Perhaps the most famous instance of incumbent justices changing their mind on a high-profile issue occurred in the 1940s.
The question was whether school children with religious objections to pledging allegiance to the flag could be required to do so, on pain of expulsion from school. Jehovah’s Witnesses, for whom saluting the flag is unacceptable, challenged the requirement as a violation of the First Amendment right to free exercise of religion. In 1940, the court ruled in
Minersville School District v. Gobitis that the First Amendment did not prevent public school districts from expelling the Jehovah’s Witness children. The vote was 8 to 1, with only Chief Justice Harlan F. Stone dissenting.
The reaction by a country caught up in wartime patriotic fervor appalled the justices. Taking the Supreme Court’s decision as proof that Jehovah’s Witnesses were not good citizens, mobs attacked and burned the Witnesses’ places of worship. Members of the faith were fired from their jobs and some 2,000 Jehovah’s Witness children were expelled from school. When another case reached the court after only three years, three justices who had been in the earlier majority
changed their votes. With the addition of two new justices to the court, the vote to affirm the religious rights of the Jehovah’s Witnesses was 6 to 3.
The decision, West Virginia State Board of Education v. Barnette, with a majority opinion by the recently appointed Robert H. Jackson, remains a star in the First Amendment firmament.Two of the three justices who changed their minds, Hugo L. Black and William O. Douglas, explained themselves in a concurring opinion.
“Neither our domestic tranquility in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation,” the two wrote. The third justice to change his mind was Frank Murphy.
It was in “freedom and the example of persuasion,” Justice Murphy wrote, “not in force and compulsion, that the real unity of America lies.”
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