Book bands and defamation cases. Cliff sloan, your second book is about the Supreme Court but a very different era from the first one. Tell me about the court at work. The court that war is about the Supreme Court during world war ii, and it is a very, very interesting and momentous time for the court, and it is really the roosevelt court. Let me back up and tell you how i got interested in the subject. I was working at as a special envoy for the closure of guantanamo in 2014, and i was reading the decisions on military detention, including the notorious and shameful korematsu case. I noticed that the first of the shameful antijapanese decisions , which was about a curfew targeted at japaneseamerican citizens, was decided exactly one week from one week before one of the greatest Civil Liberties decisions in the courts history, West Virginia for the board of education versus burnett, where justice rep. Jackson gave an opinion that struck down the compulsory flag statute that the jehovahs witnesses had objected to. I noticed that within seven days the Supreme Court had issued one of the worst Civil Liberties decisions in history and one of the greatest Civil Liberties decisions in its history. And, so that puzzled and interested me, and i think that we are very interested in reading about the Supreme Court during world war ii. I discovered that there is not much written on that as a subject. There is a tremendous amount written about fdrs battles with the Supreme Court, in the 1930s, his failure to pack the court, and by enlarging it, the famous switch in time that saved nine where one justice changed his vote to allow the upholding of new deal programs, and there is a lot written on the warren court beginning in the 1950s. But there is very very little written on the Supreme Court during one or two as a subject. World war ii as a subject. It turns out to be quite a story. With many important lessons for today, and many very many interesting personalities in terms of the justices, the lawyers that appear before them, and the litigants. The single overriding fact is the nominations for the justices, even the war overriding everything, for the entire country, and the justices are part of the country. And in understanding the Supreme Court, its one thing that i think is important, to realize that the justices are part of the times. They are part of what is going on in the country and part of what is going on in washington. I do not mean that in a sort of onedimensional way. That is just automatically determined by what is happening. That would be artificial. But it is just as artificial to think of them as somehow closed off. We read these decisions in the four corners. Its important to understand what is happening at the time and never more so than during world war ii. We are creatures of our time. Sloan absolutely. I start the book with one anecdote that is very telling of this point. It was actually told to me by a gentleman who is about to turn 100 years old. The day after the pearl harbor attack, he was working as an 18yearold aid in the Supreme Court library. And he was doing what an aide does, dropping and picking up books. All of a sudden he saw, coming through the front door, armed u. S. Soldiers with their weapons drawn and they took up positions around the windows and the roof of the court, and the reason was that fdr was going to speak to congress at noon that day in his famous speech where he said december 7 1941, a day which will live in infamy. This is the day after this devastating surprise attack, the military expanded the security perimeter so that it was guarding the Supreme Court, which is right across the street from the capital, where fdr was going to be speaking. It is so symbolic of the war, literally, invading the product quite precincts of the Supreme Court, with the soldiers all stationed around. And one other anecdote that it illustrates the same point is that a few weeks later, on dece6, 1941, Winston Churchill was addressing a joint session of congress, he had come to d. C. In a surprise visit, the two allies worked together now, and he addresses the joint session of congress. And all of the Supreme Court justices are in the front row. They had actually adjourned early so that they could be there. And churchill gives this rousing speech, and at the end he pauses and looks out at the crowd, and in the front row, chief Justice Harlan stone lifts his fingers in the trademark v for victory sign and answers to churchill doing the same thing. Again,65 it was very clearly a message to the court within the war. How did it turn out that when the world war started, fdr had seven of the night justice, but he had been battling the court so much to expand it. What happened to turn it around . Sloan that is one of the most fascinating things about this. Something that is not very well understood. This is really the time of the peer roosevelt court. As you say, throughout the 1930s, he has his failed Court Packing plan in 1937, but there is the switch in time that saved nine with justice owen roberts, appointed by herbert hoover, the man fdr had defeated. But very soon after that, in the next few years, there is a wave of retirements and a couple of deaths. One interesting thing, it is well known that fdrs Court Packing plan failed, the plan to enlarge the court. There was a little noticed companion piece of legislation which consider libby considerably improved the Retirement Benefits for justices if they were 17 years old or older and if they had served for more than 10 years. And remember, his plan was to appoint a new justice for every justice over 70. Whether it is cause or effect and causing an effect or not . Pretty soon after Congress Passed that law, considerably enhancing those benefits, a number of the justices retired in the next few years. They may have been reacting to the change in the dynamic with owen roberts but it is remarkable that in the summer of 1941, fdr had appointed 70 seven of the nine justices and validated harlan fiske stone, originally appointed by Calvin Coolidge, he had elevated him to be chief justice. Eight of the nine justices on the court over their positions to fdr. It was by far the biggest impact on the court of any president since george washington. Does that retirement package still exist . Sloan it does, it has stayed in effect. I think it has been tweaked over time. But that retirement package does still exist. Before we dig further into your book, lets look at you. For folks who watch our landmark cases, you are here to talk about your first were here to talk about your first subject. How any cart cases have be argued before the Supreme Court . Sloan seven. And what are you doing now . Sloan im teaching law and current adjusters. And you were talking about how you incorporate the Current Issues of the day into what you are teaching at the court, last year, the Dobbs Decision for example. This has been a summer with a great number of stories about justices and their ethics reporting and even whether or not congress has any say over how the court is organized. Can you comment about what your observations are about that and how will you teach that . Sloan well, its a very interesting and very important question. And there is a lot of relevance in the book on that, which i will explain, which is important to debate. I think that we absolutely need a binding code of ethics for Supreme Court justice specificity. People point out certain logistical problems or challenges, including with enforcement, and there are challenges. But the problems with whatever the problems with a binding code of ethics, its much worse not to have one in terms of the Public Confidence and character of the court. It is extremely important that we have that. I also think that when we talk about a code of ethics it is important, when we think about the Supreme Court, that beyond the code of ethics we have a strong sense of ethical norms. And that it is enforced through Public Opinion and public reaction, in addition to the binding ethics. The current controversies have primarily involved Financial Issues and justices appointed by republican president s. Thats one of the reasons that i think what happened with what happened with the supreme justices in order to is so important for todays conch conversation. We talk about the number of justices that fdr appointed and it was not just the number, they were extremely close to him and revered him. Many of them were very involved in political and policymaking activities with him. And i am somebody who greatly admires fdr and his presidency, but i think and i greatly admire and respect the justices who served on those court, it was from initially interesting they were a tremendously interesting group. But the political and policymaking activities were wrong and inappropriate for Supreme Court justices. I can give you some examples for them. But to your question, one of the points that i think it highlights which is very important is that this is not a partisan issue and it should not be a partisan issue. I think it is very unfortunate that to some extent it is taken as a partisan issue. We have had issues with justices appointed by democratic president s, including those in the during world war ii, and we have had issues with justices appointed by republican president s. This should be a bipartisan issue, not a nonpartisan issue, where we should have very strong ethical requirements for the justices and we should have strong ethical norms. One other point that you were making in thinking about this and the sort of separation of powers and is there a problem. Some opponents of ethics codes says congress has no business telling the Supreme Court how to run it. I dont think that there is merit to that argument at all. The constitution gives the congress a great deal of authority over the Supreme Court, including the number of justices, the calendar of the Supreme Court, the kinds of cases it can hear, except for a very small group that the constitution says is in the original jurisdiction of the Supreme Court. Now, there is a limit on it. Congress cannot direct the court like in the case of smith versus jones, there is a limit on what congress can do in terms of governing the Supreme Courts affairs, but under the constitution, under our system of checks and balances, congress has a great deal of authority with regards to how the Supreme Court operates and how justices operate. The justices have to file tax returns. Nobody says that they should be immune from that because congress cannot speak to the justices. The code of ethics falls in a similar category. You can say it is different because it is focusing directly on the Supreme Court as opposed to the same allegations as every citizen, but i think that congress has a lot of authority with respect to this type of issue. One more elephant in the room. You teach governor justice at perhaps and have two deal with some of the most important cases coming up, the truck trials. Are you teaching them as they are happening in real time, and the one issue that is of importance to us and our audience is whether or not there will be cameras or audio of some sort in those court rooms when these trials are underway . Do you have an opinion on that . Sloan i will start with the cameras. Im all for cameras in the courtroom, including in the Supreme Court, and people get into all sorts of debates about what it undermined the quality, and would be a distraction, and i dont think that it would be. But i also dont think that is the right question. Under our system of government, we should have a view of openness and transparency, whether the Supreme Court or the local and federal courts, the idea that only a small group of people who spend the night outside the court to get in or are paid line sitters have such limited access to such events of such crucial National Importance i think is simply misguided and inconsistent with our system of government. I am very skeptical of situations that are nominally open to the public, and in reality, are open to the very very limited a very very limited group of people. I am all for it, cameras of the courtroom. In the interest of chapters say, cspan has been very vocal on those issues. Sloan and in the interest of transparency, i did work at the Washington Post company and i was a lawyer for them and a general counsel on their online subsidiary. And you have written Opinion Pieces about the litigation, do you have anything to say about wet sand . Where it stands . Sloan these are very important cases in terms of the charges, these are very very grave charges. The charge of undermining and overthrowing our democracy, and obviously it is in unprecedented an unprecedented time, i get bothered by some of these pending cases is by the claim that some make that this is all all of the activities that the president and people around him are charged with, those were all just normal activities of a president or within the scope of official responsibility and therefore cannot be challenged. And i feel very very strongly to the contrary on that, and i think that in terms of the charges that have been brought, with the january 6 trial, that have been brought, those kinds of activities should be viewed as within the official duties of the president , being very very dangerous that is a very very dangerous and alarming motion. In terms of the documents case, i spent time in different situations where i have dealt with classified information, i mentioned the guantanamo closure. I and everybody in my office and everybody in the state department and other places i have worked, you have to be so careful about classified documents. When i was a special envoy, my desk had to be completely clean, when i left at night, and there would be people who would come around and check. To anybody who has worked in that classified document world, the kind of cavalier approach to classified documents has come up in the course of that proceeding is truly shocking. Lets go back to the 1940s, were two and fdr and the court that has supported efforts during that time. We could probably spend an hour on each one of the characters because they were larger than life many of them, but lets say a bit on harlan fiske stone. He presided over a court that was fractious and bitter and full of internal rivalry, how much of that was his doing . Sloan it was his doing in the sense that he was the chief justice, and he was not at all able to kind of manage it and control it and mitigate it. It would have been a formidable challenge for any chief justice. But he seems particularly illsuited for it. Was appointed to the Supreme Court by Calvin Coolidge in 1925, coolidge had been at Amherst College buddy of his, he has been both a columbia had been a columbia law professor, a dean, and a law wall street lawyer. He had been brought in as the attorney general to clean up the department after the scandals of the harding administration. When he got to the court, people thought that he was going to be very probusiness, given his background. And the only sort of opposition to him came from that. But he actually turned to be out to be one of the few who were was willing to uphold social and economic legislation when a conservative court was dragging it down left and right left. He joined with the other justices in seeking to uphold legislation. It was kind of a surprise. Fdr made him chief justice in the summer of 1941, and the main reason that fdr did, and this is undisputed and you see this in contemporary documents, in 1940 one, fdr was singlemindedly focused on preparing for war, which he thought was inevitable. He wanted to be as bipartisan as possible, and the previous summer in 1940 he had appointed two very prominent republicans to be secretary of war and secretary of the navy, trying to have a bipartisan government. He loves the idea of having a republican as chief justice, elevating a republican as a sign of national unity. That was actually the main reason stone became chief justice. But he did have all of these very very strong outings, all of whom thought they should be leaving the court, will disagree with each other, on substantive grounds and personal issues. And harlan fiske stone turned out to be a very weak chief justice. I cant do all of the justices, but what was surprising to me is to justices only two justices had any experience before the court. Sloan it is such a contrast to todays court, and those two, hugo black, and frank murphy, hugo black was briefly a judge in the police court in birmingham and frank murphy had been a local judge in detroit before coming care of detroit and governor of michigan. And then the only justice who had any federal and judicial experience was wiley rutledge, the last judge who came out in 1943. Rather than judicial experience, the justices all had a very distinguished and accomplished public lives. They were former senators, you had a former governor, a former chair of the securities and exchange commission, you have to former attorneys general of the united states, they had these very large public lives, and in contrast, the current Supreme Court, all except one justice, elena kagan, had previously served as federal appellate judges. It is really a very dramatic contrast, and with Supreme Court appointments, people debate it used to be the justices had a much broader public experience, and some people think that we should have or go back to justices having that experience because it gives them a better overall sense of the issues of the impact, and there are other people who say no, its best to have people coming up through the federal judiciary because their role as judges and their background in politics or government actually might not be a good thing. There is a debate about that, and its very striking compared to the other courts. I just want to ask you about some cases as were going along here, rather than talking about individual biographies. The average age went from 72 years old in the prior court down to 56. Younger and marketed very attitudes came to the court. An accidental Senate Approval processes, unlike what we saw today. Sloan they absolutely zipped through, and the idea of appearing as a witness in a hearing, unrestricted topics, there had been one example before were somebody. Before the Judiciary Committee to answer opinions on the specific topic, but it was nothing like today, but one thing that was a controversy with hugo black who had been a senator from alabama was that it came out after his confirmation that he had been in the ku klux klan. And this was a big controversy after his confirmation. One of the things that i found very interesting is that there were rumors and allegations of this, before his nomination was voted on in the senate, they talked about it on the four of the senate, and there was nothing like what we would have today, which is kind of a serious inquiry to it, there are questions of the nominee where they had to address it, they kind of brushed it aside, and there was a pittsburgh newspaper did a pulitzer prizewinning series detailing his kkk activities, it was a completely different time in terms of the way confirmations unfolded. One of the character that regularly appears in your story is john phillips, did he see himself as the neutral arbiter of justice or someone beholden to the president . Is interesting, because i think that he would have said he sawimself as a neutral arbiter , and he was actually, he was from a prominent philadelphia family. The jeweler family . I believe so, im not 100 positive, but he had ancestors who had been very involved in the federal government going back to the founding. Very very prominent family. And he thought of himself who cared a great deal about seven to Civil Liberties. He talked about some very crucial matters where he ended up being somebody who was unduly loyal to the president. And it may be that we are going to get into the japanese internment and incarceration, but that was example. He was opposed to it, and internally he and others in the Justice Department opposed it. He was unwilling to tell the president that was unconstitutional in his view and would raise constitutional problems. He viewed it as a policy matter in the end and said if the War Department wants to do it and the president wants to do it, we will just try to help them implemented. And i think that the tragic historic failure was a tragic historic failure on his part. It shows the difference between ones conception of oneself and the record of ones actions. You referenced how the work influence the court, and some of the way the justices got involved seems unthinkable to contemporary americans. Give me a couple stories of some ways they were involved. Sloan in 1941, when there was a fuse debate in the country before pearl harbor about how active the u. S. Should be in supporting england and preparing for work, there was a strong isolationist sentiment, many of the justices gave speeches strongly supporting fdr. This is probably the biggest policy issue in the country at the time. And there were clear political lines on it. Many of the justices were going around the country giving these speeches and they were closely coordinating with the white house in some instances. Frank murphy was the only catholic on the court, and he spoke before the knights of columbus urging strong support. And there had been some concern by some in the u. S. About supporting russia, which was now at war with germany because they were against religion. And frank murphy said that we should put aside that concern and strongest with them. And fdr let it be known to murphy that he was tickled to death by emerge murphy speech. There was a whole series of exhortations by the justices. Especially saying that we need to support the president and his view on this. Even when it wasnt coordinated with the white house, everybody knew that this was the highest priority before fdr. And through 19 51, 9051, there was a lot of discussion about possibly joining the Roosevelt Administration and joining him in sort of Senior Defense capabilities, such as william douglas, its the single most striking example of this, just as james, jimmy burns, a senator from south carolina, appointed in the Supreme Court in the summer of 1941, and while he was on the Supreme Court after pearl harbors pearl harbor, he became very active with fdr in the white house, on warrelated legislation. He knew the senate intimately, he was a parliamentary master, and shortly after pearl harbor fdr made it clear to the administration that any related legislation had to go through jimmy burns and has to be approved by him. Burns was frequently working out of the white house during this stretch of time, and he was actually an intermediary, a key intermediary between the white house and congress on this major warrelated legislation, which would come before the Supreme Court while he was a sitting justice. In the fall of 1942, only 14 months after he went on the Supreme Court, fdr sister burns why dont you come to the white house fulltime. And you will be the assisted president in charge of domestic war efforts, im going to focus on the war, and oversee, and the birds left the Supreme Court and went to the white house fulltime. What in the 14 months before that, particular after pearl harbor, he was literally working out of the white house on legislation with comments, and in charge of the white house. And we are more than halfway through our conversation with cliff sloan, his book is the court at war, fdrs justices and the world that they may. Made. I wanted to talk about the german saboteurs case and how it involved Frank Roosevelt in this particular case. Give me the highlights of it. Absolutely. In early summer, 1942, there were two teams of nazi saboteurs who wereaptured, two groups of four. One landed on long island, and another landed in florida, and and one of the saboteurs, this was not known for some time, one of them actually went to the government and told them everything, and when he was trying to get through to the government, they thought that was a crank call and did not Pay Attention to it, and he finally got through to somebody at the fbi, and then there was a dramatic announcement by j edgar hoover, that they had captured these saboteurs who are blowing going to bluff stores and buildings and that kd of thing. And the attorney general reports to fdr about it, and fdr immediately becomes very involved. Was a history but, he starts talking about other traditionally back to the revolutionary war who were caught and promptly executed by hanging and and f ftr, he very strongly supports creating an extraordinary special military commission to try them, and fdr makes it very clear that he wants them tried, convicted and executed. Fdr issues to executive orders on this, and this is a very quick timeline, talking about how he thinks that it will be very important to have the example of quickly executing these people. And the saboteurs, there was a military colonel appointed to represent them, and he has a very substantial objection to this extraordinary military commission. The regular courts were open, and they could have brought charges in the regular court, they relied on civil war president s, he approaches the Supreme Court to take the case, the Roosevelt Administration agrees because they want everything to move promptly. And there is a private conversation that bill has with fdr, tells biddle, that he is not going to follow the decision and turn the prisoners over and he is not going to let this affect what they do. And the justices then have an extraordinary summer session, they usually recess for the summer, they had gone to different parts of the country, they come back for a special sitting, on this case, and frank murphy, he had briefly enlisted for the military for the summer, and he comes in in his army uniform, and he says what he meant, you cant sit on this phase, space, youre in the military and you have to recuse yourself. And if he reluctantly agrees. Another judge had been engaged with all caps our conversations about the composition of the commission and how it should be structured. The court holds a special two day hearing in the summer at the beginning of the justices conference, one of the justices had heard from middle that fdr said he would not follow if they rolled against him, and he shared this with the other justices, and this would be most unfortunate. They have two days of oral argument, and the other day they issued a brief one line order or one paragraph order, with a few sentences where they can just say the defendants objections are rejected, no reasoning, reasoning to follow. And the opinion takes effect immediately, forthwith, in the language of the opinion. And the justices all leave. And with one week, the saboteurs are convicted, and six out of eight of them are executed. Fdr had commuted the death sentences of two of the saboteurs, the one who had confessed, and the one who also knew that the other one was going to confess. And they were given long sentences. Now the justices had a problem because they had issues that were unexplained decisions, six of them have been executed, they had a terrible time, and they were really disagreeing about their reasoning, and it was the continents conscious of the fact that if they came out with a divided opinion it would look terrible because they had already summarily agreed to six of them being executed, and finally, they sort of stumbled across the finish line and did get to a unanimous opinion, but this basically basically since the day it was decided. This is been viewed critically. And a number of the just and Justice System cap to participate in it, many people said that was the wrong way to do their business because they could not figure out the reasoning once they had decided and wants the saboteurs had been executed. 20 minutes ago, and all of these cases are so interesting and complex, i have to pick my poison here. I wanted to spend a little bit more time, you already referred to how important they were, how shameful it was, this came out on february 19, executive 99066, the basis for japanese internment. Why was the court in two different places on crime onset and the other case . Korematsu and the other case . Sloan so lets back up a bit to kind of set the context. Hirabayashi involved with the curfew that was targeted against only american citizens, not germanamericans or italian americans, and that was the first of the cases to come to the court. And those two cases, in both of those cases, the Supreme Court upheld the fdr administrations blatantly discriminatory regime. This might be the end case that we are referring to, around the same time as korematsu, and hirabayashi was in 1943. The court said that we are only running on the curfew, we are not dealing with the internment and cursory incarceration. In the fall of 1944, they then consider two cases, korematsu and everybody has heard of korematsu, and i am glad you brought it up. Very few people have heard of the endo decision. With the crime onset decision, which was basically challenging korematsu decision, it was nging the right to incarcerate in the first place, the Supreme Court in one of the worst decisions ever issued by the Supreme Court, justice hugo black said upheld the Roosevelt Administrations incarceration and internment and said it was justified by the work, saying that the war imposes hardships. With endo, there was a woman named mitsue end ando her claim was that she, incarcerated should not be continue to be incarcerated because the government admitted she was not a security risk. And i want to make sure everybody is aware of this. The interment and incarceration policy apply to all japaneseamerican citizens and lawful japanese resident noncitizens. There was no opportunity to show that they were lowell loyal, or not a risk. And so korematsu was objecting to his initial incarceration, but endo was saying that you have now made a determination, an official determination, that i do not pose a security risk, and so i cannot now continue to be incarcerated. It is not authorized by that executive order and congressional legislation, and it would be unconstitutional. At this point in 1944, with what the justices said is that the executive order, a lot has time of time has passed, did not authorize continuing to keep somebody incarcerated once they had been determined to not be a security risk. This is late in december 1944, there were a lot of people who had been pushing for closing it. And even there, the justices took care so that it would not confront the Roosevelt Administration. It is fairly well established that justices on the court leaked to the Roosevelt Administration that they were going to come out with this ruling and the day before the ruling the Roosevelt Administration said it was now as a matter of policy ending the policy of incarceration if someone had established their loyalty. So that when the opinion came out, it was ratifying something that the Roosevelt Administration had done. Miss endo was the only woman who was litigating in this, and the only one who prevail. She is actually a true American Hero and i dont think enough people realize that they offered to let her go to end the case, and she refused. They said they would let her go as long as she did not go back to california and she wanted to go back to san francisco, and refused on principle. She thought that it was important to vindicate her rights and the rights of others in the camps. Thurgood marshall, during th time. , i counsel for the naacp, ared two cases before the court. One was about a rape case on a u. S. Army base and the other was texass segregated primary. What were the outcomes of those and what did they do to the cause of civil rights for americans . Sloan he won both of them, he won one of them on a technical ground, which really highlights the brilliance of Thurgood Marshall as a lawyer. But the second one was this significant one, smith versus all right, albright, striking down the all white primary in texas and throughout the south, which was a very very big deal. It had enormous consequences. Historians said that there is a trajectory that leads to brown versus the board of education 10 years later, Thurgood Marshall has a very important case on voting rest, its a door opening case. It was also reflective of what was happening in the country with civil rights, there is a great deal of civil rights activity in ferment during world war ii. The Africanamerican Community had adopted what it called the double v campaign, victory over fascism abroad and racism at home. There were extensive civil rights demonstrations and the dislocations of the war economy with a lot of africanamerican workers, and positions that they had not been in before, which had been subject to very ugly white backlash. This is all in the context of smith, and the way that Thurgood Marshall presented it and the way it was viewed was that they were fighting a regime based on racial supremacy and here, texas and the other Southern States were defending a primary system based on racial supremacy. And Thurgood Marshalls victory, that was his first major victory in a case that they argued in the Supreme Court in a very illustrious career in a Supreme Court advocate, and historically an extreme the important case. The contrast between what was happening in europe with the nazis, just thinking about korematsu, did the axis powers take advantage of that from a Public Relations aspect, saying this is how americans treat people who are different . Sloan that was not as much of a factor there. Where that came up was that there was a very important case, a compulsory sterilization law in oklahoma. And its a very important case on reproductive rights, this first case, skinner oklahoma, where they court finds a fundamental liberty interest in whether or not to have a child. Sterilization laws had been upheld previously as part of the Eugenics Movement of improving the race, and hs and the nazis, when they came in through 1930s, they did very aggressively point to that u. S. Practice of sterilization laws as justification for their own brutal sterilization regime. They invoked that american example repeatedly. And with the compulsory lease compulsory sterilization being struck down, that was very much a reaction of showing a difference between this country and the nazis. That played an important part in the decision. For cleft acacias on the texas primary case, there were many justices very enamored of fdr, this was an 81 decision, did the Roosevelt Administration take a position in the primary . Sloan its interesting. They decided not to participate, and again, Francis Biddle and others in the Justice Department who saw themselves as great civil libertarians and civil rights champions said well, weve done enough in other cases, this would sort of stir things up too much, and make the Southern States to angry. They did not file an amicus brief, but what they did do is that there were a couple of senior Justice Department officials that felt strongly about the case, and they allowed them to write an article saying that the court should reach this result of striking down the all white primarily. But they deliberately did not formally participate in the case. That was a source of real controversy. The civil rights attorneys went to Eleanor Roosevelt and he she raised with fdr, and she asked that he asked what gives here. Biddle then explained that this would be poking the Southern States in the eye and we thought that was unwise to do. The Roosevelt Administration actually did not formally participate in that case. I want to talk about a couple issues relevant to our time, inflation control. And you have a section describing the legality of fdrs wage controls, and you see that this is a new issue with the Current Court on the administrative state. What should we know about this case . Sloan during world war ii, the Supreme Court upheld brought Governments Authority to deal with complex problems and novel crises, including unprecedented controls over the economy, rationing, price controls and so on. It was a very very deferential view of the federal government and its power and authority in light of the gravity of the problem and the fact that the political branches are best suited to. This was an issue that probably united the post1937 court more than any other because free 1937, they have been striking down all of these government actions. They get very broad difference. On the current Supreme Court, we see the court adopting all sorts of new doctrines to really relent limit the governments ability to respond to novel crises and complex problems, the new major question stockton, interest in reviving pre1937 doctrine, they are limiting the government on issues ranging from their response to covid to Climate Change and saying that the government is not authorized. Its a very very dramatic contrast. That deferential approach the government and to Government Authority really lasted for probably 75 years. It served us well to have us have that deference to political branches, but you now see a different approach emerging on the current Supreme Court. I want to spend a moment on the chapter that is about fdrs rotation with william oh douglas , as his running mate. I feel like i learned more about fdr in that chapter then william oh douglas and the way he played people and their egos throughout the process. Sloan that is a very, very interesting set of events. 1954, fdr is running for a fourth term, he has decided to dump his Vice President in his third term, henry wallace, because he was viewed as a very erratic and eccentric and the party pros dislike him. Disliked him. And liberals and labor liked wallace. And fdr initially favored william oh douglas as sitting justice as his running mate. He was sort of infatuated with douglas. He said that he told great stories, he was part of fdrs poker circle, he left his background in the pacific northwest, his hair blue and the wind. Blue in the wind. Fdr said that he would leave it up to the convention, and the Convention Week itself, fdr releases a letter saying that he would be glad to run with either truman or douglas as his running mate, and there is a dispute about whose name he wanted to go first, because it was viewed significant that trumans name was first. These are the only meant names that he mentioned, truman and douglas. Up until the last day of the convention, douglas was the leading candidate, and douglas had people at the Democratic Convention in chicago working very hard with the party buses and bosses and Party Faithful at the convention to get the nomination for douglas. Douglas himself was not there, but he came very very close to getting that Vice President ial nomination and there is on a lot that suggested fdr wanted him to do it, but as a wily politician, he was keeping all of the constituencies in the party in play and up for grabs and ultimately they settled on truman. To me, i have to say, it is an illustration of an excessive closeness between hss and the president who appointed him. Douglas did not take himself out of the running. They were people there acting on his behalf, and we have had times in our history when justices actually work active in various kinds of political campaigns. But there was a chief justice in the 19th century who, when he was being suggested to be the republican nominee for president , emphatically ruled himself out and said that justices should stay far from the political world whirlpool. And i think that is the proper approach. Douglas never did that. He never ruled himself out to stay away from the political whirlpool oversight from the court to run for Vice President. In the couple minutes we have left, follow up on me on the lessons of fdrs work court. The subtitle suggests that the world they made that this court had a great impact. How should we think about them . Sloan it is really a tale of two courts. The best of courts, and the worst of court. Both have very important lessons for us today. The best of courts in my opinion in sort of selfconscious reaction to the totalitarians that we were fighting, the nazis and fascists, the court recognized and protected and expanded Constitutional Rights in areas like reproductive rights, voting rights, protecting despise religious minorities, giving government Broad Authority to deal with novel problems and complex proxies prices crises, and those controlled the legal courts for decades. Those are under fire today. But in my mind, those were very, very positive contributions, and it really established the groundwork. That is the world that they may. The worst of courts, we talked about the stain of the antijapanese cases, which is a very deep stain. As well as the nazi saboteur case, and the rush to justice in those cases. Those cases, i think, have important lessons for us. One is the danger of excessive deference to the governments claim of national security, because they were wildly inflated, but the second, which is especially important today, is the danger and the catastrophe that can result when justices are unwilling to stand up to the president who appointed them or to their political patron. And that is an especially important lesson today. At a time when, more than at any time in our history, the positions of the Justice System correlate with the Political Party of the president who appointed them. It is a very, very, that worst of courts side of the legacy is an important reminder and warning to us today but how about the need for Judicial Independence from the political sphere. s book is called the court at work fdrs justices and the world that made. Thank you so much for the hour. Sloan thank you, i really appreciate it, thank you so much. All q a programs are available on our website or as a podcast on our cspan now app