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;
  • 2022: Reva Siegel, Yale University professor; and
  • 2023: Justin Driver, Yale 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 19^th 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.

**For information on attending Justin Driver’s Jackson Lecture on July 31, click here: https://www.chq.org/event/the-19th-annual-robert-h-jackson-lecture-on-the-supreme-court-of-the-united-states-justin-driver/**

In past years, 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 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 U.S.;
• 2020 (online):  Ruth Marcus, Washington Post associate editor and columnist;
• 2021 (online):  Melissa Murray, New York University professor and Strict Scrutiny podcast co-host; and
• 2022:  Reva Siegel, Yale University professor.

For video of 2005-2017 Jackson Lectures and interviews with the lecturers during their visits to Chautauqua Institution, click here: https://accesschautauquacountytv.org/show /robertHJacksonCenterChautauquaLectures

For video of more recent Jackson lecturers, click the links below:

• Justice Abella (2018):
  • Lecture: https://www.youtube.com/watch?v=XtU7v2j0xqI
  • Interview: https://www.youtube.com/watch?v=JrEcsVs9b3g
• Donald Verrilli (2019):
  • Lecture: https://www.youtube.com/watch?v=xTUqWGwpbNs
  • Interview: https://www.youtube.com/watch?v=itFkYkUhMuE
• Ruth Marcus (2020): https://www.youtube.com/watch?v=6vJvKWNZJaw
• Melissa Murray (2021): https://www.youtube.com/watch?v=v8BgAyloSmQ
• Reva Siegel (2022): https://www.youtube.com/watch?v=PWRJiC5L744

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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Some links—

• 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.

Happy Barnette Day and Flag Day!

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.