In a Time of Total War : The Federal Judiciary and the National Defense - 1940-1954 book cover
1st Edition

In a Time of Total War
The Federal Judiciary and the National Defense - 1940-1954

ISBN 9781032098012
Published June 30, 2021 by Routledge
280 Pages

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Book Description

This book is a judicial, military and political history of the period 1941 to 1954. As such, it is also a United States legal history of both World War II and the early Cold War. Civil liberties, mass conscription, expanded military jurisdiction, property rights, labor relations, and war crimes arising from the conflict were all issues to come before the federal judiciary during this period and well beyond since the Supreme Court and the lower courts heard appeals from the government’s wartime decisions well into the 1970s. A detailed study of the judiciary during World War II evidences that while the majority of the justices and judges determined appeals partly on the basis of enabling a large, disciplined, and reliable military to either deter or fight a third world war, there was a recognition of the existence of a tension between civil rights and liberties on the one side and military necessity on the other. While the majority of the judiciary tilted toward national security and deference to the military establishment, the judiciary’s recognition of this tension created a foundation for persons to challenge governmental narrowing of civil and individual rights after 1954. Kastenberg and Merriam present a clearer picture as to why the Court and the lower courts determined the issues before them in terms of external influences from both national and world-wide events. This book is also a study of civil-military relations in wartime so whilst legal scholars will find this study captivating, so will military and political historians, as well as political scientists and national security policy makers.

Table of Contents

Contents: Preface; Introduction: the federal judiciary in total war, 1939-1945; The ‘Stone Court’, military governance, and World War II; The court, total war, and the citizen, 1941-1945; 1946 the last year of the Stone Court: the aftermath of a total war and the eve of the Cold War; The Vinson Court: communism, national security, and deference to the military establishment, 1946-1952; The last term of the Vinson Court: the height of deference to the military establishment, 1953; Conclusion; Bibliography; Table of cases; Index.

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Joshua E. Kastenberg is currently a military judge in the United States Air Force Trial Judiciary. He is also an adjunct professor of national security law at the National Intelligence University. Previously he was Chief of Operations - International Law Doctrine at the Pentagon and chief legal advisor to the commander US Air Forces in Iraq. Eric Merriam is an Associate Professor at the University of Central Florida, where he teaches in the Legal Studies and Political Science Departments. He previously taught at the United States Air Force Academy and serves as a judge advocate in the United States Air Force Reserve.


’Kastenberg and Merriam have produced a most impressive study that focuses not only on the Federal Judiciary and national defense, but on the evolving relationship between the Supreme Court Justices and the executive/military establishments. Their work draws on many major manuscript collections, and the result is a fascinating account of the justices' ongoing extra-judicial activities, of whom the worst offender was probably Felix Frankfurter. A must read for students of American legal history and political science.’ Jonathan Lurie, Rutgers University, USA