Quote of the Day (Justice Robert Jackson, on Laws Concerning Religion)

"[I]f 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." —Associate Supreme Court Justice Robert Jackson, majority opinion in West Virginia State Board of Ed. v. Barnett (1942)

Too bad that Donald Trump never got around to learning the lesson behind these words…

Quote of the Day (Robert Jackson, on the Dangers of Fanaticism)

“[W]e must not forget that in our country are evangelists and zealots of many different political, economic, and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds – that which is their own and that which is false and dangerous.”–Associate Justice of the Supreme Court Robert Jackson, opinion in American Communications Assn. v. Douds (1950)

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.)