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Understanding Curtiss-Wright

Published online by Cambridge University Press:  24 October 2013


The most striking feature of the Supreme Court's decision in United States v. Curtiss-Wright Export Corp. is its language asserting an independent and exclusive executive foreign affairs power. As “the sole organ of the federal government in the field of foreign relations,” the Court declared, the executive holds “very delicate, plenary and exclusive power” that “does not require as a basis for its exercise an act of Congress.” From the day the case was decided, it has stood as a preeminent authority for those who would magnify the constitutional role of the president by proclaiming the independent and unchecked nature of the executive's foreign affairs power.

Copyright © the American Society for Legal History, Inc. 2013 

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1. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

2. The idea of “unchecked executive discretion” in foreign affairs “did not fully and officially crystallize until Justice George Sutherland's controversial, oft-cited 1936 opinion for the Court in United States v. Curtiss-Wright Export Corp.Koh, Harold Hongju, The National Security Constitution: Sharing Power after the Iran-Contra Affair (New Haven: Yale University Press, 1990)Google Scholar, 72 (emphasis in original). Arkes, Accord Hadley, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994), 3435CrossRefGoogle Scholar (referring to “Justice Sutherland's doctrines in the Curtiss-Wright case” and “that sobering truth taught by Justice Sutherland: that, in the field of foreign affairs, the president is a source of law”). For a pivotal example of the use of the case, see United States Department of State, “Authority of the President to Repel the Attack in Korea (July 3, 1950),” Department of State Bulletin 23 (1950): 173Google Scholar (citing Curtiss-Wright for the president's “duty of conducting the foreign relations of the United States,” at 174, and arguing for the executive's unilateral authority to commit American troops to the Korean “police action”).

3. Paschal, Joel Francis, Mr. Justice Sutherland: A Man Against the State (Princeton: Princeton University Press, 1951), 226Google Scholar. See, for example, Arkes, Return of George Sutherland, 174, 197, 219, 237–38, 241, 286–87; Fisher, Louis, Constitutional Conflicts Between Congress and the President, 4th ed. (Lawrence, Kansas: The University Press of Kansas, 1997), 95Google Scholar; Lofgren, Charles A., “Government From Reflection and Choice”: Constitutional Essays on War, Foreign Relations, and Federalism (New York: Oxford University Press, 1986), 180Google Scholar; White, G. Edward, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000), 73CrossRefGoogle Scholar; and Levitan, David, “The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory,” Yale Law Journal 55 (1946): 476CrossRefGoogle Scholar.

4. The author is aware of no historical evidence––with a single exception of quite limited content––that records or summarizes the deliberations of the justices in Curtiss-Wright. He has not, for example, been able to locate any memos discussing the case, early drafts of the opinion, or “returns” on circulated drafts. The exception is material in the Collection of the Supreme Court, Office of the Curator (hereafter CSC), which holds docket books of Justices Brandeis, Butler, Roberts, and Van Devanter that contain entries for Curtiss-Wright. The books of Roberts and Van Devanter unfortunately contain no relevant information, although Roberts's book does record the conference vote. The books of Brandeis and Butler also record the vote and, in addition, contain several brief and often difficult or almost impossible to read entries. Where relevant, the material in the docket books is cited and discussed subsequently. The collection also contains the docket books of Stone and Cardozo, but neither contains an entry for Curtiss-Wright. There are no docket books for the 1936 term for McReynolds, Sutherland, or Hughes, the chief justice apparently having ordered his docket books to be destroyed. The article, therefore, necessarily relies on certain inferences and speculations. A substantial and highly suggestive body of evidence drawn from the justices' biographies, public writings, formal legal opinions, and private communications nonetheless provides an extensive foundation for those inferences. Further, an overwhelming body of scholarship in law, history, and political science has established the fact that Supreme Court justices are influenced in varying degrees and on various issues by both the press of external events and their own values and perceptions. See, for example, Epstein, Lee, Landes, William M., and Posner, Richard A., The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013)Google Scholar; Landes, William M. and Posner, Richard A., “Rational Judicial Behavior: A Statistical Study,” Journal of Legal Analysis 1 (2009): 775CrossRefGoogle Scholar; Sunstein, Cass A., Schkade, David, Ellman, Lisa M., and Sawicki, Adres, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Washington, DC: The Brookings Institution, 2006)Google Scholar; Epstein, Lee and Knight, Jack, The Choices Justices Make (Washington, DC: Congressional Quarterly Press, 1998)Google Scholar; Perry, H.W. Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, MA: Harvard University Press, 1994)Google Scholar; and Segal, Jeffrey A. and Spaeth, Harold J., The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002)CrossRefGoogle Scholar. Such individual and contextual factors were particularly significant in Curtiss-Wright, the article argues, because the Court's adoption of the “plenary and exclusive” executive power language was neither required by the facts of the case nor compelled by existing legal sources. Indeed, the legal sources the Court relied on in making its assertion about executive power were tangential or irrelevant. See note 22 below. Thus, in the absence of controlling or clearly directive legal sources, the justices in Curtiss-Wright enjoyed a relatively broad discretion in shaping the Court's opinion as they wished. Finally, there is a burgeoning literature on the social and ideological reasons why justices support or oppose exercises of executive power. See, for example, Robinson, Rob, “Executive Branch Socialization and Deference on the U.S. Supreme Court,” Law & Society Review 46 (2012): 889921CrossRefGoogle Scholar. This article is generally consistent with this literature in pointing to social and ideological influences on decisions involving executive power, but it also qualifies much of that literature by stressing the importance of quite specific individual and contextual factors. See, for example, Epstein, Landes, and Posner, Behavior of Federal Judges, 386 (judges sometimes motivated by “more personal causes than just trying to apply ‘the law’”).

5. Curtiss-Wright, 314. In addition to the corporation, there were several individual defendants. For excellent discussions of the case, see Powell, H. Jefferson, “The Story of Curtiss-Wright Export Corp.,” in Presidential Power Stories, ed. Schroeder, Christopher H. and Bradley, Curtis A. (New York: Foundation Press, 2009), 195231Google Scholar; and Divine, Robert A., “The Case of the Smuggled Bombers,” in Quarrels That Have Shaped the Constitution, ed. Garraty, John A. (New York: Harper & Row, 1988), 253–65Google Scholar.

6. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 409 (1928). For an example of an earlier delegation case, see Field v. Clark, 143 U.S. 649, 680, 693 (1892).

7. Panama Refining Co. v. Ryan, 293 U.S. 388, 415, 418 (1935); and Schechter Poultry Corp. v. United States, 295 U.S. 495, 542, 541, 538 (1935).

8. Curtiss-Wright, 312–13. The joint resolution provided for both fines (not exceeding $10,000) and imprisonment (not exceeding 2 years) for violators. More than two decades earlier, a similar congressional delegation had not raised a constitutional challenge. United States v. Chavez, 228 U.S. 525 (1913).

9. Curtiss-Wright 14 F. Supp. 230, 239 (Southern District of New York 1936).

10. Powell, “Story of Curtiss-Wright,” 213–17 (quotes at 214 and 215). The government had a right of direct appeal under the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, as amended, 18 U.S.C. Sec. 682.

11. Curtiss-Wright, 315, 318. For the discussion of internal and external powers, see ibid., 315–19. Sutherland's earlier writings appeared as The Internal and External Powers of the National Government,” North American Review 191 (1910): 373–89Google Scholar, reprinted as S. Doc. No. 417, 61 Cong., 2 Sess. (1910) [hereafter cited as “Sen. Doc. 417] and Constitutional Power and World Affairs (New York: Columbia University Press, 1919Google Scholar). In elaborating his sovereignty principles Sutherland drew on a doctrine of “inherent national power” over foreign affairs that had developed in the Court's jurisprudence in the late nineteenth century. That doctrine, however, identified such “inherent” power as a power of “the nation” and of Congress, not of the executive. Cleveland, Sarah H., “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of Plenary Power Over Foreign Affairs,” Texas Law Review 81 (2002): 1284Google Scholar; Cleveland, Sarah H., “The Plenary Power Background of Curtiss-Wright,” University of Colorado Law Review 70 (1999): 1126–55Google Scholar.

12. Curtiss-Wright, 319–20. Sutherland added the limiting factor that he had noted in his earlier writings: executive power, “like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” Ibid., 320. The Court had long recognized the power of the United States government to control foreign affairs, but it had placed that power in Congress or in a combination of congressional and executive power. See, for example, Mahler v. Eby, 264 U.S. 32, 40 (1924); and Mackenzie v. Hare, 239 U.S. 299 (1915).

13. Curtiss-Wright, 320.

14. Ibid., 320–29 (quotes at 327 and 329).

15. Sutherland, “Internal and External Powers of the National Government,” passim; Sutherland, Constitutional Power, 50–69, 76–78, 91, 99, 110, 122–28; Curtiss-Wright, 319, 320.

16. Sutherland, Constitutional Power, 75.

17. J.W. Hampton, 409. The Court had often adopted a flexible approach. Butterfield v. Stranahan, 192 U.S. 470, 496 (1904) (delegations need only be “reasonably practicable” in light of “the necessities of the case”).

18. Curtiss-Wright, 327.

19. Ibid., 329. The Court's acceptance of Sutherland's dichotomy was almost certainly critical to bringing the seven-iustice majority together. Butler wrote in his docket book: “limit strictly to foreign.” CSC, Justice Butler, United States v. Curtiss-Wright Export Corp., docket book (1936); and in recording the vote in his docket book, Brandeis made the following entries next to the names of three of the justices: Butler––“foreign”; Sutherland––“foreign affairs”; Van Devanter ––“foreign affairs.” Brandeis made no similar notation next to the names of the other four members of the majority. CSC, Justice Brandeis, United States v. Curtiss-Wright Export Corp., docket book (1936). Sutherland may have avoided the second narrow ground of decision in part because Hughes's opinion in Panama Refining Co., 422–30, discounted the constitutional significance of those prior delegations.

20. The congressional authorization meant that no “independent” executive power was at issue in Curtiss-Wright, and Sutherland's dichotomy meant that the delegation was valid because it addressed “external” matters. For a thoughtful contrary view, see Lofgren, “‘Government From Reflection,’” 204–5.

21. Van Der Weyde v. Ocean Transport Co., 297 U.S. 114, 117 (1936). In an easily distinguishable case decided in November, Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 18 (1936), the Court unanimously denied a claim of independent executive power involving foreign relations, rejecting the contention that the president had power to extradite American citizens absent authorization by treaty or statute.

22. The Constitution itself provided virtually no support for the Court's assertion, and Sutherland's opinion barely mentioned its provisions. White, Constitution and the New Deal, 73–74. As Edward S. Corwin famously stated, the Constitution's overlapping grants of foreign affairs powers to Congress and the executive only created for the two branches “an invitation to struggle for the privilege of directing American foreign policy.” Corwin, Edward S., The President: Office and Powers, 1787–1957 4th rev. ed. (New York: New York University Press, 1957), 171Google Scholar. Moreover, in its section asserting the executive's “plenary and exclusive” power (Curtiss-Wright, 319–22), the opinion cited no compelling, or arguably even relevant, nonconstitutional sources. It quoted a statement by John Marshall in the House of Representatives in 1800 and a Senate report from 1816, both involving the president's power “to speak or listen as a representative of the nation” (Curtiss-Wright, 319). Then, it cited President George Washington's refusal to provide the House with documents relating to the negotiation of the Jay Treaty (Curtiss-Wright at 320–21), the deferential practice of Congress in seeking information about foreign affairs from executive departments (Curtiss-Wright, 321–322), and a case that declared that “the United States is invested with all the attributes of sovereignty” and that “the powers of nationality” were especially strong in dealing with foreign affairs. Curtiss-Wright, 322 (quoting Mackenzie v. Hare, 239 U.S. 299, 311 [1915]). All of those sources are limited and easily distinguishable, and none of them required––or arguably even supported––the Court's sweeping assertion about unspecified “plenary and exclusive” executive power.

23. See, generally, Herring, George C., From Colony to Superpower: U.S. Foreign Relations Since 1776 (New York: Oxford University Press, 2008), ch. 12CrossRefGoogle Scholar; and Kennedy, David M., Freedom from Fear: The American People in Depression and War, 1929–1945 (New York: Oxford University Press, 1999), chs. 13–14Google Scholar.

24. Dallek, Robert, Franklin D. Roosevelt and American Foreign Policy, 1932–1945 (New York: Oxford University Press, 1979), esp. 4748, 71–72 and chs. 4–6Google Scholar; and Divine, Robert A., The Illusion of Neutrality: Franklin D. Roosevelt and the Struggle Over the Arms Embargo (Chicago: University of Chicago Press, 1962), esp. chs. 3–5Google Scholar.

25. Divine, Illusion of Neutrality, ch. 4; and Wolfskill, George, The Revolt of the Conservatives: A History of the American Liberty League (New York: Houghton Mifflin, 1962)Google Scholar. In a 1936 poll, 45% of Americans stated that Roosevelt's policies might lead to dictatorship. Alpers, Benjamin L., Dictators, Democracy, and American Public Culture: Envisioning the Totalitarian Enemy, 1920s–1950s (Chapel Hill: University of North Carolina Press, 2002), 80Google Scholar. For the contrasting approaches of the neutralists, see Borchard, Edwin and Lage, William, Neutrality for the United States (New Haven: Yale University Press, 1937)Google Scholar (urging strict adherence to international law and neutral rights); and Scott, James Brown, “The Neutrality of the Good Neighbor,” Proceedings of the American Society for International Law 29 (1935): 125Google Scholar (urging abandonment of neutral rights and imposition of arms embargos).

26. Dallek, Franklin D. Roosevelt; and Divine, Illusion of Neutrality.

27. Herring, From Colony to Superpower, 504; and Kennedy, Freedom from Fear, 393.

28. Dallek, Franklin D. Roosevelt, 108, 120; Divine, Illusion of Neutrality, 85, 115–16, 158; and Gallup, George H., The Gallup Poll: Public Opinion, 1935–1971 (New York: Random House, 1972), 1:35Google Scholar.

29. Ross, William G., The Chief Justiceship of Charles Evans Hughes, 1930–1941 (Columbia, SC: University of South Carolina Press, 2007)Google Scholar; and Freund, Paul, “Charles Evans Hughes as Chief Justice,” Harvard Law Review 81 (1967): 443CrossRefGoogle Scholar. On Hughes as a “Jovian” figure, see Newman, Roger K., Hugo Black: A Biography (New York: Pantheon Books, 1994), 269Google Scholar; and Freund, “Charles Evans Hughes,” 13.

30. Beard, Charles A., The Idea of National Interest: An Analytical Study in American Foreign Policy (New York: Macmillan Company, 1934), 420Google Scholar; Glad, Betty, Charles Evans Hughes and the Illusions of Innocence: A Study in American Diplomacy (Urbana, IL: University of Illinois Press, 1966), 132–33, 138–39Google Scholar; and Pusey, Merlo J., Charles Evans Hughes (New York: Macmillan Company, 1951), 2:412, 431CrossRefGoogle Scholar.

31. Pusey, Charles Evans Hughes, 2:411–12, 419–20, chs. 41–49 passim; and Simon, James, FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal (New York: Simon & Schuster, 2012)Google Scholar, 3. On Hughes as secretary of state, see Perkins, Dexter, Charles Evans Hughes and American Democratic Statesmanship (Boston: Little, Brown & Company, 1956)Google Scholar; and Glad, Charles Evans Hughes, chs. 17–18.

32. Glad, Charles Evans Hughes, 143, 147; Pusey, Charles Evans Hughes, 2:499–500; Hughes Papers, Library of Congress (hereafter CEHP), reel 33: Hughes to Lodge, Feb. 6, 1923, 2; and Hughes, Charles Evans, “Some Observations on the Conduct of Our Foreign Relations,” American Journal of International Law 16 (1922): 367, 368CrossRefGoogle Scholar. “Premature disclosures may prevent the accomplishment of the most enlightened aims,” and “it is fatuous to suppose that negotiations can be conducted without prudent reservations on each side.” Ibid., 369.

33. Glad, Charles Evans Hughes, 143. See Hughes, Charles Evans, “Some Aspects of the Work of the Department of State,” American Journal of International Law 16 (1922): 355–64CrossRefGoogle Scholar.

34. Glad, Charles Evans Hughes, 140–41; 143, 151–52, 185–92, 215–16; Pusey, Charles Evans Hughes, 1:395–99, 404; 2:431–34, 571, 611–12; Hughes, Charles Evans (Danelski, David J., and Tulchin, Joseph S., eds.), The Autobiographical Notes of Charles Evans Hughes (Cambridge, MA: Harvard University Press, 1973), 226Google Scholar; and Hughes, Charles Evans, “The Permanent Court of International Justice,” Proceedings of the American Society for International Law 17 (1923): 7589Google Scholar.

35. Glad, Charles Evans Hughes, 178, 218; Pusey, Charles Evans Hughes, 2:443–44; and Hughes, Autobiographical Notes, 260. See Glad, Charles Evans Hughes, 223–30.

36. Hughes, “Some Observations,” 366, 370–72. “We have,” he emphasized, “had recent illustration of this.” Ibid., 370–71.

37. CEHP, reel 28: Hughes to Frank H. Hiscock, March 24, 1922. See Pusey, Charles Evans Hughes, 2:441, 463, 499–500, 512–17, 574–75.

38. CEHP, reel 28: Hughes to Hiscock, March 24, 1922; Hughes to Hiscock, April 6, 1922; and Hughes to Hiscock, April 24, 1924. See Hughes, Autobiographical Notes, 212–22, 242, 249.

39. Herring, From Colony to Superpower, 504; and Hughes, Autobiographical Notes, 222–25. Pusey wrote his biography with Hughes's close cooperation. Pusey, Charles Evans Hughes, 1:vii. The finished product was exceptionally favorable to Hughes, and generally reflected his point of view. Pusey's language describing Curtiss-Wright, then, may be suggestive. Pusey stated that Sutherland “wrote a scholarly opinion confirming the broad sweep of the President's power in international affairs.” Ibid., 2:745 (emphasis added). It seems plausible to speculate that the word “confirming”––itself a highly debatable characterization––came from Hughes himself and that Pusey's use of that word reflected Hughes's belief that Sutherland's opinion embodied Hughes's own long-held view about the nature of executive foreign affairs power. See note 44 below.

40. Pusey states that Hughes did not “solicit support for his views outside the conference,” Pusey, Charles Evans Hughes, 676, and Hughes seemed to confirm some such practice. “Very rarely, and then only casually, did I discuss cases with any Justice in advance of the conferences of all the Justices.” Hughes, Autobiographical Notes, 301. Roberts once stated that Hughes never asked him to change his vote in a case. Richard D. Friedman, “Charles Evans Hughes as Chief Justice, 1930–1941: The Complexities of Moderation,”(unpublished M Phil diss., Oxford University, 1979) (on file with author), 373. Those statements do not contradict the argument in the text and, moreover, require some qualification. As an experienced and determined leader, Hughes “actively sought” to secure large, and, if possible, unanimous decisions. Danelski and Tulchin, “Editors' Introduction,” in Hughes, Autobiographical Notes, xxvi. First, and likely most important, Hughes regularly expressed his views fully and forcefully in the Saturday conferences. Second, he communicated through memos responding to draft opinions, and he was ever ready to suggest modifications if he thought them necessary. For example, see George Sutherland Papers, Library of Congress, box 4 (hereafter GSP), Sutherland to Hughes, December 28, 1936. Third, Hughes's self-denying statement in his Autobiographical Notes contains loopholes. It seems to acknowledge occasional advance discussions, and it fails to exclude either discussions of “issues” (as opposed to “cases”) or conversations about cases held after conferences. Finally, substantial evidence shows that Hughes did sometimes communicate privately with other justices about pending issues and cases: Kaufman, Andrew L., Cardozo (Cambridge: Harvard University Press, 1998), 479Google Scholar (Hughes visited Cardozo's apartment on several occasions to dissuade him from publishing proposed separate opinions) and 694 n.31 (Roberts admitted that Hughes pressed him to add certain constitutional language to his opinion in United States v. Butler, 297 U.S. 1 [1936]). The added language in Butler gave an independent scope to the General Welfare Clause, and Hughes later declared that language to be “the most significant and important” part of the case. Hughes, Autobiographical Notes, 309. For his part, Roberts acknowledged that he had given in to Hughes's urging and remarked that he “often wonder[ed] why the hell I did it just to please the Chief.” Friedman, Richard D., “Switching Time and Other Thought Experiments: The Hughes Court and the Constitutional Transformation,” University of Pennsylvania Law Review 142 (1994): 1946CrossRefGoogle Scholar; Newman, Hugo Black, 282 (Hughes persuaded Black to write for the Court in a delicate race case by promising to “get the Court” for him); Pusey, Charles Evans Hughes, 2:757 (Hughes and Roberts have “private chat” about the latter's vote in West Coast Hotel v. Parrish, 300 U.S. 379 [1937]); Strum, Philippa, Louis D. Brandeis: Justice for the People (Cambridge: Harvard University Press, 1984), 369–70CrossRefGoogle Scholar (Brandeis informed Hughes that he “couldn't stand for” a McReynolds opinion, and Hughes arranged for Van Devanter to negotiate changes with McReynolds and, when objections remained, took over the opinion himself and made changes to satisfy Brandeis); Harlan F. Stone Papers, Library of Congress, box 75 (hereafter HFSP), Hughes to Stone, November 24, 1934 and Stone to Hughes, November 24, 1934 (Hughes agrees to conference at his home with Brandeis, Stone, and Cardozo); and Joseph L. Rauh, JA., Melvin H. Siegel, Ambrose Doskow, and Alan Strook,A Personal View of Justice Benjamin N. Cardozo: Recollections of Four Cardozo Law Clerks,” Cardozo Law Review 1 (1979): 17Google Scholar (Doskow: Hughes came “into the apartment to persuade Cardozo not to publish [a proposed concurrence] separately”).

The claim that in the summer of 1936 Hughes tried to persuade Roberts to alter his views on pending cases (see Leuchtenburg, William E., “Charles Evans Hughes: The Center Holds,” North Carolina Law Review 83 [2005]: 1999Google Scholar) would add further support, but questions have been raised whether the evidence underlying the claim actually supports it. Cushman, Barry, “The Hughes–Roberts Visit,” Green Bag, Second Series 15 (2012): 125–47Google Scholar.

41. Hughes, Charles Evans, The Supreme Court of the United States (New York: Columbia University Press, 1928), 58CrossRefGoogle Scholar; McElwain, Edwin, “The Business of the Supreme Court as Conducted by Chief Justice Hughes,” Harvard Law Review 63 (1949): 14CrossRefGoogle Scholar; Danelski and Tulchin, “Editors' Introduction,” in Hughes, Autobiographical Notes, xxviGoogle Scholar; Mason, Alpheus Thomas, Harlan Fiske Stone: Pillar of the Law (New York: The Viking Press, 1956), 789Google Scholar.

42. Hughes, Charles Evans, Our Relations to the Nations of the Western Hemisphere (Princeton: Princeton University Press, 1928), 51Google Scholar. See Glad, Charles Evans Hughes, 244, 250–51.

43. Hughes, Our Relations, 53, 54. Butler's docket book seems to indicate that, when Hughes stated the case in conference, he “expressed view findings not mere op[inion].” CSC, Justice Butler, United States v. Curtiss-Wright Export Corp., docket book (1936) (emphasis in original). This would support the claim that Hughes took the lead in urging the justices to uphold the delegation. See note 44 below. In foreign policy, Hughes was a pragmatic realist who believed that nations would invariably follow their “essential interests.” Hughes, Autobiographical Notes, 221; and Pusey, Charles Evans Hughes, 2:439. Hughes and Roosevelt had long enjoyed a cordial and mutually respectful relationship (Simon, FDR and Chief Justice Hughes, 6, 8, 230, 314, 384); and Sutherland's opinion also seemed to echo the importance of practical considerations. Curtiss-Wright, 320.

44. Intriguingly, the first of three brief notations in Brandeis's docket book may provide additional evidence of Hughes's leadership in the conference. The entry begins with the letters “CJ” and continues with words that seem to be “as to additional” and then words that could be “ground of.” The remaining words have not been identified. CSC, Justice Brandeis, United States v. Curtiss-Wright Export Corp., docket book (1936).

45. Hughes was acutely aware that the Court's decisions could influence the conduct of foreign policy. As secretary of state, for example, the Court's Prohibition enforcement decisions had caused him considerable difficulty. Pusey, Charles Evans Hughes, 2:576–77. Beyond the foreign threats that challenged the nation, Hughes may also have had an additional reason for wishing to incorporate the “plenary and exclusive” language, a reason that he would not likely have shared with the Court as a whole. He may have seen Curtiss-Wright as an opportunity to help defuse the intense political controversy over the New Deal that surrounded the Court in late 1936. Curtiss-Wright was only one of several relatively “liberal” decisions that the Court handed down in the weeks between the presidential election in November and the announcement of Roosevelt's Court-packing plan on February 5, 1937. Ross, Chief Justiceship, 97–101. The executive power language would surely please Roosevelt and his supporters, and it might also signal that the Court was not adamantly opposed to either national power or the New Deal. As chief justice, Hughes was anxious to protect the Court in a time of looming constitutional crisis, and such a deft signaling effort seemed well within his tactical imagination. Only months later, Hughes used his tactical skills to protect the Court when he worked adroitly behind the scenes to send a crucial but quite different political signal: that Congress should reject the president's Court-packing plan. Not without reason did Roosevelt later declare Hughes “the best politician in the country.” Shesol, Jeff, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: W.W. Norton & Company, 2010), 400Google Scholar.

46. As early as 1922, Hughes received diplomatic warnings about Hitler's “vehemence and fanaticism” in seeking a “dictatorship,” and that his growing popularity meant that the German people were “slowly going mad.” Pusey, Charles Evans Hughes, 2:580–81. Subsequently, Hughes blamed World War II on Hitler's rearmament of Germany and the failure of England and France in the mid-1930s to stop him when they could. Hughes, Autobiographical Notes, 220. At three Soviet Embassy dinners during the 1930s, Hughes spoke with the Russian ambassador. On the last occasion, in May 1938, the two men “surveyed at length the rising menace of Hitlerism in Europe,” and the ambassador insisted “rather emphatically that Hitler, as soon as he was ready, would attack France.” Pusey, Charles Evans Hughes, 2:529. Hughes's likely sympathy with the plight of German Jews may be inferred from the fact that he had previously shown his opposition to anti-Semitism, and urged better relations between Christians and Jews. In 1927, he had helped found the National Conference of Christians and Jews. Pusey, Charles Evans Hughes, 2:621–22. Less than 2 months before Curtiss-Wright was argued, the Conference publicly hailed Hughes as one of its founders. CEHP, reel 81: Everett R. Clinchy to Hughes, September 21, 1936, with enclosed press release. See note 100 below.

47. Pusey, Charles Evans Hughes, 2:762, 764. Hughes presumably intended his remarks as a condemnation of Nazism and Fascism as well as a warning about the dangers of Roosevelt's Court-packing plan. Six months before Pearl Harbor, he declared that the “lamps of justice are dimmed or have wholly gone out in many parts of the earth.” Hughes, Charles Evans, “Address of the Honorable Charles Evans Hughes,” Proceedings of the American Law Institute, 18 (1941): 29Google Scholar.

48. Hughes, Supreme Court, 57, 61; Pusey, Charles Evans Hughes, 2:664–65, 669–70, 672–79, 790–91; Ross, Chief Justiceship, ch. 8; Carter, Edward L., and Adams, Edward E., “Justice Owen J. Roberts on 1937,” Green Bag, Second Series 15 (2012): 386Google Scholar; Hughes, Autobiographical Notes, 301; Frankfurter, Felix, “Chief Justices I Have Known,” Virginia Law Review 39 (1953): 901CrossRefGoogle Scholar; and Freund, “Charles Evans Hughes,” 40. Cardozo told Roberts that, given Hughes's persuasive powers, he waited 24 hours before making his decision in cases in which Hughes had made a particularly forceful argument in favor of one position. For his part, Roberts believed that Hughes's arguments in conference and his mastery of the facts of cases “often persuaded his brethren on the Court to change their minds and side with him.” Carter and Adams, “Justice Owen J. Roberts,” 386. As for assignments, Cardozo was a slight exception. Although admiring Hughes, Cardozo felt that he did not receive his share of important cases. Kaufman, Cardozo, 479.

49. Pusey, Charles Evans Hughes, 2:546–48; Hughes, Our Relations; Hughes, Autobiographical Notes, 274; CEHP, reel 118: Memorandum, “The Guatemala–Honduras Boundary” (undated); Glad, Charles Evans Hughes, 257–58; HFSP, box 75, Hughes to Stone, November 12, 1931; HFSP, box 60, Hughes to Stone, December 1, 1933; CEHP, reel 5: William Phillips (under-secretary of state) to Hughes, March 8, 1934, legal advisor, Department of State, memoranda on “Abrogation of Treaties,” January 27, 1936, and “Memorandum for the Chief Justice,” January 29, 1936; Carlos Salazar (Counsel for Guatemala) to Hughes, January 25, 1933; Hughes to David Koppman, January 30, 1932; Mark Sullivan to Hughes, July 29, 1935; and Hughes to Richard Hooker, Jan. 14, 1936. At the Havana conference, Hughes defended the right of the United States to intervene in Latin American affairs. Dallek, Franklin D. Roosevelt, 82.

50. Roosevelt, Franklin D., “The President Suggests to All the American Republics an Inter-American Conference at Buenos Aires to Advance the Cause of American and World Peace,” January 30, 1936, in Public Papers and Addresses of Franklin D. Roosevelt (New York: Random House, 1938), 5:72Google Scholar; and Dallek, Franklin D. Roosevelt, 132–34.

51. The docket books of Brandeis, Butler, and Roberts all indicate that the vote in conference was identical to the final lineup of the justices when the opinion was announced. Therefore, the conference was apparently decisive. For Hughes's influence on the individual justices, see note 135 below and accompanying text and citations.

52. Van Devanter Papers, Library of Congress (hereafter WVDP), box 17, letterbook 45A, 189, Van Devanter to Dennis T. Flynn, October 3, 1932; Powell, “Story of Curtiss-Wright,” 225.

53. Paschal, Mr. Justice Sutherland, 105–8; GSP, box 2, Sutherland to Warren G. Harding, November 10, 1920 (“Your overwhelming victory is the most joyous thing that ever happened”); Mason, Alpheus Thomas, William Howard Taft: Chief Justice (New York: Simon and Schuster, 1965), 171Google Scholar.

54. Sutherland, Constitutional Power, 76, 123; Canon, David T., Nelson, Garrison, and Steward, Charles III, Committee in the U.S. Congress (1789–1946): Senate Standing Committees (Washington, DC: CQ Press, 2002), 2:530–31Google Scholar; and Paschal, Mr. Justice Sutherland, 93–96.

55. Sutherland, “Internal and External Powers,” Sen. Doc. 417, 2, 10–12. Sutherland did not oppose all Progressive reforms and supported, in particular, women's suffrage and relatively narrow workmen's compensation laws that did not “encourage the indolent” and that maintained “the vital distinction between helplessness, which is a misfortune, and laziness, which is a vice.” George Sutherland, “The Economic Value and Social Justice of a Compulsory and Exclusive Workmen's Compensation Law,” Sen. Doc. 131 (1913), quoted in Olken, Samuel R., “Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions,” William & Mary Bill of Rights Journal, 6 (1997): 40Google Scholar.

56. Paschal, Mr. Justice Sutherland, 82–87, 93–95 (quotes at 83, 93, and 82). Sutherland termed one of Wilson's actions “utterly subversive of every consideration of self-respect.” Ibid., 93. Sutherland was likely particularly distressed by Wilson's emphasis on the Constitution as a “living” document that allowed governmental changes, especially the growth of federal power in domestic areas. Wilson, Woodrow, Constitutional Government in the United States (New York: Columbia University Press, 1908), 54–57, 69, 192–93CrossRefGoogle Scholar.

57. Wilson, Constitutional Government, 77, 79.

58. GSP, Box 2, Sutherland to Frederick E. Wadhams, Septmber 16, 1918. Sutherland gave his lectures in December, 1918, and the book was published in early 1919. For Sutherland's criticisms of the League, see Sutherland, Constitutional Power, ch. 8, esp. 184–91; and Sutherland to Warren G. Harding, November 10, 1920. Sutherland blamed Wilson for the fate of the Treaty and the League. GSP, Box 2, Sutherland to W.W. Keen, December 29, 1919.

59. Sutherland, Constitutional Power, 76, 123, 126, 127.

60. Sutherland, Constitutional Power, 75. For similar jabs at Wilson, see ibid., 110 (denying executive control of the war power despite “prevalent opinion to the contrary”), 22 (rejecting the idea of making the world “safe for democracy”), 166 (same), and 172 (scorning the idea of “a war to end war”). For Sutherland's views before he joined the Court, see GSP, box 2, Sutherland to W. W. Keen, December 29, 1919; Sutherland, George, “Principle or Expedient?” Proceedings of the Forty-Fourth Annual Meeting of the New York State Bar Association (1921), 263, 273Google Scholar; and Paschal, Mr. Justice Sutherland, 82–85.

61. Sundquist, James L., The Decline and Resurgence of Congress (Washington, DC: The Brookings Institution, 1981), 12Google Scholar; and Rogers, Lindsay, “American Government and Politics,” American Political Science Review 16 (1922): 41Google Scholar.

62. Sutherland had been rumored for a place on the Court since his first term in the Senate, and he undoubtedly had a keen desire for the appointment. Paschal, Mr. Justice Sutherland, 60, 111–14. Under the leadership of Henry Cabot Lodge, Senate Republicans were determined to assert a strong, and perhaps decisive, voice in shaping American foreign policy. See, for example, Lodge, Henry Cabot, “Foreign Relations of the United States, 1921–1924,” Foreign Affairs 2 (1924): 525–39CrossRefGoogle Scholar. For Taft, see Mason, William Howard Taft, 205; Myers v. United States, 272 U.S. 52 (1926) (Taft, C.J.); and J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928) (Taft, C.J.). Sutherland joined Taft's opinion for the Court in both cases. The author thanks Robert Post for the suggestion about Taft's possible influence. Hadley Arkes suggests that Sutherland's ideas about executive power might have changed because he became convinced that only the executive could effectively direct the nation's foreign affairs. Arkes, Return of George Sutherland, 235–41.

63. Paschal, Mr. Justice Sutherland, 218 and n.28; Sutherland, Constitutional Power, 3, 7, 4; and GSP, box 4, Sutherland to S. Hughes, March 16, 1936. In January 1937, Sutherland continued to see conditions in Europe as “disturbing,” but sounded more hopeful. He thought that England was “doing the best thing possible” to “avert a general war and was “inclined to think that such a terrible calamity will be avoided.” GSP, box 4, Sutherland to H. Wesbury Preston, January 9, 1937.

64. Sutherland, Constitutional Power, 172–183 (quotes at 174, 175, 179, 181, 182). Sutherland may also have been impressed with Roosevelt's efforts at the Pan-American Conference in Buenos Aires, because he believed that the “Monroe Doctrine is an essential part of our defensive policy” and “a matter of grave national importance.” Sutherland, Constitutional Power, 22.

65. Compare Hughes, Charles Evans, “War Powers Under the Constitution,” Marquette Law Review 2 (1918): 9Google Scholar with Sutherland, Constitutional Power, 96; and Monaco v. Mississippi, 292 U.S. 313, 331 (1934). Hughes made statements similar to those in Monaco in Burnet v. Brooks, 288 U.S. 378, 396 (1933); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936); and Board of Trustees of the University of Illinois v. United States, 289 U.S. 48, 59 (1933), and he also supported a broad scope for the treaty power. Santovicenzo v. Egan, 284 U.S. 30, 40 (1931). Sutherland joined Hughes's opinions in all of those cases. See Hughes, Supreme Court, 102–11; and Pusey, Charles Evans Hughes, Vol 1, 369–70. Sutherland also agreed with Hughes that in foreign affairs, nations were guided by their own perceived self-interest and that the establishment of a world court was a highly desirable goal and a promising method of maintaining world peace. See note 43 above and Sutherland, Constitutional Power, 176–77, 188–91.

66. “[I]n making assignments,” Hughes later explained, “I often had in mind the special fitness of a Justice for writing in the particular case.” Hughes, Autobiographical Notes, 302. See Hughes, Supreme Court, 59. Sutherland also seemed a perfect choice because of his familiarity with the subject, his ability to write quickly, and the likelihood that the three conservatives would be more likely to accept a centralizing opinion from him. Powell, “Story of Curtiss-Wright,” 220–21.

67. Sutherland's “internal/external” dichotomy was designed to seal off the domestic realm from the realm of foreign affairs. It preserved the principle that the power of the national government in “internal” matters was limited to “delegated and enumerated” powers while, at the same time, opening the nation's foreign policy to more flexible, uncabined, and expedient national actions.

68. Urofsky, Melvin I., “The Brandeis–Frankfurter Conversations,” Supreme Court Review (1985): 31CrossRefGoogle Scholar.

69. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346–47 (1936) (Brandeis, J., concurring). Brandeis urged constitutional avoidance, for example, in Hill v. Wallace, 259 U.S. 44, 72 (1922) (Brandeis, J., concurring); Lipke v. Lederer, 259 U.S. 557, 563 (1922) (Brandeis, J., dissenting); Pennsylvania v. West Virginia, 262 U.S. 553, 605 (1923) (Brandeis, J., dissenting); and King Manufacturing Co. v. City Council of Augusta, 277 U.S. 100, 115 (1928) (Brandeis, J., dissenting). See Bickel, Alexander M., The Unpublished Opinions of Mr. Justice Brandeis (Chicago: University of Chicago Press, 1957), xviGoogle Scholar.

70. Purcell, Edward A. Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000), 120–32, 165–77, 190–91Google Scholar; Schlesinger, Arthur M. Jr., The Politics of Upheaval (Boston: Houghton Mifflin Company, 1960), 280Google Scholar; Urofsky, Melvin I., Louis D. Brandeis: A Life (New York: Pantheon Books, 2009), 705–6 and ch. 11Google Scholar; Myers v. United States, 272 U.S. 52, 240, 292–93 (1926) (Brandeis, J., dissenting); and Humphrey's Executor v. United States, 295 U.S. 602 (1935).

71. Sutherland's view of the role of the judiciary in foreign-affairs law was unclear. His earlier article (“Internal and External Powers,” 7 [Sen. Doc. 417]), his book (Constitutional Power, 46, 144, 156), and his opinion (Curtiss-Wright, 320) all acknowledged the existence of constitutional or extraconstitutional limitations on executive and national foreign affairs powers, limitations that could be taken to imply judicial enforceability. However, he also argued that some foreign affairs questions involving “political policies” were not “justiciable or susceptible of decision by the application of the principles of law or equity.” Sutherland, Constitutional Power, 134. See White, G. Edward, “The Transformation of the Constitutional Regime of Foreign Relations,” Virginia Law Review 85 (1999): 6062CrossRefGoogle Scholar.

72. Humphrey's Executor; Mason, Alpheus Thomas, Brandeis: A Free Man's Life (New York: The Viking Press, 1946), 619Google Scholar.

73. Mason, Brandeis, 259–61; 276, 279, 499–500, 504; Konefsky, Samuel J., The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas (New York: Collier Books, 1961)Google Scholar, 278 n.54; Urofsky, Louis D. Brandeis, 574–75, 577. Although Brandeis and Sutherland agreed on some decisions both limiting and approving the exercise of governmental powers, they disagreed on many critical constitutional issues and divided on pivotal cases decided in the Court's 1936 term: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); and Steward Machine Co. v. Davis, 301 U.S. 548 (1937). Indicative of the division on the Court, Sutherland and the Court's other three conservatives were caucusing to prepare for the Court's Saturday conferences, and in 1936 the liberals began doing the same, Brandeis meeting with Cardozo and Stone to make counter-preparations. Kaufman, Cardozo, 477–78. The “conservative” wing, drawn together by Chief Justice Taft, had been meeting informally since the mid-1920s. Mason, Brandeis, 606. In spite of their political and legal disagreements, Brandeis and Sutherland enjoyed cordial personal relations. Paschal, Mr. Justice Sutherland, 116–17.

74. Bickel, Unpublished Opinions, 55–56; Strum, Brandeis, 346, 350–52, 364–71; Urofsky, Louis D. Brandeis, 579–81, 696–98; Post, Robert C., “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” Minnesota Law Review 85 (2001): 1341Google Scholar; and Urofsky, “Brandeis–Frankfurter Conversations,” 309, 310, 314, 317, 327–9. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) (stating, in addressing a nonconstitutional issue, that “in most matters it is more important that the applicable rule of law be settled than that it be settled right”).

75. Lee, Evan Tsen, Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts Was Invented (New York: Oxford University Press, 2011), ch.4Google Scholar; Purcell, Brandeis and the Progressive Constitution, 120–32; and Shesol, Supreme Power, 453. See, for example, Gilbert v. Minnesota, 254 U.S. 325, 334, 343 (1920) (Brandeis, J., dissenting); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 417, 432 (1921) (Brandeis, J., dissenting); Olmstead v. United States, 277 U.S. 438, 471, 479 (1928) (Brandeis, J., dissenting); Whitney v. California, 274 U.S. 357, 372, 370–80 (1928) (Brandeis, J., concurring); and Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (Brandeis, J.).

76. On commerce, see, New York Central Railroad v. Winfield, 244 U.S. 147, 154 (1917) (Brandeis, J., dissenting); Arkansas Railroad Commission v. Chicago, Rock Island & Pacific Railroad Co., 274 U.S. 597 (1927) (Brandeis, J.); Brandeis to Frankfurter, June 17, 1923, in Urofsky, Melvin I., and Levy, David W., eds., Letters of Louis Brandeis (Albany, NY: State University of New York Press, 1971–78)Google Scholar, 5:78 [hereafter, Letters]. On the treaty power, see Missouri v. Holland, 252 U.S. 416 (1920). On Prohibition, see James Everard's Breweries v. Day, 265 U.S. 545 (1924); and Lambert v. Yellowly, 272 U.S. 581 (1926). On war powers, see Selective Draft Law Cases, 245 U.S. 366 (1918); Cox v. Wood, 247 U.S. 3 (1918); Hamilton v. Kentucky Distilleries Co., 251 U.S. 146 (1919) (Brandeis, J.); Northern Pacific Railway Co. v. North Dakota, 250 U.S. 135 (1919) (Brandeis, J., concurring alone in result without opinion); Ruppert v. Caffey, 251 U.S. 280 (1920) (Brandeis, J.); and Block v. Hirsch, 256 U.S. 135 (1921). On the Eighteenth Amendment, see Maul v. United States, 274 U.S. 501, 512 (1927) (Brandeis, J., concurring); United States v. Lee, 274 U.S. 559 (1927) (Brandeis, J.); and Post, Robert, “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” William & Mary Law Review 48 (2006): 45, 137 n.451Google Scholar.

77. Brandeis believed, for example, that the Department of Justice under Attorney General A. Mitchell Palmer from 1919 to 1921 was “bent on suppression of knowledge.” Brandeis to Frankfurter, March 17, 1924, in Urofsky, Melvin I. and Levy, David W. eds. “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter (Norman, OK: University of Oklahoma Press, 1991), 162Google Scholar. [hereafter, “Half Brother”]. On governmental repression during and after the war, see Thomas, William H. Jr., Unsafe for Democracy: World War I and the U.S. Justice Department's Covert Campaign to Suppress Dissent (Madison, WI: University of Wisconsin Press, 2008)Google Scholar; Murray, Robert K., Red Scare: A Study in National Hysteria, 1919–1920 (New York: McGraw–Hill Book Company, 1964)Google Scholar; and Preston, William Jr., Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933 (New York: Harper & Row, 1963)Google Scholar.

78. Gilbert v. Minnesota, 254 U.S. 325, 334, 335 (1920) (Brandeis, J., dissenting); Pierce v. United States, 252 U.S. 239, 253, 273 (1920) (Brandeis, J., dissenting). For Brandeis's other early opinions, see Schaefer v. United States, 251 U.S. 466, 482 (1920) (Brandeis, J., dissenting); and United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 417 (1921) (Brandeis, J., dissenting). For his major opinions in the later 1920s urging greater judicial protection for civil liberties, see Whitney v. California, 274 U.S.357 (1927) (Brandeis, J.) (concurring on jurisdictional grounds and defending broad First Amendment rights); Gambino v. United States, 275 U.S. 310 (1927) (Brandeis, J.) (broadening the Fourth Amendment exclusionary rule); Casey v. United States, 276 U.S. 413, 421, 423 (1927) (Brandeis, J.) (dissenting, criticizing government officers for entrapping defendants and courts for showing excessive “zeal to punish”); and Olmstead v. United States, 277 U.S. 438, 478–79 (1928) (Brandeis, J., dissenting) (denouncing federal wire-tapping as violating Fourth and Fifth Amendments). For his agreement with the Court's move in the early 1930s to provide greater protections for civil liberties, see Near v. Minnesota, 283 U.S. 697, 722–23 (1931) (freedom of the press); Stromberg v. California, 283 U.S. 359 (1931) (freedom of speech); Powell v. Alabama, 287 U.S. 45 (1932) (right to counsel in criminal case); and Grosjean v. American Press Co., 297 U.S. 233 (1936) (freedom of the press). See also Hamilton v. Regents of the University of California, 293 U.S. 245, 265 (1934) (freedom of religion) (Brandeis and Stone, JJ., joining concurrence of Cardozo, J.).

79. Sutherland, Constitutional Power, 103; and United States v. MacIntosh, 283 U.S. 605, 622 (1931) (Sutherland, J.); 627 (Hughes, C.J. dissenting, joined by Brandeis, Holmes, and Stone, JJ.).

80. The material on Brandeis and Zionism is drawn from several fine biographies. Mason, Brandeis, 441–64, 593–97, 635–37; Strum, Brandeis, 224–90, 384–85, 388–89; and Urofsky, Louis D. Brandeis, 399–429, 490–95, 515–44, 656–58, 685–90, 730–40. Specific statements in the paragraph appear in Strum, Brandeis, 225, 247, 287; Mason, Brandeis, 692; Urofsky, Melvin I., A Mind of One Piece: Brandeis and American Reform (New York: Charles Scribner's Sons, 1971), ch. 5Google Scholar; Brandeis to Julian Mack, December 1934; Brandeis to Wise, September 4, 1936; and Brandeis to Robert Szold, June 23, 1935 and October 5, 1936, Letters, 5:549, 576, 558–59, 582–83.

81. Brandeis to Frankfurter, August 27, 1929, September 6, 1929, and September 20, 1929 and Brandeis to Robert Szold, September 17, 1930, Letters, 5:382–86, 455; Baker, Leonard, Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984), 338–39Google Scholar; Manuel, Frank E., The Realities of American–Palestine Relations (New York: Praeger, 1975 [1949]), 302–3Google Scholar; Wilson, Evan M., A Calculated Risk: The U.S. Decision to Recognize Israel (Covington, KY: Clerisy Press, 2008), 43–45, 47, 61–63Google Scholar; and Brandeis to Julian Mack, September 13, 1931 and January 3, 1932, Letters, 5:487, 491.

82. Letters, 5:554 n.4; Manuel, Realities of American–Palestine Relations, 300, 304. For the most recent, thorough, and balanced study of Roosevelt's policy toward Jewish immigration, see Breitman, Richard and Lichtman, Allan J., FDR and the Jews (Cambridge, MA: Harvard University Press, 2013)Google Scholar.

83. Baker, Brandeis and Frankfurter, 341–43; Murphy, Bruce Allen, The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (New York: Oxford University Press, 1982), 7071Google Scholar; and Brandeis to Wise, September 18, 1933, Brandeis to Julian Mack, October 17, 1933, Brandeis to David Ben-Gurion, January 25, 1934, Brandeis to Wise, April 11, 1935, Letters, 5:520, 524, 531, 533 n.2., 553. Brandeis supported a voluntary boycott but opposed proposals for an official United States boycott, Mason, Brandeis, 596, and he believed that Ben-Gurion deserved the “unqualified, ardent support” of all Zionists. Brandeis to Wise, June 2, 1936, Letters, 5:571.

84. Murphy, Brandeis/Frankfurter Connection, 419 n.124; Urofsky, Louis D. Brandeis, 734–40; and Brandeis Papers, University of Louisville (hereafter LDBP-L), reel 103: undated newspaper clipping from The Jewish Exponent (Philadelphia, August 14, 1936), Vol. 98, whole number 2570 (Roosevelt writes letter expressing support for “the rebuilding of the ancient Jewish homeland”).

85. Manuel, Realities of American–Palestine Relations, 305; Strum, Brandeis, 384; and Freidel, Frank, Franklin D. Roosevelt: A Rendezvous with Destiny (Boston: Back Bay Books, reprint ed., 1991), 112Google Scholar. In the 5 years after 1933, federal officials construed the immigration laws so strictly that nearly three quarters of the German quota went unfilled. In 1938, Roosevelt ordered changes that liberalized immigration policy and allowed 27,000 German and Austrian Jews to enter the United States during the following year. Dallek, Franklin D. Roosevelt, 166–67. Feingold, Henry, The Politics of Rescue: The Roosevelt Administration and the Holocaust, 1938–1945 (New Brunswick, NJ: Rutgers University Press, 1970)CrossRefGoogle Scholar emphasizes the range of severe limitations that constrained Roosevelt's freedom of action on the issue. Breitman and Lichtman, FDR and the Jews concludes that Roosevelt did little before 1936, but that he nonetheless “reacted more decisively to Nazi crimes against Jews than did any other world leader of his time” (p. 315), and that after 1936 he took actions that probably saved more than 100,000 Jews (p. 317). See, generally, Friedman, Saul S., No Haven for the Oppressed: United States Policy Toward Jewish Refugees, 1938–1945 (Detroit: Wayne State University Press, 1973)Google Scholar; Wyman, David S., The Abandonment of the Jews: America and the Holocaust, 1941–1945 (New York: Pantheon Books, 1984)Google Scholar; and Davidowicz, Lucy S., The War Against the Jews: 1933–1945 (New York: Bantam Books, 1986)Google Scholar.

86. Reports varied considerably. For the report of the American Consul General in Jerusalem see Leland B. Morris to secretary of state, April 25, 1936, in Foreign Relations of the United States, 1936 (Washington, DC: United States Government Printing Office, 1953), 3:434–40 (hereafter, “Foreign Relations, 1936”). For other reports, see LDBP-L, reel 103: Sir Arthur Wauchope (British High Commissioner) to Ben Zvi, July 25, 1936; M. Shertok to Wauchope, July 25, 1936; Herschel v. Johnson, communication for the United States ambassador to the secretary of state (July 31, 1936), Foreign Relations, 1936 3:445; and “Report by His Majesty's Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the Year 1936,”, para. 67, 71 (hereafter “Report by His Majesty's Government”). See Oren, Michael B., Power, Faith, and Fantasy: America in the Middle East, 1776 to the Present (New York: W.W. Norton & Company, 2007), 427Google Scholar.

87. Oren, Power, Faith, and Fantasy, 426; Quigley, John, Palestine and Israel: A Challenge to Justice (Durham, NC: Duke University Press, 1990), 20Google Scholar; LDBP-L, reel 103: Ben-Gurion to Brandeis, July 5, 1936, 7, 9; William Ormsby Gore to Chaim Weizman, September 2, 1936; “Report of the Executive on the Meeting of the Zionist General Council,” Zurich, August 25–31, 1936, 3; and “Report of the Meeting of the Administrative Committee of the Jewish Agency,” September 2–3, 1936, 2.

88. Mason, Brandeis, 597; LDBP-L, reel 103: Ben-Gurion to Brandeis, July 5, 1936, 15–18; and Brandeis to Frankfurter, July 19, 1936, “Half Brother”, 582–83.

89. Urofsky, Louis D. Brandeis, 739; LDBP-L, reel 103: “Note of Interview at the Colonial Office on September 30, 1936.”

90. LDBP-L, reel 103: Wise to Brandeis, July 21, 1936 and Wise to “Zionists, New York,” July 24, 1936; and “Report by His Majesty's Government,” para. 71. On Wise and Roosevelt in 1936, see Breitman and Lichtman, FDR and the Jews, 91–92.

91. LDBP-L, reel 103: Wise to Brandeis, September 1, 1936.

92. Brandeis to Wise, September 4, 1936, Letters, 5:576. On September 2, Wise informed Brandeis that Ben-Gurion had cabled from Palestine urging that “we ask the President of the United States to use his influence with the British Government against the stoppage of immigration and the difficulties arising from such stoppage.” LDBP-L, reel 103: Wise to Brandeis, September 2, 1936.

93. “Report of His Majesty's Government,” para. 67; and LDBP-L, reel 104: Wise to Brandeis, October 6, 1936, enclosing “Report of a Visit of Dr. Stephen S. Wise to President Franklin D. Roosevelt at Hyde Park,” dated October 5, 1936, 2. Brandeis had made the suggestion of an aide memoire almost immediately after learning of Wise's September 1 meeting with Hull. Brandeis to Wise, September 4, 1936, Letters, 5:576. See LDBP-L, reel 104: Wise to Brandeis, October 6, 1936.

94. “Report of His Majesty's Government,” para. 71. Bending to intense Arab counter-pressures, Britain compromised and established smaller quotas, estimating that “the total [of Jewish immigration] for the six months from October 1936 will be substantially below that for the preceding six months.” Ibid., para. 71. Given various exceptions in the immigration system, however, the United States State Department concluded that “immigration into Palestine has not been reduced to anywhere near the extent which is indicated” by the formal quota numbers. Paul H. Alling to assistant secretary of state, November 6, 1936, Foreign Relations, 1936, 454.

95. LDBP-L, reel 103: Brandeis to Julian Mack, October 11, 1936; LDBP-L, reel 104: Brandeis to Julius Simon, July 31, 1936; Brandeis to Wise, November 1, 1936; and Robert Szold to Brandeis, November 25, 1936. See LDBP-L, reel 104: Wise to Israel Ben Brodie, July 8, 1936; Brandeis to Julian W. Mack, October 17, 1936; Brandeis to Wise, November 1, 1936; Robert Szold to Brandeis, Novembr 17, 1936; Mrs. Edward Jacobs to Brandeis, December 11, 1936 (“Hadassah's ‘case”); and Maurice B. Hexter to Brandeis, December 18, 1936; Brandeis to Szold, September 5, 1936, Letters 5;577–81.

96. LDBP-L, reel 103: Wise to Brandeis, April 23, 1936; LDBP-L, reel 104: E. Kaplan to Wise, November 18, 1936; Robert Szold to Brandeis, December 12, 1936; Brandeis to Wise, September 24, 1936; Mack to Brandeis, Oct. 13, 1936; Brandeis to Mack, November 2, 1936; and memo, “Conference with Mr. Warburg and Associates,” (undated); Brandeis to Frankfurter, August 20, 1936, “Half Brother”, 584; Brandeis to Robert Szold, September 5, 1936, Letters, 5:577–81; and Brandeis to Frankfurter, November 5, 1936, “Half Brother”, 589.

97. Paper, Louis J., Brandeis: An Intimate Biography of One of America's Truly Great Supreme Court Justices (Englewood Cliffs, NJ: Prentice–Hall, Inc., 1983), 387Google Scholar; Urofsky, Louis D. Brandeis, 738; LDBP-L, reel 104: Robert Szold to Wise, October 14, 1936; Szold to Brandeis, November 4, 1936; Szold (?) to Wise, November 4, 1936; and Szold to Brandeis, December 12, 1936; Brandeis to Szold, October 5, 1936, Letters, 5:582.

98. Murphy, Brandeis/Frankfurter Connection, 158–59, 178; Strum, Brandeis, 393; Urofsky, Louis D. Brandeis, 709–13; and Brandeis to Frankfurter, November 4, 1936, “Half Brother”, 589.

99. Brandeis may have been more than ready to support the delegation at issue. In conference, the justices apparently addressed two additional issues. One was whether the banned property at issue (fifteen machine guns) was actually sold in the United States, a condition necessary to make the sale unlawful. Brandeis wrote in his docket book “property considered here,” suggesting that he supported that position in the discussion. The other, and seemingly more telling, issue was the significance of the fact that the president had terminated the prohibition against arms sales on October 28, 1935, but that the indictment had not been authorized until January, 1936. Powell, “Story of Curtiss-Wright,” 205, 207. Butler apparently thought that “all questions as to validity is [up or “op[en]”?]––termination is qu[estion] of validity.” Brandeis apparently supported the contrary position, writing “whether terminated not a question of validity.” CSC, Justice Brandeis, United States v. Curtiss-Wright Export Corp., docket book (1936); and Justice Butler, United States v. Curtiss-Wright Export Corp., docket book (1936).

100. Brandeis to Frankfurter, November 13, 1921, Letters, 5:33. For a similar statement about Hughes as secretary of state, see Brandeis to Alfred Brandeis, November 13, 1921, Letters, 5:32. When Hughes left office, his stewardship of the State Department was widely praised. Glad, Charles Evans Hughes, 149–51. Brandeis may also have seen Hughes as relatively sympathetic to Jewish issues. See above, note 46, and Brandeis's view of Frank v. Mangum, 237 U.S. 309, 345 (1915) (Holmes and Hughes, JJ., dissenting) in Brandeis to Roscoe Pound, November 27, 1914; Brandeis to Alfred Brandeis, December 12, 1914; and Brandeis to George Sutherland, November 6, 1915, Letters, 3:373, 383, 632.

101. Pusey, Charles Evans Hughes, 2:654, 669, 785; and Urofsky, Louis D. Brandeis, 675; “My admiration of the C.J.’s performances at conference continues unabated,” Brandeis declared. Brandeis to Frankfurter, May 2, 1931, “Half Brother”, 457. For a similar statement, see Brandeis to Frankfurter, May 30, 1930, ibid., 431. By 1936, Brandeis may also have come to feel a certain sympathy for Hughes as chief justice of a deeply divided Court. Whereas Stone criticized Hughes sharply, Brandeis––similarly frustrated with some of Hughes's actions as chief justice––nonetheless reacted with more sensitivity. Hughes “has no control over the Court,” he informed Frankfurter, and he “is deeply unhappy.” Shesol, Supreme Power, 214.

102. Hughes, Autobiographical Notes, 298–99 (quotes at 299); Paper, Brandeis, 327; White, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 466–67CrossRefGoogle Scholar; Shesol, Supreme Power, 392–401; and Urofsky, Louis D. Brandeis, 715–18, 748.

103. Panama Refining, 433 (1935) (Cardozo, J., dissenting); and Schechter Poultry, 551, 553–54 (1935) (Cardozo, J., concurring, joined by Stone, J.). See Kaufman, Cardozo, 512. Cardozo had taken a similarly generous position on delegation of power at the state level while he served on the New York Court of Appeals. Ibid., 369–71.

104. Kaufman, Cardozo, 524, 560–61. See, for example, Hamilton v. Regents of the University of California, 293 U.S. 245, 265 (1934) (Cardozo, J., concurring, joined by Brandeis and Stone, JJ.).

105. Kaufman, Cardozo, 157, 175–77, 487–89; Polenberg, Richard, The World of Benjamin Cardozo: Personal Values and the Judicial Process (Cambridge, MA: Harvard University Press, 1997), 176–78, 182–83Google Scholar; Benjamin N. Cardozo Papers, Columbia University (hereafter BNCP), box 12, “Letters,” Vol. 2, Cardozo to Joseph M. Paley, Mar. 29, 1933; BNCP, box 9, Cardozo to Wise, April 29, 1933, and October 31, 1933; and BNCP, box 1B, Cardozo to Rupert L. Joseph, August 11, 1936. Although Cardozo strove to separate his personal feelings about Nazism from his judicial duty, (Kaufman, Cardozo, 487–88) Curtiss-Wright unavoidably implicated his views about Roosevelt, foreign policy, and the likelihood of a new world war.

106. Kaufman, Cardozo, 487, 513; and Polenberg, World of Benjamin Cardozo, 195. Although never as active or dedicated as Brandeis, Cardozo also accepted Zionism and supported Jewish settlement in Palestine. Kaufman, Cardozo, 175–77, 487–88; and Polenberg, World of Benjamin Cardozo, 176–77. Therefore, Roosevelt's actions in the Palestinian crisis may also have helped induce him to accept Curtiss-Wright's executive power language.

107. Selective Draft Law Cases, 245 U.S. 146 (1919) (upholding draft); Hamilton v. Kentucky Distilleries Co., 251 (1919) (upholding wartime Prohibition); Northern Pacific Railway Co. v. North Dakota, 250 U.S. 135 (1919) (upholding war power as authority for federal takeover of the railroads); and United States v. Cohen Grocery, 255 U.S. 109 (1921) (upholding federal price controls over food and fuels).

108. Woodson v. Deutsche Gold und Silber Scheideanstalt Vormals Roessler, 292 U.S. 449 (1934) (per Butler, with Sutherland, Van Devanter, and Roberts joining); Stoehr v. Wallace, 255 U.S. 239 (1921) (Van Devanter; Butler, Sutherland; Roberts not yet on Court); United States v. Chemical Foundation, 272 U.S. 1 (1926) (per Butler, with Van Devanter joining; Sutherland not participating and Roberts not yet on the Court); and Cummings v. Deutsche Bank und Discontogesellschaft, 300 U.S. 115 (1937) (per Butler, with Sutherland and Van Devanter joining; Roberts not participating). See Lourie, Samuel Anatole, “The Trading With the Enemy Act,” Michigan Law Review 42 (1943): 221, 223Google Scholar.

109. Chemical Foundation, 11, 12. Butler suggested a similar view in Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 262 (1929) (per Butler, joined by Van Devanter and Sutherland; Roberts not yet on the Court) (upholding sweeping delegation under the war power).

110. Curtiss-Wright, 315, 320. Roberts may not have found this consideration critical, but Van Devanter and Butler apparently did. See above, note 19. Sutherland may also have sought to increase the appeal of his opinion to Butler by echoing a point that Butler had made in one of his Trading-with-the-Enemy Act opinions. Compare Chemical Foundation, 12 with Curtiss-Wright, 320. Butler may have been the justice most in need of persuasion on the executive power language. See note 120 below.

111. There was one minor exception. In 1932, Roberts served as umpire on a mixed claims commission to determine German liability for damages occurring on American soil during the war. McCloy, John J., “Owen J. Roberts' Extra Curiam Activities,” University of Pennsylvania Law Review 104 (1955): 351Google Scholar.

112. Hughes, Autobiographical Notes, 298; Danelski and Tulchin, “Editors' Introduction,” in Hughes, Autobiographical Notes, xx; Carter and Adams, “Justice Owen J. Roberts,” 385, 386. Roberts did sometimes disagree with Hughes. Pusey, Charles Evans Hughes, 2:706.

113. According to his law clerk, McReynolds intended to write a dissent, but may have decided, instead, to go duck hunting. Garrow, David J. and Hutchison, Dennis J., eds., The Forgotten Memoir of John Know: A Year in the Life of a Supreme Court Clerk in FDR's Washington (Chicago: University of Chicago Press, 2002), 157Google Scholar. It is possible that McReynold's dissent may, in some part, have reflected his disagreement with the majority over the wisdom of an anti-Nazi foreign policy. McReynolds was “a virulent anti-Semite,” Urofsky, Louis D. Brandeis, 388, who would hardly have scorned Nazism because of its hostility toward Jews. See Urofsky, Louis D. Brandeis, 479, 749; and Kaufman, Cardozo, 479–80.

114. H. P. Hood & Sons v. United States, 307 U.S. 588, 603 (1939) (Roberts, J., dissenting, joined by McReynolds and Butler, JJ.) (narrow delegation); Myers v. United States, 272 U.S. 52, 178 (1926) (McReynolds, J., dissenting) (narrow executive power); and Shesol, Supreme Power, 6. On McReynolds's character, see Bickel, Alexander M. and Schmidt, Benno C. Jr., The Judiciary and Responsible Government, 1910–1921 (New York: The Macmillan Company, 1984), 352–57Google Scholar; and Freund, “Charles Evans Hughes as Chief Justice,” 12.

115. On October 12, 1936, Stone was struck with an attack of bacillary dysentery so severe that for 6 weeks his life was in danger, and for another 3 weeks he remained confined to his home. On December 20, when the worst was over, he and his wife left Washington––the justice in a wheelchair—for a month of rest and recuperation in Sea Island, Georgia. He did not return to the bench until February 1, 1937. Mason, Harlan Fisk Stone, 536–37.

116. HFSP, box 6, Stone to Borchard, May 13, 1937. For similar statements, see HFSP, box 6, Stone to Borchard, February 11, 1942.

117. Belmont upheld the authority of the executive to make binding agreements with foreign countries without the consent of Congress or the Senate. Hughes had exercised that power when he was secretary of state, and, therefore, Belmont may also have been in some part the product of Hughes's specific constitutional views. See text preceding note 35. In his 1919 book, Sutherland accepted the principle that the president could sign some international agreements without Senate approval, though he argued that such agreements were limited to relatively minor and short-term matters that did not involve issues of basic policy. Sutherland, Constitutional Power, 120–21.

118. United States v. Belmont, 301 U.S. 324 (1937) (Sutherland, J.), 333 (Stone concurring). Brandeis and Cardozo joined Stone's concurrence, but they did so on grounds unrelated to Curtiss-Wright. Belmont raised a substantial question of state lawmaking authority that was entirely absent from the earlier case, the power of New York State to apply its own law to a bank account located in the state held by a Russian corporation and claimed as an expropriated asset by the government of the Soviet Union. Cardozo explicitly told Stone that he joined the Belmont concurrence because he disagreed with the majority's substantive statements about the scope of federal and state lawmaking authority in such a situation, a federalism concern not relevant in Curtiss-Wright. HFSP, box 74, memo from Cardozo to Stone, April 21, 1937. Brandeis would almost certainly have agreed with Cardozo's concern about state lawmaking authority and with his reasoning about Belmont.

119. Stone's disagreement with Curtiss-Wright almost certainly did not involve any doubts about the constitutionality of the congressional delegation. He had joined Cardozo's separate concurrence in Schechter, and under Cardozo's reasoning the delegation in Curtiss-Wright would easily have passed constitutional muster. See above, text at note 103.

120. Van Devanter wrote privately on the day that Curtiss-Wright was decided, “the troubles of today certainly have a very serious side” and suggested “we shall have to remember the old minstrel's ejaculation ‘cheer up, old fellow, the worst is yet to come.’” WVDP, Box 19, letterbook 53, Van Devanter to Dennis T. Flynn, December 21, 1936. Although he did not identify the particular “troubles of today” that he had in mind, he did in the following weeks special order two recently published books, one by a militant internationalist who insisted that war was coming, and the other by a staunch defender of the League of Nations, the World Court, and Wilson's decision to enter World War I. WVDP, Box 19, letterbook 53, John T. McHale (Van Devanter's secretary) to The Macmillan Company, December 14, 1936 (ordering Hamilton Fish Armstrong, We or They: Two Worlds in Conflict); Van Devanter to Council on Foreign Relations, January 25, 1937 (ordering Newton D. Baker, Why We Went to War). The Armstrong book, for example, stated that “it takes only one to make a war. . . . The decision between peace and war, then, does not really rest with the pacifically inclined, with those who are willing to make great concessions to secure peace. It rests with those who wait only for circumstances in which they can make war successfully.” Armstrong, We or They, 34. It concluded: “Lenin was right, Mussolini and Hitler are right: between the two doctrines [democracy and dictatorship] there is no compromise. Our society or theirs. We or they.” Ibid., 103. Baker announced that his book “will not appeal to those whose thinking starts from the pacifist or communistic point of view,” Baker, Why We Went to War,158. Van Devanter was, therefore, at a minimum, seriously concerned about the foreign dangers the nation faced. For his part, Butler may have been the justice most hesitant about accepting Curtiss-Wright's executive power language. In both an earlier and a later case in the 1936 term he seemed to harbor a concern that the exercise of executive foreign affairs powers might need the authorization of a statute or treaty. In Belmont, which upheld the power of the executive to make binding agreements with foreign nations without securing the approval of Congress or the Senate, Butler did not vote in the initial conference, but simply passed. CSC, Justice Butler, Valentine v. United States, docket book (1936); and Justice Butler, United States v. Belmont, docket book (1936). Subsequently, he agreed to join Sutherland's majority opinion in Belmont. In Curtiss-Wright, at least, and perhaps in Belmont as well, Sutherland's argument about the special nature of the nation's “external” power was apparently decisive. See note 19 above. Further, if any of the majority justices doubted the desirability of an anti-Nazi foreign policy, it would likely also have been Butler. The son of Irish immigrants, he may have harbored some resentments against England, and as a devout Catholic, he may have harbored some ambivalence about opposing Nazi Germany at a time when Hitler appeared to be a bulwark against the spread of Soviet communism. Conversely, however, any such attitudes might have been counterbalanced by Butler's general view of national foreign affairs powers and by the fact that he was an intense believer in the virtues of patriotism and the moral necessity for complete loyalty to the nation. See notes 108–9 and accompanying text; Danelski, David J., “Pierce Butler,” in The Supreme Court Justices: A Biographical Dictionary, ed., Urofsky, Melvin I. (New York: Garland Publishing Inc., 1994), 8182Google Scholar. See, generally, Bruner, David, “Pierce Butler,” in The Justices of the Supreme Court, 1789–1978, 5 vols., eds. Friedman, Leon and Israel, Fred L. (New York: Chelsea House, 1997), 3:1081–90Google Scholar.

121. Mason, Harlan Fiske Stone, 545; HFSP, box 22, Stone to John Bassett Moore, February 27, 1932; Stone to Moore, January 12, 1936; Stone to Moore, February 4, 1936; Stone to Moore, February 15, 1936; Stone to Moore, January 22, 1938; Stone to Moore, February 25, 1938; and Stone to Moore, May 19, 1938. Stone had a low regard for Hughes's disarmament efforts when the latter was secretary of state, HFSP, box 22, Stone to Moore, November 22, 1932, and he resented Hughes on personal and judicial grounds. Mason, Harlan Fiske Stone, 276–82, 316–17, 346–47, 399–402, 414–16, 789–90; HFSP, box 13, Stone to Frankfurter, February 17, 1936; and HFSP, box 8, Stone to Sterling Carr, April 1 and June 2, 1937. Finally, Stone had two sons, Marshall (born 1903) and Lauson (born 1904), who were in their early 30s in 1936. Mason, Harlan Fiske Stone, 79. It seems possible that his views on war and foreign policy may have been influenced by his concern for their future safety.

122. Felix Frankfurter Papers, Harvard Law School (hereafter FFP-H), reel 64: Stone to Frankfurter, March, 25, 1936; HFSP, box 22, Stone to Moore, May 7, 1934; HFSP, box 13, Stone to Frankfurter, April 9, 1936; and Mason, Harlan Fiske Stone, 544–47. Stone showed little interest in Jewish affairs in Palestine. HFSP, box 13, Stone to Frankfurter, June 9, 1936.

123. FFP-H, reel 64: Stone to Frankfurter, March 25, 1936. Frankfurter was a dedicated supporter of Roosevelt and a passionate anti-Nazi who scorned appeasement with Hitler. Friedman, Max, “Introduction” in Roosevelt & Frankfurter: Their Correspondence, 1928–1945 (Boston: Little, Brown & Company, 1967), 17Google Scholar.

124. HFSP, box 22, Stone to Moore, December 23, 1938; and Stone to Moore, March 6, 1939. Moore agreed with Stone's reaction to the Kristallnacht episode. HFSP, box 22, Moore to Stone, December 27, 1938. Stone continued to express strong reservations about American foreign policy in a series of letters to Moore. See, for example, HFSP, box 22, Stone to Moore, April 16, 1939, October 24, 1939, and October 26, 1939; and Mason, Harlan Fiske Stone, 545.

125. HFSP, box 22, Moore to Stone, January 16, 1932, January 22, 1932, April 12, 1933, May 5, 1933, and February 4 1935. See Divine, Illusion of Neutrality, 20–22, 43–45, 146–48, 177. For Moore's views at the time, see Moore, John Bassett, “The Dictatorial Drift,” Virginia Law Review 23 (1937): 863–79CrossRefGoogle Scholar.

126. Republican Senator Arthur Vandenberg, an isolationist from Michigan, told Borchard that there were “a number of members of the Senate Foreign Relations Committee who have a very definite respect for your viewpoint.” Edward M. Borchard Papers, Yale University (hereafter, EMBP), box 12, folder 164, Arthur Vandenberg to Borchard, January 4, 1937.

127. EMBP, box 119, folder 1131, Borchard to Charles C. Taft, September 5, 1936. Borchard had a noticeably mixed, if not actually sympathetic, reaction to Nazism. EMBP, box 8, folder 104, Borchard to Moore, May 23, 1936 (“nobody did more to create [Hitler] than the New York Times and those who adopt its war-making policies”; a Hitler speech was “statesmanlike and sane”); and EMBP, box 37, folder 424, Borchard to F. W. Bitter, December 28, 1936 (defending Hitler's seizure of the Rhineland). A reviewer noted Borchard's “marked sympathy for Germany and Austria and something approaching strong antipathy toward Britain and France.” Sharp, Malcolm, review of Neutrality for the United States, University of Chicago Law Review 5 (1937): 165Google Scholar.

128. HFSP, box 6, Borchard to Stone, May 6, 1937; Borchard to Stone, July 9, 1937; Stone to Borchard, May 13, 1937; Borchard to Stone, May 6, 1937; and Borchard to Stone, July 9, 1937. See Mason, Harlan Fiske Stone, 544–47.

129. John Bassett Moore Papers, Library of Congress (hereafter JBMP), box 70, Moore to Borchard, December 26, 1936. Other observers noted Curtiss-Wright's unusual emphasis on the independent nature of executive power: for example, Comment, Georgetown Law Journal 25 (1937): 740; Goebel, Julius Jr., “Constitutional History and Constitutional Law,” Columbia Law Review 38 (1937): 571–73Google Scholar; note, Harvard Law Review 50 (1937): 692; and Riesenfeld, Stefan A., “The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions,” California Law Review 25 (1937): 668–99CrossRefGoogle Scholar.

130. JBMP, box 72, Borchard to Moore, January 20, 1937. See JBMP, box 70, Borchard to Moore, December 24, 1936, and Moore to Borchard, December 26, 1936.

131. Jackson, Robert H., The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (New York: Alfred A. Knopf, 1941), 201CrossRefGoogle Scholar.

132. The opinion's emphasis on the “national” nature of foreign affairs powers represented a widely accepted view. Golove, David M., “Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power,” Michigan Law Review 98 (2000): 1075–316CrossRefGoogle Scholar. Its “internal/external” dichotomy, moreover, utilized a line of division commonly employed to mark rough limits in dealing with both national/international and state/federal relations. See, for example, Hughes, Charles Evans, Comments, Proceedings of the American Society for International Law 23 (1929): 194–96Google Scholar.

133. Brandeis's docket book suggests that in conference Sutherland relied specifically on the fact that the delegation dealt with “foreign affairs”––a position that, in his mind, should have provided a sufficient basis for the Court to uphold the delegation as an exercise of distinctive “external” and “national” power. If so, that would lend further support to the article's claim that it was likely not Sutherland who initially urged the justices to include additional language declaring that the executive held “plenary and exclusive” power in foreign affairs. CSC, Justice Brandeis, United States v. Curtiss-Wright Export Corp., docket book (1936). See notes 19, 43, and 44 above.

134. Powell argues that “Curtiss-Wright played no apparent role in the struggle between the administration and its congressional opponents” and that “FDR's foes continued to have the upper hand throughout the rest of the decade.” Powell, “Story of Curtiss-Wright,” 225–26. The latter point is certainly true. Whether the former is equally true may be doubted. Corwin, Edward A., “The War and the Constitution: President and Congress,” American Political Science Review 37 (1943): 1819CrossRefGoogle Scholar; and Schlesinger, Arthur Jr., “Congress and the Making of American Foreign Policy,” Foreign Affairs 51 (1972): 92CrossRefGoogle Scholar. In any event, Powell's observation does not undermine this article's claim that the justices themselves sought to support the president in his battle with Congress and opposed the views of those who advocated isolationism and mandatory arms embargos. Administration spokesmen, moreover, certainly used the case to argue for strong and independent executive foreign affairs power. See, for example, Foley, Edward H. Jr., “Some Aspects of the Constitutional Powers of the President,” American Bar Association Journal 27 (1941): 485Google Scholar; and Jackson, Robert H., “Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers,” Opinions of the Attorney General 39 (1940): 486Google Scholar. Similarly, the work of Sarah Cleveland is not inconsistent with the article's claim about the origins of Curtiss-Wright's executive power language. Examining the “inherent” power background of Curtiss-Wright, she concluded that “Sutherland's theory was distinctly not the product of the pre-World War II pressures that surrounded the decision in Curtiss-Wright.” Cleveland, “Powers Inherent in Sovereignty,” 277 (emphasis in original). That conclusion, however, referred solely to the “sovereignty” principles that Sutherland invoked in the early parts of Curtiss-Wright and that were drawn from the late nineteenth century “inherent” power doctrine. Her conclusion did not refer to the subsequent language in Curtiss-Wright that shifted “plenary and exclusive” power from the “nation” and Congress to the executive. On that point, Cleveland agrees with the thesis of this article that the old “inherent” power doctrine––a doctrine of “national” and “congressional” power––did not determine or explain Sutherland's two strikingly new moves in Curtiss-Wright: attributing “plenary and exclusive” powers to the executive and asserting the independence of those powers from Congress. Cleveland declares that “Sutherland's introduction of executive hegemony over foreign relations unquestionably was a radical innovation.” Ibid., 273. Accord, Cleveland, “Plenary Power Background,” 1155.

135. Hughes surely influenced Roberts, who likely had no particular difficulty to overcome in joining the majority opinion. In addition, almost certainly in combination with Sutherland, Hughes may have been particularly influential in persuading Butler to join the majority. See notes 19, 110, and 120 above.

136. Hughes may also have compromised. It is doubtful that he accepted Sutherland's claim that the national government held extraconstitutional powers in foreign affairs. Compare Sutherland, Constitutional Power, 54–58, and Curtiss-Wright, 318, with Hughes, “War Powers Under the Constitution.” “Except in cases involving matters of high principle, [Hughes] willingly acquiesced in silence rather than expose his dissenting views.” Danelski and Tulchin, “Editors' Introduction,” in Hughes, Autobiographical Notes, xxvi.

137. GSP, box 3, Sutherland to S. Hughes, March 16, 1936. Sutherland would likely have consoled himself with the belief that Roosevelt would be out of office in 4 years and that his “internal/external” dichotomy would, in any event, insulate executive foreign affairs powers from executive power in domestic matters.

138. As Justice Robert Jackson declared, Sutherland's opinion illustrated “the poverty of really useful and unambiguous authority” on questions involving the scope of whatever “independent” constitutional power the executive possessed. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–35 (1952) (Jackson, J., concurring). For similar views, see Powell, Story of Curtiss-Wright,” 231; and Riesenfeld, “Power of Congress and the President,” 669.

139. See, for example, Levitan, “Foreign Relations Power”; Lofgren, “Government from Reflection”, ch. 5; Patterson, C. Perry, “In Re The United States v. The Curtiss-Wright Corporation,” Texas Law Review 22 (1944): 286308Google Scholar; and Ramsey, Michael D., “The Myth of Extraconstitutional Foreign Affairs Power,” William & Mary Law Review 42 (2000): 379446Google Scholar.

140. As Alfred H. Kelly pointed out a half century ago, originalism as a method of constitutional interpretation is a particularly useful rhetorical mode when one is seeking to change established law. Kelly, Alfred H., “Clio and the Court: An Illicit Love Affair,” Supreme Court Review (1965): 119–58CrossRefGoogle Scholar.

141. Curtiss-Wright, 318; and Sutherland, Constitutional Power, 30, 45, 54, 58, 64, 74–75, 77, 112, 137, 139, 141–42. See Paschal, Mr. Justice Sutherland, 227; and Cleveland, “Plenary Power Background,” 1126–55.

142. Compare, for example, Pasquantino v. United States, 544 U.S. 349, 369 (2005) (Thomas, J., citing Curtiss-Wright for proposition that executive is “sole organ of the federal government in the field of international relations”); Hamdi v. Rumsfeld, 542 U.S. 507, 579, 582 (2004) (Thomas, J., dissenting) (citing Curtiss-Wright for “President's independent authority and need to be free from interference” in foreign affairs); and Webster v. Doe, 486 U.S. 592, 606, 614–15 (Scalia, J., dissenting, quoting Curtiss-Wright for “the very delicate, plenary, and exclusive power of the President” in foreign affairs) with Roper v. Simmons, 543 U.S. 551, 607, 622–28 (2005) (Scalia, J., joined by Thomas, J., dissenting and opposing use of foreign and international law to construe Constitution).