Kate Shaw to Give Chautauqua Institution’s Jackson Lecture

I am very pleased to report that Kate Shaw will give Chautauqua Institution’s 20th annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, July 29, 2024, at 3:30 p.m.

Kate Shaw is a Professor of Law at the University of Pennsylvania Carey Law School. A constitutional law scholar, her academic work and writing focus on executive power, the law of democracy, the Supreme Court, and reproductive rights and justice. Her scholarly writing has appeared in, among other places, the Harvard Law Review, the Columbia Law Review, the Cornell Law Review, and the Northwestern Law Review, and her popular writing has appeared in The New York TimesThe Washington PostSlateTIME, and The Atlantic. Shaw is a contributor with ABC News, a contributing opinion writer with The New York Times, and co-host of the “Strict Scrutiny” podcast on the Supreme Court.

Professor Shaw joined Penn’s law faculty this year. She previously was a professor at the Benjamin N. Cardozo School of Law in New York City. Earlier in her career, she was an associate counsel in the Obama White House Counsel’s Office, a law clerk to Justice John Paul Stevens at the Supreme Court, and a law clerk to Judge Richard Posner at the U.S. Court of Appeals for the Seventh Circuit. Shaw received her Bachelor of Arts degree from Brown University and her Juris Doctor degree from Northwestern University.

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 on Chautauqua Lake near Chautauqua Institution and is the site of the Robert H. Jackson Center.

**For information on attending Kate Shaw’s Jackson Lecture on July 29, click here**: https://www.chq.org/event/the-20th-annual-robert-h-jackson-lecture-on-the-supreme-court-of-the-united-states-kate-shaw/.

Attending the lecture requires a Chautauqua Institution gate pass. Please allow sufficient time for parking and entering the grounds.

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 United States;
  • 2020 (online): Ruth Marcus, Washington Post associate editor and columnist;
  • 2021 (online): Melissa Murray, New York University professor and Strict Scrutiny podcast co-host;
  • 2022: Reva Siegel, Yale University professor; and
  • 2023: Justin Driver, 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/shows/robertHJacksonCenterChautauquaLectures

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

Announcing a U.S. Supreme Court Decision Without Waiting for the Dissenting Opinion (1946)

By May 1946, the Supreme Court of the United States had finished hearing oral arguments in the cases that the justices had decided to hear argued during that term, which had begun the previous October.

The justices had privately conferenced—voted on—each argued case. In every case, a justice in the majority had been assigned to draft the Court’s opinion, for circulation to all, and then re-voting, and, likely, revisions and further circulations of drafts. Some justices in majorities worked on concurring opinions. Justices who were in the minority in this or that case were at least contemplating, and some probably were drafting, possible dissenting opinions.

Each justice had extra work to do that term because the Court was short-handed—by May 1946, seven justices were doing the work of nine. Chief Justice Harlan Fiske Stone had died in April. Justice Robert H. Jackson was in Nuremberg, prosecuting Nazi war criminals and missing the full Court year.

In May, the Court was pushing to meet a self-imposed deadline. Each justice was trying to finish writing his opinions so that the Court could hand down the last of them on Monday, June 10, 1946, and then recess for the summer.

On Monday, May 20, Justice Felix Frankfurter decided to leave Washington and its distractions. He headed for a friend’s home in Charlottesville, Virginia, where he could write his opinions undisturbed. Frankfurter dictated this explanation and had it sent to Justice Hugo L. Black, the senior associate justice who was acting as chief justice, and also to the other five justices who were working at the Court:

Two weeks later, Justice Frankfurter was back in Washington but not done with his opinion-writing.

His biggest sticking point was Reconstruction Finance Corporation (RFC) v. Denver & Rio Grande Western Railroad Company, a railroad reorganization case. It had been argued to the Court on two days early in March 1946. Thereafter, when the justices had voted on the case in conference, Frankfurter was in the minority. He regarded it as a major case and wished to write his dissenting views.

But as of Monday, June 3, 1946, Justice Frankfurter had not completed—maybe he had not even begun—that writing process.

So he dictated and sent to his fellow justices another explanatory memorandum:

This memorandum made the problem clear: Frankfurter was determined to write a significant dissenting opinion in Denver & Rio Grande Western Railroad Company, he would not be able to do that in less than a week, and so he would be delaying the start of the Court’s summer recess from (at least) June 10 until June 17.


Justice Frankfurter’s memorandum proposed a solution to his problem that was the Court’s problem. He added a “P.S.” paragraph saying, in effect, “Don’t wait on me:”

The Court took the option. On Monday, June 10, 1946, justices announced the remaining decisions. Justice Stanley Reed announced his opinion for the Court in Denver & Rio Grande Western Railroad Company. It noted, “Mr. Justice Frankfurter dissents, and will set forth the detailed grounds for his dissent in an opinion to be filed hereafter.”

At the end of that decision day, the Court began its summer recess.

Over the next four-plus months, Justice Frankfurter finished writing his opinion in the case.

On October 28, 1946, the Court released that dissenting opinion.

Now Hear Brown

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

In Brown, et al., the Supreme Court—Chief Justice Earl Warren and eight Associate Justices, including Robert H. Jackson—held unanimously that government racial segregation 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.

L-R: NAACP lawyers George E.C. Hayes, Thurgood Marshall, and James M. Nabrit, Jr
L-R: NAACP lawyers George E.C. Hayes, Thurgood Marshall, and James M. Nabrit, Jr

L-R: Associate Justices Felix Frankfurter, Tom C. Clark, Hugo L. Black, and Robert H. Jackson, Chief Justice Earl Warren, and Associate Justices Harold H. Burton, Stanley Reed, Sherman Minton, and William O. Douglas.
L-R: Associate Justices Felix Frankfurter, Tom C. Clark, Hugo L. Black, and Robert H. Jackson, Chief Justice Earl Warren, and Associate Justices Harold H. Burton, Stanley Reed, Sherman Minton, and William O. Douglas.

Although Brown is seventy years old, this anniversary marks the first chance of most living people to hear the Brown cases as they were argued in 1952 and 1953 and decided in 1954.

Before Fall 1955, U.S. Supreme Court oral arguments and decisions were only preserved in text. The Court did not make audio recordings.

But now you can hear the voices of NAACP Legal Defense Fund Director-Counsel Thurgood Marshall, Chief Justice Warren, and other lawyers and justices, speaking the words that they in fact spoke in the Brown cases.

This newly-available audio is the product of the “Brown Revisited” project. It has used 1950s texts, actors, historic audio recordings of Brown case protagonists, and voice-cloning technology to recreate actual Brown voices speaking their historic Brown words. Here is the project website: https://brown.oyez.org/home/. Here is a video that explains the voice-cloning process: https://www.youtube.com/watch?v=RpBFyPm1OEY. I am honored to have been part of the team of advisers on this project.

So here, new, is the recreated voice of Chief Justice Warren reading his opinions for the Court in Brown and in Bolling v. Sharpe: https://brown.oyez.org/modules/opinions-may-1954/.

So please hear Brown. Hear nine justices, persuaded by extraordinary lawyers and by what the justices knew in their own lives, facing racism and racial subordination, including in government, and then standing up against those evils because, legally and morally, equality constitutes us.

And please continue, as you do [thank you!], to read. Here are the decisions in text form:

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 for relevant essays in the Jackson List archive, including:

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

Toasting VE Day (1946)

Today, May 8, 2024, marks the 79th anniversary of the Allied nations’ World War II victory over Nazi Germany. It is Victory in Europe (VE) Day.

Germany’s unconditional surrender first occurred on May 7, 1945, at “the little red schoolhouse” in Reims, France. It was Supreme Headquarters of the Allied Expeditionary Force (SHAEF). German General Alfred Jodl, acting with authorization from Admiral Karl Doenitz, Germany’s head of state since Adolf Hitler’s suicide a week earlier, signed at Reims an instrument surrendering all German military forces. U.S. Army General Walter Bedell Smith, chief of staff to Supreme Allied Commander General Dwight D. Eisenhower, signed for the Allied Expeditionary Force. Major General Ivan Susloparov signed for the Soviet Union. General Francois Sevez signed for the commander of French expeditionary forces.

The next day, May 8, Germany surrendered a second time, this time in Berlin. It was controlled by Soviet armed forces. Three German officers, Colonel-General Hans-Jurgen Stumpff of the Luftwaffe (air force), Field Marshal Wilhelm Keitel of the Wehrmacht (army), and Admiral Hans-Georg von Friedeburg of the Kreigsmarine (navy), signed and presented to Soviet Marshal Georgy Zukhov a slightly modified version of the Reims surrender instrument.

* * *

A year later, on the first anniversary of VE Day, Allied representatives were working together in Nuremberg, prosecuting before their International Military Tribunal (IMT) the principal surviving Nazi leaders for crimes of planning and waging aggressive war, of committing war crimes, and of committing crimes against humanity.

The Nuremberg trial had begun almost six months earlier, in late November 1945. By May 1946, the four allied nations had presented their prosecution cases. The twenty-one defendants, including Jodl, Doenitz, and Keitel, were, through defense counsel, presenting their cases. Their defense lawyers were calling witnesses to testify and putting favorable documents into evidence.

On Wednesday, May 8, 1946, the IMT morning proceedings featured lawyers arguing about documents. Doenitz’s skillful lawyer Otto Kranzbuehler responded to prosecution objections to documents that he proposed to introduce. British prosecutor David Maxwell Fyfe responded to Kranzbuehler, at length.

At midday, the IMT recessed for a special luncheon. In the Palace of Justice courthouse, the legal staffs commemorated VE Day, the military victory that was the predicate to their work holding individual Germans accountable for their war crimes.

At the luncheon, following a fruit cup course, the U.S. chief prosecutor, Justice Robert H. Jackson, rose to speak. He toasted VE Day. The assembled personnel—judges and lawyers—raised their glasses to their nations and the allied united nations, World War II’s military victors.

May 8, 1946: L-R: IMT president Judge Geoffrey Lawrence (UK), Justice Robert H. Jackson (US), General Robert J. Gill (US), Admiral William A. Glassford (US), & Judge Iona T. Nikitchenko (USSR), at the Palace of Justice, Nuremberg.
May 8, 1946: L-R: IMT president Judge Geoffrey Lawrence (UK), Justice Robert H. Jackson (US), General Robert J. Gill (US), Admiral William A. Glassford (US), & Judge Iona T. Nikitchenko (USSR), at the Palace of Justice, Nuremberg.

The Soviet judge, General Iona Nikitchenko, then offered his own toast. With visible glee, he said, “This day has an even greater significance to me. Let’s drink instead to the birthday of the President of the United States, Mr. Harry Truman.” Nikitchenko was noting an anniversary—President Truman’s 62nd birthday—that no one else had remembered.

Following the luncheon, the trial resumed. The afternoon proceedings included attorney Kranzbuehler calling his client, defendant Doenitz, to the stand to begin testifying in his own defense.

Justice Jackson’s executive assistant, his son William E. Jackson, commented later that day on the VE Day anniversary, and on the propriety of the international criminal trial that the Allies were conducting at Nuremberg. Bill Jackson thought:

  • that it was fitting that just one year after VE Day, Doenitz, Hitler’s successor, was on trial for his life;
  • that Doenitz was doing a good, if slow, job of defending himself; and
  • that defense attorney Kranzbuehler, Doenitz’s Allied-funded counsel of choice, was the best of the Nuremberg defense lawyers—Bill Jackson called him the prosecutors’ “hardest nut to crack.”

* * *

In Fall 1946, the IMT found Alfred Jodl guilty of four international crimes–conspiracy; aggressive war; war crimes; and crimes against humanity–and he was hanged.

The IMT also convicted Wilhelm Keitel of the same crimes and he was hanged.

The IMT found Karl Doenitz—the former German May 1945 head of state who had agreed to surrender, and then Otto Kranzbuehler’s client at Nuremberg—not guilty of conspiracy and guilty of war crimes and crimes against humanity. The IMT sentenced Doenitz to ten years in prison. After serving his sentence, he lived in West Germany, dying in 1980 at age 89.

Holocaust Comprehension, Proof, & Remembrance

Monday, May 6, 2024, marks international Holocaust Remembrance Day. This date corresponds to the 27th day of Nisan on the Hebrew calendar. In 1943, this was the date of the Warsaw Ghetto uprising. On this day, Yom HaShoah, we recall the victims—six million Jews and millions of others—of Adolf Hitler and his criminal regime, and also resisters, rescuers, and the Allies who defeated Nazi Germany militarily in Spring 1945.

* * *

The Nuremberg trial, which chief prosecutor Robert H. Jackson and his U.S. and Allied colleagues began in Fall 1945, was about holding individuals legally accountable for planning and then committing a criminal war of aggression, for war crimes, and for crimes against humanity.

Our phrase “The Holocaust” was not part of the Nuremberg prosecutors’ vocabulary. But this reality came to be at the center of their knowledge, their work as investigators and prosecutors, and the documentation and legal legacy that they left to history.

Justice Jackson first glimpsed the enormity of the Holocaust in June 1945. He was preparing to relocate to Europe to negotiate the creation of the International Military Tribunal and then to prosecute what became the Nuremberg case against the surviving Nazi leaders and their organizations.

On June 12, Jackson met at the federal courthouse at Foley Square in Manhattan with Jewish advisers. One, Dr. Jacob Robinson of the World Jewish Congress’s Institute of Jewish Affairs, told Jackson that “six million” European Jews had been “exterminated” by the Nazis.

Dr. Jacob Robinson (1889-1977)
Dr. Jacob Robinson (1889-1977)

Jackson was stunned by this allegation. He asked Robinson about his sources and their reliability. Robinson explained that the estimate was the difference between Europe’s known Jewish population in 1929 and what military and relief agencies were reporting at that time in 1945 as the number of European Jews who had survived the war.

Jacob Robinson and colleagues soon supplied supporting documentation to Justice Jackson. Over the coming months, his team, including Robinson, gathered much more.

When Jackson opened the Nuremberg trial on November 21, 1945, he described the evidence that the Allies would offer:

The conspiracy or common plan to exterminate the Jew was so methodically and thoroughly pursued that despite the German defeat and Nazi prostration, this Nazi aim largely has succeeded. Only remnants of the European Jewish population remain in Germany, in the countries which Germany occupied, and in those which were her satellites or collaborators. Of the 9,600,000 Jews who lived in Nazi-dominated Europe, 60 percent are authoritatively estimated to have perished. Five million seven hundred thousand Jews are missing from the countries in which they formerly lived, and over 4,500,000 cannot be accounted for by the normal death rate nor by immigration; nor are they included among displaced persons.

History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.

This indeed was the case that the prosecutors proved at Nuremberg.

Two previous Jackson List posts describe this evidence and its impact on Justice Jackson:

  • from 2009, “Familiarity With Holocaust Evidence”—click here; and
  • from 2023, “Nuremberg’s Holocaust Proof”—click here.

Jackson’s 1946 official letter of thanks to the Institute of Jewish Affairs, especially Jacob Robinson, expresses gratitude for his assistance and vital teaching:

As this global day denotes, this is an ongoing task for every person

Eclipsed and Visible Stars (1925)

On next Monday afternoon, Jamestown, New York, located south of Buffalo, will be in the path of the total solar eclipse.

This has happened before. On Saturday, January 24, 1925, Jamestown also was in the path of a solar eclipse.

At that time, Robert H. Jackson was thirty-two years old and nine years a lawyer. His law firm office was in downtown Jamestown. He lived just outside the city limits with his wife and their two children. Like most people, Jackson knew in advance that the eclipse was coming.

As that January 1925 weekend began, Jamestown’s big event was a downtown dinner. On Friday evening, January 23, almost 600 people gathered in the ballroom of the new $1.5 million Hotel Jamestown, for a testimonial dinner honoring the businessmen who had built the hotel.

Robert Jackson was one of the six speakers at this dinner. His remarks, not brief, paid tribute to the hotel builders and to rising Jamestown:

In honoring the men who have made the Hotel Jamestown possible, I have no trumpet of my own to sound. I am not a member of your Chamber of Commerce, not a stockholder of your Hotel, not even a citizen of your city.

I hope and believe it is Jamestown’s destiny to become an increasingly wholesome and prosperous city, a city where business is sound, institutions progressive, labor satisfied and home-owning, recreation clean and democratic, and life attractive.

Our day-to-day labor, the high standard of the products we send out, the way we stand up and meet our obligations, the way we live our daily lives will all set the standard of our future success. There is no other law than that we shall reap as we sow.

Commercialized hospitality has become an essential of modern society. Man is becoming increasingly nomadic. As the means of travel multiply so must the means for making the wandering tribes comfortable, when they are not speeding. Thus the hotel plays an increasing part in social and business life.

Because this hotel makes for the sound advancement of Jamestown, it makes it a better place to live, a more attractive town to come to. Our community unites in honoring the builders tonight.

The many, whether directors, executive committees or officers who have rendered notable service to the work, I shall pass by, leaving their virtue to be its own reward, and speak of the dominant factor in this enterprise—Frank O. Anderson.

One of the best services that the board of directors performed was to elect Frank O. Anderson president—and then adjourn. He has done the work and taken the cussing and his is the praise.

I am not here to pronounce a funeral eulogy on Mr. Anderson. He is not a willing corpse. He is alive and alert and young in spirit and will. I hope he will start and finish many another fight. He will in the future as in the past win ardent followers and stir up bitter antagonists and I want to reserve my right to be in either camp.

Frank O. Anderson may be said to stand in a somewhat symbolic relation to this city and day. He symbolizes the power of individualism, the success of self-reliance, the driving power of hard work guided by native ability. Born when the industry even in youth was virtue and before loafing until maturity was compelled by law, Frank O. Anderson was thrown upon his resources with only the intangible capital composed of ability and determination. The struggle taught him what college would not. But his own work never so overwhelmed him that he failed to see the public needs of his city. ….

Samuel A. Carlson, Jamestown’s mayor and an important Robert Jackson mentor and close friend, was another speaker at the dinner.

Mayor Carlson saluted the many builders and supporters who had brought the Hotel Jamestown into being.

Then Mayor Carlson, in the course of lauding Jamestown’s civic spirit and hoping for its intellectual progress, mentioned the coming solar eclipse as a next-day occasion on which to think about human advancement:

In conclusion, I want to express the hope that this community spirit may always be kept alive and in touch with the advanced thought of our time.

That the intellect of man is steadily broadening is evidenced by the fact that a few centuries ago an eclipse of the sun was regarded as an expression of divine wrath. Tomorrow, if we are favored with a clear sky, millions will witness this wonderful phenomenon without fear and with perfect calmness, knowing that it is only a natural movement of planetary bodies surrounding the terrestrial globe on which we have providentially been placed. Men have come to a better understanding of their true relation to each other and to their Creator. Investigation and research by scientists and thinkers has annihilated most of the old superstitions and old theories that once dominated the world.

And let us remember that it is just in proportion to the degree of tolerance with which we accept new thought, new discoveries, new inventions, and new movements, that our advance towards the better, higher, and nobler things is made.

The solar eclipse indeed occurred the next morning, on Saturday, January 24, 1925. The skies were clear in the Jamestown area, so people saw the eclipse and marveled.

I have not located any evidence that Robert Jackson saw the eclipse. My guess is that he did, because it was such a significant and visible event.

Salamanca, NY, Press, Jan. 24, 1925. Salamanca is located about thirty miles east of Jamestown.
Salamanca, NY, Press, Jan. 24, 1925. Salamanca is located about thirty miles east of Jamestown.

I do know that Jackson sometimes thought and spoke in astronomical terms. One of his most eloquent and famous U.S. Supreme Court opinion lines, for example, is this summation in his 1943 opinion for the Court in West Virginia State Board of Education v. Barnette, which held unconstitutional a state requirement that public school students recite the Pledge of Allegiance and salute the U.S. flag:

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.

Robert Jackson did not pen all of those words—those upward-gazing words—for the first time at the Supreme Court in 1943. He wrote some of them eleven years earlier, in Jamestown.

In 1932, Jamestown lawyer Jackson wrote about Milton Fletcher, his 1909-1910 Jamestown High School principal, teacher, and mentor. Fletcher, who after Jackson’s student days had become Jamestown’s school superintendent, had retired. Jackson began his Mr. Fletcher tribute remarks as follows:

Before Mr. Fletcher a procession of generations has marched. Each year a new group went forth from the high school, moving on to the adventure of life. He was there before they came—he stayed when they were gone. We students came to think of him as permanent and ourselves as transients: we were the great parade; he from the reviewing stand saw us pass. We were the moving satellites, the erratic comets—he the fixed star. So it came as a shock to read of his resignation, to learn that the fixed star also moves.

And so I wish you clear views:

  • of the April 8, 2024, solar eclipse, if you are in its path;
  • of Barnette, soon to be eighty-one years old, a landmark explication of the U.S. Constitution’s protections of conscience; and
  • of community, and the roles that many can play, singly and together, in building it, physically, intellectually, and even astronomically.

Robert H. Jackson, circa 1927.
Robert H. Jackson, circa 1927.

The Federal Prosecutor (1940)

On Monday, April 1, 1940, Robert H. Jackson—age forty-eight, three months into his service as Attorney General of the United States—gave one of his most important, famous, enduring speeches: The Federal Prosecutor. He spoke on that day to the country’s chief federal prosecutors, the U.S. Attorneys who then were serving in each Federal Judicial District across the country. They were assembled in the Great Hall at the U.S. Department of Justice in Washington, D.C., for the Second Annual Conference of U.S. Attorneys.

Robert Jackson had moved up to the position of U.S. Attorney General from having been the Solicitor General of the U.S., which then was DOJ’s number two position.

As the new Attorney General, Jackson was leading a Department of Justice that his predecessor for one year, Attorney General Frank Murphy, had run politically and in a self-aggrandizing fashion. DOJ personnel were, after a year of that, demoralized. This Jackson speech was clean up work. He urged the renewal of DOJ through an elevated, ethical, depoliticized vision of proper conduct by federal prosecutors. Jackson’s speech was, you will note, the antithesis of an April Fool’s Day joke.

Attorney General Jackson’s speech is quoted often. I recall first reading some of it in Justice Scalia’s dissenting opinion in Morrison v. Olson (1988), which quotes from it liberally. I then got the Jackson speech and read all of it (which does not take long), to get a fuller understanding of his words and philosophy. I have read Jackson’s speech many times since then. A senior DOJ official, for example, handed it out as assigned reading to many attorneys when I worked in DOJ in the 1990s, and I completed the assignment. I have heard or read most Attorneys General, Deputy Attorneys General, and other senior DOJ officials, including recently, quote from Jackson’s speech in their own speeches, other public remarks, and written work.

Attorney General Jackson’s speech, which follows, bears reading in full, and regularly.

Jackson’s speech also bears absorption and implementation today by every gentleperson who wields prosecutorial power.

* * *

The Federal Prosecutor

By Robert H. Jackson

Attorney General of the United States

April 1, 1940

It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice. It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called “the shadow cast by one’s daily life.” Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.” They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal and the local in law-enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Historic Albany, NY, Building for Sale

In September 1911, Robert H. Jackson, age 19, moved east across New York State, from Jamestown in the southern tier to the capital city, Albany.

Robert Jackson enrolled at Albany Law School. It offered a two-year law school curriculum to high school graduates (some of whom had also attended college).

Jackson was only a high school graduate. But he had completed a year as an apprentice in a Jamestown law office. Albany Law School admitted Jackson with credit for that apprentice year, adding him to its senior class that would graduate the next spring. (For details on Jackson in Albany, as a law student and later, here is a downloadable article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=744111

During his 1911-1912 Albany year, Jackson lived with two friends in a rented apartment at 267 Lark Street. This building—shown here in a photograph taken circa 1931—was about a six block walk from Albany Law School’s location in the heart of downtown.

In Albany today, 267 Lark Street still stands. It is a three-story building on the corner of Hudson Street in the historic Center Square neighborhood.

The building, except for its Chinese restaurant that opened around 1986, seems mostly unchanged from Jackson’s time. It contains, upstairs, four apartments. One—I don’t know which one—was law student Jackson’s.

And now the whole building can be yours, for about a million dollars.

Here is the real estate advertisement for the building, which notes the Jackson connection:


(Thanks to Fred Brodie for alerting me to this ad.)

I have enjoyed Chinese food from Amazing Wok, located on the ground floor of 267 Lark Street.

In 2012, I participated when Albany’s mayor, other city officials, and Albany Law School’s dean dedicated this Jackson plaque on 267 Lark Street.

And now, thanks to the realtor photographs, I have a better sense of some of the beauty that Jackson saw inside 267 Lark Street, in addition to his law books and notes.

132nd Birthday

Today marks the 132nd anniversary of Robert Houghwout Jackson’s birth. It occurred on Saturday, February 13, 1892, in Spring Creek Township, Warren County, Pennsylvania, in the farmhouse that Robert’s great-grandfather built on the Brokenstraw Creek much earlier in the 19th century.

In Spring Creek, February 13, 1892, was a very snowy day. A doctor delivered Robert in the second floor room where his father, William Eldred Jackson, had been born thirty years earlier.

For Jackson birthday reading, here are archived versions of previous RHJ birthday-related posts:

  • “Birthday” (click here);
  • “Birthday Reading (1938)” (click here);
  • “Jackson Birthdays 2006, 1946 & 1892” (click here);
  • “Birthday Bonds, Appreciation, Treasure” (click here);
  • “Birthday Wishes from Home (1946)” (click here);
  • “Turning 54 at Nuremberg” (click here);
  • “Birthday Cake in Chambers (1952)” (click here); and
  • “February Birthday Carnival” (click here).

The Jackson List archive site, which is word-searchable and, using quotation marks, phrase-searchable, is here: http://thejacksonlist.com/.

Thanks to the many new subscribers who have joined the Jackson List in the past year.

Happy “Jackson Day” to all.

Appointment to U.S. Government Service (1934)

When President Franklin D. Roosevelt took office in 1933, he nominated, and the Senate immediately confirmed, William H. Woodin, a Republican businessman and political supporter, to serve as United States Secretary of the Treasury. Secretary Woodin then worked on the U.S. “Bank Holiday,” the enactment of bank deposit insurance, the U.S. move to leave the gold standard, and many other policies that sought to mitigate the Great Depression.

But Secretary Woodin was not in strong health. He resigned at the end of 1933. President Roosevelt then nominated, and the Senate confirmed, Henry Morgenthau, Jr., FDR’s New York State neighbor and friend, to succeed Woodin.

Secretary Morgenthau, taking office in January 1934, decided immediately to change some Treasury Department senior personnel. He focused on one of Treasury’s major components, the Bureau of Internal Revenue. The Bureau was charged by law with raising all U.S. government monies, including from income, estate, excise, liquor, gift, customs, and other miscellaneous taxes. Revenue’s General Counsel interpreted tax laws and handled government controversies with taxpayers, including a large volume of litigation before the Board of Tax Appeals, in U.S. circuit courts of appeals, and before the U.S. Supreme Court.

Morgenthau decided that he would replace Revenue’s General Counsel, Maryland lawyer E. Barrett Prettyman, Sr., with Robert H. Jackson of Jamestown, New York.

Robert Jackson, then age forty-one, was a leading, well-regarded lawyer in New York State and nationally. He was somewhat active in Democratic politics in New York. He was known to President Roosevelt—they had been acquainted for more than twenty years, and Jackson had been an FDR supporter in his 1928 and 1930 gubernatorial campaigns and then his 1932 presidential campaign (each successful). Morgenthau, along with others inside the Roosevelt administration, was acquainted with Jackson. Morgenthau knew of Jackson’s high reputation as a lawyer and his skills as a Roosevelt campaigner.

President Roosevelt thus nominated Robert Jackson to become one of the Treasury Department’s Assistant General Counsel, the General Counsel in the Department’s Bureau of Internal Revenue. Jackson was not a tax law specialist, but he was attracted by the action of “New Deal” Washington, by the opportunity to do public service, and by the significance of the Revenue job.

In February 1934, the Senate confirmed Jackson’s nomination. He moved with his family to Washington, to a hotel apartment. He left his Jamestown law practice in the hands of his partner and associates. He expected to return to private life within months.

As General Counsel heading the Bureau of Internal Revenue, Robert H. Jackson was responsible for running the largest law office on, well, Earth. The office had, under the General Counsel, four assistant general counsel, 260 attorneys, and a large staff of other employees. It was bigger than the U.S. Department of Justice in Washington, for example, and bigger than any private law firm.

Jackson’s appointment to serve as General Counsel in Revenue was the first of his five nominations by President Roosevelt and confirmations by the Senate to high office. The others: in the U.S. Department of Justice, Assistant Attorney General, then Solicitor General, and then Attorney General; and in the U.S. judiciary, associate justice of the Supreme Court.

Plus FDR detailed Jackson in 1935 from Treasury to the U.S. Securities and Exchange Commission.

Plus the U.S. Attorney General in 1937 reassigned Assistant Attorney General Jackson from heading DOJ’s Tax Division to heading DOJ’s Antitrust Division.

Plus President Truman in 1945 appointed Justice Jackson to serve as U.S. Chief of Counsel for the Prosecution of Axis War Criminals in the European Theater—U.S. chief prosecutor at Nuremberg of the principal Nazi war criminals.

In other words. beginning in early 1934, Robert H. Jackson was in public service for the remaining twenty years of his life.

Credit to Morgenthau, Roosevelt, and others for spotting what he had to offer, and also to Jackson for, again and again, stepping up.

Oh, and after meeting in somewhat awkward 1934 circumstances—Morgenthau replacing Woodin’s person with his own—Robert Jackson and Barrett Prettyman became close, lifelong friends.

A Non-Urgent Holiday Season (1952)

During the U.S. Supreme Court’s 1952-1953 term, young lawyer Donald Cronson, a graduate of the University of Chicago Law School, was one of Justice Robert H. Jackson’s two law clerks. (Jackson’s other clerk was another young lawyer, William Rehnquist of Milwaukee, a graduate of Stanford Law School.)

The first months of that Court term were busy and eventful, for all of the justices and for Justice Jackson in particular. In October 1952, for example, the justices decided not to review the federal atom bomb espionage convictions and death sentences imposed on Julius and Ethel Rosenberg. (The Rosenbergs then petitioned for rehearings, which the justices denied in November.) The Court heard oral arguments that Fall in dozens of cases; one of lasting note was United States v. Reynolds, a national security case involving the so-called state secrets privilege. The Court decided numerous cases that Fall, including nine in which Jackson wrote opinions, a few for the Court majority and others for himself. The latter included his dissenting opinion in Arrowsmith v. Commissioner of Internal Revenue, about deference owed to the U.S. Tax Court, and his dissenting opinion in Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America, about a church property dispute. In October, Jackson finished writing and submitted for publication, unsolicited, his fascinating essay, “Falstaff’s Descendants in Pennsylvania Courts,” that the University of Pennsylvania Law Review published two months later. In November he testified before a U.S. House of Representatives committee (the Select Committee on the Katyn Forest massacre), which was investigating alleged misconduct by Jackson when he was U.S. chief prosecutor at Nuremberg of Nazi war criminals in 1945-1946. And in December 1952, the Supreme Court heard, over three days, the first round of oral arguments in the five cases—Brown v. Board of Education and its companion cases—that challenged the constitutionality of States and the District of Columbia racially segregating public school children.

During those months, Justice Jackson kept his law clerks Cronson and Rehnquist busy. They wrote memoranda on petitions seeking Court review, performed research, and read and commented on Jackson draft opinions. (They did not draft these opinions for Jackson; he did almost all of his own opinion-writing.)

In December 1952, the Court sat in public session for two weeks, from Monday, December 8, through Friday, December 19. On Saturday, December 20, the nine justices met in their customary Saturday private conference, to discuss petitions and argued cases. Jackson and his law clerks generally worked six-day weeks at the Court. I believe that both Jackson clerks were present at the Court on Saturday, December 20.

Then Don Cronson traveled to New York City for a two-day, pre-Christmas belated “weekend”—Sunday, December 21, and Monday, December 22. Cronson surely got Jackson’s permission to be away from the Court on that workday Monday. Cronson evidently told Jackson—and this might have been the condition that got Jackson to approve Cronson’s Monday absence—that he (Cronson) would be back at work on Tuesday, December 23.

Then something caused Justice Jackson to have further thoughts.

On Monday, December 22, Jackson sent a telegram to Don Cronson in New York City. He was staying at an apartment on Manhattan’s Upper East Side.

Jackson told Cronson, in effect, to take the rest of the week off, because there was “nothing urgent” at the Supreme Court:

* * *

I hope that you will, this week, experience days off, a wonderful holiday season, and as little urgency as U.S. Supreme Court justices feel…. or at least as little urgency as Justice Jackson felt at Christmastime in 1952.

Thank you very much for your continuing interest in and promotion of the Jackson List.

“See” you in 2024.

Felix Frankfurter & Judicial Self-Restraint, Then & Now

In 1935, Robert H. Jackson, a senior lawyer in the U.S. Treasury Department, met Felix Frankfurter, a Harvard University law professor. They worked together, in Washington and remotely, on New Deal legislation and other projects, and they became friends.

In late 1938 and during the first weeks of 1939, then-U.S. Solicitor General Jackson urged President Franklin D. Roosevelt, successfully, to nominate Frankfurter to serve on the U.S. Supreme Court.

October 2, 1939: U.S. Solicitor General Robert H. Jackson & U.S. Supreme Court Justice Felix Frankfurter, at the White House.
October 2, 1939: U.S. Solicitor General Robert H. Jackson & U.S. Supreme Court Justice Felix Frankfurter, at the White House.

In summer 1941, Jackson joined Justice Frankfurter on the Court. They were Supreme Court colleagues for all of Justice Jackson’s thirteen years of service.

On the Court, Justice Frankfurter and Justice Jackson sometimes disagreed about legal issues and cases. But they generally were like-minded. They shared a strong belief in democracy—in the U.S. political process—and, related to that, they had doubts that judges properly should, at least often, interpret the U.S. Constitution as requiring fundamental rights or policies not recognized by the elected branches of government.

* * *

The topic of judicial restraint is both historical and contemporary. Accordingly, the Historical Society of the New York Courts last week hosted a program on “Justice Felix Frankfurter and the Idea of Judicial Self-Restraint: Then and Now in Federal and State Courts.”

This program occurred in the Great Hall at the New York City Bar Association, on a dais from which Frankfurter and Jackson each spoke.

The program participants:

  • Professor Brad Snyder of Georgetown University Law Center, author of the biography Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment (W.W. Norton, 2022);
  • The Honorable Jonathan Lippman, former Chief Judge of the New York Court of Appeals and of the State of New York, now in private practice at Latham & Watkins;
  • The Honorable Barbara N. Underwood, Solicitor General of New York State and former Acting Solicitor General of the United States;
  • Dean Troy A. McKenzie of New York University School of Law;
  • Henry M. Greenberg, former president of the New York State Bar Association, in private practice at Greenberg Traurig; and
  • myself.

To watch video of this program, which begins with Professor Snyder lecturing about Frankfurter and then is an active panel discussion of judicial restraint, click here:

Dewey Defeats Jackson?

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.

Supreme Court Justices, Back from Summer Recess

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.

On the Rights of Man (1943)

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.

1943: Justice Robert H. Jackson at a Washington, D.C., diplomatic event.

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.

Justin Driver’s Jackson Lecture at Chautauqua Institution

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:

*             *             *

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.

*             *             *

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.

Get Your Summer Continuance (1913)

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.

Justin Driver to give Chautauqua Institution’s Jackson Lecture

I am very pleased to report that Justin Driver will give Chautauqua Institution’s 19th 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.

Picture of Justin Driver
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:

Americans on Centre Court at Wimbledon (1945)

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

July 21, 1945: Sidney Alderman and Frank Shea.
July 21, 1945: Sidney Alderman and Frank Shea.

1945: Sidney Alderman (right-side front) and Bernie Meltzer (behind him) at the U.S. prosecution table, Courtroom 600, Palace of Justice, Nuremberg.
1945: Sidney Alderman (right-side front) and Bernie Meltzer (behind him) at the U.S. prosecution table, Courtroom 600, Palace of Justice, Nuremberg.

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.

May 1946: Telford Taylor and Robert Jackson in his Nuremberg courthouse office.
May 1946: Telford Taylor and Robert Jackson in his Nuremberg courthouse office.

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.

1945 or 1946: Jackson staff on “his” Nuremberg tennis court.
1945 or 1946: Jackson staff on “his” Nuremberg tennis court.

Barnette at 80

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.

* * *

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 Barnetteclick here.

Happy Barnette Day and Flag Day!

Robert H. Jackson, Robert E. Cushman, & Ruth Bader Ginsburg

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:

Stopping in Your Baker Park

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.

Nuremberg’s Holocaust Proof

Tonight marks the start of Yom Hashoah, the international Holocaust Remembrance Day. It remembers the approximately 6,000,000 Jews murdered by Nazi Germany and its collaborators, and it remembers Jewish resistance in that time.

The date of Yom Hashoah is the 27th day of the month of Nisan on the Hebrew calendar. In Hebrew calendar year 5704, the 27th day of Nisan was April 19, 1943, on the Gregorian calendar (the 365-day solar year). That was the date of the Warsaw ghetto uprising—the date on which Polish Jews, imprisoned by Nazi occupiers in a ghetto in Warsaw and facing extermination, chose heroically to fight, even to the death.

In Spring 1943, Robert H. Jackson was in his third year of service as an associate justice of the Supreme Court of the United States.

Justice Jackson likely knew from newspapers, radio, and personal contacts some of what was happening to Jews in Europe, including in Warsaw.

On April 13, for example, the New York Times reported on an international relief organization’s new report. It detailed that Jews in Warsaw were incarcerated behind nine-foot high walls and barbed wire; that the ghetto population had been reduced from 500,000 to 40,000; that “hunger typhus” was raging; that people were starving; and that the organization had given up on Polish Jews as “hopelessly lost.”

On April 14, the Washington Post editorialized that the Nazis had already killed two million of Europe’s Jews. It wrote that millions of others, “herded in ghettos that are only enlarged lethal chambers and in concentration camps,” also were facing death.

Justice Jackson showed in judicial writings his awareness, perhaps only partial, of these events. That spring, he was preparing for the Court to hear oral arguments in cases where Japanese-Americans were challenging the constitutionality of criminal convictions for violating U.S. Army curfew and area-exclusion orders that applied only to Japanese-Americans. When Jackson drafted an opinion (which he ultimately did not file) in Hirabayashi v. United States, in which the Court unanimously upheld a curfew-violation conviction, he penned, I think conspicuously, the word “ghetto.”

In April 1943, Justice Jackson was drafting and editing what became his famous opinion for the Court in the no-compelled-flag-salute case, West Virginia State Board of Education v. Barnette. It includes this paragraph:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

“Present totalitarian enemies…”


“The graveyard….”

These words show that Justice Jackson saw Barnette as about much more than U.S. officials attempting to coerce Jehovah’s Witness schoolchildren to state government orthodoxy (the Pledge of Allegiance) in violations of their consciences.

Two years later, President Truman appointed Justice Jackson to serve as U.S. chief of counsel for the war crimes prosecutions of surviving Nazi leaders. This assignment became the 1945-1946 Nuremberg trial, where Jackson served as U.S. chief prosecutor.

The Nuremberg trial focused on Nazi Germany’s military aggression—on the defendants’ starting and waging World War II.

But the Nuremberg trial also, over many months of public proceedings, established with Nazi documents and witness testimony what we know as the Holocaust—the Nazis’ planned, systematic extermination of 6,000,000 Jews in Europe.

Justice Jackson did not fully comprehend these crimes when his Nuremberg work began. But he and colleagues uncovered and tried to fathom them, then proved them in court, and then left to history as Nuremberg’s evidentiary record this horror that is undeniable—this horror that is proven.

Jackson stated these facts in many ways at Nuremberg, including in his opening and closing statements at the trial.

Justice Jackson also stated these facts and continued to try to teach this awful reality throughout his remaining life.

One glimpse is this exchange, preserved in his correspondence files. In May 1953, a Mr. J.P. Grip, a stranger to Justice Jackson, wrote to him from Estherville, a small city in northern Iowa. He wrote to Jackson as the former Nuremberg prosecutor. Mr. Grip asked Justice Jackson for evidence that the Nazis had murdered 6,000,000 Jews.

Justice Jackson, who at that time was busy doing his share of the Supreme Court’s work as its term was about to end and also dealing with serious health problems, immediately dictated and sent a letter back to Mr. Grip. He sent him a copy of the Nuremberg court judgment. He directed him to the published, vast Nuremberg trial record. And he pointed him to the American Jewish Conference and its authoritative publication (assembled and written by Seymour Krieger, who had been a prosecutor on Jackson’s Nuremberg staff) on the Holocaust.

Yom Hashoah is to remember lives and to teach facts. Please just keep doing that.

Benjamin B. Ferencz (1920 – ထ)

I am deeply sad and truly sorry to report that Benjamin Ferencz died last evening, April 7, 2023, at his apartment in Boynton Beach, Florida. Ben officially was age 103—or, as he preferred to put it, he was 104, i.e., in his 104th year.

Berrel Ferencz was born around March 11, 1920 (there is no birth certificate), in Transylvania, then part of Romania. His parents brought him as a baby to the United States.

He became Benjamin. He grew up in New York City’s “Hell’s Kitchen.” He knew poverty, rampant crime, and suffering. He became, moving quickly, a public-school student, a college graduate, a Harvard Law School graduate, a World War II U.S. Army infantryman serving in combat in Europe, a soldier investigating German war crimes at atrocity sites, a liberator of Nazi concentration camp survivors, and a civilian prosecuting Nazi mass murder.

1947: Benjamin Ferencz at the podium, in Courtroom 600, Palace of Justice, Nuremberg.
1947: Benjamin Ferencz at the podium, in Courtroom 600, Palace of Justice, Nuremberg.

Beginning in Spring 1946, Ben Ferencz served as a prosecutor in Nuremberg, in the U.S. occupation zone of what had been Nazi Germany.

During 1947 and 1948, Ben was chief prosecutor of the Einsatzgruppen case (United States v. Otto Ohlendorf, et al.). It was his first case as a lawyer. He charged the defendants, leaders of Nazi killing operations in Eastern Europe, with crimes against humanity (“a systematic program of genocide”), war crimes, and membership in criminal Nazi organizations.

Circa 1947: Benjamin Ferencz and counsel for Einsatzgruppen trial defendants, Nuremberg.
Circa 1947: Benjamin Ferencz and counsel for Einsatzgruppen trial defendants, Nuremberg.

(For details, including a link to video of Ben’s opening statement at the Einsatzgruppen trial, click here.)

Ben’s cases against those defendants, built on the documents that they sent contemporaneously from “the field” to Berlin, were brief, horrifying, and irrefutable.

More than twenty Einsatzgruppen defendants were convicted of killing almost one million people. The Einsatzgruppen case was and is the biggest murder trial in human history.

Ben Ferencz returned to the United States in the 1950s.

For the rest of his life, Ben was a lawyer for Holocaust survivors, a law teacher, a writer, a lecturer around the world, a lobbyist for and a builder of international legal institutions, a force for world progress toward peace through law, and a moral exemplar to millions.

1974: Ben Ferencz in Marcel Ophuls's film Memory of Judgment.
1974: Ben Ferencz in Marcel Ophuls’s film Memory of Judgment.

November 19, 2010: Ben Ferencz in Courtroom 600, Palace of Justice, Nuremberg.
November 19, 2010: Ben Ferencz in Courtroom 600, Palace of Justice, Nuremberg.

From the first time that I met Ben, in 1999, I knew that he would be the longest-living Nuremberg podium prosecutor.

I knew this because of the math—Ben had been so young (age 26, or close enough) at Nuremberg.

I knew this because Ben, though less than tall, was physically very strong—he did rigorous calisthenics every day, including standing on his head and lots of swimming.

I knew this because Ben was so driven—“Never give up” was his main message, and he lived it.

August 24, 2010: Ben Ferencz at Chautauqua Institution.
August 24, 2010: Ben Ferencz at Chautauqua Institution.

And I knew this because Ben told me explicitly that he would not die—”I’ve got no time to die,” he said. “Luckily, I’m immortal. I’ve got too much work to do.”

*     *     *

Alas, Ben turned out to be wrong about that one small thing.

But he was oh so right about everything that he stood for and worked to address, including the value of every human life, the supreme evil of war, and the need to build law to protect people from that man-made disaster.

I will always be grateful that Ben Ferencz was my teacher and my dear, generous friend. He was great to me, and to all, in every way.

And luckily Ben Ferencz—the memory; the example; the lessons—is permanent, because there is so much work to do.

So honor him by heeding his injunction: Keep working. Never give up!

February 28, 2022: Ben Ferencz at his home in Delray Beach, Florida.
February 28, 2022: Ben Ferencz at his home in Delray Beach, Florida.