As you might know, I write about Robert H. Jackson (1892-1954), United States Supreme Court Justice and Nuremberg chief prosecutor of Nazi war criminals following World War II. Jackson is one of the most enduringly significant lives of the 20th century. Among other things, I am a Jackson biographer, discoverer and editor of his acclaimed book That Man on President Franklin D. Roosevelt (which also is a Jackson autobiography), author of many articles on Jackson, a regular lecturer across the U.S. and internationally on Jackson and related topics, and a fellow and board member at the Robert H. Jackson Center in Jamestown, New York.
An outgrowth of all that is that I email a few notes each month, on Justice Jackson, the Supreme Court, Nuremberg, and/or related topics, to “The Jackson List.” It is a one-way, private email list that reaches many thousands of direct subscribers—teachers, students, scholars, lawyers, Judges, and other learners—and, through their forwarding, reposting, blogging, etc., many others around the world.
In the past, I have used this blog site to post items as they are sent to The Jackson List. But it has migrated to a new platform and better technology. (Thank you, IT aces!) So from now on, new Jackson List posts will go by email to The Jackson List and, simultaneously, be posted on its archive site—
I write once, twice, or a few times a month to The Jackson List, a private, now very large and ever-growing email list, about U.S. Supreme Court Justice Robert H. Jackson and related topics.
One result, unexpected at first and now a great pleasure, is that people respond to Jackson List posts by emailing back to me. Sometimes they just send thanks. Other notes are more substantive, sometimes very personal and erudite.
Through these notes, which I try to read and at least to acknowledge (although the volume can be daunting), I’ve made a lot of special “friends”—not in-person friends, but the electronic version of what once were pen pals.
Earlier this week, an email bounce message alerted me that the email address of Walter V. Powell, long a Jackson List subscriber and one who wrote back to me regularly, was no longer functional. By Googling, I learned that Walt Powell, professor emeritus of political science at Slippery Rock University in Slippery Rock, Pennsylvania, age 90, died on February 27, 2019.
Dr. Powell lived a long and accomplished life. Some of it, including his family life, his World War II military service, his education, his teaching, and his community commitments, is chronicled in this obituary.
In his emails to me, Walt Powell always sent thanks for Jackson List posts and expressed his particular interests. One was the World War II—his—generation, including particularly people who had served on Justice Jackson’s staff prosecuting Nazi war criminals at Nuremberg in 1945-46.
Walt Powell greatly admired one of them, Whitney R. Harris. Indeed, Walt got to know Whitney through hosting him as the keynote speaker at a Slippery Rock University conference on the Nuremberg trial. Later, Walt lamented Whitney’s failing health, then his death, and Walt remembered Whitney always. Walt also wrote to me when “Nurembergers” Richard Sonnenfeldt, Peter Calvocoressi, Arno Hamburger, and Ernest Michel each passed away. Walt reported to that he had used some of my writings on Nuremberg when he lectured in a class on war crimes, and that he had visited the Robert H. Jackson Center in Jamestown, New York.
Walt also, every holiday season, sent his greetings, thanks, and good wishes.
This post, in a small way, reciprocates that sentiment. I am grateful that we were, in our historical studies, biographical interests, and priorities, truly colleagues.
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—
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 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.
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.
Congratulations and thanks to Professor Kevin Jon Heller and his colleague Catherine E. Gascoigne for producing, just in time for the 70th anniversary of the commencement of the International Military Tribunal (IMT) proceedings at Nuremberg, a new bibliography on the Nuremberg Trials of Nazi war criminals.
Yes, that’s plural—trials. The IMT, commencing in Fall 1945 and concluding in Fall 1946, was the one and only international Nuremberg trial. Thereafter, the United States, with Nuremberg in the center of its military occupation zone in what had been Nazi Germany, conducted twelve additional trials there, before Nuremberg Military Tribunals (NMTs), between Fall 1946 and Spring 1949.
A great virtue of the Heller/Gascoigne bibliography is that it lists and also describes in narrative, in fifteen concise pages, leading book-length publications (i.e., books and long articles) on both the IMT and the under-studied NMTs.
The IMT adjudicated the guilt of twenty-two surviving Nazi leaders plus six organizations. It was the four-nation trial, prosecuted and judged jointly by U.S., U.K., U.S.S.R. and French representatives. U.S. Supreme Court Justice Robert H. Jackson served as U.S. chief prosecutor. The defendants included, to name one handful of the nineteen who were convicted, Hermann Goering, Rudolf Hess, Joachim von Ribbentrop, Albert Speer and Julius Streicher.
The U.S.-only NMTs, often called the “subsequent proceedings” because they followed the IMT, adjudicated the criminal guilt of 177 additional individuals. General Telford Taylor, previously a senior member of Jackson’s U.S. team before the IMT, served as chief prosecutor. Each case concerned persons who had worked together in an important sector of the Third Reich. These cases came to be known by short names of either a leading defendant or the occupational sector: The Medical Case; The Milch Case; The Justice Case; The Pohl Case; The Flick Case; The I.G. Farben Case; The Hostage Case; The Reich Main Security Office (RuSHA) Case; The Einsatzgruppen Case; The Krupp Case; The Ministries Case; and The High Command Case.
(Unlike that list, which I arranged by the numbers (1-12) that Taylor and team assigned to the cases, Heller and Gascoigne organize NMT case-specific scholarship in alphabetized case-name order. Neither listing method fully captures the sequence and the various overlaps of the twelve trials; for that, the best book, listed modestly in the new bibliography, is Heller’s own The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011).)
This new bibliography is published in the Oxford Bibliographies online series. That means it is only a click away but, alas, it isn’t free/it is behind a paywall. I expect that leading libraries subscribe to the Oxford series, so teachers, researchers and students should have relatively easy access. And anyone else can buy in, of course.
Access to this bibliography, however obtained, is a good development. It is a fine guide to important resources on cases that are permanently significant, for how they occurred and what they uncovered, and as models and lessons for our time and the future.
