Tag Archives: Jackson List

Jackson List:  Nine Votes, Nine Present: The Unanimity of Brown v. Board of Education (1954)

For the Jackson List:

On May 17, 1954, sixty-four years ago today, the Supreme Court of the United States decided Brown v. Board of Education and its companion cases.  The Court held that government segregation by race of school children was, henceforth, barred by the U.S. Constitution.  The Court declared that state government school segregation was barred by the Fourteenth Amendment’s Equal Protection Clause, and that federal government school segregation was barred by the Fifth Amendment’s Due Process Clause.

During the Court’s public session on that Monday, Chief Justice Earl Warren announced that his opinions for the Court in the Segregation Cases were unanimous—all eight Associate Justices had voted to join him.

Chief Justice Warren announced those unanimous decisions in the company of all of his colleagues—a full Court of nine Justices filled the bench.

Each of those components—nine votes for Warren’s opinions for the Court, and nine Justices present as the decisions were announced—came together late, each thanks to the decision and effort of, in each instance, one justice who could be called a late joiner.

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Justice Stanley Reed was the justice who made the Court’s decisions unanimous.  In 1952, after the Segregation Cases were first argued at the Court, Reed had voted in the Justices’ conference to adhere to the segregation-permitting “separate but equal” doctrine of Plessy v. Ferguson (1896).  He stuck to those views in 1953 and into 1954.  He drafted what could have become an opinion dissenting from a Court decision declaring school segregation to be unconstitutional.

But in Spring 1954, Justice Reed decided not to use that draft, and instead to vote as he did.

Reed’s final deciding began on Friday, May 7, when Chief Justice Warren circulated typed draft segregation case opinions for his colleagues to review.

The next day, Warren met with Reed, and also with other Justices.  Contemporaneous notes show that Reed, having read the drafts, no longer was an adamant vote to uphold the constitutionality of school segregation.

Over the next days, Warren continued to converse with his colleagues about the cases.  By Wednesday, May 12, the Chief Justice knew, and he began to tell various Justices, that the Court would be unanimous.

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Justice Robert H. Jackson was the justice whose presence made the Court physically complete when Chief Justice Warren announced on May 17 the unconstitutionality of school segregation.

In late March 1954, Justice Jackson had suffered a major heart attack and almost died.  Thereafter, he had been convalescing at Doctor’s Hospital in downtown Washington and absent from the Court.

On Saturday, May 8, Warren visited Jackson twice at the hospital, in the morning to deliver first draft opinions, and in the afternoon to discuss them.  In the second meeting, Jackson voiced his enthusiasm for the drafts and suggested some edits and inserts—a couple of which the Chief Justice accepted.

On Monday, May 10, Justice Felix Frankfurter visited Jackson at the hospital.  Frankfurter found that Jackson was expecting to be released from the hospital in a week or less.

The next day, Jackson, accompanied by a nurse, made his first foray out of the hospital—they went to lunch at a nearby French restaurant.  (1954 cardiology!)

On Thursday, May 13, Jackson wrote to Justice Harold Burton.  Jackson thanked Burton for the plant that he had brought on a recent visit to Jackson in his hospital room.  Jackson also reported that he expected to be released from the hospital on Sunday, May 16, and that he expected to begin coming to the Court a few days after that for short conference and decision announcement days.

On the afternoon of May 13, after Jackson had sent his note to Burton, Chief Justice Warren again visited Jackson at the hospital.  Warren showed Jackson printed opinions in the Segregation Cases, demonstrating that the decisions were ready to be announced on the Court’s next decision day—Monday, May 17—and apparently telling Jackson of the Court’s unanimity.

It seems that Jackson told Warren then that Jackson could and would be present on the bench for the announcement.  It mattered to Jackson, and also to the Chief Justice, that the full Court be physically, visibly present in its moment of unanimous decision.

On Friday, May 14, the proposed opinions were tweaked, reprinted, and recirculated.

On Saturday morning, May 15, Justice Frankfurter wrote a note to Chief Justice Warren.  Frankfurter, indicating his understanding that Jackson now could join the Court on the bench, urged the Chief to announce the decisions on May 17:

Dear Chief:

An opinion in a touchy and explosive litigation, once it has been agreed to by the Court, is like a soufflé—it should be served at once after it has reached completion.  And so I venture to urge that no room be left for contingencies—one can never tell—nor for the real danger of leakage, since walls are supposed to have ears.

I am assuming, of course, that all are in and that Bob can be here Monday!  Yrs

                        FF

Later that morning, eight Justices met in conference at the Court.  Jackson was still absent.  Although hospitalized, he actually was, during the hours when his colleagues were conferencing, out with his nurse and doctor for a second French restaurant lunch.

In the Saturday, May 15 conference, the Justices discussed the Segregation Cases and agreed that the unanimous decisions would be announced two days hence.

And they were, with all Justices present.

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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: Firing a Cabinet Officer Face-to-Face (1945)

In early 1940, President Franklin D. Roosevelt promoted Robert H. Jackson, then the Solicitor General of the United States, to serve as U.S. Attorney General, a member of the President’s Cabinet.  President Roosevelt then appointed former U.S. circuit court judge Francis Biddle to succeed Jackson as Solicitor General.

Eighteen months later, Roosevelt appointed Jackson to serve on the U.S. Supreme Court.  At that time, the President, at Jackson’s urging, promoted Biddle to succeed Jackson as Attorney General.

Attorney General Biddle served in Roosevelt’s Cabinet for the next four years—for all of the remainder of his presidency, and for nearly the entire period of U.S. involvement in World War II.

On April 12, 1945, President Roosevelt died suddenly.  Harry S. Truman became the 33rd president of the U.S.  Within two weeks, the new president recruited Justice Jackson to serve as U.S. chief of counsel for the prosecution of Nazi war criminals—the appointment that became Jackson’s position as U.S. chief prosecutor at Nuremberg.

President Truman also decided to appoint his own Cabinet officers.  In the case of Attorney General Biddle, however, Truman chose not to communicate his wishes directly.  The President had his press secretary, Stephen Early, telephone Biddle on May 16, 1945, to request his resignation.

Attorney General Biddle did not appreciate the President’s effort to fire him by emissary.  So after speaking to Early, Biddle called the White House and requested a meeting with President Truman.

They met later that morning.  As the story soon emerged in the press, Biddle told Truman that he had, immediately after Roosevelt’s death, submitted his letter of resignation for the President’s acceptance if that was his preference.  Biddle added that he quite appreciated that a president would want to have his own friends, people with whom the president was comfortable—and Biddle had reason to think that this was not Truman’s view of him—in his Cabinet.

“But,” Biddle added, “the relation between the President and his Cabinet is such that if you want to accept my resignation, it seems to me that you should tell me so yourself, not detail it to a secretary.”

President Truman, reportedly embarrassed, agreed.  He told Biddle, to his face, that he was accepting his resignation.

According to Biddle’s later memoir, the President “looked relieved; and I got up, walked over to him, and touched his shoulder.  ‘You see,’ I said, ‘it’s not so hard.’”

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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: Birthday Reading (1938)

Today marks the 126th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

It seems that on many a February 13, Robert Jackson did nothing special, and nothing special happened to him.

Jackson did have an unusual experience on this date in 1938—eighty years ago today.  He then was Assistant Attorney General of the United States, heading the Antitrust Division.  He also had been nominated by President Franklin D. Roosevelt to become the Solicitor General of the United States, succeeding Stanley Reed who had been appointed to the U.S. Supreme Court.  Jackson’s Senate confirmation hearing had begun in late January, and on February 13th he was in the midst of testifying, ultimately over three days, in a hearing that was thorough, very substantive, and sometimes contentious.  (To boil it down, some Senators were concerned that Jackson was a radical threat to American constitutional law and capitalist freedom and, related, that he was rising to become a leading force in the Democratic Party and, perhaps, presidential material in 1940, when it was expected that F.D.R. would not seek a third term.)  Jackson also had, in the previous week, been part of arguing before the Supreme Court in defense of the constitutionality of the Public Utility Holding Company Act, a major New Deal law.

On Sunday, February 13, 1938, his 46th birthday, Robert Jackson was the subject of a New York Times Sunday Magazine profile article, “Jackson Sets Forth His Political Philosophy.”  The article is online here, readable in full text by Times subscribers (but, alas, behind a paywall for non-subscribers).

The writer, Felix J. Belair, Jr., was The Times’s chief White House correspondent.  Belair seems to have interviewed Jackson for the article—it contains extensive quotations from him, plus two photographs.

I regard the article as strong personal profile journalism.  It is distinctly pro-Jackson, published at a moment when he was a well-publicized, controversial nominee in the middle of a Senate confirmation battle.  It also is an article that contains some of what we call political spin, and some dubious stories.  The article reports:

  • Jackson has no law degree;
  • He has many friends but few intimates;
  • He once made Justice James C. McReynolds, not generally a jovial figure on the Supreme Court bench, laugh during an oral argument;
  • Jackson defends FDR as working to make the private enterprise system work;
  • Jackson believes that people will not accept waves of unemployment; they must be fed or they will turn to a new political system;
  • His 1934-35 work at the Treasury Department, including his study of wealth concentration, was a basis for the 1935 tax reform law;
  • He is not opposed to productive bigness in companies, just to holding companies that are put together for the purpose of speculating in corporate securities;
  • He believes the U.S. needs a high wage industrial economy;
  • He thinks about the future—one quotation looks ahead to “1960” (when Jackson would have turned 68, but which he did not live to see—he died in 1954);
  • He testified in defense of FDR’s 1937 “Court-packing” proposal;
  • His record in major constitutional arguments before the Supreme Court is 4-4;
  • He is a father, a horseman, and a businessman;
  • He attended Albany Law School but did not receive a degree.  (This is true, but Belair did not report that this was only because the school regarded Jackson, age 20 when he completed all requirements, as too young to receive a degree.  The article also incorrectly states that Jackson did two years of law school course work in one year—a myth that follows him still.  And the article does not mention that in addition to attending Albany Law School, Jackson trained for the bar by apprenticing for two years in a law office.);
  • Jackson’s law practice started in (conservative) Jamestown, New York, where he defended radicals charged with crimes growing out of a street railway strike and, surprisingly, won;
  • He subsequently became counsel to businesses (including in Buffalo, New York, and elsewhere, which Belair did not mention);
  • Jackson loves horses:  they were central to his farm boyhood in Spring Creek; he owns a horse farm in Jamestown; he lives with his wife Irene, daughter Mary, and horses on a large property in Maryland;
  • He works late and rides early, often with Mary, sometimes trying out on her, or on his horse (more amenable?), speeches that he is preparing;
  • He and Irene also have a son, William (then a Yale College freshman).  (Belair reported that Jackson hoped Bill would become a lawyer, but in fact, at least by the time Bill was finishing college, Jackson was open to Bill pursuing whatever career path he wished—and he did then go to law school and became a very accomplished lawyer.);
  • Jackson likes to talk about his ancestors, including his great-grandfather Elijah Jackson, the first white settler of Spring Creek;
  • His middle name, Houghwout, is a family name, from ancestors who were early Dutch settlers New Amsterdam;
  • Jackson’s family politics:  Andrew Jackson Democrats;
  • He never sought political office.  (That is largely true, unless one counts, unreported here, his election in young adulthood to country political organization office.);
  • He was appointed corporation counsel in Jamestown by a Republican mayor (which is true—Mayor Sam Carlson was a smart, liberal Republican);
  • Jackson came to Washington at the personal request of FDR.  (This might be an exaggeration of Roosevelt’s personal role in Jackson’s recruitment to the New Deal.);
  • Jackson offers blunt criticism of the bar (the legal profession), including for its conservatism and opposition to government reform;
  • He has critics and enemies but also many friends and admirers;
  • He has been mentioned in the past for numerous offices, including the Supreme Court, the U.S. Senate, and the Governorship of New York;
  • He has no idea what future will bring—maybe just a return to practicing law in Jamestown.

I assume that Jackson, on that Sunday morning, got a copy of The Times and read Belair’s profile piece.  I bet that Jackson mostly liked it.  I bet more that he didn’t spend a lot of time on it, and that if the weather was good enough he spent more time that day on horseback.

For additional Jackson Birthday reading, here are some previous Jackson Birthday-related posts:

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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: Happy Holidays!

Thank you all, Jackson List newcomers this year and longtime readers.  I truly appreciate your interest, your “forwards,” your recruitments of new subscribers, and your comments.

For your reading in this season, here are links to some previous holiday season posts:

  • “Heartfelt Words, Good Will & Wishes True (1913) (click here)
  • “Christmas Cards from Nuremberg (November 1945)” (click here)
  • “Lighting the First Candle:  Holocaust Film and Chanukah at Nuremberg, 1945” (click here)
  • “Holiday Note, Chief to Staff (December 1945)” (click here)
  • “Jackson in the Holiday Season” (click here)
  • “Christmas Celebration, Nuremberg, 1945” (click here)
  • “Jackson on Holiday in Athens, December 22, 1945” (click here)
  • “Supreme Court at Christmastime (1951)” (click here)

Thank you again for your interest, and very best wishes for the holidays and 2018.

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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: Time for a New U.S. Secretary of State (1944)

In late November 1944, United States Secretary of State Cordell Hull, nearly twelve years in office, tendered his resignation to President Franklin D. Roosevelt.  Secretary Hull, age 73, did not wish to leave office before World War II was won, but the reality of his recurring, worsening problems with pulmonary sarcoidosis and strong advice from his doctors dictated his decision.

On Sunday, November 26, President Roosevelt visited Secretary Hull at Bethesda Naval Hospital, where he had been receiving treatment for more than a month, for a long conversation.

The following day, the President held a news conference to announce Hull’s resignation.  The White House then released the texts of the letters of resignation and reluctant acceptance that Hull and the President had exchanged.

Later that day, the President nominated the Under Secretary of State, Edward R. Stettinius, Jr., age 44, who had been Acting Secretary in Hull’s absence, to succeed him.

The Senate Foreign Relations Committee unanimously and favorably reported Stettinius’s nomination to the full Senate on November 29.

The next day, the Senate confirmed Stettinius by roll call vote, 67 to 1.  Notified of his confirmation, Stettinius travelled promptly to Bethesda to pay his respects to Secretary Hull.

Secretary Stettinius signed his commission and took his oath of office on Friday, December 1, 1944.  The ceremony occurred in the Office of the Secretary of State, in the State, War, and Navy Building (today the Eisenhower Executive Office Building) next to the White House.

At Stettinius’s request, U.S. Supreme Court Justice Robert H. Jackson administered the oath.

At the conclusion of the oath, after Stettinius said “I do,” Jackson asked “So help you God?,” prompting Stettinius to respond “So help me God.”

Secretary Hull was of course unable to attend the ceremony.  It was attended by other senior officials, including General George C. Marshall, Jr., the Chief of Staff of the U.S. Army, and Senator Harry F. Byrd (D.-VA).  Stettinius’s wife and children attended, as did Jackson’s wife Irene.

The ceremony was well-lit and photographed by still and newsreel photographers.  For newsreel film of the occasion, including Justice Jackson administering the oath and then he and Secretary Stettinius signing the commission, click here:

http://www.criticalpast.com/video/65675037150_Edward-R-Stettinius_Secretory-of-States_swear-in_Justice-Jackson_General-George-C-Marshall

*          *          *

Coincidentally, December 1, 1944, was also the date on which Alfred A. Knopf published Harvard Law School professor Sheldon Glueck’s book War Criminals: Their Prosecution & Punishment (jacket price $3.00).

In the months ahead, Secretary Stettinius and Justice Jackson each worked on the challenges of prosecuting war criminals.  Indeed, Professor Glueck became one of Jackson’s consultants in his work as U.S. chief prosecutor at Nuremberg of Nazi war criminals.

The enormity of that undertaking might have been present, at least elliptically, when Stettinius stated to the cameras on December 1, 1944, that building world peace following the war would “need active participation and support of all….”

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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: A Doctor’s Thanksgiving Wisdom (1953)

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

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

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

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

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

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

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

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

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

Jackson List: Nuremberg & Eichmann

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Operation Finale: The Capture & Trial of Adolf Eichmann

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

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

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

From Nuremberg to Eichmann

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

Jackson List: Remembering, Studying, and Living Up to Barnette

On June 14, 2018, people in the United States—many, and indeed most, people, I hope—will mark and celebrate the 75th anniversary of the Supreme Court’s decision in West Virginia State Board of Education v. Barnette.  In that landmark decision, the Court struck down as unconstitutional the State’s requirement that all public school teachers and students participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

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

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

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

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

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

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

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

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

With regard to that government effort to compel a pledge, Chief Justice Roberts wrote for the Supreme Court that “we cannot improve upon what Justice Jackson wrote for the Court 70 years ago:  ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.’”

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Some links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • the published version of a 2006 roundtable discussion featuring the case-winning litigants, sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here and then download;
  • a Jackson List post from 2013, “Barnette at 70”—click here;
  • another 2013 Jackson List post, “Arguing Barnette, et al.”—click here; and
  • a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

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

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

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

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

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

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

Chautauqua Institution is a special venue of arts, education, and recreation in western New York State.  Chautauqua was a very significant part of Robert H. Jackson’s life, his broad and self-directed education, his public speaking training and experiences, and his thinking.  (For an earlier Jackson List post on Chautauqua Institution, click here.)

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

  • 2005:  Geoffrey R. Stone, University of Chicago professor;
  • 2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
  • 2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
  • 2008:  Jeffrey Toobin, staff writer at The New Yorker and CNN senior legal analyst;
  • 2009:  Paul D. Clement, Bancroft PLLC partner and former Solicitor General of the United States;
  • 2010:  Jeff Shesol, historian, communications strategist, and former White House speechwriter;
  • 2011:  Dahlia Lithwick, senior editor at Slate;
  • 2012:  Pamela Karlan, Stanford University professor;
  • 2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
  • 2014:  Akhil Reed Amar, Yale University professor (click here for video);
  • 2015:  Laurence H. Tribe, Harvard University professor (click here for video); and
  • 2016:  Tracey L. Meares, Yale University professor (click here for video).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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