The Pledge_ A History of the Pledge of Allegiance - Jeffrey Owen Jones [61]
It’s important to consider that the makeup of the Supreme Court had changed dramatically in the few years between the Gobitis case and the Barnette case. There were two new justices on the court—Robert Jackson, who had been the U.S. attorney general, and Wiley Blount Rutledge, a Kentucky minister and lawyer whom Roosevelt had appointed to the U.S. District Court of Appeals in Washington. And Harlan Stone, the sole dissenter in Gobitis, had been elevated to chief justice after the retirement of Charles Hughes in 1941.
The arguments made in the Barnette case varied little from the arguments presented in the Gobitis case—religious freedom, freedom of speech, due process. The lawyers representing the West Virginia side quoted the Frankfurter decision in Gobitis at length and argued that the Barnette case was essentially the same.
The Witnesses had lost its longtime leader and legal kingpin, “Judge” Rutherford, before this rehearing of their argument. He had died on January 8, 1942. For the Barnette case, the Witnesses repeated the arguments concerning religious freedom and constitutional rights under the Fourteenth Amendment. Then the Witnesses added arguments that directly addressed the issue of “judicial restraint.” Calling reliance on popular opinion through legislative process to change “foolish legislation” a failure to protect the constitutional liberties of minority groups, the Witnesses argued that it was the constitutional duty of the Supreme Court to correct laws that created inequities. At one point the Witnesses’ lawyer compared Frankfurter’s policy of judicial restraint to the actions of Pontius Pilate when he washed his hands of making a decision against the crowd’s call for the execution of Jesus.
Frankfurter was furious about the clear direction the case seemed to be taking. He railed against the Court’s Axis and repeated his arguments in ever more forceful terms. But this time his arguments fell on deaf ears. In fact, an antagonistic feeling among a few of the justices against Frankfurter lingered from that moment until he retired from the Court in 1962.
The decision was announced, symbolically, on Flag Day, June 14, 1943. The ruling to overturn the Gobitis decision was 6–3. Frankfurter wrote a scathing dissent, repeating his judicial restraint perspective by arguing the overriding importance of legislative laws passed by elected representatives. The high court’s job, he believed, was to interpret the Constitution, not to overturn local laws. The other two dissenters who voted with Frankfurter did not make public statements.
The majority opinion reflected the wartime mood. It obliquely compared the freedoms of American democracy against the rising evidence of the totalitarian behavior of Nazi Germany. The Court also tried to distance itself from a Nazi German court that had declared Witnesses who refused to perform the “Heil Hitler” salute in violation of the law. At the time, most Americans were self-consciously trying to distinguish their patriotic traditions from those of Germany. Just the year before the outstretched arm salute had been eliminated to avoid any resemblance to the Nazi salute. The hand-over-the-heart gesture that replaced it was encouraged by President Roosevelt, who reminded the people that Abraham Lincoln put his hand to his heart to show honor to the flag during the dedication ceremonies at Gettysburg in 1863.
The majority decision was written by newcomer Robert Jackson, fresh from his one-year stint as attorney general. In fact, Jackson’s predecessor as attorney general was Frank Murphy, who had been appointed to the Court just the year before (February 5, 1940) and was among “the Axis” that overturned Gobitis. Jackson was no sympathizer. In a commencement address at his alma mater, Albany Law School, in June of 1941, he clearly rejected the notion that the Constitution was some kind of straitjacket:
Of course our constitutional system is no ready-made garment