Robert Jackson's Memo to FDR on Gobitis

Cross-posted at Legal History Blog:

On June 3, 1940, then-Attorney General Robert Jackson authored a memo to President Franklin Roosevelt, as was his practice, discussing the various Supreme Court decisions in which the United States had an interest. Jackson singled out Minersville School District v. Gobitis, even though the United States filed no brief in that case.

He wrote:

Among the decisions of the Court in non-Government litigation the one of most interest was that in Minersville School District v. Gobitis. In this case, the Court, in an opinion by Mr. Justice Frankfurter, held that the School Board could constitutionally exact a salute to the flag, even though the child was a member of the sect which believed the salute to be idolatrous worship of a man-made object or institution. The Court paid eloquent service to the principle that "the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law." But, the Court said, "the mere possession of religious convictions * * * does not relieve the citizen from the discharge of political responsibilities." Salute to the flag the Court considered to be a relevant requirement to obtain that "national unity" which "is the basis of national security." Mr. Justice Stone dissented. He recognized the power of government to control conduct notwithstanding religious scruples but thought the guarantee of religious freedom forbade the legislature to "compel public affirmations which violate * * * religious conscience."

Although one must be careful not to read too much into a synopsis, it is interesting how Jackson characterized the outcome. First, he framed the Witnesses' claim in a charitable light. Second, Jackson never mentioned the overwhelming nature of the decision, which was 8-1. Third, he didn't endorse the determinative rationale, which he put strictly in the mouths of the Justices; instead, he praised only the ruling's "eloquent" affirmation of the idea that one's "convictions" reached in the pursuit of life's mysteries lie "beyond the reach of law." Fourth, he gave equal time to Stone's dissent, which stressed the importance of "religious conscience."

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When Does the Supreme Court Acknowledge Out-of-Court Developments?

Cross-posted at Legal History Blog:

What do Brown v. Board of Education, West Virginia State Board of Education v. Barnette, and Lawrence v. Texas and all have in common? All three rulings expanded constitutional freedoms by invalidating a state law or local practice. In each instance, the Justices faced the prospect of overruling a much criticized opinion, which they did more or less in vindicating a pro-rights position. Where they diverged dramatically is in the extent to which decision makers proved willing to acknowledge that external events helped alter their jurisprudence.

Imagine a sliding scale measuring the transparency of a jurist's treatment of how cultural change impacts doctrinal content. Lawrence is most open about out-of-court factors causing "serious erosion" of controlling precedent. Justice Kennedy discusses two types of influences: (1) the actual practice of enforcement of anti-sodomy laws, which imposes a "stigma" and "carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example"; and (2) "substantial, and continuing criticism, disapproving of [Bowers v. Hardwick's] reasoning in all respects," from academic objections to disapproval by state courts, international courts, and foreign nations.

Barnette comes next, as the published decision, too, contains references to academic objections to Gobitis and the collateral legal consequences faced by the Jehovah's Witnesses. But the Court was originally poised to go further. Early drafts repeatedly referenced the "responsible statements of the Department of Justice," "psycopathic patriotism" unleashed by Gobitis, the drawbacks of the "flag salute movement," and the Nazi persecution of Jehovah's Witnesses abroad. Jackson eventually acceded to the concerns of his law clerk and Harlan Fiske Stone that these statements were unseemly or violated the canons governing judicial craft. Instead, Jackson gutted Gobitis largely by disagreeing with its reasoning point by point.

On this scale, Brown, perhaps the decision in which the average citizen most expects to find a resounding recitation of the degradation inflicted by the law, proves least willing to confront the social world directly. The only changed circumstance discussed at any length is not altered moral views on segregation or systemic harms exacerbated by the courts, but rather the evolving importance of public education. That social fact is cited to avoid a strong originalist methodology as well as to distinguish Plessy v. Ferguson but not overrule it outright. Even before the Justices could agree to end racial segregation in schools, they were united against inflaming the people's passions unnecessarily.

This raises questions that the study of history can help answer. First, under what circumstances do judges feel free, or even under some pressure, to acknowledge out-of-court developments? On this view, the Supreme Court may have felt most confident that it was jumping on the bandwagon in Lawrence, but was most reticent in Brown. But were the Justices responding to elites or broader attitudes? To what extent did it matter that they were dealing with race, religion, or sexual orientation?

Second, how much of the difference in presentation is due to changing norms of judicial writing? According to this way of thinking, the legal process school still constrained how legal outcomes were explained in the mid-twentieth century but by 2003 we had not only all become realists, many of us had become social scientists as well. Do changes in presentation reflect a relaxed orientation on the part of jurists or an accommodation of what consumers of judicial opinions expect?

Third, the Supreme Court's portrayal of its own work may reveal competing, equally plausible models of representative democracy. Brown contemplates judicial participation in constitutional lawmaking, but arguably treats reason as something ideally practiced according to relatively self-contained precepts; denying extrajudicial influences preserves some notion of integrity. Lawrence, and to a lesser extent Barnette, may represent a more unruly approach, in which "public reason" is achieved in a complicated dance involving institutions interacting with broader social forces. If so, such a model may be less pretty or intrinsically coherent, but its virtues may lie in the mediation of historical complexities as forthrightly as possible.

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The Law Clerk's Memo to Robert Jackson in Barnette

Cross-posted at Legal History Blog:

One of the more fascinating documents in Robert Jackson's files on West Virginia State Board of Education v. Barnette is an undated memo from "JFC"—Jackson's first law clerk brought over from the Department of Justice, John F. Costelloe.

One idea suggested by Costelloe involves when courts ought to permit an individual a First Amendment exemption from an otherwise valid law. Costelloe wonders how to protect rights without interfering with the "many items of school discipline which will inevitably offend the tastes of students"—a concern that bedevils jurists to this day. He proposes a kind of "substantial difference" test: "a minimal requirement for refusal to salute the flag in a public school should be a showing of difference in political, ethical, or religious opinion to a degree which may fairly be called substantial." Given his mention of political and ethical objections, Costelloe envisions an approach that could be adopted in contexts beyond the flag salute. Jackson apparently resisted this suggestion and finessed the standard.

Another set of comments establishes that some members of the Supreme Court and their clerks were aware of, and found important, certain extrajudicial events and perspectives. First, Costelloe advises Jackson that it is possible to describe the persecution of the Jehovah's Witnesses as a perversion of Gobitis, and not in any way sponsored by the Court: "Because lawless mobs may have misunderstood its meaning is not in itself a reason to change it." This comment echoes one separately made by Chief Justice Harlan Fiske Stone. But notice that these criticisms help to explain why the final opinion downplays the extent of the persecution, but they do not disprove that out-of-court events affected the Justices' thinking. Nor do the changes to the text alter the likelihood that Jackson himself believed that Gobitis bore some responsibility for certain anti-democratic attitudes and behavior.

Second, Costelloe refers to the "June 16, 1940 radio address [in which] Solicitor General Biddle said that the Attorney General had ordered that an investigation be commenced." A reference in the opinion to this speech was later deleted.

Third, Costelloe endorses Jackson's plan to cite to the article by Victor Rotnem and F.G. Folsom, Jr., two lawyers from the Civil Rights Division of the Department of Justice—which I have called an unofficial amicus brief. Costelloe notes that the article "contains many statements of opinion quite inapposite to a formal report by a governmental agency or statement by a governmental opinion speaking in that capacity," and that it is therefore "intended more for advocacy than for exposition." Even so, he concludes: "I should think that it would be desirable to indicate the position of these gentlemen in the Department of Justice." Though Jackson and others likely read and considered DOJ's extrajudicial appeal, this reference was excised from the opinion before publication.

Fourth, the law clerk "think[s] it would be well to work into the opinion rather exhaustive references to the secondary materials on the Gobitis case. The list of Gobitis haters begins with Powell, . . . and continues until we reach the anonymous student notes. Their practical unanimity is, I think, of some significance and possibly of some help." These out-of-court writings make the final cut. Why cobble together all of these sources unless you are trying to suggest one consensus has rapidly eroded and another has emerged—supported by thoughtful Americans, including members of the Executive Branch?

What Caused the Supreme Court to Change Its Mind on the Flag Salute?

In Chapter Five of Eloquence and Reason, I consider the ways in which war has altered how we talk about the First Amendment. A linchpin of the post-World War II order is the case of West Virginia State Board of Education v. Barnette, which vindicated the right of objecting Jehovah's Witnesses to refuse to salute the American flag. I have authored an article, Reconsidering Gobitis, that develops themes in the book by drawing on more extensive archival materials.

Cross-posted at Legal History Blog:

The question of causation is notoriously difficult to assess, in law as in history. The legal system's goals of fashioning incentives just-so and compensating injured parties demand that participants assign responsibility. Judges and juries identify the "proximate cause" or "motivating factor" because, in a sense, they must. In history, no normative enterprise need constrain one's investigation of cause and effect. Often, one can be satisfied by merely showing that some underappreciated factor had a part in human affairs.

When it comes to constitutional history, pressing a bit harder on the relationships among causal factors can yield insights as to how the political order operates. We might wish to know the relative power political and legal actors have in practice, the social conditions under which an influence on the law can be exerted, and the tools available for acts of constitutional meaning-making and transformation.

A fascinating case study can be found in the U.S. Supreme Court's switch on the constitutionality of the coerced flag salute in the early 1940s. As America geared up for war, the Justices originally held in Minersville School District v. Gobitis that national unity counseled against recognizing a First Amendment right to refuse to salute the American flag. Three years later, the High Court abruptly reversed course, concluding in the famous Barnette case that respect for pluralism and individuality favored vindicating the Jehovah Witnesses' claim.

What best explains the sudden change? Two of the stronger explanations for the switch involve the wave of terror against Jehovah's Witnesses after the first ruling, vividly documented by Shawn Francis Peters; and changes in the Court's personnel in the intervening years (as analyzed in numerous judicial biographies).

In Reconsidering Gobitis: An Exercise in Presidential Leadership, which is hot off the presses, I offer an alternative account: the extra-judicial words and deeds of the Roosevelt administration played a significant role in the Supreme Court's turnabout. These actions signaled that the right of conscience was a presidential priority and framed such a right as the legacy of a just war. No brief was filed by the United States government in either lawsuit, but archival documents show that Robert Jackson kept FDR apprised of developments in Barnette. Department of Justice lawyers authored an article laying the extra-legal violence against the Jehovah's Witnesses squarely at the feet of the Supreme Court, urging the Justices to undo the damage by reversing themselves, and suggesting that such a corrective would implement the president's agenda, "The Four Freedoms." Speeches by key aides emphasized religious liberty and conscience, all while denying public support to Gobitis; these speeches were prominently quoted by the litigants. Finally, Robert Jackson's early drafts of Barnette suggest that the Justices and law clerks were aware of these executive branch efforts, though most of these references were later excised or downplayed during the opinion writing process, effectuating an erasure of presidential action.

Who has the better of the historical argument? What lessons can be drawn if we view this sequence of events as a sophisticated exercise in what Keith Whittington calls "political construction" of the Constitution?