During Justice Robert H. Jackson’s 1945-1946 service as United States Chief of Counsel prosecuting Nazi war criminals before the International Military Tribunal at Nuremberg, his United Kingdom counterpart chief prosecutor was Attorney General Hartley Shawcross. But because Shawcross was serving in the new British government, his principal responsibilities during that year were in London, not Nuremberg; he spent significant but quantitatively little time in Nuremberg.
At the Nuremberg trial, U.K. prosecution team leadership, administration, and significant courtroom work was handled by Shawcross’s deputy, Sir David Maxwell Fyfe. He was an experienced barrister who formerly had been a member of Parliament, Solicitor-General in the wartime unity government, and then Attorney-General in Churchill’s caretaker government following Nazi Germany’s May 1945 surrender. Maxwell Fyfe lost his seat in Parliament in the July 1945 elections. His next job, full time, was serving as U.K. lead prosecutor in Nuremberg.
July 21, 1945: David Maxwell Fyfe and Robert H. Jackson inspecting Courtroom 600 in Nuremberg’s Palace of Justice, agreeing that it should be the trial site.
During the planning and then the prosecution of the Nuremberg trial, Justice Robert Jackson and Sir David Maxwell Fyfe worked together closely and became friends. They stayed in touch after each returned to national government service in Fall 1946.
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In December 1948, Justice Jackson, at the U.S. Supreme Court, wrote to Sir David Maxwell Fyfe in London. He had been reelected to Parliament and also was actively, prominently practicing law. Jackson sent Fyfe two of Jackson’s recent Supreme Court opinions, an update that the U.S. government’s publication of Nuremberg-related proceedings was nearing completion, and good wishes: “We often speak of you and send best Christmas wishes to you and Lady Fyfe.”
On January 5, 1949, Maxwell Fyfe penned and mailed a letter back to Jackson. It contained affectionate memories of their Nuremberg endeavors:
My dear Justice,
Thank you very much indeed for your kind message which gave so much pleasure to my wife and myself. I have continually informed people who say “Did you not find Nuremberg great strain?” or “Did you not get bored toward the end?” by saying that I enjoyed every minute of it. They are less surprised when I explain how kind and considerate a host and colleague I had in yourself.
…
Once again with unaltered and unalterable friendship, I send my thanks for so much kindness together with every good wish for 1949.
Yours ever
David Maxwell Fyfe
As we today, seventy-six years later, move into a year that will require hard, good work, I hope that this correspondence gives you a little lift, and that you have allies, colleagues, and friends like Jackson and Maxwell Fyfe had in each other.
In the United States, tomorrow, November 28, marks Thanksgiving Day.
I am thankful to each of you for your friendship, your good works, and your interest in the Jackson List. It grows every day due to your “forwardings” and recommendations to friends, colleagues, students, and others. I truly appreciate it.
November 22, 1945: Thanksgiving service in Courtroom 600, Palace of Justice, Nuremberg. United States Army Chaplain Henry F. Gerecke, a Lutheran minister, is standing, speaking into the microphone. Seated behind him are U.S. Chief of Counsel Justice Robert H. Jackson and Father Edmund A. Walsh, S.J., of his staff.
At 10:00 a.m. on Tuesday, November 20, 1945, Lord Geoffrey Lawrence of the United Kingdom, president judge of the International Military Tribunal (IMT), commenced its trial of the principal Nazi war criminals. The trial occurred in Courtroom 600 in the Palace of Justice in Nuremberg, in the United States occupation zone of the former Nazi Germany.
The World War II Allied nations—the U.S.A., the United Kingdom of Great Britain and Northern Ireland, the government of the Union of Soviet Socialist Republics, and the Provisional Government of the French Republic—had, by their August 8, 1945, London Agreement, created the IMT.
In October 1945, prosecutors from the Allied nations filed with the IMT an indictment charging twenty-four Nazi prisoners and six Nazi organizations with four international crimes: common plan, agreement, and conspiracy; waging aggressive war; committing war crimes; and committing crimes against humanity.
The trial opened on November 20 with prosecutors reading the extensive Indictment. French assistant prosecutor Pierre Mounier read a portion of Count Three, charging defendants with committing particular War Crimes in France. The charge included—Mounier stated in court—the word “genocide.” This was the first official public utterance of that new word, which had been coined by Polish lawyer Raphael Lemkin and, at his urging, added by American prosecutors as they finished drafting the Indictment.
Seventy-nine years ago today, on November 21, 1945, twenty individual defendants announced to the IMT their pleas of not guilty. They were Hermann Goering, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Karl Doenitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl, Franz von Papen, Arthur Seyss-Inquart, Albert Speer, Constantin von Neurath, and Hans Fritzsche.
The four other defendants charged originally were not present. Ernst Kaltenbrunner was absent due to illness. Martin Bormann was being tried in absentia. Gustav Krupp von Bohlen und Halbach had been declared incompetent to stand trial. Robert Ley had committed suicide.
The IMT permitted no defendant to make a speech on November 21. The USSR had agreed to begin the trial only on that condition because its chief prosecutor, General Roman Rudenko, had not yet arrived in Nuremberg.
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Justice Robert H. Jackson, U.S. Chief of Counsel, then delivered his opening statement. He had been writing and honing it for over a month. The first five paragraphs, transcribed here as he spoke them, explained the entirety of the Nuremberg trial undertaking:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.
This Tribunal, while it is novel and experimental, is not the product of abstract speculations, nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of fifteen more, to utilize international law to meet the greatest menace of our times: aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of that magnitude that the united nations will lay before Your Honors.
In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power which as Nazi leaders they once dominated most of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world.
What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be the living symbols of racial hatreds, terrorism, and of violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and militarism, of intrigue and war-making, which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they have directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces that would gain renewed strength if we deal ambiguously or indecisively with the men in whom these forces now precariously survive.
What these men stand for we will patiently and temperately disclose. We will give you undeniable proofs of incredible events. The catalog of crimes will omit nothing that could be conceived by a pathological pride, cruelty, and lust for power. These men created in Germany, under the Führerprinzip, a National Socialist despotism equaled only in the dynasties of the ancient East. They took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being. The people were compensated by inflaming and gratifying hatreds towards those who were marked as scapegoats. Against their opponents, including Jews, Catholics, and free labor, the Nazis directed such a campaign of arrogance, and brutality, and annihilation as the world has not witnessed since the pre-Christian era. They excited the German ambition to be a master race, which of course implies serfdom for others. They led their people on a mad gamble for domination. They diverted social energies and resources to the creation of what they thought to be an invincible war machine. They overran their neighbors. To sustain the master race in their war-making, they enslaved millions of human beings and brought them into Germany, where these hapless creatures now wander as displaced persons. At length bestiality and bad faith reached such excess that they aroused the sleeping strength of imperiled civilization. Its united efforts have ground the German war machine to fragments. But the struggle has left Europe a liberated yet prostrate land where a demoralized society struggles to survive. These are the fruits of the sinister forces that sit with these defendants in the prisoners’ dock.
Justice Jackson’s opening statement was lengthy. It was 61 typescript pages on the podium before him. His presentation, which included numerous extemporaneous inserts, amendments, and cuts, lasted until late afternoon. He previewed and summarized the evidence to come, including:
Nazism as systematically planned and criminal;
the lawless Nazi path to consolidated power in Germany;
its expansion through aggressive war;
horrific Nazi war crimes across Europe; and
Nazi Germany’s persecution and murder of Jews—Jackson stated that “5,700,000 Jews are missing from the countries in which they formerly lived,” and that “History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.”
Justice Jackson also offered a specific and candid explanation of the Allied theory that it was lawful to prosecute individuals, including national, military, and other leaders up to the level of the head of state, for international crimes including war-making:
Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.
But if it be thought that the [London] Charter, whose declarations concededly bind us all, does contain new law, I still do not shrink from demanding its strict application by this Tribunal. The rule of law in the world, flouted by the lawlessness incited by these defendants, had to be restored at the cost to my country of over a million casualties, not to mention those of other nations. I cannot subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives.
It is true, of course, that we have no judicial precedent for the Charter. But international law is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law. International law is not capable of development by the normal processes of legislation, for there is no continuing international legislative authority. Innovations and revisions in international law are brought about by the action of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations. The fact is that when the law evolves by the case method, as did the common law and as international law must do if it is to advance at all, it advances at the expense of those who wrongly guessed the law and learned too late their error. The law, so far as international law can be decreed, had been clearly pronounced when these acts took place. Hence, I am not disturbed by the lack of judicial precedent for the inquiry it is proposed to conduct.
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Justice Jackson’s opening statement at Nuremberg is rightly remembered as one of the most powerful, eloquent and important speeches in human history.
You can read all of it in many places and publications, including here:
In 1945, following Nazi Germany’s unconditional surrender to Allied military forces, the U.S. Army assigned Nathan Hilu, a young New Yorker, to be one of the guards of former Nazis imprisoned at Nuremberg and on trial for war crimes.
Over the next seventy years, Nathan Hilu became a prolific but mostly unknown “outsider artist.” Working with basic supplies in his New York City apartment, he obsessively turned Nuremberg memories into visual depictions and text narratives. Here are two samples of his work:
And now you can see a new, already-acclaimed documentary film, “Nathan-ism,” that portrays the aging artist, studies his art as creation and archive, and explores his need to cope with and share memories and thoughts of immersion in history and horror.
Here is the film trailer:
“Nathan-ism,” which is deeply powerful, will be playing this weekend at Quad Cinemas in Greenwich Village. Here are details:
In October 1944, the Supreme Court of the United States heard oral arguments in Korematsu v. United States. In the case, Fred Korematsu, a U.S. citizen, challenged the constitutionality of his federal criminal conviction for violating a U.S. Army order excluding him, because he was of Japanese ethnicity, from the west coast of the U.S. during World War II.
Two months after the oral arguments, the Supreme Court, by a vote of 6-3, affirmed Korematsu’s conviction. Justices Owen J. Roberts, Frank Murphy, and Robert H. Jackson were the dissenters.
The Korematsu decision was and is one of the most infamous decisions in U.S. Supreme Court history. Korematsu is, along with the other “Japanese-American Cases” that the Supreme Court decided in the 1940s, a case to remember and to study.
Last month, eighty years after the Supreme Court oral arguments in Korematsu, George Washington University Law School hosted a program, cosponsored by the Robert H. Jackson Center and the Asian Pacific American Bar Association. The program featured a reenactment of the 1944 Korematsu oral arguments in the Supreme Court and then a “re-litigation” of a mock trial court civil case as it would be litigated by a “Fred Korematsu” today.
Beginning today, this program will be aired on C-SPAN. It contains these segments:
Welcoming remarks by Kristan McMahon, president of the Robert H. Jackson Center;
My introduction, “The Japanese-American Cases in the Supreme Court of the United States, 1942-1944;”
Reenactment of the October 1944 Korematsu oral arguments:
Roy Englert, Jr. (Kramer Levin), representing the United States;
Robert Long (Covington & Burling), representing Fred Korematsu;
“Justices”:
U.S. District Court Judge Paul L. Friedman (D.D.C.);
Judge Kelly Higashi (D.C. Superior Court);
Professor Cliff Sloan (Georgetown University Law Center);
“Re-litigation” of a contemporary civil case brought by a “Fred Korematsu”:
Kyle Singhal (Hopwood & Singhal), representing the United States;
Minsuk Han (Kellogg, Hansen, Todd, Figel, & Frederick), representing Korematsu;
“Judge”: Dean Dayna Bowen Matthew (George Washington University Law School); and
Closing remarks: Associate Dean Alan B. Morrison (George Washington University Law School).
This program will air today on C-SPAN2 at 4:20 p.m. EST.
In November 1908, Robert H. Jackson lived with his parents and sisters in Frewsburg, a small village in Chautauqua County, New York. Robert was a senior and a strong student at the local high school. His extracurricular interests included debating, public speaking, government, politics, and elections.
Following family political tradition, Robert Jackson supported the Democratic Party and its candidates. This interest was stimulated by his relative Frank H. Mott, who was a lawyer in nearby Jamestown, New York, and a leading Democrat in Chautauqua County and New York State. Mott at various times held Democratic Party offices, ran for elected office, and served as New York State’s deputy attorney general.
In Fall 1908, Frank Mott asked Robert Jackson to arrange for a Chautauqua County Democratic Party get-out-the-vote meeting in Frewsburg on the eve of election day.
Jackson made the arrangements. He obtained the venue, it seems. He also advised Mott to add to the program a speaker who would appeal to Swedish immigrants, a notable part of the community.
Mott decided that Robert Jackson, age sixteen, would preside at the meeting. Jackson prepared by typing and then editing remarks that he would deliver.
On that Monday evening, November 2, 1908, Jackson presided at the Democrats’ rally.
He delivered his first public political speech:
Ladies and Gentlemen;- I desire to express my appreciation of the honor conferred upon me by my selection as chairman of this meeting. It is an honor to preside at any meeting, much more a democratic meeting, upon this eve of a great democratic victory. While I regret that I am not of an age to cast a strait [sic] democratic vote this fall I would not let that prevent me from allying myself with the party of the people, the party which pledges and the only one which pledges to secure to me my birthright as a free born American with out my forsaking the cause of my own kind, the common people.
The party which recognizes as our forefathers recognized, that the sovereign power of this sovereign nation of the earth is primarily vested in its people and which proposes that they shall have the free and unrestricted right to exercise that power. Without the pride of power, the laurels of victories which deprive citizens of their citizenship, official position, the Democratic party is championing the cause of the people. Under its valiant leader it has carried its case to the court of last resort, The people and tomorrow they render the decision. I believe that the American people are intelligent and will do the intelligent and patriotic thing. I believe that in the veins of Americans still runs circulates the blood of freedom and that tomorrow with a voice heard round the world, they will declare with Bryan and Lincoln, that government for of the people by for the people and by the people shall not perish from the earth. And I venture the prediction that they will choose as thier [sic] next President our lead-statesman our greatest commoner, that sterling Democrat WILLIAM JENNINGS BRYAN.
Jackson also introduced, in turn, each of the three speakers.
The meeting was a success.
But, alas for Chautauqua County Democrats and Democrats across the country, their candidate, William Jennings Bryan, did not win the presidency.
The victor, by votes of men (only) that States used to assign their presidential electors, was the Secretary of War, William Howard Taft.
Phil Donahue, truly a huge public personality, television show host and interviewer, cultural force, and a beloved, very good person, died yesterday at his New York City home.
If you are too young to appreciate fully what Phil was and did, search the Internet and start watching. Also read the obituaries that are now appearing.
I grew up with famous Phil Donahue on my television.
I became acquainted with off-TV Phil Donahue through the Robert H. Jackson Center, which he visited a number of times and supported generously, including by speaking at fundraising events.
Phil’s interest in and admiration for Robert H. Jackson was rooted in Jackson’s 1943 opinion for the Supreme Court in West Virginia State Board of Education v. Barnette, explaining the constitutional rights of Jehovah’s Witness schoolchildren not to be compelled by school officials to recite the Pledge of Allegiance or salute the United States flag.
Here’s Phil at the Robert H. Jackson Center in 2006, being interviewed about Barnette by Jackson Center co-founder Greg Peterson:
Here’s Greg interviewing Phil in 2010 about the Barnette decision and its meaning in his life:
Finally, here are other Phil Donahue video treasures that are in the Jackson Center’s YouTube video archive:
On Monday, July 29, 2024, Kate Shaw, Professor of Law at the University of Pennsylvania Carey Law School, was Chautauqua Institution’s 20th annual Robert H. Jackson Lecturer on the Supreme Court of the United States.
To view Professor Shaw’s lecture, which focused on the Supreme Court’s July 1 decision in Trump v. United States, regarding a former president’s immunity from criminal prosecution for conduct during his time in office, click here:
(I am honored to have introduced Professor Shaw’s lecture.)
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Kate Shaw is a Professor of Law at the University of Pennsylvania Carey Law School. A constitutional law scholar, her academic work and writing focus on executive power, the law of democracy, the Supreme Court, and reproductive rights and justice. Her scholarly writing has appeared in, among other places, the Harvard Law Review, the Columbia Law Review, the Cornell Law Review, and the Northwestern Law Review, and her popular writing has appeared in The New York Times, The Washington Post, Slate, TIME, and The Atlantic. Shaw is a contributor with ABC News, a contributing opinion writer with The New York Times, and co-host of the “Strict Scrutiny” podcast on the Supreme Court. For her Penn webpage, click here.
Chautauqua Institution’s Robert H. Jackson Lecture is named in honor of the former Chautauquan, New York State lawyer, 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 twenty Jackson Lecturers have been:
2005: Geoffrey R. Stone, University of Chicago professor;
2006: Linda Greenhouse, New York Times writer and Yale Law School lecturer;
2007: Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
2008: Jeffrey Toobin, legal writer and book author;
2009: Paul D. Clement, Clement & Murphy 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 United States;
2020 (online): Ruth Marcus, Washington Post associate editor and columnist;
2021 (online): Melissa Murray, New York University professor and Strict Scrutiny podcast co-host;
2022: Reva Siegel, Yale University professor;
2023: Justin Driver, Yale University professor; and
2024: Kate Shaw, University of Pennsylvania professor.
I am very pleased to report that Kate Shaw will give Chautauqua Institution’s 20th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 29, 2024, at 3:30 p.m.
Kate Shaw is a Professor of Law at the University of Pennsylvania Carey Law School. A constitutional law scholar, her academic work and writing focus on executive power, the law of democracy, the Supreme Court, and reproductive rights and justice. Her scholarly writing has appeared in, among other places, the Harvard Law Review, the Columbia Law Review, the Cornell Law Review, and the Northwestern Law Review, and her popular writing has appeared in The New York Times, The Washington Post, Slate, TIME, and The Atlantic. Shaw is a contributor with ABC News, a contributing opinion writer with The New York Times, and co-host of the “Strict Scrutiny” podcast on the Supreme Court.
Professor Shaw joined Penn’s law faculty this year. She previously was a professor at the Benjamin N. Cardozo School of Law in New York City. Earlier in her career, she was an associate counsel in the Obama White House Counsel’s Office, a law clerk to Justice John Paul Stevens at the Supreme Court, and a law clerk to Judge Richard Posner at the U.S. Court of Appeals for the Seventh Circuit. Shaw received her Bachelor of Arts degree from Brown University and her Juris Doctor degree from Northwestern University.
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 on Chautauqua Lake near Chautauqua Institution and is the site of the Robert H. Jackson Center.
By May 1946, the Supreme Court of the United States had finished hearing oral arguments in the cases that the justices had decided to hear argued during that term, which had begun the previous October.
The justices had privately conferenced—voted on—each argued case. In every case, a justice in the majority had been assigned to draft the Court’s opinion, for circulation to all, and then re-voting, and, likely, revisions and further circulations of drafts. Some justices in majorities worked on concurring opinions. Justices who were in the minority in this or that case were at least contemplating, and some probably were drafting, possible dissenting opinions.
Each justice had extra work to do that term because the Court was short-handed—by May 1946, seven justices were doing the work of nine. Chief Justice Harlan Fiske Stone had died in April. Justice Robert H. Jackson was in Nuremberg, prosecuting Nazi war criminals and missing the full Court year.
In May, the Court was pushing to meet a self-imposed deadline. Each justice was trying to finish writing his opinions so that the Court could hand down the last of them on Monday, June 10, 1946, and then recess for the summer.
On Monday, May 20, Justice Felix Frankfurter decided to leave Washington and its distractions. He headed for a friend’s home in Charlottesville, Virginia, where he could write his opinions undisturbed. Frankfurter dictated this explanation and had it sent to Justice Hugo L. Black, the senior associate justice who was acting as chief justice, and also to the other five justices who were working at the Court:
Two weeks later, Justice Frankfurter was back in Washington but not done with his opinion-writing.
His biggest sticking point was Reconstruction Finance Corporation (RFC) v. Denver & Rio Grande Western Railroad Company, a railroad reorganization case. It had been argued to the Court on two days early in March 1946. Thereafter, when the justices had voted on the case in conference, Frankfurter was in the minority. He regarded it as a major case and wished to write his dissenting views.
But as of Monday, June 3, 1946, Justice Frankfurter had not completed—maybe he had not even begun—that writing process.
So he dictated and sent to his fellow justices another explanatory memorandum:
This memorandum made the problem clear: Frankfurter was determined to write a significant dissenting opinion in Denver & Rio Grande Western Railroad Company, he would not be able to do that in less than a week, and so he would be delaying the start of the Court’s summer recess from (at least) June 10 until June 17.
Unless….
Justice Frankfurter’s memorandum proposed a solution to his problem that was the Court’s problem. He added a “P.S.” paragraph saying, in effect, “Don’t wait on me:”
The Court took the option. On Monday, June 10, 1946, justices announced the remaining decisions. Justice Stanley Reed announced his opinion for the Court in Denver & Rio Grande Western Railroad Company. It noted, “Mr. Justice Frankfurter dissents, and will set forth the detailed grounds for his dissent in an opinion to be filed hereafter.”
At the end of that decision day, the Court began its summer recess.
Over the next four-plus months, Justice Frankfurter finished writing his opinion in the case.
On October 28, 1946, the Court released that dissenting opinion.
