Photo of the Day: The Enduring Legacy of a Supreme Court Justice

I am pretty sure that in the city of Jamestown, N.Y., more visitors come to the Lucy-Desi Museum, or even to the more recently opened National Comedy Center. But neither of these places, as fun and fascinating as they are to visit, is worth pondering for the tourist in this corner of southwest New York State as much as the Robert H. Jackson Center, a not-for-profit institution dedicated to commemorating the principles of a great Supreme Court Justice.

Much to his chagrin, Robert H. Jackson—appointed as an Associate Justice after serving as Franklin Roosevelt’s Solicitor General and Attorney General—never achieved his ambition of becoming Chief Justice. Moreover, with only 13 years on the Supreme Court before his death in 1953, he did not have the opportunity to serve even half the length that seems to have become the rule over the past couple of decades.

But Jackson indisputably made his mark on the high court through decisions that, for wit, pungency, personality, and grace of style, are probably exceeded only by Oliver Wendell Holmes Jr. Moreover, when he served as the chief U.S. prosecutor at the Nuremberg Trials after World War II, he delivered a powerful opening statement that stands as the definitive summation of the horrors perpetrated by the Nazi regime as well as the need for international law to counter aggression in the future.

COVID-19 precludes my wish that throngs could pass through this site, the historic Alonzo Kent Mansion. (Jackson practiced law for most of his professional career only two blocks away.) There, they could see exhibits devoted to his life and work, or attend events that highlight the continuing relevance of the issues that Jackson ruled on. I had an opportunity to visit 13 years ago, when I took this photo.

But, as America weighs—unfortunately, not with the gravity or non-partisanship it deserves—the appointment of Amy Coney Barrett to Ruth Bader Ginsburg’s now-vacant seat, it would do well to consider the words of Jackson that sit outside the center dedicated in his memory:

“The very purpose of the Bill of Rights was to withdraw certain subjects…from political controversy. One’s…fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

This Day in Holocaust History (Birth of Julius Streicher, Purveyor of Hate)

February 12, 1885—In the quiet village of Fleinhausen, in the Bavarian section of Germany, Julius Streicher, the son of a teacher, was born. As an adult, he would only briefly take up the educational profession into which his father and some siblings entered, instead teaching Germany, through his newspaper and publishing house, rancidly racist principles that resulted in the deaths of six million Jews at the hands of the Nazi regime.

In Philip Roth’s The Ghost Writer, the father of fictional alter ego Nathan Zuckerman, disturbed by a short story he regards as encouraging anti-Semitism, prevails upon a judge friend of his to send the young writer a questionnaire. One of the questions is, “Can you honestly say that there is anything in your short story that would not warm the heart of a Julius Streicher or a Joseph Goebbels?” That little incident vividly expresses the revulsion this propagandist can still inspire.

It’s hard to believe that Streicher was born 20 years after the last birthday that Abraham Lincoln ever celebrated. While the American used words to remind listeners of their shared humanity with a group they eventually freed, the Nazi publisher used his paper, Der Stürmer (translated, chillingly, as “The Stormtrooper”) in an inflammatory campaign that sought, in stages, to defame, disenfranchise, dehumanize, then destroy the Jews of Germany.

Like Adolf Hitler, Streicher was a decorated (Iron Cross, First Class) WWI veteran who threw in his lot with right-wing extremists in the fevered aftermath of the conflict. He gained credibility with Hitler by merging the German Socialist Party with the fledgling National Socialist German Workers' Party (Nationalsozialistische Deutsche Arbeiterpartei), or Nazi Party. Almost overnight, according to Richard J. Evans’ The Coming of the Third Reich, Streicher’s action succeeded in virtually doubling the Nazi Party membership.

Albert Speer, Hitler’s architect-turned-armaments-minister, noted that in the years after the disastrous Beer-Hall Putsch of 1923, Streicher was one of only four men for whom Hitler employed the familiar address du. No wonder: while the presence of intelligent, urbane men such as Speer might have convinced some well-meaning citizens of Western democracies that the threat of Nazism was way overhyped, it was people such as the crude, head-shaven, whip-wielding Streicher who supplied much of the vicious energy of the movement. He was truly one of Hitler's foot soldiers.

It was Streicher who, in the 1920s, was ejected from one public meeting after another, often escorted out by police, for his incivility. It was Streicher who provided Hitler with a foothold in Nuremberg, then gave one of the speeches urging the overthrow of the Weimar government in the 1923 putsch. It was Streicher who organized the first boycott against Jewish merchants after Hitler seized power 10 years later.

Hitler expressed his gratitude by appointing Streicher a Gauleiter (district leader) of Franconia. In that post, Streicher displayed no real talent for administration but plenty for turning other Nazis against him. Running afoul of Herman Goering meant that he ended up being relieved of his government posts.

Hitler had enough residual affection for his old party comrade that he allowed Streicher to remain at Der Stürmer until the end of the Third Reich. That was where his evil genius lay, in any case. Day after day, for 20 years, his newspaper churned out anti-Semitic bile, often in the form of cartoons featuring Jews as, among other things, vampires.

His most baleful influence, I think, might have been on children. As a schoolteacher, Streicher learned how to reach young minds; as a publisher, he twisted them.

One particularly shocking example of his handiwork was Der Giftpilz (“The Poisonous Mushroom”), a children’s tale sometimes used in German classrooms, featuring all kinds of leering, innuendo-filled propaganda (e.g., a cartoon of an Aryan woman, “Inge,” visiting her Jewish doctor is accompanied by this caption: “Two criminal eyes flashed behind the glasses and the fat lips grinned.")

One minute with the contents of Streicher’s publications would be enough to convince anybody that his was an essentially pornographic imagination, and that’s exactly what turned out to be. When he was removed from office in 1940, a large cache of pornography was discovered in his home. For nearly 20 years, he had projected the contents of his own diseased mind onto an entire race.

Though his removal from office meant that he did not help plan the Holocaust nor participate in killings, Streicher was found guilty at the postwar Nuremberg trials and hanged for inciting Germans to commit mass murder. In his final statement at the trial, he vehemently denied any role in this: “I repudiate the mass killings . . . in the same way as they are repudiated by every decent German.”

It was one more big lie told by a regime that specialized in it. As early as February 1940, Streicher predicted in Der Stermer: “"At the end of this Jewish war the extermination of the Jewish people will have been brought about."

After 9/11, Americans were shocked to find that Saudi textbooks were filled with ant-Semitic stereotypes and invective very similar to those peddled by Hitler’s hate merchant. Yet, so far as I’m aware, nobody has ever set out to expose the Julius Streichers of the Arab world. More than 60 years after his death, on an entirely different continent from where he wreaked havoc, the falsehoods he spread continue to infect the minds of millions.

This Day in Legal History (“Follow-Up” Nuremberg Trials End)

April 14, 1949—With the political atmosphere radically changed from when the trials began 3 ½ years before, the Nuremberg Trials came to a quiet end, with nowhere near the media coverage it garnered initially. Still, they had established a crucial international legal standard for holding to account those who perpetrated wars of aggression and genocide.

The best-known of the 13 trials was the first, featuring 21 members of Hitler’s inner circle, including Herman Goering, Rudolf Hess, Albert Speer, and Joachim von Ribbentrop. That judicial all-star proceeding featured former Attorney General Francis Biddle as one of the judges, Associate Supreme Court Justice Robert Jackson as lead American prosecutor, and Thomas Dodd, a silver-haired assistant prosecutor whose tough cross-examinations made him a rising star stateside in the Democratic Party, leading eventually to his election as U.S. Senator from Connecticut.

The volume of correspondence edited by Sen. Christopher Dodd from his father to his mother, Letters From Nuremberg, shows that even as the first trial ended its final days, prosecutors realized that reporters were losing interest in the testimony.

To be sure, Justice Jackson’s decision to introduce a mass of documentary evidence meant that those dramatic moments that the media love would be in short supply. But ultimately, the documents meant not only that the Nazi defendants would be convicted by their own hands, but they also secured the judgment of history, making Holocaust deniers look positively ridiculous.

In contrast to the first trial, the U.S. was the only one of the Allied powers that officiated at the dozen subsequent “Follow-Up Trials.” Though less publicized than the first batch, their range was even wider, showing how responsibility for the Nazi regime extended not just to Hitler’s immediate henchmen, but also to professions that accommodated the Nazis to secure their own continuing access to power, including:

* doctors
* legal professionals
* SS and police commanders
* industrialists
* military personnel
* civil servants and diplomats

The 1961 film Judgment at Nuremberg slightly fictionalized the follow-up trial dealing with judges and lawyers. The last trial—variously known as the “Foreign Office,” “Ministries” or “Wilhelmstrasse” case—focused on civil servants and diplomats.

By 1949, despite often-staggering odds (particularly in the trial of the industrialists, prosecutors faced hostile judges), the American prosecution team had secured an impressive array of convictions that still managed to prove this was not simply, as charged by critics such as Senator Robert Taft and Supreme Court Justices William O. Douglas and Harlan Fiske Stone, “victors’ justice”. The fate of the 200 accused stood, at the end of the day, as follows:

* 38 acquitted
* 36 sentenced to death
* 23 sentenced to life imprisonment
* Others sentenced to prison for up to 24 years

Nevertheless, even more powerful forces besides prominent American politicians and jurists were now arrayed against the prosecution. Soviet solidification of the Iron Curtain had effectively taken place throughout Eastern Europe, with a blockade of Berlin—and a year-long American-led airlift—creating the need to keep a potential new ally—the new, democratically elected government of West Germany—on the side of the West.

Conservative and/or isolationist congressmen such as Sen. Joseph McCarthy took particular exception to the trial of German industrialists such as I.G. Farben and Alfried Krupp, blaming the proceedings on left-wing-inspired subversion.

The U.S. military governor and high commissioner for Germany, John J. McCloy, appointed a review board that reviewed sentences imposed by the tribunal. Some American prosecutors would note bitterly years later that none of the prosecution staff or judges were even consulted as sentences were commuted.

Compromised and controversial though they were, the Nuremberg Trials left a powerful imprint on international law and the subsequent writing of 20th-century history.

This Day in American History

February 13, 1892 – Robert H. Jackson—future Solicitor General, Attorney General, U.S. Supreme Court Justice, and American prosecutor in the Nuremberg trials—was born in Spring Creek, Pa.

Although I had come across his name from time to time, I first became interested in the life and work of this major 20th-century legal figure while visiting the Chautauqua Institution in upstate New York, only a short drive from where Jackson lived most of his life: Jamestown, a small city that also gave the world Lucille Ball and ornithologist Roger Tory Peterson.

Jamestown honors its distinguished longtime resident with the Robert H. Jackson Center (formerly the Alonzo Kent Mansion), a museum designed to preserve the life and legacy of the justice. (My photo of the center’s exterior accompanies this blog entry.)

Aside from Oliver Wendell Holmes Jr., Jackson is considered the finest writer among Supreme Court justices. The “Quote of the Day” demonstrates his sense of irony and humor, but his speeches and Supreme Court decisions are even more notable for their fervent defense of liberty and their understanding of the magnificence—and limits—of the law.

On my visit to the Jackson Center last summer, I learned that two of Jackson’s writings have attracted particular attention from journalists in recent years. His concurring opinion in the 1952 Youngstown Steel seizure case is considered one of the best summations of Presidential powers during wartime, while his speech on “The Federal Prosecutor,” concerning the rights and responsibilities of the Attorney-General, was often referred to for background during the prolonged battle to confirm Alberto Gonzalez.

Justice Jackson also figures prominently in a new book focused on his Nuremberg subordinate, Thomas Dodd. Letters from Nuremberg: My Father's Narrative of a Quest for Justice, by Senator Christopher Dodd and Lary Bloom, features correspondence from Thomas Dodd (himself, after his Nuremberg service, a U.S. Senator from Connecticut) to his wife, detailing the innumerable difficulties in bringing former Nazis to justice.

By the end of his service, Thomas Dodd had come to view his boss in the round, as a man whose integrity and eloquence more than compensated for shortcomings as a manager in a situation that, by its nature, was unprecedented: establishing an international standard for war-crimes trials.

Either here or in another format, I hope to elaborate on this Supreme Court justice whose importance has only grown with time.

(Incidentally, the McLean, Virginia, home where Jackson lived while on the high court—Hickory Hill—was purchased by newlyweds John and Jacqueline Kennedy before the young couple sold it to JFK’s brother Robert and wife Ethel. The 18-room Georgian mansion became filled during the Camelot years with hundreds of notables, as well as with the sounds of RFK’s large family. A few years ago, Bobby’s widow put the historic home up for sale.)

This Day in Religious History

February 2, 1945 – The German Jesuit Alfred Delp was hanged for high treason, just one of 80 members of his religious order killed by the Nazi regime in the course of their 12 years of terror.

After the war, Thomas Merton called Prison Writings, a collection of Delp’s thoughts smuggled out during his last six months of life, to be “perhaps the most insightful…Christian meditations of our time.” Nineteen years after his death, the German state that had ordered his execution issued a postage stamp in his honor for his opposition to Hitler and his membership in the Kreisau Circle, a secret movement formed to lay plans for a post-Nazi order in German based on Christian principles.

Another German Jesuit, Andreas B. Batlogg, offers a moving assessment of Delp’s life and thought in “A Martyr to the Nazis,” in the January 21-28, 2008 issue of America. The article is available only to subscribers, both in hard copy and online, but I urge all of my readers to go to the nearest library that stocks this magazine and read this account.

Nearly one year after Delp’s execution, in January 1946, the Nuremberg prosecution team, led by Supreme Court Justice Robert Justice, presented evidence regarding the persecution of the Church by the Nazis. The life of Delp and his fellow martyrs of all faiths are good reason to endorse, in this increasingly aggressively secular statement, the recent statement by novelist Ian MacEwan: “I think religion is ineradicable, and I think it is a terrible idea to suppress it, too.”