Justice  /  Book Review

The Supreme Court's World War II Battles

Cliff Sloan’s new book explains how the Franklin Roosevelt-shaped Court wrestled with individual rights as the nation fought to save itself and the world.

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. Its author, Cliff Sloan, teaches constitutional law at Georgetown and is a former law clerk to Justice John Paul Stevens. Sloan does not focus on the economic constitutional issues that were at the heart of FDR’s clash with the Court during his early terms, but rather on a subset of controversies over individual rights after the United States entered the global war in the winter of 1940 until roughly FDR’s death in 1945. These cases included equality-based challenges to the internment of Japanese Americans; a fight over the government’s effort to strip a Communist Party member of his U.S. citizenship; and an assortment of other free speech and association cases, including those of Jehovah’s Witnesses who objected to saluting the American flag. A 35-year-old Thurgood Marshall makes an appearance partway through the book before the Supreme Court to argue the case of Smith v. Allwright, challenging a Texas Democratic Party rule that barred Black people from voting in the primary election. Behind the scenes, Marshall and the NAACP lobbied the administration ferociously to back their legal argument that the white primary violated the Constitution’s equal protection clause.

Sloan’s central thesis is that close examination of this cluster of legal controversies against the backdrop of the country’s war mobilization will reveal that “World War II was interwoven with every ruling.” He not only describes key events on the war front happening at the same time the major rights cases were being litigated, but also contends that the war environment influenced how elite actors understood the law. His account positively brims with admiration for the Supreme Court. This can be jarring because many ordinary citizens wonder daily whether the justices really have their best interests in mind—or the interests of a narrower slice of society—when they interpret the Constitution’s majestic provisions.

The historical figures in The Court at War are colorfully rendered; the action moves briskly. This is especially true in Sloan’s retelling of the cases challenging the wartime internment of Japanese Americans. He skillfully probes the personal and professional motivations of their major players: Government lawyers concealed evidence to defend the evacuation plan; a general spouted anti-Japanese rhetoric as he implemented the policy; and Supreme Court justices who were close to that general defended internment as a necessary, and not racist, defense measure.