The Court at War: FDR, His Justices, and the World They Made

by Cliff Sloan

Overview

The inside story of how one president forever altered the most powerful legal institution in the country—with consequences that endure today 

By the summer of 1941, in the ninth year of his presidency, Franklin Roosevelt had molded his Court. He had appointed seven of the nine justices—the most by any president except George Washington—and handpicked the chief justice.
 
But the wartime Roosevelt Court had two faces. One was bold and progressive, the other supine and abject, cowed by the charisma of the revered president.
 
The Court at War explores this pivotal period. It provides a cast of unforgettable characters in the justices—from the mercurial, Vienna-born intellectual Felix Frankfurter to the Alabama populist Hugo Black; from the western prodigy William O. Douglas, FDR’s initial pick to be his running mate in 1944, to Roosevelt’s former attorney general and Nuremberg prosecutor Robert Jackson.
 
The justices’ shameless capitulation and unwillingness to cross their beloved president highlight the dangers of an unseemly closeness between Supreme Court justices and their political patrons. But the FDR Court’s finest moments also provided a robust defense of individual rights, rights the current Court has put in jeopardy. Sloan’s intimate portrait is a vivid, instructive tale for modern times.

Product Details

ISBN-13:	9781541736481
Publisher:	PublicAffairs
Publication date:	09/19/2023
Pages:	512
Sales rank:	105,791
Product dimensions:	5.80(w) x 9.30(h) x 1.60(d)

About the Author

Cliff Sloan is a professor of constitutional law and criminal justice at Georgetown University Law Center. He has argued before the Supreme Court seven times. He has served in all three branches of the federal government, including as Special Envoy for Guantanamo Closure, and is the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court. His commentary on the Supreme Court and legal issues has appeared in the New York Times, Washington Post, Slate, and other publications, and on television and radio networks.

Editorial Reviews

07/31/2023

Sloan (The Great Decision), a professor of constitutional law at Georgetown University, offers an astute look at the Supreme Court during WWII, an era that tested the Court’s ability to balance the Constitution’s protections of individual rights against the extraordinary measures the government thought necessary to win the war. Sloan views the Court’s protection of individual rights in a positive light, pointing to the 1942 opinion in Skinner v. Oklahoma denying a state’s ability to forcibly sterilize a criminal defendant, a decision that has become a precedent underlying the right to same-sex marriage; and West Virginia Board of Education v. Barnette, a 1943 decision that protected the rights of Jehovah’s Witnesses to refuse to salute the U.S. flag on religious grounds. On the other hand, Sloan argues the 1944 opinion in United States v. Korematsu that found government had authority to move hundreds of thousands of Japanese Americans into concentration camps in the name of national security stands as one of the worst opinions in the Court’s history. Alongside astute case analyses, Sloan vividly explores the fractious relationships between justices whose judicial philosophies, personalities, and backgrounds radically differed. The result is an accessible narrative that highlights how the forces of history, politics, and personality influenced one of America’s most important institutions at a critical time in history. It’s an entertaining and worthwhile account. (Sept.)Correction: An earlier version of this review misidentified the Supreme Court decision the protected the right to refuse to salute the flag on religious grounds.

Publishers Weekly

[A] probing chronicle…Blending legal analysis of cases such as Korematsu and a handful of others with short profiles of the members of the court, Sloan probes the justices’ motivations and shortcomings as he examines the institution’s inner workings…In a world beset by rising domestic and global threats, it’s fair to ask whether today’s court would falter as it did in Korematsu if asked to safeguard civil liberties during times of peril. In casting a bright light on this issue, Sloan’s thoughtful book will better prepare the nation for that moment.”—Michael Bobelian, Washington Post

“At a time when the constitutional order feels archaic, and the Supreme Court is once again firmly in the hands of appointees from a single party, many observers are mining past periods of consensus and progress for understanding—and perhaps inspiration. A new book, The Court at War, is a highly readable contribution to this trend… The historical figures in The Court at War are colorfully rendered; the action moves briskly… Above all, one comes away from this insider account with a stunning sense of the porousness of the Supreme Court to other elite actors within the Beltway… Sloan has written an eminently readable book.”
 —Robert L. Tsai, Washington Monthly

"What makes the book a valuable contribution to Supreme Court history is the deft way he marshals long-available evidence to stitch together a portrait of a Court that in important respects lost its bearings under the sway of the powerful man to whom its members owed their jobs."—Linda Greenhouse, Lawfare

"The author . . . delivers an account of a Supreme Court shaped by one president (he had appointed seven of the justices) during the fraught intersection of civil liberties with the exigencies of World War II and extraordinary executive power. Sloan’s brisk narrative is pertinent to today, when presidential candidates jockey for support promising to further transform, and politicize, the Court."—Harvard Magazine

 “Mr. Sloan, a professor of constitutional law at Georgetown, offers a balanced assessment of the wartime court… Mr. Sloan’s historical scholarship is impressive.”—Barton Swaim, Wall Street Journal

“A remarkable account of the comings and goings of Supreme Court justices during World War II. Page after page, Sloan describes in rich detail interactions between members of the Supreme Court and Roosevelt or his top advisors, almost any one of which would probably cause a serious flap today about judicial ethics and impropriety.  These details are by no means idle gossip, and in the deft storytelling hands of Sloan, they are a fascinating read…. Sloan has amassed a voluminous quantity of information that he shares in a highly readable narrative.”—Washington Lawyer

 “Alongside astute case analyses, Sloan vividly explores the fractious relationships between justices whose judicial philosophies, personalities, and backgrounds radically differed. The result is an accessible narrative that highlights how the forces of history, politics, and personality influenced one of America’s most important institutions at a critical time in history. It’s an entertaining and worthwhile account.” —Publishers Weekly

“A wide-ranging legal history that shows that the Supreme Court is never truly divorced from the politics of the day.” —Kirkus

“The story of FDR’s unsuccessful effort in the late 1930s to ‘pack’ the Supreme Court is well known. The Court at War tells the fascinating story of what happened later. As FDR filled numerous Court vacancies, and the country became engulfed in WWII, he ended up getting the supportive Court he had long wanted. Cliff Sloan’s deeply researched account of relations between the ‘War Court’ and FDR during the early 1940s—complete with insightful portraits of the justices—demonstrates we still live in a legal world shaped by the events of those momentous years.”—Annette Gordon-Reed, Pulitzer Prize–winning historian

“Although much has been written about the government’s actions during World War II, this is the first in-depth examination of the Supreme Court during this time. Sloan’s beautifully written book tells this story and makes it compelling by focusing on the people involved in litigating and deciding the cases. The book is filled with a wealth of new information and will surely be regarded as the definitive work about the Court during this pivotal point in American history.”—Erwin Chemerinsky, dean, Berkeley Law School

“So much has been written about FDR’s battle with the Supreme Court, not enough about the operations of the court he then assembled. With the insight of a lawyer and the craft of a storyteller, Sloan provides a compelling, textured account of the third branch at a pivotal moment in history. The Court at Waris a gripping, behind-the-scenes look at an institution that at times rose heroically to the moment, producing enduring victories for free speech and civil liberties, and at times shamefully succumbed to the perceived needs of a nation at war and the ugly prejudices of the era. At a time when the high court is again in the headlines and under scrutiny, Sloan’s rich portrait of the justices and the president with whom they served—often too closely—offers a timely reminder of the achievements, and imperfections, of a court whose lessons resonate today.” —Ruth Marcus, Washington Post columnist

“In this masterful new book, Sloan sheds revelatory light on a pivotal period in American law. Weaving together painstaking archival research, close readings of legal briefs and judicial opinions, and absorbing descriptions of the lives and relationships of the Court’s justices—including their relationships to the larger-than-life president who appointed them—Sloan reveals the long shadow of the war not only on familiar cases like the Nazi saboteur case Ex parte Quirin and the infamous Korematsu v. United States, but also on disputes involving compulsory flag salutes, forced sterilization, and all-white primaries. The book is essential reading—and an urgent reminder of the degree to which the Supreme Court has always been embedded in the larger political life of the nation.” —Kate Shaw, ABC News commentator, cohost of Strict Scrutiny podcast, and professor, Cardozo Law School

“The Court at War provides an in-depth look at the workings of the US Supreme Court and the relationships among the justices and political officials during World War II, including how, at times, it was a court at war with itself. Sloan has written a thoroughly engaging account that helps us to understand better a court that produced remarkable changes that advanced civil rights and civil liberties in the context of voting rights for African Americans, free speech rights for disfavored religious minorities, and reproductive rights while simultaneously producing the civil-rights disaster in its cases involving the treatment of Japanese Americans.”  —Robert Chang, Korematsu Center for Law and Equity

“Conventional wisdom suggests we know all we need to know about FDR and the Supreme Court. Thank goodness Sloan has excavated the much more interesting and dramatic saga of the wartime Court and its eerie echoes to today.”—Ken Burns, filmmaker

From the Publisher

Although the current controversies surrounding the Supreme Court may seem like a new phenomenon, this captivating audiobook dispels that notion and highlights how the Court has frequently been a political lightning rod. Brian Troxell sounds like your favorite history professor as he uses emotion, intensity, varied voices, and inflection to bring to life the many personalities central to President Franklin Roosevelt's efforts to transform the Court into an institution more attuned to his views. Troxell accomplishes this by creating distinct timbres for the book's many historical figures, thereby allowing listeners to feel as though they are eavesdropping upon every meeting, including those that would generate instant headlines if they came to light in today's world of nonstop news and revelations. D.J.S. © AudioFile 2023, Portland, Maine

DECEMBER 2023 - AudioFile

2023-07-13
The achievements, positive and negative, of the Supreme Court in Franklin Roosevelt’s later presidency.

When World War II broke out, writes Georgetown law professor Sloan, Roosevelt had appointed seven of the nine men serving on the Supreme Court, “the most Justices appointed by a president since George Washington.” The court was inclined to loyalty toward the president, but they were not above the ordinary frictions and squabbles among themselves. Hugo Black, for instance, had once been a member of the KKK. Even though he had become a convert to progressivism, he had little liking for Felix Frankfurter, who gave off an air of professorial arrogance, and their relationship would, “over time, become increasingly intense and toxic.” The court tended to divide over some issues but not others. It came together in what has since been much-studied, much-contested back-channel lobbying on the part of the White House to try and execute a group of alleged Nazi spies without the benefit of a trial, something the justices never really bothered to explain and certainly not at the time. Then there was the matter of Japanese internment during the war, about which numerous justices offered rather tortuous arguments. Black, for example, argued that “hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.” Strangely, some lawsuits by detained Japanese received more favorable rulings, even if Chief Justice Harlan Stone did refer to the class as “the mass of Jap citizens.” Furthermore, writes Sloan, the court made numerous unexpectedly farsighted rulings during the war years that would help set later precedents to support marriage equality, equal employment opportunities, and civil rights, including the constitutional right of Black citizens to vote.

A wide-ranging legal history that shows that the Supreme Court is never truly divorced from the politics of the day.

Kirkus Reviews