On March 2, 2022, Sergiy Kyslytsya (@SergiyKyslytsya), Ukraine’s ambassador to the United Nations, spoke to the U.N. General Assembly.

Ambassador Kyslytsya deplored Russia’s criminal aggression against Ukraine. He called for the U.N. to stand against Russian aggression. Then he pulled out his phone and played a video of Benjamin B. Ferencz.

Ben Ferencz, who turned 102 years old today, fought in World War II as a U.S. soldier.

Following the war, Ben was a prosecutor at Nuremberg of Nazi mass murder.

Ben Ferencz has been, ever since, a global teacher. His message, learned in the horrors of war fighting, as an investigator at liberated Nazi concentration camps, and as a Nuremberg prosecutor, is simple and profound. It is the message that is before all of our eyes, seeing war in Ukraine:

War brings only suffering and death.

War is the supreme international crime.

We must choose law not war.

#LawNotWar

*      *      *

Here is video of Ambassador Kyslytsya’s March 2 speech at the U.N. He plays the video of Ben Ferencz starting at time counter 11:45:
https://www.c-span.org/video/?518313-4/ukraine-ambassador-remarks-un-general-assembly-debate.

For more information on Ben Ferencz, here are resources, including many that are Ben himself—

• From the Jackson List archive, three posts about Ben: https://thejacksonlist.com/?s=%22Ben+Ferencz%22+birth;
• video excerpts of Ben’s 1947 opening statement at Nuremberg in the Einsatzgruppen case: https://www.youtube.com/watch?v=b67B-MoKG_o;
• a November 2005 interview of Ben: https://www.youtube.com/watch?v=e-8m5YHt__4;
• a Ben Ferencz TED Talk from 2017: https://www.youtube.com/watch?v=Zwa4zRWDsvI;
• the trailer of the 2018 documentary film, “Prosecuting Evil: The Extraordinary World of Ben Ferencz” (available on Netflix): https://www.youtube.com/watch?v=meDbZemxuK4;
• on Amazon Prime Video, the 2019 film “Law Not War,” about Ben: https://www.amazon.com/Law-Not-War-Benjamin-Ferencz/dp/B082G8KCDV;
• Ben’s website, a treasure house of his writings and speeches: https://benferencz.org/; and, of course,
• you should follow @BenFerencz on Twitter.

Happy Birthday, Ben.

Thank you for being humanity’s lawyer and teacher.

Thank you for being a hero, dear friend, and permanent inspiration to me and so many others.

When United States Attorney General Robert H. Jackson was appointed to the U.S. Supreme Court in July 1941, he brought a young U.S. Department of Justice lawyer, John Francis Costelloe, with him to be his law clerk.

John Costelloe—who was “Johnny” to Justice Jackson and to no one else—was an excellent law clerk. He worked with Jackson at the Supreme Court for more than two years, including on his now-canonical opinions for the Court in Wickard v. Filburn (1942) and West Virginia State Board of Education v. Barnette (1943).

John Costelloe also was a talented photographer. During his Department of Justice and Supreme Court clerkship years, he used his camera around Washington. Here are two samples of his work: a photograph of his desk in Jackson’s Supreme Court chambers, and a nighttime photograph of the Tidal Basin and the Jefferson Memorial.

Costelloe also took portrait photographs. In October 1943, as he was completing his clerkship, he got each of the Supreme Court justices—Chief Justice Harlan Fiske Stone and Associate Justices Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jackson, and Wiley Rutledge—to pose for his camera.

John Costelloe later developed and printed his close, candid portrait photographs of the justices. He sent each justice prints of “his” photograph(s) to keep. He also got most justices to return inscribed prints to him, one set for Costelloe to keep and one to give to his friend Carlton Fox, a Department of Justice tax lawyer who was well-regarded at the Court.

Costelloe moved to New York City and became a prominent tax lawyer, at RCA Corporation and then as a major law firm partner. During those decades and in retirement, he displayed his set of inscribed Supreme Court justice prints in his various homes. He also mentioned the photographs in an article. But with one exception—a “for you to keep” print that Costelloe sent to Justice Rutledge later was donated to the Library of Congress (click here)—Costelloe’s Stone Court photographs were not displayed in public or known outside small circles.

In recent years, John Costelloe’s widow and children entrusted a set of his prints to me. These photographs now are published in the current issue of the Journal of Supreme Court History, in the cover article that I wrote about Costelloe, Jackson, their close relationship, and the history of the photographs. The Journal is provided to members of The Supreme Court Historical Society, and to many libraries. It also is available for purchase online.

The article itself is, except for its first page, behind a paywall (click here). So until you are able to obtain a copy and see all of the photographs, what you can see, online and here, is the issue cover. It looks blurry, online and here. On the Journal cover itself, the photograph is one of John Costelloe’s two fine, crisp, evocative portraits of his boss, friend, and hero, Justice Jackson.

Justice Robert H. Jackson spent Sunday, December 7, 1941, at Hickory Hill, his home in the rural countryside of McLean, Virginia. He spent the afternoon reading, with music on the radio in the background. He probably was reading legal briefs, preparing for a United States Supreme Court argument session that would commence the next day.

Eight miles away, at the White House, President Franklin D. Roosevelt’s press secretary announced to reporters just before 2:30 p.m. that Japan had attacked Pearl Harbor and Manila. Justice Jackson soon learned the shocking news when an announcer interrupted the musical broadcast.

That evening, Robert Jackson and his wife Irene received a long-distance telephone call from their son William Eldred Jackson, age 22. He lived in Cambridge, Massachusetts, and was a law student at Harvard. He had graduated from Yale College six months earlier, in June 1941, with high honors.

Bill Jackson was an accomplished, very talented writer and college journalist.  He considered, often and very seriously, pursuing a career in some kind of writing.  In summer 1941, however, as U.S. Attorney General Robert Jackson was being appointed to the Supreme Court, Bill Jackson decided to apply to law school.

Bill Jackson arrived at Harvard Law School in September 1941. He worked diligently on his studies but remained unsure about whether law school and law practice were for him. He regarded his first year of law school as a no-commitment experiment.

He considered military service as one alternative to law school, but it was not an option. Bill had registered for the draft, but he then had flunked the Selective Service physical due to poor eyesight, a knee injury, and his lanky, underweight build.

But now, as of December 7, 1941, his country was at war. In his telephone call to his parents that Sunday evening, Bill proposed to drop out of law school immediately. He talked of seeking some kind of job that would be part of the war effort. The conversation was inconclusive.

The next morning, Justice Jackson drove from Hickory Hill to the Supreme Court. In his chambers, his secretary Ruth Sternberg typed this letter (which Jackson either dictated or, more likely, wrote or dictated in rough form and then edited into the final form he wanted and then sent):

Dear Bill:

Since your telephone call last evening I have meditated on your suggestion that you leave law school and get into the scrap at some more exciting point.  I think I can appreciate your impatience because I, too, am removed from the excitement and hurry of executive place and, like yourself, am tied in with the slow processes of the law.  I think you should hesitate a little, however, and think the matter over before you jump.  One of the most difficult problems to deal with in excited days arises from the number of people who rush to offer themselves for service in which they would have no fitness except willingness.  If I apprehend your talents aright, you have no particular adaptability to the ways of violence.  You have been rejected on physical grounds, but my personal estimate is that you could be fitted much sooner physically than psychologically for war service.

In the second place, the value of what you are now doing:  The only use of war is to re-establish equilibriums which permit people to live in peace.  Unless I read the signs wrongly, the United States and her institutions will be under heavier strain in the distraught conditions that will follow this war than it will during the war.  The Japanese attack, stupidly conceived, has accomplished no military objective for Japan and has completely unified the American people, as well as stimulated them for a maximum effort.  That we will carry on successfully, I have no doubt.  It will be different when the conflict is over, when men must be demobilized and jobs are scarce, when the sustaining influence of an external danger is relieved and recriminations and accusations begin.  It is in those days that I think you might have a mission, provided you are prepared, with a thorough knowledge of institutions as they are and the principles on which society has been functioning.

A people is as stupid as a man to lose its soul in gaining a world.  The philosophy of the law and the culture of the democratic order comes close to being the soul of the American people, and the services rendered to it are undramatic, but timeless.

This morning I feel that the treacherous Japs have invited the fate of Carthage and we ought to see it administered. Nevertheless, there lurks a question as to how far we vindicate civilization by such vindictive methods. Unfortunately, we have no machinery by which the really guilty can be reached.

My own hunch is that there is a much more important front on which men of your temperament and mine can battle than the front of war.  That is the front of organizing a peace so that it will stay peaceful, and I suspect that you will do your race as much good if you devote the next two and a half years to preparation for that as you would do by abandoning the thing for which I think you have some special fitness to go into fields in which the Selective Service has already adjudged you not adapted.  Of course, whatever you decide to do will have all we can give it.

Looking forward to seeing you soon.

[/s/ Love, Dad]

At noon on that December 8, eighty years ago today, Justice Jackson and his Supreme Court colleagues took the bench for their scheduled session. They granted motions to admit thirty-two lawyers, assembled there, to practice before the Court. Then, immediately, the Court recessed.

The Justices left the Court building, crossed First Street, N.E., entered the U.S. Capitol, and attended a joint session of Congress. They heard President Roosevelt identify December 7, 1941, as “a date which will live in infamy.” They heard the President ask Congress to declare that the United States was at war with Japan.

At 2:30 p.m., the Justices returned to their bench. They announced decisions and heard the start of an oral argument before recessing in late afternoon.

*        *       *

Bill Jackson remained at Harvard Law School, graduating in February 1944. Then he joined the U.S. Navy and began to work as a lawyer in the Bureau of Ships in Washington.

In April 1945, as the Allies were about to win victory in the European Theater of World War II, President Truman appointed Justice Jackson to serve as U.S. Chief of Counsel for the prosecution of Nazi war criminals. Robert Jackson then hired his son Bill to serve as his executive assistant.

The Jacksons together then undertook the work that Justice Jackson had envisioned, somewhat uncannily, in the hours immediately after Pearl Harbor.

In 1945 and 1946, in London and then in Nuremberg, cities that were important parts of “the front of organizing a peace so that it will stay peaceful,” the Jacksons, working with many colleagues, helped to build legal machinery to reach the “really guilty,” and thus to vindicate civilization.

In the United States, tomorrow, November 25, marks Thanksgiving Day.

I am very thankful to each of you for your friendship, for your commitments to substantive endeavors, and for your interest in and promotion of the ever-growing Jackson List.

As you know, the Jackson List archive site contains hundreds of essays. Here are some that pertain to Thanksgiving—each of these titles is a click-able hyperlink to a PDF file:

• Public Life & the Pursuit of Good Information (Thanksgiving 1937)
• Thanksgiving in Nuremberg (1945)
• Penn & Thanksgiving, 1948
• Father Walsh (1953) on Nuremberg Thanksgiving (1945)
• A Doctor’s Thanksgiving Wisdom (1953)

In Lake County, Florida, a circuit court judge yesterday granted a prosecutor’s motion to dismiss, based on prosecutorial misconduct and falsified evidence, criminal indictments against two men and to vacate the criminal convictions and sentences imposed on two others.

These criminal cases date back to 1949.  The men, all now deceased, were Charles Greenlee, Walter Irvin, Samuel Shepherd, and Ernest Thomas.  Each was African-American.  In summer 1949, they were accused of abducting and raping a white woman.  The men came to be known as “the Groveland Four.”

In the Groveland case, Florida’s legal system engaged in violent, illegal, racist torture and murder.  Mr. Thomas was murdered by a mob.  Mr. Greenlee, Mr. Irvin, and Mr. Shepherd were convicted by an all-white jury.  After Irvin and Shepherd won a United States Supreme Court decision granting them new trials, Shepherd was shot and killed by the local sheriff, who claimed that he had stopped Shepherd from escaping.  The sheriff also shot Irvin, but he survived.   He then was retried, convicted, and served almost twenty years in prison.  Greenlee also served about fifteen years in prison.

The U.S. Supreme Court decision in the Groveland case, rendered in the middle of the murderous legal saga, occurred in 1951.   The Court heard the appeals of Shepherd and Irvin, who had been convicted of rape and sentenced to death.  In the case, Shepherd v. Florida, the Court unanimously reversed their criminal convictions.

The U.S. Supreme Court issued no opinion explaining this decision.  The Court simply announced, per curiam, that the Florida Supreme Court’s judgment affirming Shepherd’s and Irvin’s convictions and sentences was reversed.  As authority, the U.S. Supreme Court cited its decision a year earlier in Cassell v. Texas.  In that case, the Court had reversed a black man’s murder conviction because he had been indicted by a grand jury from which black people had been excluded, in violation of the Fourteenth Amendment.  The same had been true, the Court was signaling, of the Florida grand jury that had indicted Shepherd and Irvin.

One Supreme Court justice, Robert H. Jackson, did write in the Shepherd case.  He filed an opinion concurring in the result reached by the Court.  In Jackson’s view, however, to reverse these convictions for discrimination in jury selection was “to stress the trivial and ignore the important.”

Justice Jackson believed that the serious constitutional issue in the case was prejudicial pretrial publicity.  There had been pretrial press reports, for example, that the defendants had confessed, but this was never substantiated by evidence at trial.  Jackson concluded that these press reports, which he called “one of the worst menaces to American justice,” had so permeated the atmosphere surrounding the trial that it denied due process to Shepherd and Irvin.

Justice Jackson disputed the Court’s apparent idea that a black juror in the Groveland case could have made a difference:

“I do not see, as a practical matter, how any Negro on the jury would have dared to cause a disagreement or acquittal.  The only chance these Negroes had of acquittal would have been in the courage and decency of some sturdy and forthright white person of sufficient standing to face and live down the odium among his white neighbors that such a vote, if required, would have brought.”

Justice Felix Frankfurter joined Justice Jackson in his Shepherd opinion.  In private, Frankfurter joined with special emphasis.  When Jackson circulated to his colleagues his proposed concurring opinion, only Frankfurter responded.  He penned a note asking Jackson to “[p]lease honor me by letting me join this.”

In Justice Jackson’s Shepherd opinion, his reference to a “sturdy and forthright white person of sufficient standing to face and live down … odium among his white neighbors” was about a hypothetical white juror voting to acquit the Groveland defendants.

The language also seems self-referential.  Jackson was describing, to a degree, what he, joined by Frankfurter, was doing by judging and writing in the case.

To read Jackson’s Shepherd v. Florida opinion in full, click here.

 

On November 1, the Supreme Court of the United States heard oral arguments in two cases concerning the ability of litigants to bring constitutional challenges to Texas’s anti-abortion law, SB-8. The law effectively outlaws a woman obtaining an abortion after she has been pregnant for only a few weeks. The law also provides that in the event of such an abortion, any person may sue in any Texas state court and obtain an award at least $10,000 against each person who was involved in aiding the woman.

The U.S. Supreme Court decided to hear these cases without waiting for their full adjudication in lower courts. At the requests of Texas abortion providers and the U.S. Department of Justice, the Court reached “down” into the federal court system and took the cases away from the U.S. Court of Appeals for the Fifth Circuit.

The cases were on appeal to the Fifth Circuit from federal district court judgments. In a typical case, the Fifth Circuit would make a final decision, and only then would a losing party petition the Supreme Court to review that judgment. In these cases, the Supreme Court decided on October 22, at the requests of abortion providers and DOJ, respectively, not to wait for the Fifth Circuit, but instead to grant petitions for writs of certiorari before judgment—petitions asking the Court to take these cases now. And the Court granted those petitions.

When the Court decided to take the cases, it put them on a very accelerated schedule for briefing and oral arguments. Many briefs, by parties and interested non-parties, were filed on October 27. They also filed reply briefs on October 29.

On Monday, November 1, the Court heard, in the two cases, over three hours of oral arguments.

Last Friday, November 5, the Justices met in their private conference and, presumably, discussed the cases and voted. One of the Justices now is drafting an opinion for the Court—for a majority of the Justices, or perhaps for all nine of them. If any Justice is in dissent, he or she might be drafting an opinion explaining that vote. And perhaps Justices who are in the majority are drafting concurring opinions, explaining their individual views.

When the opinion-drafting, reading, comments, edits, recirculations, more comments, and so forth are done, the Court will announce publicly its decision and release its written opinions.

That could happen soon—the Court’s next regularly-scheduled day on which to issue orders, plus any decisions that are ready to hand down, is next Monday, November 15.

*      *     *

The Court’s handling of the Texas SB-8 cases resembles its Spring 1952 action in the “Steel Seizure” cases, Youngstown Sheet & Tube Company v. Sawyer and its companion cases.

Those cases began when President Harry Truman faced a breakdown in U.S. steel industry contract bargaining.   A steel industry labor strike or lockout by management was imminent.  Either would have shut down steel production.

President Truman decided that a steel industry shutdown would be unacceptable to U.S. national security, because steel was essential to both the ongoing Korean War and to the U.S.-U.S.S.R. nuclear arms race.  So on April 8, 1952, the President ordered Secretary of Commerce Charles Sawyer to take over the mills—to seize them by government edict and keep them running.

The steel companies sued Sawyer in federal court in the District of Columbia.  They argued that President Truman and the U.S. government had no constitutional or statutory authority to seize and run the steel mills.

After hearing vigorous oral arguments, including by the U.S. Department of Justice defending the President’s action, a federal district judge ruled against him—on April 30, the Judge, David A. Pine, issued a preliminary injunction ending the seizure and returning the mills to control of their owners.  The government asked Judge Pine to stay this order but he declined to do so.

Later that same day, the government moved up to the appellate court.  The DOJ asked the U.S. Court of Appeals for the District of Columbia to stay the district court order.  DOJ announced that it would be asking the Supreme Court to grant certiorari before judgment and wanted the Court of Appeals to in effect continue the steel mill seizure until the Supreme Court could consider that petition.  After hearing oral argument, the Court of Appeals granted the stay.

The parties then asked the Supreme Court to take the cases—to grant petitions for writs of certiorari before judgment.

On Saturday, May 3, the Court granted those petitions.  It set the cases for oral arguments beginning on Monday, May 12.   The arguments filled much of that day and the next.

On Friday, May 16, the Justices met privately in conference, discussed the cases, and voted.   By a vote of 6-3, they decided that they would affirm Judge Pine’s order enjoining the government’s seizure of the steel industry.  (When Justice Robert H. Jackson returned to his chambers after that conference, he found his law clerks, George Niebank and Bill Rehnquist, waiting eagerly to hear what had been decided.  “Well, boys,” Jackson told them, “the President got licked.”)

The Justices spent the next two weeks drafting opinions in the case.

On Monday, June 2, they took the bench.  They skipped over what typically came first, admitting attorneys to practice before the Court.  Instead, Justice Hugo L. Black, the senior Justice in the majority, announced the Youngstown decision and read his opinion for the Court.

Each of the five Justices who voted with Justice Black also filed and read from or summarized his individual opinion:

• Justice Felix Frankfurter, concurring;
• Justice William O. Douglas, concurring;
• Justice Jackson, concurring in the judgment and in the Court’s opinion;
• Justice Harold H. Burton, concurring in the Court’s opinion and judgment; and
• Justice Tom C. Clark, concurring in the Court’s judgment.

Chief Justice Fred M. Vinson then read his dissenting opinion, in which Justices Stanley Reed and Sherman Minton joined.  Vinson alone spoke for about an hour.

All told, the Justices took over two and one-half hours to announce this decision.

The steel seizure had been adjudicated in full and found to be unconstitutional in less than two months.

The Justices took three weeks from the start of oral arguments to hand down their decision.

The Justices wrote their lengthy, powerful, and necessary opinions during the two weeks between their conference and their decision day.

The Court’s Youngstown performance is, in its speed, its seriousness about very significant constitutional issues, and its outcome, rightly regarded as one of its great moments.

*      *     *

When the litigation was done, Justice Burton sent a note to Judge Pine, complimenting him on his judging at the start of the case.

Judge Pine, writing back, complimented the Supreme Court majority for “remain[ing] fast to the old moorings.”

Here’s hoping that in today’s Texas cases, the Justices are working toward such prompt, functional, law-abiding, law-advancing, and moored—fast—decisions.

At the United States Supreme Court, new law clerks tend to begin their employment in summertime, when the Court is in recess. The Justices vary as employers, but each generally assigns new law clerks to review, summarize, and make recommendations regarding petitions from litigants who lost in lower courts and now want the Supreme Court to take and decide their cases. The petitions are numerous. Each is connected to a voluminous record of briefs, transcripts, and decisions in courts below. The legal questions are complicated. The work is high stakes. It also, often, is boring. It demands a high level of law clerk discipline.

On the first Monday in every October, the Court begins a new term. The Justices announce decisions, mostly denials, on hundreds of petitions seeking review. The Justices begin to hear oral arguments in the cases that they have agreed to decide. By “First Monday,” some of the law clerks, and also some of the Court’s permanent personnel, such as secretaries and assistants to the Justices, are already worn down by the push to start the new term. And there is much, much work ahead.

In 1951, by the time that year’s new Court term was starting (on Monday, October 1), Justice Robert H. Jackson’s secretary Elsie Douglas observed how weary the law clerks, not to mention the secretaries, were.

This might have been particularly true of Justice Jackson’s own law clerk, C. George Niebank, Jr. He had worked for Jackson as part of a pair of law clerks during the previous term (1950-1951). During that year, Niebank accepted Jackson’s request to stay on for a second year as his sole law clerk. Thus starting in Summer 1951, Niebank was one law clerk doing what had been the work of two.

So as that October Term 1951 began, Mrs. Douglas, no doubt having first gotten Justice Jackson’s approval, telephoned (she was extension 245) to every other Justice’s chambers. She invited all the secretaries and law clerks to a party in Jackson’s chambers (room 138).

The party occurred on Thursday, October 4, 1951. Perhaps Jackson was present.

Many law clerks were there. One was C. Sam Daniels, a University of North Carolina and Columbia Law School graduate who was clerking for Justice Hugo L. Black.

At the party, Sam Daniels read, or perhaps he just handed around on paper, a unique, humorous “petition.”  He had drafted it, and then he had gotten it printed formally in the Court’s Print Shop.   It had the form of a case (“No. __”) document that was being circulated among the Justices for review and decision.   The petition sought, in effect, permission for the fun that the group was in the process of having on October 4, 1951.  Maybe it was a document at-the-ready, to use later with any Justice who learned of the party and objected.

Mrs. Douglas, at least, was a supporter of Daniels’s petition.  Of course she was—it was her party.

Ever organized, she kept a copy of the document in Jackson’s office files.

In May 1953, Justice Robert H. Jackson had lunch at the United States Supreme Court with that term’s law clerks.  The group included Jackson’s own clerks William H. Rehnquist and Donald Cronson and the seventeen other men who were working for his eight fellow Justices.

This was in keeping with a Court tradition (which has continued).  Each law clerk of course gets to know his or her justice, through their close working relationship, very well.  And the law clerks also get to know the other Justices at a personal level, at least a little bit, through these conversation-filled, informal lunches.

During this lunch, Justice Jackson told the clerks about his two decades (1913-1933) in private law practice in New York State.  He also told them of his government service, including his five-plus years (1936-1941) in the U.S. Department of Justice.  They discussed some of the good and some of the evil in the Department’s Federal Bureau of Investigation (FBI).  And Jackson recommended strongly that these young lawyers, many interested to some degree in politics, follow his path:  be a member of a political party, sure, but do not get actively involved in politics until you have achieved some personal, meaning professional and financial, independence.

One former Supreme Court law clerk joined the current clerks at this lunch with Justice Jackson.  This man, Howard J. Trienens, had clerked for Chief Justice Vinson for two years, 1950-1952.

When Trienens’s clerkship ended in summer 1952, he considered taking a job in politics.  My guess is that it had something to do with Illinois governor Adlai Stevenson’s presidential campaign.  Trienens agonized before deciding to turn it down.  He decided instead to become a law firm associate in Chicago, his hometown.

A year later, Trienens was still wondering, at least as he traveled to Washington, D.C., on law firm business, if he had made the right decision.  On that occasion, May 27, 1953, he stopped at the Supreme Court to visit, and he somehow became part of the law clerks’ lunch with Justice Jackson.

When Trienens heard Jackson say that young lawyers should not jump too soon into politics, Trienens took this as reassurance about his choice to practice law.

Howard Trienens in fact never left private law practice.  He stayed at his firm, which today is known as Sidley.  He became a giant in law and business, rose to be one of the firm’s leaders, and practiced there for almost seventy years.  Sadly, he passed away this summer at age 97.  I was acquainted with him, appreciated his kindness, and deeply admired his brilliance and his professionalism.  For Sidley’s tribute page chronicling Howard Trienens’s life and career, click here.