u)in some instances too close to

they had very, very close personal relationships. and just to kind of briefly get the players on t table, they sort of into three justices were very

well known, hugo black, felix frankfurter, william douglas robert jackson. those are the four very well known ones. o were not very well,murphy, james burns y from south carolina and he was only on the court f fall of 1942, fdr to him come work with me in the white house. you'll be the assistant president overseeing the domestic economy and burns lef supreme to join fdr in the white and fourth justice in this category of lesser known justices in the fdr appointees was wiley rutledge replacement. and then the third group is the appointed by fdr and are only two in this category. one of them was harlan fiske stone, who hadn appointed in 1925 by calvin coolidge, his amherst college buddy, and as i

mentioned, fdr e justice in 1941. in the summer of 1941. and it's very clear that fdr did single mindedly focused and preparing the country for war, which thought was inevitable and. so he was trying to project by part us and possible as, i'm sure you know, the country very divided and there was a strong isolation in the sentiment and he w bipartisan sonship. and so he loved the stone this republican appointee, this he had done the same thing the previous summer in naming prominent republicans to be secretary, war and secretary of the navy and then the final justice in this period was owe to the court, herbert hoover, in 1930, and roberts, the one who had the famous switch in time that saved nine. perceived as flipping his vote so that the supreme court now was upholding new deal

programs instead of striking them down, but was just a tremendous impact. fdr had, both in terms the number of justices and in terms of his very, very close relationships with them. and those close relationships just of a personal nature, preceded his presidency. they were political s, and they continued on the court and and frankly, this something that today's eyes and ears is really kind of astounding. it's something that i really learned aboutorking and and the book is let me give you a couple of examples. so jimmy byrnes, as i just justice had been a senator from south and he was the one who left in the fall of 1942 to go to the white house. was on the supreme court while he was a sitting after pearl harbor, fdr made clear to ybod his administration that any related legislation had go through. jimmy byrnes and again, this is while he's a sitting justice and

byrnes was frequently working out of the white house and he became a chief intermediary between the white house and the administration and congress. and, of course, this legislation coeme court. and so it's really remarkable. and as i say, sort of you have a justice working out of the wadministration legislation another very conspicuous example, in 1944, when fdr was running foyhis fourth term and had decided that he was not going to run again with incu,ñ

and he thought was his natural fate. and destiny to lead the court and for the other justices to fall line behind him and the other justices didn't quite see it that way, and that really bothered frankfurter. he wasand in fact, during the war years, during some of the war years, he kept a journal and a diary. and in it he recorded every grievance and perceived and he was very, very unhappy it and he even took to other justices black and douglas and murphy andis. now is at the height of world war two wh fighting the axis enemies, you know. it's as if after 911 when justice started calling another group ofces al qaida. but it also was not a one way street. for example, there are from douglass to murphy this period

where he refers to frankfurter as der führer and the little --. so there'sonal enmity then among the justices what i find interesting with that, too, and then i'll focus to some of the cases in what's going on, both in terms of the war and in terms of domestic affairs. but it's soit does play out in public there to groups around the country in what almost seems or maybe they are just overtly very political. you know again this is remarkable and this is part of their allegiance to fdr. but again, in 1941, was really sort of split, there was strong isolationist sentiment. just aboute justices delivers, a very speeches strongly supporting talking how important itexplicitly with fdr and the white house. frank murphy was the only catholic on the court at that

time.ks to the knights of columbus and and he about th soviet union had recently entered joined forces with britain because, as you all know because germany had invaded soviet union. but but the catholic in the u.s. were very skeptical of an alliance with, the soviet union, because it was so anti-religio murphy goes to the knights of columbus and gives this speech about how the most thing isfascists. and we should welcome the soviet and and he coordinates that with im know afterwards that he was, quote, tickled to death by his speech. but even when they weren't ating, they knew this fdr, his highest priority. of speeches, supporting it. and then, you know were giving this

massive i am an american rally in in central park with the boxer, joe louis, who was then a private in the army. and so in this wonderful t, you have an african-american kins in civil rights. there's a picture of as a private, but they appear and it's to rally in war bonds. fdr has frank murphy at one point, who again had been mayor of detroit and governor detroit and examine the state of readiness with the automotive industry there, because they su critical vehicles and machinery fort tanks and jeeps. and so murphy verdoes this inspection tour and then goes on nationalfindings and saying that we actually have tochterms of preparedness. and he publicly called on management and labor to you know both be working together to

so that they would be more supportive the war effort and these are just some examples there were very extensive as you y, very extensive public speeches by the justices during thisd issues. and so the war and what i find found fascinating running throughout it is questions of which isn't necessarily rising during wartime of civil liberties, but also how those overlap and intermingleions of civil rights. and so we have some directly the war and then we have others that have beenit's thinking of our exhibit individuals within this country. and there and their constitutionalon, they were cases 4142 involving domestic affairs domestic civil rights. how did a couple of those cases lay the grouwork f what, later? and how did they set up a sharp contrast? some of the decisions that were related around the war.

a but about let's lay down that absolutely. soeally, you know, as i as i was indicating the beginning, it's really a tale. two courts during world war. it's the st of worst of course and and the best of courts as you're it, bill, there's a who the war where in self conscious contrast to the totally that we were fighting to the fashion to the authoritarians to the nazis in very self-conscious the supreme court recognized and protect it and expanded constitute national rights and civil liberties. and sogi9k examples of those in skinner oklahoma in 1942 at the supreme court strikes down an oklahoma law that called for the compulsorysterilizing

zation of people who been convicted of three or more crimes of moral turpitude and the crimes of moral turpitude was interpreted very broadly to include, you know evyday crimes, burglary and robbery. it strikes down this sterilization law. and as the court was considering the case as it made its way to the court very much part of context was the awareness that hitler and the nazis had engaged and a massive program compulsory in the interest of racial puritycy. and, you know, example, the prisoners infacing forced sterilization action were attacking the law and saying it represented to the hitler possession of american law. and it very much is part of the context. and in striking it down, douglas says that hands, compulsory eliminate entire knew.

exactly who and what he talking about. and so the war context played a very important role in that i mentioned at the beginning the west virginia board of compulsory flag salute case. and again this is this justice robert jackson, where he very eloquentlyod this country no government official can and so when these jehovah's witness child refusing to salute the flag they had a rit to do thand justice robert jackson famously says,hat is fixed star in our constitutional context is very important for the here in the opinion jackson explicitly draws a contrast with ourtotalitarian enemies. we don't force to give their obvious sense to, you know, a particular idea or particular creed. and he even in then, talks about how the flag salute that issue, which required the chihe flag i have a picture of it in the book had a

resemblance to the nazi flag salute so again the contrastwith enemies was very important. and then you were talking civil. so in 1944, the supreme court decides case smith versus. all right, it's thurgood marshal's first big victory, a case that he argues in the supres down the all white democraticri and throughout south. a very in south carolina justice. burns yes. tely. and yet all of the southern states basically had and everybody knew the particular case was texas, but everybody knew that it was going to have all of those other southern states and. and again, it's very a part of the kind of the context of the case that we were fighting a regime based on racial supremacy. and here the, you know, this this very blatant discrimination in voting was at a time of great

civil righ turmoil in, the country connected to the war know the african-american community had embraced what it called the victory over fascism and there were civil rights demonstrations and also the dislike haitians of the war economy, with so many people being in the military and being away opened up industries and positions that had previously beenamericans. and this led to a very ugly white in instances, there were what was called hate strikes, response. and and in the violence against blacks in a lot of cities. there. white riots. and so this was all part of the context of smith versus. all right and the importancea contrast between ourcracy as the court says in that opinion

and then and the regimes we abroad and it was very mu perceived that way in the kind of reaction and the public e case when it was decided. and certainly black americans, you can see this in are i it's itself apparent. i mean it's it' the injustice of the distinct that we' now we can look at japanese-americans and americans of japanese descent, some of whom were also born japan. but all american citizens regardless, frankly, whether american citizens, the cases that come represent the worst moment, one of the worst moments of the roosevelt years. and in american in the court ultimately, unfortunately, played a role in those as. right. well, this is the worst of courts and as say well a shameful history by the supreme and and by president and the

roosevelt administration, by the congress across the board. but definitely among the very decisions the supreme court has ever issued, you know, upholding, as you all this very persecute and incarceration of american citizens of japanese descent, as well as lawful japanese nonresidents for than the ancestry of parents. in the case of many oof japanese descent and or the that they had come and just a kind of truly shame episode and the hugo black who in other contexts was a civil libertarian said well hardships are part of war and they were deferring to the what was presented to them as the exigencies of war. now has also come out since then

that the roosevelt administration what the justice and the war deceitful and misleading in their presentation to the supreme court. they thereere wildly inflated claims of national security but there also was evidence specifically undermined and the claim that thisity perspective and they deliberatelyt that to the supreme court. now that doesn't excuse the supreme court all i mean, based on what was before it it were trulydecision as three justices to, their credit recognized at the time, but even i think fromkind of worst of legacy, or maybe especially from this worst of leg important for today. and youdanger of excessive death to the government's claims of national security for the said that it was wildly inflated here we could add to that tager hoover not exactly known as a

great defender of civil rties. this country knew that there was no evidence. j j edga hoover was very much against the incarcerate in th fbi. there were voices within federal government. hoover the best known you, the attorney general francis biddle, initially was opposed it, and he had a couple of young aides who were fighting very hard against it bitterly at a certain capitulated and was sort of tried to wash his hands of it and never told fdr that it would be unconstitutional. and sout in terms of the the kind ofy perspective, you're absolutely right. j edgar hoover was veryand there was other evidence. you know, the war department been signaling to shore from ships which showand that they were probably from japanese. and this showed the dangers and the federal communication commission told the justice department very explicitly this

false. we have extensive records of this simply did not happen. and yet it was one of the things department relied upon. but the second lesson that i think is also very important to take away from this is that when you look at the best courts and the worst of courts, a major diffcefundamental, is that for sterilization or the flag salute code or the all primary in texas, the justices did not have to fdr and they didn't have to cross them on a war related issue. and they would have had to do with korematsu. and i that's an especially important today. and korematsu to give a little background to what the basis that case was. well, the court what that case in the supreme court upheld american

citizen of japanese no reason other than the fact that his parents had been from pathat's what the korematsu case itself is. with dreads as one of the very worst opinions. the supreme court had ever ly along with plessy versus upholding jim crow as well. but that's that's the korematsu decision is. but and but this that the failure, the unwillingness to cross the preserve that who had in them, who is their political patron. and that resulted in a judicial disaster and a judicial catastrophe. and that is an especially lesson today at a time when the votes of the justices quarrel, date with the preferences of the political party of the president who appointed them more than at

any time in our history. so it's a very, very important lesson about the need for justices to be able andp to the president who appointed them and to the of president and the political party that them now, could that have been influencing. what personal relationships, but also by the elective office within thef several of the justices who were perhaps more attuned to public opinionpotentially justices are. he justices at it what the general attitude was in the country and trying to reflect from their experience or or not or did that not play into their. well, you know i think my own view as a general matter and this is true of every age. it would be overly simple mistake think justices are not affected by the environment at they live in and to think

that they're not part of times that they're in. you know, i previously wrote a book and the marbury versus madison supreme court decision and decision is so grounded in the political setting of the early 1800s. and it'sle of washington d.c. and that is true. at the same time, i also think it would be overly simplistic to say that's the only thing justic care s5out. i mean i think justices bring their, you know, sort of judicial philosophy to bear. woven you know, can kind of vary at different times. but absolutely the justices arethat living in. and, you know, the justices much a part of the war. as i mentioned before the war dominated every aspect of their personal lives know five of the justices had sons who were serving in the military. a sixth had a son in law who w military.

and and it especiallthey were obviously all concerned about their sons in the military. black had two sons in the military and it took a terrible toll. and his wife she suffered terribly had psychological breakdown during this period was confined to her room for weeks and months on end and much of it was connected to her worry about her sons, the felixrter his wife, didn't have children but they had a english children or three english children staying them during a significt period of time. they were the children of, a lawyer who had been a protege offrankfurter. he was a professor at harvard law school. and the frankfurter to them in because their parents were concerned about the bombingraids in london and throughout england. and the frankfurters adored the children and they would take them to see fdr, whoed their antics. frank murphy, who was a bachelor, went them all better. he actually enlisted in the military i

ewhen the supreme court was in recess. he got a special assigned out in the army, and he was uniform. and there would be newsreels in, movie theaters showing him in his uniform in, tanks doing military day and. at night, he'd be sitting in the filings, know requests for supreme court review, that kind of thing. and just the point about the war dominating justices personal lives is that they bazaar byzantine w and controls and the lived in. you know, i haverutledge's rationing card. he had a ration incurred just like everybody else. there are letters from harlan fiske stone. he talks about how cold it is in the house because of the rationing of of home go to local civil defense neighborhood warden them what to

do in the event a bombing raid and he comes home and writes his sons that he'ced that if there is a bombing raid we're just going to have to sit and take because there's no plan that he sees that's going to do anything. and there's there were in washington and otma to try to make bombing raids more difficult. and all the government buildings, including the supreme court, were blacked out atfkt. the monuments were blacked out the private buildings were blacked out. and so there are newspaper articles that tell people what to do if. they're out during a blackout and they everybody to have a lit ips so that if somebody is walking by, they'll know there's 't bump into you. but so, i mean, it was just the aspect of their daily lives. well as think about heading towards questions how ic this curious assemblage of people cases radically different personalities how quickly thisthe caught which you don't you

hear that expressing is very often quickly that that disappeared fdr death d what be in the long term is some of the you know some of of that court. so first of all you're you're war really the time of the pure roosevelt court because very after the war a numbejustices die or resign. suddenly 1946, while he's on thereading an opinion he's stricken and you're right you don't hear about the stone court he had the third shortest tenure of any chief justice in american history. he was only there about five years. 9, truman had appointed four justices, almost half the court. so world war two really corresponds the time of the roosevelt court. but some of the roosevelt justices, of course, including douglas, you know served for a considerable period

of time. but there was a sort of very great turnover very quickly, the legacy of the court. on the other hand, in my view was very long and all, you know, thewhere the supreme court self conscious contrast to our enemies those mebeca very cornerstones of the court's jurisprudence for many decades so just as examples skinner versus oklahoma, the compulsoryit was the first time the supreme court recognized a fundamental liberty interest in the decision about whether to a child or not. and it became a very influential opinion. it is cited other reproductive cases. and of course now we have dobbs and the dissent turns in dobbs and dobbs decision that overruled roe versus wade. the dissenters in dobbs specifically point to skinner oklahoma, as one of the opinions thatthreatened by the framework of

dobbs. but it had important implications other areas also skinner is cited and relied on in the same sex marriage case by the supreme court, and it's cite interim in the interracial marriage case by the supreme court. so again, had a long lasting impact. and it in many ways it seems to be under fire. the smith all right. the voting rights case that had a tremendous impact, some historians believe, that launched the trajeory ivof rights. the culminated ten years later in brown versus board of education and it had a tremendous impact on voting. now, full voting rights wouldn't be secured unt courageous of many citiz act in 1965. but smith versus. all right. important foundation for that. and it represents a door opening approach to tinght and. of course, many critics, the

current court believe that the many of the decisions of the supreme court, including the shelby county decisionuck down a part of the voting act of 1965. so critics, the current court, think it reflects door closing approach to voting rights. in contrast. smith vers there's one other area that we haven't touched on that was very the issu that perhaps united the any other was the need for government as well as state governments to broadauthority in tackling complex economic problems, social problems novel crises that was the sort of fundamental reaction against the pre 1937 court and that was really and the supreme court doing war two upheld these very extensive rationing and price other

that governed the that we had for the next quarters of a ent court there are many doctrines that ar play now that the court is supporting that would dramatically the ability o respond to complex problems and novel crises. one is the what's called the brand new major questions doctrine which the current supreme court has invoked to strike down government initiatives on. issues ranging from covid to climate and another is an interest on the part of many of thrr justices in reviving anressive non delegation doctrine that would have limits on the power that congress can delegate the executive branch. and that was a kind of hallmark of the pre 1937 court. so the short answer your question bill, terms of the

legacy in law is that many these decisions in world war two were very fundamental cases for many decades and to some extent they're very under fire right now. do we have any questions from the audience? yes, i see. oh please come to the microphone if you do. and we may have some from our virtual audience. well, we have. this is from mary on youtube. did fdr his personal relationship with justices break tradition is another president usly who did the same. who i can think of a couple of personal relatbe in the johnson era but maybe not to this. yeah well you know there are examples both after and certainly you know lbj is bill was saying you only know president had a very close

relation ship with justice abe fortas had been somewhat problematic. yes yes, it was. and it became problematic when it all came to light. and as you may know, there were also issues, financial issues related to fortas that ultimately led to him resigning from the supreme court. but he was advising lbj on a lot of issues and became very while hee court. and that became very controversial when it when it came out. so i think there are other examples both before and after. i do think one of the things that is unique about this era is thess of it because fdr had so many close relationships with so many these justices. so it it wasn't off, you know, with abe fortas. i mean, it really extended to many of the justices. and, you know, the other point is that justecer examples doesn't necessarily mean it's okay.

and i just want to highlight, you know, we talked douglas being very prominent as, a possible vice presidential candidate in 1944. there have of. who were very interested in the political arena. ist seems inconceivable to us now there would be a kind of active candidate, in 1881 of the justices was very actively campaigning for the nomination. but are counterexamples also in 1876 the chief justice morris wait there was an effort to draft him to be the republican candidate and he very firmly ed it and he said justices should stay far the political whirlpool and so what it underscores for me and this is also very important at a time the of justice as possible ethical is that it is that my opinion it is veryy sort of public binding ethical codes justices and very strong ethical norms so

that there would be a very strong public reaction. that and i think, you know, the fact this these issues came up appointees and you mentioned the lbj appointee, abe fortas highlights. this isn't a partizan iss be approached on a bipartisan and a nonpartisan basisthese issues come up with kajustices appointed by presidents of both parties, these are self-regulating it it it sets that because that was the argument with and jackson i know we don't have time to get into that became very personal and pu vitriolic. there's a question here i don't know if you'll be able answeri can't. well, i think i know the answer. s an the who stole the 42 frank? further diaries. i'm sure you did research and yeah in those diaries i'm not aware of. no, no, no, no. that. just in terms o of i guess what i find curious in terms of legacies in the court sitting outside can i can, i just say one thing to

clarify that because there is and what that's afrankfurter records and a part of thestolen at some point and there's a mystery but there is a diary diary i was referring to from the from 1942, 1943 which it was published by joseph lasch. so so there is so we do, we do have a diary of frankfurter from that period that survives. but there is a very conspicuous in the frankfurter records the of course to our archival holdings that we have to protect them so carefully because history can be changed. the record is incomplete. but one thing i thk of w a looking at the court we bring this conversation into to a close. unfortunately is when a president thinks knows what he's getting but he ultimatelre has. so know, did fdr, was he thinking long term or just to accomplish a few? well i mean, as casualties, i'm

about to say it accomplished a few political things to secure some of the his agenda at the time. do you think term at long term legacy? well i as everybody here knows i'mf the fascinating things about franklin roosevelt is that his mind was very similar, heinously operating at several levels. you knins called his four track mind. and so with the justicesi th were many things going on when he appointed them. most he absolutely to make sure that it it wasn't going to be a striking down new deal programs. i mean when he thought about the supreme getting away from what he thought was a nightmare for the the horse and buggy court striking down these innovative approachesonal perspective. i that was kind of first and foremost in his now secondly he was very interested generally in his personal relationships with

the justice as you know andwe and when even when they were on the court he didn't view them as kind of often some ivory tower never to be talked to again. so he it was all part of them being part his team even on the supreme court. and third, i think he did think about politicaltage. there were things, you know, i mentioned with harlan fiske stone he elevating a republican and thought that would help with the war effort now stone also had been one of the justices who had been voting to uphold the new deal programs, but it was definitely very much on his mind bipartisanship in those days geographic diversity was very important and so at the time douglas was appointed, he was very much interested in appointing a westerner. and, you know, douglas hadate. now he, had spent his professional career and the east coast. and, you know, during this period, douglas had some of supporters work with some and reporters to kind of really

highlight his western roots. and there was a western senator that came out very publicly and