FDR’s Compliant Justices

An age-old question: Who judges the judges? For the justices of the US Supreme Court during World War II, the answer, according to Cliff Sloan, was Franklin Delano Roosevelt. In his insightful book The Court at War, Sloan, a professor of constitutional law at Georgetown University Law Center, suggests that whatever their pretensions to independence, most of the nine justices then on the Court (the “war justices”) effectively capitulated to whatever the president wanted. It was not just that they were personally beholden to FDR, who by the summer of 1941 had appointed seven of them. Nor was it just that they revered him, though that was one sentiment that this otherwise somewhat fractious bunch shared. Nor was it just that they felt that the perils of the war demanded loyalty to the commander in chief.

It was also that, in seeming contravention of the doctrine of separation of powers and the well-established ban on such contacts, various justices regularly met or otherwise communicated with Roosevelt, advising him on everything from executive appointments to the drafting of statutes, exchanging views with him on everything from public policies to political strategies, and listening to his often strongly held opinions on matters that might soon come before the Court or in some cases already had. The result was a Court that was steadfast in support of the president’s wishes, be they sweeping price controls or the internment of Japanese Americans.

The subordination of the war justices to the president was all the more remarkable given their frequent petty bickering. Noah Feldman of Harvard Law School has described four of them—Hugo Black, William O. Douglas, Felix Frankfurter, and Robert Jackson—as “scorpions” whose venomous rivalries knew few bounds.¹ Frankfurter, for example, is said to have privately described Douglas as one of the “two completely evil men I have ever met”—a description that, had he known of it, the freewheeling Douglas (who regarded Frankfurter as a pedantic prig) might have enjoyed.

These personal squabbles, fierce though they were, rarely surfaced in the Court’s opinions. A major exception concerned the issue of recusal—when a justice should be disqualified from hearing a case—which, then as now, was a matter that the Court found difficult to deal with. In a great many instances, according to Sloan, various justices vehemently disagreed with the refusal of one or more of the others to disqualify themselves. But the issue emerged publicly in only one case and even then in somewhat veiled terms.

That case was Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America (1945). After a 5–4 decision in favor of the union, the losing corporation petitioned for reconsideration on the grounds that one of the justices in the majority, Black, should have been disqualified because the union’s lawyer not only had close and long-standing personal ties with him but had also been, it turned out, his personal lawyer. While the Court as a whole rejected the petition, Jackson, who felt strongly that Black should have been disqualified, wrote a concurrence stating that the only reason he was concurring was because the Court left recusal decisions to the individual justices. He then added:

It appears always to have been considered the responsibility of each Justice to determine for himself the propriety of withdrawing in any particular circumstances. Practice of the Justices over the years has not been uniform, and the diversity of attitudes to the question doubtless leads to some confusion as to what the bar may expect.

As Sloan notes, Black was furious at this passage, which he took to be a veiled reproach to his decision not to recuse himself. He retaliated a year later by successfully lobbying against Jackson’s rumored appointment as chief justice.

In his concurrence, Jackson also noted, “No statute prescribes grounds upon which a Justice of this Court may be disqualified.” In 1948, however (after the period covered in Sloan’s book), Congress passed what is now codified as section 455 of title 28 of the United States Code, which begins, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Section 455, which on its face applies to Supreme Court justices as well as lower court federal judges, then goes on to specify certain additional, mostly obvious situations where disqualification is automatically required, such as when the justice or judge has a financial interest in the case. But the statute is also worded to make clear that the general standard embodied in the line that any justice or judge must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned” extends well beyond the instances of mandatory recusal. This has been the source of repeated controversy over the years. For example, when Bush v. Gore reached the Supreme Court in 2000, there were widespread but unsuccessful calls for Justice Antonin Scalia to disqualify himself, not because of any of the mandatory recusals specified in section 455 but because two of his sons were lawyers in firms representing George W. Bush.²

To this day the issue of disqualification remains troubling for the Supreme Court. Last November, in reaction to public outcry, the Court finally got around to issuing a written code of conduct, but its section on disqualification is notably different from that in the Code of Conduct for United States Judges, which governs all lower-level federal judges (like myself) and mostly mirrors section 455. The Supreme Court’s new code, in dealing with recusal, adds, among other things, a provision that “the rule of necessity may override the rule of disqualification.” The accompanying commentary adds that this is in keeping with a 1980 case, United States v. Will, in which the Court held that section 455 did not displace the rule of necessity.

What is the rule of necessity? According to Black’s Law Dictionary (the Webster’s of law dictionaries), it is the “rule requiring a judge or other official to hear a case, despite bias or conflict of interest, when disqualification would result in the lack of any competent court or tribunal.” In Will, the issue was whether a congressional limit on cost-of-living salary increases for all federal judges was unconstitutional, so all federal judges would have been disqualified from hearing the case because of their financial interest, and it would never have been decided were it not for the rule of necessity.

But such situations are highly unusual, and they are not normally a problem in the federal system, since if an individual judge is disqualified, the law permits the case to be reassigned to another judge. Moreover, as far as the Supreme Court is concerned, a quorum of only six justices is required to decide a case. But the commentary to the Supreme Court’s new code of conduct strongly suggests that the rule of necessity can now be invoked to override disqualification of even a single justice:

The loss of even one Justice may undermine the [quoting a dissent by Justice Frankfurter] “fruitful interchange of minds which is indispensable” to the Court’s decision-making process…. When hearing a case on the merits, the loss of one Justice is [quoting a memorandum by Justice Scalia] “effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.” And [citing a statement by Chief Justice William Rehnquist] the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue. In short, much can be lost when even one Justice does not participate in a particular case.

In other words, the Supreme Court intends to allow a single otherwise disqualified justice to invoke this reinterpreted “rule of necessity” to prevent his or her disqualification.

It is hard to see why this makes any sense. Historically, many cases before the Court have resulted in a 4–4 split, either because a justice had (notwithstanding the rule of necessity) chosen to be disqualified or because a justice had retired or died and not yet been replaced. Why should a justice whose very impartiality might reasonably be questioned be able not merely to stay on the case but to have the deciding vote?

Further, as many commentators have noted, the Supreme Court’s new code of conduct leaves it entirely to the individual justices to interpret whether their circumstances require their recusal in a given case or, more generally, whether their conduct violates the code. By contrast, if a lower-level federal judge has a question about how to interpret the ethical rules governing conduct in a given situation, that judge can apply to the Committee on Codes of Conduct, appointed by the chief justice, for a formal or informal opinion on to how proceed. But no such guidance is available to Supreme Court justices. They are simply on their own in determining whether they are abiding by judicial ethics. Which, apparently, is how they like it.³

In fairness, it has to be said that whatever the ethical issues confronting the current Court, they are nothing compared with the war justices’ seemingly total disregard for the most elementary ethical principles arising from the separation of powers. Ex parte Quirin is a good example. It arose after two German submarines landed in New York and Florida in June 1942 and the eight German “saboteurs” on board were apprehended (thanks in part to one of them, who reported their plans to the FBI). Roosevelt let it be known that, in Sloan’s words, he “wanted the Germans tried, convicted, and executed, and he wanted a swift military trial,” which he promptly ordered. This was in seeming violation of an 1866 Supreme Court decision, Ex parte Milligan, which held that a military commission generally lacks jurisdiction where regular civilian courts are open and functioning, as they clearly were in New York and Florida in 1942.

Accordingly, even before the military tribunal had concluded, application was made to the Supreme Court for a writ of habeas corpus. (The case was called Ex parte Quirin because that was the name of the lead petitioner.) Just before the petition was filed, and in at least one case even after it was filed, several of the justices privately inquired as to the president’s views. For example, Justice Frankfurter had several private conversations about the case with his former boss, Secretary of War Henry Stimson (who described their conversations in his diary). In addition to asking Stimson for the president’s views, Frankfurter, among other things, made suggestions as to how best to compose the military tribunal that would hear the case. Another justice, Owen Roberts, shared with his fellow justices a conversation he had had with Attorney General Francis Biddle, in which Biddle told him “that FDR would order the saboteurs shot after the military tribunal no matter what the Supreme Court decided.” Shortly thereafter the Court denied the habeas petition, the tribunal immediately found the defendants guilty, and six of the eight were promptly executed. Sloan writes:

The Quirin case stands as an object lesson of the harm that results from a Court that is too close to the President. Here, in addition to the reluctance to challenge the revered President’s powers in a time of war, the case reveals glaring problems—Frankfurter’s secret advice on the composition of the tribunals; FDR’s private threat, communicated to the Court, that he would defy an adverse judgment; the Court’s rush to hear and decide the case so that the military-commission trial and executions could speedily proceed…. In the words of constitutional expert Louis Fisher, “the Court carried water for the Administration…. Instead of functioning as an independent institution, it served more as a wing of the White House.”

In the process, moreover, several justices engaged in unethical communications that are beyond any possible justification.

But undoubtedly the worst example of the Court’s supine deference to FDR was its repeated endorsement of the administration’s determination to deprive American citizens of Japanese descent of their constitutional rights. This happened twice. In the first case, Hirabayashi v. United States,⁴ the petitioner, an American citizen born in Seattle to Japanese parents, challenged FDR’s Executive Order 9066, which authorized military commanders to designate entire areas of the US as “military areas” subject to ad hoc rules propounded by the military. Pursuant to FDR’s order, Lieutenant General John L. DeWitt, the military commander of the Pacific coast states, ordered “all persons of Japanese ancestry” residing in those states to remain in their homes from 8:00 PM to 6:00 AM.

Writing for a unanimous Court, Chief Justice Harlan Stone concluded that this obvious incursion on the rights of a particular group of American citizens was justified, not only by the great latitude accorded the president as commander in chief during wartime but also because there was reason to doubt the loyalty of the Japanese Americans, who were seen as too insular:

There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population…. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons…constituted a menace to the national defense and safety.

Horrifying as such words now seem, at the time not a single justice dissented. True, one justice, Frank Murphy, said:

Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal liberty of citizens of the United States based upon the accident of race or ancestry. Under the curfew order here challenged, no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe.

Nevertheless, even Murphy felt the need to affirm Gordon Hirabayashi’s criminal conviction for violating the curfew, given “the critical military situation.”

But worse was yet to come. Whereas Hirabayashi was decided in June 1943, at the height of the war, the next such case, Korematsu v. United States, was decided in December 1944, when victory was clearly in sight. The petitioner, an American citizen of Japanese descent, had been convicted of intentionally violating another DeWitt order approved by the president, which commanded that persons of Japanese ancestry residing on the West Coast could no longer remain in their residences subject to a curfew (as in the Hirabayashi case) but instead had to be “relocated” to military-supervised concentration camps. Fred Korematsu, asserting his constitutional rights from the outset, had refused to leave his home altogether (the first stage in the forced evacuation process) and eventually was able to bring his case to the Supreme Court.

This time, however, the Court could not muster unanimity but split 6–3. To the majority, this latest step in treating Japanese Americans like a special breed of citizens was a permissible application of the deference to military judgment set forth in Hirabayashi. But to the dissenters it was simply a “legalization of racism” (Murphy), allowing citizens to be “held for some undetermined time in detention camps” (Jackson), and a “case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry” (Roberts).

While the Court never had occasion to formally overrule Korematsu, in 2018 (nearly seventy-four years later) Chief Justice John Roberts, writing for the majority in Trump v. Hawaii, took “the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” Better late than never, I suppose. But given the blind adherence of so many of FDR’s justices to whatever the president wanted, one can only wonder how truly independent the Court’s most recent appointees are from the perceived wishes and policies of the former president who appointed them.