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

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

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

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

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

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

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

Shouldn’t we figure that out?

Why aren’t people asking these questions?

Jackson List: Voting for the Last Time (1940)

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

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

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

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

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

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

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

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

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

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

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

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

—————–

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

Election Eves:  A Memory and a Prediction

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

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

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

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

Jackson List: Justices & the World Series

For the Jackson List:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

—————–

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

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

For the Jackson List:

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

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

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

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

Dear Dad –                                          PHIL NEAL

                                                (for legibility’s sake)

             I have just talked to Phil Neal,

present head of the Bugle, and he is

interested in clerking for you.  The hitch is

that he goes before the Draft doctors on

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

heart too (had rheumatic fever last year),

it seems probable he will be rejected.

            His marks are of course tops.  He

works like a stevedore.  His political-social

views are “liberal.”  He has personal charm

and is easy to work with.  In short, I

think he is a find.

            He will, however, be unavailable until

around October 1, when he graduates.  If you

need someone before that, perhaps he is out.

But there is nobody any good up here who will

be through before October.

            I suggested that if he were turned

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

with you.  It might be nice if I asked

him to stay overnight at the house.  At

any rate, I told him I thought he would

probably hear from you about it, and I

suggest you write him a note at the Law

Review office.  – He’s a good man.

Wednesday                                          WEJ

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

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

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

*          *          *

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

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

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

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

*          *          *

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

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

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

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

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

*          *          *

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

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

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

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

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

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

img_3510-cropped

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

*          *          *

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

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

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

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

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

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.

2016070301-cropped

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.

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.

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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: 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.