Monthly Archives: June 2019

Charles A. Reich (1928-2019)

I am truly sad to report that former Yale law professor Charles Reich died last Saturday at age 91.  He was a brilliant mind, a beautiful writer, a wise teacher, a sharp lawyer, a kind soul, and a dear friend and hero to many.

Here’s an obituary article in today’s NYThttps://www.nytimes.com/2019/06/17/books/charles-reich-dead.html.

Much will and much should be written about Charles Reich, his work, and his influence.  Writers will emphasize The Greening of America, surely and properly—these are its closing paragraphs, a permanent creed of hope:

We have all known the loneliness, the emptiness, the plastic isolation of contemporary America.  Our forebears came thousands of miles for the promise of a better life.  Now there is a new promise.  Shall we not seize it?  Shall we not be pioneers once more, since luck and fortune have given us a vision of hope?

The extraordinary thing about this new consciousness is that it has emerged out of the wasteland of the Corporate State, like flowers pushing up through the concrete pavement.  Whatever it touches it beautifies and renews, and every barrier falls before it.

We have been dulled and blinded to the injustice and ugliness of slums, but the new consciousness sees them as just that — injustice and ugliness —as if they had been there to see all along.  We have all been persuaded that giant organizations are necessary, but it sees that they are absurd, as if the absurdity had always been obvious and apparent.  We have all been induced to give up our dreams of adventure and romance in favor of the escalator of success, but it says that the escalator is a sham and the dream is real.

And these things, buried, hidden, and disowned in so many of us, are shouted out loud, believed in, affirmed by a growing multitude of young people who seem too healthy, intelligent and alive to be wholly insane, who appear, in their collective strength, capable of making it happen.  For one almost convinced that it was necessary to accept ugliness and evil, that it was necessary to be a miser of dreams, it is an invitation to cry or laugh.  For one who thought the world was irretrievably encased in metal and plastic and sterile stone, it seems a veritable greening of America.

They also will highlight his article “The New Property,” and how it led to the Supreme Court’s landmark decision in Goldberg v. Kelly.

There’s much, much more.

See each of Charles Reich’s books.

See everything that Charles wrote about the U.S. Supreme Court, including what he wrote about Justice Hugo L. Black, for whom Charles clerked during October Term 1953, the term in which the Court decided Brown v. Board of Education.

See the twenty-four (at least) deep and lyrical law review articles that Charles published between 1962 and 2010,

See this fine Twitter thread by Professor Karen Tani:  https://twitter.com/kmtani/status/1140983478416052225.

Here is a blog where Charles Reich wrote and posted some things in the past couple of years: https://www.charlesareich.com/blog-1?fbclid=IwAR2ZHBkLCrS6DlJEEPLzdZb2RsUDM_ecjLtxfLIIUro8xfKz1d2wvAayO_o.  In the “Observatory” section, see his great photos of his friend Justice William O. Douglas hiking alongside the C&O Canal, and a super photo of them sharing a look, a canteen, and smiles.

I recall some advice that Charles gave me about law professor scholarship (and really it is advice about literature, which Charles knew well, and which he believed that any serious writing should try to be.)  He said that it is important to find worthy topics and do the very best that you can, with all that you know and with all that you can learn, from inside yourself, to write about them.  I asked him what his topic had been, especially when he was getting started.  He recalled spending a summer, I think it was the one after his first year of teaching, sitting in the Yale law library, working at a table covered with many books, writing “about America.”

He did it very, very well – he saw America, he loved it, and he improved it.

Jackson List: Barnette Day

Today, June 14, 2019, marks the 76th anniversary of the U.S. Supreme Court’s decision, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

Barnette, decided amid the commendable patriotism of the U.S. home front during the dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to 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 had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, 6-3, that the flag salute and pledge requirements violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

Although Jackson’s full opinion in Barnette bears close reading (and regular rereading), some words to consider particularly closely are his summary 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.

**Please also note** the FIU Law Review’s recent publication of a rich symposium on Barnette.  It includes my article “Justice Jackson in the Jehovah’s Witnesses’ Cases,”  based on my keynote address at FIU’s excellent Barnette 75th anniversary conference.  Click here to get to the symposium articles.

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Additional links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
  • a 2012 Jackson List post, “Arguing Barnette”—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, one-way (me to you), 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: Donald Verrilli’s Jackson Lecture, Chautauqua Institution, July 1st

I am very pleased to report that Donald B. Verrilli, Jr., former Solicitor General of the United States (2011-2016), will give Chautauqua Institution’s 15th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 1, 2019, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Don Verrilli, a graduate of Yale College and Columbia Law School and a former law clerk to U.S. Circuit Judge J. Skelly Wright (D.C. Cir.) and U.S. Supreme Court Justice William J. Brennan, Jr., is an acclaimed American lawyer and courtroom advocate, including arguing fifty cases in the U.S. Supreme Court.

Following two decades in private law practice, Mr. Verrilli served in the Obama Administration, first as Associate Deputy Attorney General, then as Deputy White House Counsel, and then as Solicitor General of the U.S.

As Solicitor General, Mr. Verrilli, among other highlights, successfully defended the constitutionality of the Affordable Care Act and the constitutional protection of marriage equality.

Since 2016, Mr. Verrilli has been a partner in Munger, Tolles & Olson, handling matters before the Supreme Court and the U.S. Courts of Appeals and representing and counseling clients on litigation, regulatory, and public policy problems—for his law firm page, click here.

The Jackson Lecture will bring Mr. Verrilli to Chautauqua Institution, 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.  To view a 2011 documentary, “An American Narrative,” on Chautauqua, click here.  And click here for its website.

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

This year, with the Supreme Court scheduled to begin its summer recess late this month and a number of momentous decisions expected before then, Mr. Verrilli’s Jackson Lecture will be especially well-timed.

In past years, 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, Kirkland & Ellis LLP 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 and Amicus podcast host;
  • 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;
  • 2015:  Laurence H. Tribe, Harvard University professor;
  • 2016:  Tracey L. Meares, Yale University professor;
  • 2017:  Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit; and
  • 2018:  Justice Rosalie Silberman Abella, of the Supreme Court of Canada.

For a video library of some past Jackson Lectures, and also video of interviews with lecturers during their visits to Chautauqua Institution, click here.

For further information on Don Verrilli’s upcoming lecture, 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.