Monday, May 6, 2024, marks international Holocaust Remembrance Day. This date corresponds to the 27^th 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.

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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.

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

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.

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.

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.

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:

https://www.bhhsblakerealtors.com/ny/267-lark-street-albany-12210/pid-362907173?SearchType=Address&PropertyType=1%2C2%2C3%2C4%2C5&ApplicationType=FOR_SALE%2CFOR_RENT&ListingStatus=1&NewListing=false&PageSize=32&Page=1&utm_source=adfenix&utm_medium=newsfeed

(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.

Today marks the 132^nd 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 19^th 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.

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.

I had the honor to give earlier this week a lecture, “Nuremberg Laws and Nuremberg Trials: Abuses and Uses, and Hopes, Regarding the Rule of Law,” at Touro Law Center’s commemoration of International Holocaust Remembrance Day. You can watch the lecture here on YouTube:

 

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.

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.

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:

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.