In the United States, Tuesday, November 2, 1948, was election day. Almost 48,000,000 Americans voted, including to choose the next president.
U.S. Supreme Court Justice Robert H. Jackson was not one of the voters. He had stopped voting when he had become a justice, in 1941. Jackson believed that a Supreme Court justice should not express, even in a private voting booth, a preference for a political candidate.
But Jackson was very interested, all his life, in politics. He had been an active Democrat. His interest in politics did not disappear when he became a justice.
In Fall 1948, Jackson was particularly interested in the presidential race because he knew well the two leading candidates.
Jackson had known the Republican presidential nominee, New York governor Thomas E. Dewey, since 1934. They met when Dewey, then a U.S. Department of Justice lawyer, worked on tax prosecutions alongside Jackson, then a senior U.S. Treasury Department lawyer.
Thereafter, through their rising legal careers, political activities, and law enforcement work in New York and Washington, Jackson and Dewey crossed paths regularly. Indeed, as each became a leading national figure in his political party, it seemed that Jackson and Dewey were destined to run against each other as candidates for a top political office. For example:
In early 1938, it seemed that New York governor Herbert Lehman, a Democrat, would not seek reelection, that the Democrats might nominate Jackson (then a senior U.S. Department of Justice official) to succeed him, and that the Republican candidate would be Dewey (then the Manhattan district attorney). But Lehman decided later that year to run, and he defeated Dewey.
In early 1940, it seemed that President Franklin D. Roosevelt was retiring after two terms, that the Democratic Party presidential candidate might be Jackson (then the U.S. attorney general), and that District Attorney Dewey might get the Republic nomination. But Roosevelt did run, Dewey did not get his party’s nomination, and FDR of course won his third term.
In 1944, Dewey, who had won election as New York’s governor in 1942, won the Republican Party presidential nomination. If Roosevelt had not run then for a fourth term, … But he did, and he won.
In 1946, when Justice Jackson was prosecuting Nazi war criminals in Nuremberg, Democratic Party leaders wanted him to come home, resign from the Supreme Court, run for governor of New York and defeat Governor Dewey, … Jackson said no thanks. He stayed at Nuremberg, and on the Court, and Governor Dewey won reelection.
Dewey’s 1948 presidential campaign opponent was, of course, the incumbent, if accidental, president, Harry S. Truman. He had been FDR’s vice president for less than three months when the president died in April 1945.
Two weeks after Roosevelt’s death, President Truman recruited Justice Jackson, whom he knew and admired greatly, to represent the U.S. as chief prosecutor of the top Nazi war criminals.
Truman’s inherited presidential term was not smooth. But in 1948 he decided to seek election in his own right. He won his party’s nomination. That fall, he campaigned hard, ignoring all the smart people who knew and said that he was doomed to lose to Governor Dewey.
Two days after the election, on November 4, 1948—seventy-five years ago on this date—President Truman, at Union Station in St. Louis, Missouri, spotted a typo in the November 3 Chicago Daily Tribune early edition headline:
I suspect that Justice Jackson was, like many people, a bit surprised by the result. To my knowledge, Jackson had not predicted a Dewey victory. Jackson had, in a private letter to his son that he dictated on Election Day, joked negatively about candidates Dewey and Truman and all politicians. Jackson said,
I suppose we will know the verdict by midnight tonight. But I feel a little like the fellow I heard of, who said, “Thank God I don’t have to vote for both of those fellows!” I don’t know what the changes will be, but I am sure [that] many of them will be for the worse.
Jackson did not really believe that. He thought well of politics, of elections, of voters, and of participating in democratic self-government. He thought well of politicians, including Truman and Dewey.
It is interesting to imagine a Jackson-Dewey political race. It would have featured hard campaigning, substantive disagreements, and mutual regard—the right things.
Today is “First Monday,” the start of the new term at the Supreme Court of the United States. The Court’s previous term began a year ago—the Court meets only in an “October Term,” beginning on each October’s first Monday and lasting until the next October’s first Monday.
Although the justices thus have been “in term” over the summer, they have been on recess for the past three months. They have not met for an in-person Court session since they adjourned on June 30, 2023.
In the 1980s, John G. Roberts, Jr., a young Reagan administration attorney, quipped that “[o]nly Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”
That observation was an exaggeration. During summertime, the justices, including now-Chief Justice Roberts, can travel, read things that do not relate to the law or Court cases, pursue other interests, and generally rest up for the impending October-June months of preparing for and hearing oral arguments, conferring with each other, deciding cases, and drafting and revising opinions. But justices also do some work during the summer. They read briefs in cases that will be argued in the coming term, they read and prepare to vote on petitions asking them to add new cases to their docket, and they hear and act, individually and sometimes together, on emergency matters.
There is no doubt, however, that justices have less work to do during summertime than they do in-term.
One statement of this reality came from Justice William O. Douglas, who on October 7, 1940 (First Monday), when he had been on the Supreme Court for two summer recesses, wrote these lines in his diary:
Oct 7 1940. Court convened today for a brief
session. We adjourned shortly until Oct 14, 1940
so that we could have a series of [private, justices-only] conferences
to pass on the petitions and appeals which had
come in during the summer. I am anxious to
get back to work after the long vacation. I saw
[U.S. Secretary of the Interior] Harold Ickes, who said “I suppose you have
been working hard all summer.” “Work?” I
asked. “Why, it did not take me more than
two weeks out of four months [of recess] to do [sic—go] over
the petitions and appeals.” He laughed + said, “You
are at least honest. Most of them [the other justices] try to make
me believe that they slaved all summer.”
Actually, the summer’s work is very light.
I went over all the cases in Le Grande Ore[gon]
+ Gearhart, Ore.
The press has a history of reporting on the justices’ summer activities, including travel and leisure. As wartime summer 1943 approached, for example, the Washington Post published this detailed report by society columnist Hope Ridings Miller on the justices’ summer plans:
And during peacetime summer 1954, the Associated Press reported what each justice was up to—including Justice Douglas traveling to London, Paris, Madrid, Casablanca, Cairo, Beirut, Tehran, Karachi, New Delhi, Jakarta, and cities in Australia.
I hope that today’s justices are refreshed by their summer rest, travels, and other pursuits and ready to do good work in the new term.
In France in 1789, the revolutionaries who had overthrown the absolute monarchy created a Constituent Assembly. It decided to draft a new constitution, beginning with a declaration of principles.
The Assembly produced this document, The Declaration of the Rights of Man and of the Citizen, in August 1789. It was inspired by the 1776 American Declaration of Independence. The French Declaration was a powerful statement of every person’s natural rights. It was a claim of human moral entitlement. (For the text, click here.)
The French Declaration of the Rights of Man has always been meaningful to people who seek freedom from real and threatened oppression. This was true in the United States in 1791, when France’s Declaration became a model for the first ten amendments to the Constitution of the U.S.—the U.S. Bill of Rights. And to point to another very consequential time, this was true during World War II, when Nazi Germany occupied much of France and most of Europe, perpetrated atrocities against people there, and waged war against the Allied nations, including the U.S.
In summer 1943, Robert H. Jackson was completing his second year as an associate justice of the Supreme Court of the U.S. He had served previously for seven years in high positions in President Franklin D. Roosevelt’s administration, culminating in service as U.S. Attorney General. Justice Jackson was one of the U.S.’s leading government officials. He was renowned as one of his country’s top law and government voices. It makes sense that when the anniversary of the French Declaration of the Rights of Man came around that year, the U.S. Office of War Information (“OWI”) asked Jackson to write a public statement.
In August 1943, Justice Jackson wrote and sent the following text to OWI:
Today is the one hundred fifty-fourth anniversary of the French Declaration of the Rights of Man.
This important document is one of the most important developments in the history of the growth of democratic and republican ideas. It was intended as a preamble to the Constitution, which was completed two years later and was to ratify the Revolution—a revolution which shattered the outworn eighteen century system, uprooted the remnants of feudalism and prepared Europe for the modern age.
“Men are born and remain free and equal in rights”, proclaimed this famous declaration of human rights; “Law is the expression of the general will”; “The free communication of ideas and opinions is one of the most precious of the rights of man.” And so forth.
Through principles like these the Revolution had vindicated the rights of man; it stood for liberty, enlightenment, and brotherhood. To the best spirits of Europe it was the dawn of a dazzling new age. Definitely, it was a forward movement. Gradually this great human movement forward has been built up by a multitude of progressive elements.
A few years ago, however, a backward movement was started in some parts of the world. A wave of totalitarianism for a while threatened to sweep away every progressive accomplishment. Now totalitarianism stands exposed before the world: It is a resuscitation of medievalism. Hitler offers mankind a step toward the old Stone Age.
Hitler believes in amassing riches by violence and looting, not by scientific advances; in fettering the human mind, not in liberating and enlarging it. Indeed, Nazism has shown itself implacably hostile to the process of liberation. In Germany and occupied countries liberal books have been burned. Radios have been limited to a narrow field. Newspapers are heavily censored and regimented. The cinema became an instrument of chauvinist propaganda. Thus the world of the mind and spirit has been narrowed to an iron prison house. Indeed, if the world were sentenced to follow Nazism, it would move backward on its orbit.
But mankind will move forward and upward. Already, it can be seen plainly, the wave of reaction headed by Hitler is ebbing. Before long it will disappear. And the progressive spirit that gave birth to the French Declaration of Rights will live on.
OWI transmitted Justice Jackson’s statement around the world for publication and broadcast.
One year later, in August 1944, the Allies, including French forces, liberated France from Nazi occupation.
A year after that, in 1945, the Allies defeated Nazi Germany and Justice Jackson began to work, including regularly in Paris, as the U.S. chief prosecutor of the principal surviving Nazi leaders.
And in 1946, the International Military Tribunal at Nuremberg convicted many of those defendants of committing war crimes. Their crimes against international law included violating the rights of man.
On Monday, July 31, 2023, Justin Driver, Professor of Law at Yale University, was Chautauqua Institution’s 19th annual Robert H. Jackson Lecturer on the Supreme Court of the United States.
To view Professor Driver’s lecture, which focused on the Supreme Court’s June 29 decisions on the constitutionality of racial diversity-seeking affirmative action in college admissions, SFFA v. Harvard University and SFFA v. University of North Carolina, click here:
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Justin Driver is the Robert R. Slaughter Professor of Law and Counselor to the Dean at Yale Law School, where he teaches and writes in the area of constitutional law. He is author of the book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind and many articles in law reviews and general press. For his Yale webpage, click here.
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Chautauqua Institution’s Robert H. Jackson Lecture is named in honor of the former Chautauquan, New York State lawyer and national bar leader, New Dealer, U.S. Solicitor General, U.S. Attorney General, U.S. Supreme Court justice, and Nuremberg chief prosecutor of Nazi war criminals.
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 University lecturer and research scholar;
2007: Seth P. Waxman, WilmerHale partner and former U.S. Solicitor General;
2008: Jeffrey Toobin, legal analyst and writer;
2009: Paul D. Clement, Clement & Murphy PLLC partner and former U.S. Solicitor General;
2010: Jeff Shesol, historian, communications strategist, and former White House speechwriter;
2011: Dahlia Lithwick, senior editor at Slate;
2012: Pamela Karlan, Stanford University professor;
2013: Charles Fried, Harvard University professor and former U.S. Solicitor General;
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 U.S. Solicitor General;
2020 (online): Ruth Marcus, Washington Post associate editor and columnist;
2021 (online): Melissa Murray, New York University professor;
In 1884, the Jamestown Street Railway company began to provide horse-drawn street car service to the public in Jamestown, Chautauqua County, New York.
Seven years later, the company began to run electric trolley cars. Overhead tension wires, supported by poles and arms, connected to poles and wires atop the trolleys and powered their traction motors.
The Jamestown Street Railway, owned by the Broadhead family, employed many workers. The business was successful. And the Broadheads were wealthy, including from their principal business, Broadhead Worsted Mills. They also owned the Broadhead Power House, which supplied electricity to the trolley lines.
On May 1, 1913, Jamestown Street Railway’s workers, seeking higher pay and union recognition, went on strike. Nearly 300 men walked off the job. Street Railway service was reduced, including to no trolleys running after dark.
A.N. (Almet Norval) Broadhead, president of Street Railway, believed in a low-wage economy. So he fought the strike as a business matter. He also fought it personally. For example, he at least once took the controller handle of a street car and ran it through streets where strikers and their supporters were gathered.
In efforts, probably not carefully considered, to help their cause, some strikers began to damage Street Railway and other Broadhead properties. They cut down poles supporting wires that powered the trolleys from Jamestown to suburban Lakewood. They sabotaged track switches and signals. Later in May, they became more violent, damaging the street car barn, rioting and throwing rocks through windows at Broadhead Worsted Mills, and then marching as a mob on Broadhead’s mansion, located on Jamestown’s South Main Street.
Robert H. Jackson was, at this time, a twenty-one-year-old law apprentice. He worked in Jamestown for two lawyers, Frank H. Mott and Benjamin S. Dean.
Jackson, looking out a Mott & Dean office window, saw the strikers advance on the Broadhead mansion. Jackson saw “old man Broadhead” sitting in shirt sleeves on the front porch and thought he might be in danger. Jackson saw Broadhead walk down from the porch and speak to the strikers. As Jackson recalled it decades later, “[t]hey respected his courage so much that the whole affair broke up right then and there.”
Criminal prosecutions began in the early days of the strike. On May 2 and 3, 1913, men were arrested for sawing down Street Railway trolley poles and short-circuiting tension wires.
Frank Mott, who was counsel to the local labor council, appeared in Chautauqua County’s courthouse in Mayville on behalf of four arrested men. He argued that the evidence was insufficient and tried, unsuccessfully, to get the charges dismissed. The judge then set the cases for trial in July 1913. Mott arranged for his clients to be released on bail until then.
Frank Mott, a prominent lawyer in Chautauqua County, also was a significant figure in statewide Democratic Party politics. He was a strong supporter of New York’s new governor, his friend and fellow democrat William Sulzer. Those connections led the Up-State Public Service Commission to announce on June 10, 1913, that it was appointing Mott to be its new Secretary.
Less than a month later, Robert Jackson appeared in County Court in Mayville on Mott’s behalf. Although Jackson had completed law school a year earlier, he still was finishing out, as an apprentice, his required third year of law training. He had not yet taken the bar examination and been admitted to law practice. But now he was, in fact, representing clients in criminal court.
Jackson asked the judge, Arthur B. Ottaway, to put the trials of Mott’s clients over until the court’s September term. Jackson explained that Mott was not available then because of his Public Service Commission appointment.
The district attorney, Edward J. Green, opposed Jackson’s request. Green wanted to try the cases then and there. But after hearing Jackson’s arguments, including that the other defense attorneys who were present also wanted the delay and his promise that the cases would be tried in the September court term, the prosecutor relented. Judge Ottaway then granted Jackson’s requested continuance.
In July 1913, that decision freed Robert Jackson, the lawyers, and some of the defendants to enjoy some of the month of August.
I hope that you will get a continuance in your work schedule during the next few weeks and be able to do the same.
I am very pleased to report that Justin Driver will give Chautauqua Institution’s 19th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 31, 2023, at 3:30 p.m. He will speak about the affirmative action cases involving Harvard University and the University of North Carolina.
Justin Driver is the Robert R. Slaughter Professor of Law and Counselor to the Dean at Yale Law School, where he teaches and writes in the area of constitutional law. He is author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. This book was selected a Washington Post Notable Book of the Year and an Editors’ Choice of The New York Times Book Review, received the Steven S. Goldberg Award for Distinguished Scholarship in Education Law, and was a finalist for the American Bar Association’s Silver Gavel Award and Phi Beta Kappa’s Ralph Waldo Emerson Book Award.
Professor Driver, a recipient of the American Society for Legal History’s William Nelson Cromwell Article Prize, has a distinguished publication record in the nation’s leading law reviews. He has also written extensively for general audiences, including pieces in Slate, The Atlantic, The New York Times, The Washington Post, and The New Republic. Driver also is an elected member of the American Law Institute and of the American Academy of Arts & Sciences and an editor of the Supreme Court Review. In 2021, President Biden appointed Driver to serve on the Presidential Commission on the Supreme Court of the United States.
Driver is a graduate of Brown University, the University of Oxford (where he was a Marshall Scholar), Duke University (where he received certification to teach public school), and Harvard Law School (where he was an editor of the Harvard Law Review). After graduating from Harvard, Driver clerked for then-Judge Merrick Garland, Justice Sandra Day O’Connor (Ret.), and Justice Stephen Breyer.
The Jackson Lecture at Chautauqua Institution is a leading annual consideration of the Supreme Court of the United States, occurring in the weeks following the completion of the Court’s annual Term. Justice Robert H. Jackson, who served on the Court from 1941-1954, was a lifelong Chautauqua Institution attendee and one of its prominent lecturers. He lived and practiced law for twenty years in Jamestown, New York, which is located down Chautauqua Lake from Chautauqua Institution and is the site of the Robert H. Jackson Center.
From June through August 1945, United State Supreme Court Justice Robert H. Jackson, President Truman’s appointee to serve as U.S. Chief of Counsel for the prosecution of the leading Nazi war criminals, negotiated in London with his British, Soviet, and French counterparts. On August 8, they signed the historic London Agreement that created the International Military Tribunal and a Charter defining its procedures. Justice Jackson then flew home for a week of consultations, including with President Truman.
Jackson left his London Conference principal deputy Sidney S. Alderman, a lawyer who was on leave from his Washington job as general counsel of the Southern Railway Company, in charge of the London staff. The personnel worked on evidence-gathering and analysis, interrogations, legal analyses, and early drafts of what would become, in October, the Nuremberg indictment.
Alderman also supervised some moments of staff recreation. On Sunday, September 2, 1945, for example, he and three colleagues took the day off. These fellow lawyers were Francis M. Shea, until recently the Assistant Attorney General heading the Claims [today the Civil] Division in the U.S. Department of Justice; Col. Telford Taylor, U.S. Army, a former New Deal agency lawyer; and Lt. (j.g.) Bernard D. Meltzer, U.S. Navy, another former young government lawyer in Washington
Alderman, Shea, Taylor, and Meltzer had lunch that day in the Officers Mess in the Grosvenor House hotel on Hyde Park. A reporter, Henry T. Russell of the New York Herald-Tribune, joined them. After lunch, the five squeezed into a four-person car and drove about eight miles from central London to Wimbledon’s All England Lawn Tennis and Croquet Club.
The Wimbledon championship tournament had been suspended since 1940. The Club, including its Centre Court viewing stands, had been severely damaged by German bombing during the war.
But Centre Court itself was undamaged. And so while Alderman watched, the others played doubles. Frank Shea picked Henry Russell, a very good player, as his partner. They defeated Tel Taylor and Bernie Meltzer in three straight, very close sets. After the match, the players and Alderman had tea with bread, butter, and jam.
On the drive back into London, Meltzer, the smallest, sat on Alderman’s lap.
At the U.S. Officers Club, they had drinks and maybe some food. Shea, Meltzer, and Russell then retired for the evening. Alderman and Taylor, accomplished and passionate musicians, stayed on, talking at length about music.
Work resumed the next day.
Jackson returned from Washington a week later.
He and staff then decamped from London to Nuremberg, where they lived, worked, and prosecuted for the next year in, if you will, a center court of justice and history.
During his year in Nuremberg, Robert Jackson worked intensely.
Maybe he also played a little tennis. The house that he occupied outside Nuremberg—which Taylor subsequently occupied after Jackson returned to the U.S. in 1946 (the year the Wimbledon tournament resumed)—had its own court.
Today, June 14, 2023, marks the 80th anniversary of the 1943 landmark Supreme Court of the United States decision, West Virginia State Board of Education v. Barnette. The force of Barnette is its judgment, standing alone, plus the words of Justice Robert H. Jackson’s Opinion of the Court.
The Barnette decision was rendered in the midst of commendable U.S. home front patriotism during the dark middle of World War II. The Court held that 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 was unconstitutional.
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, two sisters 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…”
In addition to the girls, their parents, and their lawyer, a hero of Barnette was the Chief Justice of the U.S., 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 a Court decision that Pennsylvania’s flag salute requirement was constitutional. (At that time, Robert Jackson was U.S. Attorney General. He reported to President Roosevelt and the Cabinet on anti-alien, anti-“fifth column” hysteria that was sweeping the country. Jackson criticized the Court for joining in that hysteria by ruling against the 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. A majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.
In Barnette, Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court’s opinion.
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 H. Jackson’s very finest opinions.
In the United States in 1943, it was just a coincidence that the Supreme Court decided Barnette on “Flag Day.”
In history, that coincidence is another dimension of the decision’s civic and educational power.
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West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
the published version of a 2006 Robert H. Jackson Center roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation of their case) and related commentary—click here and download;
links to Jackson Center videos featuring the Barnett sisters and other videos pertaining to their case—click here; and
links to my earlier Jackson List posts about Barnette—click here.
Upstate New York’s “greats” include Robert Houghwout Jackson, of course.
Another such great, during her four undergraduate years at Cornell University in the early 1950s, was Ruth Bader of Brooklyn. She in time became, of course, Ruth Bader Ginsburg, a star law student, a lawyer, a law professor, a path-marking U.S. civil rights litigator who established the equal rights of women and men, a U.S. appellate court judge, a U.S. Supreme Court justice, and, in public knowledge and acclaim during her final decade, “Notorious R.B.G.”
Justice Robert H. Jackson (1892-1954) and Justice Ruth Bader Ginsburg (1933-2020) never met. But they are connected in history by their accomplished terms of service on the U.S. Supreme Court.
Jackson and Ginsburg also were connected by their personal relationships with Robert Eugene Cushman.
Dr. Robert E. Cushman, Ph.D., was a Cornell University government professor and constitutional law scholar.
From the late 1920s into the 1950s, Cushman was a Jackson contact and friend. Indeed, Jackson employed Cushman’s son John as a Supreme Court law clerk during 1950-1951. Dr. Cushman had significance to Jackson.
Cushman had even greater significance to Ruth Bader, and to all that she became and accomplished. He was one of her influential teachers at Cornell. He employed her as a research assistant. He was her most consequential mentor, because he introduced her to law and to civil liberties and urged her to become a lawyer.
On May 6, 2023, Ginsburg biographer Irin Carmon and I spoke at the Robert H. Jackson Center in Jamestown, New York, about Jackson, Cushman, and Ginsburg. (This Jackson Center program was, along with a fine performance that evening of the one-actor play “All Things Equal,” part of an “RBG Day” in Jamestown.)
You can watch this Robert H. Jackson Center program—remarks by president Kristan McMahon, by me, and by Irin Carmon, and then some Q&A and discussion—here on YouTube:
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.
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.
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!
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.
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—
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.
It seems that Justice Jackson was pleased to get this message. In due course, the Nuremberg courtroom model arrived in Washington. It was delivered to Jackson. He kept it in his Supreme Court chambers.
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 promptly accepted the invitation.
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:
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.
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.
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.
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.
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.
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.
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.
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.”
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:
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.
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;
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.