52. Justice Frankfurter's "Soliloquy" and the Nazi Saboteurs

As the Guantánamo military commissions stumble into their third decade, a look at the unfortunate and unsatisfying way in which the Supreme Court blessed World War II-era war crimes trials

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already). And as we approach the newsletter’s one-year anniversary (next week!!), I hope you’ll consider upgrading to a paid subscription if your circumstances permit (and if you haven’t already!):

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On the Docket

Last week was a somewhat busy one at One First Street, beginning with Monday’s regular Order List—which included a separate statement from Justice Sotomayor respecting the denial of certiorari in King v. Brownback on why the justices ought to resolve the question presented (whether “an order resolving the merits of a[Federal Tort Claims Act claim] precludes other claims arising out of the same subject matter in the same suit”) “in an appropriate future case.” After holding oral arguments in four cases, the justices on Friday also added three new cases to their docket for this term—including significant disputes about the federal ban on “bump stocks” (an administrative law case more than a Second Amendment one); a complex but important case about the relationship between arbitration clauses and later-adopted contracts; and an appeal from the NRA arising out of allegations that the former head of New York’s Department of Financial Services tried to persuade entities subject to the Department’s regulatory authority to sever ties with the gun rights group.

We expect another regular Order List today at 9:30 EST, followed by the first of this week’s three oral arguments. We also expect the Court to rule shortly on several potentially major pending emergency applications that now appear to be ripe—including a series of requests (four, in total) to block the EPA’s new “Good Neighbor” pollution rules; an application from Florida to un-block the state’s “anti-drag” law; and a plea from BP and two other oil companies to block an upcoming Louisiana state-court trial in order to resolve their claim that the entire jury pool is biased. There’s also an execution scheduled in Alabama for the end of next week in which the prisoner, Casey McWhorter, has now applied for a stay. So in addition to oral arguments and regular orders, we could see quite a lot of action this week on the emergency docket, as well.

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The One First “Long Read”: Ex parte Quirin

In the long history of the Supreme Court, there may never have been a more macabre internal memorandum than the one Justice Felix Frankfurter privately circulated on October 23, 1942, in a transparent attempt to bring his wavering colleagues back into line with the Court’s soon-to-be-released decision in a case known as Ex parte Quirin.¹

At issue in Quirin was the trial of eight Nazi saboteurs who had surreptitiously entered the United States in the late spring of 1942 on a mission of industrial sabotage (four were landed off the coast of Long Island; the other four south of Jacksonville, Florida). Unintentionally, the saboteurs had exposed stunning vulnerabilities in the United States’ coastal defenses and galling incompetence on the part of the Federal Bureau of Investigation, which had rebuffed multiple efforts by at least two of the saboteurs to surrender themselves and the others, behavior that has been described by Professor Carlos Vázquez as “a Keystone Kops–worthy farce.” Whether to avoid the public exposure and embarrassment that would likely result from a civilian trial, to take advantage of the availability of the death penalty (as a deterrent for future attempts), or some combination of both, President Franklin D. Roosevelt authorized prosecution of the saboteurs before a closed-door military commission. Among other things, keeping the proceedings secret, Roosevelt apparently believed, would protect both U.S. national security and the FBI’s reputation at a moment when the outcome of World War II remained very much in doubt. In a memo to Attorney General Francis Biddle, FDR famously wrote that “I won’t hand them over to any United States Marshal armed with a writ of habeas corpus.”

The problem for the government was a Civil War–era Supreme Court decision, Ex parte Milligan. That 1866 ruling had held that the Sixth Amendment’s right to jury trial in criminal cases barred military trials of non- soldiers when and where civilian courts were open and functioning, as they had been in Indiana at the time of Milligan’s trial, and as they were in Washington in the late spring of 1942. Because two of the saboteurs were U.S. citizens to whom the Sixth Amendment clearly applied, Milligan seemed to bar the saboteurs’ military commission trial, too.

Courtesy of the Library of Congress, a picture of the fifth-floor room in the main Department of Justice building in Washington in which the saboteurs’ military commission was convened

Pointing to Milligan, the saboteurs’ lawyers convinced the Supreme Court to return to Washington in the middle of both the military commission trial and the justices’ summer recess to hold a rare “Special Term” to decide whether the seventy-five-year-old precedent applied, thus foreclosing the possibility of the military commission taking the case. After hearing two full days of oral argument on July 29 and 30, the Court issued a cryptic, unsigned order on July 31. The order blessed the ongoing military commission, notwithstanding Milligan, while announcing that “a full opinion” setting forth the justices’ reasoning would be released at an unspecified later date. Their work finished for the moment, the justices returned to their summer vacations. Four days after the Supreme Court ruled, the military commission convicted all eight defendants and sentenced them to death. President Roosevelt commuted the sentences of the two defendants who had turned themselves in to terms of imprisonment; the other six were sent to the electric chair on August 8.

But when the justices reconvened in October, the promised “full opinion” proved elusive. The Court was down to seven justices,² and at least two of the remaining seven had growing concerns about some of the thorny statutory and constitutional questions the unprecedented military prosecution had raised.

Meanwhile, Justice Robert Jackson, increasingly convinced that the Court should never have heard the case in the first place, circulated a draft of a proposed concurring opinion to that effect. In his memo, titled “F.F.’s Soliloquy,” Frankfurter excoriated his colleagues for their eroding resolve. Recounting a fictional conversation between himself and the six dead saboteurs, Frankfurter suggested, not very subtly, that a divided ruling—or worse, one in which a majority of the Court expressed doubt about the validity of the military trial and the completed executions—would not just make the justices look bad, but also hamper the war effort, delivering a blow to Allied morale and a propaganda boon for the United States’ enemies.

Frankfurter’s memo had its intended effect, cowing his colleagues into submission. Six days later, the Court issued a unanimous opinion in the name of Chief Justice Harlan Fiske Stone affirming the validity of the military trial, ducking the harder questions, and avoiding any separate statements from the other six justices. The Court had dodged a bullet. But in hindsight, Frankfurter was deeply chastened by the episode; he would later describe Quirin as “not a happy precedent.” (In 2004, Justice Scalia would call it “not this Court’s finest hour.”)

For Frankfurter, like Scalia, the problem was not what Chief Justice Stone wrote in October; it was the effect of the Court’s terse ruling in July. By clearing the way for six executions and promising to provide a rationale only after the fact, the justices had committed themselves to writing an opinion that reached a foreordained result no matter how much their views might have changed in the interim. After all, it just wouldn’t do for the Court to change its mind about whether a defendant could have been executed once he was already dead.

But the October opinion had problems of its own. Neither of the grounds on which the Court purported to distinguish Milligan actually withstood serious scrutiny. Even assuming that Congress had authorized the saboteurs’ commission (and Article 15 of the 1920 Articles of War really can’t be read to have done anything of the sort), the absence of congressional authorization had been the linchpin of Chief Justice Chase’s analysis for four justices in Milligan; Justice Davis’s majority opinion didn’t turn on that separation-of-powers defect at all. And the way that Chief Justice Stone in Quirin got around what Justice Davis had actually held (that the Sixth Amendment foreclosed the military commission trial of Lambdin Milligan because the civilian courts were open and unobstructed) was too convenient by half—recognizing a brand-new, atextual, and undertheorized exception to the Sixth Amendment for “offenses committed by enemy belligerents against the laws of war.” Even then, there were (and remain) good arguments that the saboteurs, while perhaps guilty of domestic crimes, had not violated the laws of war as they were then understood.

Part of why all of this matters today is because Quirin has loomed large over the Guantánamo military commissions—which have recently entered their third decade of existence (with no sign of accomplishing their underlying goals anytime soon). The Supreme Court’s 2006 decision in Hamdan v. Rumsfeld held that the first iteration of the commissions departed too significantly from what Quirin (and Congress by ratifying it in 1950) had authorized. And Congress’s response to Hamdan—the Military Commissions Act of 2006—provokes (still unanswered) constitutional questions all its own by empowering the commissions to try at least some offenses that are not international war crimes (and thus fall outside of the Sixth Amendment exception on which Quirin recognized). Whether Quirin imposes a constitutional ceiling on the offenses that military commissions can try when civilian courts are open (or just a floor) is a massively important constitutional question. If any of the three pending military commission proceedings ever get to trial, let alone to post-conviction appeals, the Supreme Court may yet have to resolve it once and for all.

Given how widely discredited Quirin is as a precedent, it’s telling that it nevertheless continues to exert such significant downstream influence over the law of military commissions. It turns out that even unhappy precedents are precedents.

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SCOTUS Trivia: The Last “Special Term”

I’ve written before about the technical but significant fact that, until 1980, the Supreme Court formally adjourned when it rose for its summer recess—and was thus legally incapable of acting en banc until the next term began unless it convened a “Special Term,” like the one in Quirin, in the interim. Among other things, this legal formality meant that the Court was powerless to act on emergency applications that came in over the summer—leaving them to be resolved by individual circuit justices.

Unless I’m missing one, it appears that the last time the Court would hold a Special Term before switching to a “continuous” term in 1980 was in 1972, to resolve a dispute over the seating of delegates at the Democratic National Convention. After the D.C. Circuit had blocked the DNC’s Credentials Committee from un-seating 151 California delegates, the full Court convened to decide whether to issue a stay (and, if possible, resolve the merits). In a short per curiam opinion issued (without argument) on July 7, the Court, over dissents from Justices Douglas, White, and Marshall, stayed the D.C. Circuit’s decision (effectively leaving the Democratic National Committee to sort out the dispute on its own), while expressly refusing to weigh in on the substantive questions presented on such an expedited basis. Perhaps some of Quirin’s lessons still lingered…

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Happy Monday, everyone. I hope that you have a great week!

1. Some of this discussion is adapted from Chapter 3 of my book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023).

2. Justice Murphy had recused from the case owing to his ongoing service in the U.S. Army (he had showed up for the first day of the Special Term in his uniform). And Justice Byrnes, who had participated in the July argument and decision, had resigned from the Court on October 3 to run the newly created wartime Office of Economic Stabilization. D.C. Circuit Judge Wiley Rutledge, who President Roosevelt appointed to Byrnes’s seat (the last of FDR’s nine appointees), wouldn’t take the oaths of office until February 15, 1943.