Author Archives: jqb

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.

Jackson List: Judgments Days in Nuremberg (1946)

Greetings from Nuremberg, Germany, where I am honored to be participating in conference events and ceremonies commemorating the anniversary of the conclusion of the international Nuremberg trial.

Seventy years ago, on September 30, 1946, Justice Robert H. Jackson spent his final night here in Nuremberg, in what then was the United States occupation zone of what had been, before its unconditional surrender, Nazi Germany.

As United States Chief of Counsel since May 1945, Justice Jackson had negotiated with British, French and Soviet allies the creation of the International Military Tribunal (IMT), supervised the gathering and analysis of voluminous evidence, approved and brought criminal charges against twenty-four Nazi leaders and six Nazi organizations and, in November 1945, opened history’s first international prosecution for crimes against peace, war crimes and crimes against humanity.

During the next eight months, Justice Jackson worked in Nuremberg as a trial prosecutor and as an administrator of a large U.S. staff and a four-nation prosecution while also working throughout Europe as a leading occupation government official and U.S. diplomat.

Jackson’s active work in Nuremberg concluded when he delivered his closing argument to the IMT on July 26, 1946.  Five days later, he left Nuremberg temporarily, returning to the U.S. and Supreme Court work while part of his team remained in Nuremberg to present evidence against the indicted organizations and to sum up those cases, and then while the IMT judges deliberated and wrote their judgment.

Jackson landed back in Washington on August 2, 1946.  He remained there, living in his Virginia home and working at the Supreme Court, until September 18.  He then flew back to Europe, accompanied by some of his friends—Charles A. Horsky, Francis M. Shea, Robert G. Storey, and Father Edmund A. Walsh, S.J.—who had been senior members of his U.S. prosecution team during various pretrial and trial phases.  They were going back to Nuremberg to witness the IMT judgment, which was scheduled to be handed down on September 23.

After refueling stops in Goose Bay, Labrador, and in Iceland, Jackson and his delegation landed in Paris on September 20.  They learned then that the IMT had announced that its judgment would not be announced until September 30.

Justice Jackson, who had missed the previous Supreme Court term (a full year of Court work), was determined to be back on the bench in Washington when the new term began on October 7, 1946, the first Monday in October.  The IMT’s unexpected delay meant that Jackson would have almost no leeway in his travel schedule.

Jackson also, since leaving Nuremberg at the end of July, no longer had a requisitioned residence there—“his” house had passed to others.

So in late September 1946, Jackson stayed in Paris.  He worked on drafting his final report to President Truman.  He wrote and sent memoranda and cables, including back to the War Department about Nuremberg trial matters.  He also worked, it seems, on a major speech that he had agreed to deliver, long before he knew how squeezed his schedule would become, at the University of Buffalo in Buffalo, New York, on October 4.

Jackson flew from Paris to Nuremberg a few days later, but he was called back to Paris almost immediately by his friend and former U.S. Supreme Court colleague James F. Byrnes, who a year earlier had become U.S. Secretary of State.  They discussed many matters.  Some related to Germany and the Nuremberg trial.  Others concerned the Supreme Court.  One matter was Byrnes’s support for the idea of Jackson becoming U.S. Ambassador in London if, as some press reports then had it, Jackson wanted that job.  He made clear to Byrnes that he did not.

On one of their Paris afternoons together, Byrnes added Jackson to the U.S. delegation at the peace conference that was ongoing at the Quai D’Orsay.  Having experienced months of “simultaneous” (which really meant somewhat-close-to-simultaneous) four-language interpretation during the Nuremberg trial, Jackson reported that at the Paris conference it was “terribly dull to listen to interpretations into 3 other languages, 1 by 1 after [each] speaker finished.  Awful.”

On Saturday, September 28, 1946, Jackson and guests flew from Paris back to Nuremberg.  His weekend there was filled with work meetings and social activities.  Many of his travelling companions found extremely comfortable, indeed fancy, quarters.

Having lost his house, Jackson, along with his son and executive assistant Lieutenant William E. Jackson (U.S. Navy Reserve), his secretary Mrs. Elsie Douglas, and his nephew Private Harold J. Adams (U.S. Army), bunked in servants’ quarters on the top floor of a requisitioned German mansion.

Private Adams, serving in the U.S. Army of occupation, had been ordered to Nuremberg by Lieutenant General Lucius D. Clay, Deputy Military Governor in the Office of Military Government for Germany (U.S.) and thus “General” (assimilated rank) Robert Jackson’s superior officer.  Gen. Clay took this action at Jackson’s request.  He  wanted his nephew to see history.

On Monday, September 30, 1946, the IMT judges began to read their lengthy Judgment.  The IMT affirmed the validity, in international law, of each crime charged in the indictment.  That afternoon, the court returned its verdicts—some convictions, some acquittals—on the indicted organizations.  That night, Jackson hosted a dinner and then retired to his room under the eaves.

On Tuesday, October 1, 1946, the IMT delivered its verdicts on the twenty-two individual defendants.  Nineteen were found guilty and three were found not guilty.  Of the nineteen, seven were sentenced to terms of imprisonment and twelve were sentenced to death by hanging.

Immediately after the IMT adjourned for the last time, Justice Jackson issued a written statement.  He said that he was gratified that the Tribunal had sustained and applied the principle that aggressive war is a crime for which statesmen may individually be punished.  He said that he had not had time to study other aspects of the intricate opinion.  He expressed regret that the Tribunal had acquitted two defendants, Hjalmar Schacht and Franz von Papen, and that it had declined to declare the criminality of the German Army General Staff, admitting that “[o]ur argument for their conviction … seemed so convincing to all of us prosecutors” and saying that they would have to study the effect of those acquittals on further prosecutions of industrialists and military officers.

Jackson’s statement closed with a reflective, long view:

I personally regard the conviction or sentence of individuals as of secondary importance compared with the significance of the commitment by the four [Allied] nations to the position that wars of aggression are criminal and that persecution of conquered minorities on racial, religious or political grounds is likewise criminal.  These principles of law will influence future events long after the fate of particular individuals is forgotten.

At 5:30 p.m. that afternoon, Jackson left Nuremberg.  His plane made stops in Paris, the Azores and Stephenville, Newfoundland.  Before the next day, October 2, was done, he was back in Washington.

On October 3, Justice Jackson was back in his Supreme Court chambers, where he found “an awful pile of work that had accumulated in [his] absence.”

Jackson traveled from Washington to Buffalo and delivered his first post-Nuremberg speech there on October 4, 1946.

Three days later, he was present on the bench when the Supreme Court began its new term.

He never again left North America.

—————–

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: Wedding in Cold Spring Harbor (1944)

On this date in 1944, Ensign William Eldred Jackson (United States Navy Reserve), age 25, and Nancy-Dabney Roosevelt, age 21, married in Cold Spring Harbor, Long Island, New York.

The wedding, occurring on a Sunday night during wartime, was not a large affair.  The couple married in St. John’s Church, located near the Turkey Lane home of Nancy’s parents, Lieutenant Colonel Archibald B. Roosevelt (U.S. Army) and Grace Lockwood Roosevelt.  Lt. Col. Roosevelt had been in active military service, and seriously wounded, in the Pacific Theater.  That September, he somehow made it home, quite ill, only shortly before the wedding.

Cold Spring Harbor is a bit west of Oyster Bay, a town that was a childhood home of Archie, his siblings and his parents.  His father, Colonel (and also President of the United States) Theodore Roosevelt, had died in 1919, a few years before Nancy’s birth.  In 1944, her grandmother, former First Lady Edith Kermit Carow Roosevelt, age 83, was still living in her home, Sagamore Hill, and she was a beaming wedding guest.

So were Bill Jackson’s parents, Justice Robert H. Jackson and Irene Jackson.  Travelling north from Virginia, they attended the wedding and then the reception dinner that followed at the home of Archie and Grace.

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The Reverend Albert Lucas of St. Albans School in Washington, D.C., Bill’s alma mater, officiated at the wedding.  Nancy was attended by her sisters and others.  Bill’s best man was his father, Robert Jackson.  Reverend Lucas remembered, years later, what a “tribute”—I believe in both directions, son-to-father and father-to-son—“that conveyed to all present at the ceremony.”

Bill and Nancy were married for fifty-five years, until his death in 1999, and she died in 2010.  I was lucky to know each of them, and to benefit from their generous friendship.  I still do.  And of course I am thinking of them on this, their anniversary evening.

*          *          *

For a 2003 film clip of Nancy Jackson recalling her father-in-law, whom she adored (you’ll see, and the feeling was very mutual), 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.

“He’s Been Shot. HELP Him!”

I assume that when a police officer comes upon an injured, and especially a gravely injured, person, the officer typically calls for medical help (EMS) and then, while waiting for its arrival, provides whatever first aid and comfort the officer can.

This seems not to be happening in instances where the person has been injured by the police—and to be specific, where the person has been shot by the police.  This New York Times story chronicles a number of incidents, captured on publicly-released video, where recent police shootings have been followed by groups of officers standing around, just looking at the shot, often dying, person.

Many things might cause this inaction.  At the threshold, some situations and settings might be actively dangerous—a shot person is not automatically safe to approach or to touch.  Some officers, especially shooters, might also be in a kind of shock, frozen in the moment.  Some officers, not knowing much first aid, might feel unqualified to do anything.  Some shooting victims are, possibly, so obviously “gone” that nothing will aid them.  But some police inaction might be based in callousness, and in failures of trainers and commanders to encourage, direct and build human empathy.

We—society, and every police chief, and every individual officer—need to fix this.  Policing, properly done, is about law enforcement.  But it also is about caring for the community, and each person among us.  We recognize this in our constitutional law:  the Fourth Amendment prohibits unreasonable searches and seizures, including touching and handling persons, but it is objectively reasonable for police officers to engage in searches and seizures when they are trying to help an injured person.  (See Chief Justice Roberts’s 2006 opinion for the unanimous Supreme Court in Brigham City v. Stuart.)

Yes, it can be constitutionally reasonable for the police to seize a person by, for valid reasons, shooting him or her—that is the lawful use of deadly force.  But even after a lawful seizure of a person, the government may not arbitrarily cause suffering.  (Think of a convicted criminal lawfully incarcerated.  The government has seized him.  But it may not then torture him or, without reason, deny him basic attention, care and sustenance.)

I have never come upon a shooting victim.  But I have seen injuries, and I have been injured—as you have too.  As a bystander, I’ve tried to help—to perform modest first aid, to speak words of comfort, to stay at the side of the person in pain.  As a victim, I’ve received the first aid, the kind words, the held hand, and I’ve been grateful.  It seems a basic thing that makes our world decent.

Our cops—our community caretakers—should jump in to care for injured people as much, as often, as reflexively, as they jump into situations to enforce our laws.  I believe that this instinct is already in most cops as people, or it was.  It should be reignited, trained, encouraged, rewarded, applauded.

Every victim of violence is a person whom the police have, commendably, sworn to protect.

Jackson List: The Justice on Vacation, “Shop Closed” (Summer 1951)

On June 4, 1951, the Supreme Court of the United States announced its final decisions of the term and then began its summer recess.

The most notable decision that day was United States v. Dennis, et al.  The Court, by a 6-2 vote, affirmed the criminal convictions and prison sentences of eleven leaders of the Communist Party of the U.S.A., for conspiring to teach and advocate the overthrow of the U.S. government.

In a related matter, the Court also announced that day that, by the same vote, it would not review United States v. Sacher, et al., the cases of six attorneys who had represented Dennis defendants during their long, contentious 1949 trial in New York City.  Following the trial, the judge had convicted these attorneys of criminal contempt for misconduct during the trial and sentenced them to prison terms.

Justice Robert H. Jackson was one of the six justices who comprised the Dennis and Sacher majorities.

*          *          *

By order of the Chief Justice, Fred M. Vinson, acting pursuant to a federal law, Justice Jackson served as Circuit Justice for the Second Circuit (New York, Connecticut and Vermont).  This meant that during a Supreme Court recess, emergency matters from the Second Circuit would be Jackson’s initial responsibility.  In the Dennis case itself, for example, Jackson as Circuit Justice had the previous September—i.e., during the Court’s 1950 summer recess—granted defendants’ motion for continuation of their bail through the duration of their appeals.

During the Court “recess” weeks of June 1951, Justice Jackson remained mostly in Washington, working in his chambers.  In the Dennis and Sacher cases, the Supreme Court’s mandates—certified copies of its judgments and opinions—were scheduled to issue in late June.  Those actions would formally return the cases to the lower courts for proceedings consistent with the Supreme Court’s judgments.  For defendants in each group, that soon would lead, very predictably, to the trial judge directing them to report to federal prison to begin serving their sentences.

The Dennis and Sacher defendants sought to stay the Court’s issuance of its mandates.  The Dennis defendants, who had filed separately a petition asking the full Court to rehear the case and reconsider the lawfulness of their criminal convictions, sought to stay issuance of the Court’s mandate and continue each defendant’s bail until the Court decided whether to rehear the case.  The Sacher defendants, who also were seeking the full Court’s reconsideration of its decision not to review their convictions, sought to stay issuance of the mandate as well.

Because the full Court was in recess, these matters were presented to the Second Circuit Justice, Robert Jackson.  He heard oral arguments from counsel in his chambers on June 21, 1951.  The next day, he issued his decisions.  In Dennis, Jackson denied the stay request and continuation of bail.  In Sacher, he granted the stay.  Among his reasons:  to insure that the Dennis defendants would have the full assistance of counsel as their cases returned to the trial court and they surrendered for incarceration.

Then, in July 1951, Justice Jackson went on vacation.  He traveled by train from Washington to San Francisco, and from there north to the Bohemian Club’s summer encampment—the Bohemian Grove—in Monte Rio, California.

Jackson first visited the Bohemian Grove in summer 1948 as the guest of San Francisco lawyer Arthur Kent, a close friend and former government colleague.  The next year, the Club elected Jackson to honorary membership, and he returned to the Bohemian Grove every summer for the rest of his life.  The Grove offered two-plus weeks of relaxation, in high-powered and professionally diverse male company, in a setting of great natural beauty.  On July 20th, Jackson described some of this in a letter to his daughter, at her home in McLean, Virginia:

Dear Mary –

Just a note to let you know

I am in the land of the living and feel

fine.  Really never felt better – lots of fruit[,]

swimming, canoeing and walking.

The [Bohemian Grove] program I was to appear

on went over fine.  Quite by accident

I ran upon a yarn by H.L. Mencken

about judges and booze – a most

ably written and amusing story.

With a few side remarks I read it [to the group]

and it seemed to be most acceptable.

            Since I have already told you all that

can be told about this place I simply say

it seems more relaxing than ever before –

probably because I am better acquainted.

I sleep until 8:30 or 9 every morning

and once until 10.  College Presidents

are a dime a dozen [here] and Herbert

Hoover, mellow with age and experience[,]

has been very companionable.  A list

of those who are Who’s Who material

would fill a book.  The weather has

been perfect – hot days and cold

nights.

…Will send a few

post card views just to refresh your

memories on what it is like out

here.

More at some later time.  Love

and good wishes

Dad.

*          *          *

In the Dennis case, following Justice Jackson’s June 22, 1951, denial of the motion for a stay, the Supreme Court’s mandate issued and the defendants were ordered to surrender for incarceration on July 2nd.  Seven of the Communist Party officials did surrender but four (Gus Hall, Henry Winston, Robert Thompson, and Gilbert Green) did not—they jumped bail and became fugitives.

In Manhattan, U.S. District Court Judge Sylvester J. Ryan, to whom the Dennis case was newly assigned because the trial judge had just been appointed to the Court of Appeals, ordered the bail of the four men—$20,000 apiece—forfeited.  Judge Ryan then commenced an inquiry to determine whether any of the bail-providers had information that could lead to the fugitives.

The Dennis defendants had been beneficiaries of a bail bond fund collected and administered by an organization called the Civil Rights Congress.  The U.S. Attorney General, J. Howard McGrath, had designated this organization a Communist subversive front.

Judge Ryan ordered the bail fund trustees to appear in his court and answer questions.  On July 3rd, Frederick Vanderbilt Field, the fund’s secretary, appeared in court but refused, claiming a constitutional privilege against self-incrimination, to name the persons who had provided financial assets for the Congress to use as bail collateral.  On July 5th, Field reiterated this refusal and also refused to produce the bail fund’s books.  The next day, Judge Ryan, determining that Field’s privilege claim was unfound, judged him guilty of criminal contempt and sentenced him to ninety days in prison.

On July 9th, Judge Ryan ordered two more bail fund trustees to testify.  Dashiell Hammett, acclaimed writer of The Thin Man, The Maltese Falcon and many other works, was the fund’s chairman.  Dr. W. Alphaeus Hunton, formerly an English professor at Howard University and then a Council on African Affairs official, was another bail fund trustee.  Each refused to answer questions about the bail fund or to produce its records, claiming a constitutional privilege against self-incrimination.  Judge Ryan rejected these claims and, as with Field, convicted Hammett and Hunton of criminal contempt.  The Judge sentenced each to six months in prison.  They promptly were taken into custody by U.S. Marshals.

Field, Hammett and Hunton, through counsel, appealed their convictions and sought bail while their appeals were pending.  After Judge Ryan and then Court of Appeals judge Learned Hand denied bail, the lawyers filed emergency applications for bail at the Supreme Court.  When the lawyers learned from the Court Clerk’s office that the Second Circuit Justice, Jackson, was on vacation in California, the lawyers offered to travel to Jackson and make their arguments there.  Jackson, apprised of this offer, declined to make himself available.  The lawyers, informed of this, then told the Clerk’s office that they would take their applications to Justice Hugo L. Black (who had dissented in Dennis).  The Clerk’s office reported this to Jackson and he passed the information to Chief Justice Vinson, who happened also to be at the Bohemian Grove.

Chief Justice Vinson, not wanting to handle this matter himself, arranged for Justice Stanley Reed to act as Second Circuit Justice in Jackson’s absence and hear the bail applications of Field, Hammett and Hunton.  Justice Reed did so, convening a hearing in his hometown, Maysville, Kentucky, where he was vacationing.

Back at the Bohemian Grove, Justice Jackson on July 24th wrote to his son, daughter-in-law, young granddaughter and wife, together in Cold Spring Harbor, New York.  Jackson described some of how he had ducked, and how Justice Reed now came to be handling, these bail applications:

Dear Bill and Nancy + Miranda

+ Mother: –

….

            I have had a lot of bother with

the Communists trying to reach me

for bail and stays from [Judge] Ryan orders.

I flatly refused to be “available”

when they wanted to fly out here – with

a lot of publicity – to present application.

Then they wanted the cases sent to Black.

I said let them go to the C.J.  Well, he

is up at Joe Davies[’] [Bohemian Grove] camp and didn’t

want any hot stuff so he sent them

to Reed.  I haven’t heard what he

did.  But I suppose they are apt to

renew the effort to get at me

anytime.  Not if I can help it!

On July 25, 1951, Justice Reed denied the Field, Hammett and Hunton applications for bail pending appeal.  He found that Judge Ryan had legal authority to issue bench warrants for the Dennis fugitives, and to call witnesses to execute their judgments of imprisonment.  This was especially true of the bail fund trustees, who by providing bail had become part of the court control process that was responsible for the defendants’ required appearances.  Justice Reed also affirmed that Judge Ryan had legal power to protect court work from obstruction by refusals to answer inquiries, including by holding persons in criminal contempt.  And with regard to the bail fund records, Justice Reed held that the applicants had no constitutional privilege to withhold them, because the records were Civil Rights Congress property that they held as trustees, not their personal records.  Justice Reed held that the refusals to provide the records had been contemptuous, and he affirmed the denials of bail pending appeal.

*          *          *

Justice Jackson continued to vacation, giving some thought to Dennis case-related matters but not handling them.

On July 26th, for example, Jackson, probably unaware of Justice Reed’s decision the previous day, wrote again to his daughter:

Dear Mariska:

            …

Well, it was true that I was being

heckled by all sorts of things from the office.

But I told the Clerk’s office to lay off, that

I am simply not available out here and

someone else could look after the stuff,

that my shop is closed until after Labor Day.

They then tried to switch some of my stuff to

the C.J. but he sidestepped and let it

fall on Reed.  Anyway I’m out from under.

            …

            Am getting a daily swim and sun

bath, walk more miles each day than in

a month at home, sleep 9 hours a night[,]

eat like a horse and am lazy as hell.

Really have not felt better in God knows when.

….   It might be a good thing for you

to change scene a little while….  You seem

to be about the only one in the family who

does not get a vacation.

            Anyway love and good wishes.

                                    Daddy.

A few days later, Justice Jackson, still at the Bohemian Grove, wrote to his colleague and close friend, Justice Felix Frankfurter.  He was vacationing with his wife in Charlemont, Massachusetts.  Jackson’s letter included comments on the “Communist” cases:

Dear Felix :

            We have had [a] wonderful time in this

unique camp.  Soon have to give it

up and go back to the job.  But

anyway I shall do so greatly

refreshed.  I have not been reading the

Dennis record I assure you!  But I

continued their bail (the attys [Sacher, et al.]) so

another look could be taken at it.  I

suppose the Clerk sent you copy of my [June 22nd]

memo on it.  I do not know what, if

anything[,] we should, or can[,] do about

it at this stage.  I will be interested

in your conclusions when all considerations

have been canvassed.

            My best to Marion and

                        As ever

                                    Bob

*          *          *

Justice Jackson remained in northern California through most of August 1951.  His wife joined him there and they traveled around, visiting friends including Jackson’s former law clerk Phil Neal, then a professor at Stanford Law School.  (While at Stanford, Jackson interviewed Neal’s top student, William Rehnquist, for what became his clerkship with Jackson.)  On August 23rd, in San Francisco, Jackson delivered the keynote lecture at the California State Bar Association’s annual convention.

On August 28th, Justice Jackson returned to work in his Supreme Court chambers, preparing for the term that would begin in October.

On October 30th, the U.S. Court of Appeals for the Second Circuit affirmed Judge Ryan’s criminal contempt judgments against Field, Hammett and Hunton.

They sought Supreme Court review, without success—the Court denied their petitions on December 3rd.  Justice Black and Justice William O. Douglas, the Dennis dissenters, noted that they were “of the opinion certiorari should be granted.”

For his crime, Field served two months in prison.

Hammett, receiving credit for good behavior in prison, was incarcerated for 155 days, first in New York City and then in Kentucky.

Hunton also received “good time” credit and served slightly less than his six month sentence.

*          *          *

Some links—

  • Justice Jackson’s September 25, 1950, in chambers opinion, Williamson, et al. v. United States (ordering bail pending appeal for Dennis defendants) – click here (pp. 40-47);
  • United States v. Dennis, et al. (U.S. June 4, 1951), including Jackson’s concurring opinion – click here;
  • Jackson’s June 22, 1951, in chambers opinion, Sacher, et al. v. United Statesclick here (pp. 55-56);
  • Jackson’s June 22, 1951, in chambers opinion, Dennis, et al. v. United Statesclick here (p. 57);
  • Justice Reed’s July 25, 1951, in chambers opinion, Field et al. v. United Statesclick here (pp. 58-66); and
  • A recent essay by Yale Law School professor Stephen L. Carter, Why I Support Dissent: My Great-Uncle Who Wouldn’t Name Names, about W. Alphaeus Hunton – 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: New Month, Quiet; Full Court, Ready (August 1941)

This post, enhanced with an image of Justice Jackson’s Aug. 1941 letter to Justice Douglas, and with some footnotes, now is on the Jackson List archive site in PDF file form.

Remanded … NOT to Judge Randa

From 2012 until 2014, Billy Robinson, Jr., was part of a criminal conspiracy that bought heroin in Chicago, transported it north into Wisconsin, and sold it in Milwaukee.  The conspirators ultimately were arrested and, in time, Robinson pleaded guilty in federal court to two charges of traveling in interstate commerce to facilitate heroin distribution.

Robinson’s case was assigned to the Honorable Rudolph T. Randa, then a judge in active service on the United States District Court for the Eastern District of Wisconsin. (For his biography, click here.)  Judge Randa accepted Robinson’s guilty plea and sentenced him to 84 months’ imprisonment.

The legal problem in the case arose with Judge Randa’s comments at Robinson’s sentencing hearing.  Before imposing the sentence, Judge Randa offered various remarks on urban decay; how Robinson’s Milwaukee neighborhood had changed from one of safety in the early 1960s, when Randa knew it as a college student, to an unsafe neighborhood today; how Milwaukee riots in 1967 resembled recent Baltimore protests against police brutality; how 1967 anti-Vietnam War protests in Milwaukee had impeded Randa’s deployment to military service; how the “real problem” is that Robinson has five children by four different mothers; and so on.

Robinson appealed the legality of his sentence.  He argued that Judge Randa’s comments make it impossible to determine whether he sentenced Robinson based on the relevant criteria specified in federal law.

Last week, a panel of the U.S. Court of Appeals for the Seventh Circuit agreed with Robinson.  Chief Judge Diane P. Wood, on behalf of a three-judge panel, wrote that Judge Randa’s “comments during the sentencing strayed so far from the record that [the court of appeals] cannot trace the (legitimate) reasons for Robinson’s sentence….”  (For the whole opinion, forceful in its brevity and understated tone, click here.  The opinion does not, alas, reproduce the full transcript of Judge Randa’s comments before he sentenced Robinson.)

To correct Judge Randa’s error, the Court of Appeals vacated Robinson’s sentence and sent the case back for resentencing.

And, wrote Chief Judge Wood in her opinion’s final sentence, “Circuit Rule 36 shall apply on remand.”

That cryptic statement was an act of judicial kindness to Judge Randa.  Rule 36 (click here) empowers the Court of Appeals, when remanding a matter to a trial court, to reassign it to a new judge.  Chief Judge Wood’s final sentence, which could well have used Judge Randa’s name or at least explained exactly what was being ordered, means that Robinson’s case must be reassigned from Judge Randa to another judge, and not returned to Judge Randa, for resentencing.

As the Court of Appeals surely knows, Judge Randa recently took senior status (semi-retirement).  As part of that move, it seems, at least according to press from last winter (e.g., click here), that he is electing not to hear new criminal matters.

But Robinson’s case is, for Judge Randa, old business.  If the Court of Appeals had not ordered that Rule 36 would apply, the case would have come back to him.  Now, no matter his preference, it cannot.

Jackson List: Tracey Meares’s July 11th Jackson Lecture at Chautauqua Institution

This post, with links to lecture video, now is on the Jackson List archive site in PDF file form.

 

RIP, David Margolis

Margolis

“Career federal prosecutor,” a phrase that appears in many discussions of crime, justice and law enforcement issues, is a hefty credential.  It refers to someone who was hired by the United States Department of Justice as a young or young-ish lawyer, who then, over many years, worked and was promoted up the line, assigned to and in time handling numerous, increasingly complicated, often controversial, investigations, trials, appeals, and other federal criminal law matters.

Career federal prosecutors are distinguished—descriptively, if in fact not much in their skills, honesty and dedication—from DOJ political appointees, who are appointed and selected by presidential election winners and their nominees, and who often have political party identities and stay in office only as long as their party’s president holds office.  (And “career” prosecutors are also distinguished from non-political appointees who serve as prosecutors for a while but then move on to other employment.)

David Margolis, who just died at age 76, was the quintessential career federal prosecutor.  He worked in the Department of Justice for more than 50 years.  He saw it all and did it all.  He worked closely with and was revered by hundreds, maybe thousands, of DOJ colleagues (I was once one) and others across law enforcement and other government agencies.  He worked well with political appointees from both parties.  They valued his law-smarts, his life-knowledge, and his justice-wisdom; his guidance and criticisms; his guff and his praise; his toughness and courage.  He helped all of them to stand up and perform their responsibilities, as he took the load, and sometimes the heat, of performing his own.

Margolis stories and lessons are and will be, and should be, many.  A personal one is his “death” (heart stoppage) twenty years ago in his DOJ office, and then the miracle of his fall to the floor restarting his heart—Jim McGee & Brian Duffy described that, and a lot of David’s work, in their 1996 book Main Justice.

More of David is captured in this 2011 profile in the Brown University (his alma mater) alumni magazine, and in this Washington Post profile one year ago.

And here are the statements issued today, at this sad moment, by Attorney General Lynch and Deputy Attorney General Yates.

David Margolis, a great guy in addition to being a skilled lawyer, handled big public responsibilities. He worked forward, from matter to matter, giving each his best, usually doing excellent work, maybe sometimes screwing up, staying honest and apolitical, and showing up the next day to give Justice everything he had.

I hope that public service, and especially federal prosecution, continues to see his likes.

Jackson List: Supreme Court Appointments (1941)

At about this time of day on July 3, 1941, seventy-five years ago, Harlan Fiske Stone became the Chief Justice of the United States.

Three weeks earlier, on June 12th, President Franklin D. Roosevelt had nominated Stone, a former Attorney General of the U.S. and an Associate Justice since his 1925 appointment to the Court (by President Calvin Coolidge and the U.S. Senate), to succeed retiring Chief Justice Charles Evans Hughes.

The Senate confirmed Stone’s nomination on Friday, June 27, 1941.

President Roosevelt thereafter signed Chief Justice Stone’s judicial commission.

On July 3rd, Justice Stone was vacationing with his wife in Rocky Mountain National Park in Estes, Park, Colorado. At about 1500 local time, in a log cabin in the Park, its Commissioner, Wayne Hackett, administered first the constitutional oath of allegiance and then the judicial oath to new Chief Justice Stone.

 

The appointment of Chief Justice Stone was one piece of President Roosevelt’s three Supreme Court appointments during summer 1941. On June 12th, in addition to nominating Stone to succeed Hughes, the President nominated Senator James F. Byrnes (D.-SC) to succeed Justice James C. McReynolds, who had retired four months earlier, and Attorney General Robert H. Jackson to succeed Stone as associate justice.

The Senate had confirmed Senator Byrnes that same day, and he had been commissioned/become Justice Byrnes on June 25th.

On July 3rd, Attorney General Jackson’s appointment was still pending—he would not be confirmed by the Senate and commissioned as a Justice until July 11th.

On this eve of two hundred and forty years since the United States declared their and its independence, I hope that this history is occasion to remember and admire excellence in individuals who have served, and in the performance of institutions, in U.S. national government.

And from the Jackson List archive site, here is an earlier Fourth of July-related post:  An Impending Supreme Court Justice’s Independence Day Speech (1941) (click here).

Happy Fourth!

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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.