The Japanese American Cases: The Rule of Law in Time of War

Chapter 3. The Supreme Court Decides

{ 47 } chapter three The Supreme Court Decides As the prosecution of the Japanese American cases was largely controlled by Edward Ennis, Roger N. Baldwin attempted a similar kind of domination of the defense. Baldwin was a founder of the ACLU and, as its only director, dominated it until 1950. After earning a master’s degree at Harvard, he taught sociology briefly at Washington University in St. Louis and then achieved a national reputation as that city’s chief juvenile court probation officer. During World War I, influenced by radicals such as Emma Goldman, he joined the American Union Against Militarism, which opposed American entry into the war, and went to jail for refusing even to register for the draft. By the World War II era he had become an establishment civil libertarian who delighted in associating with movers and shakers in the New Deal, including the president. During the two wartime years that the Japanese American cases were before the courts, Baldwin spent a good deal of time planning joint legal strategy with Ennis, other Justice Department lawyers, and those from the War Relocation Authority. It is difficult to improve on Dwight Macdonald’s characterization of Baldwin’s actions in the Japanese American cases as “feeble and confused.” The onset of World War II in September 1939, on the heels of the infamous August pact between Hitler and Stalin, caused Baldwin and others in the ACLU, established in 1920 as a successor to the threeyear -old National Civil Liberties Bureau, to reconsider one of their founding principles. He and most of the ACLU’s board members were opponents of Hitler and had been willing to work with members of the American Communist Party during most of the 1920s and 1930s. Two members of the ACLU’s board had been open officials of the Communist Party (CP), and several others were fellow travelers . After the pact was signed and until Hitler invaded the USSR on June 22, 1941, the CP, which had vigorously opposed Hitler and 48 { Chapter Three } all his works and been in the forefront of Americans who had supported anti-fascist activities in a united front, switched overnight to opposing most vigorously the increasing efforts of Roosevelt’s administration to aid the Western democracies and China. Thus, pushed by long-standing anticommunist members, a majority of the ACLU board supported a February 1940 resolution that barred from board membership anyone who supported totalitarianism in any form. It did not bar such persons from ACLU membership. (The board was self-perpetuating; neither the general membership nor affiliated groups had a vote, which was restricted to about 100 of 6,000 duespaying members.) The board then privately asked for the resignation of the unmentioned target of the resolution, Elizabeth Gurley Flynn, a legendary figure in the American labor movement who had publicly joined the CP in 1936 and had been reelected to the board in early 1939. She refused to resign and protested in the pages of the Daily Worker and elsewhere. The board then conducted a formal hearing—what some critics called a heresy trial—in a private New York City club. After a bitter six-hour debate ending at 2:20 a.m. on May 8, 1940, the board split evenly, 9–9, on the expulsion resolution. Its chair, John Haynes Holmes, broke the tie by voting against Flynn. The expulsion was an embarrassment for the ACLU for decades. In 1968 the board rescinded the resolution; eight years later it restored Flynn to the board posthumously. The significance of this change for the Japanese American cases was that the somewhat reconstituted board was less likely to oppose the government in general and President Roosevelt in particular. A month and a day after the issuance of Executive Order 9066, the ACLU board, which had been silent about the public campaign to do something about the West Coast Japanese Americans, sent a mild protest to Roosevelt suggesting that his order and some actions authorized by it might be unconstitutional, but gave its protest no publicity. A referendum sent to members of the ACLU board and its larger National Committee asked them to choose between two resolutions on “Removals from Military Areas.” One resolution, never published, held that “any order investing civil or military authorities with power to remove citizens from any zone constitutes a violation of civil liberties.” The other, chosen by an overwhelm- 49 { The Supreme Court...