Reconsidering Gobitis: an exercise in presidential leadership.

• Author: Tsai, Robert L.

TABLE OF CONTENTS INTRODUCTION I. REIGNING ACCOUNTS A. The Trajectory of First Amendment Doctrine B. "We Knew We Were Wrong" C. The War Effort D. The Suffering Witnesses and the Empathic Court E. Personnel: The Role of Judicial Appointments II. THE SWITCH AS LINGUISTIC TRANSFORMATION A. Gobitis: The Supreme Court's Opening Bid as to the Scope of the First Amendment B. The Elements of Presidential Repudiation 1. The Role of Presidential Rhetoric 2. Judicial Appointments: Laying the Groundwork a. Harlan Fiske Stone b. Robert H. Jackson c. Wiley B. Rutledge 3. Other Instances of Executive Branch Signaling a. Eleanor Roosevelt b. Francis Biddle c. The Department of Justice d. The War Department 4. Interlude: What Did Roosevelt Privately Think About the Pledge? C. Judicial Revision: The First Amendment as a Legacy of War 1. The Anti-Pamphletting and Licensing Ordinances: A New Regime Emerges 2. Barnette: Entrenching the "Four Freedoms" III. THE LESSONS OF HISTORY A. The Undiscovered Republican Moment B. Critiquing Barnette: A Road Not Taken C. Assessing the Strategy of Presidential Erosion CONCLUSION INTRODUCTION

On June 14, 1943, the United States Supreme Court ruled that the First Amendment safeguarded the right of school-age Jehovah's Witnesses to refuse to salute the national flag. The sparkling decision penned by Robert H. Jackson extolled a "sphere of intellect and spirit" (1) protected by the Constitution and concluded that coercing a dissenter to participate in the civic ritual was incompatible with the idea of rule by "consent of the governed." (2) In the process of articulating the rationale of West Virginia State Board of Education v. Barnette, (3) the Justices overturned a ruling written a mere three years prior by a more senior member of the Court, Felix Frankfurter.

Several factors made this turnabout surprising. First, the earlier decision reversed by the Justices, Minersville School District v. Gobitis, (4) commanded all the votes of the High Court save one. Jurists are not only generally loath to upset previous rulings, they are also by disposition especially reluctant to reverse such lopsided majorities. Thus, something unsettled these constitutional understandings rapidly and decisively.

Second, despite the divergent outcomes, the tone of the freshly-inked opinion matched the prior ruling's confident exposition--Barnette did not read like a cautious effort to distinguish or supplement existing law, but rather as an evisceration of the earlier composition. The Court's declaration of religious and intellectual freedoms in a time of war was every bit as forceful as its earlier call for domestic unity. In three short years, not only had a judicial presentation of law become socially untenable, but also a new institutional consensus emerged to take its place.

Third, many of the background social factors that prevailed at the time of Gobitis were still in play. As litigants prepared to square off over the flag issue once again, Allied Powers may have been turning the tide in Europe but the final outcome in the Pacific remained unknown. By the same token, Japan's December 1941 attack on America had sowed widespread panic, yet somehow it did little to arrest the momentum of the transformation underway toward an enhanced right of conscience. Whatever happened to alter the conditions of constitutional law-making, its dynamics were not at the mercy of military skirmishing alone, but aligned with changing perceptions of the relationship between foundational ideas and armed conflict. The question remains: who was best placed to effect a wholesale change in such perceptions once the Supreme Court had spoken?

If the depth, breadth, and swiftness of this historic switch are to be appreciated, the episode must be examined against the entire politico-cultural landscape. Part I of this Article critiques the reigning accounts of the switch in time over religious conscience. Each has its merits, but each, upon closer inspection, proves to be a poor stand-alone or primary cause of the doctrinal reversal. Moreover, none offers a persuasive explanation for the rich content and confident tenor of Barnette. Some other powerful force characterized these events in ways that made a legalistic defense of Gobitis difficult to sustain, pressured the Justices to reconsider, and offered the tantalizing prospect of forging a new consensus over the First Amendment. Presidential action fulfilled all three conditions, and it fills the narrative gaps in the conventional explanations.

Relying on archival materials and secondary resources, Part II uncovers and analyzes a series of actions by the executive branch to undermine the social plausibility of Gobitis. These actions have long been underappreciated because the administration took no formal position in either lawsuit. I draw special attention to Franklin Delano Roosevelt's shift in presidential rhetoric, coupled with other instances of executive branch signaling, in eroding the cultural foundations of Gobitis. Presidential language not only pervaded the political consciousness, it also seeped into lawyers' filings and the statements of insiders, opinion-makers, and activists. In recognizing and responding to this multi-pronged strategy, the Justices borrowed heavily, if not exclusively, from presidential rhetoric to reconstruct the First Amendment in light of America's war experiences. The administration's efforts to create a new discursive convergence gave thematic coherence to a competing reading of the First Amendment. They also pushed the Supreme Court to reconsider its position and held out the possibility of the social cooperation necessary for the Court to take a pro-rights position. Once the government staked out its position on the right of conscience, the assurance of cooperation gave jurists the confidence to demolish Gobitis. 2008] RECONSIDERING GOBITIS 367

Part III evaluates some of the normative implications of this alternative model of constitutional development, in which the rhetorical consensus forged through presidential initiative spurred a recalibration of rights in the courts as well as new ways of talking about rights. (5) Although they faced a unique alignment, the Justices did not fully capitalize on the deliberative moment by transparently acknowledging executive branch participation. Instead, they copied the President's words and ideas without attribution in Barnette, thereby scrubbing out of the official narrative executive branch participation. This missed opportunity has left generations of Americans with the mistaken impression of judges as the lone heroes in this dramatic sequence of events. Jackson's confident tenor underscored the triumphal image of the jurist as champion of the oppressed. A more interactive portrayal of rights development, however, would have better promoted rule of law values.

While the switch represented only one episode of constitutional transformation, a reevaluation of the episode sheds light on the ways in which courts as institutions respond to social developments in the construction of legal texts. It also suggests when the strategy of executive erosion might be pursued and the conditions under which it might prove successful.

1. REIGNING ACCOUNTS

   In a span of three years, the United States Supreme Court placed the practice of saluting the national flag beyond the reach of the First Amendment, then abruptly changed course to rule that coercing a religious dissident to participate in the ritual transgressed one of the Constitution's "fixed" principles: an abhorrence of state-imposed orthodoxy in politics or religion. (6) Several standard accounts of this switch have crystallized in the secondary literature, with each emphasizing either a causal mechanism internal to or external to the Court. Some of these explanations--such as the doctrinal account--are simply not plausible; others are incomplete as stand-alone explanations. I review briefly each of these accounts before presenting the sequence of events so as to restore executive branch participation.

   1. The Trajectory of First Amendment Doctrine

      Perhaps the easiest account to put aside is that a discontinuity in precedent precipitated the overruling of Gobitis. In general, intervening occurrences present a cause for reconsideration of an earlier ruling if a legal rule proves unworkable in practice or if later decisions erode the logical foundations of that rule; otherwise, the practice of stare decisis strongly favors affirmation of settled principles of law. (7)

      At midcentury, a genuine dispute existed over whether the rule of stare decisis should be used to bar the revisiting of constitutional cases. Justice Brandeis was among the most forceful proponents of the view that a more lenient approach to stare decisis was warranted in reading the Constitution because "correction through legislative action is practically impossible." (8) Whether or not the Justices themselves felt so bound over the question of religious conscience, the prevailing custom usefully delineates what should be relevant from the internal perspective of the High Court's work. (9)

      If we treat Gobitis as significant primarily for establishing a method for handling religion-based objections, nothing transpired between the years of 1940 and 1943 to call into question its doctrinal coherence or workability. (10) The closest--and the one most often mentioned by observers because several Justices in dissent took the opportunity to denounce Gobitis--was the 1942 controversy of Jones v. City of Opelika. (11) There, the Justices affirmed a local licensing ordinance governing the sale of books, rejecting the argument that the First Amendment shielded from prosecution the Jehovah's Witnesses who ran afoul of the law. (12)

      The Supreme Court granted reargument in the case and consolidated the matter with another appeal raising similar issues. Upon reconsideration, the Justices decided in favor of the...