This post, with some footnotes and a photograph of Justice Roberts’s June 30, 1945, retirement letter to Chief Justice Stone, now is on the Jackson List archive site in “book look” PDF file form.
During the course of his seventeen-plus months as United States Chief of Counsel for the prosecution of Axis war criminals in the European theater, Justice Robert H. Jackson wrote and delivered five (at least) monumental, eloquent and enduring statements about his work:
- On June 6, 1945, Justice Jackson delivered a preliminary report to President Harry S. Truman;
- On November 21, 1945, Jackson delivered his opening argument before the International Military Tribunal at Nuremberg in Allied-occupied former Germany;
- On February 28, 1946, Jackson delivered to the IMT his argument defending the criminal charges against the Nazi organizations that he was prosecuting in addition to the individual defendants;
- On July 26, 1946, Jackson delivered his closing argument before the IMT; and
- On October 7, 1946, following the completion of the trial and Jackson’s return to Washington and the Supreme Court, he delivered his final report as Chief of Counsel, along with his letter of resignation, to President Truman.
* * *
The first of these, Justice Jackson’s June 1945 report to President Truman, summarized Jackson’s first forty days of work as the President’s appointee and Jackson’s views on how he hoped to proceed.
At the start of this report, Jackson described his activities since May 2nd, when the President had announced Jackson’s appointment:
In brief, I have selected staffs from the several services, departments and agencies concerned; worked out a plan for preparation, briefing, and trial of the cases; allocated the work among the several agencies; instructed those engaged in collecting or processing evidence; visited the European Theater to expedite the examination of captured documents, and the interrogation of witnesses and prisoners; coordinated our preparation of the main case with preparation by Judge Advocates of many cases not included in my responsibilities; and arranged cooperation and mutual assistance with the United Nations War Crimes Commission and with Counsel appointed to represent the United Kingdom in the joint prosecution.
Jackson then covered, in some detail, five topics:
- how his work to prosecute major war criminals was being coordinated with other, ongoing war crimes prosecutions;
- his preparation of the American case, his coordination with U.K. counterparts, and his communication with French and U.S.S.R. representatives as they worked toward agreement on an international plan of action;
- the basic features of his prosecution plan, including his commitment to fair trials as a desirable alternative to summary executions;
- the prosecution’s validity in international law, and as a next step in international law’s development; and
- his sense of urgency, both to commence trial and to complete his assignment.
Jackson finished writing his report on the morning of Wednesday, June 6, 1945. He delivered it to President Truman at the White House late that afternoon.
In their meeting, which was brief, the President stated his approval of the general make-up of Jackson’s plan and expressed particular appreciation for his report’s closing paragraph, which thanked Truman for his personal encouragement and support. They agreed that Jackson’s report, which although “private” really was a state paper written for the public, would be released promptly.
The White House released Justice Jackson’s report on the next morning, June 7th. That afternoon, President Truman responded as follows to press questions about the report:
Q. Mr. President, are you in complete agreement with Justice Jackson’s report?
A. I am in entire agreement with it. I think it’s a good report, and I think it shows just exactly what we are attempting to accomplish.
Q. Mr. President, can you shed any light on one section of that report, where Justice Jackson said that it was the inescapable responsibility of this Government to prosecute these war criminals, even if this Government had to do it alone?
A. That’s just— It means just exactly what it says. That is what we propose.
Q. Is there any prospect that we will have to do it alone?
A. No, no. That’s just to make it emphatic.
Q. Any prospect of an early answer from the other countries on our suggestion for a military tribunal?
A. Yes, I think so. I don’t think there will be any delay on that.
Q. Mr. President, can you tell us—
A. The British have already come in, and I am sure the Russians and the French will.
In ensuing days, Jackson’s report—about 5,700 words—was published in most American newspapers and in many newspapers around the world. It became a topic of very positive comment and, going forward, a reservoir of governmental and public support for Jackson’s work as U.S. Chief of Counsel in London, where the international negotiations soon commenced, and then in Nuremberg throughout the trial year.
To read Justice Jackson’s full June 1945 report to President Truman, click here.
Last Friday, June 5th, police in McKinney, Texas, a Dallas suburb, were called about some kind of fight or disturbance at a community pool in the Craig Ranch subdivision. At the scene, the police found teenagers in swimsuits. At some point, one officer, Cpl. Eric Casebolt, roughly threw a fifteen-year-old girl, who was wearing an unthreatening bikini, to the ground. He also drew and pointed his gun at two other kids. They ran away, and luckily no shot was fired.
At least two kids recorded these events on their phones and then made the videos public—click here to view one compilation of the videos.
Corporal Casebolt is white and many of the kids involved are black. As the videos make plain, one dimension, maybe the defining and driving dimension, of this episode was and is race.
It also is about swimming pools. As Brit Bennett describes in today’s New York Times (click here), U.S. racism has a long history in the swimming pool context. Too often, for too many, there has been something ugly, indeed intolerable, about races being together, and with bodies somewhat exposed, near and in shared water.
In highlighting these very real and sadly revealing issues, Ms. Bennett did not mention the U.S. Supreme Court.
Of course the Court did much, especially beginning in the late 1940s and through Brown v. Board of Education (1954) and into the 1960s and later, to interpret and apply the Constitution’s limits on government racism.
But not always. Not with regard to swimming pools.
In 1962 and earlier, the city of Jackson, Mississippi, had five public parks with swimming pools. Four of its pools were officially open to whites only, and one pool was open to blacks only.
Black plaintiffs filed a federal lawsuit challenging this racial segregation. A federal Judge declared that it violated the Fourteenth Amendment’s Equal Protection Clause. The U.S. Circuit Court affirmed, and the Supreme Court declined to review the case.
In Jackson, the city council acted to end segregation in various public places and facilities: parks, auditoriums, golf courses and the zoo. But not the pools. The city decided to close its pools rather than to operate them on a racially integrated basis.
Black residents of Jackson filed a second federal lawsuit, challenging the constitutionality of these actions. They lost in the District Court and then in the Court of Appeals (by a vote of 7-6).
In June 1971, the U.S. Supreme Court affirmed that decision. In Palmer v. Thompson, the Court, by a 5-4 vote, held that the city’s decision to close its pools rather than to integrate them did not violate the Equal Protection Clause.
To read Palmer, click here.
The decision was, underneath the various Justices’ technical discussions of government action and inaction and their statements of personal disapproval of the city’s racism, a striking break from, if not the abandonment of, the Court’s leadership then in explicating our equality Constitution.