WHAT WE'RE READING
The morning read for Tuesday, Nov. 19

By Ellena Erskine
on Nov 19, 2024 at 10:16 am

Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Tuesday morning read:

• U.S. Supreme Court will not review St. Clair capital murder case (Ralph Chapoco, Alabama Reflector)
• US Supreme Court rejects appeal over patent validity in Postal Service case (Blake Brittain, Reuters)
• Would Trump’s Justices Approve His Recess Appointments? (Jed Rubenfeld, The Wall Street Journal)
• FDR’s Compliant Justices (Jed S. Rakoff, The New York Review of Books)
• ‘This is not his first rodeo’: will federal courts be able to rein in Trump? (Ed Pilkington, The Guardian)

Coming up: On Friday, Nov. 22, the court expects to issue one or more opinions from the current term.

Posted in Round-up

Recommended Citation: Ellena Erskine, The morning read for Tuesday, Nov. 19, SCOTUSblog (Nov. 19, 2024, 10:16 AM), https://www.scotusblog.com/2024/11/the-morning-read-for-tuesday-nov-19/

FDR’s Compliant Justices

Jed S. Rakoff

The Supreme Court’s deference to FDR during World War II resulted in unjustifiable ethical breaches, but its new code of conduct has not resolved the question of when a justice should be disqualified from a case.

December 5, 2024 issue


Bettmann/Getty Images
Supreme Court justices William O. Douglas, Felix Frankfurter, and Owen J. Roberts at the White House after informing President Roosevelt that the Court had convened for its 1939–1940 term, Washington, D.C., October 1939

Reviewed:
The Court at War: FDR, His Justices, and the World They Made
by Cliff Sloan
PublicAffairs, 484 pp., $32.50

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. 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.

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