by Peter Irons
American participation in World War I had provoked widespread dissent, and White House and Justice Department officials had refused to restrain the vigilantes who whipped up wartime hysteria or to protect their victims. But officials had little dissent to suppress in World War II, which most Americans supported without reservation. Eight days after the Pearl Harbor attack, Roosevelt, promised to respect the Constitution. “We will not, under any threat, or in the face of any danger, surrender the guarantees of liberty our forefathers framed for us in our Bill of Rights,” he assured the American people. Wendell Willkie, the Wall Street lawyer whose Republican bid to block Roosevelt’s third-term election in 1940 had failed by five million votes, echoed the president. “We must preserve civil liberties for all or else our sacrifices in winning this war may be in vain,” he stated. Roosevelt’s attorney general, Francis Biddle, told the country it was “essential at such a time as this that we keep our heads, keep our tempers,—above all, that we keep clearly in mind what we are defending.”
Not all Americans kept these admonitions clearly in mind. Shortly after the smoke cleared over Pearl Harbor, the West Virginia board of education adopted a resolution that borrowed liberally from Justice Frankfurter’s Gobitis opinion. Proclaiming that “national unity is the basis of national security” and that “conscientious scruples” do not excuse students from “obedience to the general law”, the board made the flag-salute ceremony mandatory in all schools. The resolution also borrowed wording from the Minersville school board in Pennsylvania and provided that “refusal to salute the flag be regarded as an act of insubordination, and shall be dealt with accordingly.”
Enforcement, of the new regulation varied in West Virginia’s schools, but local boards in several communities around Charleston expelled dozens of Jehovah’s Witnesses for refusing to salute the flag. Their parents could not heed Frankfurter’s advice to Walter Gobitas. With the “forums of public opinion” closed by majority vote and the “judicial arena” shut by the Gobitis decision, Witnesses had nowhere to turn. Their lawyer, Horace Meldahl of Charleston, filed three suits in state court asking for a “writ of prohibition” against the board’s resolution, and each was denied without hearing. But the gloomy legal weather suddenly cleared on June 8, 1942. On that sunny day in Washington, three justices who had joined Frankfurter in Gobitis repented their votes. Justices Black, Douglas, and Murphy lined up at the confessional and asked for absolution. They took this unusual step in dissenting from Justice Reed’s opinion in another Jehovah’s Witnesses licensing case from Georgia, Jones v. Opelika, decided with similar cases from Arkansas and Arizona. Five justices voted to uphold the licensing laws, which imposed modest fees on “peddlers” of literature. Witnesses refused to pay the fees, claiming First Amendment protection for soliciting donations for their religious pamphlets. “We see nothing in the collection of a nondiscriminatory license fee,” Reed wrote, “which abridges the freedoms of worship, speech, or press.” Chief Justice Stone, recently elevated to that post by President Roosevelt, argued in dissent that Opelika’s fee burdened “itinerant” preachers like the Witnesses while the town’s “accepted clergymen” could distribute literature in their churches without any license.
The three judicial penitents joined Stone’s dissent, but they added a statement calling Reed’s opinion “a logical extension of the principles” on which Gobitis rested. “Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it also was wrongly decided.” Clearly, news reports and photographs of handcuffed Witnesses and burned churches had speared their consciences. Frankfurter, who derided the judicial trio as “the Axis” to friends, scornfully asked Douglas if Black had been reading the Constitution. “No, but he has read the papers,” Douglas replied.
Stone and his “Axis” allies still lacked one vote to reverse Gobitis, but that vote was likely to arrive soon. Two members of the Gobitis majority, James McReynolds and Charles Evans Hughes, had already departed through retirement in 1941. Hardly anyone missed the bigoted and belligerent McReynolds, but the Chief Justice had been widely respected; his West Coast Hotel and Jones & Laughlin opinions had finally moved the Court into the twentieth century. Roosevelt replaced McReynolds with Senator James Byrnes of South Carolina, who won his Court seat as a consolation prize for losing the vice-presidential nomination to Henry Wallace in 1940. Byrnes spent just one unhappy term on the Court, and eagerly accepted Roosevelt’s offer to become “assistant president for economic affairs.” He later served as South Carolina’s governor and staunchly defended racial segregation; his long life—he died at ninety-two—made his brief judicial tenure fortunate.
Roosevelt’s first choice to replace Hughes as Chief was his attorney general, Robert H. Jackson, who badly wanted the post. Jackson had spent just one year in law school, but he built a thriving practice in upstate New York and became a trusted adviser to Roosevelt during his term as governor. He followed FDR to Washington in 1933 and moved quickly up the legal ranks to serve as solicitor general and attorney general. Jackson had pressed Roosevelt to place Frankfurter on the Court, and expected Frankfurter to return the favor. But the politically savvy justice told the president that although “I’d prefer Bob” on personnal grounds, he backed Stone’s elevation for political reasons. Stone was a Republican, and with war looming, FDR would win plaudits “as a national and not a partisan President” by choosing him. Jackson did not get the job he wanted, but he took Stone’s place as associate justice. His resentment at being passed over for Chief soured his relations with Stone, and his personal feud with Hugo Black spilled into public sniping in 1945 and embarrassed the Court.
The last of Roosevelt’s nominees, Wiley Rutledge, filled the seat that James Byrnes had barely warmed. Born in Kentucky in 1894, the oldest child of a Baptist minister, Rutledge had a peripatetic education and career, attending school in North Carolina, Tennessee, and Wisconsin and teaching high school and then law in Colorado, Indiana, New Mexico, Missouri, and Towa. An ardent liberal and loyal New Dealer, he spent four years on the District of Columbia appellate bench before Roosevelt picked him at the urging of Francis Biddle and Justices Douglas and Murphy, whose Opelika dissent read almost like a want ad for Rutledge,. After chatting about his background, Roosevelt quipped, “Wiley, you have geography!” He also had the courage to dissent from opinions by Stone and Black that he considered betrayals of the Bill of Rights. Rutledge served only six years before his sudden death at fifty-Five, but he earned in that short time the “near great” ranking that scholars later bestowed on him.
Even before Rutledge joined the Court, the Opelika dissents and rumors of Byrnes’s impending departure had encouraged the Witnesses’ lawyers to prepare new challenges to flag-salute laws. They found a large group of expelled students in West Virginia and brought suit in their parents’ names in federal court. Walter Barnette, whose two daughters had been expelled from Slip Hill Grade School, came first in alphabetical order. Filed in August 1942, the case moved quickly from the district court in Charleston to the Supreme Court, arriving for argument in March 1943. It came with a ruling against the state’s flag-salute law; a panel of lower-court judges rejected any “blind following” of Gobitis as precedent, because the Opelika dissenters “have given public expression to the view that it is unsound,” and because forcing children to salute the flag against their beliefs was “petty tyranny” and violated the spirit of the Constitution. The judges virtually invited the Supreme Court to overrule Gobitis. With Rutledge on the bench, their invitation was eagerly accepted.
The only surprise was that Robert Jackson, Frankfurter’s close friend and judicial ally; joined the “Axis” in West Virginia Board of Education v. Barnette. Even more surprising was that Jackson agreed to write an opinion that would surely infuriate Frankfurter. Most amazing of all, Jackson tore Frankfurter’s Gobitis opinion to shreds; the justice with one year of law school h
anded the Harvard professor a failing grade in front of the whole class. This hardly rivaled Justice Roberts’s “switch in time” that derailed Roosevelt’s court-packing plan, but it raised questions about Jackson’s switch from Frankfurter’s side to the “Axis” position during the same judicial conference session. What made flag-salute laws so different from licensing fees? And what prompted Jackson to break with his friend so publicly. Unfortunately, Jackson never discussed his reasons, and Frankfurter’s letters and diary shed no light. Whatever the reasons, Jackson wrote his Barnette opinion with passion and power.
Like a table. Frankfurter’s Gobitis opinion rested on four legs. One held up the flag as a symbol of “national unity.” A second found the flag-salute ceremony an “appropriate means” of fostering the “cohesive sentiment” on which that unity depended. A third held that compelling students to join the ceremony on pain of expulsion was an allowable means of fostering that sentiment. Lastly, matters of “school discipline” were better entrusted to local officials than to federal judges. These legs supported Frankfurter’s conclusion that giving “exceptional immunity” to children with “conscientious scruples” against saluting the flag would hinder “the promotion of national cohesion.”
One by one, Justice Jackson knocked out each leg of Frankfurter’s table. He did not question the flag’s symbolic potency. “Symbolism is a primitive but effective way of communicating ideas,” Jackson wrote. But not everyone agrees on a symbol’s message. “A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn,” he wrote. Jackson noted that officials who wield symbols often demand “a salute, a bowed or bared head, a bended knee” as gestures of deference. He pointed to William Penn and other Quakers who “suffered punishment rather than uncover their heads in deference to any civil authority” in colonial America.
Jackson denied Frankfurter’s assertion that compulsory flag-salute ceremonies would foster the “cohesive sentiment” on which “national unity” supposedly depended. Demanding that children “simulate assent by words without belief and by a gesture barren of meaning” to them, he argued, would more likely produce conflict than cohesion. Jackson looked both to ancient history and recent headlines for support. He cited “the Roman drive to stamp out Christianity,” the Spanish Inquisition of Jews, the Siberian exile of Soviet dissidents, and “the fast failing efforts of our present totalitarian enemies” as evidence of the “ultimate futility” of efforts to “coerce uniformity of sentiment” behind religions or regimes. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters,” he warned. “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Frankfurter had mentioned the Bill of Rights in Gobitis only to deny that it excused “obedience to a general law not aimed” directly at religious dissenters. He advised them to “fight out” their battles with local officials at the ballot box. Jackson answered in words that matched the best of Holmes and Brandeis: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Frankfurter had entrusted to elected officials “the guardianship of deeply cherished liberties” and praised the local school board as “one of our most cherished democratic institutions.” Jackson did not trust local officials to guard the Bill of Rights against voters who demanded that religious minorities defer to majority sentiment. He knew from his small-town experience that “village tyrants” could exert more power in their communities than far-off politicians or even presidents. Jackson concluded with these words of admonition: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The final sentence in Jackson’s opinion sent the Gobitis opinion to the judicial graveyard. The opinion that eight justices had joined, only three years carlier, was now overruled by a majority of six. The Barnette decision, in effect, offered the Court’s apology to Jehovah’s Witnesses for their children’s suffering. Justices Roberts and Reed dissented in silence, perhaps abashed by the consequences of their earlier votes. But Frankfurter remained unabashed and unrepentant; his angry dissent made no effort to hide his wounded feelings. Two colleagues, Owen Roberts and Frank Murphy, counseled him to strike its first sentences as “too personal,” but Frankfurter took the overruling of his Gobitis opinion as a personal rebuff, and rejected their advice.
“One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution,” Frankfurter began. It was this reference to his Jewish roots that Roberts and Murphy considered out of place. But as Frankfurter confided in his diary, “I was literally flooded with letters” after his Gobitis opinion “by people who said that I, as a Jew, ought particularly to protect minorities” from public hostility. He decided to answer those letters in his Barnette dissent. “Were my purely personal attitude relevant,” he explained, “I should wholeheartedly associate myself with the generally libertarian views in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic.”
Having spoken as a Jew, Frankfurter now spoke as a judge. “As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I May cherish them or how mischievous I may deem their disregard,” he continued. “It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.” Frankfurter emphasized his “duty of deference to those who have the responsibility for making the laws,” a duty relieved only when he could find no “rational justification for the legislation.” These sentences expressed the “rational basis” test that Justice Stone had limited to “ordinary commercial transactions” in Carolene products. But in Footnote Four of that opinion, Stone had urged “more exacting judicial scrutiny” of laws infringing religious or political rights. Frankfurter, however, rejected Stone’s test, reasserting his belief that no constitutional provision occupied a “preferred position” over any other.
What angered Frankfurter even more than Jackson’s Barnette opinion was the apostasy of the “Axis” justices who joined it. Without naming them, he noted that every justice but Rutledge “has at one or more times found no constitutional infirmity in what is now condemned.” Frankfurter was outraged that flag-salute laws the Court had upheld in five prior cases were “now outlawed by the deciding shift of opinion” of the justices who changed their minds. Unlike Hugo Black, who read the papers, Frankfurter was not moved by news reports of violence against Witnesses or editorials condemning the vigilantes. “The Court, has no reason for existence if it merely reflects the pressures of the day,” he complained. He asked with unconcealed sarcasm whether a Constitution designed “to endure for all times” had now capsized under “the shifting winds of doctrine.”
In a symbolic gesture, the Court handed down its Barnette decision on June 14, 1943, celebrated as “Flag Day” across the nation. Jehovah’s Witnesses could now return to the schools that had expelled them for disloyalty. But the Gobitas and Barnette children, and other young Witnesses who stood up to “village tyrants” like Superintendent Roudabush, had
a higher loyalty to their deeply held religious beliefs. Even today, other young people—not all of them Witnesses—face pressures to salute the flag under pain of suspension. In 1998, MaryKait Durkee decided to remain seated during the flag-salute ceremony in her eleventh-grade class at Fallbrook High School in southern California. She took her stand—by refusing to stand—because “I don’t believe there is ‘justice for all’ in this country all the time,” as she told a reporter after being suspended from school. It took a lawsuit filed by the American Civil Liberties Union to remind school officials that the Supreme Court had decided this issue more than fifty years earlier. Even after MaryKait’s legal victory, she received an editorial paddling by the San Diego Union-Tribune for “her lack of respect for the country she lives in.” MaryKait remained seated as her senior year began at Fallbrook High, but she started classes with “a more positive outlook,” because “I have learned that justice is possible through a process.
27
“A Jap’s a Jap”
The justices who decided the Barnette case on Flag Day in 1943 were bitterly divided over the expulsion of young Witnesses from their schools for disloyalty. Just a week later, however, they agreed without dissent in a case that involved more than 100,000 Americans who were expelled from their communities for disloyalty. The mass evacuation of Japanese Americans from the West Coast during World War II and their confinement for three years in tar-paper barracks—fenced by barbed wire and guarded by armed soldiers—confronted the justices with their own test of loyalty. Does the Constitution protect “all classes of men, at all times, and under all circumstances, equally in war and in peace,” as the justices stated without dissent in 1866? Or can “the clamor of an excited people” and the government’s claims of “military necessity” allow the suspension of constitutional rights during wartime? The justices faced these momentous questions in deciding the challenges of three young Japanese Americans—Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu—to the army’s evacuation and exclusion orders.
