing of the party. And he viewed Douglas as a great candidate for them.
- [60:04]
Cliff Sloan
Reading your book and your criticisms of the court and the executive branch for basically caving to the exaggerated pressures of the war and violating the Constitution in doing so, it made me think of Lincoln and Lincoln's violations of the Constitution during his total war, especially his, I mean, he violated the Constitution in a number of respects, but perhaps most notably suspending the writ of habeas corpus when he probably didn't have the authority to do so, ignoring an order from the Chief justice that he needed to release a prisoner he had detained illegally, raising armies and borrowing money on the credit of the United States, which is supposed to be Congress's job. You seem very unsparing in cutting the court and the executive branch slack. And I'm not saying you should. I'm just trying to figure out your position. Given the, just the extraordinary, unprecedented situation that World War II presented and the threat to, to the nation it presented. Do you feel the same way about Lincoln?
- [61:09]
Guest Speaker
Well, let's see. I, I, I think, look, there is a history, both of, you know, presidents taking extraordinary actions in wartime. And frequently, I mean, not true, during, in Lincoln's time, there was a different dynamic with Taney, but infrequently the court, you know, being kind of very deferential to that. But first of all, so recognizing that background, you know, as I was mentioning before, first of all, I think this is a cautionary tale. And I also think you have to look at the particular issues because I think really when you're looking at the incarceration and persecution of American citizens, again, based on nothing other than their ancestry, I mean, that is something that is in a, an entirely different category, I think. And so I don't think you can just sort of paint with a broad brush that kind of, all wartime actions sort of fall under the, under the same rubric. I think this was such an astounding action and really a kind of tragic action that the Roosevelt Administration and the Supreme Court upholding it, really do deserve a lot of criticism. And I mean, I think the court was wrong and unanimously upholding the curfew. By the time of Korematsu, as we talked about, there were three of the justices who had concluded against it. And so I actually don't hesitate for a second in condemning both the administration and the Supreme Court.
- [62:50]
Cliff Sloan
No, but I agree. No, I agree. I'm just wondering whether you feel the same way about Lincoln. And, you know, there was not just the Japanese cases, there was Kieran.
- [63:01]
Guest Speaker
Right.
- [63:02]
Cliff Sloan
Which is closer, much closer to what Lincoln did. And you're very critical of Kieran. But I'm just trying to figure out that your theory of extra constitutional action during total war, whether you think it's just always to be regretted and resisted or there are gradations, I, I think.
- [63:18]
Guest Speaker
It is kind of especially important to uphold the Constitution in times of war and national security, because I think that, I think that there, that there is the sort of, you know, great temptation because of the importance of the, of the issues to kind of say, well, it doesn't apply here. And that's when I actually do think it needs to be applied and observed with a great deal of kind of care and commitment. So I would say kind of across the board that I don't think war and national security are a justification for violating the Constitution. And in fact, to the contrary, I think that they should be read for flags to make sure that we're being especially vigilant in upholding the Constitution.
- [64:08]
Cliff Sloan
Okay, here's my last question. You were President Obama's special envoy for closing Gitmo, I think.
- [64:14]
Guest Speaker
Yes.
- [64:14]
Cliff Sloan
So there's a two part question. One, that must have influenced the writing of this book, I assume. And two, but, but tell me if so. And two, I wonder what you think of Hamdi and Boumedian and Hamdan and those cases that in the day seemed like all things pretty big victories for civil liberties.
- [64:35]
Guest Speaker
Yes.
- [64:36]
Cliff Sloan
And yet here we are with Gitmo still open and those precedents, I think 20 years later were based, as I see them, basically ended up concretizing the status quo of detention on Gitmo. So if you could just talk about those two things and how you think about them.
- [64:52]
Guest Speaker
Sure, absolutely. So, first of all, yes, my experience as Special Envoy in 2013, 14, very much played a role in my writing this book because in connection with that special envoy position, I was reading all the court's decisions on military detention and I noticed, you know something that you mentioned earlier, Jack, that Hirabayashi, the curfew case, and West Virginia Board of Education versus Barnett were decided seven days apart. And it really struck me that within 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. And so I became very interested in the court during World War II, and I discovered there's very little written on it as a subject. So that played a very, very major role in my getting interested in this subject and kind of following up on it now on the Guantanamo decisions, I'm glad you raised that because, you know, as we've discussed, there's an extensive history of the Supreme Court being very deferential to the executive branch when it kind of when it waves the flag of national security. And in my view, the Supreme Court's decisions on Guantanamo from 2004 to 2008 actually stand in sharp contrast to many of the courts previous eras where they were very, very deferential whenever the executive branch came and waved the flag of national security. And the Supreme Court rejected many of the Bush administration's positions about the non reviewability of the of detention there. And in my view, that's actually a proud moment for the Supreme Court. And it goes back to what we were just saying, Jack, that it shows that even in times of sort of great, you know, national security stress in the, in the wake of 9, 11, the court has a very important job to do, independent and not just kind of blindly accepting that. Now what then happened, I think is very unfortunate and actually kind of tragic, which is that in the wake of those decisions, the D.C. circuit issued a number of decisions that rendered him essentially toothless. And then the Supreme Court didn't grant cert on any of those. So the promise of those decisions were really law was really lost in the aftermath. And I actually had one district judge in D.C. tell me privately one time that they got the message that if they ruled in favor of a detainee, they were going to be reversed by the D.C. circuit. And that was a very strong message from the D.C. circuit. So I think that that was, you know, kind of very, very unfortunate. But I do think those decisions, kind of upholding the importance of kind of meaningful review, were actually a very, kind of proud moment for the Supreme Court.
- [67:52]
Cliff Sloan
Cliff, thanks very much and congratulations on your great book.
- [67:56]
Guest Speaker
Terrific. Thank you. I really appreciate it.
- [68:02]
Jack Goldsmith
The Lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter@patreon.com lawfare. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare presentation podcast series on the Government's response to January 6th. Check out our written work at www.lawfaremedia.org. this podcast is edited by Jen Patya Howell and your audio engineer for this episode was Noam Osband of Goat Radio. Our music is performed by Sophia Yan. As always, thank you for listening.
- [69:02]
Trey Farrow
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