Update re The Jackson List

As you might know, I write about Robert H. Jackson (1892-1954), United States Supreme Court Justice and Nuremberg chief prosecutor of Nazi war criminals following World War II.  Jackson is one of the most enduringly significant lives of the 20th century.  Among other things, I am a Jackson biographer, discoverer and editor of his acclaimed book That Man on President Franklin D. Roosevelt (which also is a Jackson autobiography), author of many articles on Jackson, a regular lecturer across the U.S. and internationally on Jackson and related topics, and a fellow and board member at the Robert H. Jackson Center in Jamestown, New York.

An outgrowth of all that is that I email a few notes each month, on Justice Jackson, the Supreme Court, Nuremberg, and/or related topics, to “The Jackson List.”  It is a one-way, private email list that reaches many thousands of direct subscribers—teachers, students, scholars, lawyers, Judges, and other learners—and, through their forwarding, reposting, blogging, etc., many others around the world.

In the past, I have used this blog site to post items as they are sent to The Jackson List.  But it has migrated to a new platform and better technology.  (Thank you, IT aces!)  So from now on, new Jackson List posts will go by email to The Jackson List and, simultaneously, be posted on its archive site—

https://thejacksonlist.com/

To subscribe to The Jackson List, sign up there, or send me an email.

Thanks very much for your interest, and for spreading the word.

“The Best Man That We Had. Recently.”

Three generations of a super family—the matriarch, age 93, plus her daughters, a son-in-law, and three adult grandchildren—invited me to dinner last night.  It all, including great conversations, was a delight.

One conversation concerned Grandma’s 1950 engagement and wedding.

Grandma’s health now isn’t as strong as it once was.  But she took great, smiling delight last night in being with her loved ones.  She answered direct questions and nodded and smiled when she got hugged (a lot).  Mostly, as the conversations ran around the dinner table, she watched and enjoyed the good food.

So we spoke about the 1950 wedding.  Then our conversation turned to who thinks what about the current Democratic presidential candidates.

Grandma spoke then, quietly but very clearly:  “Who was the best man that we had?  Recently.”

A granddaughter, thinking that Grandma was going back to the previous conversation, sought clarification:  “Do you mean who was the best man at your wedding, Grandma?”

“No, no—” she responded.

One of her daughters knew what she was saying—that she was joining in our talk of politics and presidents.  “Do you mean Barack Obama, Mom?”

“Yes,” she said.  “Yes.”

Yes.

Jackson List: Respecting the Mother of a Man Killed in Auschwitz (1946)

When the international trial of the Nazi arch-criminals began in Nuremberg in November 1945, Rudolf Franz Ferdinand Höss (in English, Hoess) was known to have been the commandant of the Nazi concentration camp near Oświęcim in what had been, before September 1939, Poland.  During World War II, the Nazi invaders and occupiers had renamed that town Auschwitz.  Hoess had, people were alleging, gassed millions, mostly Jews, at Auschwitz.  But as the Nuremberg trial began, Hoess was missing, at least a fugitive, perhaps dead.

Almost four months later, in March 1946, soldiers in the United Kingdom zone of occupation captured Hoess near what had been Germany’s border with Denmark.  They interrogated him.  He confessed that he had, as Auschwitz commandant, on orders from Nazi leader Heinrich Himmler (who had killed himself in May 1945), gassed two million people.

Hoess then was transported to Nuremberg for further interrogation.  The four Allied  nations had by that time concluded presenting their prosecution cases against the defendants, but Hoess’s evidence was potentially relevant to their cross-examinations and rebuttals that still lie ahead, and perhaps to future trials.  He was interrogated, thoroughly and repeatedly, by U.S. personnel.  He continued to confess, in expanding detail, what he and his personnel had done at Auschwitz.  His confession was put in affidavit form, which he and United States assistant trial counsel Lieutenant Colonel Smith W. Brookhardt, Jr. (IGD), each signed on April 5, 1946.

Hoess’s capture and his presence in Nuremberg were made known to defense counsel.  On April 6, British prosecutor David Maxwell Fyfe applied to the International Military Tribunal (IMT), on behalf of defendant Ernst Kaltenbrunner, for a new “witness called Hoess, who was former Commander of the Auschwitz Concentration Camp.  My Lord, there is no objection on the part of the Prosecution to that.”  The IMT, determining that other defense counsel either concurred or did not object, granted permission.

On April 15, Kaltenbrunner’s lawyer called Hoess as a witness.  He testified that he had been commandant of Auschwitz for its first three years, and that he had reported to and received his instructions directly from Himmler’s subordinate Adolf Eichmann (who then was believed to be dead).  Hoess’s key testimony, from the defendant’s perspective:

Defense counsel Dr. Kurt Kauffmann:  Did the Defendant Kaltenbrunner ever inspect the [Auschwitz] camp?

 Hoess:  No.

 Dr. Kauffmann:  Did you ever talk with Kaltenbrunner with reference to your task?

 Hoess:  No, never.

U.S. Army Colonel John Harlan Amen, a senior member of U.S. Chief of Counsel Robert H. Jackson’s staff, then cross-examined Hoess.  The examination tracked his horrific affidavit to Brookhart.  It confessed publicly, without remorse, the enormous, deliberate, exterminationist evil of Auschwitz.

*          *          *

On the day of Hoess’s trial testimony, Justice Jackson was in Allied-occupied Vienna for diplomatic, military liaison, and other coordination meetings.

The next day, an Austrian woman, Helene Zacchiri, hurriedly typed a letter in quite-rough German and managed to get it delivered to Justice Jackson.  She obviously knew that he was in the city, that he was the chief prosecutor in Nuremberg, and that Hoess had just testified there.  She had been told years earlier that her son had died in Auschwitz.  She had tried to learn more about his fate but had failed.  Now she was asking Jackson for help.

Jackson, who did not read or speak German, had an interpreter with him in Vienna.  The interpreter shared with Jackson these words from Mrs. Zacchiri:

16 4 46

            [April 16, 1946]

Herrn Vorsitzenden Dr Robert H Jakson

[Mr. Chairman Robert H. Jackson]

Ich habe in der Zeitung gelesen das die Verhandlung gegen Kommandaten Hosch demnachst in Nurnberg stattfindet[.] Daher ersuche herrn Vorsitzden in engelegenheit meines Sohnes denselben einzuvernehmen[.]

[I have read in the newspaper that the hearing against Commandant Hosch [Rudolf Hoess] is taking place in Nuremberg. Therefore, I ask you to please question him about the fate of my son.]

Mein son Demeter Odnega geb Wien am 10 Juni 1901[.]  Maschinen techniker wurde von der Gestappo Wien am 29 Mai 1941 nach Auschwitz uberstellt[.]  Am 10 December hat mir der Kommandant eine Todeserklahrung geschikt[.]  Nun bin ich nach Berlin gefahren und habe dort erfahren dass main Son nur Tod erklahrt wurde[.]  Nachdem hier unde in Auschwitz alle akte verbrant sind kann ich uber das schiksal meines Sohnes Nicht erfahren[.]

[My son Demeter Odnega, born in Vienna on 10 June 1901, is a mechanic.  The Gestapo in Vienna sent him to Auschwitz on 29 May 1941.  On 10 December [1941?], the Commandant sent me a death certificate.  I went to Berlin and all that I could learn there is that my son is declared dead.  Because all the files in Auschwitz were destroyed, I cannot learn about the fate of my son.]

Ich ersuche daher hoflichst Hosch einzuvernnehmen ob mein Sohn getodet wurde in Auschwitz oder verschikt[.]  Ich war drei mal in Auschwitz Herr Vorsitzender[.]  und habe im Ort erfahren wie diese armen Menschen dort auf Befehl des Kommandanten als auf Auftrag des Schirach dort mishandelt wurden und getodet[.]  Ersuche mich schriftlich von der Einvernahme zu verstandigen denn es ist fur eine Mutter furchbar nicht zu wissen funf Jahre wo mein Sohn ist[.]

[Therefore please ask Hosch [Hoess] whether my son was killed in Auschwitz or transferred to some other place.  I was in Auschwitz three times, Mr. Chairman.  I learned how the poor people there were mistreated on the orders of the Commandant, on behalf of Schirach.  Please write back to me what you learn through interrogation.  It is awful for a mother not to know for five years where her son is.]

Hochachtunsvoll

Helene Zacchiri

Wien 4 Muhlgasse 20 12

            [Sincerely

            Helene Zacchiri

            Vienna [Austria] 4 Muhlgasse 20 12]

*          *          *

In Jackson’s position—he was the important chief of a very large, high profile, high stakes project, asked by an unimportant person to seek information that almost surely would not exist—many people would do little or nothing.

Jackson brought Mrs. Zacchiri’s letter back from Vienna to Nuremberg.  He gave it to his secretary Elsie Douglas.  He told her what it said, and that it likely was a futile request.  But he told her to send it to Col. Amen.

Mrs. Douglas sent the Zacchiri letter to Amen, with a cover note that was less than an order from Jackson to do something but not discouraging of action.

Amen passed the letter along to Sender Jaari, one of his Interrogation Division personnel who had been involved in interrogating Hoess.

Jaari asked the imprisoned Hoess about Mrs. Zacchiri’s son’s fate.  Hoess replied that he had no information.  Jaari reported that back to Mrs. Douglas.

Mrs. Douglas reported to Jackson what Hoess had said.

Jackson then sent a letter back to “My dear Mrs. Zacchiri” in Vienna:

As requested in your letter of April 16, which was delivered to me during my brief stay in Vienna, the witness Hoesch [sic] has been interrogated as to some possible clue on your son’s whereabouts.  I regret to advise you that Hoesch states that he does not know anything about him and therefore can give you no helpful information.  I am very sorry we have been unable to help you.

We know, as Mrs. Zacchiri was told in December 1941 and continued to believe, crushingly, in 1946, that her son Demeter Odnega was a Holocaust victim, murdered in Auschwitz—click here for his record in the International Tracing Service database.

I hope that she received Justice Jackson’s letter, and that she felt its humanity.

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This post was emailed to the Jackson List, a private, one-way (me to you), 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: Donald B. Verrilli, Jr.’s Jackson Lecture at Chautauqua Institution

On July 1, 2019, Donald B. Verrilli, Jr., former Solicitor General of the United States, delivered Chautauqua Institution’s 15th annual Robert H. Jackson Lecture on the Supreme Court…

*             *             *

UPDATE:  This post, edited a little bit and enhanced with photographs, now is on the Jackson List archive site, which is searchable, in PDF film form.

Click here for video of Mr. Verrilli’s lecture.

Click here for video excerpts from a Robert H. Jackson Center interview.
with Mr. Verrilli.

 

Jackson List: Update on DOJ’s Much-Coveted AG Jackson Portrait

During his seven-plus years as a high official in the Executive Branch of the United States Government, Robert H. Jackson served mostly in the U.S. Department of Justice.  Yes, Jackson started at Treasury—he came to Washington when President Franklin D. Roosevelt appointed him in 1934 to serve as Assistant General Counsel in the Treasury Department’s Bureau of Internal Review.  Yes, Jackson was detailed in late 1935 from Treasury to the Securities and Exchange Commission.  But from 1936 through Spring 1941, Jackson was a leader, and he rose to be the leader, at DOJ.

President Roosevelt nominated Jackson three times, each confirmed by the Senate, to serve in the Justice Department.  In 1936, Jackson was appointed Assistant Attorney General.  He spent that year heading the Tax Division and the next year heading the Antitrust Division.  In March 1938, Jackson was appointed Solicitor General, then the Department’s number two position.  And in January 1940, Jackson was appointed Attorney General.  He served in that Cabinet office until he was appointed to the U.S. Supreme Court in July 1941.

The Department then arranged for Jackson’s official AG portrait to be painted.  Click here to see it—John Christen Johansen, one of America’s most noted portrait painters, produced it in Fall 1942 following sittings with Jackson.

The Department of Justice has a collection of portraits of each Attorney General—click here to see its online portrait gallery.  By custom, a perk of serving as a senior DOJ official is the right to choose, in office rank order, which former AG portrait(s) one wishes to hang in his and her offices and conference rooms.

As I have chronicled previously (see links below), the Jackson portrait has been, over the years, in high demand.  I cannot (yet) document all of its homes since 1941, but I know that:

  • Solicitor General Seth P. Waxman (1997-2001) had the Jackson portrait in his conference room;
  • Solicitor General Paul D. Clement (2005-2008) had the Jackson portrait in his immediate office;
  • Attorney General Michael B. Mukasey (2007-2009) had the Jackson portrait in his office;
  • Attorney General Eric H. Holder, Jr. (2009-2015) had the Jackson portrait in his conference room;
  • Solicitor General Donald B. Verrilli, Jr. (2011-2016) could not get the Jackson portrait away from AG Holder, so Verrilli had a copy made and kept that in his office; and
  • Deputy Attorney General Rod J. Rosenstein (2017-2019) had the Jackson portrait in his conference room.

Rosenstein of course resigned as DAG this Spring.

We now know, thanks to the Wall Street Journal’s July 13 report, that Attorney General William P. Barr was waiting to snag the Jackson portrait.  It today hangs, again, in the AG’s—Jackson’s former—office.

*          *          *

Some links—

  • Sadie Gurman, “Justice Department Chiefs Can’t Get Enough of the Patron Saint of the Rule of Law,” Wall Street Journal Online, July 13, 2019 (click here—paywall-blocked from non-subscribers, but they can access it through libraries, etc.…);

(And thanks, WSJ, for the article’s generous mention of the Jackson List and you many subscribers.  This motivated many more of you to become new subscribers.)

  • a 2007 Jackson List post, “Office Wall Décor” (click here);
  • a 2008 Jackson List post, “An Update on Attorney General Mukasey’s Office Décor” (click here);
  • a 2009 Jackson List post, “Department of Justice Installations, New and Permanent” (click here); and
  • my 2003 Buffalo Law Review article, “A Jackson Portrait for Jamestown, ‘A Magnet in the Room,’” which discusses Jackson’s participation in tribute and dedication events and his various portraits that are displayed in locations throughout the U.S. (click here).

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This post was emailed to the Jackson List, a private, one-way (me to you), 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: Heard July 5th on the National Mall: An Impending Supreme Court Justice’s Independence Day Speech (1941)

Below, for reading on this day after Independence Day and on other days, is the speech that Robert H. Jackson, then Attorney General of the United States, delivered in a radio studio on Friday, July 4, 1941.

Three weeks earlier, on June 12, President Franklin D. Roosevelt had nominated Attorney General Jackson to become an Associate Justice of the Supreme Court of the United States.  On June 30, a U.S. Senate subcommittee completed four days of hearings on Jackson’s nomination and the Senate Judiciary Committee then voted, unanimously, its approval.

Attorney General Jackson’s 1941 Fourth of July speech was and is many things, including an important lesson in U.S. history, an explication of the 1776 U.S. Declaration of Independence, and a powerful statement about democracy as a universal ideal.  Although Jackson was addressing 1941’s international situation and the coming U.S. involvement in the world war with fascism—New York City mayor Fiorello La Guardia, who then was also serving as FDR’s director of the national Office of Civilian Defense, had recruited Jackson to give this speech—many of Jackson’s words are timeless.

On July 4, 1941, Jackson was supposed to deliver this speech at the Washington Monument as part of the capital’s Independence Day observance.  The speech also was to be broadcast live on nationwide radio.

Washington’s summer weather, however, intervened.  Pouring rain caused the Fourth of July events that were scheduled to occur on Washington’s Mall—a Marine Band concert; a procession of flags and colors carried by representatives of 300 veterans’ and other patriotic, fraternal and civic organizations; Jackson’s speech; and fireworks—to be cancelled (for a second straight year).

Jackson did deliver his speech that evening in a Washington radio studio, and it was broadcast nationwide over Mutual’s radio network.  The speech also was recorded.

When July 5 brought better weather, the events on the Mall were rescheduled.  That evening, Jackson’s recorded speech was played for the crowd before the fireworks flew.

On Monday, July 7, 1941, the U.S. Senate confirmed by voice vote Jackson’s nomination to the Supreme Court.  On Friday, July 11, at the White House, FDR signed and gave Jackson his commission.  The Clerk of the Supreme Court then administered the constitutional oath to Jackson, who thus was appointed the 84th Supreme Court Justice in U.S. history.

*          *          *

Independence Day address

By Robert H. Jackson

Attorney General of the United States

Washington, D.C.

July 4, 1941

For nearly two years now many of us have been bewildered by the headlong course of events in Europe and not a few of us have been confused as to the course of wisdom at home.  We have seen a nation which twenty years ago had been vanquished, rise up with a ferocity seldom seen in the history of mankind.  We have seen vaunted armies smashed as if they were so much paper.  We have seen Europe overrun and England placed in grave danger.  We have seen the dictator idea spread in the world.  At first its two principal proponents, communism and fascism, appeared to be mortal enemies.  Then, one day, they turned up as partners.  Now they battle each other.

For nearly two years Americans have been asking each other which way safety and security lie.  We have pondered the problem weighing risk against risk and danger against danger.  Now at last, on this Fourth of July in 1941, the truth of our situation is coming home with increasing clarity to all Americans.  We are learning the overwhelming fact that now, as in 1776, our nation, together with our sister Republics on this hemisphere, faces a preponderantly hostile and undemocratic world.  Now, as in 1776, we can turn to the Declaration of Independence for the principles which should guide our action.

You are lifted and inspired, like generations before you, by the majestic cadence of the boldest, the noblest, and best known of all American writings.  The Declaration of Independence speaks strong doctrine in plain words.  It is the world’s master indictment of oppression.  The fervor of its denunciation haunts and challenges dictators everywhere and in every field of life.

But the Declaration of Independence does not stop with mere denials and negations.  It sets forth great affirmations as to the permissible foundations of power and political leadership among free men.  It lays down a fighting faith in the rights of man — merely as man — a faith to die by if need be, or even more bravely to live by.  It impresses upon all political power the high obligation of trusteeship.  It established an accountability by the governing few to the governed many.  That is why men abroad who wield dictatorial powers over subject peoples would silence the reading of the Declaration of Independence, would tear all mention of it from the record, and torture all recollection of it out of the minds of men.  Even at home there are some who hope it will not be read too loudly.

But the masses of warm-hearted people are reared on its strong doctrines of equality and human rights.  It has exceeded every other modern pronouncement in its profound influence upon our lives, our culture, and our relations to the world.  When the Constitution of the United States was adopted, its foundations were laid in the democratic idealism of the Declaration.  It has been the inspiration for every later recognition of broadened human rights and for the extension of justice and security to all men.  We do not claim to have reached a perfect fulfillment of its high principles.  But we have achieved the nearest approach among all the nations to a classless society, to equality of rights, and to a fair distribution of opportunity and prosperity.  Whenever we reproach our own imperfections, as we ought often to do, we must not forget that our shortcomings are visible only when measured against our ideals, never when put beside the practical living conditions of the rest of the world.  We have by Constitution, by legislation, and by judicial decision translated the Declaration out of the language of abstract philosophy into the idiom of everyday living.  We have validated democratic principles by our success.

America’s position in the society of nations is unavoidably that of a champion of the freedoms.  The reason is aptly stated by [Cornell University history professor] Carl Becker, who says:

In the Declaration the foundation of the United States is indissolubly associated with a theory of politics, a philosophy of human rights, which is valid, if at all, not for Americans only, but for all men.

When our national success demonstrated that freedom is an attainable goal, we made it the ultimate goal of all people everywhere.  The four freedoms are not local or transient incidents; they are universal and timeless principles if they are valid at all.  A blow against their existence in Europe is a blow at their validity everywhere.  On the other hand, the example of a great and powerful people governed by their own consent through lawmakers of their free choice is a standing incitement to overturn tyranny anywhere.  Malevolent conquests by dictators are silently undermined by our confession of faith in democracy as stated in the Declaration.  That carries hope to subject peoples in whom there would otherwise be a noble, but unavailing, fortitude.  Overridden countries find a bid to insurrection in its assertion of the right of the people to alter or abolish an existing government that is destructive of life, liberty, and happiness.  They read words of invitation in its statement of their right to “institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”  No wonder the Declaration of Independence is the nightmare of conquerors.

Some will say that the decision faced by the patriots of 1776 was an easier one than ours, since they had nothing to lose but their intolerable situation.  Our task, some will argue, is to protect rather than to win our freedom and that for that reason we should be cautious.

But if the patriots of 1776 risked little by action, we risk much by indifference.  Today we risk the loss of a physical, cultural and spiritual heritage of freedom far beyond the most inspired visions of the leaders of ’76.  And the more of the world that ceases to be democratic, the greater our risk will be.  We do not need to be imprudent or foolhardy, but we should recognize that no amount of cautious behavior, no amount of polite talk will earn for us the friendship and goodwill of dictator systems.  Ultimately we must come to the day when we shall face their threats and their enmity for no other reason than that we persist in living the kind of life we live.

One fact emerges clear above all others.  We Americans cannot cease to be the kind of people we are, we cannot cease to live the kind of life we live.  We are not the kind of people the dictators will ever want in the world.  They will never have any use for our kind of life, nor we for theirs.

Every American knows now, as he knew it in 1776, that there is nothing for him in that way of life.

There are those who shrink from the risks of standing for a forthright, practical application of democracy.  They point to the striking power and efficiency of foes abroad.  But the enemies of American democracy today cannot begin to assemble a force so relatively powerful and so encircling as were its foes that day when the signers of the Declaration pledged their lives, their fortunes, and their sacred honor in its support.  The most strategic points in our own country were then in possession of the King’s armies.  Canada was a base for his operations.  Florida, Cuba, Puerto Rico, and the mouth of the Mississippi were occupied by forces of Spanish monarchy — no lover of democracy.  And the unsolved problem of the colonies along their whole precarious frontier was the Indian.  American democracy then had no navy, only an empty treasury.  Its army was composed of untrained volunteer backwoodsmen who could not get shoes, clothing, or substantial arms to fight the invading British regulars.  There was no national unity.  There were cabals against Washington, a fifth column of Royalists was powerful and respectable, and the states were jealous rivals who did not act, nor even think, as a unit.  But in such an hour our forefathers who believed in freedom did not fear to stand alone and to become, as they continued for many years to be, the world’s only real democracy.  But the American forces had power — the unseen power of the earnest individual — the individual with what Mr. Justice Holmes called “fire in his belly.”  Only when these fires go out need we fear the lawless forces of dictatorship.  Democracy’s strength is in man-to-man measure.  None other draws such initiative from its way of life, none invents, and none had so generally and fully mastered in its daily life the technique of handling modern machine transport and production.  And we dwell among resources as incredible as acres of diamonds.

But there is at home and abroad an anti-democratic influence, even more cynical and sinister and dangerous than Hitler, Mussolini, and Stalin combined.  I refer to those who think democracy is a fair weather ideal — to guide us in soft times — but that when the going is tough we cannot save it without losing it.  This doctrine has every base quality of fascism without either its candor or courage.  Let us in America never forget that liberties trampled by conquest may be regained, but liberties abandoned by an indifferent people are never recovered.  Nor are they deserved.

Let us not forget the example of our forefathers.  They, too, heard the argument that time of external danger was no time to advance freedoms.  But their answer was to give liberty a new birth not only in the midst of a war but in the very darkest hours of that war, because they knew that what wins struggles are the last ounces of endurance and the reserves of power that come to the common run of men on fire for a cause.  Such men do not count costs nor watch the clock.  We must keep our freedoms, keep them in face of foreign dangers even more tenaciously and jealously than in calmer times — keep them because it is our liberty that lifts our cause above material ends and anchors our efforts in timeless things.  We know that in the unfolding book of destiny, just as in the closed book of history, it is written that tyranny and oppression bring forth their own downfall and that the irresistible moral forces of the world march always on the side of resolute men when freedom is their goal.  We know that the spiritual strength and the moral power of our democratic tradition, authenticated by a century and a half of progress, will not long yield the field anywhere in the
world despite the temporary devastations by enemies of the fundamental philosophy of our Declaration of Independence.  As Kipling has said:

Though all we knew depart,

The old commandments stand: –

“In courage keep your heart,

In strength lift up your hand.”

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This post was emailed to the Jackson List, a private, one-way (me to you), 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.

 

Charles A. Reich (1928-2019)

I am truly sad to report that former Yale law professor Charles Reich died last Saturday at age 91.  He was a brilliant mind, a beautiful writer, a wise teacher, a sharp lawyer, a kind soul, and a dear friend and hero to many.

Here’s an obituary article in today’s NYThttps://www.nytimes.com/2019/06/17/books/charles-reich-dead.html.

Much will and much should be written about Charles Reich, his work, and his influence.  Writers will emphasize The Greening of America, surely and properly—these are its closing paragraphs, a permanent creed of hope:

We have all known the loneliness, the emptiness, the plastic isolation of contemporary America.  Our forebears came thousands of miles for the promise of a better life.  Now there is a new promise.  Shall we not seize it?  Shall we not be pioneers once more, since luck and fortune have given us a vision of hope?

The extraordinary thing about this new consciousness is that it has emerged out of the wasteland of the Corporate State, like flowers pushing up through the concrete pavement.  Whatever it touches it beautifies and renews, and every barrier falls before it.

We have been dulled and blinded to the injustice and ugliness of slums, but the new consciousness sees them as just that — injustice and ugliness —as if they had been there to see all along.  We have all been persuaded that giant organizations are necessary, but it sees that they are absurd, as if the absurdity had always been obvious and apparent.  We have all been induced to give up our dreams of adventure and romance in favor of the escalator of success, but it says that the escalator is a sham and the dream is real.

And these things, buried, hidden, and disowned in so many of us, are shouted out loud, believed in, affirmed by a growing multitude of young people who seem too healthy, intelligent and alive to be wholly insane, who appear, in their collective strength, capable of making it happen.  For one almost convinced that it was necessary to accept ugliness and evil, that it was necessary to be a miser of dreams, it is an invitation to cry or laugh.  For one who thought the world was irretrievably encased in metal and plastic and sterile stone, it seems a veritable greening of America.

They also will highlight his article “The New Property,” and how it led to the Supreme Court’s landmark decision in Goldberg v. Kelly.

There’s much, much more.

See each of Charles Reich’s books.

See everything that Charles wrote about the U.S. Supreme Court, including what he wrote about Justice Hugo L. Black, for whom Charles clerked during October Term 1953, the term in which the Court decided Brown v. Board of Education.

See the twenty-four (at least) deep and lyrical law review articles that Charles published between 1962 and 2010,

See this fine Twitter thread by Professor Karen Tani:  https://twitter.com/kmtani/status/1140983478416052225.

Here is a blog where Charles Reich wrote and posted some things in the past couple of years: https://www.charlesareich.com/blog-1?fbclid=IwAR2ZHBkLCrS6DlJEEPLzdZb2RsUDM_ecjLtxfLIIUro8xfKz1d2wvAayO_o.  In the “Observatory” section, see his great photos of his friend Justice William O. Douglas hiking alongside the C&O Canal, and a super photo of them sharing a look, a canteen, and smiles.

I recall some advice that Charles gave me about law professor scholarship (and really it is advice about literature, which Charles knew well, and which he believed that any serious writing should try to be.)  He said that it is important to find worthy topics and do the very best that you can, with all that you know and with all that you can learn, from inside yourself, to write about them.  I asked him what his topic had been, especially when he was getting started.  He recalled spending a summer, I think it was the one after his first year of teaching, sitting in the Yale law library, working at a table covered with many books, writing “about America.”

He did it very, very well – he saw America, he loved it, and he improved it.

Jackson List: Barnette Day

Today, June 14, 2019, marks the 76th anniversary of the U.S. Supreme Court’s decision, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

Barnette, decided amid the commendable patriotism of the U.S. home front during the dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, 6-3, that the flag salute and pledge requirements violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although Jackson’s full opinion in Barnette bears close reading (and regular rereading), some words to consider particularly closely are his summary paragraphs:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

**Please also note** the FIU Law Review’s recent publication of a rich symposium on Barnette.  It includes my article “Justice Jackson in the Jehovah’s Witnesses’ Cases,”  based on my keynote address at FIU’s excellent Barnette 75th anniversary conference.  Click here to get to the symposium articles.

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Additional links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
  • a 2012 Jackson List post, “Arguing Barnette”—click here; and
  • a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

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This post was emailed to the Jackson List, a private, one-way (me to you), 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: Donald Verrilli’s Jackson Lecture, Chautauqua Institution, July 1st

I am very pleased to report that Donald B. Verrilli, Jr., former Solicitor General of the United States (2011-2016), will give Chautauqua Institution’s 15th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 1, 2019, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Don Verrilli, a graduate of Yale College and Columbia Law School and a former law clerk to U.S. Circuit Judge J. Skelly Wright (D.C. Cir.) and U.S. Supreme Court Justice William J. Brennan, Jr., is an acclaimed American lawyer and courtroom advocate, including arguing fifty cases in the U.S. Supreme Court.

Following two decades in private law practice, Mr. Verrilli served in the Obama Administration, first as Associate Deputy Attorney General, then as Deputy White House Counsel, and then as Solicitor General of the U.S.

As Solicitor General, Mr. Verrilli, among other highlights, successfully defended the constitutionality of the Affordable Care Act and the constitutional protection of marriage equality.

Since 2016, Mr. Verrilli has been a partner in Munger, Tolles & Olson, handling matters before the Supreme Court and the U.S. Courts of Appeals and representing and counseling clients on litigation, regulatory, and public policy problems—for his law firm page, click here.

The Jackson Lecture will bring Mr. Verrilli to Chautauqua Institution, a special venue of arts, education, and recreation in western New York State.  Chautauqua was a very significant part of Robert H. Jackson’s life, his broad and self-directed education, his public speaking training and experiences, and his thinking.  For an earlier Jackson List post on Chautauqua Institution, click here.  To view a 2011 documentary, “An American Narrative,” on Chautauqua, click here.  And click here for its website.

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term.

This year, with the Supreme Court scheduled to begin its summer recess late this month and a number of momentous decisions expected before then, Mr. Verrilli’s Jackson Lecture will be especially well-timed.

In past years, Chautauqua’s Jackson Lecturers have been:

  • 2005:  Geoffrey R. Stone, University of Chicago professor;
  • 2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
  • 2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
  • 2008:  Jeffrey Toobin, staff writer at The New Yorker and CNN senior legal analyst;
  • 2009:  Paul D. Clement, Kirkland & Ellis LLP partner and former Solicitor General of the United States;
  • 2010:  Jeff Shesol, historian, communications strategist, and former White House speechwriter;
  • 2011:  Dahlia Lithwick, senior editor at Slate and Amicus podcast host;
  • 2012:  Pamela Karlan, Stanford University professor;
  • 2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
  • 2014:  Akhil Reed Amar, Yale University professor;
  • 2015:  Laurence H. Tribe, Harvard University professor;
  • 2016:  Tracey L. Meares, Yale University professor;
  • 2017:  Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit; and
  • 2018:  Justice Rosalie Silberman Abella, of the Supreme Court of Canada.

For a video library of some past Jackson Lectures, and also video of interviews with lecturers during their visits to Chautauqua Institution, click here.

For further information on Don Verrilli’s upcoming lecture, click 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.

Invoking “Nuremberg”—Calling “Nazi,” Really—Too Flippantly in Chicago

During Chicago’s recent mayoral campaign, the Chicago Tribune published an article on the career of candidate Lori Lightfoot, a lawyer.

The article recounted, among other details, an incident when Lightfoot, serving in 1999 as an Assistant United States Attorney, allegedly misled a federal judge.  This resulted in her later reprimand by another federal judge, U.S. Circuit Court Judge Richard Posner.

In her defense, Lightfoot explained that the incident occurred when she was “a junior lawyer following the advice of people who were much more experienced than me [sic],” and that a U.S. Department of Justice inquiry had determined that she had not “engaged in professional misconduct or exercised poor judgment.”

In response to the Tribune’s article, Scott Cisek, a senior aide to Lightfoot’s opponent Toni Preckwinkle, posted on Facebook a photograph of nine former Nazis sitting in the dock as defendants before the International Military Tribunal at Nuremberg during 1945-46.  The photo had a top caption ” ‘JUST FOLLOWING ORDERS’ ” and, at bottom, “HISTORICALLY THAT EXCUSE HASN’T WORKED OUT SO WELL.”

Cisek soon deleted his post and apologized.

Preckwinkle fired Cisek from her campaign.

Lightfoot, in the end, defeated Preckwinkle.

The enormous crimes of true Nazis, as proven and adjudicated in the Nuremberg trials, are matters to study, learn, and teach, with accuracy and a sense of proportion.