Tag Archives: Justice Robert H. Jackson

On Reproductive Rights, Justice Jackson, & Skinner— at Georgetown & on C-SPAN

On June 1, the 80^th anniversary of the U.S. Supreme Court’s landmark decision in Skinner v. Oklahoma, I participated in a panel at Georgetown University Law Center on “The Unknown History of Reproductive Rights & Eugenics: From Skinner to Roe.”

In Skinner, the Supreme Court unanimously declared unconstitutional an Oklahoma law that provided for the sterilization of some thrice-convicted “habitual criminals.” Jack Skinner, a state prison inmate, won a decision that protected his reproductive capability and autonomy. The decision became an important starting point for constitutional law doctrines that protect individuals from government regulations and penalties in the areas of contraception, abortion, private intimacy, and other fundamental rights.

The panel is available on C-SPAN. My lecture, about Justice Robert H. Jackson’s concurring opinion in the case, other aspects of his judicial work, and his work as U.S. chief prosecutor at Nuremberg, begins at time counter reading 21:20.

https://www.c-span.org/video/?520685-1/history-reproductive-rights

Update re The Jackson List

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As you might know, I write about Robert H. Jackson (1892-1954), United States Supreme Court Justice and Nuremberg chief prosecutor of Nazi war criminals following World War II. Jackson is one of the most enduringly significant lives of the 20^th century. Among other things, I am a Jackson biographer, discoverer and editor of his acclaimed book That Man on President Franklin D. Roosevelt (which also is a Jackson autobiography), author of many articles on Jackson, a regular lecturer across the U.S. and internationally on Jackson and related topics, and a fellow and board member at the Robert H. Jackson Center in Jamestown, New York.

An outgrowth of all that is that I email a few notes each month, on Justice Jackson, the Supreme Court, Nuremberg, and/or related topics, to “The Jackson List.” It is a one-way, private email list that reaches many thousands of direct subscribers—teachers, students, scholars, lawyers, Judges, and other learners—and, through their forwarding, reposting, blogging, etc., many others around the world.

In the past, I have used this blog site to post items as they are sent to The Jackson List. But it has migrated to a new platform and better technology. (Thank you, IT aces!) So from now on, new Jackson List posts will go by email to The Jackson List and, simultaneously, be posted on its archive site—

https://thejacksonlist.com/

To subscribe to The Jackson List, sign up there, or send me an email.

Thanks very much for your interest, and for spreading the word.

Barnette at 75

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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.

* * *

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.

—————–

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.

Lecture, “Justice Jackson and His Brethren”

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Here’s video of the lecture that I gave at Chautauqua Institution on July 28, 2017.

This was the final lecture in Chautauqua’s week of lectures on the general theme, “The Supreme Court: At a Tipping Point?” Other lecturers during the week were Linda Greenhouse, Annette Gordon-Reed, Peter Onuf, Jeffrey Rosen, Akhil Reed Amar, Rev. Eugene Robinson, and Theodore B. Olson.

For the Chautauquan Daily’s lecture preview article, click here.

And here’s video of the my Q&A with audience members following the lecture:

Robert B. von Mehren (1922-2016)

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Robert Brandt von Mehren, one of New York’s and the nation’s leading lawyers, especially in the field of arbitration, died on May 5^th at age 93. He was a retired partner in the Debevoise & Plimpton law firm, a Manhattan and Martha’s Vineyard resident, and a man of brilliance and, I found, charm and kindness.

In recent years, I spoke and emailed a few times with Mr. von Mehren as I was researching and writing an essay, “No College, No Prior Clerkship,” on James M. Marsh, Justice Robert H. Jackson’s 1947-1949 law clerk at the U.S. Supreme Court. (Click here for an abstract of the essay, and click here to buy the new book, Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and Their Justices, in which my essay appears along with many strong pieces and a range of fascinating material.)

I contacted Mr. von Mehren because he was a cameo player in the process by which Justice Jackson hired Jim Marsh.

In 1946, von Mehren was clerking for Judge Learned Hand at the United States Court of Appeals for the Second Circuit. Prior to that, as a Harvard Law School student, von Mehren compiled a tremendous academic record, including serving as president of the Harvard Law Review. Unbeknownst to von Mehren, someone—probably Jackson’s incumbent law clerk, Murray Gartner, himself a former Harvard Law Review president—had flagged von Mehren for Jackson’s consideration to be Gartner’s successor as Jackson’s law clerk. Jackson was (properly) very impressed with von Mehren’s credentials, but in the end Jackson ranked von Mehren second to Marsh and hired him.

This all was news, and interesting, to Mr. von Mehren. He told me that he never applied to or interviewed with Jackson.

It all worked out. Justice Stanley Reed hired von Mehren to be his law clerk in that Supreme Court year (October Term 1947). As Reed’s clerk, von Mehren got to see Justice Jackson and all of the Justices of that era (Vinson, Black, Frankfurter, Douglas, Murphy, Rutledge and Burton were the others) in action. And von Mehren got to know and like Jackson’s clerk, Jim Marsh.

Von Mehren during his clerkship

with Justice Reed

Von Mehren’s path was a notable rise from remote beginnings. He and his identical twin brother Arthur were born in Albert Lea, a city in southern Minnesota, in August 1922. The boys grew up fluent in English, of course, and in Danish and Norwegian (hat tip: Daniel R. Coquillette). (Ninety-two years later, I could hear a trace of that—Robert pronounced his name “fun-MAY-won” in a soft European accent).

In high school, Robert won a scholarship to Yale University, from which he graduated summa cum laude. At Harvard Law School, he graduated magna cum laude. After clerking for the great Judge Hand and for the very capable Justice Reed, he became associated with Debevoise, his professional home for most of his career. (Luckily, because it’s more and worthy information, his law firm webpage is still “up”—click here.)

(And Arthur? He attended Harvard University and then, with Robert, Harvard Law School. He also earned a Harvard Ph.D. in Government, joined the Harvard Law School faculty, and became one of its giants—click here for one memorial and here for one obituary following his death in 2006.)

For more on Robert von Mehren’s accomplished and full life, click here and here.

May he rest in peace.

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