Welcome to the Jackson List. This is an archive of past posts, organized in reverse chronological order by original email date (from most recent back to 2003). These essays, which have footnotes and some embedded images, are “book look” PDF files—click any title to open the essay. To pursue specific topics, search keywords or phrases (in quotation marks) in the Search box to the right.
Stopping in Your Baker Park
Henry Baker was born in Columbia County in eastern New York State in 1797. He fought for the United States in the War of 1812. As compensation, the U.S. gave him a warrant for land in the Territory of Illinois.
After the war, Baker settled in western New York State, in the area of the Jamestown in Chautauqua County. He reportedly said that Illinois was “entirely too far from the sunrise.” For that reason, he did not use his federal warrant to obtain land there. He allegedly sold the warrant to another Jamestown resident for $10 worth of plug tobacco (chewing tobacco pressed into squares).
Henry Baker became one of Jamestown’s leading businessmen, farmers, and politicians, and he prospered. In 1845, he and his wife Maria Fish Baker donated land to Jamestown on the condition that it always would be used as a public square.
Robert H. Jackson, born in 1892, began to visit Jamestown as he was growing up in a nearby hamlet, Frewsburg. He finished his high school education in Jamestown, in 1909-10. He then, in 1910-11 and again in 1912-13, worked as an apprentice to two Jamestown lawyers.
In 1913, Robert Jackson became a lawyer. He began to practice law in Jamestown and its region. It became his adult hometown, the base of his increasingly prominent law practice, the birthplace of his children, and a core part of his identity.
And Jackson prospered. In the 1920s, he and his wife Irene Gerhardt Jackson built a house on Lakewood Road in the town of Ellicott, which abuts Jamestown’s city limit. (The road later was renamed Fairmount Road, and the house was given number 474.)
During Robert Jackson’s two decades as a lawyer in Jamestown, he had a downtown office, located about 1½ miles from his house. I assume that he usually drove to the office. But sometimes he walked. That meant walking along Jamestown’s red brick streets that surrounded (and do surround) Baker Park.
According to Jamestown lore, Jackson would sometime stop on his quiet morning walks to work and sit down on a Baker Park bench. He would converse if someone stopped to talk. But mostly he thought, and sometimes he read or wrote.
I hope that you have a Baker Park, and that its beauty will lift you in the summer months ahead.
Nuremberg’s Holocaust Proof
Tonight marks the start of Yom Hashoah, the international Holocaust Remembrance Day. It remembers the approximately 6,000,000 Jews murdered by Nazi Germany and its collaborators, and it remembers Jewish resistance in that time.
The date of Yom Hashoah is the 27th day of the month of Nisan on the Hebrew calendar. In Hebrew calendar year 5704, the 27th day of Nisan was April 19, 1943, on the Gregorian calendar (the 365-day solar year). That was the date of the Warsaw ghetto uprising—the date on which Polish Jews, imprisoned by Nazi occupiers in a ghetto in Warsaw and facing extermination, chose heroically to fight, even to the death.
In Spring 1943, Robert H. Jackson was in his third year of service as an associate justice of the Supreme Court of the United States.
Justice Jackson likely knew from newspapers, radio, and personal contacts some of what was happening to Jews in Europe, including in Warsaw.
On April 13, for example, the New York Times reported on an international relief organization’s new report. It detailed that Jews in Warsaw were incarcerated behind nine-foot high walls and barbed wire; that the ghetto population had been reduced from 500,000 to 40,000; that “hunger typhus” was raging; that people were starving; and that the organization had given up on Polish Jews as “hopelessly lost.”
On April 14, the Washington Post editorialized that the Nazis had already killed two million of Europe’s Jews. It wrote that millions of others, “herded in ghettos that are only enlarged lethal chambers and in concentration camps,” also were facing death.
Justice Jackson showed in judicial writings his awareness, perhaps only partial, of these events. That spring, he was preparing for the Court to hear oral arguments in cases where Japanese-Americans were challenging the constitutionality of criminal convictions for violating U.S. Army curfew and area-exclusion orders that applied only to Japanese-Americans. When Jackson drafted an opinion (which he ultimately did not file) in Hirabayashi v. United States, in which the Court unanimously upheld a curfew-violation conviction, he penned, I think conspicuously, the word “ghetto.”
In April 1943, Justice Jackson was drafting and editing what became his famous opinion for the Court in the no-compelled-flag-salute case, West Virginia State Board of Education v. Barnette. It includes this paragraph:
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
“Present totalitarian enemies…”
These words show that Justice Jackson saw Barnette as about much more than U.S. officials attempting to coerce Jehovah’s Witness schoolchildren to state government orthodoxy (the Pledge of Allegiance) in violations of their consciences.
Two years later, President Truman appointed Justice Jackson to serve as U.S. chief of counsel for the war crimes prosecutions of surviving Nazi leaders. This assignment became the 1945-1946 Nuremberg trial, where Jackson served as U.S. chief prosecutor.
The Nuremberg trial focused on Nazi Germany’s military aggression—on the defendants’ starting and waging World War II.
But the Nuremberg trial also, over many months of public proceedings, established with Nazi documents and witness testimony what we know as the Holocaust—the Nazis’ planned, systematic extermination of 6,000,000 Jews in Europe.
Justice Jackson did not fully comprehend these crimes when his Nuremberg work began. But he and colleagues uncovered and tried to fathom them, then proved them in court, and then left to history as Nuremberg’s evidentiary record this horror that is undeniable—this horror that is proven.
Jackson stated these facts in many ways at Nuremberg, including in his opening and closing statements at the trial.
Justice Jackson also stated these facts and continued to try to teach this awful reality throughout his remaining life.
One glimpse is this exchange, preserved in his correspondence files. In May 1953, a Mr. J.P. Grip, a stranger to Justice Jackson, wrote to him from Estherville, a small city in northern Iowa. He wrote to Jackson as the former Nuremberg prosecutor. Mr. Grip asked Justice Jackson for evidence that the Nazis had murdered 6,000,000 Jews.
Justice Jackson, who at that time was busy doing his share of the Supreme Court’s work as its term was about to end and also dealing with serious health problems, immediately dictated and sent a letter back to Mr. Grip. He sent him a copy of the Nuremberg court judgment. He directed him to the published, vast Nuremberg trial record. And he pointed him to the American Jewish Conference and its authoritative publication (assembled and written by Seymour Krieger, who had been a prosecutor on Jackson’s Nuremberg staff) on the Holocaust.
Yom Hashoah is to remember lives and to teach facts. Please just keep doing that.
Benjamin B. Ferencz (1920 – ထ)
I am deeply sad and truly sorry to report that Benjamin Ferencz died last evening, April 7, 2023, at his apartment in Boynton Beach, Florida. Ben officially was age 103—or, as he preferred to put it, he was 104, i.e., in his 104th year.
Berrel Ferencz was born around March 11, 1920 (there is no birth certificate), in Transylvania, then part of Romania. His parents brought him as a baby to the United States.
He became Benjamin. He grew up in New York City’s “Hell’s Kitchen.” He knew poverty, rampant crime, and suffering. He became, moving quickly, a public-school student, a college graduate, a Harvard Law School graduate, a World War II U.S. Army infantryman serving in combat in Europe, a soldier investigating German war crimes at atrocity sites, a liberator of Nazi concentration camp survivors, and a civilian prosecuting Nazi mass murder.
Beginning in Spring 1946, Ben Ferencz served as a prosecutor in Nuremberg, in the U.S. occupation zone of what had been Nazi Germany.
During 1947 and 1948, Ben was chief prosecutor of the Einsatzgruppen case (United States v. Otto Ohlendorf, et al.). It was his first case as a lawyer. He charged the defendants, leaders of Nazi killing operations in Eastern Europe, with crimes against humanity (“a systematic program of genocide”), war crimes, and membership in criminal Nazi organizations.
(For details, including a link to video of Ben’s opening statement at the Einsatzgruppen trial, click here.)
Ben’s cases against those defendants, built on the documents that they sent contemporaneously from “the field” to Berlin, were brief, horrifying, and irrefutable.
More than twenty Einsatzgruppen defendants were convicted of killing almost one million people. The Einsatzgruppen case was and is the biggest murder trial in human history.
Ben Ferencz returned to the United States in the 1950s.
For the rest of his life, Ben was a lawyer for Holocaust survivors, a law teacher, a writer, a lecturer around the world, a lobbyist for and a builder of international legal institutions, a force for world progress toward peace through law, and a moral exemplar to millions.
From the first time that I met Ben, in 1999, I knew that he would be the longest-living Nuremberg podium prosecutor.
I knew this because of the math—Ben had been so young (age 26, or close enough) at Nuremberg.
I knew this because Ben, though less than tall, was physically very strong—he did rigorous calisthenics every day, including standing on his head and lots of swimming.
I knew this because Ben was so driven—“Never give up” was his main message, and he lived it.
And I knew this because Ben told me explicitly that he would not die—”I’ve got no time to die,” he said. “Luckily, I’m immortal. I’ve got too much work to do.”
Alas, Ben turned out to be wrong about that one small thing.
But he was oh so right about everything that he stood for and worked to address, including the value of every human life, the supreme evil of war, and the need to build law to protect people from that man-made disaster.
I will always be grateful that Ben Ferencz was my teacher and my dear, generous friend. He was great to me, and to all, in every way.
And luckily Ben Ferencz—the memory; the example; the lessons—is permanent, because there is so much work to do.
So honor him by heeding his injunction: Keep working. Never give up!
March 17 Monuments
On Monday, October 5, 1941, Louis Dembitz Brandeis, who was a retired associate justice of the Supreme Court of the United States after twenty-two years (1916-1939) in active service, died in Washington, D.C., at age eighty-four.
The date was, coincidentally, the start of the Supreme Court’s October Term 1941. For new associate justices James F. Byrnes and Robert H. Jackson, it was their first day on the Court’s bench. For Chief Justice Harlan Fiske Stone, who had been “elevated” during the Court’s summer recess from an associate justiceship, it was his first day in the Court’s center chair.
A year later, the president of the American Bar Association presented to the Court a bronze portrait bust of Justice Brandeis. Sculpted by Eleanor Platt of New York City, it was and is striking, powerful, indeed beautiful. Chief Justice Stone, on behalf of the Court, accepted the bust gratefully. The Court displayed it in its Library. (In subsequent years, this bust was in the Court’s West Conference Room. Today it is opposite one of the main visitor elevators on the Court’s ground floor.)
Six months later, on Wednesday, March 17, 1943—eighty years ago today—Eleanor Roosevelt, the First Lady of the U.S. (the wife of U.S. president Franklin D. Roosevelt), viewed this bust at the Court.
Mrs. Roosevelt came to the Court at 1:00 p.m., at the invitation of Justice Felix Frankfurter, for a private, relaxed luncheon with most of the justices. Frankfurter, Stone, Jackson, Owen J. Roberts, Hugo L. Black, Stanley Reed, and Wiley Rutledge were present. William O. Douglas and Frank Murphy were absent. Byrnes also was absent—he recently had resigned, leaving the Court after only one year to assist President Roosevelt in administering the economy during World War II.
Following the lunch, Stone and Frankfurter escorted Mrs. Roosevelt to the Court’s Library to see the Brandeis bust. She admired it, greatly. They also showed her painted portraits of some former justices. By 3:00 p.m., she was back at the White House.
That day, March 17, 1943, was the Roosevelts’ 38th wedding anniversary.
At 7:30 that evening, Eleanor and Franklin Roosevelt celebrated the occasion at a private White House dinner with a small number of friends, including Treasury secretary Henry Morgenthau, Jr., his wife Elinor, and their son U.S. Army Lieutenant Henry Morgenthau, III; presidential adviser (and White House resident) Harry Hopkins and his wife Louise; and Eleanor Roosevelt’s personal secretary and aide Malvina “Tommy” Thompson.
Here are some relevant images—
- From the Supreme Court’s Journal, American Bar Association president George Maurice Morris’s October 5, 1942, remarks, presenting the Brandeis bust to the Court:
- Chief Justice Stone’s remarks in response:
- Excerpts from Eleanor Roosevelt’s March 18, 1943, “My Day” column, syndicated daily in newspapers across the nation, describing her visit the previous day to the Supreme Court:
- Eleanor (knitting) and Franklin (reading) Roosevelt:
So have a very Happy March 17.
Remember to look up, at least metaphorically, at Louis Brandeis, at Eleanor Roosevelt, at Franklin Roosevelt, and, yes, at St. Patrick.
Ben Ferencz Is 103+
Tomorrow, March 11, 2023, will mark more or less the 103rd birthday of Benjamin B. Ferencz. He is the last living Nuremberg podium prosecutor, i.e., one who had a speaking role in court. He is most recently, among his many honors, recipient of the Congressional Gold Medal.
I write “more or less” about Ben’s birth date because when he (then Berrel) was born in Transylvania (then part of Romania) around March 1920, no one made a precise record (or at least none has survived) of the event.
Berrel became an emigrant baby, an American, “Benjamin,” a Hell’s Kitchen boy, a New York City schoolboy, a college student and then graduate, a Harvard Law School student and then graduate, and a World War II soldier and war crimes investigator in France and Germany.
Following Nazi Germany’s surrender, Ben Ferencz returned to civilian life. Then in 1946 he was hired to be a prosecutor at Nuremberg of Nazi war crimes. During 1947 and 1948, he was chief prosecutor in the Einsatzgruppen case (United States v. Otto Ohlendorf, et al.). He charged the defendants, leaders of Nazi killing operations in Eastern Europe, with crimes against humanity (“a systematic program of genocide”), war crimes, and membership in criminal Nazi organizations.
Ben’s cases against those defendants, built on their contemporaneous killing reports, were brief, horrifying, and irrefutable. More than twenty men were convicted. The Einsatzgruppen case was and is the biggest murder trial in human history.
In the 1950s, Ben returned to the United States. He became a prominent champion of global justice, a builder of international legal institutions, a guide to and a teacher of peace through law, and a moral exemplar to millions.
Ben has been heard to say that he is already 104 years old. Maybe. He at least is cracking the start of his 104th year.
But really, beyond being astounded, who cares about the number? What matters, now and always, is Ben’s life, his work, his ideas, his teaching, and his example.
Thank you deeply, Ben, for being humanity’s lawyer and its—our—dear, indefatigable friend.
For more information, I refer you to these sources, including many that are Ben’s voice—
- video excerpts of his 1947 opening statement at Nuremberg in the Einsatzgruppen case: https://www.youtube.com/watch?v=b67B-MoKG_o;
- a November 2005 interview of Ben: https://www.youtube.com/watch?v=e-8m5YHt__4;
- a Ben TED talk from 2017: https://www.youtube.com/watch?v=Zwa4zRWDsvI;
- the trailer of the 2018 documentary, Prosecuting Evil: The Extraordinary World of Ben Ferencz: https://www.youtube.com/watch?v=meDbZemxuK4; and
- Ben’s website, a treasure house of his stories, writings, and speeches: https://benferencz.org/.
The Nuremberg Model
In October 1948, Justice Robert H. Jackson read a Washington newspaper story about the then-ongoing project to build a new United States Courthouse in the District of Columbia, on the site of a parking lot south of the District’s Municipal Center.
Justice Jackson thought immediately of a courthouse-building project that he had been part of—in an official sense, he had led it—seven years earlier. In summer 1945, Jackson, serving as U.S. Chief of Counsel for the Prosecution of Axis War Criminals in the European Theater, had negotiated with allied nation representatives to create the world’s first international criminal court. One of the many issues that Jackson worked on was where this court—this forum for an international trial of Nazi war criminals—should be located. At the recommendation of the U.S. Army, Jackson favored the city of Nuremberg, located in the U.S. occupation zone of what had been Nazi Germany.
Jackson visited Nuremberg in early July 1945. He inspected its courthouse, the Palace of Justice, which was connected to a large prison. The buildings were war-damaged but repairable. Jackson decided that this should be the trial venue.
A couple of weeks later, Jackson showed the Palace of Justice to his British and French counterparts. They agreed that it should be the trial site. And their Russian allies soon made the agreement unanimous—the four-nation trial of the principal surviving Nazi leaders would occur in Nuremberg’s Palace of Justice.
The ensuing project of repairing and preparing the Palace of Justice for trial was managed by U.S. Army Captain Daniel Urban Kiley, a thirty-three-year-old architect from Boston who had served during World War II in the U.S. Office of Strategic Services.
Dan Kiley redesigned the Palace of Justice’s largest courtroom, Courtroom 600. In consultation with Justice Jackson and others, Kiley planned a courtroom that would center on the witness box, located in the front-center of the room. The defendants’ box and their lawyers’ tables would be in front of the witness, to the right. The judicial bench and tables for court staff would be in front of the witness, to the left. The witness would face the questioner’s podium and, behind that, five tables of prosecutors. Behind them and in a balcony would be seats for spectators, including a large press corps. The front corner of the courtroom would have a soundproof box for interpreters. Boxes for cameramen would be built into the walls of the courtroom.
As part of planning these modifications, Kiley’s team built an architectural model showing how Courtroom 600 would look.
They then, assisted by German prisoner of war labor, did the construction work.
The courtroom was completed in time for the trial to commence on November 20, 1945. It all worked well enough during the ten-month trial that followed.
Justice Jackson returned to the U.S. and his job as a Supreme Court associate justice in October 1946.
Other U.S. lawyers, led by Jackson’s former deputy Telford Taylor, who had been promoted to the rank of Army brigadier general and appointed by President Truman to succeed Jackson as U.S. chief of counsel, remained in Nuremberg. During the next two-plus years, from Fall 1946 until Spring 1949, Taylor and his team prosecuted in Courtroom 600 twelve additional cases against Nazi war criminals—the U.S. “subsequent proceedings.”
In late 1946, it seems, Telford Taylor in Nuremberg informed his office in the Pentagon that he soon would be shipping to Justice Jackson the architectural model of Courtroom 600. The Pentagon office director telephoned that message to Jackson’s secretary at the Court. She typed up the message and gave it to him.
And then, in October 1948, Justice Jackson read of the plans to build Washington, D.C.’s new federal courthouse.
Jackson, thinking of and probably looking at his Nuremberg model, wrote on October 16 to his friend Chief Justice Bolitha Laws of the District Court of the U.S. for the District of Columbia. Justice Jackson told Chief Justice Laws of the Nuremberg model and the unusual features that Dan Kiley and team had built into Courtroom 600 in 1945. Jackson invited Laws to come to his chambers to see the model.
Chief Justice Laws visited Justice Jackson at the Supreme Court on October 26, 1948. They met in Jackson’s chambers. Laws looked with interest at Jackson’s model of Nuremberg Courtroom 600…
The trail from there is cold.
The new D.C. federal courthouse got built. It today is the E. Barrett Prettyman U.S. Courthouse. Its courtrooms are U.S.-traditional, featuring the judicial bench in the center-front of the room. They do not match Jackson’s and Kiley’s 1945 Nuremberg Courtroom 600.
Yes, Nuremberg today is a powerful law and government model–our world continues, sadly, to see military aggression, war crimes, crimes against humanity, and genocide, and Nuremberg is a leading model for our work to hold perpetrators legally accountable for those crimes.
But Nuremberg also was, physically, in Justice Robert Jackson’s chambers in October 1948, an architectural model for study and learning
I hope that this model of Nuremberg’s Palace of Justice Courtroom 600 still exists. It is not, so far as I have found, at the U.S. Supreme Court or in the possession of a Jackson descendant.
So this Jackson List post is, in the end, a crowd-sourced request: If you find what once was Justice Jackson’s Nuremberg model, please let me know.
I then will do what I can to get it preserved, conserved, and displayed properly.
Today marks the 131st anniversary of Robert Houghwout Jackson’s birth. He was born on Saturday, February 13, 1892, in the Jackson family farmhouse in Spring Creek Township, Warren County, Pennsylvania (where it was a very snowy day). Robert was born on the second floor of this house, in the same room where his father William Eldred Jackson had been born thirty years earlier.
For Jackson birthday reading, here from the Jackson List archive are some previous RHJ birthday-related posts:
- “Birthday” (click here);
- “Birthday Reading (1938)” (click here);
- “Jackson Birthdays 2006, 1946 & 1892” (click here);
- “Birthday Bonds, Appreciation, Treasure” (click here);
- “Birthday Wishes from Home (1946)” (click here);
- “Turning 54 at Nuremberg” (click here);
- “Birthday Cake in Chambers (1952)” (click here); and
- “February Birthday Carnival” (click here).
The Jackson List archive site, which is word-searchable and, using quotation marks, phrase-searchable, is here: http://thejacksonlist.
Thanks to the many new subscribers who have joined the Jackson List since RHJ was only 130 years old. And to all, happy “RHJ Day.”
New Documentary Film, “Nazis at Nuremberg: The Lost Testimony”
The 1945-1946 International Military Tribunal (IMT) that adjudicated the guilt of accused Nazi war criminals was a temporary entity. After holding a nine-month-long trial in Nuremberg, it delivered its international law and factual judgments in fall 1946 on the defendants’ conduct. The IMT convicted eighteen men and three organizations as international criminals. It imposed sentences on the eighteen. It acquitted three other men. It then adjourned—it went out of business.
Although very little of the international Nuremberg trial was filmed, it all—a trial conducted in four languages—was audio-recorded.
Chief U.S. prosecutor Justice Robert H. Jackson at the podium microphone,
connected to the recording system, in the Nuremberg courtroom.After the IMT concluded, those recordings were shipped from Nuremberg to the world’s only permanent court: The International Court of Justice (ICJ), located in the Peace Palace in The Hague, in the Netherlands.
Across the next decades, the IMT recordings were stored at the ICJ but they were inaccessible.
They were unknown in public memory.
It is history’s great fortune that the IMT recordings survived. In recent years, they have been digitized. They now are available for listening online, including here, in an organized fashion, on the Robert H. Jackson Center’s website:
These Nuremberg trial recordings are the basis of a new National Geographic documentary film, “Nazis at Nuremberg: The Lost Testimony.” The film premiered in the United Kingdom last month. It will be shown in the U.S. for the first time this week.
Here is the film’s trailer:
Here is National Geographic TV’s U.S. schedule; the film will be on this Thursday, January 26, 2023, at 1:00 p.m. (1300 hours) EST:
I am honored to be one of the expert “talking heads” in the film.
Please watch, set your TiVo/DVR, and spread the word.
Supreme Court Non-Leaking Law Clerks (1952)
In Spring 1952, United States President Harry S. Truman directed Secretary of Commerce Charles W. Sawyer to seize the nation’s steel mills and keep them operating.
Truman was acting ahead of an impending steelworkers’ strike that would have shut the mills down, stopping steel production in the U.S. Truman concluded that it was vital for national security to prevent that, because steel was central, obviously, to arming U.S. forces then fighting in the Korean War, and to staying ahead of the Soviet Union in the nuclear arms race.
The steel companies responded to the seizure by filing a federal lawsuit. They argued that the president had neither constitutional nor statutory authority to seize their private property.
The case soon moved, expedited, to the U.S. Supreme Court.
The Court heard oral arguments in the “Steel Seizure Cases” (as they were nicknamed then) on Monday, May 12, and Tuesday, May 13, 1952.
At the end of that week, on Friday, May 16, Chief Justice Fred M. Vinson sent a memorandum to each of the eight associate justices.
The Chief Justice expressed hope that no information concerning the justices’ deciding would leak out of the Court. He asked, implicitly, each justice to do what he could to prevent leaking: “May I suggest that we should take extra precaution to prevent any leak in respect of our deliberations in [these] cases.”
An archived document shows that when one of the eight, Justice Harold H. Burton, received and read this memorandum, he sent it on, perhaps immediately, to his two law clerks, Charles H. Hileman and John W. Douglas. Justice Burton penciled a note on the memorandum, asking the clerks to “Please note + return.”
They did—Hileman and Douglas each initialed the memorandum and then returned it to Justice Burton.
On that Friday afternoon, the Justices met in their private conference. They discussed the steel cases and each voted. They decided, by a 6-3 vote, that Truman had acted illegally.
After the conference, Justice Robert H. Jackson returned to his chambers. His law clerks George Niebank and Bill Rehnquist were waiting for him, eager to hear how the Court would be deciding the momentous case. “Well, boys,” Jackson told them, “the President got licked.”
I feel confident, having met and interviewed Hileman, Douglas, Niebank, and Rehnquist when they were accomplished senior lawyers, about the Steel Seizure Cases and other topics, that in 1952 they were not leakers.
Indeed, based on having known and/or interviewed many former Supreme Court law clerks, I find it hard to imagine that any of them, in 1952 or in 2022 for that matter, would make an unauthorized leak of information, at least beyond telling their spouses, about a case while it was pending.
I think that none would do it because each is a person of high integrity, including about obeying the Court’s nondisclosure rules. (These days, among other measures and warnings, each law clerk signs a non-disclosure agreement at the start of her employment.) And I think that any law clerk who was tempted, somehow, to leak about a pending cases would pull back because of concerns about getting caught and destroying an anointed legal career just as it was getting started.
That’s still my bet today.
Hiring Law Clerk Rehnquist (1951)
On Tuesday, December 4, 1951—this date seventy-one years ago—United States Justice Robert H. Jackson wrote to William Rehnquist, a twenty-seven year old law student at Stanford University.
A few months earlier, Justice Jackson had met Rehnquist at Stanford. Jackson had been visiting his former law clerk Phil Neal, a Stanford Law School professor, at his home. Professor Neal asked Jackson if he wished, while there, to interview Neal’s top student as a clerkship candidate.
That person was Rehnquist. He was around because he was taking summer classes.
Jackson said sure. He met with Rehnquist in Neal’s faculty office
Jackson liked Rehnquist. They spoke for a while, including about Rehnquist’s Swedish ancestry and Jackson’s Jamestown, New York, neighbors and friends who were of Swedish ancestry.
Rehnquist reported that he would be graduating from Stanford in December. Jackson said that Rehnquist should take the bar examination thereafter, as soon as he could. Jackson told Rehnquist that he had an excellent law clerk and no immediate need for a second one. But Jackson added that he might have enough work to take on a second clerk in early 1952 and that he would be in touch with Rehnquist then.
By late November or early December, Rehnquist, about to finish law school, had heard nothing from Jackson. So he wrote him a gently nudging letter. Rehnquist told Jackson that he had California law firm job offers and did not want to let them based on the mere possibility that Jackson would offer him a clerkship.
Jackson, a practical, direct person, responded immediately. He wrote to Rehnquist on December 4, 1951, offering him the job.
* * *
Rehnquist clerked for Justice Jackson from late January 1952 until June 1953.
Rehnquist’s clerkship was interesting, challenging work, and it turned out to be very consequential in the path of his life. It was a powerful credential and valuable experience that helped him when, starting in 1953, he practiced law in Arizona. (He never made it to California.) It also made him interesting, at least, as he worked in Arizona and then national Republican party politics.
In 1969, President Nixon and the Senate appointed Arizona lawyer Richard Kleindienst to serve in the U.S. Department of Justice as deputy attorney general. Kleindienst then recommended, and Nixon nominated, his friend William Rehnquist to serve as assistant attorney general heading DOJ’s office of legal counsel. Rehnquist was qualified to lead its work providing constitutional advice to the executive branch because, among other experiences, he had been a Supreme Court law clerk.
Two years later, as President Nixon struggled to choose persons to nominate to two Supreme Court seats that had become vacant simultaneously, Assistant Attorney General Rehnquist’s name became part of the discussion.
Nixon’s early reactions, captured on tape, were not enthusiastic.
Then advisers informed Nixon that Rehnquist had clerked for Jackson.
That, in an instant, clinched a nomination for Rehnquist.
Richard Nixon had, since his 1930s law student days, admired Robert H. Jackson greatly. Good enough to clerk for Jackson was, to Nixon, good enough to serve on the Supreme Court.
Eleanor Jackson Piel (1920-2022)
I am very saddened that Eleanor Jackson Piel, a great New York City lawyer, has died at age 102.
Mrs. Piel, as some called her, was a trailblazer, including as a brave civil rights lawyer. She also was extraordinarily wonderful as a person. I was lucky to know her a bit, including from her generous visits to speak to law students at St. John’s University. She always was “blow-the-crowd-away” awesome—she was the lawyer and the person we all wanted to be.
I recall speaking to Eleanor about Justice Robert H. Jackson. She admired him, including for his dissenting opinion in United States v. Korematsu and for his work as a post-World War II war crimes prosecutor (as she had been too, in Tokyo).
I did ask her the obvious question.
She answered no—they were not related.
Margalit Fox’s great New York Times obituary today confirms that Eleanor’s Jacksons were not Robert’s Jacksons.
His Jacksons were 18th century Scottish-Irish immigrants to the U.S.
Her Jacksons were made in America. Sometime before Eleanor was born in 1920, her father Louis Koussevitzky emigrated from Lithuania to the U.S. Upon arrival, he changed his surname to Jackson. Eleanor explained that Louis picked “Jackson” because it was the most American surname that he could conceive.
Maybe that was true at the time.
I hope that today this idea is more amusing than true.
I know that if the U.S. today is closer to its egalitarian ideals, that progress is due to the work of heroes like Eleanor Jackson Piel.
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- Today’s New York Times obituary:
- Video of a 2013 television interview:
- A 2009 Berkeley Law profile:
- Audio of Eleanor Jackson Piel’s oral argument to the U.S. Supreme Court in Adickes v. S.H. Kress & Co. (she won):
Supreme Court Chambers Door Nameplates
At the United States Supreme Court, today is “First Monday,” the start of the Court’s new term.
Justice Ketanji Brown Jackson, the Court’s newest member, has been an associate justice since summertime—after receiving her commission from President Biden on April 8, Justice Jackson took the Supreme Court oath and began to serve as a justice on June 30. She worked through the rest of the summer in preparation for the coming term. Justice Jackson’s investiture ceremony was last Friday. This morning, she, with colleagues, took the bench for the first time to hear oral arguments.
In conjunction with Justice Jackson’s investiture, people who visited the Supreme Court took photographs of her chambers (office) door, and specifically her “JUSTICE JACKSON” nameplate, and then shared their photographs widely. Here is one example—
In reaction to seeing “JUSTICE JACKSON” on the door of a U.S. Supreme Court justice’s chambers, some people then asked, I know not entirely seriously, whether this shiny, new-looking nameplate is that same one that was on the door of Justice Robert H. Jackson’s chambers during his Court service (1941-1954).
It is not. Justice Ketanji Brown Jackson’s chambers door nameplate does not include stray letters—“MR.”—that were on Justice Robert Jackson’s door, and that have nothing to do with being a Supreme Court justice.
A Law-Abiding Justice (1952)
Robert and Irene Jackson purchased Hickory Hill, a six-acre property in rural McLean, Virginia, in Summer 1941. At that time, Jackson was United States Attorney General and a nominee to serve as an associate justice of the U.S. Supreme Court. He soon was confirmed and commissioned as a justice. The Jacksons closed on their purchase of Hickory Hill and lived there for the rest of his life.
Robert was born on a Pennsylvania farm and then grew up in the rural areas of western New York State. Irene came from a city, Kingston, New York, but she also enjoyed the outdoors. In particular, they both were horse people, so it was a joy for them to live at Hickory Hill, to have horses in their own barn at their home, to sometimes raise pigs and other animals too, to grow lots of vegetables, and to have open space, all not too far from Robert’s Supreme Court workplace and their deep ties in Washington, D.C.
The Hickory Hill property—an antebellum house, expansive lawn, trees, stable, horses, other animals, gardens, cars, and other machinery—was a lot to manage, and of course Justice Jackson had a demanding day job. So he and Irene employed a handyman/caretaker, Stuart Loy, who really ran and maintained the place. Loy, a native Virginian, was highly skilled and a very hard worker. He became the Jacksons’ friend, joining them and other family members and friends on horse rides, hikes, and fishing trips.
Although Stuart Loy had the big job of maintaining Hickory Hill, he also did at least some moonlighting. Maybe it was paid, but my guess is that he just volunteered sometimes to assist others in the area.
One instance of this occurred on Friday evening, May 2, 1952. Loy used an old rotary mower to cut the lawn of the Jacksons’ friends Sam and Mary Neel, who lived with their young family in the house next door. As Loy was mowing, a blade flew off, severing his Achilles tendon. Mary Neel bandaged him up and took him to a hospital.
The Jacksons were not home, it seems, when Loy was injured. Perhaps Justice Jackson was working late at the Supreme Court, preparing for the justices’ conference the next morning. (In early May 1952, the justices were busy drafting opinions in cases that had been argued that term. They also were considering appeals and petitions for review, including some that were momentous. In the next days, they would agree to hear on an emergency basis Youngstown Sheet & Tube Co. v. Sawyer, a case that produced one of the leading decisions in Court history. The case concerned the constitutionality of President Truman’s seizure of the nation’s steel mills to prevent them from being shut down by a steelworkers’ strike during that Korean War period. (A few weeks later, the Court decided that the president had acted unconstitutionally.)
A doctor treated Stuart Loy’s injury. Soon all was well—Loy, after being laid up for a time, recovered and resumed working.
Because Loy was injured while working, the doctor reported the incident to Virginia’s Industrial Commission. He also reported that Justice Jackson was Loy’s employer.
The Commonwealth of Virginia checked its records and found no indication that employer Jackson had workmen’s compensation insurance. State law required employers of seven or more people to purchase and maintain such insurance.
On July 24, Virginia wrote to Justice Jackson. It notified him of the situation, asked how many employees he had, directed him to show that if he had seven or more employees he had insurance, and added that he faced the possibility of a fine “for failure to report promptly and properly accidents.”
Justice Jackson did not receive this letter. He was on vacation at the Bohemian Grove in California. He thus did not reply.
The Commonwealth of Virginia, apparently feeling that Jackson was ignoring its letter, sent him a second letter on August 7. It repeated that Jackson had a duty to report to the Commonwealth on his number of employees and his workmen’s compensation insurance coverage. Virginia also stated, perhaps showing some deference to Jackson’s position as a Supreme Court justice, that it was giving him ten extra days to respond.
By Saturday, August 9, Justice Jackson was back in Washington. He soon found the Commonwealth of Virginia’s two letters to him.
On August 13, Jackson wrote back to Virginia. He reported that:
- Stuart Loy was injured at the Neels’ home, not at the Jacksons’;
- Loy was injured by a mower that was not Jackson’s;
- he employs Loy “by the week … as chauffeur and caretaker of my premises”;
- he paid Loy’s full wages every week when he was recovering from the injury “because he needed it”;
- he (Jackson) did not employ seven people—at most he employed Loy plus one maid in the house, and sometimes 2-3 more day helpers on special occasions.
And that was, it seems, the end of it. At least that is the end of the correspondence in the papers that Justice Jackson preserved as a set.
It seems that Jackson’s conduct, once he got around to explaining it, was fully satisfactory.
Stuart Loy continued to work happily for the Jacksons and to be friendly with the Neels.
World Leaders at Church House
Following yesterday morning’s state funeral service at Westminster Abbey in London for Queen Elizabeth II, members of her family, some officials from Commonwealth nations, and some members of royal families from around the world traveled to St. George’s Chapel in Windsor Castle. The Queen’s remains were interred there.
Many heads of state, senior foreign government ministers, and international diplomats who had attended the funeral did not travel from London to Windsor. Instead, United Kingdom Foreign Minister James Cleverly hosted them at a reception at Church House. It is a stately red-brick building in an enclosed yard on the Westminster Abbey grounds.
Church House is, as its name communicates, the headquarters office of the Church of England. In June 1940, King George VI and Queen Elizabeth, parents of then-Princess Elizabeth (the future Queen Elizabeth II), opened this Church House building. In 1945, the United Nations Preparatory Commission met there, as did, in 1946, the U.N. Security Council. In 1988, Queen Elizabeth II unveiled a tablet at Church House commemorating the centenary of the Church corporation.
Church House is notable for all of these things, but it is perhaps most notable for being in summer 1945 the site of the London Conference of representatives of the United States, the U.K., the Union of Soviet Socialist Republics, and the Republic of France. The U.S. representative—President Truman’s appointee “to act as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal”—was U.S. Supreme Court Justice Robert H. Jackson.
Over two-plus months that summer, the London Conference representatives met in official sessions at Church House. They fulfilled and advanced the declarations that their government leaders had made during World War II: that the major German Nazi leaders were international law violators; that they were arch-criminals whose offenses transcended particular locations and affected more than particular victims; and that they should be punished by an international process.
On August 8, 1945, the London Conference concluded with the signing, in Church House, of the London Agreement. It was and is a historic event in international diplomacy and peacemaking and a cardinal development in international law.
In the London Agreement, the Allies announced their decision to take a path of law and public accountability rather than to act summarily, with their unlimited military power and their high desire for vengeance, against their Nazi prisoners. The Allies chose, despite the absence of a peace treaty or any other legal or political constraint, to address the possible legal culpability of former Nazi leaders through a public, juridical process. To do so, the Allies created, in the London Agreement, an international criminal court, the International Military Tribunal. In a Charter annexed to the Agreement, they prescribed the IMT’s constitution, jurisdiction, and functions.
I hope that some of the officials who gathered, mourned, and socialized yesterday at Church House knew and recalled that they were at the 1945 London Conference and London Agreement site—the site of the legal birth of the international Nuremberg trial.
Encounters with British Royalty
Robert H. Jackson’s ancestors included Englishmen, but it seems that they were not loyal to the crown.
His great-great-grandfather Uri Jackson, who lived from around 1750 until at least 1781, was a farmer in colonial Connecticut. He also served as a corporal in the Connecticut militia during the Revolutionary War.
One of Robert’s great-grandfathers on his father’s side, George Ferros Eldred, was born in London, in the Middle Temple, in 1787. His father William, a barrister, was under treasurer of the Middle Temple, one of the Inns of Court that were homes of English lawyers. But George was William Eldred’s younger son. As Robert Jackson commented in the early 1950s, “younger sons, of course, did not succeed their fathers under the British scheme of things. He came to America.”
Gravestone of George Eldred (died 1878) & Laura Cady Eldred (died 1891), Spring Creek Cemetery, Spring Creek, PennsylvaniaRobert Jackson had various encounters with the top of “the British scheme of things.” The first occurred in summer 1924. Robert Jackson, then a successful New York State lawyer living and working in Jamestown, attended, with his wife Irene—a Kingston [ba-dum-bump], New York, native—an American Bar Association week-long meeting in London with the English Inns of Court, the Law Society, and the Canadian Bar Association. On July 24, 1924, the Jacksons were among many guests who attended a garden party that King George V and Queen Mary hosted at Buckingham Palace.
The Jacksons’ next brush with British royalty occurred in Washington in 1938. King George VI and Queen Elizabeth were visiting the U.S. Robert Jackson was Solicitor General of the U.S. On June 8, he and Irene attended a White House performance for the King and Queen of American music. And the next afternoon, the Jacksons attended a party that British Ambassador Ronald Lindsay and his wife Lady Elizabeth Lindsay (an American) gave for the King and Queen in the garden of the British Embassy.
Seven years later, in spring 1945, as Robert H. Jackson was completing his fourth year of service as an associate justice on the U.S. Supreme Court, President Truman appointed him to serve as U.S. chief of counsel for the prosecution of Axis war criminals in the European Theater. This became Jackson’s fall 1945—summer 1946 job as chief prosecutor at Nuremberg of Nazi war criminals. Before Jackson got to Nuremberg, however, he lived and worked during summer 1945 in London, negotiating with allied government counterparts to create the Nuremberg international court and define its charter.
On August 15, 1945, Justice Jackson took an opportunity to see King George in action at a formal occasion, the opening of Parliament. Jackson obtained a ticket to stand in the Royal Gallery to hear the King’s address. He saw robed and bewigged Lord Chancellor Jowitt, with whom Jackson had worked in the war crimes court negotiations, escort the King (“entirely impassive,” Jackson said later) and the Queen (“bowing to the occupants of each box”). They walked behind his carried crown, “through a line of Beefeaters in scarlet uniforms.” Alas, Jackson in the gallery was unable to hear the King’s address.
Justice Jackson definitely met British royalty at the Supreme Court in 1951. On November 2, 1951, Chief Justice Vinson hosted Princess Elizabeth—soon to become Queen Elizabeth II—and her husband Duke Philip at the Court. The Princess and Duke entered by the Court’s front entrance. They were escorted to the Chief Justice’s chambers. Each of the associate justices, including Jackson, was assembled there and met them. The royals’ tour also included the courtroom. I am sure that it was pleasant and awkwardly official. To my knowledge, Justice Jackson wrote nothing about it.
A final Jackson, or at least a Jackson files, tidbit regarding the British royal family dates to Queen Elizabeth II’s coronation. It occurred in London on June 2, 1953. A French couple, Henry and Arlette Leger, who had worked on Jackson’s Nuremberg staff, were in London on that day. They wrote a postcard noting the occasion to Elsie Douglas, Jackson’s secretary at the Court who had been with him in London and Nuremberg during 1945 and 1946 and became a friend of the Legers. They mailed it with a King George postage stamp.
The postmark, applied the next day, is striking. Cancelling the King George stamp, it announces an official wish that in fact transpired: “Long Live the Queen.”
Reva Siegel’s Jackson Lecture at Chautauqua Institution
On Monday, July 11, 2022, Reva Siegel, Professor of Law at Yale University, was Chautauqua Institution’s 18th annual Robert H. Jackson Lecturer on the Supreme Court of the United States.
To view the video of Professor Siegel’s lecture, which focused on the Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization, declaring the constitutionality of Mississippi’s anti-abortion law and overruling Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), click here:
Professor Siegel also has posted a draft paper, “Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance,” that will be published in the Texas Law Review. To download and read the paper, click here:
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Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. She teaches Constitutional Law, Reproductive Justice, and other courses. Her writing draws on legal history to explore questions of law and inequality and to analyze how courts interact with representative government and popular movements in interpreting the Constitution.
For her Yale webpage, click here.
To download and read more of Professor Siegel’s articles, papers, and briefs, visit her Social Science Research Network (SSRN) page:
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Chautauqua Institution’s Robert H. Jackson Lecture is named in honor of the former Chautauquan, Jamestown lawyer, New Dealer, U.S. Solicitor General, U.S. Attorney General, U.S. Supreme Court justice, and Nuremberg chief prosecutor.
The annual Jackson Lecture at Chautauqua Institution is a leading expert’s consideration of the Supreme Court, its Justices, significant decisions, and related topics in the weeks following the Court’s start of its annual summer recess.
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, legal writer and CNN Worldwide chief legal analyst;
- 2009: Paul D. Clement, Bancroft PLLC 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;
- 2017: Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit;
- 2018: Justice Rosalie Silberman Abella, of the Supreme Court of Canada;
- 2019: Donald B. Verrilli, Jr., Munger, Tolles & Olson LLP partner and former Solicitor General of the U.S.;
- 2020 (online): Ruth Marcus, Washington Post deputy editorial page editor and columnist; and
- 2021 (online): Melissa Murray, New York University professor and Strict Scrutiny podcast co-host.
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And some final words on Chautauqua Institution—
It is where an attacker last week tried to kill writer Salman Rushdie just before he was to speak on the stage of Chautauqua’s Amphitheater.
That atrocity demonstrates in a tragic way that Chautauqua and all aspects of the peaceful assembly that it stands for are great but also fragile treasures. They were empowering resources in Robert H. Jackson’s own life. They have been that ever since, including in the Jackson Lectures, for so many of us.
We all need to know, value, and rededicate ourselves to nurturing the qualities of living and learning together in peace, at Chautauqua Institution and in all of our places.
Skinner, Reproductive Rights, and Justice Robert H. Jackson
This is a quick update on last week’s post.
On June 1, the 80th anniversary of the U.S. Supreme Court’s landmark decision in Skinner v. Oklahoma, I participated in a panel at Georgetown University Law Center with Professors Victoria Nourse, Michele Goodwin, Melissa Murray, and Brad Snyder 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 Skinner decision is an important part of U.S. constitutional law doctrines that protect individuals from government regulations and penalties in the areas of contraception, abortion, private intimacy, and other fundamental bodily rights.
You can watch the panel on C-SPAN, at this link: https://www.c-span.org/video/
My lecture, about Justice Robert H. Jackson’s concurring opinion in Skinner, other aspects of his judicial work, and his work as U.S. chief prosecutor at Nuremberg of Nazi war criminals, begins at time counter reading 21:20.
Reproductive Rights Panel, Washington, June 1
As you know, the Supreme Court of the United States is likely to decide very soon, in Dobbs v. Jackson Women’s Health Organization, whether a Mississippi law banning abortions after fifteen weeks of pregnancy—i.e., well before fetal viability outside the womb—is constitutional.
The Dobbs case involves major constitutional questions regarding abortion rights and women’s rights. It also is about the scope of individual’s rights to bodily integrity and autonomy, including rights to decide freely to have sex or not and a person’s rights to use her/his/their natural bodily capacity to seek to reproduce or not.
These issues and their history will be discussed next Wednesday, June 1, 2022, at noon EDT, in a panel on “The Unknown History of Reproductive Rights & Eugenics: From Skinner to Roe.”
The panel will occur at Georgetown Law School, 600 New Jersey Avenue, NW, in Washington, D.C. The panel is co-sponsored by the Robert H. Jackson Center.
The panel participants will be:
- Victoria F. Nourse, Ralph W. Whitworth Professor of Law at Georgetown;
- Michele Bratcher Goodwin, Chancellor’s Professor of Law at the University of California-Irvine;
- Melissa Murray, Frederick I. and Grace Stokes Professor of Law at New York University;
- Brad Snyder, Professor of Law and Anne Fleming Research Professor at Georgetown; and
This event will be free and open to the public. It also will be streamed online.
Anyone who is interested in attending or watching needs to RSVP—
- To attend in-person: https://forms.gle/7oM5FS1YaN5ZwgXA7
- To watch online: https://georgetown.zoom.us/webinar/register/WN_b14W_QcpS7Wht2TmiRrm9A.
The occasion for this panel, in addition to the Supreme Court’s impending Dobbs decision, is that its date, June 1, 2022, will mark the 80th anniversary of the Court’s landmark decision in Skinner v. Oklahoma.
In Skinner, the Supreme Court unanimously declared unconstitutional an Oklahoma law that provided for the sterilization of “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.
When Skinner was argued and decided in 1942, Justice Robert H. Jackson was the Supreme Court’s junior justice—he had been appointed less than a year earlier. In the case, Justice Jackson wrote a concurring opinion that is textually compact and conceptually very large. (I will have more to say about that opinion on the panel next Wednesday.)
- Skinner v. Oklahoma (June 1, 1942); and
- Professor Nourse’s book, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics.
So please spread the word, RSVP, attend next week’s “Skinner Day” event, or watch online.
I and we look forward to seeing some, even many, of you at Georgetown Law School next Wednesday.
Social Security (1937)
In 1935, the United States Congress passed and President Franklin D. Roosevelt signed into law the Social Security Act. It was a momentous piece of welfare legislation, designed to minimize the human suffering caused by unemployment and by old-age poverty. The law attacked these problems with new federal taxes on employers and employees, with expenditures and credits to encourage States to enact unemployment tax and compensation systems, and with guarantees of and expenditures for old-age pensions.
Private business interests, objecting to these new regulations, filed federal lawsuits attacking the constitutionality of both parts of the Social Security law. In 1937, after mixed judgments in federal courts of appeals, the U.S. Supreme Court took the cases.
Assistant Attorney General (Antitrust Division) Robert H. Jackson and DOJ attorney Charles E. Wyzanski. They argued Steward Machine Company v. Collector of Internal Revenue, on the constitutionality of the Social Security Act taxes on employers, on April 8 and 9, 1937. They argued Helvering v. Davis, on constitutionality of Social Security’s old-age benefits and the employer taxes that pay for them, on May 5.
The Court’s decisions came swiftly.
On Monday, May 24, 1937—on this date eighty-five years ago—the justices took the bench at noon. Spectators, anticipating the decisions, had been there for hours. Robert Jackson, Charles Wyzanski, and many other government officials were there too.
Chief Justice Charles Evans Hughes, looking to his left to the far end of the bench, nodded to the junior justice, Benjamin N. Cardozo. Cardozo announced that he had been instructed to deliver the opinion of the Court in the Steward Machine Company case.
A buzz went through the courtroom. The crowd recognized immediately that the Court was upholding the constitutionality of Social Security’s unemployment insurance taxes and connected provisions—Cardozo announcing the decision could mean nothing else.
The decision was 5-4. Justice Cardozo, announcing the Court’s opinion, spoke with, for him, atypical clarity and force. Justice James C. McReynolds then spoke extemporaneously, stating his dissent, and that “the Union is being destroyed.” Justice George Sutherland then announced his dissent, which Justice Willis Van Devanter joined, on a narrow issue. Justice Pierce Butler then announced his more sweeping dissenting opinion.
Justice Cardozo then announced his opinion for the Court in Helvering v. Davis. It upheld the constitutionality of Social Security’s old-age benefits and employer taxes. The vote was 7-2. Cardozo announced the dissenting votes of Justices McReynolds and Butler, who did not write opinions.
Justices then announced decisions in six other cases, and then they recessed for the day.
Some celebrations occurred.
Justice Cardozo, who coincidentally turned sixty-seven that day, posed (or maybe he had done so that morning) for a press photograph at his apartment. If he celebrated his birthday at all, he likely did it quietly.
Robert Jackson and Charles Wyzanski accepted numerous congratulations, first at the Court and, later, back the Department of Justice.
In one sense, they had done very much—they had, by winning, ensured the survival of one of the U.S.’s most decent laws.
But Jackson and Wyzanski were, of course, merely (excellent) advocates. The Court rendered the judgments. And so the Court as an institution, and specifically the five and the seven justices who were in the respective decision majorities, did much more than the lawyers had.
But really even the justices—the Court—did not do very much. And properly so. The Court’s decisions in Steward Machine and Davis, which were part of the Court’s turn in spring 1937, simply showed restraint. The decisions recognized the breadth of federal powers under the Constitution. The decisions respected the public majorities and their elected leaders who had used these powers seriously, to promote….
Well, it’s right there in the name of the law: Social Security.
The American Stance of Brown v. Board of Education
Today marks the sixty-eighth anniversary of the United States Supreme Court’s May 17, 1954, decisions in Brown v. Board of Education and its companion cases.
Those decisions are among the most important legal events in U.S. history.
They also are, as examples of the U.S. government standing up for the equality that is the U.S. Constitution’s command and its moral core, vital examples for the country today—for all of its people, and for our future.
In Brown, et al., the Supreme Court—Chief Justice Earl Warren and eight Associate Justices, including Robert H. Jackson—held unanimously 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.
Today’s Brown anniversary occurs as the U.S. is looking, I hope very hard, at the realities of racist, anti-Black murders two days ago in Buffalo, New York.
In due course, that killer will be prosecuted at the Robert H. Jackson United States Courthouse in Buffalo.
Please see that those crimes were acts of racial segregation—a person, ignorant, empowered horribly, doing evil, inflicting suffering and death, based on beliefs in racial inequality.
Please reread Brown. Please see it as a high moment when nine justices, persuaded by extraordinary lawyers and by the facts that the justices knew in their own lives, saw racism around them and in government and stood up against it because, legally and morally, that was right.
And then, please, become more American by doing the same.
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For Brown Day reading, here are the decisions:
- Brown v. Board of Education of Topeka, Kansas (and companion cases from Delaware, South Carolina, and Virginia — the State cases); and
- Bolling v. Sharpe (from the District of Columbia — the Federal case).
And click this link to get to relevant pieces in the Jackson List archive, including:
- from 2010, “May 17, 1954”;
- from 2011, “Brown Day,” about winning attorney Thurgood Marshall; and
- from 2018, “Nine Votes, Nine Present: The Unanimity of Brown v. Board of Education.”
Nuremberg on Jeopardy
I’ve learned from a regular Jackson List reader who also is a regular Jeopardy viewer—those are two large, illustrious, and, I think, not insignificantly overlapping groups—that on Monday, May 9, Jeopardy included a second round category, “The Nuremberg Trials.”
The three contestants handled the five questions, each of course phrased as an answer, quite capably but not perfectly.
The Robert H. Jackson question, about his absence from the Supreme Court of the United States to be chief U.S. prosecutor at Nuremberg, was not a stumper.
Each contestant did draw a blank on the name of the lead defendant at the 1945-1946 International Military Tribunal in Nuremberg, even after seeing his photograph.
This made me smile. It’s pleasing that that person, once the number two official in a war-waging, murderous regime that proclaimed it would be a thousand-year German Reich, is not at the front of some very smart U.S. minds.
You can watch the segment here:
Yes, indeed: Who was Hermann Goering?
Best Wishes to Judge, Soon Justice, Jackson!
In the history of the Supreme Court of the United States, two people have held the title “Justice Jackson.”
Soon, wonderfully, there will be the third.
The first Justice Jackson—19th century Jackson—was Howell Edmunds Jackson, of Tennessee. He was commissioned an associate justice in 1893, when he was sixty years old. He soon became ill with tuberculosis and died in 1895.
The second Justice Jackson—20th century Jackson—was, of course, Robert Houghwout Jackson. Born in 1892 in Pennsylvania, Robert was a small boy during Justice Howell Jackson’s brief service on the Court, but they were not related. Robert moved to western New York State shortly thereafter. It was his home from the late 1890s until the U.S. Senate in 1934 began confirming President Roosevelt’s nominations of Robert Jackson—ultimately there were six—to high federal offices. He was commissioned an associate justice in 1941, when he was forty-nine years old. He served on the Court, except for one year away prosecuting Nazis at Nuremberg following World War II, until his death in 1954.
The third Justice Jackson—21st century Jackson—will be Ketanji Brown Jackson. She is age fifty-one and a judge of the U.S. Court of Appeals for the District of Columbia Circuit. Nominated in February by President Biden and confirmed yesterday by the U.S. Senate, she will become an associate justice when she is commissioned by the president, probably in June or July.
I always am reluctant to speculate when someone asks me, “What would Robert H. Jackson think?” about a contemporary event.
But for many reasons, I can say that he would be delighted about the coming appointment of the third Justice Jackson.
First, she is accomplished and excellent. In her academic studies and achievements, in her clerkship training, in her years of private law practice, in her years of government service, in her writing and speaking, and in her personal temperament, she is superb. Robert Jackson also was every one of those things, so of course he would like and admire that Ketanji Jackson is, well, so Jacksonian.
Second, Robert Jackson would admire what Ketanji Jackson has accomplished and represents as a path-marking woman. He lived in much more sexist, male-dominated times than our own. But he was somewhat better than other men in those times—he included strong, trusted colleagues who were women, including his own daughter, his excellent legal secretaries (who were senior advisers and de facto lawyers; one later became a judge), a senior military officer, and government lawyers in his range of high pursuits. He would regard Ketanji Jackson as equal to any man and be glad to work alongside her on any team.
Third, Robert Jackson would be so delighted to see, in Ketanji Jackson, a Black woman becoming a Supreme Court justice. He lived in very racist—segregationist; otherwise discriminatory; racially oblivious; white superiority-presumptuous—
I know that Justice Robert H. Jackson would love to watch any Supreme Court argument next fall and in years ahead.
I am confident that if that could happen, he would be pleased, deeply, to look at the bench and see Justice Ketanji Brown Jackson.
Russia Prosecutes Its Crimes in Ukraine
In 1945, after the Allied powers defeated Nazi Germany in World War II, the Allies prosecuted Nazi leaders for international crimes, including aggressive war, war crimes, and crimes against humanity. These prosecuting nations included Russia, then in the governmental form of the U.S.S.R.
In this historic indictment, and in the Nuremberg trial that followed, Russia was part of prosecuting Nazis for specific crimes in Ukraine—the same criminal acts that Russia today is committing in Ukraine.
I recount the horrific details of these Russian-charged crimes in Ukraine in an essay, “Remember the Nuremberg Indictment,” that will be published tomorrow in the New York Law Journal.
To read it, click here.