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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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?