Tsai on Reconsidering Gobitis: Lessons in Presidential Leadership

Reconsidering Gobitis: Lessons in Presidential Leadership, is a new paper by Robert L. Tsai, University of Oregon (& moving to American University). A principal source for the paper is archival records at the FDR Library. Much has been written about Gobitis, of course, but among Tsai's contributions, which go beyond the case itself, is to examine the Court and the executive branch together, rather than the Court in isolation. Here's the abstract:

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of terror visited upon Jehovah's Witnesses in the wake of Gobitis. Drawing upon previously unearthed archival material, this article for the first time attributes the dramatic upheaval in legal reason to the mechanics of linguistic transformation spurred by presidential initiative. A sophisticated strategy implemented by the executive branch altered the social terrain within which constitutional text was read, systematically eroded the picture of communal life rhetorically constructed by the High Court in Gobitis, and presented an alternative reading of the First Amendment in urgent and attractive fashion. Despite what many believed to be a deliberative moment, however, the Supreme Court incompletely memorialized the dialogic interaction between the branches of government. By copying the President's words without attribution, the Justices impoverished our appreciation of the constitutional system in action. Understanding the remarkable episode within this paradigm sheds light on a variety of enduring questions, from the necessary interconnections between judges and other social actors as they together build a constitutional vocabulary, to the post-war ascendancy of the First Amendment in the public mind, to the benefits and risks of presidential initiative as to rights.