Democratic justice, p.65
Democratic Justice, page 65
At 4:00 p.m., Davies called Truman and within half an hour was reading the letter to a “greatly worried” president in his study at the White House. He also read Truman his recent correspondence with Molotov, briefed the president on the country’s history with the Soviets, and offered his views on the recent situation. Davies and Truman talked until after midnight and ended with a glass of scotch.
In Davies, Frankfurter had found an inside man with the president. During a May 18 lunch at the Supreme Court, Davies told a “heartened” Frankfurter about the former ambassador’s conversation with Truman. They discussed British views of the Soviet Union, and Frankfurter encouraged Davies to write to Winston Churchill. Two days later in the garden behind the justice’s home, they reviewed and discussed the draft of Davies’s letter to Churchill, but it was never sent. At Truman’s request, Davies headed to London to meet with Churchill in person. The machinations for improved U.S.-Soviet relations and, at least from Frankfurter’s perspective, about sharing the secrets of S-1 were far from over.
S-1 CONSUMED STIMSON. “The reputation of the United States for fair play and humanitarianism is the world’s biggest asset for peace in the coming decades,” he wrote Truman on May 16. “I believe the same rule of sparing the civilian population should be applied as far as possible to the use of any new weapons.” Stimson tried to balance his humanitarian concerns with his desire to use the atomic bomb on Japan. During a May 31 meeting with the Interim Committee and a team of physicists, Stimson predicted that the “new weapon” would be either “a Frankenstein which would eat us up” or “a project ‘by which the peace of the world would be helped in becoming secure.’ ” On June 1, the committee, after only a brief discussion of alternatives the previous day, recommended the use of the new weapon on Japan. Stimson was told that the Army Air Forces could not limit itself to “precision bombing” because, unlike in Germany, the Japanese people lived near industrial and military areas. General George C. Marshall, though he preferred “straight military objectives” such as a “large naval installation,” suggested identifying “a number of large manufacturing areas from which the people would be warned to leave” before using the bomb. During a June 6 meeting with Truman, Stimson tried to update him on the Interim Committee, but Byrnes had already briefed the president. Stimson and Truman agreed “[t]hat there should be no revelation to Russia or anyone else of our work in S-1 until the first bomb had been successfully laid on Japan.” Stimson, nearly three months after the U.S. firebombed Tokyo, claimed that he was trying to minimize civilian casualties but that Japanese manufacturing was too scattered. Stimson was worried that “the United States [would] get the reputation of outdoing Hitler in atrocities” and that Japan would be so “bombed out that the new weapon would not have a fair background to show its strength.” Truman “laughed and said he understood.”
Frankfurter sought another opportunity to try to change Stimson’s mind about sharing atomic information with the Soviets. At 10:30 a.m. on June 12, he arrived at the Pentagon and explained Bohr’s ideas—the Soviets were well on their way to building an atomic bomb, the sharing of information with them could be coupled with international control and inspections, and the lack of secrecy between the two countries could prevent an arms race. Though Stimson knew about most of Bohr’s views, the secretary conceded that the physicist “made through Frankfurter some good suggestions too on which I called in Bundy and got them injected into our plans in S-1.”
With Frankfurter departing Washington for the summer, he relied on friends in and out of government to advocate his ideas. On June 19, Davies met with Stimson to discuss U.S.-Soviet relations. During their “long talk,” Stimson was as concerned as Davies about the “recent pinpricks and little explosions” between the two countries. The president invited Stimson and Davies to attend a meeting in July with Allied leaders in Potsdam. Frankfurter was thrilled that Davies had gone to London to speak to Churchill and to Germany to assist Truman: “the services you rendered your country and the forces of Peace in recent days loom bigger and bigger.” Before he left for Potsdam, Davies had tried to phone Frankfurter in New Milford, Connecticut, and instead had written him a letter thanking him for his “judgment and inspiration.” After his London meeting, the former ambassador had become more optimistic: “The situation is infinitely better than in those dark days last spring, when we counselled together. I have firm faith and high hope that all will be well, with a reasonable prospect for ‘peace on earth.’ ”
In late June and early July, Stimson and his assistants drafted an ultimatum in an attempt “to try to warn Japan into surrender.” On July 2, he showed Truman the warning and a memorandum about the attack on Japan. The next day, Stimson and Truman discussed what to say to Stalin about the atomic bomb. If Stalin brought it up at Potsdam, Stimson advised the president not to reveal any details but to say that we were “working like the dickens and we knew he was busy with this thing” and that the United States was “pretty nearly ready” and “intended to use it” to end the war. On June 4, American and British officials had consented to use the weapon against Japan. The final decision, however, was not made until they arrived at Potsdam.
In Potsdam, Germany, Stimson received word on the evening of July 16 that the first atomic test in New Mexico had been successful and conveyed the news to the new secretary of state James F. Byrnes and Truman. Five days later, they received a more detailed and encouraging report about the bomb’s destructive power and expedited availability. Truman was so “pepped up” by the news that Churchill noticed at once that the president was “ ‘a changed man.’ ” The big disagreement was between Stimson and Byrnes—Stimson wanted to include in the warning to the Japanese that they could keep their emperor as a figurehead; Byrnes, however, refused to include the provision and insisted on an unconditional surrender. The new secretary of state argued that the message had already been given to the Chinese to give to Japan and the issue of the emperor could be worked out in post-surrender negotiations. Truman backed Byrnes about deleting the emperor provision; the president, however, agreed with Stimson’s other request: to remove from the list of possible nuclear targets the city of Kyoto. During a visit to Japan as Hoover’s governor-general of the Philippines, Stimson had admired the ancient imperial capital’s Buddhist temples and Shinto shrines and had learned about the city’s cultural significance to the Japanese people. On July 24, Davies updated Frankfurter on Stimson’s role at Potsdam: “This is being dictated under considerable strain. It is primarily to tell you that I have just returned from a conference with that greatest of American elder statesmen, your friend, the Secretary of War. He is looking well and going strong. The other evening, after dinner, the President spoke warmly of the Secretary’s contribution over here. He said that he had relieved his mind of a great load.” In truth, Truman and Byrnes marginalized Stimson at Potsdam and made the key decision to delete the emperor provision in the warning letter.
The warning to Japan failed as Stimson had predicted because it gave no indication that the country could retain its emperor. On August 6, the United States dropped the first atomic bomb, “Little Boy,” which destroyed the Japanese city of Hiroshima and killed 140,000 people. Frankfurter wrote Stimson after hearing the news: “Reading between the lines the bits that came out of Potsdam and especially the ultimatum to Japan, it was not too difficult for me to infer the vital part you played at the Potsdam Conference. And now comes the news of the atomic bomb’s successful application—one of those few decisive events that change the course of man’s destiny. It’s too vast and awful in its implications to encompass in one’s thoughts, at least in mine. But that this calls for re-orientation of our thinking, calls for a new and deeper reconsideration of public morals, of international ethics, I have not the slightest doubt.” He urged Stimson to lead the debate about the country’s “new obligation the atomic bomb entails.” In a letter to Davies that same day, Frankfurter believed in “full publicity” about dropping the atomic bomb as “the first step” and praised “the prompt and ample disclosure by the President as a great act of statesmanship. The bearing of it all on our friendly relations with Russia is obvious.”
Three days after Hiroshima, the United States dropped another atomic bomb, “Fat Man,” on the city of Nagasaki and killed 70,000 people. The next day, the Japanese indicated that they wanted to surrender provided they could keep their emperor. Stimson blamed Truman and Byrnes for striking the emperor provision from the warning letter. He believed most people’s knowledge of the emperor’s symbolic importance to Japan came from Gilbert and Sullivan’s The Mikado. The secretary of war was shocked that people he admired in the administration, including Harry Hopkins and assistant secretaries of state Acheson and MacLeish, were “anti-emperor” and insisted on an unconditional surrender. Even his right-hand man McCloy could not understand “the Emperor business.” Stimson and Byrnes continued to debate the issue on the basis of past presidential statements about an unconditional surrender. On August 14, the Japanese officially surrendered and were allowed to keep the emperor, something that the Truman administration could have achieved without the use of nuclear weapons on civilians.
“Everything seems insignificant compared to the implications of the atomic bomb,” Frankfurter wrote Boston Herald editor Frank Buxton. “I think it will begin a new calendar—this year 1, A.A.B.—Anno Atomic Bomb.” Frankfurter viewed the secretary of war as the best hope of bringing sanity to the country’s atomic energy policy vis-à-vis the Soviets. The justice suggested to McCloy that, if Stimson retired, the former secretary of war could lead a committee to develop the country’s atomic energy policy. In an August 16 letter, Frankfurter praised Stimson for helping the United States end the war: “The long hard journey is over and humanity may again breathe freely the air of freedom. You began to lead the journey in 1931 and History will undoubtedly confirm the feeling of so many of your countrymen that it was almost providential to have had your decisive share in freeing mankind from the very serious threat of subjugation by a barbarous tyranny. Awful new tasks lie immediately and grimly ahead. But you have earned every right to let others have the burden of realizing the opportunities you so largely have made possible.”
Stimson had completely come around to Frankfurter and Bohr’s point of view about cooperating with the Soviets regarding the atomic bomb. Secretary of State Byrnes, however, opposed the idea and wanted to keep the nation’s atomic energy secrets “in his pocket” during upcoming diplomatic negotiations. On September 11, Stimson wrote Truman and enclosed a memorandum about how to control the atomic bomb through cooperation rather than exclusion: “I consider the problem of our satisfactory relations with Russia as not merely connected with but as virtually dominated by the problem of the atomic bomb.” Truman, Acheson, and leading scientists Conant and Bush agreed with him. In his final days as secretary of war, Stimson persuaded his successor, Robert Patterson, that “the safest way is not to try to keep the secret.” On his last day of work on September 17, Stimson addressed the cabinet that “we should approach Russia at once with an opportunity to share on a proper quid pro quo the bomb.” He worried that the desire of Byrnes and others to keep atomic secrets “rather ostentatiously on our hip” would increase Russian fears and suspicions of American motives.
After he addressed the cabinet, Stimson returned to the Pentagon at 3:00 p.m. to pick up his wife and an aide. An hour later, he arrived at nearby National Airport to find his generals as well as his civilian aides in two long lines on the tarmac to say goodbye. As Stimson and his wife reached the generals, they were greeted with a 19-gun salute. A band played “Happy Birthday” (he turned 78 in four days) and “Auld Lang Syne.” He waved goodbye to the waiting crowd, shook hands with General George C. Marshall and other top generals, and boarded the airplane.
At 11:55 a.m. on the secretary’s last day in office, Frankfurter wired Stimson: “Marion and I affectionately salute you. History will note this day in grateful acknowledgment of the great debt the nation owes you.” Stimson’s record during World War II was mixed. Pearl Harbor happened on his watch, but he had advocated moving the Pacific fleet to the Atlantic. He carried out the internment of Japanese Americans. The racist policy was driven by California officials and General DeWitt and approved by Roosevelt himself, but neither Stimson nor McCloy offered any resistance or alternatives. Stimson also never considered in any great depth alternatives to dropping the atomic bomb on Japan, though the killing of innocent civilians may have been avoided if Truman and Byrnes had not deleted the emperor provision in the warning letter. Stimson, however, persuaded Truman to spare the city of Kyoto.
In response to criticism about the destruction of Hiroshima and Nagasaki, Stimson published a 1947 article in Harper’s, “The Decision to Drop the Atomic Bomb.” The article contained two glaring flaws: (1) it contended for the first time that dropping the bombs avoided a ground invasion and saved “over a million” American casualties; (2) it omitted the controversy about deleting the emperor provision. The article’s author was young McGeorge Bundy, whose father, Harvey, had worked with Stimson on the issue and had suggested the article as a response to critics. In late 1946, Stimson harbored doubts about publishing the article, but Frankfurter read it several times and encouraged him. For Frankfurter, Stimson could do no wrong during his “five epic years of your own service to country and to mankind.” Indeed, the secretary of war brought much-needed discipline, efficiency, and experience to Roosevelt’s wartime administration. During forty years of public service, he inspired generations of Harvard law graduates. And he came around to the Frankfurter-Bohr idea of sharing atomic secrets with the Soviets to establish a new pattern of trust and cooperation between the two nations and to avert a future nuclear war.
After Stimson retired and McCloy, Harvey Bundy, and George Harrison resigned from the War Department, Frankfurter continued to dabble in domestic and foreign policy. His friends determined the future of the nation’s atomic weapons. He walked to work every day with Acheson; befriended Manhattan Project director J. Robert Oppenheimer; and another former student, David Lilienthal, chaired the Atomic Energy Commission. Unlike the Roosevelt years, however, Frankfurter lacked a direct line to the president. And thanks to the FBI wiretaps on Prichard, Truman knew about the justice’s intervention in administration affairs.
The key, for Frankfurter, was Davies. The former ambassador agreed to stay “on the job” as Truman and Byrnes’s unofficial Soviet adviser. After they spoke on the phone in late August, Frankfurter sent Davies an August 11 Times of London article by Niels Bohr about sharing atomic research and international cooperation. Bohr, Frankfurter wrote, agreed with Davies’s “views of what are the essentials if we are to have Peace & not merely a short interlude between wars.” Frankfurter believed the United States held the balance of power and “its statesmen have the greatest opportunities for the world good.” He and Davies saw “eye to eye” that “we must conduct our affairs on the assumption that Russia agrees with us in desiring a peaceful, non-aggressive, prosperous world” and in a foreign policy based on cooperation. Davies thanked Frankfurter for the Bohr article and predicted that the exclusion of the Soviets “because of hostility or lack of trust” would have an “explosive psychological effect.” The former ambassador wished that Frankfurter could play a larger role in the Truman administration: “It irks me to see your great qualities and powers confined to the judiciary, at this critical time. You are rendering inestimable service there; but in these times I feel it nothing short of tragic that they are not more directly applied. Your vision, steady judgment, your wisdom and mental vigor, ought to be also more directly employed in this other field.”
Frankfurter turned his attention to the Court, where relations among the justices were so bad that they could not even agree to sign a single congratulatory letter.
CHAPTER 28
Frankfurter against Black
On June 30, 1945, Justice Owen J. Roberts submitted his resignation letter to President Truman. One of Frankfurter’s closest friends on the Court, Roberts had served for fifteen years and recently turned seventy and therefore satisfied the legal requirements to retire yet collect his full salary. He had been counting the days. Indeed, he had made up his mind the previous October when he had designated Frankfurter his “judicial executor.”
Despite a yearlong effort to talk him out of retirement, Frankfurter was stunned by the news. He was indirectly responsible for Roberts’s place on the Court, having joined the NAACP’s and organized labor’s opposition to Hoover’s first choice, federal court of appeals judge John J. Parker. After the Senate rejected Parker, Hoover nominated Roberts. In time, Parker matured into a leading court of appeals judge; Frankfurter’s high hopes for Roberts, however, never materialized. As a law professor, Frankfurter had criticized Roberts for joining the conservative justices in 1935 and 1936 in striking down New Deal programs and state minimum-wage laws and had incorrectly believed that Roberts’s 1937 “switch in time” had stemmed from the announcement of Roosevelt’s court-packing plan (Roberts’s vote, it turned out, had already been cast). Once on the Court, however, Frankfurter grew close to Roberts partly out of ideological affinity but mostly out of personal friendship. He knew that Roberts was neither a deep thinker nor a great justice. Yet Roberts was a reliable ally who had made Frankfurter’s life on the Court more enjoyable.
