When The Laws Were Silent


Next in seniority was Hugo Black, who, before his appointment, had been a senator from Alabama. During his two terms in the Senate, Black had been a faithful party wheel horse who had supported every piece of major New Deal legislation, including Roosevelt’s court-packing plan. Immediately after the defeat of that initiative, FDR had the opportunity to make his first appointment to the Court, and he chose Black. There was a public outcry when it was revealed that Black had been a member of the Ku Klux Klan, and the newly minted Justice took to the radio to declare that he’d been in the Klan a long time ago, and only as a matter of political expediency when running for an Alabama political office. He was to serve thirty-four years on the Court and be one of the most influential Justices of the twentieth century.

Stanley Reed was born in Minerva, Kentucky, and practiced law in nearby Maysville from 1910 until he went to Washington in 1929 to be general counsel to the Federal Farm Board and then, in 1932, to the Reconstruction Finance Corporation. Roosevelt named him Solicitor General in 1935 and appointed him to the Supreme Court three years later. Considerably less colorful than some of the other Roosevelt appointees, Reed was often the swing man when the Court split 5 to 4 on philosophical questions.

Next in the line of Roosevelt appointees was Felix Frankfurter. Born in Vienna in 1882, and a professor at Harvard Law School for twenty-five years before being named to the Court in January 1939, Frankfurter was a well-known legal scholar and writer and had been identified with numerous liberal causes, among them the trials of Sacco and Vanzetti in the 1920s. A brightly plumaged bird who never gave up his professional mien in his battles for judicial restraint, he would serve on the Court for more than twenty years.

Justice Murphy circulated the draft of a caustic dissent chastising the Court for approving a program that “utterly subverts” individual rights in war.

Less than three months after appointing Frankfurter, Roosevelt had a fourth Court vacancy to fill. He chose the forty-year-old William O. Douglas, a Yale Law School professor and then a member of the Securities and Exchange Commission. Douglas would serve more than thirty-six years as an Associate Justice—the Court’s all-time longevity record—and establish a reputation as a bastion of its liberal wing.

The next year, FDR got yet another opportunity, and this time he picked Frank Murphy, a former governor of Michigan, high commissioner to the Philippines, and briefly the Attorney General of the United States. Murphy would serve only nine years, but that was enough to establish him as a nearly messianic champion of the underdog.

When Roosevelt elevated Stone to Chief Justice in June 1941, he appointed Attorney General Robert H. Jackson to fill the vacancy thus created. Jackson, who came from western New York and had served as both the Solicitor General and Attorney General, was an excellent writer, and his opinions showed it. He left his judicial duties immediately after the end of World War II to become the United States prosecutor at the Nuremberg trials, and his experience there had a profound effect on his judicial philosophy.

The ninth member to hear the Japanese internment cases was Wiley B. Rutledge, also appointed by Roosevelt. Born in Kentucky, he served as a law professor and a judge of the federal court of appeals in Washington before going to the Supreme Court in 1943. He was to serve only six years and during that time joined Murphy as a less fervent, more scholarly champion of the underdog.

The Japanese-Americans were represented in the Supreme Court by able counsel, including Edwin Borchard, William Draper Lewis, Brien McMahon, and Osmond K. Fraenkel. Their basic contention was that the President’s Executive Order was unconstitutional because it proceeded on the basis that an entire racial group was disloyal, rather than being based on any individual determinations of disloyalty. Briefs supporting these petitioners were filed by the American Civil Liberties Union, the Northern California branch of the American Civil Liberties Union, and the JapaneseAmerican Citizens League.

The government in its brief recited in great detail the calamitous military events of the early days of the war—these ranged from the Pearl Harbor raid to the fall of the British stronghold of Singapore—which it thought justified the orders now being challenged, and went on to catalogue the “concentration of war facilities and installations on the West Coast [that] made it an area of special military concern at any time and especially after the sensational Japanese successes.”