Journal of Supreme Court History ~. OFFICERS William J. Brennan, Jr., Honorary Trustee Lewis F. Powell, Jr., HonoralY Trustee Byron R. White, Honorary Trustee Justin A. Stanley, Chairman Leon Silverman, President PUBLICATIONS COMMITTEE Kenneth S. Geller, Chairman DonaldB.Ayer JamesJ. Kilpatrick Louis R. Cohen Michael H. Cardozo Melvin I. Urofsky BOARDOFEDlTORS Melvin I. Urofsky, Chairman Herman Belz Craig Joyce Maeva Marcus David J. Bodenhamer David O'Brien KermitHall Laura Kalman Michael Parrish MANAGING EDITOR Clare Cushman CONSULTlNG EDITORS Patricia R. Evans Kathleen Shurtleff James J. Kilpatric~ Jennifer M. Lowe David T. Pride Supreme Court Historical Society Board of Trustees Honorary Trustees William J. Brennan, Jr. Lewis F. Powell, Jr. Byron R. White Chainnan President Justin A. Stanley Leon Silverman Vice Presidents S. Howard Goldman Dwight D. Opperman Frank C. Jones E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen Trustees George R. Adams Frank B. Gilben William Bradford Reynolds Noel J. Augustyn John D. Gordan, III John R. Risher, Jr. Herman Belz William T. Gossett Harvey Rishikof Barbara A. Black Fulton Haight William P. Rogers Hugo L. Black, Jr. GeoffreyC. Hazard. Jr. Bernard G. Segal Vera Brown Judith Richards Hope Jerold S. Solovy Wade Burger William E. Jackson Kenneth Starr Vincent C. Burke, Jr. Robb M. Jones Cathleen Douglas Stone Patricia Dwinnell Butler JamesJ. Kilpatrick Agnes N. Williams Andrew M. Coats Peter A. Knowles Lively Wilson WilliamT. Coleman,1r. Howard T. Markey W. Foster Wollen F. Elwood Davis Mrs. Thurgood Marshall M. Truman Woodward, Jr. Charlton Dietz Thurgood Marshall, Jr. John T. Dolan VincentL. McKusick William Edlund Francis J. McNamara, 11'. Robert E. J uceam John C. Elam Joseph Moderow General Counsel James D. Ellis John M. Nannes Michela English PhilC. Neal David T. Pride Thomas W. Evans Stephen W. Nealon Executive Director Wayne Fisher Gordon O. Pehrson Charles O. Galvin Leon Polsky Kathleen Shurtleff Kenneth S. Geller Charles B. Renfrew Assistant Director General Statement The Supreme Court Historical Society is a private nonprofit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collection and preservation of the history of the Supreme Court of the United States. The Society seeks to accomplish its mission by supporting historical research, collecting antiques and artifacts relating to the Court's history, and publishing books and other materials which increase public awareness of the Court's contribution to our Nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual co.llection of scholarly articles on the Court's history entitled the Yearbook, which was renamed the Journal of Supreme Court History in 1990 and became a semi-annual publication in 1996. The Society initiated the Documentary History of the Supreme Court of the United States, 1789-1800 in 1977 with a matching grant from the National Historical Publications and Records Commission (NHPRC). The Supreme Court became a cosponsor in 1979. Since that time the Project has completed five of its expected eight volumes, with a sixth volume to be published in 1996. TheSociety alsocopublishes EqualJustice Under Law, a 165-page illustrated history of the Court, in cooperation with the National Geographic Society. In 1986 the Society cosponsored the 300-page 1llustrated History ofthe Supreme Court ofthe United States. Itsponsored the publication of the United States Supreme Court Index to Opinions in 1981, and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme CourtJustices, which was published in cooperation with Congressional QUaIterly, Inc. in 1993. This 588-page book includes biographies of all 108 Supreme Court Justices and features numerous rare photographs and other illustrations. Now in its second edition, it is entitled The Supreme Court Justices: l11ustrated Biographies, 1789-1995. In addition to its research/publications projects, the Society is now cooperating with the Federal Judicial Center on a pilot oral history project on the Supreme Court. The Society is also conducting an active acquisitions program, which has contributed substan­ tially to the completion of the Court's permanent collection of busts and portraits, as well as period furnishings, private papers, and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court, and sponsors or cosponsors various lecture series and other educational colloquia to further public understanding of the Court and its history. The Society ended 1995 with approximately 5,200 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enables the organization to function. These committees report to an elected Board of Trustees and an Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society's permanent staff. Requests for additional information should be directed to the Society's headquarters at III Second Street, N.E., Washington, D.C. 20002, Tel. (202) 543-0400. The Society has been determined eligible to receive tax-deductible gifts under Section 50 I (cl (3) under the Internal Revenue Code. Joumal of Supreme Court History 1996, vol. 1 Table of Contents page Introduction Leon Silverman Articles The Court at War and the War at the Court Melvin I. Urofsky Property Rights and the Supreme Court in World War II James W. Ely, Jr. 19 The Supreme Court and Racial Equality during World War II Mary L. Dudziak 35 The Cramer Treason Case 1. Woodford Howard, Jr. 49 The Saboteurs' Case David 1. Danelski 61 The First Amendment and World War II Tony A. Freyer 83 Justice Jackson and the Nuremberg Trials Dennis 1. Hutchinson 105 Further Reading 117 Contributors 121 Photo Credits 122 Copyright 1996, by The Supreme Court Historical Society I II Second Street. N.E. Washington. D.C. 20002 ISBN 0-914785- 12-5 Introduction Leon Silverman The Constitution provides that the Supreme the fight by giving constitutional sanction to the Court is an equal partner in government, part of a measures Congress and the President adopted to triad made upoftheexecutive, the legislature, and ensure military victory. the judiciary. The Constitution does not say that However, the Court's decisions in the Japa­ the judicial power of the United States shall be nese relocation cases do raise questions as to the lodged in the Court only in peacetime, yet we desirability of deciding inflammatory issues dur­ know that during war, the normal relations ing a warof national survival. These opinions are among the branches can often be subjected to a stain on the Court's record on human rights. But great strain. This accounts for the old axiom in general the Court's war record is one to which that inter arma silent leges-during warthe law its members could point with pride. Moreover, the is silent. nation could congratulate itself that its demo­ During the Civil War and World War I the cratic underpinnings had grown strong enough courts mainly delayed ruling on critical issues for its leaders to choose to abide by the rule of law, until after the fighting had stopped. But as the even at a time when war had made much of the articles in this issue so clearly show, this was world lawless. definitely not the case during the Second World Articles such as these may and should ques­ War. It is true, however, that some questions were tion some of the actions and decisions of the deferred, questions dealing primarily with eco­ Court and its members, but in doing so they also nomic issues such as price controls and govern­ show how well the Court upheld its constitutional ment regulation of industry. obligations during a very difficult time. It is a Although the reasons for this refusal to put lesson that we as citizens of a democracy should off the hard cases until war's end are speculative, always remember. it has been theorized that the Court was deter­ Please note that with this issue the Journal mined to make manifest the difference between becomes a semi-annual publication. The articles the tyrannous regimes of the Axis powers and the in this single-subject volume are adapted from a democratic safeguards of our own legal system. lecture series on World War II that the Society The Court clearly also felt compelled to enlist in sponsored at the Supreme Court during 1995. ACKNOWLEDGMENT The Officers and Trustees of the Supreme Court Hi storical Society would li ke to thank the Charles Evans Hughes Foundation for its generous support of the publication of thi s Journal. The Court at War, and the War at the Court Melvin I. Urofsky Oliver Wendell Holmes, Jr., once commented son later recalled that while there were "occa­ about the alleged calmness of life on the Supreme sional cases of importance involving the war Court: "We are very quiet there, but it is the quiet power," such cases were "peaks of interest in a of a storm centre."i Had Holmes been on the rather dreary sea of briefs and arguments, many Court during World War II, he might well have of which seemed to have little relationship to the reconsidered his well-known aphorism. There realities of what was going on about US."3 In the was indeed a great storm blowing not only out­ end, however, only James F.