Tag Archives: Jackson List

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.

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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.

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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.

Jackson List: The World Outlaws War (1928)

For the Jackson List:

On Monday, August 27, 1928—ninety years ago today—representatives of fifteen nations, meeting in Paris, signed a treaty that outlawed war as an instrument of national policy. They committed themselves to settling disputes by peaceful means.

On behalf of France, the conference host and treaty-signer was the Minister of Foreign Affairs, Aristide Briand. On behalf of the United States, the signer was Secretary of State Frank B. Kellogg. The other signatory nations represented in Paris were the United Kingdom, Ireland, Canada, Australia, New Zealand, South Africa, India, Belgium, Poland, Czechoslovakia, Germany, Italy, and Japan.

The United States Senate subsequently ratified the treaty. Over time, many more nations joined the Pact of Paris. By early 1933, sixty-five states were parties to the treaty, which in the U.S. came to be called “Kellogg-Briand.”

* * *

This global agreement did not, of course, prevent all war. A second world war started less than a decade after the treaty. From 1939 until 1945, World War II wreaked a horrific toll in Europe and in the Pacific.

The Allied powers ultimately prevailed. They then, acting together, charged surviving leaders of the Axis powers with the crime of waging aggressive war.

In the European theater, this case was tried in Nuremberg. On November 21, 1945, U.S. Supreme Justice Robert H. Jackson, the U.S. chief prosecutor of the Nazi defendants, explained aggressive war’s illegality by invoking Kellogg-Briand as a crucial development. It was, legally, the spine of the Allied prosecution of Nazi leaders for planning and then waging wars of aggression:

The first and second Counts of the Indictment [charge the] crimes … of plotting and waging wars of aggression and wars in violation of nine treaties to which Germany was a party.

There was a time—in fact, I think the time of the first World War—when it could not have been said that war-inciting or war-making was a crime in law, however reprehensible in morals.

Of course, it was, under the law of all civilized peoples, a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act? The doctrine was that one could not be regarded as criminal for committing the usual violent acts in the conduct of legitimate warfare. The age of imperialistic expansion during the 18th and 19th centuries added the foul doctrine, contrary to the teachings of early Christian and international law scholars such as Grotius, that all wars are to be regarded as legitimate wars. The sum of these two doctrines was to give war-making a complete immunity from accountability to law.

This was intolerable for an age that called itself civilized. Plain people, with their earthy common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunities. Statesmen and international lawyers at first cautiously responded by adopting rules of warfare designed to make the conduct of war more civilized. The effort was to set legal limits to the violence that could be done to civilian populations and to combatants as well.

The common sense of men after the first World War demanded, however, that the law’s condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war but also the waging in any way of uncivilized wars—wars of aggression. The world’s statesmen again went only as far as they were forced to go. Their efforts were timid and cautious and often less explicit than we might have hoped. But the 1920s did outlaw aggressive war.

The reestablishment of the principle that there are unjust wars and that unjust wars are illegal is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy, and Japan, in common with practically all nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. This pact altered the legal status of a war of aggression. As Mr. Stimson, the United States Secretary of State put it in 1932, such a war “is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing…. By that very act, we have made obsolete many legal precedents and have given the legal profession the task of reexamining many of its codes and treaties.”

The Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of 48 governments, declared that “a war of aggression constitutes…an international crime.” The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of 48 member nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the 21 American Republics unanimously adopted a resolution stating that “war of aggression constitutes an international crime against the human species.”

A failure of these Nazis to heed or to understand the force and meaning of this evolution in the legal thought of the world is not a defense or a mitigation. If anything, it aggravates their offense and makes it the more mandatory that the law they have flouted be vindicated by juridical application to their lawless conduct. Indeed, by their own law—had they heeded any law—these principles were binding on these defendants. Article 4 of the Weimar constitution provided that: “The generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich.” Can there be any doubt that the outlawry of aggressive war was one of the “generally accepted rules of international law” in 1939?

Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.

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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: Justice Rosalie Silberman Abella’s Jackson Lecture, Chautauqua Institution, July 25th

I am very pleased to report that the Honourable Rosalie Silberman Abella, Justice of the Supreme Court of Canada, will deliver Chautauqua Institution’s 14th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Wednesday, July 25, 2018, at 4:00 p.m. in Chautauqua’s Hall of Philosophy.

Justice Abella is a giant of Canada’s judiciary, and in law and judging worldwide.  She was born in 1946 in a Displaced Persons camp in Allied-occupied Germany (about 200 kilometers from where Justice Jackson then was serving, in Nuremberg, as U.S. chief prosecutor of Nazi war criminals).  She was a young child when her family came to Canada as refugees.  In 1964, she graduated from the Royal Conservatory of Music in classical piano.  She then attended the University of Toronto, earning a B.A. in 1967 and an LL.B. in 1970.  She was called to the Ontario Bar in 1972 and practiced civil and criminal litigation.  In 1976, she was appointed to the Ontario Family Court, becoming the youngest person (age 29), the first pregnant person, and the first refugee appointed to the bench in Canada’s history.  In 1984, as the sole Commissioner of the federal Royal Commission on Equality in Employment, Judge Abella created the term and concept of “employment equity” and developed theories of “equality” and “discrimination” that subsequently were adopted by the Supreme Court of Canada.  In 1992, she was appointed to the Ontario Court of Appeal, and in 2004 she was appointed to Canada’s Supreme Court, becoming its first Jewish woman justice.

Among many honors, Justice Abella is a Senior Fellow of Massey College, a Fellow of the Royal Society of Canada, and a Fellow of the American Academy of Arts and Sciences.  She has given, among others, the Harlan Lecture at Princeton, the Ryan Lecture at Georgetown, the Winchester Lecture at Oxford, the Anderson Lecture at Yale, and, in 2016, Yale Law School’s graduation address, and she has been the Bullock Chair at Hebrew University and the Mackenzie King Distinguished Visiting Professor at Harvard.  (For her Court biography page, click here.)

The Jackson Lecture will bring Justice Abella to Chautauqua Institution, a special venue of arts, education, and recreation in western New York State.  Chautauqua was a very significant part of Robert H. Jackson’s life, his broad and self-directed education, his public speaking training and experiences, and his thinking.  (For an earlier Jackson List post on Chautauqua Institution, click here.  To view a 2011 documentary, “An American Narrative,” on Chautauqua, click here.  And click here for its website.)

The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, on which Justice Robert H. Jackson served from 1941-1954, in the weeks following the completion of the Supreme Court’s annual Term (and, this year, the announcement of a Justice’s retirement and, expected soon, a presidential nomination to fill that seat).

In past years, Chautauqua’s Jackson Lecturers have been:

  • 2005:  Geoffrey R. Stone, University of Chicago professor;
  • 2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
  • 2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
  • 2008:  Jeffrey Toobin, staff writer at The New Yorker and CNN senior legal analyst;
  • 2009:  Paul D. Clement, Kirkland & Ellis LLP partner and former Solicitor General of the United States;
  • 2010:  Jeff Shesol, historian, communications strategist, and former White House speechwriter;
  • 2011:  Dahlia Lithwick, senior editor at Slate and Amicus podcast host;
  • 2012:  Pamela Karlan, Stanford University professor;
  • 2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
  • 2014:  Akhil Reed Amar, Yale University professor;
  • 2015:  Laurence H. Tribe, Harvard University professor;
  • 2016:  Tracey L. Meares, Yale University professor; and
  • 2017:  Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit.

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

For further information on Justice Abella’s upcoming lecture, which will bring an interesting comparative perspective to the U.S. Supreme Court at this important time, 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.

Jackson List: Father Moritz Fuchs (1925-2018), Nuremberg’s Bodyguard, Nuremberg’s Spiritual Guard

My friend Father Moritz Fuchs, Jr., truly one of the best people I have ever met, died yesterday in Syracuse, New York.  He succumbed to cancer, to a systemic infection, to being just short of age 93, and maybe also, a little bit, to Nazi shrapnel.

This moment is deeply sad for all who knew or knew of Father Fuchs.  On the other hand, today he is exactly where he, a man of immense religious faith, worked his whole life to be, and that thought should comfort each of us.

Moritz Fuchs was a farm boy from upstate New York.  He learned German from his parents, immigrants from Switzerland.  After graduating from high school, he began college, studying engineering, but he soon left for military service.

By November 1944, Private Moritz Fuchs, age 19, was serving as a replacement in the 1st Army Division (the Big Red 1) in Germany’s Hürtgen Forest.  On November 19, he was wounded by shrapnel from German artillery fire.  He was evacuated to England and recovered there.

Private Fuchs, while recovering, quite luckily missed additional weeks of Hürtgen Forest fighting and then the Battle of the Bulge.  He then rejoined his unit, fighting on in Germany and into Czechoslovakia.

After Nazi Germany’s surrender in May 1945, Private Fuchs was assigned to Nuremberg.  He was ordered to supervise former SS men, now U.S. prisoners, working to clean up the bomb-damaged city.

That summer, Private Fuchs’s commanding officer gave Fuchs a new and wholly unexpected assignment.  He was to guard U.S. Supreme Court Justice Robert H. Jackson, who would be moving imminently to Nuremberg to serve as U.S. chief prosecutor, before the International Military Tribunal, of Nazi war criminals.

Private Fuchs served as Justice Jackson’s bodyguard for the entirety of the international Nuremberg trial.  During that year, Fuchs lived with Jackson, his son and executive assistant William E. Jackson, and the Justice’s secretary Mrs. Elsie Douglas in a requisitioned private home outside of Nuremberg.  Fuchs was armed at all times.  He slept in the front vestibule of the house.  He rode with Justice Jackson to and from the Palace of Justice (the courthouse), the Grand Hotel, and other locations in the area.  When Jackson worked in his courthouse office, Fuchs sat nearby.  When Jackson was in court, so was Fuchs, listening to the proceedings, watching everyone in the room, and carrying the only authorized gun in Courtroom 600.

By assignment, Staff Sergeant (following his promotion) Fuchs was proximate to Justice Jackson.  Through their shared work and compatible personalities and interests, they became friends.  They particularly enjoyed weekend walks and hunting trips in the woods outside Nuremberg—which was where Jackson observed, with relief, that his bodyguard was a good shot.

After Justice Jackson made his closing statement to the International Military Tribunal in late July 1946, he returned home to Washington while the proceedings concluded and the IMT deliberated and wrote its judgment.  Jackson brought Fuchs home on his plane, and then brought him to his house, Hickory Hill, in McLean, Virginia, for a weekend stop on his way to Fort Dix, New Jersey, and discharge from the Army.

And then Fuchs embarked on his vocation.  He pursued the religious calling that had become clear to him during the Nuremberg trial.  He became a Roman Catholic seminarian in Washington, D.C., studying for years in preparation for the priesthood.  He stayed in contact with Justice Jackson, visiting him regularly at the Supreme Court.  As Fuchs’s ordination date approached, Jackson made plans to attend.  Sadly, he died shortly before he would have seen his “dear Moritz” become a priest.  But Mrs. Douglas was present at Father Fuch’s ordination, a moment that spoke to one of Nuremberg’s most personal and hopeful results.

Father Fuchs became a Catholic parish priest in New York State.  Across six decades, he ministered to and was loved by many.

Sergeant Fuchs (retired) was a proud and tough U.S. Army veteran.  Last month, although his health was weak, he proudly participated in the Memorial Day ceremonies in his hometown, Fulton, New York.

Father Moritz Fuchs was an up-close witness to and friend of Robert Jackson and a powerful teacher of Nuremberg in all of its dimensions.  That’s how I came to meet Father Fuchs.  It’s what we discussed over many hours, including when we were together almost every year in Jamestown, New York, at the Robert H. Jackson Center.

We also were together on special trips back to Nuremberg.  The final one—he knew, and said, and was completely at peace with the fact, that it was his final one—occurred in November 2015, the 70th anniversary of the trial’s commencement.  I had the honor to moderate, in Courtroom 600, a conversation of recollections by Father Fuchs and two former colleagues who also had worked there as young men.  As he surveyed the room carefully at the start of that evening, I could see that his eyes saw back clearly to 1945.  He shared those memories with a rapt audience.

Private, then Sergeant Fuchs guarded Justice Robert Jackson—well done.

Father Fuchs also, across decades, as priest and friend, guarded humanity and morality.  I think of that as him guarding, among other things, Nuremberg’s core meaning—even better done.

Rest in peace, Father Fuchs, and thank you.

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.

Barnette at 75

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.

 

At Hickory Hill (June 1968)

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.

*          *          *

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.

*          *          *

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.

Jackson List:  Nine Votes, Nine Present: The Unanimity of Brown v. Board of Education (1954)

For the Jackson List:

On May 17, 1954, sixty-four years ago today, the Supreme Court of the United States decided Brown v. Board of Education and its companion cases.  The Court held that government segregation by race of school children was, henceforth, barred by the U.S. Constitution.  The Court declared that state government school segregation was barred by the Fourteenth Amendment’s Equal Protection Clause, and that federal government school segregation was barred by the Fifth Amendment’s Due Process Clause.

During the Court’s public session on that Monday, Chief Justice Earl Warren announced that his opinions for the Court in the Segregation Cases were unanimous—all eight Associate Justices had voted to join him.

Chief Justice Warren announced those unanimous decisions in the company of all of his colleagues—a full Court of nine Justices filled the bench.

Each of those components—nine votes for Warren’s opinions for the Court, and nine Justices present as the decisions were announced—came together late, each thanks to the decision and effort of, in each instance, one justice who could be called a late joiner.

*          *          *

Justice Stanley Reed was the justice who made the Court’s decisions unanimous.  In 1952, after the Segregation Cases were first argued at the Court, Reed had voted in the Justices’ conference to adhere to the segregation-permitting “separate but equal” doctrine of Plessy v. Ferguson (1896).  He stuck to those views in 1953 and into 1954.  He drafted what could have become an opinion dissenting from a Court decision declaring school segregation to be unconstitutional.

But in Spring 1954, Justice Reed decided not to use that draft, and instead to vote as he did.

Reed’s final deciding began on Friday, May 7, when Chief Justice Warren circulated typed draft segregation case opinions for his colleagues to review.

The next day, Warren met with Reed, and also with other Justices.  Contemporaneous notes show that Reed, having read the drafts, no longer was an adamant vote to uphold the constitutionality of school segregation.

Over the next days, Warren continued to converse with his colleagues about the cases.  By Wednesday, May 12, the Chief Justice knew, and he began to tell various Justices, that the Court would be unanimous.

*          *          *

Justice Robert H. Jackson was the justice whose presence made the Court physically complete when Chief Justice Warren announced on May 17 the unconstitutionality of school segregation.

In late March 1954, Justice Jackson had suffered a major heart attack and almost died.  Thereafter, he had been convalescing at Doctor’s Hospital in downtown Washington and absent from the Court.

On Saturday, May 8, Warren visited Jackson twice at the hospital, in the morning to deliver first draft opinions, and in the afternoon to discuss them.  In the second meeting, Jackson voiced his enthusiasm for the drafts and suggested some edits and inserts—a couple of which the Chief Justice accepted.

On Monday, May 10, Justice Felix Frankfurter visited Jackson at the hospital.  Frankfurter found that Jackson was expecting to be released from the hospital in a week or less.

The next day, Jackson, accompanied by a nurse, made his first foray out of the hospital—they went to lunch at a nearby French restaurant.  (1954 cardiology!)

On Thursday, May 13, Jackson wrote to Justice Harold Burton.  Jackson thanked Burton for the plant that he had brought on a recent visit to Jackson in his hospital room.  Jackson also reported that he expected to be released from the hospital on Sunday, May 16, and that he expected to begin coming to the Court a few days after that for short conference and decision announcement days.

On the afternoon of May 13, after Jackson had sent his note to Burton, Chief Justice Warren again visited Jackson at the hospital.  Warren showed Jackson printed opinions in the Segregation Cases, demonstrating that the decisions were ready to be announced on the Court’s next decision day—Monday, May 17—and apparently telling Jackson of the Court’s unanimity.

It seems that Jackson told Warren then that Jackson could and would be present on the bench for the announcement.  It mattered to Jackson, and also to the Chief Justice, that the full Court be physically, visibly present in its moment of unanimous decision.

On Friday, May 14, the proposed opinions were tweaked, reprinted, and recirculated.

On Saturday morning, May 15, Justice Frankfurter wrote a note to Chief Justice Warren.  Frankfurter, indicating his understanding that Jackson now could join the Court on the bench, urged the Chief to announce the decisions on May 17:

Dear Chief:

An opinion in a touchy and explosive litigation, once it has been agreed to by the Court, is like a soufflé—it should be served at once after it has reached completion.  And so I venture to urge that no room be left for contingencies—one can never tell—nor for the real danger of leakage, since walls are supposed to have ears.

I am assuming, of course, that all are in and that Bob can be here Monday!  Yrs

                        FF

Later that morning, eight Justices met in conference at the Court.  Jackson was still absent.  Although hospitalized, he actually was, during the hours when his colleagues were conferencing, out with his nurse and doctor for a second French restaurant lunch.

In the Saturday, May 15 conference, the Justices discussed the Segregation Cases and agreed that the unanimous decisions would be announced two days hence.

And they were, with all Justices present.

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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: Firing a Cabinet Officer Face-to-Face (1945)

In early 1940, President Franklin D. Roosevelt promoted Robert H. Jackson, then the Solicitor General of the United States, to serve as U.S. Attorney General, a member of the President’s Cabinet.  President Roosevelt then appointed former U.S. circuit court judge Francis Biddle to succeed Jackson as Solicitor General.

Eighteen months later, Roosevelt appointed Jackson to serve on the U.S. Supreme Court.  At that time, the President, at Jackson’s urging, promoted Biddle to succeed Jackson as Attorney General.

Attorney General Biddle served in Roosevelt’s Cabinet for the next four years—for all of the remainder of his presidency, and for nearly the entire period of U.S. involvement in World War II.

On April 12, 1945, President Roosevelt died suddenly.  Harry S. Truman became the 33rd president of the U.S.  Within two weeks, the new president recruited Justice Jackson to serve as U.S. chief of counsel for the prosecution of Nazi war criminals—the appointment that became Jackson’s position as U.S. chief prosecutor at Nuremberg.

President Truman also decided to appoint his own Cabinet officers.  In the case of Attorney General Biddle, however, Truman chose not to communicate his wishes directly.  The President had his press secretary, Stephen Early, telephone Biddle on May 16, 1945, to request his resignation.

Attorney General Biddle did not appreciate the President’s effort to fire him by emissary.  So after speaking to Early, Biddle called the White House and requested a meeting with President Truman.

They met later that morning.  As the story soon emerged in the press, Biddle told Truman that he had, immediately after Roosevelt’s death, submitted his letter of resignation for the President’s acceptance if that was his preference.  Biddle added that he quite appreciated that a president would want to have his own friends, people with whom the president was comfortable—and Biddle had reason to think that this was not Truman’s view of him—in his Cabinet.

“But,” Biddle added, “the relation between the President and his Cabinet is such that if you want to accept my resignation, it seems to me that you should tell me so yourself, not detail it to a secretary.”

President Truman, reportedly embarrassed, agreed.  He told Biddle, to his face, that he was accepting his resignation.

According to Biddle’s later memoir, the President “looked relieved; and I got up, walked over to him, and touched his shoulder.  ‘You see,’ I said, ‘it’s not so hard.’”

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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: Birthday Reading (1938)

Today marks the 126th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

It seems that on many a February 13, Robert Jackson did nothing special, and nothing special happened to him.

Jackson did have an unusual experience on this date in 1938—eighty years ago today.  He then was Assistant Attorney General of the United States, heading the Antitrust Division.  He also had been nominated by President Franklin D. Roosevelt to become the Solicitor General of the United States, succeeding Stanley Reed who had been appointed to the U.S. Supreme Court.  Jackson’s Senate confirmation hearing had begun in late January, and on February 13th he was in the midst of testifying, ultimately over three days, in a hearing that was thorough, very substantive, and sometimes contentious.  (To boil it down, some Senators were concerned that Jackson was a radical threat to American constitutional law and capitalist freedom and, related, that he was rising to become a leading force in the Democratic Party and, perhaps, presidential material in 1940, when it was expected that F.D.R. would not seek a third term.)  Jackson also had, in the previous week, been part of arguing before the Supreme Court in defense of the constitutionality of the Public Utility Holding Company Act, a major New Deal law.

On Sunday, February 13, 1938, his 46th birthday, Robert Jackson was the subject of a New York Times Sunday Magazine profile article, “Jackson Sets Forth His Political Philosophy.”  The article is online here, readable in full text by Times subscribers (but, alas, behind a paywall for non-subscribers).

The writer, Felix J. Belair, Jr., was The Times’s chief White House correspondent.  Belair seems to have interviewed Jackson for the article—it contains extensive quotations from him, plus two photographs.

I regard the article as strong personal profile journalism.  It is distinctly pro-Jackson, published at a moment when he was a well-publicized, controversial nominee in the middle of a Senate confirmation battle.  It also is an article that contains some of what we call political spin, and some dubious stories.  The article reports:

  • Jackson has no law degree;
  • He has many friends but few intimates;
  • He once made Justice James C. McReynolds, not generally a jovial figure on the Supreme Court bench, laugh during an oral argument;
  • Jackson defends FDR as working to make the private enterprise system work;
  • Jackson believes that people will not accept waves of unemployment; they must be fed or they will turn to a new political system;
  • His 1934-35 work at the Treasury Department, including his study of wealth concentration, was a basis for the 1935 tax reform law;
  • He is not opposed to productive bigness in companies, just to holding companies that are put together for the purpose of speculating in corporate securities;
  • He believes the U.S. needs a high wage industrial economy;
  • He thinks about the future—one quotation looks ahead to “1960” (when Jackson would have turned 68, but which he did not live to see—he died in 1954);
  • He testified in defense of FDR’s 1937 “Court-packing” proposal;
  • His record in major constitutional arguments before the Supreme Court is 4-4;
  • He is a father, a horseman, and a businessman;
  • He attended Albany Law School but did not receive a degree.  (This is true, but Belair did not report that this was only because the school regarded Jackson, age 20 when he completed all requirements, as too young to receive a degree.  The article also incorrectly states that Jackson did two years of law school course work in one year—a myth that follows him still.  And the article does not mention that in addition to attending Albany Law School, Jackson trained for the bar by apprenticing for two years in a law office.);
  • Jackson’s law practice started in (conservative) Jamestown, New York, where he defended radicals charged with crimes growing out of a street railway strike and, surprisingly, won;
  • He subsequently became counsel to businesses (including in Buffalo, New York, and elsewhere, which Belair did not mention);
  • Jackson loves horses:  they were central to his farm boyhood in Spring Creek; he owns a horse farm in Jamestown; he lives with his wife Irene, daughter Mary, and horses on a large property in Maryland;
  • He works late and rides early, often with Mary, sometimes trying out on her, or on his horse (more amenable?), speeches that he is preparing;
  • He and Irene also have a son, William (then a Yale College freshman).  (Belair reported that Jackson hoped Bill would become a lawyer, but in fact, at least by the time Bill was finishing college, Jackson was open to Bill pursuing whatever career path he wished—and he did then go to law school and became a very accomplished lawyer.);
  • Jackson likes to talk about his ancestors, including his great-grandfather Elijah Jackson, the first white settler of Spring Creek;
  • His middle name, Houghwout, is a family name, from ancestors who were early Dutch settlers New Amsterdam;
  • Jackson’s family politics:  Andrew Jackson Democrats;
  • He never sought political office.  (That is largely true, unless one counts, unreported here, his election in young adulthood to country political organization office.);
  • He was appointed corporation counsel in Jamestown by a Republican mayor (which is true—Mayor Sam Carlson was a smart, liberal Republican);
  • Jackson came to Washington at the personal request of FDR.  (This might be an exaggeration of Roosevelt’s personal role in Jackson’s recruitment to the New Deal.);
  • Jackson offers blunt criticism of the bar (the legal profession), including for its conservatism and opposition to government reform;
  • He has critics and enemies but also many friends and admirers;
  • He has been mentioned in the past for numerous offices, including the Supreme Court, the U.S. Senate, and the Governorship of New York;
  • He has no idea what future will bring—maybe just a return to practicing law in Jamestown.

I assume that Jackson, on that Sunday morning, got a copy of The Times and read Belair’s profile piece.  I bet that Jackson mostly liked it.  I bet more that he didn’t spend a lot of time on it, and that if the weather was good enough he spent more time that day on horseback.

For additional 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: Happy Holidays!

Thank you all, Jackson List newcomers this year and longtime readers.  I truly appreciate your interest, your “forwards,” your recruitments of new subscribers, and your comments.

For your reading in this season, here are links to some previous holiday season posts:

  • “Heartfelt Words, Good Will & Wishes True (1913) (click here)
  • “Christmas Cards from Nuremberg (November 1945)” (click here)
  • “Lighting the First Candle:  Holocaust Film and Chanukah at Nuremberg, 1945” (click here)
  • “Holiday Note, Chief to Staff (December 1945)” (click here)
  • “Jackson in the Holiday Season” (click here)
  • “Christmas Celebration, Nuremberg, 1945” (click here)
  • “Jackson on Holiday in Athens, December 22, 1945” (click here)
  • “Supreme Court at Christmastime (1951)” (click here)

Thank you again for your interest, and very best wishes for the holidays and 2018.

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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.