Tag Archives: Supreme Court

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.

*          *          *

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.

*          *          *

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: 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.

President Reagan Against Political Gerrymandering

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

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

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

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

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

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

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

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

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

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

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

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

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

Gill v. Whitford

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

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

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

And you should buy and read his book!

Jackson List: 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.’”

*          *          *

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.

Lecture, “Justice Jackson and His Brethren”

 

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.