Professor Joseph A. Calamari (1919-2016)

I’m sad to report that my St. John’s University School of Law faculty colleague Joe Calamari died on December 2, 2016, at age 97.

February 27, 2007:  Celebrating Joe’s 88th birthday.

When we became colleagues in 1995, Joe was already retired from full time teaching… except for the fact that he taught actively every semester, was a leading authority on admiralty law, was hugely respected and involved in the admiralty bar in New York City, and was very connected to students and lawyers across their lives and careers.

I learned that Joe was a World War II and a Korean War veteran.

When I began to write about the Nuremberg trials, he stopped by my office to talk about them, smartly.  After a while, he said, gently, “I was there for a day—it was the day Keitel took the stand.”  His claim was true and typically modest.  We pinned down the date:  April 3, 1946.

When Joe finally, really, retired from teaching in 2011, St. John’s admiralty law society honored him at a special dinner, and the society took his name.

April 7, 2011:  Marie & Joe Calamari (and a earlier Joe photo behind them).

It was a great privilege to know him.

Jackson List: An Invitation to Join in Thanksgiving (1941)

In war-besieged London in September 1940, Harold Laski, a professor at the London School of Economics and a leading Socialist party official, thinker, and writer, penned a letter to Robert H. Jackson, Attorney General of the United States.  Laski knew Jackson through their mutual friend, U.S. Supreme Court justice Felix Frankfurter.  Laski wrote Jackson to introduce another friend, Professor Hersch Lauterpacht of the University of Cambridge:

15.ix.40

My dear Jackson,

I should like to introduce to you my

friend Professor H. Lauterpacht, the Whewell

Professor of International Law at Cambridge.

You well know of his outstanding work in

his own field.  I should like only to add

that there are few people for whom I care so

much.

I think we stand up well to our siege; and

we have complete confidence in the outcome.

Few things will help so much as a third term [for President Franklin D. Roosevelt].

                                    Yours very sincerely,

                                    Harold J. Laski

The Hon. Robert Jackson.

     Attorney-General’s Office.

          Washington. D.C.

Laski wrote his letter not to be mailed, but for Lauterpacht, who was spending Fall 1940 in the U.S., to use when he had an opportunity to introduce himself to Jackson.

That moment arrived at the end of the year.  On December 23rd, Lauterpacht, living in the Bronx, wrote to Jackson in Washington to request a meeting:

            Trinity College,

               Cambridge.

              [crossed out]

                                    5444 Arlington

                                                Avenue

                                    Riverdale on Hudson

                                         New York City

Dear Mr. Attorney-General,

I hope to be in Washington

between January 6-9, prior to my

departure for England.  If you

can spare the time, I should

very much appreciate an oppor-

tunity of calling on you

and paying my respects.

            I enclose a letter of introduction

from Professor Laski.

                                    Yours very truly,

                                    H. Lauterpacht

The Hon. Robert Jackson.

     Attorney-General’s Office.

          Washington. D.C.

Lauterpacht’s letter, with the enclosed vouching letter from Laski, worked.  Jackson wrote back promptly, telling Lauterpacht to contact Jackson’s secretary to schedule the meeting.

Robert Jackson and Hersch Lauterpacht met at the U.S. Department of Justice on January 8, 1941.  They discussed Nazi Germany’s bombing attacks on the United Kingdom, U.S. military assistance to the U.K., and domestic and international law issues.  And obviously they hit it off.

Over the next week, Lauterpacht stayed in downtown Washington and, at Jackson’s request, wrote him a thorough memorandum on international law issues.  It addressed, in twenty-one pages, what Jackson had described in their first meeting as “the philosophy, in international law, of the policy of aiding the [anti-Nazi U.S.] Allies by all means short of war.”  Lauterpacht sent the memorandum to Jackson on January 15th, and then they met the next day to discuss it.

Lauterpacht argued, then and later, that Nazi Germany’s military aggression, on the European continent and against the U.K., violated international law embodied in its own and in many nations’ treaty commitments.  These arguments fit with and advanced Jackson’s own legal thinking.  In the months ahead, Lauterpacht’s input contributed to some of Attorney General Jackson’s and then Justice Jackson’s—he joined the U.S. Supreme Court in July 1941—major public addresses attacking Nazi lawlessness.

And more than four years later, in circumstances that neither Jackson nor Lauterpacht could have envisioned when they first met in Washington, they worked together, in the U.K. and then in Nuremberg in the Allied-occupied former Germany, to hold Nazi leaders accountable for their illegal war-waging.

*          *          *

Justice Jackson and Professor Lauterpacht corresponded during the World War II years.  They also saw each other occasionally, when Lauterpacht was visiting the U.S.

One such occasion was November 19, 1941, seventy-five years ago, when Lauterpacht visited Justice Jackson at the Supreme Court.  Jackson asked Lauterpacht to stay over in Washington on that Wednesday night, and to join Jackson and his wife Irene the next day for Thanksgiving dinner at their home, Hickory Hill, in McLean, Virginia—“It will give Mrs. Jackson and me great pleasure if you will have dinner with us,” Jackson wrote when he communicated this invitation a few days beforehand, as he and Lauterpacht were finalizing their plans.

Alas, and to Lauterpacht’s regret, he could not accept this invitation.

He and Jackson did have later occasions to share meals, and to give thanks, including in Nuremberg.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

A Place on the Raft

Last May, the Federal Reserve Board published a comprehensive Report on the Economic Well-Being of U.S. Households in 2015.  The report, based on extensive survey data, portrays many who financially are doing okay or better, and many who are not.

A highlighted statistic that startles:  46% of adults could not cover a $400 emergency expense without selling something or borrowing some money.  (Hat tip to New York Times reporter Gretchen Morgenson for remembering and writing yesterday how startling these data still are.)

The Fed report sits alongside U.S. Census Bureau data showing that household incomes grew significantly in 2015.

These data are not inconsistent—“doing better” can be a recent, good turn in a life of “still struggling.”

I am pretty sure that many people in the U.S. voted last week for a candidate who as president would, they hoped, improve their circumstances.  And I suspect that those voters—some for Clinton, some for Trump, and some for fringe candidates—add up to a very large number.

I hope that their votes all get counted, and that they win.  In a decent society, the project of all, including government, should be to insure that every person has basic security—a place on the raft.

private-swim-raft-for-your-enjoyment

Will We Count All the Votes?

Yesterday morning, I asked, “Is Hillary Clinton is the U.S. President-Elect?”

My question was based on three things:

  • As we have known since last Tuesday night, the outcomes of the especially close popular votes in Michigan, New Hampshire, Pennsylvania, and Wisconsin will, when translated into electoral votes, determine who is elected president when the electors vote next month.
  • I (still) can’t find any government announcements or news reports that all of the votes in each of those States have been counted, or that they will be counted.
  • I think that the public should be discussing the value of recounting votes in those States, to be sure that their electoral votes are awarded to the correct candidate, the one whom the voters actually chose.

On this Sunday morning, Clinton is leading in the national reported popular vote by about 570,000 votes, which is up from about 400,000 that had been counted and reported as of yesterday.  That still is irrelevant, because electoral votes make a president.

But the popular vote in each State is very relevant, because each State awards its electoral votes to the winner of its popular vote.

Right now, based on reported popular votes in each State, Trump has 290 electoral votes and Clinton has 228.

That means that if final popular vote totals were to favor Clinton in only two States, Pennsylvania (20 electoral votes) and New Hampshire (4 electoral votes), Trump would drop below 270.

That also means that if Clinton were determined to have won the popular votes in two more States, Michigan (16 electoral votes) and Wisconsin (10 electoral votes), she would have 278 electoral votes, and the presidency.

Here is the latest on the votes in these four key States—

  • Pennsylvania (20 electoral votes) has been declared, based on state officials having reported 99% of the vote, for Trump—he leads by about 68,000 votes, out of about 5.7 million.
  • Wisconsin (10 electoral votes) has been declared, based state officials having reported 100% of the vote, for Trump—he leads by about 27,000 votes, out of about 2.8 million.
  • Michigan (16 electoral votes) has not yet been declared, despite state officials having reported 100% of the vote. Trump leads there by about 12,000 votes, out of about 4.5 million.
  • New Hampshire (4 electoral votes) has not yet been declared, despite state officials having reported 100% of the vote. Clinton leads there by about 2,500 votes, out of about 700,000.

So I’m still asking:

Have all the votes in each State been counted?

And are these races so close that the votes in each should be recounted, while we have time to get this right?

Is Hillary Clinton the U.S. President-Elect?

On this Saturday morning, three days since Hillary Clinton conceded the presidential election:

  • Clinton has a counted vote lead in the nationwide popular vote of about 400,000. That does not matter because, of course, we choose presidents by electors.
  • Each State determines its electors, however, based on the popular vote in the State.
  • Based on current popular vote totals translated into electors, Donald Trump has 290 electoral votes—20 more than the total needed to become president—and Clinton has 228.
  • Two States, Michigan (16 electoral votes) and New Hampshire (4 electoral votes), have not been decided—those vote counts are ongoing.

So how close to completed, or not, are the popular vote counts in States, and especially in the States that are apparently very close and definitely are/will be decisive?

For example, in Pennsylvania (20 electoral votes), awarded to Trump by the media and color-coded maps we’ve all seen, Trump leads by about 69,000 votes out of about 5.8 million cast.  Have all Pennsylvania votes in fact been counted?  If not, will they be?  If so (and if when), is the margin so close that we—Clinton, yes, and also Trump, and also all of the people in the United States—have an interest to recount, to be sure we know who the voters chose?

And also Wisconsin.  Its 10 electoral votes also have been awarded to Trump.  The reported vote margin in Wisconsin is about 27,000 votes, out of more than 2.8 million votes counted.  Have all the Wisconsin votes been counted?  And is the race so close that they should be recounted?

If a majority of voters in Michigan, Pennsylvania, and Wisconsin cast their ballots for Hillary Clinton, she is President-elect, even if New Hampshire voters chose Trump.  Or she should be.

Shouldn’t we figure that out?

Why aren’t people asking these questions?

Jackson List: Voting for the Last Time (1940)

In early 1940, President Franklin D. Roosevelt was planning, at least to some degree, to return to private life after two terms in office.  Robert H. Jackson was F.D.R.’s newly-appointed United States Attorney General.  Jackson also was, according to private remarks by the President and many New Dealers, and thus according to many press reports that were trial balloons, F.D.R.’s choice to succeed him as the Democratic Party’s presidential nominee, and then in the White House.

Events took other courses.  Many, including very publicly Jackson, urged Roosevelt to seek a third term.  In springtime, Nazi Germany invaded and soon conquered the Netherlands, Belgium, Luxembourg, and France.  In late June, the Republican Party nominated businessman Wendell Willkie as its presidential candidate.  In July, the Democrats nominated, again, Roosevelt.

That fall, Attorney General Jackson took numerous short trips away from his Washington work to campaign actively—as was legally permitted then—for the President and other Democratic candidates.  In early October, for example, Jackson spoke to a large crowd in Buffalo, New York, once his home.  In this speech, Jackson decried Willkie’s phoniness, noting that “only when he talked to workmen did he find profanity and vulgarity in order,” which lost him “any opportunity he ever had to create anything like unity among the American people.”  In mid-October, Jackson gave a law and politics address in Boston.  Later that month he travelled to Jamestown, New York, his adult hometown, to speak alongside U.S. Senator Robert F. Wagner (NY) at a large Democratic Party rally.  Jackson also spoke that month in Richmond, Virginia, and a number of times from Washington on nationwide radio broadcasts.  In the first days of November, Jackson travelled back to New York State to give political speeches in Binghamton and in Yonkers.

And then, finally, it was time to vote.  On Monday, November 4, 1940, Robert and Irene Jackson travelled from Washington, where they lived in a rented Wardman Park apartment, to Jamestown, where they still owned a house and were registered to vote.  They voted in Jamestown on Tuesday, November 5, 1940—both for Roosevelt and his running mate Henry Wallace, I’m sure.

In Jamestown at that time, Democrats such as the Jacksons were a political minority and usually their candidates lost.  That was true in 1940.  Willkie carried Jamestown by over 1,500 votes, and he won all of Chautauqua County, where Jamestown is located.  Indeed, Republicans across the county won every race.

But that was not true statewide.  Although the race was tight, Roosevelt carried New York State, his home, with 50.5% of the vote.

Nationwide, the race was not so close.  F.D.R. won 54.7% of the popular vote, to Willkie’s 44.8%.  Overall, Roosevelt carried 38 of the 48 States.  He was reelected with 449 electoral votes to Willkie’s 82.

In the new year, President Roosevelt was inaugurated, beginning his unprecedented third term.

Wendell Willkie, to his great credit, went to work for President Roosevelt as an international emissary and adviser.

In July 1941, Robert Jackson also took on a new government position—he was appointed by Roosevelt and confirmed by the Senate to serve as an associate justice of the U.S. Supreme Court, and thus he resigned his position as Attorney General.

Justice Jackson of course cast many, many votes in the Supreme Court’s conference room, on cases, petitions, and other judicial matters.

But he never again entered a voting booth.  In his view, holding judicial office was a responsibility not to be involved in politics, even at the private level of voting.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Election Eves:  A Memory and a Prediction

I remember walking, 36 years ago, through the main gates onto Georgetown University’s campus.  I was a student then, probably carrying too many books.  The day was beautiful—sunny and crisp.  The next day was Election Day.  I could feel, and the press made clear, that voters were deciding late, many out of stoked fears and both grounded concerns (e.g., about economic conditions) and unfounded perceptions (e.g., that the government was doing nothing to free U.S. citizens held hostage in Iran), moving toward what became Ronald Reagan’s victory over President Carter.

This morning I walked through the main gates onto St. John’s University’s campus.  I work there, and I definitely was carrying too many books.  This day is beautiful—sunny and crisp.  Tomorrow is Election Day.  I believe I can feel, and the “press” (now paper plus everything else) is making it clear that a distinct majority of voters is rejecting attempts to stoke fears and voting instead on grounded information and accurate perceptions.

With respect, “Morning in America” was a 1980s slogan that did not describe what happened too much to too many Americans in that decade.

Today is a brighter morning in America, as the past eight years generally have been.  And I look forward to tomorrow’s morning, and even more to Wednesday’s.

Jackson List: Justices & the World Series

For the Jackson List:

United States Supreme Court Justice John Paul Stevens, a Chicago native, has been rooting for the Chicago Cubs almost since they last won a World Series—that was in 1908, just twelve years before Stevens was born.

As Justice Stevens explained in a great interview posted on SCOTUSblog this morning (click here), he has seen many Cubs baseball games in Wrigley Field.  On October 1, 1932, for example, he attended the third game of that year’s World Series and witnessed Babe Ruth’s famous “called shot” home run … and thus saw the New York Yankees beat the Cubs, 7-5, on their way to sweeping that World Series.

On that day in 1932, a man named James M. Marsh, age nineteen, was listening to that game on the radio in western Pennsylvania and keeping score in his scorebook.  Fifteen years later, Jim Marsh was clerking for Justice Robert H. Jackson at the Supreme Court.  Marsh became a close friend of John Stevens, who was clerking then for Justice Wiley Rutledge.  Marsh learned of Stevens’s love for the Cubs, and that he had seen Babe Ruth hit the called shot.  In time, Marsh located his 1932 scorecard and gave it to Stevens.  Justice Stevens then displayed it on the wall of his Supreme Court chambers.

In contrast to Stevens and Marsh (and many of us), Justice Robert H. Jackson was no baseball fan.  In 1951, for example, when Major League Baseball had leadership troubles and Jackson was reported to be under consideration to become its next commissioner, he found the idea distasteful.

In summer 1950, as Jackson was preparing to take a cross-country train trip with his friend Harrison Tweed, a leading New York City lawyer, and he wrote Jackson to suggest that they see a baseball game on a layover day in Chicago, Jackson wrote back immediately, voting no:

Personally, I don’t care much about baseball and haven’t seen a game in a good many years.  Why don’t we take our chances on what we can do during the day[?]  Maybe some good friend like [Chicago lawyer] Tap Gregory will come to our rescue.  I may get in touch with him.

Two summers early, indeed while Jim Marsh was beginning his second year as Jackson’s law clerk, Jackson commented privately, and not approvingly, that Babe Ruth’s death had garnered more news attention than had the death of Tweed’s law partner Walter Hope.  (Really.)

But Justice Jackson did have a near-brush with the Chicago Cubs, and, indeed, with the Cubs in the World Series.  In early October 1945, beginning on the 6th of the month, Jackson was working in Berlin, in preparation for the impending prosecution of Nazi war criminals that he would be leading in Nuremberg.  Jackson kept busy during the next four days with numerous meetings, some social occasions, and his own work.  But really he was waiting for U.S. and other nations’ judges to arrive in Berlin so that the International Military Tribunal could hold its first session there (in the Soviet zone of military occupation), formally receiving the prosecutors’ indictment of the defendants, before adjourning to Nuremberg (in the U.S. zone) to conduct the trial.

By October 10, 1945, Jackson, knowing that he had much work to do in Nuremberg, was fed up with waiting around in Berlin.  He left two of his deputies to continue the work there.  Jackson had command of a military plane, and he ordered it to fly him and some of his team that evening to Nuremberg.

During the flight, Justice Jackson stayed in his seating area on the plane, I am sure.  But others, including his son and executive assistant Bill Jackson, crowded around the cockpit.  They managed to listen there to a radio broadcast of the final game of the World Series, which was being played in Wrigley Field.  (Alas for Cubs fans such as then-first year law student John Paul Stevens, just back in Chicago and civilian life after four years of wartime service in the U.S. Navy, the Detroit Tigers won that World Series game seven, beating the Chicago Cubs, 9-3, and thus the Series.)

In 2016, the long wait of Justice Stevens and all Cubs fans for a World Series championship is compelling.

It bears at least passing note, however, that another Justice, Harold H. Burton (1888-1964), would be rooting the other way.  Justice Burton was colleague of Justice Jackson and Justice Rutledge on the Court, and Burton was everyone’s model of judicial diligence and fairness.  Harold Burton had served as Mayor of Cleveland, Ohio, from 1935 until 1940.  He then became a U.S. Senator from Ohio, serving from 1941 until he resigned following his appointment to the Supreme Court.

Justice Burton was commissioned a Supreme Court justice on September 22, 1945.

That autumn, seventy-one years ago, was only three years before the Cleveland Indians, the Cubs’ opponent this year, won their most recent World Series.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Phil C. Neal (1919-2016), Jackson Law Clerk

For the Jackson List:

In August 1940, United States Attorney General Robert H. Jackson appointed a new graduate of Harvard Law School, John F. Costelloe, to serve as a junior attorney in the U.S. Department of Justice’s Claims Division (today, the Civil Division).

A year later, shortly after Jackson had been appointed an Associate Justice of the U.S. Supreme Court, he hired John Costelloe to be his first law clerk.  Costelloe’s work was superb and Jackson liked him a lot—he asked him to stay for a second year and, as it neared its conclusion, he mentioned to Costelloe that he could stay for a third… only to learn that he wished to move on to law practice.

So Justice Jackson mentioned to his son William, then a second year student at Harvard Law School and a member of the Harvard Law Review staff, that he would be needing a new law clerk starting that summer.

Bill Jackson went into action.  After speaking to the current Law Review president about his potential interest in clerking for the Justice, Bill wrote this letter to his father:

Dear Dad –                                          PHIL NEAL

                                                (for legibility’s sake)

             I have just talked to Phil Neal,

present head of the Bugle, and he is

interested in clerking for you.  The hitch is

that he goes before the Draft doctors on

the 20th [of the month, probably March 1943], but inasmuch as he has a bad

heart too (had rheumatic fever last year),

it seems probable he will be rejected.

            His marks are of course tops.  He

works like a stevedore.  His political-social

views are “liberal.”  He has personal charm

and is easy to work with.  In short, I

think he is a find.

            He will, however, be unavailable until

around October 1, when he graduates.  If you

need someone before that, perhaps he is out.

But there is nobody any good up here who will

be through before October.

            I suggested that if he were turned

down [at his military physical on] the 20th, he drop down for a talk

with you.  It might be nice if I asked

him to stay overnight at the house.  At

any rate, I told him I thought he would

probably hear from you about it, and I

suggest you write him a note at the Law

Review office.  – He’s a good man.

Wednesday                                          WEJ

 Phil Neal did flunk his U.S. Army physical, and he also heard from Justice Jackson.  At his invitation, Phil travelled to Washington, Jackson interviewed him, he liked him, and he quickly hired him to be his law clerk for the next year.

Phil Neal graduated from Harvard Law School at the start of October 1943.  He then, a week or so later, took the Illinois (his home state) bar examination, despite not having time to study for it or to take a bar review course.

It was Justice Jackson who insisted that Phil Neal take the bar then, before he started clerking.  Jackson explained that he was looking out for Phil’s later career (and apparently Jackson was not considering that Neal might flunk the bar—but he passed).  Jackson described how in 1936 President Roosevelt could not appoint Jackson’s excellent Treasury Department Revenue Bureau deputy counsel to succeed him as counsel when the President appointed Jackson to serve in DOJ because the deputy, always busy with his government work, had never gotten around to taking the bar.

*          *          *

By mid-October 1943, Phil Neal was working for Justice Jackson.  Phil served as Jackson’s law clerk for almost two years—during the first year, Jackson asked Phil to stay on for a second year and he accepted.  They got along well.  Jackson had high regard for Phil, and he liked and admired the Justice.

During Phil Neal’s clerkship years, between Fall 1943 and Spring 1945, he reviewed many petitions seeking Supreme Court review of lower court decisions and wrote short memoranda to Jackson, each summarizing a petition and advising Jackson to vote to grant or to deny review.

Phil Neal also advised Jackson on numerous major cases that the Court was deciding, and on opinions that Jackson had drafted.  These included:

  • Jackson’s dissenting opinion in Federal Power Commission v. Hope Natural Gas Co. (1944) (regarding the agency’s statutory authority to set gas prices);
  • Jackson’s opinion for the Court in Pollock v. Williams (1944) (holding that a Florida law criminalizing failure to work after receiving an advance payment violated the Thirteenth Amendment and the federal anti-peonage law);
  • Jackson’s dissenting opinion in Korematsu v. United States (1944) (arguing that criminalization of a Japanese-American’s violation of a military order excluding him from the West Coast was unconstitutional racial discrimination); and
  • Jackson’s opinion for the Court in Cramer v. United States (1945) (reversing treason convictions).

*          *          *

In March 1945, Phil Neal left his clerkship suddenly and “early.”  His departure began when Justice Felix Frankfurter popped into Phil’s office one day, as he often did on his way to visiting Jackson.  “What are you going to do next year?,” Frankfurter asked.  Phil replied that he had not been in the war, and was thinking that maybe he could “get in the peace end.”

Frankfurter promptly took Phil by the elbow to Frankfurter’s chambers, called his friend Alger Hiss of the U.S. Department of State, and told him about Phil Neal.  Hiss then was working at Dumbarton Oaks, heading up U.S. preparations for the imminent San Francisco conference that would create the United Nations.  Hiss and Neal then met, and Hiss—himself a former Supreme Court law clerk, to Justice Oliver Wendell Holmes, Jr.—hired Neal on the condition that he could free himself from Supreme Court work.

Phil Neal promptly contacted Murray Gartner, a Harvard Law School mate whom Jackson already had hired to succeed Phil, beginning a few months hence.  Phil explained the situation and ascertained that Murray could start the job immediately.  Phil then presented the scenario to Jackson and asked to leave his clerkship.  Jackson, liking Phil, feeling covered by Murray Gartner’s availability, and understanding the attraction the State Department opportunity had for Phil, said yes.

Indeed, just a few weeks later, when President Truman contacted Jackson and asked him to take on a post-war legal assignment, to negotiate and then to lead the international criminal prosecution of the surviving Nazi leaders…  Well, Jackson in a sense followed Phil Neal’s lead—he also left the Supreme Court, if in his case only temporarily, to work on global legal challenges, for what became his year-plus as U.S. chief prosecutor at Nuremberg.

Interestingly, when Phil Neal applied to take the California bar later that year and the bar examiners inquired of Jackson about Neal’s previous employment and character, Jackson’s enthusiastic reply, cabled back to the U.S. from Nuremberg, said that Phil Neal “is not on this [Nuremberg trial] mission only because I released him to [the] State Department at [the] time of [the] San Francisco conference.”

*          *          *

During Spring and Summer 1945, Phil Neal worked for the State Department, first in Washington and then in San Francisco.  As a member of the State secretariat staff, he worked on the establishment of the United Nations, and particularly on the International Court of Justice provisions in the draft U.N. Charter.

After leaving government work and passing his second bar examination, Phil Neal stayed to live in San Francisco.  He became an associate at Pillsbury, Madison & Sutro.  In 1948, he became an associate professor at Stanford Law School.  In 1952, he became a professor.  His courses included Administrative Law, Agency, Bills & Notes, and Constitutional Law.

Throughout these years, Justice Jackson and Phil Neal stayed in occasional contact and saw each other when geography permitted.  One instance was August 1951, when Robert Jackson and his wife Irene, vacationing northern California, visited Phil Neal and his wife at their home in Los Altos.  Phil asked Jackson if he would interview Phil’s top student, a World War II veteran from Wisconsin named William H. Rehnquist, for a possible clerkship.  Jackson said yes, they went over to the Stanford campus, and the meeting occurred in Phil’s office.  Jackson liked Bill Rehnquist and, a few months later, as he was about to graduate, Jackson hired him.  Rehnquist was one of Jackson’s two law clerks during 1952-53.  (Two decades later, of course, Rehnquist returned to work at the Supreme Court as a justice.)

While at Stanford, Phil Neal, in addition to devoting himself to teaching and scholarship, stayed involved, sometimes behind the scenes, in major legal matters.  In the early 1950s, for example, he assisted Thurgood Marshall and his NAACP legal team as they prepared for oral arguments before the Supreme Court in Brown v. Board of Education and its companion cases challenging the constitutionality of racial segregation in public schools.  In May 1954, just after Brown was decided (unanimously, including by Justice Jackson), William T. Coleman, a NAACP junior lawyer and Phil Neal friend, wrote to Phil to thank him for his assistance.  Phil’s reply first stated his embarrassment to be thanked for anything.  He then stated his fundamental faith in lawyers and their work:

You surely deserve to be congratulated on your momentous victory.  Some may think the result merely the inevitable course of history—or pure politics, as some choose to believe—but I’m sure that you and your colleagues could show that it came at this moment and in the form it took because of years of able planning and advocacy by lawyers.

Related, one of the U.S. Supreme Court cases that Phil Neal later argued and won was a 1986 case, Pasadena City Board of Education v. Spangler, a class action challenging the constitutionality of racial segregation in a California high school system.

img_3510-cropped

1958, L-R:  Phil Neal (Stanford), Charles Fairman (Harvard), Julius Goebel (Columbia), L. Quincy Mumford (Librarian of Congress) and Paul Freund (Harvard).

*          *          *

In 1962, Phil Neal, after thirteen years on the Stanford law faculty, became a professor at the University of Chicago Law School.  The next year, he was appointed Dean.  He succeeded Edward H. Levi, who after twelve years as dean had become University provost—and who in 1975 would become U.S. Attorney General.

Phil Neal served as the Dean of the University of Chicago Law School, one of the nation’s great law schools, and one that rose in strength under his leadership, from 1962 until 1975.  While serving as Dean, Phil also served as executive secretary of the Coordinating Committee of the U.S. Federal Courts, charged with administering the massive volume of electrical equipment antitrust cases, and in that capacity he drafted the statute creating the Judicial Panel on Multidistrict Litigation.  He also served as Chairman of the White House Task Force on the Antitrust Laws, appointed by President Lyndon Johnson.

After Phil Neal in 1975 completed twelve years as Chicago’s law dean, he remained on the faculty, teaching courses in Antitrust (sometimes co-teaching with a leading economist), Constitutional Law, Elements of the Law, and Legal Ethics, and a Supreme Court seminar that sometimes met in his home.  He also practiced law as Of Counsel with Friedman & Koven, a Chicago firm.

In the 1980s, when Phil Neal was in his sixties and academic institutions still could legally mandate faculty retirements because higher education was exempted from the federal law barring age discrimination in employment, he retired, at least formally, becoming a professor emeritus.

Phil Neal, in full health and energy, and at his core a brilliant lawyer who loved his profession, then continued, and increased, his law practice.  In 1986, with thirty-four other lawyers, he founded Neal, Gerber & Eisenberg.  Today the firm has well over one hundred lawyers.  Phil helped to build the firm and practiced there very actively for decades, focusing on trial and appellate litigation in business law areas including antitrust, securities, bankruptcy and corporate law.  He served on the firm’s executive committee until recently.

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October 2002:  Phil Neal in Venice, Italy.

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Phil Caldwell Neal’s extraordinary life ended last month. I was very lucky to know him, and to learn much from him about Robert H. Jackson—Phil savored his memories of Justice Jackson, admired him greatly, and regarded him as a very important life influence.

My even greater fortune, shared with many thousands, was to learn from Phil Neal about greatness in all the ways that he was.  He was dauntingly smart.  He was a stickler for clarity, in analysis, in writing, and in speech.  He was reflective—he could seem even taciturn at times, but that was because his wheels turned so fast, and sometimes they were grinding up weak ideas that had been presented to him.  He held himself and others to very high standards.  He had humility, decency, and humanity—he was, at his core, kindly.  And he believed deeply in the rule of law, and in the legal profession as a force for good.  In all of these ways, he was a leader, a motivator, a guide, a teacher.

And he did quite well, by the way, with a U.S. Army-certified bad heart.

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July 3, 2016:  Phil Neal at his home in Sawyer, Michigan.

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Some links—

  • Phil Neal, speaking at Albany Law School in November 2004 about Justice Jackson—click here for video;
  • Phil Neal, at a dinner at Chautauqua Institution in 2002 following a former Jackson law clerks’ roundtable at the Robert H. Jackson Center, telling a story about his first name—Phil, not Philip—and an exchange he once had with Justice Tom C. Clark—click here for video (and skip ahead to the 4:00 mark, after my introduction of Phil, for his story);
  • Neal, Gerber & Eisenberg’s announcement of Phil Neal’s death—click here;
  • The University of Chicago’s announcement—click here;
  • An announcement published in the Chicago Tribuneclick here; and
  • An obituary from Phil’s neighborhood paper, the Hyde Park Heraldclick here.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

A Word Against Smearing Supreme Court Justices

Gabe Roth of the advocacy group Fix the Court published an Op-Ed essay, “The Supreme Court Is Being Hypocritical,” in today’s New York Times.  He points to factual circumstances in various cases that the U.S. Supreme Court has decided recently or is considering.  He argues that these facts and the concerns they raise (in his mind) apply not just to the litigants in those cases, but to the Justices too.

Mr. Roth calls these cases the Court’s “self-referential docket,” but really he’s criticizing what he sees as the Justices’ failures to reference themselves.  He wants the Justices to see ethical issues in their own behaviors and, in response, to promulgate new rules to address them, and to behave in ways that he thinks would be ethically better.

Alas, his list of particulars is flawed.  To wit:

  • Yes, Elena Kagan was Solicitor General of the U.S. before her appointment to the Court. But she did not “surely” have significant involvement as S.G. in Affordable Care Act cases.  In fact, it is well-documented that she avoided them, perhaps because her judicial appointment was already impending when those cases began.
  • Yes, Justices and their family members do own stocks (as many, many people do, directly or at least indirectly). But the ideas that Justice Stephen Breyer or Chief Justice John Roberts—each rich beyond the point of having financial needs or concerns, by the way—cast votes in Supreme Court cases so as to raise their stock share prices is just outrageous.  And so is the idea that Breyer, Roberts, or Justice Samuel Alito, or any justice, will cast a vote in a pending insider trading case so as to move financial markets in the justice’s favor.
  • Yes, the Supreme Court has not recently taken a case to review the constitutionality of a law banning certain protests on the plaza in front of the Court building. And yes, the Court in 2014 unanimously invalidated a state law barring protesters within 35 feet of abortion clinics (McCullen v. Coakley).  But Roth’s implication that judicial self-interest explains these differing legal outcomes oversimplifies matters, vastly—as reading various Supreme Court and lower court decisions on these and other “buffer zone”/speech restriction laws will quickly demonstrate.
  • Yes, Justice Sandra Day O’Connor wrote for the Court, when it upheld Missouri’s age 70 mandatory retirement rule for its judges, that “physical and mental capacity sometimes diminish with age.” (No kidding.)  And yes, Justice Antonin Scalia died last winter just before his 80th birthday, and Justice Anthony Kennedy recently celebrated his 80th.  And Roth’s point?  The idea that any Justices is forgetting his or her age and not monitoring his or her capacities is absurd.  The implication that Justice Scalia had become too infirm to serve, or that any Justice now is, is insulting because it is refuted by their performances on the bench, which occur in public and then are preserved on audio tape, and in their written opinions.

Mr. Roth’s bad examples only weaken his meritorious arguments.  Yes, the Court/the Justices could do much more to advance Court transparency and thus public appreciation for its performance.  For instance, filming oral arguments and then making those films publicly available, routinely but perhaps after an interval of time, would improve public education without affecting much how the Court does its work.

It only sets back public discourse, and it probably makes the Justices less receptive to sound reform proposals, to claim falsely that the Court is broken.