Tag Archives: Jackson List

RIP, Dr. Walter V. Powell (1929-2019)

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.

Jackson List: The Federal Prosecutor (1940)

On this date in 1940, Robert H. Jackson—age forty-eight, three months into his service as Attorney General of the United States—gave one of his most important, famous, enduring speeches:  The Federal Prosecutor.  He spoke on that Monday to the chief federal prosecutors of his day, the U.S. Attorneys then serving in each Federal Judicial District across the country.  They were assembled in the Great Hall at the U.S. Department of Justice in Washington, D.C., for the Second Annual Conference of U.S. Attorneys.

Attorney General Jackson had moved up to that position from having been Solicitor General of the U.S., then DOJ’s number two position.  As a new AG in 1940, he was leading a Department that had been misdirected and, as a result, badly demoralized.  This speech was part of Jackson’s work to clean up DOJ.  The speech offered his vision of proper, ethical conduct by federal prosecutors.  It was, you will note, the antithesis of an April Fool’s Day message.

Jackson’s speech is quoted often.  I recall first reading of it in Justice Scalia’s dissenting opinion in Morrison v. Olson (1988), which quotes from it liberally, and then getting and reading the whole Jackson speech to get a better understanding of it in full, in context.  I have read it many times since then—it was, for example, handed out as assigned reading to many attorneys by a senior DOJ official when I worked in there in the 1990s, and I completed the assignment.  I have heard or read most Attorneys General, Deputy Attorneys General, and other senior DOJ officials, including recently, quote from Jackson’s speech in their own speeches, other public remarks, and written work.

Attorney General Jackson’s speech bears rereading in full.

Jackson’s speech then bears what he hoped in 1940 that it would accomplish:  absorption and implementation by every “gentleman,” and today also every gentlewoman, who wields federal prosecutorial power.

 

*              *              *

 The Federal Prosecutor

By Robert H. Jackson

Attorney General of the United States

April 1, 1940

            It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country.  The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere.  This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States.  You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice.  It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington.  It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

Experience, however, has demonstrated that some measure of centralized control is necessary.  In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy.  Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts.  To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Our problem, of course, is to balance these opposing considerations.  I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts.  At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor.  Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.  Although the government technically loses its case, it has really won if justice has been done.  The lawyer in public office is justified in seeking to leave behind him a good record.  But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance.  Reputation has been called “the shadow cast by one’s daily life.”  Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.  Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

The federal prosecutor has now been prohibited from engaging in political activities.  I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.  There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.  I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.  Law enforcement is not automatic.  It isn’t blind.  One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.  If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.  We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.  What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor:  that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.  Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”  They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny.  Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby.  Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration.  Some of our soundest constitutional doctrines were once punished as subversive.  We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions.  Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities.  We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses.  Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals.  And the moral climate of the United States is as varied as its physical climate.  For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely.  The same variation of attitudes towards other law-enforcement problems exists.  The federal government could not enforce one kind of law in one place and another kind elsewhere.  It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment.  In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may.  Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman.  And those who need to be told would not understand it anyway.  A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

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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: On British Opinion on Nuremberg (1949)

In late October 1946, Justice Robert H. Jackson, just back to the United States from his year-plus away serving as U.S. Chief of Counsel prosecuting Nazi war criminals before the International Military Tribunal (IMT) at Nuremberg, happened to meet, briefly, lawyer Eugene C. Gerhart, age thirty-four.  Gerhart was a former pre-World War II secretary to a judge of the Permanent Court of International Justice in Switzerland, a graduate of Harvard Law School, a veteran of U.S. Navy service during the war, a practicing lawyer in Jackson’s upstate New York homeland, and a man with interests in history and writing.  Not surprisingly, Jackson was impressed by Gerhart.

A year later, Eugene Gerhart wrote to Justice Jackson and proposed to write his biography.  Jackson was skeptical but agreed to cooperate, within the limits that his time and his respect for U.S. Supreme Court confidentiality imposed.

As Gerhart pursued his research, he posed various questions to Jackson.  In 1949, for instance, Gerhart asked Jackson about mid-1945 United Kingdom attitudes, before the London Conference concluded in August 1945 with the international agreement to create the IMT, about whether the Allies should prosecute their leading Nazi prisoners as criminals.  Gerhart also asked about U.K. attitudes since Nuremberg about the legal theories on which the trial was conducted.  He apparently had recently read British lawyer John Hartman Morgan’s 1948 book The Great Assize: An Examination of the Law of the Nuremberg Trials, and he (Gerhart) asked Jackson if he also had read it.

In response, Justice Jackson dictated, edited, and sent the following letter to Eugene Gerhart on March 17, 1949—seventy years ago today.  The letter was Jackson’s description, quite straightforward, candid, and on the record, of his thinking, which was at odds with U.K. policy at least initially in 1945, and which perhaps in 1949 was still at odds with some British views, about the legal underpinnings and the legitimacy of the Nuremberg trial.

Mr. Eugene C. Gerhart,

Security Mutual Building,

Binghamton, New York.

My dear Mr. Gerhart:

               I have not read [R.H.] Morgan’s The Great Assize.  Viscount [Frederic Herbert] Maugham, the former Lord Chancellor and brother of Somerset Maugham, was at Nurnberg briefly as a guest.

               Of course, the fundamental premises on which we prosecuted the Germans for offenses against international society are at war with the concept of sovereignty as an absolute right of a nation to do as it pleases.  This argument was made by German [defense] counsel.  However, as [Columbia University law] Professor [Philip] Jessup points out in his work, A Modern Law of Nations, page 2, no real international law can exist if this rule of unlimited sovereignty is to prevail.  This is simply one of those basic breaks between the modern and what I consider the medieval conception of the place of law among nations.  I am not disposed to deny that it [Nuremberg] was a substantial break with the past and may have been applied somewhat retroactively.

               As to the crimes against humanity, there is truth on both sides.  As I pointed out in the Opening Speech [I delivered to the IMT on November 21, 1945,], it is not every cruelty which a government inflicts upon its own people that becomes of international concern.  But you will notice in the definition of “crimes against humanity” that it is limited to those “in execution of or in connection with any crime within the jurisdiction of the Tribunal.”  That is to say, when extermination, enslavement and deportation are a part of the program of aggressive warfare, they do become matters of international concern.  I think our proof amply demonstrated that the campaign against the Jews was intended to remove what they [the Nazis] regarded as an obstruction to instituting war and that the extermination was a part of the objective of the war.

               It may be true that there is no generally accepted definition of “aggressive war” and that all victors tend to justify themselves.  You will find in the minutes of the [summer 1945] London Conference that I made repeated efforts to get a definition and I never had any help from the British in doing it.

               It does not seem to me that aggressive warfare is any more vague, even if not further defined, than many of the concepts with which we work in the law.  And we must not forget that the Hitler war was aggressive by any test that anybody has ever suggested, and that he boasted of it as such.  I have dealt with these matters in a speech, copy of which is enclosed.

               This must be remembered about all British comment on the trial.  The British Government under Lord Chancellor [John] Simon was opposed to trials and wanted the war criminals disposed of by executive determination.  This fact appears in the London Conference records among the very early documents.  A large segment of British opinion remains committed to that theory or is sufficiently biased on the subject to be critical of the trials.  We rather forced trials upon them, as you will see from the London minutes, and there has been some disposition among the British not perhaps to resent that fact but at least to try to make up for it by criticism of what was done.

               I trust this gives you, in general, what you want.

               With best wishes, I am

                                                               Sincerely yours,

                                                               /s/ Robert Jackson

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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: 127th Birthday

Today marks the 127th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

For your 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: Spandau Prisoner Rudolf Hess

Rudolf Hess was one of Adolf Hitler’s earliest friends and devoted supporters.  Imprisoned with Hitler in the 1920s, Hess assisted his writing of Mein Kampf.  Hess was at Hitler’s side as the Nazi Party gained support and then political power.  After Hitler became Chancellor of Germany in 1933, Hess became Deputy Führer.  He assisted Hitler through the rest of the decade, as Germany built up its military strength and then started World War II, coercing some countries to capitulate and attacking others.

In May 1941, Hess became a British prisoner.  He was captured in Scotland, where he had flown from Germany on an odd, apparently solo, mission.  It seems that Hess sought to negotiate a United Kingdom-Germany peace agreement.

In 1945, following Nazi Germany’s military defeat and unconditional surrender, the Allies created the International Military Tribunal (IMT), charged Hess as a war criminal, and transported him to Nuremberg for trial (where Justice Jackson of course served as chief U.S. prosecutor).  Hess was tried there and, in Fall 1946, convicted of conspiracy and crimes against peace and sentenced to life in prison.

Hess was transported to Spandau Prison in Berlin and served his sentence there.  As the other prisoners completed their terms and were released, Hess became the only person still held in Spandau.  He died there, by suicide, in 1987, age 93.

Over the years, a story developed that the real Hess had been somehow, at some point in 1941 or later, freed, switched for a “double” who became the prisoner of Spandau.

This story, which involved neo-Nazi Hess supporters and was meaningful to them, never seemed to have much to it.

In any case, it now seems to have been disproven.  Austrian scientists, testing a preserved blood sample from the Spandau prisoner, have matched it to a DNA sample from a distant male relative of Hess.

Here are some links with further details—

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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: Christmas & C.A.R.E. (1947)

From May 1945 until October 1946, United States Supreme Court Justice Robert H. Jackson served, by appointment of President Truman, as U.S. Chief of Counsel for the Prosecution of Axis War Criminals in the European Theater.

During that period, Justice Jackson spent the first few months organizing and working with his staff, gathering and analyzing evidence, and conducting international diplomacy, in Washington and in Paris and mostly in London.

Beginning in September 1945, Jackson spent most of his time in Nuremberg in Allied-occupied former Germany, serving before the International Military Tribunal as U.S. chief prosecutor of Nazi war criminals.

In Nuremberg, Justice Jackson and his immediate staff—his son and executive assistant Lieutenant William E. Jackson, his secretary Mrs. Elsie L. Douglas, and his bodyguard Private Moritz Fuchs—lived in a large house located at Lindenstrasse 33, in Dambach, Fürth, the city adjacent to Nuremberg.  The U.S. Army had seized the house from its German owners.  U.S. soldiers guarded the street and the perimeter of the property.  Army drivers, always varying their routes, ferried Jackson and his team between the house, the Palace of Justice courthouse, and other Nuremberg and area locations.

For Justice Jackson, Lindenstrasse 33 became home, his place to eat and sleep.  Except for his time away on trips elsewhere in Europe and in the Middle East, he lived in the house from September 15, 1945, until July 31, 1946.

For Jackson, the house was more than his residence.  It also was his office away from the courthouse.  It was a place where he held many important staff conferences.  He also used its relative quiet to read, think, and write.

Lindenstrasse 33 also was Justice Jackson’s place to entertain.  He often hosted, at the house, his colleagues from the U.K., the U.S.S.R., and France, his regular “very important” visitors from the U.S. and other nations, and many members of his staff.  At Christmastime 1945, for instance, Jackson hosted, at the house, holiday parties, meals, and caroling around a Christmas tree.

During Justice Jackson’s time at Lindenstrasse 33, he was served in the house by a German staff.  An older woman cooked.  A younger woman assisted her and was a chambermaid.  An older man stoked the heat and performed maintenance and yard work.  A younger man, who dressed formally for work, was the waiter.

*          *          *

Justice Jackson, following his return to the U.S. and Supreme Court service in 1946, maintained contact with his former Nuremberg house waiter, Joseph Ullrich.  In 1947, for example, Jackson sent a C.A.R.E. (Cooperative for American Remittances to Europe, Inc.) package to Ullrich, who was still living and working in Nuremberg.

Mr. Ullrich responded, in imperfect English, by typing and sending Jackson this letter of gratitude:

Dear Sir,

Often I have been thinking of you and ——– yesterday it was a delightful day for me and my family when I get to my great surprise and joy your Care-package.

My family and myself say you many, hearty thanks for it.  It is very kind of you that you were thinking so of your waiter in Nuremberg.

At present there are four trials in the court of Justice.  …

I hope that you will come again one day.

Please give my compliments to your son and your niece (secretary).

With best compliments to you and your family, I remain Dear Sir,

Yours faithfully

/s/ J.L. Ullrich

In 1950, Justice Jackson sent Mr. Ullrich a Christmas card and gifts—perhaps another C.A.R.E. package.

In early January 1951, Jackson followed up with a letter—perhaps to check if the first mailing had arrived.

In February 1951, Joseph Ullrich sent back another typed letter to Justice Jackson:

            I gladly received your X-mas—card as well as the letter of Jan. 9th.

            A big surprise was the Christmas-box, arriving in January.  It meant much gladness to me and I wish to express to you, dear Mr. Robert H. Jackson, my most heartfelt thanks for it.

            For the future I take the liberty to wish you happiness, success and good health[.]

                                    most sincerely

                                    /s/ J.L. Ullrich

*          *          *

In this season, I wish you happy holidays, Merry Christmas, success, and good health.

And I wish you good care—I hope that you get lots of it, and that you give it, with thanks, for as long as you can, to many others in your life.

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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: Public Life & the Pursuit of Good Information (Thanksgiving 1937)

On the evening of Wednesday, November 24, 1937, United States Assistant Attorney General Robert H. Jackson, then heading the Antitrust Division in the U.S. Department of Justice, spoke in Washington at a private gathering of young, liberal Members of Congress.  The group included Senator Sherman Minton (D.-IN), Representative Knute Hill (D.-WA), and others.

AAG Jackson spoke to these Senators and Representatives at length and powerfully.  Jackson had, by then, become a national figure.  He was a leading voice of President Roosevelt’s New Deal.  Its policies had led the U.S. economy to optimism and recovery following the worst of the Great Depression.  President Roosevelt had been reelected overwhelmingly—he won 46 of 48 States—just one year earlier.  But now the Administration, including Jackson, was contending with mixed economic conditions.  There were signs of a renewed downturn and, as a result, some public discontent.

Robert Jackson, in this speech—which it seems that he made from notes and papers that, alas, he did not preserve—criticized some businesses for thwarting further economic recovery.  Jackson recited statistics on recent business behavior.  He discussed manufacturers’ recent price increases, which had produced high profits for companies but not led them to raise their workers’ wages.  He showed the Members a chart depicting rises in prices and industrial profits.

*          *          *

The next day, Thursday, November 25, 1937, was Thanksgiving Day.  It seems that Robert Jackson and his wife Irene spent the holiday, with their daughter Mary (a senior at National Cathedral School for Girls) and maybe also with their son Bill (a Yale College freshman), at their home in Washington.

On that Thanksgiving morning, elsewhere in Washington, one of the young Congressmen who had heard Jackson speak the previous evening dictated this letter (which then got typed up, signed, and delivered to Jackson’s DOJ office, probably the next day)—

My dear Bob:

This Thanksgiving morning, before I tie into the things which are ahead for the day, I want to tell you how much I enjoyed and profited by your speech last night.

It was certainly an inspiration to anyone feeling his way through the maze of things as they are today.  It was informative from first to last, and the best kind of a picture I have ever seen drawn of our problems and complexities in a brief space of time.

I feel that if closer relations existed between men like you and the elected representatives of the people, we should all be a lot better off.

 With all good wishes, I am,

                                                Sincerely yours

                                                /s/ Lyndon B. Johnson

*          *          *

During the next week, Representative Johnson (D.-TX), age 29, elected to Congress in a special election the previous April, continued to think about Assistant Attorney General Jackson’s November 24 speech.  Jackson apparently did not respond promptly to Johnson’s November 25 letter.  So on Wednesday, November 30, Johnson dictated and sent a second letter to Jackson:

My dear Mr. Jackson:

The more I think of your excellent address the other evening, the more I appreciate what a wealth of material and research was in it.

I wonder if you would be so kind as to steer me a little in my efforts to educate myself more fully in the lines which you followed out.  Could you, for instance, tell me where it would be possible for me to obtain the full information concerning the increase in prices of products in the major manufacturing fields during the past few years, in their relation to increases in wages and in profits?  I was most interested in that, and related phases, of your discourse.

With all good wishes, I am,

Sincerely yours

                                 /s/ Lyndon B. Johnson

Representative Johnson—LBJ, if I may, although the fact that 1937’s Johnson would become our “LBJ” would not have been apparent then—was not alone in being interested.  Two days later, Representative Hill also wrote to Jackson:

My dear Jackson:

I was very much impressed with your talk before the Liberal bloc last Wednesday night, and particularly by the chart you presented, which showed the contrast [sic?] between the rise in prices and the rise in profits in industries.

You may recall that I asked you if it would be possible to secure a copy of this chart, which you intended to have reprinted.  I sincerely hope that this will be possible, as I am anxious to study the correlation in more detail.

                                    Sincerely yours

                                    /s/ Knute Hill

*          *          *

At the Department of Justice, Jackson’s staff moved to get him to answer the Congressmen’s queries.  Someone put a printed pink slip, reading “SPECIAL,” on Johnson’s second letter.  Jackson’s secretary Grace Stewart added a typed note:  “Is the information available?  Senator Minton also inquired.”

In mid-December, Jackson responded by dictating letters that were typed and sent back to the Congressmen.  His letter to Representative Hill, age 61 and just reelected to his third term in the House, was direct:

My dear Mr. Hill:

I have not had a chance to get the figures which I used the other night completed with sufficient accuracy so they would be suitable for being publicly used.  I understand that [Roosevelt economic adviser] Leon Henderson has some studies which are dependable, and I would suggest that you rely on his for the present.

Sincerely yours,

/s/ Robert H. Jackson

To Johnson, Jackson sent basically the same letter, calling his “figures … hastily assembled and pretty rough for public use.”

And it seems that Jackson responded to Senator Minton—who a dozen years hence would become his U.S. Supreme Court colleague—by telephone.

*          *          *

As Thanksgiving Day dawns tomorrow, I hope that you wake up thinking of important topics and great people, and that you can make contact with them and get good responses.

I hope that you will “tie into” many good things throughout the day and always.

I hope that your representatives in government pursue good information diligently.

And I thank you for your interest in the Jackson List.

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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 Barnette 75th anniversary symposium, Florida International University

I had the opportunity to participate last Friday in an excellent symposium, “Barnette at 75: The Past, Present, and Future of the ‘Fixed Star in Our Constitutional Constellation,’” at Florida International University College of Law in Miami.

The symposium considered, from many angles, the United States Supreme Court’s 1943 decision, West Virginia State Board of Education v. Barnette, including its historical context, meanings, flaws, and legacies.

In Barnette, the Supreme Court invalidated a state requirement that public school teachers and students participate in a salute to the American flag and recitation of the Pledge of Allegiance.  The Court held, 6-3, that these requirements violated the constitutional rights of Jehovah’s Witnesses schoolchildren.  In his opinion for the Court, Justice Robert H. Jackson wrote that “[i]f 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.”

Video of the symposium proceedings is online here:

https://lawmediasite.fiu.edu/Mediasite/Play/27a74d007718451491014865286f52e21d.

To view any (or every) speaker, here are the respective video time-counter readings:

0:20:26

Welcome and Introduction, Prof. Howard Wasserman, Faculty Symposium Organizer

0:25:00

Welcome remarks, Dean Antony Page, Florida International University College of Law

First Panel: Barnette in Historical Context

0:32:13

Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington School of Law

  • Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship

0:57:07

John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion, Washington University School of Law

  • Barnette and the Four Freedoms

1:13:20

Genevieve Lakier, Professor of Law, University of Chicago School of Law

  • Barnette, Compelled Speech, and the Regulatory State

1:32:00

Brad Snyder, Professor of Law, Georgetown University Law Center

  • Frankfurter and the Flag Salute Cases

Second Panel: Reading Barnette

2:39:15

Aaron Saiger, Professor of Law, Fordham University School of Law

  • The Pedagogy of Barnette

3:00:49

Steven Smith, Warren Distinguished Professor of Law, University of San Diego School of Law

  • “Fixed Star” or “Twin Star”? The Ambiguity of Barnette

3:20:58

Paul Horwitz, Gordon Rosen Professor of Law, University of Alabama School of Law

  • Barnette: A Close Reading (for Vince Blasi)

Keynote Address

4:31:55

John Q. Barrett, Professor of Law, St. John’s University School of Law

  • Justice Jackson & Jehovah’s Witnesses: Barnette in its Context, and in Jackson’s Life and Work

Third Panel:  Barnette in Modern Context

5:30:05

Erica Goldberg, Professor of Law, University of Dayton School of Law

  • “Good Orthodoxy” and the Legacy of Barnette

5:52:12

Abner S. Greene, Leonard F. Manning Professor of Law, Fordham University School of Law

  • Barnette and Masterpiece Cakeshop: Some Unanswered Questions

6:12:19

Leslie Kendrick, Vice Dean and David H. Ibbeken ’71 Research Professor of Law, University of Virginia School of Law

  • A Fixed Star in New Skies: The Evolution of Barnette

 

Articles based on these lectures will be published in a symposium issue of the FIU Law Review.

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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: Resignation Offer, Presidential Response (1941)

In January 1940, President Franklin D. Roosevelt nominated his number two official in the United States Department of Justice, Solicitor General Robert H. Jackson, to move up into the Department’s top job.  It was becoming vacant due to the President’s simultaneous appointment of Attorney General Frank Murphy to become an Associate Justice of the Supreme Court of the U.S.

The U.S. Senate swiftly confirmed the appointments.  President Roosevelt signed Jackson’s commission and he was sworn in as Attorney General on January 18, 1940.

Later that year, war engulfed the European continent.  By June, the United Kingdom stood alone as unconquered by Nazi Germany.  The U.S. pursued significant rearmament, provided desperately needed aid to the U.K., and reinstituted military conscription.  The prospect that world war would engulf the U.S. was real and alarming.  And in November, President Roosevelt was reelected to an unprecedented third term.

In January 1941, as Inauguration Day approached, Attorney General Jackson was battling illness.  In the end, it caused him to miss the inauguration ceremony and related events.  But Jackson made it a point, on January 16, to dictate, sign, and send this a formal letter to the White House:

            My dear Mr. President:

I hereby present my resignation as

Attorney General of the United States effective

at your pleasure.

                        You are about the enter a new admin-

istration significant because of the problems peculiar

to these rapidly moving times.  It seems appropri-

ate to relinquish a position for which I was

chosen in very different conditions and for

qualifications which may no longer be appropri-

ate.

            It would be impossible in words to

express my appreciation for the honor of your

confidence.

                        Respectfully yours,

                        [/s/ Robert H. Jackson]

President Roosevelt responded two days later by writing, in longhand, this note:

Dear Bob

            I do hope you’re feeling

better – Don’t try to attend

anything Monday [January 20] unless the

M.D. really says yes.

            Thank you for your note.  It

can only have one answer:

Stay put

                        Affec.

                        FDR

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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: DOJ Antitrust Division Jackson-Nash Address, Sept. 20, 2018

Earlier this year, the Antitrust Division in the United States Department of Justice established the Jackson-Nash Address.

According to Assistant Attorney General Makan Delrahim, the goal of this lecture series is “to recognize the contributions of former Supreme Court Justice Robert H. Jackson and Nobel Laureate economist John Nash, and to honor the speaker, recognizing and celebrating the role of economics in the mission of the [Antitrust] Division.”

Robert H. Jackson headed the Antitrust Division during 1937.  As the Division explained when it announced this new lecture series, Jackson’s leadership set the stage for the expanded role of economics in antitrust, replacing vague legal standards with the “protection of competition” as the goal of antitrust law.  And Dr. John Nash’s research provides Antitrust Division economists with analytic tools necessary to protect competition.  In particular, Division economists commonly rely on Nash’s strategic theory of games and his axiomatic bargaining model to guide investigations and to help evaluate the effects of mergers, monopolization, and collusion.

On February 28, 2018, Dr. Alvin E. Roth, the McCaw Professor of Economics at Stanford University, delivered the inaugural Jackson-Nash lecture.  Professor Roth is the 2012 winner of the Nobel Prize in Economics for the theory of stable allocations and the practice of market design.

*          *          *

I am pleased to announce here that the second Jackson-Nash program, open to the public, will occur on Thursday, September 20, 2018, at 3:00 p.m. in the Great Hall at the U.S. Department of Justice, The Robert F. Kennedy Building, 950 Pennsylvania Avenue, N.W., Washington, D.C.  The program will consist of:

  • Introductory remarks by Department of Justice leadership; 
  • my historical lecture, Competition: Robert H. Jackson as Assistant Attorney General—Antitrust (January 21, 1937–March 5, 1938); and
  • an address by Dr. George A. Akerlof, University Professor at Georgetown University.  Dr. Akerlof is the 2001 winner of the Nobel Prize in Economics for analyses of markets with asymmetric information (including his well-known article “The Market for ‘Lemons’: Quality Uncertainty and the Market Mechanism” (1970).)

A reception in the Great Hall will follow the program.

Because space is limited, anyone who is interested to attend should RSVP to ATR.AAGRSVP@USDOJ.GOVGuests should enter Main Justice at the 10th Street and Constitution Avenue entrance.

*          *          *

And some Jackson history—

Robert H. Jackson became Assistant Attorney General heading the Antitrust Division at the start of President Franklin D. Roosevelt’s second term in office.  Jackson already was an Assistant Attorney General of the United States—Roosevelt had nominated him to that office and the Senate had confirmed him a year earlier, and throughout 1936 AAG Jackson headed DOJ’s Tax Division.  In January 1937, U.S. Attorney General Homer S. Cummings announced a series of personnel moves in the Department, including Jackson’s transfer to head the Antitrust Division.  (Its leader was leaving government to become a law professor.)

By January 1937, Jackson had become a nationally prominent young New Dealer.  His transfer within DOJ from Tax to Antitrust thus was news.  And that triggered a wave of congratulatory messages to him.

One telegram that was particularly meaningful to Jackson came from a friend who was, at that time, a Wall Street lawyer.  “Let me congratulate you on your opportunity for doing a fine constructive job which I know you will do,” he wrote to Jackson.  “Looking forward to seeing you.”

In that busy time, Robert Jackson happened to see the friend in person before Jackson got around to acknowledging in writing the good wishes.  But within a few weeks, Jackson wrote back to thank the friend.

They were, in their life and professional paths, fellow western New Yorkers who each had practiced law in Buffalo.  Jackson’s friend also had served in the World War—with extraordinary valor, resulting in him receiving a number of the highest U.S. military awards and becoming a national hero.

After the War, the friend served in the federal government, in Buffalo and then in Washington.  He did this ahead of Jackson—the friend was almost ten years older, and his Republican Party controlled the White House throughout the 1920s, and, yes, he was famous long before most noticed Jackson.

Jackson wrote back to his friend on February 3, 1937:

My dear Colonel Donovan, 

I am just getting to answer congratulatory messages and, in spite of the fact that a meeting with you has intervened, I want to express appreciation of your telegram. 

I take the job with no delusion about its magnitude or its difficulty at this time.  Not the least of the difficulties is that of succeeding other western New York lawyers who have handled the office with such distinction. 

With best regards and good wishes, I am 

            Sincerely yours, 

            /s/ [Robert H. Jackson]

William J. (“Wild Bill”) Donovan, as principal assistant to U.S. Attorney General John G. Sargent, had headed the Antitrust Division, among other responsibilities, from 1925 until 1929.  Donovan  later returned to government service under President Roosevelt, including, as General Donovan, to found and run the wartime Office of Strategic Services (O.S.S.).

And in May 1945, Justice Jackson, after President Truman appointed him to be the U.S. chief of counsel in the international war crimes prosecutions of surviving Nazi German leaders, recruited his old friend General Donovan to be his deputy.

During their months together in that work, which became the Nuremberg trial beginning in late 1945, Jackson and Donovan discussed many things.  One topic that was at least in the background, including as they planned and debated such things as “the Economics case” against Nazi defendants and the merits of basing criminal prosecution on documentary evidence, was their shared, formative experience of heading DOJ’s Antitrust Division.

If you are interested to walk in such footsteps, and in the kind of high ideas that motivate DOJ’s best work, please join us in the Great Hall on September 20th.

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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.