Some eras on the Supreme Court are well-known – including the Warren Court of the 1950s and 1960s, and the current conservative court that started in 1969 and has continued in various forms since then. Relatively little has been written about the court that Franklin Delano Roosevelt created. It is complicated story, filled with progressive victories, judicial low points (notably, upholding the internment of Japanese-Americans), and big personalities. Cliff Sloan, a lawyer and Georgetown University law professor, looks at this period in an incisive new book, The Court at War: FDR, His Justices, and the World They Made. He talked about it with The National. 

1. There are so many things we associate FDR with -- fighting the Great Depression, winning WW II -- but rarely the Supreme Court. When we think of FDR and the Court, we mainly think of Court packing. What did FDR think about the role of the Court in the nation?

FDR’s view of the Court was shaped by his outrage that the pre-1937 Court regularly struck down important New Deal programs in a time of grave national crisis.  He thought it was very anti-democratic – and suicidal for the nation – for the arch-conservatives on the Court to be invalidating innovative efforts to deal with the devastation of the Depression.   But FDR also had his own vision of the importance of the Constitution in the American framework.  His famous “Four Freedoms” – freedom of speech, freedom of worship, freedom from want, and freedom from fear - are grounded in a view of the Constitution and the democratic process, and, in his final inaugural address in 1945, which was very brief, he invoked the Constitution as the foundation of American life.

2. We are used to appointments being highly ideological today, but FDR's were not particularly that way. He nominated someone as far left as William O. Douglas or Hugo Black, but also more centrist and even somewhat conservative justices. How did FDR think about the ideology of potential nominees--if he did at all? And what was he looking for if not ideology?

FDR operated on several levels simultaneously in choosing his Justices, as he did on all matters – what Frances Perkins, his Secretary of Labor and longtime adviser, called his “four-track mind.”  First and most fundamentally, he wanted Justices who would not strike down government programs and innovation in economic regulation and complex social problems. Second, he looked for Justices with whom he had a high personal comfort level.  He had close relationships with most of his Supreme Court appointees.  And, third, he sometimes sought a political advantage from his appointments.  For example, when FDR elevated Harlan Fiske Stone (who had originally been appointed to the Supreme Court by Stone’s college pal Calvin Coolidge) to Chief Justice in 1941, FDR very much wanted to appoint a Republican because he sought as much bipartisanship as possible while he rallied the country for war preparations.  He had done the same thing the previous year by appointing prominent Republicans to be his Secretary of War and Secretary of the Navy.

3. When FDR made over the Court with his seven nominees, he did not produce a uniform Court -- not the famous Warren Court. How would you describe the "FDR Court"? What did it stand for as an entity?

When FDR appointed his Justices, some observers thought that they would act in lockstep.  But rivalries and divisions quickly emerged.  Two blocs emerged – one headed by Hugo Black and one headed by Felix Frankfurter.  Some of it was substantive, but some of it also was definitely personal. FDR’s appointees all had lived large public lives – former Senators, a former Governor, a former Securities and Exchanges Commission chairman, a former leading public intellectual – and each thought that he could and should be leading the Court.  Their backgrounds are a stark contrast to the backgrounds of today’s Justices, all but one of whom was previously a federal appellate judge. Frankfurter especially resented that the other Justices did not fall in line behind him. He referred to the Justices in Black’s bloc as “the Axis” – a remarkable statement at the height of World War II when we were fighting our Axis enemies.  Despite these differences, as an entity, the FDR Court stood for both judicial deference to government on economic issues and judicial protection of individual rights – unless the protection of rights would involve crossing the revered President who had appointed them.

4. You write about the complicated relationship between the Justices and FDR. Do you think they were too deferential to the President who appointed them?

FDR’s Justices were far too deferential to him in upholding the incarceration and persecution of American citizens of Japanese descent, and the result was a judicial disaster in cases like the infamous Korematsu decision.  The Justices also were far too engaged with FDR on non-judicial policy matters – giving speeches supporting Administration positions and undertaking missions for the President both formal and informal.  For example, one Justice (James Byrnes) actually worked out of the White House on important legislation and another (William O. Douglas) almost became FDR’s running mate in 1944.  There are many other examples as well.

5. The Court at War contains some wonderful portraits of individual justices. If you could choose just one, which do you think people today should know more about -- and what lessons might we learn from him?

The Supreme Court during World War II had some very well-known Justices – such as Hugo Black, Felix Frankfurter, William O. Douglas, and Robert Jackson – but it had also had some lesser-known Justices.  One of the most interesting lesser-known Justices was Frank Murphy.  Appointed to the Court by FDR in 1940, Murphy had been Governor of Michigan and Mayor of Detroit, as well as U.S. Attorney General.  He was an outspoken social justice champion.  A saying gained currency – “the Supreme Court tempers justice with Murphy.”  Murphy did not have the dazzling intellect of some Justices during this period.  But he knew enough to be the most concerned about the persecution and incarceration of Americans of Japanese descent, including in a historic dissent in Korematsu.  At the same time, like the other Justices, Murphy was deeply committed to FDR and the war effort.  He even enlisted in the Army – while he was a sitting Justice - for a special military assignment in the summer of 1942.  Newsreels at movie theaters showed him in his military uniform, engaging in military training and maneuvers during the day and then reviewing Supreme Court filings in the barracks at night.

6. We are going through a lot of soul-searching right now about the Court, both on substance -- what it is saying about issues like abortion and affirmative action -- and institutional role -- this is clearly a Court that wants to move society in a particular ideological direction. What lessons could the Court, and the country, learn from the Court of FDR's time?

The War Court was a tale of two courts.  It was the best of courts and the worst of courts.  Both sides of the Court’s legacy have great relevance today.  The Supreme Court during World War II issued pathbreaking decisions advancing reproductive rights (striking down a compulsory sterilization law), voting rights (rejecting the all-white Democratic primary in the South), and protection of persecuted religious minorities (throwing out a mandatory flag salute), while also giving the government broad authority to address novel crises and complex social problems.  These decisions were forged in an existential war-time fight for our constitutional system in self-conscious contrast to our totalitarian and fascist enemies, and they became important cornerstones of our constitutional architecture.  They are all, to varying degrees, under fire from today’s Supreme Court, which, in my view, is a very unfortunate development. At the same time, the War Court also issued the shameful anti-Japanese decisions upholding the deprivation of liberty for loyal Japanese-American citizens – a permanent stain on the Court and on the nation.  But there are important lessons there too.  The Court gave excessive deference to the government’s wildly inflated – and, in some instances, knowingly false – claims of national security.  And the Justices’ unwillingness to cross a President they revered led to a judicial catastrophe – a powerful reminder of the need for Justices to stand up to their political patrons.  That’s an especially important lesson now, at a time when the positions of the Justices correlate with the preferences of the political party of the President who appointed them more than at any time in our history.