I’ve learned from a regular Jackson List reader who also is a regular Jeopardy viewer—those are two large, illustrious, and, I think, not insignificantly overlapping groups—that on Monday, May 9, Jeopardy included a second round category, “The Nuremberg Trials.”

The three contestants handled the five questions, each of course phrased as an answer, quite capably but not perfectly.

The Robert H. Jackson question, about his absence from the Supreme Court of the United States to be chief U.S. prosecutor at Nuremberg, was not a stumper.

Each contestant did draw a blank on the name of the lead defendant at the 1945-1946 International Military Tribunal in Nuremberg, even after seeing his photograph.

This made me smile.  It’s pleasing that that person, once the number two official in a war-waging, murderous regime that proclaimed it would be a thousand-year German Reich, is not at the front of some very smart U.S. minds.

You can watch the segment here:

Yes, indeed: Who was Hermann Goering?

In the history of the Supreme Court of the United States, two people have held the title “Justice Jackson.”

Soon, wonderfully, there will be the third.

The first Justice Jackson—19th century Jackson—was Howell Edmunds Jackson, of Tennessee. He was commissioned an associate justice in 1893, when he was sixty years old. He soon became ill with tuberculosis and died in 1895.

The second Justice Jackson—20^th century Jackson—was, of course, Robert Houghwout Jackson.  Born in 1892 in Pennsylvania, Robert was a small boy during Justice Howell Jackson’s brief service on the Court, but they were not related.  Robert moved to western New York State shortly thereafter.   It was his home from the late 1890s until the U.S. Senate in 1934 began confirming President Roosevelt’s nominations of Robert Jackson—ultimately there were six—to high federal offices.  He was commissioned an associate justice in 1941, when he was forty-nine years old.  He served on the Court, except for one year away prosecuting Nazis at Nuremberg following World War II, until his death in 1954.

The third Justice Jackson—21^st century Jackson—will be Ketanji Brown Jackson.  She is age fifty-one and a judge of the U.S. Court of Appeals for the District of Columbia Circuit.  Nominated in February by President Biden and confirmed yesterday by the U.S. Senate, she will become an associate justice when she is commissioned by the president, probably in June or July.

I always am reluctant to speculate when someone asks me, “What would Robert H. Jackson think?” about a contemporary event.

But for many reasons, I can say that he would be delighted about the coming appointment of the third Justice Jackson.

First, she is accomplished and excellent.  In her academic studies and achievements, in her clerkship training, in her years of private law practice, in her years of government service, in her writing and speaking, and in her personal temperament, she is superb.  Robert Jackson also was every one of those things, so of course he would like and admire that Ketanji Jackson is, well, so Jacksonian.

Second, Robert Jackson would admire what Ketanji Jackson has accomplished and represents as a path-marking woman.  He lived in much more sexist, male-dominated times than our own.  But he was somewhat better than other men in those times—he included strong, trusted colleagues who were women, including his own daughter, his excellent legal secretaries (who were senior advisers and de facto lawyers; one later became a judge), a senior military officer, and government lawyers in his range of high pursuits.  He would regard Ketanji Jackson as equal to any man and be glad to work alongside her on any team.

Third, Robert Jackson would be so delighted to see, in Ketanji Jackson, a Black woman becoming a Supreme Court justice.  He lived in very racist—segregationist; otherwise discriminatory; racially oblivious; white superiority-presumptuous—times.  Across his life, he grew to understand that and to push against it, piece by piece.  As a lawyer, he defended Black clients when others would not.  In government, he fought racial exclusions.  As the Nuremberg chief prosecutor, he saw and held accountable criminals who murdered based on eugenic theories and racist prejudices.  As a judge, he wrote powerfully against anti-Japanese racism (dissenting in Korematsu v. United States) and anti-Black racism (Shepherd v. Florida), and he was part of Court majorities that decided constitutional equal protection landmarks (Sweatt v. Painter; McLaurin v. Oklahoma State Regents; Brown v. Board of Education).  Thurgood Marshall was one of the Supreme Court advocates who Robert Jackson admired, greatly.  Marshall’s colleague Robert Carter told me that Justice Jackson was consistently an NAACP friend on the bench—by which Carter meant someone with a clean heart and an open mind.  Robert Jackson would detest any race-based thought that Ketanji Jackson does not belong on the Court or anywhere.

I know that Justice Robert H. Jackson would love to watch any Supreme Court argument next fall and in years ahead.

I am confident that if that could happen, he would be pleased, deeply, to look at the bench and see Justice Ketanji Brown Jackson.

In 1945, after the Allied powers defeated Nazi Germany in World War II, the Allies prosecuted Nazi leaders for international crimes, including aggressive war, war crimes, and crimes against humanity. These prosecuting nations included Russia, then in the governmental form of the U.S.S.R.

In this historic indictment, and in the Nuremberg trial that followed, Russia was part of prosecuting Nazis for specific crimes in Ukraine—the same criminal acts that Russia today is committing in Ukraine.

I recount the horrific details of these Russian-charged crimes in Ukraine in an essay, “Remember the Nuremberg Indictment,” that will be published tomorrow in the New York Law Journal.

To read it, click here.

 

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.