In the United States, tomorrow, November 25, marks Thanksgiving Day.

I am very thankful to each of you for your friendship, for your commitments to substantive endeavors, and for your interest in and promotion of the ever-growing Jackson List.

As you know, the Jackson List archive site contains hundreds of essays. Here are some that pertain to Thanksgiving—each of these titles is a click-able hyperlink to a PDF file:

• Public Life & the Pursuit of Good Information (Thanksgiving 1937)
• Thanksgiving in Nuremberg (1945)
• Penn & Thanksgiving, 1948
• Father Walsh (1953) on Nuremberg Thanksgiving (1945)
• A Doctor’s Thanksgiving Wisdom (1953)

In Lake County, Florida, a circuit court judge yesterday granted a prosecutor’s motion to dismiss, based on prosecutorial misconduct and falsified evidence, criminal indictments against two men and to vacate the criminal convictions and sentences imposed on two others.

These criminal cases date back to 1949.  The men, all now deceased, were Charles Greenlee, Walter Irvin, Samuel Shepherd, and Ernest Thomas.  Each was African-American.  In summer 1949, they were accused of abducting and raping a white woman.  The men came to be known as “the Groveland Four.”

In the Groveland case, Florida’s legal system engaged in violent, illegal, racist torture and murder.  Mr. Thomas was murdered by a mob.  Mr. Greenlee, Mr. Irvin, and Mr. Shepherd were convicted by an all-white jury.  After Irvin and Shepherd won a United States Supreme Court decision granting them new trials, Shepherd was shot and killed by the local sheriff, who claimed that he had stopped Shepherd from escaping.  The sheriff also shot Irvin, but he survived.   He then was retried, convicted, and served almost twenty years in prison.  Greenlee also served about fifteen years in prison.

The U.S. Supreme Court decision in the Groveland case, rendered in the middle of the murderous legal saga, occurred in 1951.   The Court heard the appeals of Shepherd and Irvin, who had been convicted of rape and sentenced to death.  In the case, Shepherd v. Florida, the Court unanimously reversed their criminal convictions.

The U.S. Supreme Court issued no opinion explaining this decision.  The Court simply announced, per curiam, that the Florida Supreme Court’s judgment affirming Shepherd’s and Irvin’s convictions and sentences was reversed.  As authority, the U.S. Supreme Court cited its decision a year earlier in Cassell v. Texas.  In that case, the Court had reversed a black man’s murder conviction because he had been indicted by a grand jury from which black people had been excluded, in violation of the Fourteenth Amendment.  The same had been true, the Court was signaling, of the Florida grand jury that had indicted Shepherd and Irvin.

One Supreme Court justice, Robert H. Jackson, did write in the Shepherd case.  He filed an opinion concurring in the result reached by the Court.  In Jackson’s view, however, to reverse these convictions for discrimination in jury selection was “to stress the trivial and ignore the important.”

Justice Jackson believed that the serious constitutional issue in the case was prejudicial pretrial publicity.  There had been pretrial press reports, for example, that the defendants had confessed, but this was never substantiated by evidence at trial.  Jackson concluded that these press reports, which he called “one of the worst menaces to American justice,” had so permeated the atmosphere surrounding the trial that it denied due process to Shepherd and Irvin.

Justice Jackson disputed the Court’s apparent idea that a black juror in the Groveland case could have made a difference:

“I do not see, as a practical matter, how any Negro on the jury would have dared to cause a disagreement or acquittal.  The only chance these Negroes had of acquittal would have been in the courage and decency of some sturdy and forthright white person of sufficient standing to face and live down the odium among his white neighbors that such a vote, if required, would have brought.”

Justice Felix Frankfurter joined Justice Jackson in his Shepherd opinion.  In private, Frankfurter joined with special emphasis.  When Jackson circulated to his colleagues his proposed concurring opinion, only Frankfurter responded.  He penned a note asking Jackson to “[p]lease honor me by letting me join this.”

In Justice Jackson’s Shepherd opinion, his reference to a “sturdy and forthright white person of sufficient standing to face and live down … odium among his white neighbors” was about a hypothetical white juror voting to acquit the Groveland defendants.

The language also seems self-referential.  Jackson was describing, to a degree, what he, joined by Frankfurter, was doing by judging and writing in the case.

To read Jackson’s Shepherd v. Florida opinion in full, click here.

 

On November 1, the Supreme Court of the United States heard oral arguments in two cases concerning the ability of litigants to bring constitutional challenges to Texas’s anti-abortion law, SB-8. The law effectively outlaws a woman obtaining an abortion after she has been pregnant for only a few weeks. The law also provides that in the event of such an abortion, any person may sue in any Texas state court and obtain an award at least $10,000 against each person who was involved in aiding the woman.

The U.S. Supreme Court decided to hear these cases without waiting for their full adjudication in lower courts. At the requests of Texas abortion providers and the U.S. Department of Justice, the Court reached “down” into the federal court system and took the cases away from the U.S. Court of Appeals for the Fifth Circuit.

The cases were on appeal to the Fifth Circuit from federal district court judgments. In a typical case, the Fifth Circuit would make a final decision, and only then would a losing party petition the Supreme Court to review that judgment. In these cases, the Supreme Court decided on October 22, at the requests of abortion providers and DOJ, respectively, not to wait for the Fifth Circuit, but instead to grant petitions for writs of certiorari before judgment—petitions asking the Court to take these cases now. And the Court granted those petitions.

When the Court decided to take the cases, it put them on a very accelerated schedule for briefing and oral arguments. Many briefs, by parties and interested non-parties, were filed on October 27. They also filed reply briefs on October 29.

On Monday, November 1, the Court heard, in the two cases, over three hours of oral arguments.

Last Friday, November 5, the Justices met in their private conference and, presumably, discussed the cases and voted. One of the Justices now is drafting an opinion for the Court—for a majority of the Justices, or perhaps for all nine of them. If any Justice is in dissent, he or she might be drafting an opinion explaining that vote. And perhaps Justices who are in the majority are drafting concurring opinions, explaining their individual views.

When the opinion-drafting, reading, comments, edits, recirculations, more comments, and so forth are done, the Court will announce publicly its decision and release its written opinions.

That could happen soon—the Court’s next regularly-scheduled day on which to issue orders, plus any decisions that are ready to hand down, is next Monday, November 15.

*      *     *

The Court’s handling of the Texas SB-8 cases resembles its Spring 1952 action in the “Steel Seizure” cases, Youngstown Sheet & Tube Company v. Sawyer and its companion cases.

Those cases began when President Harry Truman faced a breakdown in U.S. steel industry contract bargaining.   A steel industry labor strike or lockout by management was imminent.  Either would have shut down steel production.

President Truman decided that a steel industry shutdown would be unacceptable to U.S. national security, because steel was essential to both the ongoing Korean War and to the U.S.-U.S.S.R. nuclear arms race.  So on April 8, 1952, the President ordered Secretary of Commerce Charles Sawyer to take over the mills—to seize them by government edict and keep them running.

The steel companies sued Sawyer in federal court in the District of Columbia.  They argued that President Truman and the U.S. government had no constitutional or statutory authority to seize and run the steel mills.

After hearing vigorous oral arguments, including by the U.S. Department of Justice defending the President’s action, a federal district judge ruled against him—on April 30, the Judge, David A. Pine, issued a preliminary injunction ending the seizure and returning the mills to control of their owners.  The government asked Judge Pine to stay this order but he declined to do so.

Later that same day, the government moved up to the appellate court.  The DOJ asked the U.S. Court of Appeals for the District of Columbia to stay the district court order.  DOJ announced that it would be asking the Supreme Court to grant certiorari before judgment and wanted the Court of Appeals to in effect continue the steel mill seizure until the Supreme Court could consider that petition.  After hearing oral argument, the Court of Appeals granted the stay.

The parties then asked the Supreme Court to take the cases—to grant petitions for writs of certiorari before judgment.

On Saturday, May 3, the Court granted those petitions.  It set the cases for oral arguments beginning on Monday, May 12.   The arguments filled much of that day and the next.

On Friday, May 16, the Justices met privately in conference, discussed the cases, and voted.   By a vote of 6-3, they decided that they would affirm Judge Pine’s order enjoining the government’s seizure of the steel industry.  (When Justice Robert H. Jackson returned to his chambers after that conference, he found his law clerks, George Niebank and Bill Rehnquist, waiting eagerly to hear what had been decided.  “Well, boys,” Jackson told them, “the President got licked.”)

The Justices spent the next two weeks drafting opinions in the case.

On Monday, June 2, they took the bench.  They skipped over what typically came first, admitting attorneys to practice before the Court.  Instead, Justice Hugo L. Black, the senior Justice in the majority, announced the Youngstown decision and read his opinion for the Court.

Each of the five Justices who voted with Justice Black also filed and read from or summarized his individual opinion:

• Justice Felix Frankfurter, concurring;
• Justice William O. Douglas, concurring;
• Justice Jackson, concurring in the judgment and in the Court’s opinion;
• Justice Harold H. Burton, concurring in the Court’s opinion and judgment; and
• Justice Tom C. Clark, concurring in the Court’s judgment.

Chief Justice Fred M. Vinson then read his dissenting opinion, in which Justices Stanley Reed and Sherman Minton joined.  Vinson alone spoke for about an hour.

All told, the Justices took over two and one-half hours to announce this decision.

The steel seizure had been adjudicated in full and found to be unconstitutional in less than two months.

The Justices took three weeks from the start of oral arguments to hand down their decision.

The Justices wrote their lengthy, powerful, and necessary opinions during the two weeks between their conference and their decision day.

The Court’s Youngstown performance is, in its speed, its seriousness about very significant constitutional issues, and its outcome, rightly regarded as one of its great moments.

*      *     *

When the litigation was done, Justice Burton sent a note to Judge Pine, complimenting him on his judging at the start of the case.

Judge Pine, writing back, complimented the Supreme Court majority for “remain[ing] fast to the old moorings.”

Here’s hoping that in today’s Texas cases, the Justices are working toward such prompt, functional, law-abiding, law-advancing, and moored—fast—decisions.

At the United States Supreme Court, new law clerks tend to begin their employment in summertime, when the Court is in recess. The Justices vary as employers, but each generally assigns new law clerks to review, summarize, and make recommendations regarding petitions from litigants who lost in lower courts and now want the Supreme Court to take and decide their cases. The petitions are numerous. Each is connected to a voluminous record of briefs, transcripts, and decisions in courts below. The legal questions are complicated. The work is high stakes. It also, often, is boring. It demands a high level of law clerk discipline.

On the first Monday in every October, the Court begins a new term. The Justices announce decisions, mostly denials, on hundreds of petitions seeking review. The Justices begin to hear oral arguments in the cases that they have agreed to decide. By “First Monday,” some of the law clerks, and also some of the Court’s permanent personnel, such as secretaries and assistants to the Justices, are already worn down by the push to start the new term. And there is much, much work ahead.

In 1951, by the time that year’s new Court term was starting (on Monday, October 1), Justice Robert H. Jackson’s secretary Elsie Douglas observed how weary the law clerks, not to mention the secretaries, were.

This might have been particularly true of Justice Jackson’s own law clerk, C. George Niebank, Jr. He had worked for Jackson as part of a pair of law clerks during the previous term (1950-1951). During that year, Niebank accepted Jackson’s request to stay on for a second year as his sole law clerk. Thus starting in Summer 1951, Niebank was one law clerk doing what had been the work of two.

So as that October Term 1951 began, Mrs. Douglas, no doubt having first gotten Justice Jackson’s approval, telephoned (she was extension 245) to every other Justice’s chambers. She invited all the secretaries and law clerks to a party in Jackson’s chambers (room 138).

The party occurred on Thursday, October 4, 1951. Perhaps Jackson was present.

Many law clerks were there. One was C. Sam Daniels, a University of North Carolina and Columbia Law School graduate who was clerking for Justice Hugo L. Black.

At the party, Sam Daniels read, or perhaps he just handed around on paper, a unique, humorous “petition.”  He had drafted it, and then he had gotten it printed formally in the Court’s Print Shop.   It had the form of a case (“No. __”) document that was being circulated among the Justices for review and decision.   The petition sought, in effect, permission for the fun that the group was in the process of having on October 4, 1951.  Maybe it was a document at-the-ready, to use later with any Justice who learned of the party and objected.

Mrs. Douglas, at least, was a supporter of Daniels’s petition.  Of course she was—it was her party.

Ever organized, she kept a copy of the document in Jackson’s office files.

In May 1953, Justice Robert H. Jackson had lunch at the United States Supreme Court with that term’s law clerks.  The group included Jackson’s own clerks William H. Rehnquist and Donald Cronson and the seventeen other men who were working for his eight fellow Justices.

This was in keeping with a Court tradition (which has continued).  Each law clerk of course gets to know his or her justice, through their close working relationship, very well.  And the law clerks also get to know the other Justices at a personal level, at least a little bit, through these conversation-filled, informal lunches.

During this lunch, Justice Jackson told the clerks about his two decades (1913-1933) in private law practice in New York State.  He also told them of his government service, including his five-plus years (1936-1941) in the U.S. Department of Justice.  They discussed some of the good and some of the evil in the Department’s Federal Bureau of Investigation (FBI).  And Jackson recommended strongly that these young lawyers, many interested to some degree in politics, follow his path:  be a member of a political party, sure, but do not get actively involved in politics until you have achieved some personal, meaning professional and financial, independence.

One former Supreme Court law clerk joined the current clerks at this lunch with Justice Jackson.  This man, Howard J. Trienens, had clerked for Chief Justice Vinson for two years, 1950-1952.

When Trienens’s clerkship ended in summer 1952, he considered taking a job in politics.  My guess is that it had something to do with Illinois governor Adlai Stevenson’s presidential campaign.  Trienens agonized before deciding to turn it down.  He decided instead to become a law firm associate in Chicago, his hometown.

A year later, Trienens was still wondering, at least as he traveled to Washington, D.C., on law firm business, if he had made the right decision.  On that occasion, May 27, 1953, he stopped at the Supreme Court to visit, and he somehow became part of the law clerks’ lunch with Justice Jackson.

When Trienens heard Jackson say that young lawyers should not jump too soon into politics, Trienens took this as reassurance about his choice to practice law.

Howard Trienens in fact never left private law practice.  He stayed at his firm, which today is known as Sidley.  He became a giant in law and business, rose to be one of the firm’s leaders, and practiced there for almost seventy years.  Sadly, he passed away this summer at age 97.  I was acquainted with him, appreciated his kindness, and deeply admired his brilliance and his professionalism.  For Sidley’s tribute page chronicling Howard Trienens’s life and career, click here.