Author Archives: jqb

Jackson List: A Doctor’s Thanksgiving Wisdom (1953)

Robert H. Jackson lived actively, vigorously, despite knowing of his family’s history of heart disease.  His father, Will Jackson, died in 1915 at age 52, apparently of heart trouble.  Other members of the Jackson clan had heart problems too.  One of his sisters, having “had three quite bad spells with [her] heart” when she was only 34, referred with some fatalism to the possibility of having “a Jackson heart.”  Robert Jackson might have had his first heart attack as early as January 1941, when he was 48 years old.  His medical care attended to his heart from at least then until the end of his life (1954).

In 1934, when Robert Jackson was forty-one years old, he was appointed to national office for the first time and moved to Washington, D.C.  But his extended family and many of his closest friends remained in and around his adult hometown, Jamestown, New York.  They were the people who, and western New York State was the land and region that, Jackson loved—if you’ll excuse a line, he left his heart…  So he returned there regularly to visit, at least a few times every year.

And Jackson kept his Jamestown doctor.  Dr. Samuel Hurwitz, M.D., was a general practitioner with skills in cardiology.  Jackson liked and trusted Dr. Hurwitz and saw him each year.  He was attentive to Jackson, prescribing various medicines (bellergal; aminophyllin; nitroglycerin) that Jackson took as needed.  They corresponded during periods between Jackson’s Jamestown visits.

In November 1953, Jackson sent word to Dr. Hurwitz, probably by letter, that he needed prescription refills.  Hurwitz wrote back, enclosing signed prescriptions, noting “I have omitted the [patient] name and date, which you can put in when ready to fill the Rx’s.”

Dr. Hurwitz also noted his awareness of Jackson’s extrajudicial endeavors, which then included his well-publicized November 2, 1953, keynote speech at the dedication of the American Bar Center at the University of Chicago.  “The Jamestown papers follow and report your travels,” Dr. Hurwitz wrote.  “All of us applaud your philosophy.”

Dr. Hurwitz closed his November 1953 note to Justice Jackson, written on Thanksgiving Day, with a modest, I think admirable, nod to the role of fortune, and perhaps the role of higher power, in every life:

On this day anyone should be thankful for all the good he has, which are none of his doing.

I hope that your life is filled with good, as mine is—Happy Thanksgiving.

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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.

Biographer Goggles

Janet Maslin, in her New York Times review last week of Ron Chernow’s new biography of Ulysses S. Grant, praises Chernow for “manag[ing] to put on Grant goggles and deal primarily with this one soldier’s role in the military, this one leader’s role in the Civil War.”

I find this helpful.  Without such goggles—or, pick another metaphor, without binoculars that can be trained on one figure, or without a magnifying glass that can enlarge details of a key face in a crowd—biographical writing can too easily become general history.  That context is necessary, of course.  But not too much—the biographer’s point is to see, to point to, to communicate, the life of a person.

Back to my goggles.

President Reagan Against Political Gerrymandering

I received yesterday the new memoir by Harold Burson, The Business of Persuasion.  Now in his tenth decade, Harold is a giant in the field of public relations, co-founder of the global firm Burson-Marsteller, formerly an Armed Forces Radio Network reporter during 1945-46 at the international Nuremberg trial of the principal Nazi war criminals, a truly wise man, and, I’m very lucky to say, my friend.

I have only begun to read the book. So far it’s smooth and smart, filled with great stories and clear, profound life-lessons.  Harold calls these his “Takeaways,” and he very helpfully itemizes these keys to success at the end of each chapter.

When I finish reading Harold’s book—which will be soon, because, as he writes in a first chapter Takeway, daily reading of good material is both a pleasure and wise—I plan to write more about it.

I’m writing now about a Chapter One nugget because it’s striking and timely.

As Harold Burson recounts, he was an important adviser and friend to President Ronald Reagan, especially in his post-presidency years.

October 10, 1984:  Hugh Downs, Harold Burson, Jack Anderson, and President Reagan, at the White House launch of the Young Astronauts program

In 1989, Harold advised President Reagan, newly-retired and beginning to give talks to various audiences, to include in his speeches some bipartisan messages.

Reagan liked the advice.  He then described two issues that had concerned him for a long time.

One was the Twenty-Second Amendment to the U.S. Constitution.  Since the 1950s, it has limited presidents to two terms.  Reagan, having been there, thought it was terrible that the Constitution makes every reelected president a lame duck.  He preferred to trust the possibility of third terms to presidents’ sound personal decision making, and also to voters.  He noted that he was glad that President Franklin Roosevelt had been able to run for a third term in 1940.  (Reagan voted for him then, as he had in 1932 and 1936 and would again in 1944—F.D.R. was one of Reagan’s great heroes.)

The second concern that President Reagan voiced to Harold Burson was about the politicized methods that State legislative majorities use to draw the boundaries of Congressional districts.  Reagan said, in substance—Burson is careful to note that he puts in quotation marks the substance, reconstructed from documents and memory, of what a person said, not his verbatim words—that

“[r]ather than leaving it to the politics of whichever party controls a state’s legislature, each state should have an independent nonpartisan commission whose sole responsibility is redistricting based on census results.”  [Reagan] condemned gerrymandering; there should be geographic integrity in setting the boundaries of congressional districts. (p. 22)

Harold Burson agreed with the logic of President Reagan’s bipartisan—which is to say, really, his nonpartisan—position, and obviously I do too.

The U.S. Supreme Court currently is deciding the constitutionality of partisan gerrymandering in state legislative districts.  The case, Gill v. Whitford, was argued last week, and the Court’s decision is expected in coming months.  For information on the case, including briefs and a link to oral argument audio, visit this SCOTUSblog page:

Gill v. Whitford

The issue that concerned President Reagan, partisan gerrymandering of Congressional districts, is formally different from Gill v. Whitford’s focus on partisan gerrymandering of state legislative districts.  But the issues raise substantively the same question—the district line-drawers are one and the same state legislators, holding majority power, legislating boundaries so as to maximize their party’s advantage beyond its candidates’ abilities to win votes at the polls.

As the Supreme Court considers Gill v. Whitford, I hope that it will heed President Reagan’s wisdom—if it’s not too late to “file” another “amicus brief” in the case, maybe this can count as his.

I’m grateful to Harold Burson for bringing it to our attention.

And you should buy and read his book!

Jackson List: Nuremberg & Eichmann

By the time Nazi Germany surrendered unconditionally in May 1945, the victorious Allied nations had been committed officially, for more than two years, to hold defeated Nazi leaders accountable for their war-making aggression and related international crimes.  President Truman had, a few weeks earlier, recruited U.S. Supreme Court Justice Robert H. Jackson to head the U.S. effort and he had begun to organize his staff and plans.  The United Kingdom, the U.S.S.R., and France were commencing parallel efforts.  The Allies soon would begin to negotiate and plan together.  Their occupation armies captured Nazis and voluminous documentary evidence.  The Allies soon began to name Nazi perpetrators who were potential defendants in what would become, starting in November at Nuremberg, the world’s first international criminal trial.

Adolf Eichmann was not one of those names.  We know now through detailed evidence, especially from Israel’s 1961 prosecution and conviction of Eichmann, that he was a Nazi Schutzstaffel (SS) officer who played a pivotal role in the deportations and murders of Europe’s Jews.  Eichmann, as director from 1941 forward of the Reich Main Security Office’s Jewish Affairs section (IVb4), accomplished the deportation of over 1.5 million Jews from all over Europe to extermination camps and killing sites in Nazi-occupied lands to the east.

In Spring 1945, Eichmann was not well known, much less a target of high interest, to would-be Allied prosecutors.  In early June, for example, the War Crimes Office in the U.S. Army Judge Advocate General Corps circulated to Jackson’s staff an intelligence report, “Biographies of Certain Potential War Criminals.”  This document, more than thirty pages in length, described dozens of prominent, legally culpable Nazis—and it did not mention Eichmann.  The Office of Strategic Services, the U.S. intelligence agency that by then was working very closely with Jackson, also was highlighting potential defendants, but most were familiar names from wartime press reporting, and none was Eichmann.

Eichmann’s name, and early comprehension of his criminally culpable conduct, did begin to surface that summer.  In July, Jacob Robinson, director of the World Jewish Congress’s Institute of Jewish Affairs, a lawyer and an important adviser to Justice Jackson, wrote to him, concerned about lists, which Robinson had seen in newspapers, of prospective defendants.  Robinson expressed his “great disappointment not to find in these lists the name of a man who is probably more directly responsible for the destruction of the Jews than any single Nazi”:  Eichmann.  (Click here to see Robinson’s carbon copy of this letter.)

In early August 1945, the War Department in Washington sent to Jackson’s staff in London a message identifying Eichmann as the Nazi section leader with “primary responsibility for the extermination and transportation of Jews,” and then a dossier with detailed information.

But Eichmann was not known then to be an Allied prisoner or even suspected to be living.  In late August, the Allies thus named dozens of their prisoners who would be prosecuted.  In October, they were charged.  In November, their trial commenced at Nuremberg before the International Military Tribunal.  Eichmann was not one of the Nuremberg defendants.

At Nuremberg, in both the 1945-1946 international trial and in the twelve subsequent U.S. trials, the prosecutors presented considerable evidence of Nazi planning and implementation of what we today know as the Holocaust.  Much of that evidence, both documents and witnesses, named Adolf Eichmann and explained his role.  But witnesses—his former Nazi colleagues—also testified that he had committed suicide at the end of the War.

The world did not learn otherwise until May 23, 1960, when Israeli Prime Minister David Ben-Gurion made this brief announcement to the Knesset:

A short time ago, one of the greatest of Nazi war criminals, Adolf Eichmann, who was responsible, together with the Nazi leaders, for what they called the “Final solution of the Jewish question”—that is, the extermination of 6,000,000 Jews of Europe—was found by the Israel security services. Adolf Eichmann is already under arrest in Israel, and will shortly be placed on trial in Israel under terms of the law for the trial of Nazis and their collaborators.

(It soon became known, of course, that Israeli agents had “found” Eichmann in Argentina and transported him forcibly to Israel.)

Eichmann’s 1961 trial in Jerusalem, televised to the world, included significant evidence from the Nuremberg trial record.

Veterans of Nuremberg trials were involved at the Eichmann trial as witnesses and advisors, and others were present as observers and commentators.

Jacob Robinson, formerly Jackson’s Nuremberg advisor, was involved as an assistant prosecutor of Eichmann.

Adolph Eichmann was found guilty of crimes against the Jewish people, crimes against humanity, war crimes, and membership in a hostile organization.  He was sentenced to death.  In 1962, he was hanged.

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For those in New York City or inclined to visit, I strongly recommend seeing the powerful exhibition on Eichmann’s conduct, capture, and case, “Operation Finale,” that now is on display at the Museum of Jewish Heritage:

Operation Finale: The Capture & Trial of Adolf Eichmann

I also had the great privilege recently, in connection with the International March of the Living, to interview retired Israeli Supreme Court justice Gabriel Bach.  In 1961, Gabriel Bach was deputy prosecutor of Eichmann.  Today, Justice Bach is the last surviving Eichmann prosecutor—and a powerful speaker, and a great hero.  To watch the interview:

Prosecuting Eichmann: An Interview with Israeli Supreme Court Justice Gabriel Bach

Finally, on October 19th I will be lecturing at the Museum of Jewish Heritage in Manhattan on “From Nuremberg to Eichmann,” expanding on some of the information contained in this Jackson List post.  Please attend if you are interested.  For information and to order tickets:

From Nuremberg to Eichmann

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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: Remembering, Studying, and Living Up to Barnette

On June 14, 2018, people in the United States—many, and indeed most, people, I hope—will mark and celebrate the 75th anniversary of the Supreme Court’s decision in West Virginia State Board of Education v. Barnette.  In that landmark decision, the Court struck down as unconstitutional the State’s requirement that all public school teachers and students 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 made the children unlawfully absent, subjecting them to delinquency proceedings and their parents to criminal prosecution.

The Barnette decision was announced in Justice Robert H. Jackson’s opinion for Court.  He explained that the flag salute requirement violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although all of Justice Jackson’s Barnette opinion bears rereading, some particularly wise words to consider are his closing 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.

In the views of many, Barnette is a high point in U.S. Supreme Court history and constitutional law and one of Justice Jackson’s very finest judicial opinions.  His words in Barnette continue to ring, loudly and true, to people who think them through.

One example came from the Supreme Court itself in June 2013, Barnette’s 70th anniversary year and month.  In Agency for International Development v. Alliance for Open Society International, Inc., the Court struck down as unconstitutional the part of an international program to combat HIV/AIDS that required grant recipients to “pledge allegiance to the Government’s policy of eradicating prostitution”.

With regard to that government effort to compel a pledge, Chief Justice Roberts wrote for the Supreme Court that “we cannot improve upon what Justice Jackson wrote for the Court 70 years ago:  ‘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.’”

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Some links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • the published version of a 2006 roundtable discussion featuring the case-winning litigants, sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here and then download;
  • a Jackson List post from 2013, “Barnette at 70”—click here;
  • another 2013 Jackson List post, “Arguing Barnette, et al.”—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 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: Video of Jackson Center conference on Immigration, June 23, 2017

On June 23, 2017, the Robert H. Jackson Center in Jamestown, New York, hosted a conference, “How ‘Far Gone’ Are We Now?:  Immigration, Security & American Values, from Justice Jackson’s Time to Our Own.”

The conference title asked a timely question.  It incorporates a phrase from this concluding passage of Justice Jackson’s dissenting opinion in Shaughnessy, District Director of Immigration & Naturalization v. United States ex rel. Ignatz Mezei, a 1953 U.S. Supreme Court decision upholding as constitutional the broad statutory powers of the government to deport a non-citizen:

“Congress has ample power to determine whom we will admit to our shores and by what means it will effectuate its exclusion policy. The only limitation is that it may not do so by authorizing United States officers to take without due process of law the life, the liberty or the property of an alien who has come within our jurisdiction; and that means he must meet a fair hearing with fair notice of the charges.  It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone.”

The conference video now is posted on YouTube, in the following segments–

Three morning session lectures:

John Q. Barrett delivering the inaugural Alan Y. Cole Memorial Lecture, “Robert H. Jackson on Immigrants, Citizens, Power & Liberty”

Lucas Guttentag, Professor of the Practice of Law, Stanford Law School, and Distinguished Senior Fellow & Lecturer, Yale Law School, and former Senior Counselor to the Secretary, U.S. Department of Homeland Security, and founder and former director ACLU Immigrants’ Rights Project, lecturing on “Sweeping Power & Shallow Rights: A Historical Perspective on Immigration Regulation and Constitutional Protections”

Rick Su, Professor of Law, University at Buffalo School of Law, lecturing on “Sanctuary or Force Multiplier?: Local Involvement in Federal Immigration Enforcement”

The lunchtime Keynote lecture:

Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law & Director of the Center for Civil Rights, University of North Carolina School of Law, and former Director-Counsel & President of the NAACP Legal Defense and Educational Fund, Inc., lecturing on “Uncharted Territory: The Existential Threat to the American Republic”

Two afternoon session lectures:

Joyce White Vance, Distinguished Visiting Professor of Law, University of Alabama School of Law, and former United States Attorney, Northern District of Alabama (2009-2017), delivering a lecture, “The Role of the Prosecutor in Protecting Civil Rights & Keeping Communities Safe”

Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan, and former U.S. Department of Homeland Security Officer for Civil Rights and Civil Liberties, lecturing on “Civil Rights at the Border: National Security, Border Screening, & the Muslim Ban”

In addition, the entire morning session (welcoming remarks from Susan Moran Murphy, Jackson Center president & CEO; lectures by John Barrett, Lucas Guttentag, and Rick Su; audience-speaker Q&A; and me adjourning the session) is here:

And the entire afternoon session (introductions; lectures by Joyce White Vance and Margo Schlanger; audience-speaker Q&A; and concluding remarks) is here:

Please view these important, expert, challenging discussions on topics that matter to each of us, and please share this information and these links widely.

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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.

Iran-Contra Criminal Charges Pertaining to Iran and the Contras

On August 8th, former White House Counsel and former U.S. Ambassador C. Boyden Gray wrote, in a Wall Street Journal op-ed piece, that in the Iran-Contra criminal investigation, “no one was convicted or even indicted for any action pertaining to Iran or the Contras.”

This statement is incorrect, and on August 10th I sent the WSJ a letter spelling that out.

Because the Journal hasn’t published my letter, and because I’m pro-facts, I post it here:

Editor, The Wall Street Journal

1211 Avenue of the Americas

New York, NY  10036

To the Editor:

Former White House Counsel C. Boyden Gray has misremembered the facts of Iran-Contra, on which we each worked, sometimes as counterparts.

Mr. Gray wrote (“Mueller Can Avoid an Iran-Contra Repeat,” Aug. 8) that “no one was convicted or even indicted for any action pertaining to Iran or the Contras.”

In fact, a federal grand jury charged former National Security Adviser John Poindexter, his aide Lt. Col. Oliver North, and two others with multiple felonies pertaining to both Iran and the Contras.  Count One in that indictment charged that they had engaged in a conspiracy to defraud the United States in three respects: (1) by deceitfully supporting the Contra war in Nicaragua in defiance of congressional controls; (2) by using U.S. arms sales to Iran to raise funds for Poindexter and North, rather than the U.S. Government, to spend; and (3) by pursuing unauthorized operations in Iran that endangered U.S. efforts to rescue Americans held hostage in Lebanon.  Count Two charged that the defendants had stolen U.S. government property (Iran arms sales proceeds).  Count Three charged that they had committed wire fraud in their transmissions of those proceeds.

Although the trial judge upheld the legal validity of the first two charges (dismissing the third as duplicative), the prosecutor, Independent Counsel Lawrence Walsh, for whom I worked, ultimately agreed to dismiss them after Presidents Reagan and George H.W. Bush, whom Mr. Gray served as Counsel, would not declassify information that the judge had ruled the defendants were entitled to use in their defense.

Sincerely,

John Q. Barrett

Professor of Law, St. John’s University

Associate Counsel, Office of Independent Counsel Lawrence E. Walsh, 1988-1993

 

Lecture, “Justice Jackson and His Brethren”

 

Here’s video of the lecture that I gave at Chautauqua Institution on July 28, 2017.

This was the final lecture in Chautauqua’s week of lectures on the general theme, “The Supreme Court: At a Tipping Point?” Other lecturers during the week were Linda Greenhouse, Annette Gordon-Reed, Peter Onuf, Jeffrey Rosen, Akhil Reed Amar, Rev. Eugene Robinson, and Theodore B. Olson.

For the Chautauquan Daily’s lecture preview article, click here.

And here’s video of the my Q&A with audience members following the lecture:

 

 

Jackson List: Judge Jon O. Newman’s Jackson Lecture, Chautauqua Institution, August 16th

I am very pleased to report that the Honorable Jon O. Newman, United States Circuit Judge, U.S. Court of Appeals for the Second Circuit, will deliver Chautauqua Institution’s 13th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Wednesday, August 16, 2017, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Judge Newman is a giant of the U.S. judiciary.  In 1971, President Nixon appointed Jon Newman to serve as a U.S. District Judge in the District of Connecticut.  In 1979, President Carter elevated Judge Newman to the U.S. Court of Appeals, where he has served since then, including as Chief Judge from 1993-1997.  At the U.S. Supreme Court earlier this year, Judge Newman received for lifetime judicial achievement the very prestigious Devitt Award.

Judge Newman also had many accomplishments before his judicial career, including:  graduate of Princeton University and Yale Law School; a veteran of the U.S. Army Reserve; law clerk to Judge George Washington of the U.S. Court of Appeals for the D.C. Circuit; law clerk to Chief Justice Earl Warren at the Supreme Court; aide to Abraham Ribicoff as Governor of Connecticut, Secretary of Health, Education & Welfare, and U.S. Senator; attorney in private practice in Hartford; and U.S. Attorney for the District of Connecticut.

Judge Newman’s lecture title will be, “The Supreme Court—Then and Now.”

Chautauqua Institution is 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.)

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Robert H. Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term.  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, Bancroft PLLC 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;
  • 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 (click here for video);
  • 2015:  Laurence H. Tribe, Harvard University professor (click here for video); and
  • 2016:  Tracey L. Meares, Yale University professor (click here for video).

For further information on Judge Newman’s upcoming lecture, click here.

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Judge Newman’s Jackson Lecture will culminate, at Chautauqua Institution this summer, extensive, expert consideration of the U.S. Supreme Court.

During Chautauqua’s Week Five (July 24-28), the Amphitheater lecture theme will be “The Supreme Court: At a Tipping Point?”  The 10:45 a.m. lecturers will be:

  • July 24:  Linda Greenhouse;
  • July 25:  Annette Gordon-Reed;
  • July 26:  Jeffrey Rosen;
  • July 27:  Akhil Reed Amar; and
  • July 28:  Theodore B. Olson.

The afternoon programs that week will feature the following lecturers, focusing on judicial lives and biography:

  • July 24:  Linda Greenhouse, on Chief Justice Warren E. Burger;
  • July 25:  Annette Gordon-Reed & Peter Onuf, on Chief Justice John Marshall;
  • July 26:  Jeffrey Rosen, on Justice Louis D. Brandeis; and
  • July 28:  John Q. Barrett, on Justice Robert H. Jackson & His Brethren.

For further information on all of this programming, to buy tickets, etc., please visit Chautauqua Institution’s website (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.

Jackson List: Supreme Court “Opinion Dumping,” 1950 & Today

On Monday, June 5, 1950, the last day of its 1949-50 term, the Supreme Court of the United States announced its judgments and released written opinions in seventeen cases.  The Court then began its summer recess.  The public, beginning with the daily press, struggled to read and absorb such a quantity of Court decisions.

A week later, the Washington Post editorialized against what it called the Supreme Court’s end-of-term practice of “Judicial Dumping”:

Our courts have been notoriously backward in their public relations, and in none of them is this failing more conspicuous than in the Supreme Court of the United States.  Last week, for example, that high tribunal dumped 18 [sic] opinions into the lap of bewildered newspaper and radio reporters.  Some of these opinions were of great importance….  It was utterly impossible for the newsmen to read and digest so many opinions in so few hours, and if they could have done so most newspapers would have had great difficulty in giving adequate coverage to so large an output.

Such a heavy accumulation of cases usually occurs only at the end of the term.  But that is serious enough, for the justices have a habit of putting off until the last opinion day some of the most troublesome and important cases.  The result is that some momentous decisions go almost unnoticed by the public.  Perhaps it is of no concern to the court whether its output is properly communicated to the people.  Yet we do not see how any body in a democratic land could take such an attitude, and this seems to apply especially to the Supreme Court, which, lacking both purse and sword, is dependent upon the acceptance of its rulings by public opinion.

Even at the cost of some inconvenience to itself, we should think the court would abandon its dumping practice and regulate the flow of its opinions to the public more evenly.  It is difficult to see how any harm could be done by such a policy, and it would certainly facilitate understanding of the court and its opinions on the part of the public.

When the next Supreme Court term began in October 1950, the Post continued to make this argument.  Chalmers M. Roberts, a legendary Post reporter, privately surveyed his Supreme Court press corps colleagues and then reported their unanimous view that the Court should assist press and public understanding by “spreading the opinions over the entire week instead of dumping them all on Monday.”

The Supreme Court has, over time, to some degree, listened.  It now hands down decisions on multiple days of some weeks, especially toward the end of its term.  In the current month, for example, as this Court term headed to its end, the Justices announced decisions on six separate days, including three days last week.

But some Court work, like all human work, gets done against a final deadline, even if it is one that is self-imposed.  Each Court term will have a final “opinion day.”  And sometimes, such as today, it will be a Monday.

The Supreme Court today completed its scheduled work for the 2016-17 term.  It announced judgments and released opinions in three cases that had been argued in April.  It also vacated the lower court judgment in another case and sent it back for reconsideration in light of a major Court decision (Ziglar v. Abbasi—see below) that was announced last week.  The Court put two other cases, in which it had heard oral arguments last winter as an eight-justice Court, before Justice Gorsuch’s appointment, over for reargument next Fall.  And in two cases challenging President Trump’s “travel ban” executive order, the Court granted in part and denied in part the President’s request to stay lower court orders enjoining the executive order, and it ordered the parties to file briefs on a schedule that will permit the Court to hear oral arguments in the cases next October.

That is—today’s decisions are—a lot to digest.  As the justices prepare to relax, work on cases ahead, travel, and teach during their summer recess, the rest of us will work to catch up.  (For the decisions of the just-completed term, click here, and for orders, including some accompanied by opinions, click here.)

The Supreme Court’s latest decisions include many of legal significance and general public interest.  For students of Justice Robert H. Jackson’s career, one recent decision to note is Ziglar v. Abbasi (click here), where the Court, by a vote of 4-2, dismissed claims against federal officials who were accused of responsibility for the severe mistreatment of Middle Eastern men who were in the U.S. illegally at the time of the 9/11 attacks and were detained for immigration violations.  In his Ziglar v. Abbasi dissenting opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, quoted two of Justice Jackson’s most striking and enduring metaphors, and cautions:  that the Constitution should not be misinterpreted as a “suicide pact” (from Jackson’s dissenting opinion in Terminiello v. United States (1949)), and that mistakenly broad views of executive power under the Constitution can lie about “like a loaded weapon”…. (from Jackson’s dissent in Korematsu v. United States (1944)).

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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.