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W, World War II.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

World War II.

During the period 1941–1945, the United States waged total *war against Germany and Japan, fully mobilizing both its population and its economy in a struggle to defeat the Axis enemy. The Supreme Court enlisted in this national crusade, giving constitutional sanction to the steps taken by the president and Congress to achieve military victory. Although protecting freedom of expression, it rejected all challenges to the economic controls adopted by the federal government and repeatedly subordinated other constitutional rights to the supposed demands of military necessity.

Complicating the Court’s efforts to deal with the legal issues raised by total war were personal and philosophical conflicts among the justices. Chief Justice Harlan *Stone (1941–1946), who seemed utterly unable to control his fractious colleagues, once compared them to a team of wild horses. They disagreed, for example, over the extent to which judges should defer to legislative determinations. All subscribed to *judicial self-restraint in cases challenging the constitutionality of economic regulatory legislation, but while Justice Felix *Frankfurter thought this same approach should be followed when *civil liberties were at issue, a number of his colleagues insisted that individual rights should be accorded a preferred position and that governmental actions impinging on them should be subjected to rigorous judicial scrutiny (see preferred freedoms doctrine). World War II also revealed disagreements within the Stone Court over the appropriateness of subjecting actions of the commander in chief and the armed forces to judicial examination.

The Court did not have to wrestle with that issue until well after the United States formally declared war in December 1941. Franklin D. *Roosevelt took a number of constitutionally questionable actions between the outbreak of hostilities in Europe in September 1939 and the Japanese attack on Pearl Harbor on 7 December 1941. These included initiating an undeclared naval war with Germany in the North Atlantic and seizing several defense plants threatened with strikes. None of these presidential actions ever came before the Supreme Court.

Economic Regulation

The Court did pass judgment on one of Roosevelt’s creations, the Office of Price Administration (OPA). Originally established by Roosevelt in the exercise of his inherent emergency powers, OPA received congressional sanction in the Emergency Price Control Act of 1942, which empowered it to set prices. In *Yakus v. United States (1944), the Supreme Court rejected the contention that this statute delegated too much legislative authority to an administrative agency. While technically the Court did not rule on the issue of whether federal *war powers gave Congress itself the authority to fix prices, Stone’s opinion left little doubt that the six members of the majority believed it did. In a companion case, Bowles v. Willingham (1944), the justices rejected a procedural *due process challenge to a requirement that OPA rent controls had to go into effect before their validity might be litigated. The Court even upheld the right of OPA to suspend, without benefit of any judicial process, fuel-oil deliveries to a retail dealer who sold oil in violation of the agency’s coupon-rationing system. In Steuart and Bros. v. Bowles (1944), the Court reasoned, somewhat implausibly, that no judicial process was required because OPA’s suspension order did not constitute punishment but was merely a means of promoting the efficient distribution of fuel oil. So tolerant were the justices of governmental actions in the economic realm that they upheld as a valid exercise of the war power the Housing and Rent Act of 1947, which was not even enacted until after the fighting was over and the president had proclaimed hostilities to be at an end.

Freedom of Expression

The Court’s willingness to uphold almost any economic regulation based on wartime necessity resembled the its posture during *World War I. In the area of freedom of *speech, though, the Supreme Court’s performance during this war contrasted sharply with its response to World War I. The federal government had vigorously repressed dissent during the first war, prosecuting socialists, German-Americans, and other critics of government policy under the *Espionage and Sedition Acts. The Court affirmed the convictions the government obtained, consistently rejecting arguments that these violated the *First Amendment. American liberals came to regret the repression of those years, and, during World War II, Attorney General Francis Biddle sought to prevent another wholesale assault on freedom of expression. The liberal Stone Court (p. 1104) shared his commitment. In Hartzel v. United States (1944), it overturned the Espionage Act conviction of a fascist sympathizer who had mailed to army officers and Selective Service registrants literature urging the occupation of the United States by foreign troops. The same day, in Baumgartner v. United States (1944), the Court unanimously set aside the denaturalization of a German-born citizen accused of continued loyalty to Adolf Hitler’s Third Reich, and in Keegan v. United States (1945), it ruled that the evidence against twenty-four members of the German-American bund was insufficient to support convictions for conspiracy to counsel resistance to the draft. Although decided on narrow grounds and without declaring any legislation unconstitutional, these decisions afforded considerable protection to the exercise of First Amendment rights.

The Court’s most important defense of freedom of expression came in *West Virginia State Board of Education v. Barnette (1943). Three years earlier, in *Minersville School District v. Gobitis (1940), it had upheld a Pennsylvania school board’s expulsion of Jehovah’s Witnesses’ children for refusing to salute the flag, with Frankfurter emphasizing in his majority opinion that the flag salute served to build national unity and that national unity was the basis of *national security (see religion). Now, in the midst of a war, the Court reversed Minersville. Frankfurter dissented, arguing that the justices should not substitute their policy views for those of the legislators who had adopted the flag-salute law. Rejecting his pleas for judicial restraint, the majority emphasized that the First Amendment permitted *censorship of expression only when the expression in question presented a *clear and present danger of an evil the state was empowered to prevent and that it demanded an even more urgent and immediate reason for compelling affirmation.

Although the Supreme Court rigorously protected freedom of expression, it proved to be an unreliable guardian of other constitutional values. It is true that its ruling in Cramer v. United States (1945), expansively interpreting the Constitution’s requirement that treason be proved by the testimony of two witnesses to the same overt act, provided a remarkable degree of protection against the overuse of one of the most serious and abused charges in criminal law. But Justice William O. *Douglas pointed out in dissent that this decision went so far as to make future treason prosecutions virtually impossible. Apparently concerned about that, the Court in Haupt v. United States (1947) voted 8 to 1 to sustain a conviction based on evidence that did not really satisfy the requirements of Cramer. That ruling facilitated numerous treason prosecutions of American nationals, such as “Tokyo Rose,” for allegedly assisting the Germans and Japanese during the war.

The Court’s decision in *Duncan v. Kahanamoku (1946) also did little to protect civil liberties. At issue was the imposition of martial law in the Territory of Hawaii. The Supreme Court ruled that establishing military tribunals to try civilians there had been illegal, but it based its decision on the failure of the armed forces to comply with the provisions of the Hawaiian Organic Act rather than on the constitutional provision governing suspension of the writ of *habeas corpus. Furthermore, the Court did not decide Duncan until two years after the termination of military government in Hawaii and one year after the war ended (see military trials and martial law).

It likewise extended protection to *conscientious objectors only after the fighting ended. In Girouard v. United States (1946) the Court overruled three earlier decisions, holding that they were ineligible for naturalization. Earlier, however, in In re Summers (1945), the Court had held it was constitutional for Illinois to refuse to permit a conscientious objector to practice law.


While the fighting raged, the Court would do nothing that might interfere with the quest for victory. Convinced that protection of individual rights should not hamper the nation’s ability to wage total war, the Court upheld as constitutional any governmental action that the executive branch insisted was required by military necessity. It even allowed 112,000 Japanese-Americans living on the West Coast, 70,000 of whom were United States citizens, to be punished without indictment or trial and blatantly discriminated against on the basis of *race. They were subjected to a curfew, then banned from coastal areas, and subsequently shipped to inland detention camps, known euphemistically as “relocation centers.” In *Hirabayashi v. United States (1943), the Court ruled unanimously that the curfew order was constitutional. In *Korematsu v. United States (1944), it upheld the validity of the exclusion order. Speaking for the Court, Justice Hugo *Black acknowledged that in the absence of a war, this sort of curtailment of the civil rights of a single racial group would have been unconstitutional. He observed, however, that hardships are part of war and argued that the Japanese-Americans could be required to bear this one because national security required it. In fact, War Department officials and even government lawyers (who willfully deceived the Court about this matter) knew there was no military necessity for the exclusion and confinement of the Japanese Americans. Justice Frank *Murphy, who dissented, characterized Korematsu as a plunge into the ugly abyss of (p. 1105) racism. In Ex parte Endo (1944), the Court ruled that a Japanese-American girl whose loyalty to the United States had been clearly established was entitled to a writ of habeas corpus, freeing her from a relocation center. In neither this case nor Korematsu, though, was the Court willing to examine the constitutionality of the relocation program itself.

Military Trials

As these Japanese-American cases reveal, during World War II the Supreme Court succumbed to a constitutional relativism that made the security of individual rights dependent on the extent to which their exercise might interfere with the fight against Germany and Japan. The justices did not want to impede prosecution of the war, and they deferred completely to the president and the armed forces on the question of what military necessity required. They practiced such deference even when it required ignoring judicial *precedent. Relying on the *Fifth Amendment’s requirement of a *grand jury indictment and the *Sixth Amendment’s guarantee of a *trial by jury, the Court had ruled in Ex parte *Milligan (1866) that military trials were unconstitutional where the civilian courts were open and functioning. The World War II Justice Department regarded Milligan as an inconvenient relic, and in Ex parte *Quirin (1942) it persuaded the Supreme Court to disregard it. The president had determined that military necessity required trying eight captured Nazi saboteurs before a secret military commission. Although Milligan required that at least some of them be granted civilian trials, the Supreme Court upheld a presidential order creating the commission that failed even to comply with applicable statutes.

At least in Quirin the Court started from the assumption that the Constitution applied, stoutly maintaining that, even in wartime, judges might examine the legality of executive actions. When the defeated Japanese commander in the Philippines sought review of his military conviction for war crimes, it refused even to consider his case. In In re Yamashita (1946), the Court took the position that an enemy general could have no constitutional rights. What that meant, of course, as the dissenters recognized, was that in dealing with some people the government was not constrained by the Constitution from which it derived its authority.

The idea that the enemy had no rights was to have enormous appeal amid the anticommunist hysteria associated with the early years of the cold war between the United States and the Soviet Union (see communism and cold war). So would the sort of constitutional relativism that authorized the sacrifice of individual rights to the perceived demands of national security. These lines of reasoning were an unfortunate legacy of a wartime Court that, though committed to the protection of civil liberties, was so determined to advance the wareffortthatit oftensubvertedthem.

See also foreign affairs and foreign policy; presidential emergency powers.

Michal R. Belknap, “The Supreme Court Goes to War: The Meaning and Implications of the Nazi Saboteur Case,” Military Law Review 89 (1980): 59–96. J. Woodford Howard, Mr. Justice Murphy (1968). Peter Irons, Justice at War: The Story of the Japanese American Internment Cases (1983). Richard Polenberg, War and Society: The United States 1941–1945 (1972).

Michal R. Belknap