Summary of "Lawfare Archive: The Court at War"

Introduction

In the episode titled "Lawfare Archive: The Court at War," released on June 15, 2025, The Lawfare Institute delves into the intricate relationship between the United States Supreme Court and President Franklin D. Roosevelt (FDR) during World War II. Hosted by Caroline Cornett, the episode features an insightful conversation with Cliff Sloan, a professor at Georgetown Law Center and former special envoy for closing Guantanamo Bay, discussing Sloan's book, The Court at War: His Justices and the World They Made. The discussion explores how personal bonds between FDR and the justices influenced pivotal Supreme Court decisions during a time of national crisis.

Supreme Court Composition and FDR’s Influence

Cliff Sloan outlines the composition of the Supreme Court during WWII, highlighting FDR's significant influence through his appointments. By the summer of 1941, FDR had appointed seven of the nine justices and elevated Harlan Fisk Stone to Chief Justice, making it the most impactful Supreme Court composition since George Washington's tenure. Sloan emphasizes the personal relationships between FDR and the justices, noting, “almost all of them had very, very close relationships with FDR personally” (05:11).

Justices' Involvement in the War Effort

The episode details how Supreme Court justices actively participated in the war effort beyond their judicial duties. Justices like Hugo Black and William O. Douglas were deeply involved, appearing at rallies and conducting inspections of war-related industries. For instance, Justice Frank Murphy enlisted in the military and conducted public inspections of Detroit’s war industries, later delivering national radio addresses to bolster industrial and labor support for the war (18:00). Sloan remarks, “this deep involvement in supporting FDR on the war effort off of the bench was very, very extensive” (18:00).

Influence on Judicial Decisions

The close relationships between FDR and the justices raised concerns about judicial impartiality. Sloan argues that these bonds led the court to support FDR’s wartime policies, sometimes at the expense of constitutional rights. He states, “there was this singularly close relationship with FDR” that influenced decisions, especially those related to national security and civil liberties (12:35).

Contrasting Civil Liberties Cases

Sloan contrasts landmark civil liberties cases decided during this period. While cases like Skinner v. Oklahoma (1942), West Virginia Board of Education v. Barnette (1943), and Smith v. Allwright (1944) saw the court expand constitutional rights, the Japanese American internment cases—Korematsu v. United States (1944), Hirabayashi v. United States (1943), and Ex parte Kagan—highlighted the court's capitulation to wartime pressures. Sloan notes, “the critical difference... is that in the anti-Japanese cases, it flowed from an executive order that FDR personally had issued” (33:39).

Japanese American Internment and Court Rulings

The episode delves into the Japanese American internment cases, exposing the flawed justifications behind them. Sloan explains that the War Department's claims of espionage threats lacked substantive evidence, as revealed by internal reports from the Federal Communications Commission and opposing views from figures like J. Edgar Hoover. He criticizes the government's deliberate withholding of this information from the Supreme Court, stating, “the government did not reveal that information to the Supreme Court” (44:41). The court's decisions, particularly in Korematsu, are condemned as some of the worst in its history, with justices like Hugo Black remaining unrepentant (49:28).

Felix Frankfurter and the Holocaust

A poignant moment in the episode recounts an encounter between Justice Felix Frankfurter and Jan Karski, a Polish underground courier who testified about the Holocaust. Sloan describes how Frankfurter reacted with disbelief to Karski's harrowing accounts, saying, “I cannot believe you” (51:14). This interaction underscores the moral failures within the Supreme Court and the broader administration during the atrocities of WWII.

FDR’s Political Maneuvering

The discussion also touches on FDR's political strategies, particularly his selection of William O. Douglas as his potential running mate in 1944. FDR believed Douglas would have significant political appeal, especially among the liberal and labor wings of the Democratic Party. Sloan explains, “FDR thought that Douglas would be viewed very, very favorably by that wing of the party” (56:41), highlighting FDR's adeptness at balancing different factions within his administration.

Comparisons with Other Wartime Presidents

When comparing FDR’s actions to those of President Abraham Lincoln, Sloan distinguishes the unique nature of the Japanese internment as particularly egregious. He asserts, “I think that 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” (63:18). Sloan emphasizes that constitutional vigilance is paramount, even during extraordinary crises.

Legacy and Modern Implications

Cliff Sloan, leveraging his experience as President Obama's special envoy for closing Guantanamo Bay, draws parallels between WWII court decisions and modern cases like Hamdi v. Rumsfeld and Boumediene v. Bush. He praises the Supreme Court's stance on Guantanamo detainees as a “proud moment” for upholding constitutional review (64:14), contrasting it with the earlier capitulation during WWII.

Conclusion

"The Court at War" serves as a critical examination of the Supreme Court's role during World War II, highlighting the dangers of excessive executive influence and the erosion of constitutional safeguards in times of crisis. Through detailed analysis and historical anecdotes, Cliff Sloan and Caroline Cornett illuminate the complex interplay between law, politics, and personal relationships, offering lessons on the importance of judicial independence and constitutional fidelity.

Notable Quotes

• Cliff Sloan (05:11): “Almost all of them had very, very close relationships with FDR personally.”

• Cliff Sloan (12:35): “They really reverenced Roosevelt, is that right?”

• Cliff Sloan (33:39): “...it flowed from an executive order that FDR personally had issued.”

• Cliff Sloan (44:41): “The government did not reveal that information to the Supreme Court.”

• Cliff Sloan (51:14): “I cannot believe you.”

• Cliff Sloan (63:18): “I think that war and national security are a justification for violating the Constitution.”

References

• [05:11] – Introduction of the Supreme Court's composition and FDR’s appointments.
• [12:35] – Discussion on the reverence Justices had for FDR.
• [18:00] – Justices' active participation in the war effort.
• [33:39] – Contrast between civil liberties cases and Japanese internment cases.
• [44:41] – Government's withholding of critical information from the Supreme Court.
• [49:28] – Condemnation of the Supreme Court’s decisions on Japanese internment.
• [51:14] – Interaction between Felix Frankfurter and Jan Karski.
• [56:41] – FDR’s rationale for considering William O. Douglas as his running mate.
• [63:18] – Comparison of wartime constitutional adherence between FDR and Lincoln.

Note: The timestamps correspond to the points in the provided transcript and are used to reference specific parts of the discussion.