Tag Archives: Justice Jackson

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: 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

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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: Remembering, Studying, and Living Up to Barnette

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

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

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

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

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

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

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

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

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

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

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Some links—

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

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

Jackson List: Video of Jackson Center conference on Immigration, June 23, 2017

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

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

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

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

Three morning session lectures:

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

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

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

The lunchtime Keynote lecture:

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

Two afternoon session lectures:

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

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

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

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

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

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

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.

Jackson List: Lawful, Political, Deplorable Senatorial Behavior (1954)

This post, edited a little bit and enhanced with footnotes and photographs of John M. Harlan and the Supreme Court in 1955, now is on the Jackson List archive site in PDF file form.

Jackson List: Alma Soller McLay (1920-2017), Nuremberger

This post, including two December 1945 photographs of Alma Soller in Nuremberg, now is on the Jackson List archive site in PDF file form.

Jackson List: Judge Gorsuch’s Admiration for Justice Jackson’s Writing … and Justice White, Dubitante

 

This post, edited a little bit and enhanced with a couple of citation footnotes and a *great* 1946 photograph of Byron White as a U.S. Supreme Court law clerk, now is on the Jackson List archive site in PDF file form.

Jackson List: 125th Birthday

Tomorrow, February 13, 2017, will mark the quasquicentennial of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

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

These and many more posts are on the Jackson List archive site, which is word-searchable and, using quotation marks, phrase-searchable:  http://thejacksonlist.com/.

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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.