As you know, the Supreme Court of the United States is likely to decide very soon, in Dobbs v. Jackson Women’s Health Organization, whether a Mississippi law banning abortions after fifteen weeks of pregnancy—i.e., well before fetal viability outside the womb—is constitutional.

The Dobbs case involves major constitutional questions regarding abortion rights and women’s rights. It also is about the scope of individual’s rights to bodily integrity and autonomy, including rights to decide freely to have sex or not and a person’s rights to use her/his/their natural bodily capacity to seek to reproduce or not.

These issues and their history will be discussed next Wednesday, June 1, 2022, at noon EDT, in a panel on “The Unknown History of Reproductive Rights & Eugenics: From Skinner to Roe.”

The panel will occur at Georgetown Law School, 600 New Jersey Avenue, NW, in Washington, D.C. The panel is co-sponsored by the Robert H. Jackson Center.

The panel participants will be:

• Victoria F. Nourse, Ralph W. Whitworth Professor of Law at Georgetown;
• Michele Bratcher Goodwin, Chancellor’s Professor of Law at the University of California-Irvine;
• Melissa Murray, Frederick I. and Grace Stokes Professor of Law at New York University;
• Brad Snyder, Professor of Law and Anne Fleming Research Professor at Georgetown; and
• me.

This event will be free and open to the public. It also will be streamed online.

Anyone who is interested in attending or watching needs to RSVP—

• To attend in-person: https://forms.gle/7oM5FS1YaN5ZwgXA7
• To watch online: https://georgetown.zoom.us/webinar/register/WN_b14W_QcpS7Wht2TmiRrm9A.

The occasion for this panel, in addition to the Supreme Court’s impending Dobbs decision, is that its date, June 1, 2022, will mark the 80th anniversary of the Court’s landmark decision in Skinner v. Oklahoma.

In Skinner, the Supreme Court unanimously declared unconstitutional an Oklahoma law that provided for the sterilization of “habitual criminals.” Jack Skinner, a state prison inmate, won a decision that protected his reproductive capability and autonomy. The decision became an important starting point for constitutional law doctrines that protect individuals from government regulations and penalties in the areas of contraception, abortion, private intimacy, and other fundamental rights.

When Skinner was argued and decided in 1942, Justice Robert H. Jackson was the Supreme Court’s junior justice—he had been appointed less than a year earlier. In the case, Justice Jackson wrote a concurring opinion that is textually compact and conceptually very large. (I will have more to say about that opinion on the panel next Wednesday.)

Some links—

• Skinner v. Oklahoma (June 1, 1942); and
• Professor Nourse’s book, In Reckless Hands: Skinner v. Oklahoma and the Near Triumph of American Eugenics.

So please spread the word, RSVP, attend next week’s “Skinner Day” event, or watch online.

I and we look forward to seeing some, even many, of you at Georgetown Law School next Wednesday.

In 1935, the United States Congress passed and President Franklin D. Roosevelt signed into law the Social Security Act. It was a momentous piece of welfare legislation, designed to minimize the human suffering caused by unemployment and by old-age poverty. The law attacked these problems with new federal taxes on employers and employees, with expenditures and credits to encourage States to enact unemployment tax and compensation systems, and with guarantees of and expenditures for old-age pensions.

Private business interests, objecting to these new regulations, filed federal lawsuits attacking the constitutionality of both parts of the Social Security law. In 1937, after mixed judgments in federal courts of appeals, the U.S. Supreme Court took the cases.

Assistant Attorney General (Antitrust Division) Robert H. Jackson and DOJ attorney Charles E. Wyzanski. They argued Steward Machine Company v. Collector of Internal Revenue, on the constitutionality of the Social Security Act taxes on employers, on April 8 and 9, 1937. They argued Helvering v. Davis, on constitutionality of Social Security’s old-age benefits and the employer taxes that pay for them, on May 5.

The Court’s decisions came swiftly.

On Monday, May 24, 1937—on this date eighty-five years ago—the justices took the bench at noon. Spectators, anticipating the decisions, had been there for hours. Robert Jackson, Charles Wyzanski, and many other government officials were there too.

Chief Justice Charles Evans Hughes, looking to his left to the far end of the bench, nodded to the junior justice, Benjamin N. Cardozo. Cardozo announced that he had been instructed to deliver the opinion of the Court in the Steward Machine Company case.

A buzz went through the courtroom. The crowd recognized immediately that the Court was upholding the constitutionality of Social Security’s unemployment insurance taxes and connected provisions—Cardozo announcing the decision could mean nothing else.

The decision was 5-4. Justice Cardozo, announcing the Court’s opinion, spoke with, for him, atypical clarity and force. Justice James C. McReynolds then spoke extemporaneously, stating his dissent, and that “the Union is being destroyed.” Justice George Sutherland then announced his dissent, which Justice Willis Van Devanter joined, on a narrow issue. Justice Pierce Butler then announced his more sweeping dissenting opinion.

Justice Cardozo then announced his opinion for the Court in Helvering v. Davis. It upheld the constitutionality of Social Security’s old-age benefits and employer taxes. The vote was 7-2. Cardozo announced the dissenting votes of Justices McReynolds and Butler, who did not write opinions.

Justices then announced decisions in six other cases, and then they recessed for the day.

Some celebrations occurred.

Justice Cardozo, who coincidentally turned sixty-seven that day, posed (or maybe he had done so that morning) for a press photograph at his apartment. If he celebrated his birthday at all, he likely did it quietly.

Robert Jackson and Charles Wyzanski accepted numerous congratulations, first at the Court and, later, back the Department of Justice.

In one sense, they had done very much—they had, by winning, ensured the survival of one of the U.S.’s most decent laws.

But Jackson and Wyzanski were, of course, merely (excellent) advocates. The Court rendered the judgments. And so the Court as an institution, and specifically the five and the seven justices who were in the respective decision majorities, did much more than the lawyers had.

But really even the justices—the Court—did not do very much. And properly so. The Court’s decisions in Steward Machine and Davis, which were part of the Court’s turn in spring 1937, simply showed restraint. The decisions recognized the breadth of federal powers under the Constitution. The decisions respected the public majorities and their elected leaders who had used these powers seriously, to promote….

Well, it’s right there in the name of the law: Social Security.

Today marks the sixty-eighth anniversary of the United States Supreme Court’s May 17, 1954, decisions in Brown v. Board of Education and its companion cases.

Those decisions are among the most important legal events in U.S. history.

They also are, as examples of the U.S. government standing up for the equality that is the U.S. Constitution’s command and its moral core, vital examples for the country today—for all of its people, and for our future.

In Brown, et al., the Supreme Court—Chief Justice Earl Warren and eight Associate Justices, including Robert H. Jackson—held unanimously that government segregation by race of school children was, henceforth, barred by the U.S. Constitution. The Court declared that state government school segregation was barred by the Fourteenth Amendment’s Equal Protection Clause, and that federal government school segregation was barred by the Fifth Amendment’s Due Process Clause.

Today’s Brown anniversary occurs as the U.S. is looking, I hope very hard, at the realities of racist, anti-Black murders two days ago in Buffalo, New York.

In due course, that killer will be prosecuted at the Robert H. Jackson United States Courthouse in Buffalo.

Please see that those crimes were acts of racial segregation—a person, ignorant, empowered horribly, doing evil, inflicting suffering and death, based on beliefs in racial inequality.

Please reread Brown. Please see it as a high moment when nine justices, persuaded by extraordinary lawyers and by the facts that the justices knew in their own lives, saw racism around them and in government and stood up against it because, legally and morally, that was right.

And then, please, become more American by doing the same.

*     *     *

For Brown Day reading, here are the decisions:

• Brown v. Board of Education of Topeka, Kansas (and companion cases from Delaware, South Carolina, and Virginia — the State cases); and
• Bolling v. Sharpe (from the District of Columbia — the Federal case).

And click this link to get to relevant pieces in the Jackson List archive, including:

• from 2010, “May 17, 1954”;
• from 2011, “Brown Day,” about winning attorney Thurgood Marshall; and
• from 2018, “Nine Votes, Nine Present: The Unanimity of Brown v. Board of Education.”

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.