Tag Archives: 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

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

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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.

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.

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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.

Robert H. Jackson’s 123rd Birthday

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Today marks the 123^rd anniversary of Robert Houghwout Jackson’s birth, at his family’s farm in Spring Creek Township, Warren County, Pennsylvania.

For Jackson Birthday reading, here are links to some previous Jackson Birthday-related posts to my Jackson List:

“Birthday” (click here)

“Jackson Birthdays 2006, 1946 & 1892” (click here)

“Birthday Bonds, Appreciation, Treasure” (click here)

“Turning 54 at Nuremberg”(click here)

“Birthday Cake in Chambers (1952)” (click here)

These and many more posts are on the Jackson List archive site, which is word- and phrase-searchable: http://thejacksonlist.com/.

Many happy returns of the day, and happy weekend,

Attorney General Order: Keep a Diary

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When Francis Biddle became a senior U.S. Department of Justice official (first Solicitor General, then Attorney General) in the 1940s, he “ordered” top lawyers to start keeping diaries. He explained that diary-keeping would improve performance—having personal records would help everyone “later” when they needed to revisit topics and remember accurately, in detail, what things had happened, how and why. (Biddle also had an artistic, literary temperament and a strong sense of history; I suspect that he advocated writing not just for its value to management, but also because engaging in the writing craft can bring pleasure to the writer, and because writing lasts.)

Warner W. Gardner, a leading, great federal government lawyer in the 1930s and 1940s, including in Biddle’s DOJ, told me of Biddle’s edict. In his old age, Gardner—himself a great writer of briefs, articles, and a superb memoir—lamented that he never complied very well with the order to keep a diary. He wished he had, but he said that he just never had time and never developed the habit of making the time. He made some notes now and then, but in hindsight he found them much too spare.

As Gardner realized, Biddle was right. Days, moments, people, events and words fly by, and often a “later” comes, in places ranging from the workplace to private reflection, when memory is less than a person wants to have. And of course history loses everyone in the end. It needs—in the arresting title of Gardner’s memoir—“pebbles from the paths behind.” (One chapter of Gardner’s memoir is here, and here is an oral history he gave to the Truman presidential library.)

This all comes to mind as I work with 1945-1946 Nuremberg trial documents and personal records. I’m grateful for every word that “Nurembergers,” including Francis Biddle (who, after his stint as Attorney General, served as U.S. judge there) and of course Robert Jackson, made time to jot amidst their hard post-war work and living conditions. Such words have solidity and power that memory can’t match. They permit historians (me and many others) to do their work, and to do it better than they could otherwise. Contemporaneous words—and specifically the ones that, on assessment, seem reliable—help me to figure out things about Nuremberg such as who really did, saw and said what, how people thought day by day about what they were doing there, and whose later memory is trustworthy and whose is faulty.

This also comes to mind as I read about newsman Brian Williams’s misstatements about what he saw and experienced as a reporter visiting Iraq and the war in 2003.

If some experience or thought might matter, and also for the pleasure, and also for history, try to make time to make some notes.

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