Posted over on PrawfsBlawg (thanks!), a piece on U.S. Supreme Court Justice Benjamin N. Cardozo and a lawyer who was seeking in 1934 to become a law professor.
October 4, 1934: Justice Cardozo, wearing his Phi Beta Kappa key.
Thursday, June 14, 2018, will mark the 75th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.
The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that 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, by a vote of 6-3, that the flag salute and pledge requirements violated the children’s First Amendment rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”
A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone. In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court’s decision to uphold Pennsylvania’s flag salute requirement. (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“fifth column” hysteria that was sweeping the country. Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah’s Witnesses in the Pennsylvania case.)
By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.
Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court’s opinion in Barnette. Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson’s 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.
In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Justice Robert Jackson’s very finest judicial opinions.
It was, in the United States in 1943, just a coincidence that the Supreme Court decided Barnette on “Flag Day.” In history, that coincidence is an added dimension of the decision’s teaching power.
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Some links—
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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.
The Longstreth Principle (TLP) holds that every time you watch a baseball game, you will see something you’ve never seen before. This event/occurrence, sometimes just improbable and odd, sometimes also amazing, is thus called a “TLP.”
At yesterday’s game in Philadelphia (final score: Milwaukee Brewers 12, Phillies 3), I saw Brewers catcher Erik Kratz [Who, right?] double in the second inning. The Brewers then were leading 2-0 (runs scored in the first). But the second inning ended with Kratz stranded on second and no runs scored—his double meant nothing.
In the bottom of the third, the Phillies scored 3 times to take the lead, 3-2. That still was the score when Kratz next came up, in the 4th, with one out and no one on. Phillies pitcher Jake Arrieta promptly hit him in the shoulder. Next batter: double play, end of inning. So Kratz’s at-bat again meant nothing.
He next came up in the 6th. The score was still 3-2, Phillies. But the Brewers were threatening (see more on that below)—2 men on, only one out.
Arrieta again hit Kratz with a pitch. So there’s a TLP, at a couple of levels: one pitcher hits one batter with pitches twice in one game. (And it was Jake Arrieta, a big name/star/former Cy Young award-winner, hitting Erik Kratz, who is, um, not yet a household name.)
But that was not the best TLP that I saw yesterday. It came in the top of the 6th inning, just mentioned. The Brewers were trailing 3-2. Travis Shaw (3B), leading off, bounced to pitcher Arrieta, who made a horrible throw to first that pulled the 1B way off the bag, but he still had time to make the catch and get back and touch first before Shaw arrived because he did not run it out hard—bad mistake, one out.
And then the TLP began: Ryan Braun (LF) was awarded first base on catcher interference. Then Jonathan Villar (2B) walked. Then the much-noted (well, noted above) Erik Kratz was hit by a pitch—bases loaded. That was it for Arrieta—the Phillies pulled him after 5.1 innings, leading 3-2, leaving the bases loaded. They brought in a pitcher named Luis Garcia. He promptly got Brewers SS Orlando Arcilla to strike out, badly. So bases loaded, two outs. And the Brewers pitcher was coming to bat. So they replaced him with a pinch hitter, Ji-Man Choi. He fell behind in the count, and then got back to 3-2. And then he, a lefty, lined a homer down the left field line, just inside the foul pole.
So that was, for me, yesterday’s TLP: three batters got on base, none by getting a hit, each in a different way, followed by a grand slam home run.
Oh, and Erik Kratz? He’s age 37. He played many years in the minors before making it to the majors in 2010. Since then, he’s had a fine, journey-man, but not starring career. And, okay, he’s not had so many at-bats this year. But he was hitting .500 when the game started yesterday. And after his opening double and then two HBPs, he flied out, and then, on a poorly-fielded hit to the pitcher, got to second base when the pitcher threw the ball away. So Kratz went 1-for-3. The game dropped his average a little bit. But unless you get all picky about him having only 19 at-bats, his .474 makes him one of the very leading hitters in the National League.
#thebestgame
For the Jackson List:
In late 1952, Justice Robert H. Jackson hired E. Barrett Prettyman, Jr., to be his law clerk. Prettyman then was a third year law student at the University of Virginia. He also was the son of Barrett Sr., who Jackson first met when he came to Washington in 1934.
The senior Prettymans (Barrett Sr. and his wife Lucy) and the Jacksons (Bob and his wife Irene) became friends, sometimes socializing together. The men also were in the same line of work—they were lawyers, sometimes government lawyers, and ultimately federal judges, Jackson on the Supreme Court of the United States and Prettyman Sr. on the U.S. Court of Appeals for the District of Columbia.
“Young Barrett” began his clerkship with Jackson in July 1953. Prettyman did excellent work and Jackson enjoyed his company. In early 1954, he asked Prettyman to stay on for a second year and he accepted.
During Prettyman’s clerkship, he had the experience of visiting Jackson at his home, Hickory Hill, in McLean, Virginia. Prettyman would deliver law books, legal briefs, and other materials to Jackson at home on weekends. When Prettyman arrived, he typically would find Jackson working on the screen porch off the kitchen. They would talk a bit, Prettyman would hand over his deliveries, and then he would leave Jackson to his work.
Justice Jackson’s health failed during Prettyman’s clerkship. After a major heart attack in spring 1954, Jackson recovered enough to resume work that summer. In the fall, only a week into the Court’s new term, Jackson suffered a fatal heart attack. Barrett Prettyman thus was Jackson’s law clerk for a little over a year. In what would have been the remainder of Prettyman’s second clerkship year with Jackson, Justice Felix Frankfurter and then, following his appointment as Jackson’s successor, Justice John M. Harlan, each employed Prettyman as a law clerk. He thus had the distinction of clerking for three Supreme Court justices during a two-year period.
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During his Jackson clerkship, Barrett Prettyman passed the District of Columbia bar examination and was admitted to law practice.
After some years in private practice, Prettyman became a special assistant to U.S. Attorney General Robert F. Kennedy. As Attorney General, Kennedy was serving in the Cabinet office that had been Robert Jackson’s during 1940-41.
Some years earlier, Robert Kennedy, his wife Ethel, and their growing family also had become occupants of Bob and Irene Jackson’s former home, Hickory Hill. It was Robert Kennedy’s home, and famously so, for the rest of his life.
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On June 4, 1968, after winning California’s Democratic presidential primary, Senator Robert F. Kennedy was shot at the Ambassador Hotel in Los Angeles. Gravely wounded, he was taken to a hospital where doctors worked to save his life. It soon was clear that the prognosis was bleak.
Barrett Prettyman was in the Midwest when he learned that Senator Kennedy had been shot. Prettyman contacted a colleague in Los Angeles and asked how he could help. He was told to join former astronaut John Glenn, a close Kennedy friend, and others at Hickory Hill, where they were caring for the younger Kennedy children and preparing for horrible news.
Prettyman arrived at Hickory Hill on the evening of Wednesday, June 5, 1968. He talked to Glenn and others. Glenn announced that he was going upstairs to get some sleep, and that Prettyman should wake him when the call came from Los Angeles. Prettyman wandered the ground floor of the house. He walked back into the kitchen, turned right, looked out onto the screen porch, recalled happy visits to that place.…
Prettyman laid down on the living room sofa and tried to sleep. It did not come. He was awake when the call came, sometime around midnight local time. He then went upstairs, woke John Glenn, and reported that Senator Kennedy was gone.
My friend Barrett Prettyman, who lived on for almost fifty more years after June 1968, shared these memories with me and others many times. One of his tellings, captured on video:
I saw Barrett choke up every time he recalled and tried to speak about the loss of Robert F. Kennedy. That is, still, the only proper reaction.
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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.
A brilliant man, Richard N. Goodwin, died on Sunday at age 86. He was, famously, an aide, speechwriter, and policy assistant to Presidents John F. Kennedy and Lyndon B. Johnson, then a manager of Senator Eugene McCarthy’s 1968 New Hampshire primary campaign, and then an aide to Senator Robert F. Kennedy.
Earlier, Goodwin had been a top Harvard Law School student and then a law clerk at the U.S. Supreme Court to Justice Felix Frankfurter.
Goodwin also wrote noted, important books, and a play.
He also had a family. He had sons, and he was married for more than forty years to historian Doris Kearns Goodwin.
The Boston Globe, in its obituary headline yesterday, described Richard Goodwin as a “Kennedy speechwriter and husband to Doris Kearns Goodwin.” On reading that, I thought that the second half of it was odd—Dick Goodwin was a giant in his own right, not someone whose greatness since 1963 or across the span of his life was defined by his wife’s name, prominence, and accomplishments.
On further thought, I like it. In terms of name recognition and public visibility, at least in recent decades, Doris Kearns Goodwin outranked Richard Goodwin. By that measure, the Globe headline simply has things right.
I also like it as a measure of social progress. Think of all the women who, in years past, whatever their own accomplishments, got tagged in headlines and elsewhere as Mrs. Someone or Wife of Whomever. Think of all the men who were lifted to top billings, above their female partners, by reflexive gender privilege.
The Goodwin headline reminds us that none of that was right, and in that way it is a small sign that, in this regard at least, times are better. Every person is a life of its content. And each person might be partnered with another who brings added, and sometimes lots of added, value.
RIP and thank you for your great life, Mr. Goodwin.
Anyone who teaches and writes and cares about each pursuit has experienced how they can, and maybe always do, compete with each other.
I learned from the New York Times obituary of Irish playwright Tom Murphy, who died this week, that he had this experience in his early years. In his hometown, Tuam, in County Galway, Ireland, he worked in a sugar factory. After studying metalworking, he taught it for a time. But then he quit. His explanation: “I found that this thing I had about writing interfered with that.”
I’m writing from Krakow. Within many living memories, such as those that go back to the 1930s, or my own that includes decades of Cold War and “Warsaw Pact,” Poland was a place far away, far from mind, far from connection, far from relevance. Today it’s pretty close, in each of those ways. I was part of a group that left JFK airport last night around 10:30, landed today in Warsaw, made (barely) our short flight to Krakow, took a bus into this gorgeous city, and reached hotel rooms in less than twelve hours total.
I’m here for the International March of the Living tomorrow, which is Yom Hashoah (Holocaust Remembrance Day), and for related events and learning. And all of the topics that are contained in Poland-history-War-Holocaust-remembrance are properly on many minds, connected to our lives, relevant to our times, and proximate.
Our sendoff event last night in New York was dinner with speakers who made these points, and who stand for them. Elly Berkovits Gross, a Holocaust survivor, told us of the miracles that saved her. Kenneth Jacobson, Deputy National Director of the Anti-Defamation League, spoke analytically of anti-Semitism, its history, and some of its current manifestations. Raymond Fishler, born near Krakow and also a Holocaust survivor, shared his story of loss, life and hope.
You can learn from each of these educators by clicking the hotlinks above, and from their books, films, and other online materials. They, and all that they have to teach, are as close by as, well, Poland.
I will be in Poland later this week.
On Thursday, I will participate in the International March of the Living. It is a Holocaust education and commemoration program that, each year, organizes and assembles over 10,000 people in Poland. They include Holocaust survivors, younger adults, and many students. Many are Jews and many are non-Jews. The International March of the Living occurs at Auschwitz on Yom Hashoah (Holocaust Remembrance Day). Marchers cover about two kilometers, walking from Auschwitz I, site of the original Nazi prison barracks and murder camp during World War II, to the much larger Auschwitz II (Birkenau) Nazi slave labor prison camp and extermination site. The March concludes in Birkenau with a ceremony of remembrance.
On Friday, I will attend and speak at a related conference, primarily for U.S. lawyers and judges, that will be held in Krakow.
I have seen Auschwitz on two previous trips—one to participate in the International March of the Living in 2016. I know from those experiences, including sights and conversations, that it all is something that I struggle, as every person does or should, to comprehend. I also know that Auschwitz and other Nazi-related sites are things that students and others ask me, often, to describe.
My words can’t meet this challenge. But I do plan this week to blog some things here, and also to tweet (@JohnQBarrett). If this is of interest, look for my writing in those places.
Today, February 25, 2018, marks the 90th anniversary of the birth of the late A. Leon Higginbotham, Jr., a lawyer who became a leading United States judge and was, in all he did in a life of great achievements, an African-American pioneer who opened doors for many. And he was “my” Judge. So I’m glad to have this occasion to share memories of him.
Leon, born in Trenton, New Jersey, was the only child of a father who worked as a laborer and mother who worked as a domestic. His parents worked multiple jobs, as he also did, to get him an excellent education. He soared academically at Antioch College and Yale Law School.
In the early 1950s, Leon Higginbotham began his legal career in Philadelphia. Despite strong credentials, he found that the doors of each “downtown” (which meant white) law firm were closed to him. Undaunted, he joined the leading “black” law firm and became a very successful litigator. He also became counsel to the NAACP and was active in Democratic politics.
In 1961, President Kennedy appointed Higginbotham to serve on the Federal Trade Commission. Although racist opposition by southern Senators temporarily thwarted the President’s 1963 effort to appoint Higginbotham to the federal bench, President Johnson was successful in 1964 following Kennedy’s death.
Judge Higginbotham served as a U.S District Court Judge from 1964 until 1977. President Carter then appointed Higginbotham to the U.S. Court of Appeals for the Third Circuit, where he served until he retired from judging in 1993.
On the bench, Judge Higginbotham presided over trials and decided appeals that involved almost every issue, neighborhood, employer, law, program, and government office in the Third Circuit (Delaware, New Jersey, Pennsylvania, and the Virgin Islands). He also, through hard work, eloquent words, and a notable commitment to justice, became a national legal figure. Perhaps only the fact that no Democratic President had the opportunity to appoint a Supreme Court Justice during most of Higginbotham’s judicial career kept him from joining the highest bench.
But Judge Higginbotham’s judicial work only begins to tell the story of who he was and what he did with his time and talents. He was a self-taught historian whose books and articles described the tragic, malevolent roles that law and lawyers played in erecting and perpetuating the American institutions of slavery and racial discrimination.
Judge Higginbotham was an energetic teacher and lecturer to generations of students at the University of Pennsylvania and other colleges and law schools throughout the country. (A friend reminded me recently that at Penn Law School, Judge Higginbotham’s portrait hangs on one side of an atrium with a curving staircase on each side; a student tradition is to walk only up the Higginbotham side, and to descend the other, so as never to turn one’s back on “the Judge.”)
Judge Higginbotham, as professor, taught difficult material brilliantly. He also showed his students, by his own profound example, that there is always more to study and understand about the most fundamental topics of history, morality and law.
Judge Higginbotham also became employer, adviser and hands-on mentor to a thousand and more persons. Each mattered enormously to him—he saw these friends and students as a core part of his work. Higginbotham gave people opportunities, boosting them up so that they could make the most of these chances and then savoring their successes as if he were merely a proud spectator.
The Higginbotham life lesson is that he truly lived the core values—equality, opportunity, integration, social justice, harmony—that defined his judging, writing and teaching. I think these were parts of his credo: Learn about real issues. Expend enormous energy on work that matters most. First see, and then help, the people who are excluded from the common dreams and opportunities of our society. And always, always teach.
I had the great fortune, as a young lawyer, to work as one of Judge Higginbotham’s law clerks for almost two years. Ever since, and every day, I think of him. I see—it is my habit to look at—his photos on my office wall. And as a teacher, I try to continue a small part of his enormous work and legacy, and to make him proud.
Yesterday’s New York Times included, prominently, this quite odd and disturbing, and now quite controversial, article on Tony Hovater. He is a 27-year-old white male U.S. citizen who resides, with his wife, near Dayton, OH. He longs for centralized power that he calls “fascism.” He identifies himself as a “white nationalist.” He studies, admires, and minimizes the evil of Adolf Hitler and the Third Reich. He, Mr. Hovater, is a disgusting bigot, an anti-Semite. I’m sparing in name-calling, but it seems accurate to call him an American Nazi.
After reading and then rereading the article, and then reading some of the many good and varied comments on it, I’m glad that it exists. It correctly appalls many, while educating them on who this man is, as an individual and as a type—inside vote totals and protest mobs are individuals, and it’s good to see one so closely. (Here, reported in The Atlantic, is a long account of another, Andrew Anglin, who is much more horrifying because of the violence he threatens.) And it’s good—well, not “good,” of course, but informative—to read and reflect on how Mr. Hovater feels empowered by President Trump. The President of course (I wish), plus anyone who supports him even slightly, should read about Mr. Hovater and think more about the dangers of lighting fuses.
If Mr. Hovater worked for me, I’d probably fire him.
If he lived near me, I’d be a very concerned neighbor—I’d watch for bad behavior and, seeing anything, err on the side of calling the cops. They serve the law and the general public—they’re on our side.
I hope that Mr. Hovater’s wife wakes up—I hope that she stays safe, gets interested in politics, gets smarter, and leaves him.
And I hope that Mr. Hovater gets interested to get smarter. He needs teaching. Some of it can come right from some of the books on Nazism and World War II that he owns and permitted the NYT to photograph. If he’s game to start studying and thinking critically and thus, objectively, better, I’d take him on as a student. I hope that other teachers would too. But I’d urge anyone to do this only very carefully—Hovater would have to be game, which seems very unlikely, and he would have to get to work and not just spout what the NYT story reports that he thinks currently. Otherwise it wouldn’t be worth any serious teacher’s time.
The odds are that he will continue as he is, thinking and reading and speaking evil ideas.
That leaves me sad, and alarmed, and glad to live in a country with the constitutional fiber to protect all expression, even his.