Monthly Archives: October 2016

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.

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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.

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.

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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.

20161022_153522-cropped

October 2002:  Phil Neal in Venice, Italy.

*          *          *

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.

*          *          *

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.

—————–

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.