Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing Douglas E

University of Missouri School of Law Scholarship Repository

Faculty Publications Faculty Scholarship

2011 Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing Douglas E. Abrams University of Missouri School of Law, [email protected]

Follow this and additional works at: https://scholarship.law.missouri.edu/facpubs Part of the Legal Writing and Research Commons

Recommended Citation Douglas E. Abrams, Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing, 36 Journal of Supreme Court History 30 (2011). Available at: https://scholarship.law.missouri.edu/facpubs/736

This Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing

DOUGLAS E. ABRAMS

1. Introduction

In 1943, the Supreme Court handed down West Virginia State Board ofEducation v. Barnette. With Justice Robert H. Jackson writing for the six-Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state-imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort "may be the most eloquent majority opinion in the history of the Supreme Court." 2 Barnette reached the Court as the nation early Presidents, that have now moved Presi- waged global war, a dire moment in history dent Obama in both of his memoirs, and that that Part II of this article describes. For its otherwise continue as dual touchstones fre- high drama and the endurance of its doctrine, quently applied in law and popular culture. the case continues to engage historians and stu- Few cases summon the high drama dents of the Court. 3 This article concerns the that energized the Court in Barnette during singular eloquence pinpointed by Judge Posner wartime, but (as Part IV describes) focusing and others. 4 Justice Jackson adroitly balanced on reason and passion throughout the opinion- two ingredients-reason and passion-that (as writing process remains a useful judicial com- Part III describes) have marked assessments of pass today. Justice Jackson's blend ofthese two rhetoric and human experience since ancient ingredients, and his mastery of the written lan- times, that guided the nation's Founders and guage, bequeathed a decision whose bedrock JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 31

West Virginia State Board of Education's resolution requiring all public-school students and teachers to salute the flag and recite the Pledge of Allegiance each day followed quickly after Pearl Harbor was attacked.

First Amendment holding, according to Pro- Harbor. We had scarcely any air force. Army fessor Charles Alan Wright, "teems with vivid recruits were drilling with wooden rifles. And expressions and memorable statements" that there was no guarantee whatever that the Nazi still enrich the fabric of the law as statements war machine could be stopped." of core American values.5 General James H. Doolittle's daring bombing raid over Tokyo and other Japanese cities would buoy American morale, but the II. "Among the Darkest Times in raid was still a few months away (April 18). Recent Memory" So too were the first great American victo- Barnette's record began in early January of ries, in the Battle of the Coral Sea (May 4- 1942, barely a month after Japan attacked 8) and at Midway Island (June 4-7). Without the Pacific naval fleet at Pearl Harbor. His- the reassurance of hindsight available to later torian David McCullough recalls these days generations who know the war's outcome, as "[a]mong the darkest times in recent Americans in mid-winter 1942 remained res- memory." 6 "Hitler's armies were nearly to olute and committed, yet aware that the nation Moscow; ... German submarines were sink- faced an epic challenge to vanquish the Axis ing our oil tankers off the coasts of Florida Powers in total war. and New Jersey, within sight of the beaches, In the weeks following Pearl Harbor, ap- and there was not a thing we could do about peals to patriotism summoning young and it; ... half our navy had been destroyed at Pearl old spread quickly from coast to coast. On 32 JOURNAL OF SUPREME COURT HISTORY

January 9, 1942, the West Virginia State Board In 1950, one study condemned the nation's of Education followed a number of other state juvenile reformatories as "incompatible with and local school boards by passing a resolu- human dignity,... a black record of human tion that required all public school students and tragedy, of social and economic waste, of teachers to salute the flag and recite the Pledge gross brutality, crass stupidity, totalitarian reg- of Allegiance each day.8 The West Virginia imentation ... and a corroding monotony even resolution allowed no exemptions because, the deadlier than physical violence." 1 state board found, "national unity is the basis The brunt of statutes and resolutions like of national security." 9 West Virginia's fell heavily on the Jehovah's Noncompliance carried draconian pun- Witnesses, a small religious group despised by ishment. Where West Virginia schoolchildren many Americans for their sometimes aggres- refused to salute or recite in their classrooms, sive public proselytizing and for their refusal their parents faced imprisonment for violat- to serve in the military or to salute the flag ing compulsory education acts and citation or recite the Pledge. And for their success in for child neglect, which might cause tem- court. When Justice Harlan Fiske Stone wrote porary or permanent loss of custody. 0 The in 1941 that the Jehovah's Witnesses "ought to children themselves faced not only expulsion have an endowment in view of the aid which from school, but also delinquency proceed- they give in solving the legal problems of civil ings and confinement for "insubordination" in liberties," 12 he was not dispensing gratuitous state reformatories, austere institutions notori- praise; he was observing that the Witnesses ous for locking up vulnerable, dependent chil- had appeared regularly in court to seek the dren in close quarters with murderers, rapists law's refuge from dominant majorities, and had and other predatory and sometimes mentally frequently won. 13 ill adolescent criminals under the supervision In 1942, legislators and school authorities of physically and emotionally abusive guards. in West Virginia and elsewhere stood on solid

West Virginia parents faced imprisonment if their children did not comply with the flag-salute requirement. JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 33 constitutional ground because only two years reason to change it," wrote Justice Jackson's earlier, in Minersville School District v. Go- law clerk in an undated confidential memo- bitis, the Supreme Court had firmly rejected randum.21 Most historians acknowledge, how- religious freedom claims by Witnesses fami- ever, that the intensity of the post-Gobitis lies and held that the First Amendment per- brutality surprised and likely shocked Jus- mitted states and localities to mandate flag tices who had not anticipated such a bloody salutes and recitation of the Pledge in the pub- backlash against the small, peaceable religious lic schools.14 Less than three weeks before group that had summoned their protection.22 the fall of France to the Nazis, Justice Felix In the wake of Gobitis, as many as 2,000 Frankfurter wrote for the eight-Justice Gob- Witnesses children were expelled from the na- itis majority, and Justice Stone stood alone in tion's public schools, and many of their par- dissent despite Frankfurter's private entreaties ents landed in criminal court.23 On October for unanimity.15 "History teaches us," Justice 6, 1942, the special three-judge West Vir- Stone read from his dissent in open Court, ginia federal district court hearing Barnette "that there have been but few infringements v. West Virginia State Board ofEducation en- of personal liberty by the state which have not joined enforcement of the board's resolution been justified ... in the name of righteousness against more than a half dozen expelled Wit- and the public good, and few which have not nesses children, including Walter Barnett's two been directed ... at politically helpless minori- young daughters, who attended Slip Hill Grade ties" such as the Witnesses. 16 Justice Stone re- School outside Charleston.24 The unanimous jected "the position that government may, as a panel decision was written by Fourth Circuit supposed education measure and as a means Judge John J. Parker, who would have been of disciplining the young, compel public af- sitting on the Supreme Court except that the firmations which violate their religious con- Senate, by the scant margin of two votes, had science."17 refused to confirm him after President Herbert "Few Supreme Court decisions," wrote Hoover nominated him in 1930.25 one historian, "have ever provoked as violent a The three-judge panel recognized that public reaction as the Gobitis opinion." The lower courts ordinarily apply Supreme Court decision drew immediate condemnation from precedents until the Court itself overrules more than 170 leading newspapers and sup- them,26 but the panel declined to apply Go- port from only a few, but the swift reaction bitis, which the Court already appeared on the extended beyond written words." The deci- verge of rejecting. Judge Parker noted that in sion also unleashed a national wave of vigi- Jones v. City of Opelika (1942), another First lantism against the Witnesses, whose refusal Amendment appeal brought by Jehovah's Wit- to salute or pledge allegiance to the flag ap- nesses, the Court had distinguished the ear- peared disloyal or even treasonous to Ameri- lier decision and three members of the Gobitis cans who perceived the salute and Pledge as majority (Justices Hugo L. Black, William 0. domestic obligations with war clouds loom- Douglas and Frank Murphy) had called Gob- ing and who feared domestic subversion (the itis "wrongly decided," 27 Justice Stone's ear- so-called Fifth Column). Witnesses families lier approach in dissent. suffered beatings, physical intimidation, and "Under such circumstances and believing, property destruction from mobs, often while as we do, that the flag salute here required is local sheriffs and other law enforcement offi- violative of religious liberty when required of cers stood watching in evident approval, with- persons holding the religious views of plain- out intervening to secure the victims' safety.20 tiffs," wrote Judge Parker, "we feel that we "Because lawless mobs may have misun- would be recreant to our duty as judges, if derstood [Gobitis's] meaning is not in itself a through a blind following of a decision which 34 JOURNAL OF SUPREME COURT HISTORY

Justice Harlan Fiske Stone (pictured) stood alone in his dissent in Gobitis, despite Jus- tice Felix Frankfurter's private entreaties for unanimity in the wake of France's invasion by Germany.

the Supreme Court itself has thus impaired before he joined the Court, he cited Gobitis as an authority, we should deny protection to as inconsistent with the Court's usual "vigi- rights which we regard as among the most sa- lan[ce] in stamping out attempts by local au- cred of those protected by constitutional guar- thorities to suppress the free dissemination of anties." 28 ideas, upon which the system of responsible Gobitis dissenter Justice Stone and the democratic government rests."30 On the U.S. two newest members of the Court, Justices Court of Appeals for the District of Columbia Robert H. Jackson and Wiley B. Rutledge, Jr., Circuit, a few months before Judge Parker seemed poised to join the Opelika trio and wrote, Judge Rutledge dissented from a panel overrule the earlier decision. Jackson's distaste decision that upheld the convictions of two for Gobitis was known within the Roosevelt Jehovah's Witnesses for selling their religious administration while he was U.S. Attorney literature on a public street without securing a General before his appointment to the Court license or paying a tax.31 In an apparent ref- in 1941.29 When Jackson wrote The Strug- erence to Gobitis, Rutledge lamented that the gle for Judicial Supremacy a few months Witnesses "have had to choose between their JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 35 consciences and public education for their As complementary and sometimes antag- children." 32 onistic forces for assessing performance or be- The Supreme Court periodically over- havior, reason and passion hold an imposing rules prior decisions, but rarely one so freshly pedigree that now reaches to the highest levels minted as the near-unanimous Gobitis. With of our national life. In The Audacity of Hope, the nation and the world watching, and Barack Obama wrote that "the Constitution en- with ultimate victory over the Axis by no visions a road map by which we marry passion means assured, however, Gobitis fell in West to reason, the ideal of individual freedom to Virginia State Board of Education v. Bar- the demands of community." 36 Discussing his nette, often remembered as the "second flag- own religious upbringing in his earlier mem- salute case." With unmistakable symbolism, oir, Dreams from My Father, the future Pres- the Court handed down the new decision on ident also invoked the two forces, writing that Flag Day, June 14, 1943. his grandmother's family "read the Bible but Barnette left Justice Frankfurter in dis- generally shunned the tent revival circuit, pre- sent, together with Justices Owen J. Roberts ferring a straight-backed form of Methodism and Stanley B. Reed, who tersely noted their that valued reason over passion and temper- adherence to Gobitis but declined to join the ance over both." 37 Frankfurter opinion.33 Responsibility for ex- The synergy of reason and passion dates plaining the Court's unusual about-face fell from ancient times. Plato asked in The to Justice Jackson, who may have seemed an Republic whether "passion [is] different from unlikely candidate for the role. Justice Stone reason," and concluded that "the one ruling had ascended to the Chief Justiceship when principle of reason [is] that reason ought to Charles Evans Hughes retired in 1941, and, rule." 38 Aristotle said that "[a]ll the acts of by assigning the Barnette opinion to himself, man are necessarily done from seven causes: he could have vindicated his lonely stand in chance, nature, compulsions, habit, reason, Gobitis for protecting "freedom of mind and passion, desire." 39 "The law," concluded Aris- spirit," an appeal to conscience that one his- totle, "is reason free from passion."40 torian says "still ranks as one of the Court's The interplay between reason and pas- finest dissents." 34 Whatever the reason for the sion helped shape American political thought assignment, Justice Jackson did not disappoint from the nation's earliest years, beginning in the confidence that the Chief Justice placed earnest with the writings of Alexander Hamil- in him. ton, James Madison, and John Jay in the Feder- alist, the essays that throughout 1787 and 1788 advocated ratification of the Constitution by III. Reason and Passion in Historical the thirteen states. FederalistNo. 15, for exam- Perspective ple, argued strenuously for replacing the weak Barely a week after the announcement of Bar- Articles of Confederation because "the pas- nette, Time magazine, under the headline "Blot sions of men will not conform to the dictates Removed," wrote that the Court had "reaf- of reason and justice, without constraint." 41 firmed its faith in the Bill of Rights-which, Federalist No. 49 argued for avoiding in 1940 [in Gobitis], it had come perilously frequent future constitutional conventions, close to outlawing." 35 Justice Jackson accom- where "[t]he passions ... not the reason, of the plished his mission with a majority opinion public, would sit in judgment." 42 "[J]t is the that balanced reason and passion, twin guide- reason of the public alone that ought to con- posts familiar to historians and observers of troul and regulate the government," the essay contemporary American political and popular explained. "The passions ought to be con- culture. trouled and regulated by the government." 43 36 JOURNAL OF SUPREME COURT HISTORY

FederalistNo. 50 disparaged the outcomes of wrote to Attorney General Edmund Randolph earlier state constitutional conventions, where that he looked forward to a "time when passion "passion,not reason, must have presided." 44 shall have yielded to sober reason." 53 In his FederalistNo. 55 argued for limiting the Farewell Address in 1796, Washington warned size of the House of Representatives because the nation not to "adopt[] through passion what "passion never fails to wrest the sceptre from reason would reject," 54 advice that he would reason" in a multitude. 45 "[T]he more numer- repeat during his brief retirement at Mount ous any assembly may be," FederalistNo. 58 Vernon before his death in 1799. continued, "the greater is known to be the as- As one of history's great political philoso- cendency of passion over reason."46 Federal- phers and as an opponent of the Federalists ist No. 63 counted on the smaller Senate to before he became the nation's third President, check the impulses of "the people stimulated Thomas Jefferson likely knew the writings of by some irregular passion,... until reason, jus- the ancient Greeks and surely knew the influ- tice and truth, can regain their authority over ence of the Federalistessays. "Let nothing be the public mind." 47 spared of either reason or passion," Jefferson Long before George Washington presided wrote in 1810, "to preserve the public confi- over the Constitutional Convention, impulses dence entire, as the only rock of our safety." 56 to balance reason and passion guided his per- During the War of 1812, he opposed suspen- sonal and public life. As a schoolboy not yet sion of U.S. exports as "dictated by passion, sixteen, he had fulfilled a school exercise by not by reason." 57 copying 110 "Rules of Civility and Decent In one of his earliest published speeches, Behaviour in Company and Conversation," delivered in 1838, twenty-eight-year-old drawn from an English translation of a book Abraham Lincoln spoke out against a rash of that French Jesuits had compiled in the late lynchings for reflecting a "growing disposition 1500s.48 The 58th Rule left a lasting impres- to substitute the wild and furious passions, in sion on the future President: "[I]n all Causes lieu of the sober judgment of the Courts."58 of Passion [ad]mit Reason to Govern." 49 "Passion has helped us" by igniting the Rev- Washington's personal and public life so olution that won independence from Britain, fully reflected the Rules that biographers have the young Lincoln explained, but unrestrained regarded them as "formative influences in passion "will in future be our enemy. Reason, the development of his character."50 In 1783, cold, calculating, unimpassioned reason, must for example, General Washington learned that furnish all the materials for our future support some of his officers privately planned a meet- and defence."59 ing to discuss grievances against Congress, Abolitionist leader and former slave which had not paid them promised salaries Frederick Douglass wrote more generally or pensions; his Newburgh Address to the of- about racial justice in 1855: "There is no rela- ficers successfully dissuaded them from pur- tion more unfavorable to the development of suing the plan, which he condemned as "ad- honorable character, than that sustained by the dressed more to the feelings of passions than slaveholder to the slave. Reason is imprisoned 51 to the reason & judgment of the army." here, and passions run wild."60 Shortly after returning home from In our own time, voices in public-policy the Constitutional Convention in 1787, debates frequently urge resort to reason, not Washington wrote that "[a]ll the opposition to passion.61 The tandem also figures in Pres- [the Constitution] is ... addressed more to the idential messages and, as it has since at least passions than to the reason." 52 Weathering crit- 1837, in House and Senate proceedings. 62 Dur- icism in 1795 that his administration yielded ing the House Judiciary Committee's Water- too much to Britain in Jay's Treaty, Washington gate hearings in 1974, for example, Congress JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 37 member Barbara Jordan of Texas riveted the can or should let personal feelings affect the nation with her opening statement that "[i]t is decision making process. 72 The debate con- reason, and not passion, which must guide our tinues today as partisans frequently accuse op- deliberations, guide our debate, and guide our ponents of nominating and confirming "judi- decision." 63 cial activists," judges who assertedly decide Reason and passion also sometimes con- important cases based on their own personal strain judicial action. A civil judgment may be predilections rather than by strictly applying overturned or reversed on appeal, for example, precedents, statutes, and other relevant sources when counsel's appeal to juror bias produces of law.73 a verdict that "reflects passion rather than rea- This debate is not the issue here. This arti- son."64 In cases charging capital crimes or cle concerns, not how judges reach decisions, other serious offenses, courts and commen- but how vigorous, forceful writing can jus- tators regularly summon jurors to return ver- tify and explain decisions to the lawyers and dicts, judges to impose sentences, and citizens parties; to future courts, lawyers, and litigants to retain attitudes that are grounded in reason, under our system of stare decisis; and some- free from passion. 65 times also to lay readers in cases such as Bar- In a 2006 commencement address, Sec- nette, which touch on matters of wider social retary of State Condoleeza Rice told Boston concern. The Court had decided Barnette by College graduates about "five important re- internal debate and vote in conference before sponsibilities of educated people," including Justice Jackson ever put pen to paper. "the commitment to reason" and "the respon- Judges write opinions, not as private citi- sibility to find and follow your passion."66 zens, but as public officers vested by constitu- A year later, Massachusetts Governor Deval tion and statute with authority to speak with the Patrick told local community college gradu- force of law. Formulas do not decide cases, but ates that "[t]he willingness to face down pas- in constitutional and nonconstitutional decision and fear with reason and courage ... is the sionmaking alike, "reason" loosely means ap- 67 hallmark of the active citizen." plication of relevant legal doctrine to the facts, Writers have advanced various formulas and "passion" loosely means vigorous, force- for managing reason and passion. 68 So too ful opinion-writing that justifies and explains have contemporary philosophers, political the- the decision's grounding in fact and law. orists, government figures, theologians and bi- On a collegial appellate court, the appro- ographers, sometimes in the titles of books priate balance of reason and passion depends whose discussion strives to balance the two.69 in significant measure on whether the judge Commentators frequently cite the influence of is writing a majority, concurring, or dissent- calibrated reason and passion on public affairs, ing opinion. The majority opinion determines fiction and nonfiction books, movies, plays, the parties' rights and obligations while creat- opera, music, and sports.70 Speaking to the La ing precedents and rationales for future cases. Jolla (Calif) Music Society in 2004, for exam- Reason may rein in passion, because the writer ple, Justice Sandra Day O'Connor said that law seeking to maintain the majority knows that and music each represent "a fusion of reason our system of precedent means that every para- and passion."71 graph, sentence, and clause-including every passage tinged with emotion-remains grist for later citation and potential application. A IV. Reason and Passion in Judicial later court may find a particular passage to Opinion-Writing constitute holding, or else to constitute dic- Throughout our nation's history, much has tum warranting distinction or some measure been said about the extent to which judges of persuasive effect, but the passage's effect 38 JOURNAL OF SUPREME COURT HISTORY as a source of law derives from the court's science, even when reverence for the flag was constitutional and statutory authority to decide at stake. cases. The reasoned instruction would have Writers of concurring and dissenting fallen flat if Barnette's majority had deliv- opinions may feel less constrained because ered what then-Professor Felix Frankfurter their writings, by themselves, make no imme- had disparaged in 1931 as "the inevitable diate law. If the writer so chooses, a concur- lawyer's writing-the dull qualifications and rence, and particularly a dissent, can rely more circumlocutions that sink any literary bar- on passion, freer from the need to maintain a que or even freighter, the lifeless tags and coalition or to exercise circumspection in de- rags that preclude grace and stifle spontane- cision making. Dean Roscoe Pound said that ity."7 7 Turgid legalese would have decided the on a court of last resort, a dissenting opinion case for the parties, but would also likely "should express [the judge's] reason, not his have destined the decision for little more than feelings." 74 At one time or another, however, swift deposit in the U.S. Reports, barely re- most of the recent Justices have seen the media membered among later decisions that would call their dissents "passionate."75 reaffirm similar constitutional propositions. "A dissent in a court of last resort," wrote Instead, Justice Jackson assured Barnette's Chief Justice Charles Evans Hughes is, "an immortality by combining reason with pas- appeal to the brooding spirit of the law, to the sion to dismantle the four specific grounds intelligence of a future day, when a later deci- that Justice Frankfurter had advanced in sion may possibly correct the error into which Gobitis. the dissenting judge believes the court to have been betrayed." 76 The dissenter's appeal to posterity stands a better chance, however, with Gobitis Ground #1: Granting some pub- a disciplined dose of reason than with scarcely lic school children exemptions from restrained passion. From one era to the next, mandatory flag salute and recitation of Justices such as Oliver Wendell Holmes and the Pledge of Allegiance would make John Marshall Harlan have held the title of a the government appear "too weak to "Great Dissenter," but their influential dissents maintain its own existence." 78 (like Justice Stone's Gobitisdissent) persuaded Justice Jackson scoffed at the notion that future Courts with reasoned legal blueprints "the strength of government to maintain itself delivered forcefully, and not with unadorned would be impressively vindicated by our con- fist-pounding or shrill emotion. firming power of the state to expel a handful of Barnette demonstrates that focused pas- children from school." 7 9 "Government of lim- sion may also invigorate a majority opin- ited power need not be anemic government," ion's reasoned analysis. From the outset, ev- he continued, with passion accompanying the ery participant in the flag-salute drama sensed statement of reason. "Assurance that rights the high stakes at issue. Few claims of right are secure tends to diminish fear and jealousy command greater respect than sincere invo- of strong government, and by making us feel cations of religious liberty, and few justifica- safe to live under it makes for its better sup- tions for government action command greater port.... To enforce [the Bill of Rights] today force than invocations of national security in is not to choose weak government over strong wartime. As the Court fulfilled its constitu- government. It is only to adhere as a means tional responsibility to apply the First Amend- of strength to individual freedom of mind in ment during the struggle against totalitarian preference to officially disciplined uniformity regimes, Justice Jackson sought to instruct for which history indicates a disappointing and that Americans would tolerate personal con- disastrous end."80 JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 39

Gobitis Ground #2: By creating consti- Gobitis Ground #4: The Constitu- tutionally based exemptions to manda- tion permits mandatory in-school flag tory in-school flag salutes, federal salutes because "[tjhe ultimate founda- judges would become "the school board tion of a free society is the binding tie for the country."81 of cohesive sentiment."8 7 The Fourteenth Amendment, Justice Jackson "Those who begin coercive elimination of dis- countered, "protects the citizen against the sent," Justice Jackson wrote, "soon find them- State itself and all of its creatures-Boards of selves exterminating dissenters. Compulsory Education not excepted." 82 Once again, pas- unification of opinion achieves only the una- 88 sion took center stage. School boards "have, nimity of the graveyard." of course, important, delicate, and highly dis- "[W]e apply the limitations of the Consti- cretionary functions, but none that they may tution," he explained, "with no fear that free- not perform within the limits of the Bill of dom to be intellectually and spiritually diverse Rights. That they are educating the young for or even contrary will disintegrate the social citizenship is reason for scrupulous protection organization." of Constitutional freedoms of the individual, if we are not to strangle the free mind at its To believe that patriotism will not source and teach youth to discount important flourish if patriotic ceremonies are principles of our government as mere plati- voluntary and spontaneous instead of tudes." 83 a compulsory routine is to make an unflattering estimate of the appeal of Gobitis Ground #3: Because exemp- our institutions to free minds. We can tions from mandatory in-school flag have intellectual individualism and salutes raise disciplinary issues beyond the rich cultural diversities that we the competence of federal judges, ex- owe to exceptional minds only at the emptions should be won at the ballot price of occasional eccentricity and box and not in the courts.84 abnormal attitudes. When they are so "The very purpose of a Bill of Rights," Jus- harmless to others or to the State as tice Jackson responded with a firm passionate those we deal with here, the price is voice, "was to withdraw certain subjects from not too great. But freedom to differ the vicissitudes of political controversy, to is not limited to things that do not place them beyond the reach of majorities and matter much. That would be a mere officials and to establish them as legal princi- shadow of freedom. The test of its ples to be applied by the courts. One's right to substance is the right to differ as to life, liberty, and property, to free speech, a free things that touch the heart of the express, freedom of worship and assembly, and isting order.90 other fundamental rights may not be submitted to vote; they depend on the outcome of no Justice Jackson closed his opinion with a elections."85 reasoned, yet passionate endorsement of indi- "[W]e act in these matters," Justice vidual freedom that has been called "the most Jackson continued, "not by authority of our illuminating definition of Americanism in the competence but by force of our commissions. history of the Court": "Ifthere is any fixed star We cannot, because of modest estimates of our in our constitutional constellation, it is that no competence in such specialties as public edu- official, high or petty, can prescribe what shall cation, withhold the judgment that history au- be orthodox in politics, nationalism, religion, thenticates as the function of this Court when or other matters of opinion or force citizens to liberty is infringed." 86 confess by word or act their faith therein."9 1 40 JOURNAL OF SUPREME COURT HISTORY

V. Conclusion B. "[Aln Excellent Writer, Period" "Solicitor General for life" was the title that A. "The Freedom to Disagree" Justice Louis D. Brandeis would have con- Because Justice Jackson was such a graceful ferred on Robert H. Jackson, who argued writer, Justice Frankfurter reminisced years more than four dozen appeals in the Supreme later, "his style sometimes stole attention Court as Assistant Attorney General, Solicitor from the substance." 92 Justice Jackson's dex- General, and Attorney General before his ap- trous admixture of reason and passion, how- pointment to the Court in 1941.98 But Justice ever, should not overshadow the durability Jackson leaves a record as much more than of Barnette's First Amendment holding. Go- a lawyer who, as Justice Frankfurter put it, bitis had applied the First Amendment's re- approached the bar "specially endowed as an ligion clauses. By ruling instead under the advocate."99 First Amendment's Speech Clause, Barnette Justice Antonin Scalia calls Justice conferred rights on all claimants who es- Jackson his "hero," someone who "wrote tablish entitlement, not solely on claimants beautiful opinions and was on the right side of moved by religious belief 93 After more than things, too." 100 Professor Charles Alan Wright sixty years, Barnette remains the basis for the went a significant step further, calling Jus- First Amendment right to "refrain from speak- tice Jackson "the best writer ever to sit on the ing."94 Court."o The distinction between a narrower reli- Justice Jackson achieved his lofty status as gious freedom and a broader expressive free- the Court's paramount writer without relying dom retains contemporary significance. In heavily on law clerks or other ghostwriters to 2009, for example, ten-year-old Will Phillips, compose his work or turn a phrase for him. At a fifth grader at the West Fork Middle School President Harry S Truman's request, he took in Washington County, Arkansas, refused to a leave of absence from the Court in 1945 to stand and join his classmates in reciting the serve as chief United States prosecutor at the Pledge of Allegiance. The reason, he said, Nuremberg war-crimes trials. A young assis- was that "I really don't feel that there's cur- tant, assigned to help prepare Jackson's closing rently liberty and justice for all" because argument to the international tribunal a year gays and lesbians could not exercise such later, felt hurt when the Justice did not use any rights as the right to marry and the right to of his draft. Only later did the assistant learn adopt children.95 Much like the Gobitas and that "Jackson did not like 'ghosts.' He felt that Barnett children, who were about Will's age the words of a speaker or writer should be his when they and their families took their stand own words and not those of another." 102 decades earlier, Will endured taunts and harsh In 1957, former Jackson law clerk words from some classmates but support from William H. Rehnquist attested that "[e]ven a others. 96 casual acquaintance with [Justice Jackson's] Will Phillips and his supportive parents opinions during the 13 years he served on the made no claim ofreligious freedom, but school Court indicates that he neither needed nor used authorities recognized that Barnette squarely ghost writers." 103 "The great majority of opin- confers the First Amendment right to free ex- ions which he wrote," Rehnquist continued, pression that the young man sought to exercise. "were drafted originally by him and submitted Asked what it means to be an American, Will to his clerks for their criticism and sugges- responded, "Freedom of speech. The freedom tions. Frequently such a draft would be batted to disagree. That's what I think pretty much back and forth between the Justice and the par- being an American represents." 97 ticular clerk working on it several times. The JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 41

Robert H. Jackson has been lauded as the best writer ever to sit on the Supreme Court. He did not attend college; other than apprenticing, his only formal education after high school was one year at Albany Law School. contributions of the clerk by way of research, of plain and pointed talk replacing lawyers' organization and, to a lesser extent, method of jargon-because he never went through law approach, was often substantial. But the end school nor won a law degree; indeed, ... he product was unquestionably the Justice's own, never even went through college, and one un- both in form and in substance." 104 graduating year of law study ... was his only Six weeks before Barnette, Justice formal education after high school." 107 Jackson had stressed the Court's responsi- Justice Jackson was a largely self-taught bility to "do our utmost to make clear and writer, and he was both a skilled teacher easily understandable the reasons for decid- and an avid learner. In 2003, Chief Justice ing... cases as we do."10 5 Barnette delivered Rehnquist was right that his mentor "was not on the promise with a clear exposition of rea- simply an excellent legal writer, he was an ex- son and passion because Justice Jackson held cellent writer, period." 0 8 a distinct personal advantage. "Good legal writing," says Professor Richard C. Wydick, ENDNOTES "does not sound as though it had been written 1West Virginia 106 State Bd. of Educ. v. Barnette, by a lawyer." Justice Jackson left a legacy 319 U.S. 624 (1943). of eloquence because, as in Barnette, he in- 2Richard A. Posner, The Problems of Ju- deed did not "write like a lawyer." Professor risprudence 147 (1990). Fred Rodell even speculated that Justice Jack- 3See, e.g., David R. Manwaring, Render son "wrote so unlegally well-with the force Unto Caesar: The Flag-Salute Controversy 42 JOURNAL OF SUPREME COURT HISTORY

(1962); Shawn Francis Peters, Judging Jeho- 14Minersville School District v. Gobitis, 310 vah's Witnesses: Religious Persecution and U.S. 586, 595, 626 (1940), overruled, West Vir- the Dawn of the Rights Revolution (2000); ginia State Bd. ofEduc. v. Barnette, 319 U.S. Vincent Blasi and Seana V Shiffrin, "The 624 (1943). Story of West Virginia State Board of Edu- 15 Dilliard, supra note 3, at 294-96; "The Flag cation v. Barnette: The Pledge of Allegiance Salute Cases" (Hall & Patrick), supra note 3, and the Freedom of Thought," in Constitu- at 97. tional Law Stories 443-45 (Michael C. Dorf 16 Gobitis, 310 U.S. at 604 (Stone, J., dissented., 2004); Irving Dilliard, "The Flag Salute ing); Dilliard, supra note 3, at 297-98. Cases," in Quarrels That Have Shaped the 17 Gobitis, 310 U.S. at 602. Constitution (John A. Garraty ed., 1988); 18Irons, supra note 8, at 22; see also Shawn "The Flag Salute Cases," in The Pursuit Francis Peters, "Rehearing 'Fighting Words': of Justice: Supreme Court Decisions That Chaplinsky v. New Hampshire in Retrospect," Shaped America (Kermit L. Hall & John J. 24 J Sup. Ct. Hist. 282, 283-84 (1999). Patrick eds., 2006); Robert L. Tsai, "Recon- 19Dilliard, supra note 3, at 298. sidering Gobitis: An Exercise in Presidential 20 Peters, supra note 3, at 8-16, 72-152. Leadership," 86 Wash. U L. Rev. 363 (2008); 21Robert L. Tsai, "The Law Clerk's Memo to Charles Alan Wright, "My Favorite Opinion- Robert Jackson in Barnette," Legal History The Second Flag-Salute Case," 74 Tex. L. Rev. Blog, Apr. 16, 2009, available at http://legal 1297 (1996). historyblog.blogspot.com/2009/04/aw-clerks 4 See, e.g., Blasi and Shiffrin, supra note 3, -memo-to-robert-jackson-in.html (last visited at 448 (calling Barnette's majority opinion Feb. 12, 2011). "among the most eloquent to be found in the 22 See, e.g., Prince v. Massachusetts, 321 U.S. whole of the U.S. Reports"); "The Flag Salute 158, 447-48 (1944) (Murphy, J., dissenting) Cases" (Hall & Patrick), supra note 3, at 101 (the Jehovah's Witnesses "have suffered bru- ("one of the greatest statements on civil liber- tal beatings; their property has been destroyed; ties ever written"); Tsai, supra note 3, at 365 they have been harassed at every turn by the (discussing the "sparkling decision penned by resurrection and enforcement of little used or- Robert H. Jackson"). dinances and statutes"); Blasi and Shiffrin, 5 Wright, supra note 3, at 1299. supra note 3, at 443-45; Peters, supra note 6David McCullough, "The Course of Human 3, at 237-38, 251 (discussing reaction on the Events," National Endowment for the Human- Supreme Court); "The Flag Salute Cases" ities: 2003 Jefferson Lecture in the Humani- (Hall and Patrick), supra note 3, at 97; but ties: David McCullough Lecture, available at see Tsai, supra note 3, at 374 ("The Justices http://www.neh.gov/whoweare/mcculloughol; might have been horrified at the ferocity of the lecture.html (last visited Feb. 12, 2011). reprisals, but they would have been unbeliev- Id. ably naive to think that their original decision 8Peter Irons, The Courage of Their Convic- did not expose recalcitrant students and their tions 16 (1988). parents to a series of collateral legal and extra- 9 West Virginia State Bd. of Educ. v. Barnette, legal ramifications."). 319 U.S. 624, 626 (1943). 23 Blasi and Shiffrin, supra note 3, at 445. 10 24 Barnette, 319 U.S. at 626, 629-30; Peters, Barnette v. West Va. State Bd. of Educ., 47 supra note 3, at 164-77. E Supp. 251 (S.D.WVa. 1942), affd, 319 U.S. "Albert Deutsch, Our Rejected Children 624 (1943); David L. Hudson, Jr., "Woman xix, 162 (1950). in Barnette Reflects on Famous Flag-Salute 12Peters, supra note 3, at 186. Case," Dec. 28, 2009, First Amendment Cen- 13 Id. at 12-13, 183. ter, available at http://www.firstamendment JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 43 center.org/analysis.aspx?id=2244 1 (last vis- 40Aristotle, The Politics of Aristotle 146 ited Feb. 12, 2011). The Barnett and Gobitas (Emest Baker, trans., 1946). 41 families achieved different outcomes in The Federalist, The Federalist No. 15, at 89, the Supreme Court, but they shared a 96 (Jacob E. Cooke, ed., 1961). common legacy: because of evident clerks' er- 421d., The FederalistNo. 49, at 338, 343 (em- rors below, the Court's decisions misspelled phasis in original). their surnames. 4 31d. 25 See, e.g., Paul Freund, "Appointment of 44Id., The FederalistNo. 50, at 343, 346 (em- Justices: Some Historical Perspectives," 101 phasis in original). Harv. L. Rev. 1146, 1154 (1988) (41-39 45Id., The FederalistNo. 55, at 372, 374. vote); Ernesto J. Sanchez, "John J. Parker 46Id., The FederalistNo. 58, at 391, 395-96. and the Beginning of the Modem Confir- 47Id., The FederalistNo. 63, at 422, 425. See mation Process," 32 J Sup. Ct. Hist. 22 also, e.g., id., The Federalist No. 10, at 56, (2007). 58 (1787) (Jacob E. Cooke, ed., 1961) (dis- 26 Barnette, 47 F. Supp. at 253; see also, e.g., cussing the likelihood that political factions Hohn v. United States, 524 U.S. 236, 252-53 would arise in a political democracy: "As long (1998). as the connection subsists between [a man's] 27Jones v. City of Opelika, 316 U.S. 584, 623- reason and his self-love, his opinions and his 24 (1942) (dissenting opinion); see also Bar- passions will have a reciprocal influence on nette, 47 F. Supp. at 253. each other."); id., The Federalist No. 42, at 28Barnette, 47 E Supp. at 253. 279, 283 (urging a strong congressional com- 29Tsai, supra note 3, at 397-98. merce power lest the commercial states' "pas- 30Robert H. Jackson, The Struggle sion" for revenue drown out the "mild voice for Judicial Supremacy 284 & n.48 of reason" counseling national unity); id., The (1941). FederalistNo. 48, at 332, 333-34 (1788) (stat- 31Busey v. District of Columbia, 129 F2d 24 ing that the executive and legislative branches (D.C. Cir. 1942) (Rutledge, J., dissenting), va- would counterbalance one another "where the cated and remanded, 319 U.S. 579 (1942), on legislative power is exercised by an assembly, remand, 138 F.2d 592 (D.C. Cir. 1943). which is ... sufficiently numerous to feel all 32 Busey, 129 F.2d at 38. the passions which actuate a multitude; yet not 33 Barnette, 31 U.S. at 642-43. so numerous as to be incapable of pursuing the 34Minersville School District v. Gobitis, 310 objects of its passions, by means which reason U.S. 586, 606 (1940) (Stone, J., dissenting); prescribes"). Peters, supra note 3, at 60. 48George Washington's Rules of Civility & 35 "Judiciary: Blot Removed," Time, June 21, Decent Behaviour In Company and Conver- 1943, available at http://www.time.com/time/ sation (Charles Moore ed., 1926); see also id. magazine/article/0,9171,766726,00.html? at x, xiv. internalid = ACA (last visited Feb. 12, 2011). 49Id. at 13 (brackets in original). 36Barack Obama, The Audacity of Hope: 501d. at ix. Thoughts on Reclaiming the American 51Quoted in David Ramsay, The Life Dream 113 (2008). of George Washington ch. 9, "Archiving 37Barack Obama, Dreams from My Father: Early America," available at http://www.early A Story of Race and Inheritance 14 (2004). america.com/lives/gwlife/chapt9/ (last visited 38 Plato, The Republic, Book IV, at 159-62 (B. Feb. 12, 2011). Jowett, ed., 1960). 52George Washington to Charles Carter (Dec. 39The Rhetoric of Aristotle, 1.10, at 57 (Lane 14, 1787), The George Washington Papers Cooper, ed., 1932). at the Library of Congress, 1741-1799, 44 JOURNAL OF SUPREME COURT HISTORY available at http://memory.loc.gov/cgi-bin/ 2004, at B8 (editorial) (California's "three query/r?ammem/mgw:@field(DOCID+@lit( strikes" sentencing law); "Do More for Bilin- gw29026 1)) (last visited Feb. 12, 2011). gual Ed? Yes Judge's Ruling of State's Fail- 53 George Washington to Edmund Randolph ure Is No Surprise," Ariz. Republic, Feb. 3, (July 31, 1795), The George Washington Pa- 2000, at 6B (bilingual education); William E. pers at the Library of Congress, 1741-1799, Gibson, "Bill Lowers Cuban Refugee Status," available at http://memory.loc.gov/cgi-bin/ Sun-Sentinel (Fort Lauderdale, Fla.), Mar. 15, query/r?ammem/mgw:@field(DOCID+@lit 1995, at 3A (immigration bill concerning (gw340194)) (last visited Feb. 12, 2011). Cuban refugees; quoting Sen. Paul Simon: 54George Washington, "Washington's Farewell "Our policy toward Cuba is one that has grown Address 1796," available at http://avalon. out of passion, not reason."). law.yale.edu/18thcentury/washing.asp (last 62 See Gilbert A. Lewthwaite, "Clinton Sees visited Feb. 12, 2011). U.S. Keeping a Global Role," Baltimore Sun, 5 5George Washington to John Luzac, Dec. Oct. 7, 1995, at 1A (President Clinton urged 2, 1797, The George Washington Papers at Congress to approve sending troops to Bosnia the Library of Congress, 1741-1799, avail- peacekeeping mission; "We must ... beat back able at http://memory.loc.gov/cgi-bin/query/r? the forces of isolation with both intense pas- ammem/mgw:@field(DOCID+@lit(gw3600 sion and reason"); 13 Cong. Deb. 395 (1837) 82)) (last visited Feb. 12, 2011) ("In times (remarks of Sen. Judah Dana; Senate reso- of turbulence, when the passions are afloat, lution censuring President Andrew Jackson calm reason is swallowed up in the extremes threatened to set a harmful precedent for to [which] measures are attempted to be "some future period of great excitement, when carried."). passion and prejudice shall triumph over rea- 56 Thomas Jefferson to Caesar A. Rodney, son"); see also, e.g., 146 Cong. Rec. S 11552, Feb. 10, 1810, The Thomas Jefferson Papers 11553 (Dec. 5, 2000) (remarks of Sen. Biden at the Library of Congress, available at http:// on the Bankruptcy Reform Act of 2000; "I memory.loc.gov/cgi-bin/query/r?ammem/mtj:@ hope reason will overcome passion.");136 field(DOCID+@lit(tj110070)) (last visited Cong. Rec. S 8355, 8355 (June 20, 1990) (re- Feb. 12, 2011). marks of Sen. Akaka on the Flag Protection 5 7Thomas Jefferson to William Short, June Act of 1990; "we should be guided by the light 18, 1813, The Thomas Jefferson Papers at of reason, not the heat of political passion"). the Library of Congress, available at http:// 63 Barbara Jordan, "Opening Statement to memory.loc.gov/cgi-bin/query/r?ammem/mtj:@ the House Judiciary Committee, Proceed- field(DOCID+@lit(wsO3051)) (last visited ings on the Impeachment of Richard Nixon," Feb. 12, 2011). July 25, 1974, available at http://gos.sbc.edu/ 5 8Abraham Lincoln, "The Perpetuation of j/jordan3.html (last visited Feb. 12, 2011). Our Political Institutions: Address Before the "Gilbert v. DaimlerChrysler Corp., 685 Young Men's Lyceum of Springfield, Ill., Jan. N.W2d 391, 395 (Mich. 2004) (reversing $21 27, 1838," in Abraham Lincoln: A Doc- million plaintiff's verdict in sexual harassment umentary Portrait Through His Speeches case). 65 and Writings 35-36 (Don E. Fehrenbacher See, e.g., Post v. Ohio, 484 U.S. 1079, ed., 1977). 1082 (1982) (Marshall, J., dissenting) (reject- 591d. at 43. ing "license to conclude that judges are inhu- 60 Frederick Douglass, My Bondage and My man, incapable of being moved by passion as Freedom 32 (John Stauffer, ed., 2003). well as by reason"); Joshua Berman, "A Tri- 61See, e.g., "When Passion, Not Reason, umph for U.S. Justice: The Moussaoui Trial Rules," San Francisco Chronicle, Aug. 6, Could Easily Have Turned Into a Circus," Chi. JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 45

Sun-Times, May 9, 2006, at 32 (praising the Gibran, The Prophet 45 (1923) ("Your reason jury for "balanc[ing] reason and passion by and your passion are the rudder and sails of focusing on the facts" in trial of alleged ter- your seafaring soul."). rorist); Bill Press, "Closed-Circuit TV Death 69See, e.g., David A. Wilson, Thomas D'Arcy of McVeigh Is a Sick, New Low," Orlando McGee: Passion, Reason, and Politics, (Fla.) Sentinel, Apr. 15, 2001, at G3 (arguing 1825-1857 (2008); Christopher Tilmouth, that U.S. Justice Department decision to per- Passion's Triumph over Reason: A History mit closed-circuit televising of the execution of the Moral Imagination from Spenser to of Oklahoma City bomber Timothy McVeigh Rochester (2005); Cheryl Hall, The Trou- "undermines our system of justice-letting ble with Passion: Political Theory Beyond passion, not reason, rule"); Carl Rowan, "Rea- the Reign of Reason (2005); Richard S. son Yields to Passion in O.J. Aftermath," Chi. Lazarus & Bernice N. Lazarus, Passion and Sun-Times, Oct. 15, 1995, at 39. Reason: Making Sense of Our Emotions 66"Secretary Condoleeza Rice Commence- (1994); Michael T. Kaufman, "Pierre Trudeau ment Address at Boston College," May 22, Is Dead at 80: Dashing Fighter for Canada," 2006, on Educated Nation: Higher Education N.Y Times, Sept. 29, 2000, at Al (discussing Blog, June 6, 2006, available at http://www. former Canadian Prime Minister Trudeau's educatednation.com/2006/06/06/secretary- motto: "Reason Before Passion"). condoleezza-rice-commencement-address- 70Terence Samuel, "Bradley's Greatest Mis- at-boston-college/ (last visited Feb. 12, take Was to Run against Clinton's Legacy," 2011). St. Louis Post-Dispatch, Mar. 12, 2000, at 67Connie Paige, "Patrick Rips Bush in Com- Al l (arguing that Sen. Bill Bradley faltered mencement Speech-Says Nation Is Governed in the 2000 Presidential primaries because by Fear," Boston Globe, May 18, 2007, at B3. "by design or by inclination, he is a man 68 See, e.g., John Locke, "The Second Treatise of reason rather than of passion"); Robert of Government," 13, 87-91, 125, in Two Trea- Parham, "Baptist of the Year: Al Gore," tises of Government 293-94, 341-44, 369 (P Dec. 28, 2007, EthicsDaily.com, Dec. 28, Laslett ed., 1960) ("I desire to know what kind 2007, available at http://www.ethicsdaily.com/ of government that is, and how much better news.php?viewStory= 12082 (last visited Feb. it is than the State of Nature, where one Man 12, 2011) (Baptist Center for Ethics named commanding a multitude, has the Liberty to former Vice President Al Gore "Baptist of be Judge in his own Case, and may do to all the Year" for his "clear call for moral respon- his Subjects whatever he pleases, without the sibility, knitting together ... reason and pas- least liberty to any one to question or con- sion"); see also, e.g., Simon Houpt, "Rad- trole those who Execute his Pleasure? And in cliffe's Great, but the Play's an Old Nag," whatsoever he doth, whether led by Reason, Globe & Mail (Canada), Sept. 28, 2008 Mistake, or Passion, must be submitted to?"); (play); Andrew Druckenbrod, "Opera The- Alexander Pope, Essay on Man, Epistle ii, ater Courts Byham as Its Venue," Pittsburgh line 107 (1733-34) ("On life's vast ocean di- Post-Gazette, Sept. 24, 2007, at E-1 (opera); versely we sail, Reason the card, but passion Nate Chinen, "Three Bandleaders With Rap- is the gale."); Robert C. Solomon, No Pas- port First," NY Times, Sept. 8, 2008, at 3 sion's Slave: Emotions and Choice 127 (rev. (music); Michael Ciment, "The Godfather: ed. 2001) (quoting British philosopher David Coppola, Scorcese, Stone, and Loach Have Hume); William James, "Reason, Passion and All Been Influenced by Francesco Rosi," the Religious Hypothesis," in William James, The Guardian (London), Dec. 3, 2005, at 14 The Will to Believe and Other Essays in Pop- (movie); Toni Bentley, "A 'Hyena in Petti- ular Philosophy, ch. 1 (1897); see also Khalil coats,'"N. Y Times, May 29, 2005, at 5 (book); 46 JOURNAL OF SUPREME COURT HISTORY

Hugh MacDonald, "Don't Look to Footballers nan); Anthony Lewis, "Glimmers of Hope in for Role Models," The Herald (Glasgow), Abortion Rulings," St. Louis Post-Dispatch, Jan. 8, 2004, at 3 (sports). July 9, 1989, at 3B (Justice Blackmun). 7 1Mark Swed, "Justice O'Connor Fails to 76 Charles Evans Hughes, The Supreme Make Case," L.A. Times, Aug. 14, 2004, at 1. Court of the United States 68 (1928); see 72 See, e.g., Benjamin N. Cardozo, The Na- also, e.g., William 0. Douglas, "The Dissent: ture of the Judicial Process 167-68 (1921); A Safeguard of Democracy," 32 J Am. Jud. William J. Brennan, Jr., "Reason, Passion and Soc'y 104, 107 (1948) (a dissent "may salvage 'the Progress of the Law,"' 42nd Annual Ben- for tomorrow the principle that was sacrificed jamin N. Cardozo Lecture, 10 Cardozo L. Rev. or forgotten today"). 3, 3 (1988). 7 7 Felix Frankfurter, "When Judge Car- 73See Judicial Activism against Arizona, dozo Writes," The New Republic, Apr. 8, Wash. Times, July 29, 2010, at B2 (editorial) 1931, available at http://www.tnr.com/article/ (Democratic appointee's "judicial activism is politics/when-judge-cardozo-writes (last vis- out of step with the law, out of step with pol- ited Feb. 12, 2011). 78 itics and out of step with the good of the Minersville School District v. Gobitis, 310 country"); "Clean Water at Risk," N. Y Times, U.S. 586, 596 (1940). June 20, 2006, at 16 (editorial) ("For all the West Virginia State Bd. ofEduc. v. Barnette, talk of liberal judicial activists, it was Jus- 319 U.S. 624, 636 (1943). tice Antonin Scalia and his fellow conserva- 8oBarnette, 319 U.S. at 636-37. tives who voted to substitute their own pref- 8 1Gobitis, 310 U.S. at 598. 82 erences for a decision made by the execu- Barnette, 319 U.S. at 637. 8 tive branch ...interpreting a statute passed by 3 Barnette, 319 U.S. at 637. 84 Congress."). Gobitis, 310 U.S. at 597. 8 5 74Roscoe Pound, "The Heated Judicial Dis- Barnette, 319 U.S. at 638. 86 sent," 39 Am. Bar Ass'n J 794, 796-97 Barnette, 319 U.S. at 640. 8 7 (1953). Gobitis, 310 U.S. at 596. 75See, e.g., Charles Lane, "Court Splits Over "Barnette, 319 U.S. at 641. Commandments," Wash. Post, June 28, 2005, "Barnette, 319 U.S. at 641. 90 at Al (Justice Scalia); David G. Savage, Barnette, 319 U.S. at 641-42. 91 "Thousands of Cases in Doubt After Decision Nat Hentoff, Living the Bill of Rights 143 on Sentencing," L.A. Times, June 26, 2004, at (1998) ("most illuminating"); Barnette, 319 Al5 (Justices O'Connor and Breyer); David U.S. at 642. 92 Von Drehle, "Court Mirrors Public Opinion," Felix Frankfurter, "Mr. Justice Jackson," 68 Wash. Post, June 24, 2003, at Al (Justice Harv. L. Rev. 937, 938 (1955). 93 Thomas); "A Blow to Sexual Bullying," Hart- Barnette, 319 U.S. at 634-35. 94 ford Courant, June 3, 1999, at A14 (Justice See, e.g., Wooley v. Maynard, 430 U.S. 705, Kennedy); Joan Biskupic, "Viewing More As 714 (1977) (citing Barnette for this proposi- an Affair of States," Wash. Post, Apr. 1, 1999, tion). 95 at A10 (Justices Stevens, Souter, Ginsburg David Koon, "A Boy and His Flag," Ark. and Breyer); James J. Kilpatrick, "Marshall's Times, Nov. 11, 2009. 96 Power Was In His Passion for Justice," The Id.; see also James E Van Orden, "'Jehovah Oregonian (Portland, Ore.), Jan. 26, 1993, at Will Provide': Lillian Gobitas and Freedom of B9 (Justice Marshall); David G. Savage, "Af- Religion," 29 J Sup. Ct. Hist. 136, 137, 142 ter 33 Years, Brennan Is Still for Underdogs," (2004). 97 L.A. Times, Oct. 1, 1989, at 1 (Justice Bren- Koon, supra note 95. JUSTICE JACKSON AND THE SECOND FLAG-SALUTE CASE 47

98E. Barrett Prettyman, Jr., "Robert H. Jack- 103 William H. Rehnquist, "Who Writes Deci- son: 'Solicitor General for Life,"' 1992 J Sup. sions of the Supreme Court?," US. News & Ct. Hist. 75, 75-76, 83, 84 n.69. World Rep., Dec. 13, 1957, at 74-75 (1957). "Frankfurter, supra note 92, at 939; see also 10Id. 1 0 5 "Advice from Justice Jackson," 5 J App. Prac. Douglas v. City ofJeannette, 319 U.S. 157, & Process 215, 216 (2003) ("one of the great- 182 (1943) (separate opinion). est appellate advocates of his generation."). 106Richard C. Wydick, Plain English for 100"A Voice for the Write: Tips on Making Lawyers 4 (5th ed. 2005). Your Case from a Supremely Reliable Source," 107 Fred Rodell, Nine Men: A Political His- 94 ABA. J 37, 40 (May 2008). tory of the Supreme Court from 1790 to 101 Charles Alan Wright, supra note 3, at 1299. 1955 279 (1955). 102 Henry T. King, Jr., "Remarks," in Sympo- 1osWilliam H. Rehnquist, "Foreword," in Eu- sium: The Nuremberg Trials: A Reappraisal gene C. Gerhart, Robert H. Jackson: Coun- and Their Legacy, 27 Cardozo L. Rev. 1553, try Lawyer, Supreme Court Justice, Amer- 1558 (2006). ica's Advocate iii (2d ed. 2003).