In Spring 1952, United States President Harry S. Truman directed Secretary of Commerce Charles W. Sawyer to seize the nation’s steel mills and keep them operating.

Truman was acting ahead of an impending steelworkers’ strike that would have shut the mills down, stopping steel production in the U.S. Truman concluded that it was vital for national security to prevent that, because steel was central, obviously, to arming U.S. forces then fighting in the Korean War, and to staying ahead of the Soviet Union in the nuclear arms race.

The steel companies responded to the seizure by filing a federal lawsuit. They argued that the president had neither constitutional nor statutory authority to seize their private property.

The case soon moved, expedited, to the U.S. Supreme Court.

The Court heard oral arguments in the “Steel Seizure Cases” (as they were nicknamed then) on Monday, May 12, and Tuesday, May 13, 1952.

At the end of that week, on Friday, May 16, Chief Justice Fred M. Vinson sent a memorandum to each of the eight associate justices.

The Chief Justice expressed hope that no information concerning the justices’ deciding would leak out of the Court. He asked, implicitly, each justice to do what he could to prevent leaking: “May I suggest that we should take extra precaution to prevent any leak in respect of our deliberations in [these] cases.”

An archived document shows that when one of the eight, Justice Harold H. Burton, received and read this memorandum, he sent it on, perhaps immediately, to his two law clerks, Charles H. Hileman and John W. Douglas. Justice Burton penciled a note on the memorandum, asking the clerks to “Please note + return.”

They did—Hileman and Douglas each initialed the memorandum and then returned it to Justice Burton.

On that Friday afternoon, the Justices met in their private conference. They discussed the steel cases and each voted. They decided, by a 6-3 vote, that Truman had acted illegally.

After the conference, Justice Robert H. Jackson returned to his chambers. His law clerks George Niebank and Bill Rehnquist were waiting for him, eager to hear how the Court would be deciding the momentous case. “Well, boys,” Jackson told them, “the President got licked.”

I feel confident, having met and interviewed Hileman, Douglas, Niebank, and Rehnquist when they were accomplished senior lawyers, about the Steel Seizure Cases and other topics, that in 1952 they were not leakers.

Indeed, based on having known and/or interviewed many former Supreme Court law clerks, I find it hard to imagine that any of them, in 1952 or in 2022 for that matter, would make an unauthorized leak of information, at least beyond telling their spouses, about a case while it was pending.

I think that none would do it because each is a person of high integrity, including about obeying the Court’s nondisclosure rules. (These days, among other measures and warnings, each law clerk signs a non-disclosure agreement at the start of her employment.) And I think that any law clerk who was tempted, somehow, to leak about a pending cases would pull back because of concerns about getting caught and destroying an anointed legal career just as it was getting started.

That’s still my bet today.

On Tuesday, December 4, 1951—this date seventy-one years ago—United States Justice Robert H. Jackson wrote to William Rehnquist, a twenty-seven year old law student at Stanford University.

A few months earlier, Justice Jackson had met Rehnquist at Stanford. Jackson had been visiting his former law clerk Phil Neal, a Stanford Law School professor, at his home. Professor Neal asked Jackson if he wished, while there, to interview Neal’s top student as a clerkship candidate.

That person was Rehnquist. He was around because he was taking summer classes.

Jackson said sure. He met with Rehnquist in Neal’s faculty office

Jackson liked Rehnquist. They spoke for a while, including about Rehnquist’s Swedish ancestry and Jackson’s Jamestown, New York, neighbors and friends who were of Swedish ancestry.

Rehnquist reported that he would be graduating from Stanford in December. Jackson said that Rehnquist should take the bar examination thereafter, as soon as he could. Jackson told Rehnquist that he had an excellent law clerk and no immediate need for a second one. But Jackson added that he might have enough work to take on a second clerk in early 1952 and that he would be in touch with Rehnquist then.

By late November or early December, Rehnquist, about to finish law school, had heard nothing from Jackson. So he wrote him a gently nudging letter. Rehnquist told Jackson that he had California law firm job offers and did not want to let them based on the mere possibility that Jackson would offer him a clerkship.

Jackson, a practical, direct person, responded immediately. He wrote to Rehnquist on December 4, 1951, offering him the job.

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Rehnquist clerked for Justice Jackson from late January 1952 until June 1953.

Rehnquist’s clerkship was interesting, challenging work, and it turned out to be very consequential in the path of his life. It was a powerful credential and valuable experience that helped him when, starting in 1953, he practiced law in Arizona. (He never made it to California.) It also made him interesting, at least, as he worked in Arizona and then national Republican party politics.

In 1969, President Nixon and the Senate appointed Arizona lawyer Richard Kleindienst to serve in the U.S. Department of Justice as deputy attorney general. Kleindienst then recommended, and Nixon nominated, his friend William Rehnquist to serve as assistant attorney general heading DOJ’s office of legal counsel. Rehnquist was qualified to lead its work providing constitutional advice to the executive branch because, among other experiences, he had been a Supreme Court law clerk.

Two years later, as President Nixon struggled to choose persons to nominate to two Supreme Court seats that had become vacant simultaneously, Assistant Attorney General Rehnquist’s name became part of the discussion.

Nixon’s early reactions, captured on tape, were not enthusiastic.

Then advisers informed Nixon that Rehnquist had clerked for Jackson.

That, in an instant, clinched a nomination for Rehnquist.

Richard Nixon had, since his 1930s law student days, admired Robert H. Jackson greatly. Good enough to clerk for Jackson was, to Nixon, good enough to serve on the Supreme Court.

I am very saddened that Eleanor Jackson Piel, a great New York City lawyer, has died at age 102.

Mrs. Piel, as some called her, was a trailblazer, including as a brave civil rights lawyer. She also was extraordinarily wonderful as a person. I was lucky to know her a bit, including from her generous visits to speak to law students at St. John’s University. She always was “blow-the-crowd-away” awesome—she was the lawyer and the person we all wanted to be.

I recall speaking to Eleanor about Justice Robert H. Jackson. She admired him, including for his dissenting opinion in United States v. Korematsu and for his work as a post-World War II war crimes prosecutor (as she had been too, in Tokyo).

I did ask her the obvious question.

She answered no—they were not related.

Margalit Fox’s great New York Times obituary today confirms that Eleanor’s Jacksons were not Robert’s Jacksons.

His Jacksons were 18^th century Scottish-Irish immigrants to the U.S.

Her Jacksons were made in America. Sometime before Eleanor was born in 1920, her father Louis Koussevitzky emigrated from Lithuania to the U.S. Upon arrival, he changed his surname to Jackson. Eleanor explained that Louis picked “Jackson” because it was the most American surname that he could conceive.

Maybe that was true at the time.

I hope that today this idea is more amusing than true.

I know that if the U.S. today is closer to its egalitarian ideals, that progress is due to the work of heroes like Eleanor Jackson Piel.

* * *
Some links—

• Today’s New York Times obituary:

https://www.nytimes.com/2022/11/28/us/eleanor-jackson-piel-dead.html;

• Video of a 2013 television interview:

https://www.youtube.com/watch?v=KTQ6zZd5iZQ

• A 2009 Berkeley Law profile:

https://www.law.berkeley.edu/article/one-tough-case/; and

• Audio of Eleanor Jackson Piel’s oral argument to the U.S. Supreme Court in Adickes v. S.H. Kress & Co. (she won):

https://www.oyez.org/cases/1969/79

At the United States Supreme Court, today is “First Monday,” the start of the Court’s new term.

Justice Ketanji Brown Jackson, the Court’s newest member, has been an associate justice since summertime—after receiving her commission from President Biden on April 8, Justice Jackson took the Supreme Court oath and began to serve as a justice on June 30. She worked through the rest of the summer in preparation for the coming term. Justice Jackson’s investiture ceremony was last Friday. This morning, she, with colleagues, took the bench for the first time to hear oral arguments.

In conjunction with Justice Jackson’s investiture, people who visited the Supreme Court took photographs of her chambers (office) door, and specifically her “JUSTICE JACKSON” nameplate, and then shared their photographs widely. Here is one example—

In reaction to seeing “JUSTICE JACKSON” on the door of a U.S. Supreme Court justice’s chambers, some people then asked, I know not entirely seriously, whether this shiny, new-looking nameplate is that same one that was on the door of Justice Robert H. Jackson’s chambers during his Court service (1941-1954).

It is not. Justice Ketanji Brown Jackson’s chambers door nameplate does not include stray letters—“MR.”—that were on Justice Robert Jackson’s door, and that have nothing to do with being a Supreme Court justice.

Robert and Irene Jackson purchased Hickory Hill, a six-acre property in rural McLean, Virginia, in Summer 1941. At that time, Jackson was United States Attorney General and a nominee to serve as an associate justice of the U.S. Supreme Court. He soon was confirmed and commissioned as a justice. The Jacksons closed on their purchase of Hickory Hill and lived there for the rest of his life.

Robert was born on a Pennsylvania farm and then grew up in the rural areas of western New York State. Irene came from a city, Kingston, New York, but she also enjoyed the outdoors. In particular, they both were horse people, so it was a joy for them to live at Hickory Hill, to have horses in their own barn at their home, to sometimes raise pigs and other animals too, to grow lots of vegetables, and to have open space, all not too far from Robert’s Supreme Court workplace and their deep ties in Washington, D.C.

The Hickory Hill property—an antebellum house, expansive lawn, trees, stable, horses, other animals, gardens, cars, and other machinery—was a lot to manage, and of course Justice Jackson had a demanding day job. So he and Irene employed a handyman/caretaker, Stuart Loy, who really ran and maintained the place. Loy, a native Virginian, was highly skilled and a very hard worker. He became the Jacksons’ friend, joining them and other family members and friends on horse rides, hikes, and fishing trips.

Although Stuart Loy had the big job of maintaining Hickory Hill, he also did at least some moonlighting. Maybe it was paid, but my guess is that he just volunteered sometimes to assist others in the area.

One instance of this occurred on Friday evening, May 2, 1952. Loy used an old rotary mower to cut the lawn of the Jacksons’ friends Sam and Mary Neel, who lived with their young family in the house next door. As Loy was mowing, a blade flew off, severing his Achilles tendon. Mary Neel bandaged him up and took him to a hospital.

The Jacksons were not home, it seems, when Loy was injured. Perhaps Justice Jackson was working late at the Supreme Court, preparing for the justices’ conference the next morning. (In early May 1952, the justices were busy drafting opinions in cases that had been argued that term. They also were considering appeals and petitions for review, including some that were momentous. In the next days, they would agree to hear on an emergency basis Youngstown Sheet & Tube Co. v. Sawyer, a case that produced one of the leading decisions in Court history. The case concerned the constitutionality of President Truman’s seizure of the nation’s steel mills to prevent them from being shut down by a steelworkers’ strike during that Korean War period. (A few weeks later, the Court decided that the president had acted unconstitutionally.)

A doctor treated Stuart Loy’s injury. Soon all was well—Loy, after being laid up for a time, recovered and resumed working.

Because Loy was injured while working, the doctor reported the incident to Virginia’s Industrial Commission. He also reported that Justice Jackson was Loy’s employer.

The Commonwealth of Virginia checked its records and found no indication that employer Jackson had workmen’s compensation insurance. State law required employers of seven or more people to purchase and maintain such insurance.

On July 24, Virginia wrote to Justice Jackson. It notified him of the situation, asked how many employees he had, directed him to show that if he had seven or more employees he had insurance, and added that he faced the possibility of a fine “for failure to report promptly and properly accidents.”

Justice Jackson did not receive this letter. He was on vacation at the Bohemian Grove in California. He thus did not reply.

The Commonwealth of Virginia, apparently feeling that Jackson was ignoring its letter, sent him a second letter on August 7. It repeated that Jackson had a duty to report to the Commonwealth on his number of employees and his workmen’s compensation insurance coverage. Virginia also stated, perhaps showing some deference to Jackson’s position as a Supreme Court justice, that it was giving him ten extra days to respond.

By Saturday, August 9, Justice Jackson was back in Washington. He soon found the Commonwealth of Virginia’s two letters to him.

On August 13, Jackson wrote back to Virginia. He reported that:

• Stuart Loy was injured at the Neels’ home, not at the Jacksons’;
• Loy was injured by a mower that was not Jackson’s;
• he employs Loy “by the week … as chauffeur and caretaker of my premises”;
• he paid Loy’s full wages every week when he was recovering from the injury “because he needed it”;
• he (Jackson) did not employ seven people—at most he employed Loy plus one maid in the house, and sometimes 2-3 more day helpers on special occasions.

And that was, it seems, the end of it. At least that is the end of the correspondence in the papers that Justice Jackson preserved as a set.

It seems that Jackson’s conduct, once he got around to explaining it, was fully satisfactory.

Stuart Loy continued to work happily for the Jacksons and to be friendly with the Neels.

Following yesterday morning’s state funeral service at Westminster Abbey in London for Queen Elizabeth II, members of her family, some officials from Commonwealth nations, and some members of royal families from around the world traveled to St. George’s Chapel in Windsor Castle. The Queen’s remains were interred there.

Many heads of state, senior foreign government ministers, and international diplomats who had attended the funeral did not travel from London to Windsor. Instead, United Kingdom Foreign Minister James Cleverly hosted them at a reception at Church House. It is a stately red-brick building in an enclosed yard on the Westminster Abbey grounds.

Church House is, as its name communicates, the headquarters office of the Church of England. In June 1940, King George VI and Queen Elizabeth, parents of then-Princess Elizabeth (the future Queen Elizabeth II), opened this Church House building. In 1945, the United Nations Preparatory Commission met there, as did, in 1946, the U.N. Security Council. In 1988, Queen Elizabeth II unveiled a tablet at Church House commemorating the centenary of the Church corporation.

Church House is notable for all of these things, but it is perhaps most notable for being in summer 1945 the site of the London Conference of representatives of the United States, the U.K., the Union of Soviet Socialist Republics, and the Republic of France. The U.S. representative—President Truman’s appointee “to act as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal”—was U.S. Supreme Court Justice Robert H. Jackson.

Over two-plus months that summer, the London Conference representatives met in official sessions at Church House. They fulfilled and advanced the declarations that their government leaders had made during World War II: that the major German Nazi leaders were international law violators; that they were arch-criminals whose offenses transcended particular locations and affected more than particular victims; and that they should be punished by an international process.

On August 8, 1945, the London Conference concluded with the signing, in Church House, of the London Agreement. It was and is a historic event in international diplomacy and peacemaking and a cardinal development in international law.

In the London Agreement, the Allies announced their decision to take a path of law and public accountability rather than to act summarily, with their unlimited military power and their high desire for vengeance, against their Nazi prisoners. The Allies chose, despite the absence of a peace treaty or any other legal or political constraint, to address the possible legal culpability of former Nazi leaders through a public, juridical process. To do so, the Allies created, in the London Agreement, an international criminal court, the International Military Tribunal. In a Charter annexed to the Agreement, they prescribed the IMT’s constitution, jurisdiction, and functions.

I hope that some of the officials who gathered, mourned, and socialized yesterday at Church House knew and recalled that they were at the 1945 London Conference and London Agreement site—the site of the legal birth of the international Nuremberg trial.

Robert H. Jackson’s ancestors included Englishmen, but it seems that they were not loyal to the crown.

His great-great-grandfather Uri Jackson, who lived from around 1750 until at least 1781, was a farmer in colonial Connecticut. He also served as a corporal in the Connecticut militia during the Revolutionary War.

One of Robert’s great-grandfathers on his father’s side, George Ferros Eldred, was born in London, in the Middle Temple, in 1787. His father William, a barrister, was under treasurer of the Middle Temple, one of the Inns of Court that were homes of English lawyers. But George was William Eldred’s younger son. As Robert Jackson commented in the early 1950s, “younger sons, of course, did not succeed their fathers under the British scheme of things. He came to America.”

Gravestone of George Eldred (died 1878) & Laura Cady Eldred (died 1891), Spring Creek Cemetery, Spring Creek, PennsylvaniaRobert Jackson had various encounters with the top of “the British scheme of things.” The first occurred in summer 1924. Robert Jackson, then a successful New York State lawyer living and working in Jamestown, attended, with his wife Irene—a Kingston [ba-dum-bump], New York, native—an American Bar Association week-long meeting in London with the English Inns of Court, the Law Society, and the Canadian Bar Association. On July 24, 1924, the Jacksons were among many guests who attended a garden party that King George V and Queen Mary hosted at Buckingham Palace.

The Jacksons’ next brush with British royalty occurred in Washington in 1938. King George VI and Queen Elizabeth were visiting the U.S. Robert Jackson was Solicitor General of the U.S. On June 8, he and Irene attended a White House performance for the King and Queen of American music. And the next afternoon, the Jacksons attended a party that British Ambassador Ronald Lindsay and his wife Lady Elizabeth Lindsay (an American) gave for the King and Queen in the garden of the British Embassy.

Seven years later, in spring 1945, as Robert H. Jackson was completing his fourth year of service as an associate justice on the U.S. Supreme Court, President Truman appointed him to serve as U.S. chief of counsel for the prosecution of Axis war criminals in the European Theater. This became Jackson’s fall 1945—summer 1946 job as chief prosecutor at Nuremberg of Nazi war criminals. Before Jackson got to Nuremberg, however, he lived and worked during summer 1945 in London, negotiating with allied government counterparts to create the Nuremberg international court and define its charter.

On August 15, 1945, Justice Jackson took an opportunity to see King George in action at a formal occasion, the opening of Parliament. Jackson obtained a ticket to stand in the Royal Gallery to hear the King’s address. He saw robed and bewigged Lord Chancellor Jowitt, with whom Jackson had worked in the war crimes court negotiations, escort the King (“entirely impassive,” Jackson said later) and the Queen (“bowing to the occupants of each box”). They walked behind his carried crown, “through a line of Beefeaters in scarlet uniforms.” Alas, Jackson in the gallery was unable to hear the King’s address.

Justice Jackson definitely met British royalty at the Supreme Court in 1951. On November 2, 1951, Chief Justice Vinson hosted Princess Elizabeth—soon to become Queen Elizabeth II—and her husband Duke Philip at the Court. The Princess and Duke entered by the Court’s front entrance. They were escorted to the Chief Justice’s chambers. Each of the associate justices, including Jackson, was assembled there and met them. The royals’ tour also included the courtroom. I am sure that it was pleasant and awkwardly official. To my knowledge, Justice Jackson wrote nothing about it.

A final Jackson, or at least a Jackson files, tidbit regarding the British royal family dates to Queen Elizabeth II’s coronation. It occurred in London on June 2, 1953. A French couple, Henry and Arlette Leger, who had worked on Jackson’s Nuremberg staff, were in London on that day. They wrote a postcard noting the occasion to Elsie Douglas, Jackson’s secretary at the Court who had been with him in London and Nuremberg during 1945 and 1946 and became a friend of the Legers. They mailed it with a King George postage stamp.

The postmark, applied the next day, is striking. Cancelling the King George stamp, it announces an official wish that in fact transpired: “Long Live the Queen.”

On Monday, July 11, 2022, Reva Siegel, Professor of Law at Yale University, was Chautauqua Institution’s 18th annual Robert H. Jackson Lecturer on the Supreme Court of the United States.

To view the video of Professor Siegel’s lecture, which focused on the Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization, declaring the constitutionality of Mississippi’s anti-abortion law and overruling Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), click here:

Professor Siegel also has posted a draft paper, “Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance,” that will be published in the Texas Law Review.  To download and read the paper, click here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4179622

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 Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. She teaches Constitutional Law, Reproductive Justice, and other courses. Her writing draws on legal history to explore questions of law and inequality and to analyze how courts interact with representative government and popular movements in interpreting the Constitution.

For her Yale webpage, click here.

To download and read more of Professor Siegel’s articles, papers, and briefs, visit her Social Science Research Network (SSRN) page:

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=100672

*     *     *

Chautauqua Institution’s Robert H. Jackson Lecture is named in honor of the former Chautauquan, Jamestown lawyer, New Dealer, U.S. Solicitor General, U.S. Attorney General, U.S. Supreme Court justice, and Nuremberg chief prosecutor.

The annual Jackson Lecture at Chautauqua Institution is a leading expert’s consideration of the Supreme Court, its Justices, significant decisions, and related topics in the weeks following the Court’s start of its annual summer recess.

Chautauqua’s Jackson Lecturers have been:

• 2005:  Geoffrey R. Stone, University of Chicago professor;
• 2006:  Linda Greenhouse, New York Times writer and Yale Law School professor;
• 2007:  Seth P. Waxman, WilmerHale partner and former Solicitor General of the United States;
• 2008:  Jeffrey Toobin, legal writer and CNN Worldwide chief legal analyst;
• 2009:  Paul D. Clement, Bancroft PLLC partner and former Solicitor General of the United States;
• 2010:  Jeff Shesol, historian, communications strategist, and former White House speechwriter;
• 2011:  Dahlia Lithwick, senior editor at Slate and Amicus podcast host;
• 2012:  Pamela Karlan, Stanford University professor;
• 2013:  Charles Fried, Harvard University professor and former Solicitor General of the United States;
• 2014:  Akhil Reed Amar, Yale University professor;
• 2015:  Laurence H. Tribe, Harvard University professor;
• 2016:  Tracey L. Meares, Yale University professor;
• 2017:  Judge Jon O. Newman, of the U.S. Court of Appeals for the Second Circuit;
• 2018:  Justice Rosalie Silberman Abella, of the Supreme Court of Canada;
• 2019:  Donald B. Verrilli, Jr., Munger, Tolles & Olson LLP partner and former Solicitor General of the U.S.;
• 2020 (online):  Ruth Marcus, Washington Post deputy editorial page editor and columnist; and
• 2021 (online): Melissa Murray, New York University professor and Strict Scrutiny podcast co-host.

*     *     *

And some final words on Chautauqua Institution—

It is where an attacker last week tried to kill writer Salman Rushdie just before he was to speak on the stage of Chautauqua’s Amphitheater.

That atrocity demonstrates in a tragic way that Chautauqua and all aspects of the peaceful assembly that it stands for are great but also fragile treasures. They were empowering resources in Robert H. Jackson’s own life. They have been that ever since, including in the Jackson Lectures, for so many of us.

We all need to know, value, and rededicate ourselves to nurturing the qualities of living and learning together in peace, at Chautauqua Institution and in all of our places.

This is a quick update on last week’s post.

On June 1, the 80^th anniversary of the U.S. Supreme Court’s landmark decision in Skinner v. Oklahoma, I participated in a panel at Georgetown University Law Center with Professors Victoria Nourse, Michele Goodwin, Melissa Murray, and Brad Snyder on “The Unknown History of Reproductive Rights & Eugenics: From Skinner to Roe.”

In Skinner, the Supreme Court unanimously declared unconstitutional an Oklahoma law that provided for the sterilization of some thrice-convicted “habitual criminals.”  Jack Skinner, a state prison inmate, won a decision that protected his reproductive capability and autonomy.

The Skinner decision is an important part of U.S. constitutional law doctrines that protect individuals from government regulations and penalties in the areas of contraception, abortion, private intimacy, and other fundamental bodily rights.

You can watch the panel on C-SPAN, at this link:  https://www.c-span.org/video/?520685-1/history-reproductive-rights.

My lecture, about Justice Robert H. Jackson’s concurring opinion in Skinner, other aspects of his judicial work, and his work as U.S. chief prosecutor at Nuremberg of Nazi war criminals, begins at time counter reading 21:20.