The summer of 1945 and a Justice resigns–and no one seems to care

I am 68. A year before my birth, a Supreme Court Justice resigned. For all intents and purposes, the resignation was a non event as we learn from the Jackson List. How the world has changed!

For the Jackson List:

On Monday, June 18, 1945, the Supreme Court of the United States announced its final decisions of its term and began its summer recess.

That same afternoon, Justice Robert H. Jackson, almost eight weeks into juggling his Court work with his presidential assignment to serve as U.S. Chief of Counsel for the prosecution of Axis war criminals in the European Theater, left Washington National Airport on a military plane to Labrador (for refueling), then England, and fulltime work on what became his job as U.S. chief prosecutor at Nuremberg of Nazi war criminals.

Back in Washington, Justice Jackson was not the only Supreme Court Justice who had departed from Washington with something more than the ordinary characteristics of taking the Court’s summer recess.

Justice Owen J. Roberts also was gone.  He was the Court’s senior Associate Justice, appointed by President Hoover in 1930.  By 1945 if not sooner, Roberts had become unhappy on the Court.  He also had turned age seventy that May and was eligible for a retirement pension.

On Monday, June 4, 1945, Justice Roberts was present on the Court bench and participated in announcing decisions.

He was absent on the next decision day, Monday, June 11th.

He was absent again on the final decision day, June 18th, missing the Court session that concluded with commencement of its summer recess.

Justice Roberts had, in early June, departed Washington for his true home, his farm in Chester Springs, Pennsylvania.

On Saturday, June 30th –seventy years ago today – Justice Roberts sent President Truman a letter of resignation.

Justice Roberts also wrote, longhand, this letter to Chief Justice Harlan Fiske Stone:

245px-Owen_J._Roberts_cph.3b11988My dear Chief, 

            I am about to submit my resignation as Associate Justice to the President.  I did not wish to do so without advising you.  Hence this note.

            I do not know when the White House will announce the matter, and I am sure you will hold the news confidential until that occurs. 

            I wish Mrs. Stone and you a good and restful summer.  Mrs. Roberts sends her regards to both of you.

                        Sincerely yours,

                                    Owen J. Roberts

Justice Roberts’s decision remained a secret until Thursday, July 5th.  At his press conference that afternoon, President Truman announced the decision by reading Justice Roberts’s letter to him and his letter of reply – click here.

Here is the extent of the public mention of the Justice’s retirement at a press conference held by President Truman shortly after the resignation and on July 5, 1945:

Now here is another letter from Chester Springs, Pennsylvania, dated June 30, 1945, addressed to the President [reading]: “As I have served as a member of the Supreme Court for more than fifteen years, and have attained the age of seventy years, I desire to avail myself of the provisions of Section 260 of the Judicial Code, as amended, (28 U.S. Code § 375),–“

Nobody but a Justice would write that. [Laughter]

“–and to resign my office as Associate Justice.

“Accordingly, I tender you my resignation, to take effect July 31, 1945.

“I am, Sir, with great respect, Sincerely yours, Owen J. Roberts”

[5.] “Dear Mr. Justice: I am indeed sorry that you have decided to retire from the Bench after your long service.

“The Supreme Court, in the period during which you have served as a member, has been called upon to pass upon some of the most important economic and social problems in the history of our country.

“As I told you this afternoon when I saw you and finally agreed to accept your resignation as of July 31, 1945, I do so only on your promise to continue to give your country the benefit of your sound judgment and advice as occasion arises.

“I extend to you the gratitude of the nation for the service you have rendered.”

Q. Mr. President, I notice he resigned. Is that something different from the retirement the other Justices have?

THE PRESIDENT. I think he intended to retire. I think that is the sense under the statute he cites. I think he intends to retire from the bench. At least, that’s how I took it.

Q. Have you picked a successor to Justice Roberts yet, sir?

THE PRESIDENT. I have not. I haven’t thought about a successor. I am ready for questions now, if you have any.

76. The President’s News Conference July 5, 1945, Harry S. Truman Library and Museum (last accessed July 7, 2015).

Indeed, how the world has changed. At least insofar as the Court is concerned, I do not believe it has changed for the better.


How Justice Jackson became the chief prosecutor at Nuremberg

John Q. Barrett, Professor of Law, St. John’s University, and author of the Jackson List tells the story of how the Justice became the chief prosecutor of the Nazis. As always, this tale is fascinating. Enjoy.

On Thursday, April 26, 1945, Justice Robert H. Jackson and his Supreme Court colleagues heard oral arguments in five cases.

Later that afternoon, as Jackson worked in his chambers, his secretary Ruth Sternberg took a telephone call from the White House.  The caller explained that Judge Samuel I. Rosenman, President Truman’s counsel, wanted to speak to the Justice.  She put Rosenman through and he and Jackson spoke, briefly.  Rosenman said he had a presidential request to communicate to Jackson.  Rosenman asked if he could come to the Court to talk to Jackson in person, and he of course agreed.

When they met a short time later, they first discussed President Franklin D. Roosevelt.  He had died, suddenly, just two weeks earlier.  Each had known him well and worked with him closely.  They discussed their personal loss, and its effect on the country.

Then Rosenman turned to the point of his visit.  He explained, at length, that the Departments of Justice, War, Navy and State had, some months earlier, prepared a plan for President Roosevelt.  It proposed to try Adolf Hitler and other Nazis, soon to be defeated militarily, as war criminals before an international tribunal.

Roosevelt had approved the plan and, at the Yalta conference in February, he had presented it to Churchill and Stalin.  Together they had referred it to their foreign ministers.  Since then, additional work, including by Rosenman himself in London, had occurred.  In the U.S., Rosenman told Jackson, the War Department had done substantial work, assembling a very large amount of detailed evidence showing criminal conspiracy by Nazi leaders and the culpability of many individuals.

Then Rosenman communicated President Truman’s request:  he wanted Jackson to head the American delegation in this international endeavor, and to conduct personally and present evidence in the American case, and to be really the lead trial attorney for the entire United Nations.

They discussed all of this in detail.  Rosenman conveyed President Truman’s very complimentary opinions of Jackson’s experience and ability as a trial lawyer, and the President’s offer to Jackson of a free hand in discharging the proposed assignment.

They also discussed whether it would be consistent with Jackson’s duties as a Supreme Court justice.  Rosenman reported Truman’s view that it was, and that it would not require Jackson’s resignation from the Court.  Jackson noted that the Court was approaching its summer recess, and that trials of war criminals would need to be prompt if they were to serve real public purposes.  He opined that this new task would not really interfere with his Court work until October at the earliest.  He and Rosenman concluded that because Jackson’s Court colleagues likely would bear with him and do some part of his Court work in the next year, he could undertake the assignment and remain on the Court.  Jackson added that if he took the position and it affected the Court adversely, he of course would resign from judicial work—he believed that he could not properly start the President’s assignment and then leave before it was finished.

*          *          *

Thus began Justice Jackson’s assignment as United States Chief of Counsel for the Prosecution of Axis War Criminals in the Europe Theater.  It took him to Europe in May 1945, and then to London that summer, and then, after successful negotiations with Allies and creation of the International Military Tribunal, to Nuremberg in Allied-occupied former Germany.

Beginning that November, Jackson served in Nuremberg as U.S. chief prosecutor before the IMT.  With Allied counterparts, he prosecuted twenty-one Nazi leaders and six Nazi organizations for the overarching crime of conspiracy, and for the substantive crimes of waging aggressive war, committing war crimes, and committing crimes against humanity.  Their evidence, mostly captured, authenticated Nazi documents, showed the enormity of the crimes and the evils of Nazism (including what the prosecutors began to comprehend that year, and the world has worked to comprehend ever since, as the Holocaust).

Almost a full year later, in Fall 1946, at the conclusion of the first and only international Nuremberg trial, the IMT held that each of the charged offenses was an international crime.  It convicted most but not all of the defendants and imposed serious sentences.  It made factual findings, based on the evidence, of what Nazism and each defendant had been and done.

Justice Jackson, undertaking this assignment, missed the Supreme Court’s entire 1945-46 Term.

*          *          *

At the beginning, on April 26, 1945, Justice Jackson did not immediately accept President Truman’s request, communicated by Judge Rosenman.  They agreed that Jackson could think further and study it.

Over the next days, Rosenman provided and Jackson reviewed secret government planning documents.  Jackson drafted a proposed letter of acceptance.  He spoke to Assistant Secretary of War John J. McCloy and, later, to Secretary of War Henry L. Stimson, two important architects of the project.  With input from Rosenman and others, Jackson drafted proposed executive orders outlining his appointment and assignmen

Jackson also spoke with President Truman, first by telephone and then in person.

On May 2, 1945—seventy years ago tomorrow—President Truman signed Executive Order No. 9547.  It designated Justice Jackson to act as U.S. representative and chief of counsel in preparing and prosecuting charges of atrocities and war crimes, against leaders of the European Axis powers and their principal agents and others, before an international military tribunal.

That afternoon, the President held a press conference.  He read a statement announcing his appointment of Jackson.  He explained that Jackson’s task would be to prosecute major Nazi war criminals whose crimes had no particular geographical location.  The President stated his hope that an international military tribunal soon would be organized, and that it would be Jackson’s job to try cases before it.  Truman announced that Jackson had assembled a staff that already was at work, so there would be “no delay.”

The President also disclosed, it seemed almost accidentally, his “official information” that Hitler was dead.

Justice Jackson, at the Supreme Court, then issued his own statement.  His task, he said, was “that of a lawyer and advocate.”  He said he was “accept[ing] the assignment by the Commander in Chief with a sense of my inadequacy and with complete dedication I shall see it through.”

Jackson articulated publicly, on that first official day, his vision of what became the Nuremberg trial:

I would not have taken this burden upon myself if I were not convinced that materials available and procedures possible afford an opportunity to do something toward bringing to a just judgment those who have heretofore thought it safe to wage aggressive and ruthless war; and to do it in a way that will be consistent with our traditional insistence upon a fair trial for the accused.

 Thanks to Professor Barrett for his fantastic work. He is a treasure as is the Jackson List.


When Mickey Mantle proved that Judge Learned was not perfect

Many of you know that I am a great fan of baseball, John Q. Barrett, Professor of Law, St. John’s University, and Barrett’s Jackson List. So far as I am concerned, Professor Barrett has outdone himself with this offering dated April 6, 2015:

By the end of this evening, the Major League Baseball season will have opened in the United States and Canada for every team. Fans are smiling again…

Baseball was not, alas, one of Robert H. Jackson’s passions. When MLB tried in 1951 to persuade him to retire from the Supreme Court to become the Commissioner of Baseball, Jackson declined. He claimed not to know left field from right field and viewed an afternoon at the ballpark as wasted time. He preferred other seasonal, outdoor activities, including long walks, horseback rides, skiing, skating, gardening and fishing—activities where no one kept score. (Okay, sometimes Jackson’s fishing mates, including on a couple of occasions President Franklin D. Roosevelt, did keep precise score of who caught what.)

Baseball also seemed not to appeal to Judge Learned Hand. He served on the federal bench in New York City from Jackson’s youth and outlived him by almost seven years. Judge Hand was one of Jackson’s contacts in the law, an often kindred spirit and, to a degree, his friend.

In spring 1959, Judge Hand, then age 87 and a Senior Judge of the U.S. Court of Appeals for the Second Circuit, demonstrated publicly some baseball obliviousness. The occasion was the annual dinner meeting of the American Law Institute, held at the Mayflower Hotel in Washington, D.C.

Judge Hand made his baseball disclosure in a comment following Attorney General William P. Rogers’s remarks at the dinner. Rogers recounted that his son Doug, age 12, had recently answered two telephone calls to their home. One was from President Eisenhower. The other was from Vice President Nixon. William Rogers reported that he had explained afterward to Doug that although these calls did not mean much to him now, they would one day. Doug had listened politely to his father and promised to remember the calls. Then, with great excitement, he had asked, “Did you ever meet Mickey Mantle?” To that boy and many, many others, the centerfield of the New York Yankees was the leading national figure.

The ALI audience of course laughed. Then Rogers noticed his predecessor, former Attorney General Herbert Brownell, Jr., in the audience. Rogers described Brownell as “a Yankee fan” and waved to him, provoking more laughter and his wave back at Rogers. He then turned serious and commented, “Of course I realize that my story about Mantle right now is not timely.”

Judge Hand, seated at the head table, was being honored at this dinner for his fifty years of federal judicial service. During Rogers’s remarks and then his byplay with Brownell, Judge Hand was visibly perplexed. He whispered to his neighbor but appeared unsatisfied with the reply he received.

Then Judge Hand rose to speak. He thanked previous speakers for their many tributes to him. Then he volunteered that he did not know the “name” that Attorney General Rogers had mentioned.

The audience at first sat silent, unbelieving. Then gasps of astonished laughter broke out.

Judge Hand then addressed Rogers directly. “Mantle?,” he asked. “I don’t know what Mickey Mantle is or does. Is it a man or a thing?”


No one, except occasionally a pitcher, is perfect.

(Italics added by Kopf)


Tea at the White House

Traditions smooth our turbulent and chaotic lives. Read the following about a tradition that no longer exists, but should be reinstated in my not so humble opinion:

For the Jackson List:

On Monday, October 2, 1939, the Supreme Court of the United States began its new term.

The Justices—Chief Justice Charles Evans Hughes and Associate Justices James C. McReynolds, Harlan Fiske Stone, Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter and William O. Douglas—took the bench at noon. Justice Pierce Butler, hospitalized with a bladder ailment, was absent.

The Court’s session lasted only twelve minutes. It admitted a number of attorneys to practice before it. The Solicitor General of the United States, Robert H. Jackson, moved the admissions of two of these attorneys, new Assistant Attorneys General Samuel O. Clark, Jr. (heading the Tax Division) and Francis M. Shea (heading the Claims Division). The second was personally meaningful to both Jackson and Shea—they were good friends from western New York, and Jackson had recruited Shea to the Department of Justice from his previous position as dean of The University of Buffalo School of Law.

During its session, the Court received a report on one substantive matter. Charles Warren, the Court-appointed special master handling a Texas-New Mexico-Colorado boundary dispute, told the Justices that he had nothing left to do in the matter because the states had agreed to the settlement that he recommended two years earlier. Following this report, the Court adjourned until the following Monday.

That brief session did not mark the end of the Supreme Court’s day. Late that afternoon, seven justices—Chief Justice Hughes and Justices Stone, Roberts, Black, Reed, Frankfurter and Douglas—went as a group to the White House. They were accompanied by Attorney General Frank Murphy and Solicitor General Jackson. The occasion was a visit, and tea, with President Franklin D. Roosevelt. The ailing Justice Butler and the Roosevelt-hating Justice McReynolds did not attend. For all who did, the visit was relaxed and enjoyable.

This 1939 White House visit marked the first time in four years that the Supreme Court made its then-traditional call to pay respects to the president at the start of the Court term. In 1936, 1937 and 1938, FDR had been absent from Washington on the first Monday in October. 1937 also had been the year of his Court-packing proposal, starting that February and continuing into the summer. Perhaps the resulting bruises, on both president and Court, were still there in Fall 1937, and even a year later.

The tradition of the President inviting the Justices to visit him in this fashion lapsed many years ago. On this first Monday, when the Supreme Court begins its new term and all wish it well, that lapse is something to remember and, in my view, to regret.

* * *

Professor John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY


May our President relax

I watched the President’s press conference last week. The President was wearing a tan suit. To the amazement of the pundits, he said had “no strategy” for dealing with the monsters of the middle east. Despite the suit, he looked exhausted, almost haunted. I fear we are watching a young man turn old.

These thoughts were foremost in  my mind when I read the latest from Professor John Q. Barrett’s the Jackson List. This weekend, I truly hope President Obama shares time with some good friends who will encourage him to drink whiskey, smoke a cigar and play cards (or basketball).  As President Roosevelt needed the respite almost 75 years ago to the day, I am guessing so too does President Obama.

In late June 1939, Solicitor General Robert H. Jackson, his wife Irene and their daughter Mary left Washington, D.C., on a driving trip. Their stops included Chillicothe, Ohio, where Jackson visited a reformatory for first offenders; Milwaukee, where he spoke at the Wisconsin State Bar Association’s annual convention; and San Francisco, where he spoke multiple times at the American Bar Association’s annual meeting, and also at the Commonwealth Club, and visited the federal penitentiary on Alcatraz Island.

From San Francisco, the Jacksons made a side trip by train to Sun Valley, Idaho. Robert and Mary, then eighteen, going into her sophomore year at Smith College, took part in a horseback expedition in the Sawtooth National Forest.

In early August, the Jacksons returned to Washington. Robert returned to his work at the Department of Justice. He also made trips to give political speeches in Pittsburgh, and at the Illinois State Fair in Springfield.

* * *

Near the end of August, despite the growing threat of war in Europe and the increasing significance of war-related issues in Jackson’s work, he, Irene and Mary drove from Washington to their former hometown, Jamestown, New York. They planned to stay through the first week of September, visiting and relaxing with Jackson’s mother and other family and friends.

On Thursday, August 31st, General Edwin M. (“Pa”) Watson, President Franklin D. Roosevelt’s appointments secretary, telephoned Jackson in Jamestown. Watson said that the President was in the mood for a social evening with a few friends, a chance to forget about the war, and that it was being arranged for Saturday night, September 2nd. Watson said the President wanted Jackson to attend.

Jackson left Jamestown on the next evening, Friday, September 1st. Driving alone and through the night, he reached Washington on Saturday morning, September 2nd. During that day, he met with his boss, Attorney General Frank Murphy. Around 6:45 p.m., Jackson went to the White House.

President Roosevelt greeted his guests in his study. The other members of the group of six were, in addition to FDR, “Pa” Watson and Robert Jackson, Harold L. Ickes, the Secretary of the Interior; Stephen T. Early, the President’s press secretary; and Dr. Ross T. McIntire, M.D., a U.S. Navy admiral and the President’s physician.

The President mixed cocktails for the group. They enjoyed the drinks, talked and were able to have some laughs, including over a note that William O. Douglas, Roosevelt’s former Securities and Exchange Commission chairman and his Supreme Court appointee of a few months earlier, had sent. Justice Douglas, who also had been invited to attend that evening but was not able to be there, referred in his note to the Chief Justice of the United States, Charles Evans Hughes, as “Charles the Baptist.” This was a favorite FDR nickname for Hughes, a Baptist, who at earlier times had been something of an FDR antagonist … and never was his guest at an informal White House gathering.

After cocktails, the group went up to the White House family quarters for a simple dinner. Although the European situation was not discussed much, FDR did tell his guests that he was in constant telephone contact with the U.S. Ambassadors in Paris and London, William C. Bullitt and Joseph P. Kennedy, respectively, and that their reports indicated that prospects were ominous.

After dinner, the group returned to the President’s study. They played poker. Admiral McIntire, watching out for the President’s health, announced that the card playing would stop at 11:00 p.m. FDR objected and—being the President—he received permission for play to continue until 11:45.

In the heat and fun of the poker play, the group forgot, at times, the looming war. Jackson could see the President relax.

Roosevelt’s usual good luck at cards was not with him that night. The big winner was Ickes. He announced that he now could afford to have a baby, which his wife did two days later.

Around 10:00 p.m., the State Department delivered to the President a message from Kennedy. After reading the cable, the President said sadly, “Gentlemen, by noon tomorrow, war will have been declared.”

That was the case. On September 1st, Nazi Germany had invaded Poland. On September 3rd, its allies France and the United Kingdom declared war on Germany.

In between, and as they left the White House late on Saturday night, September 2nd—seventy-five years ago this weekend—Jackson and his colleagues felt they had contributed to President Roosevelt’s first relaxation in many days.

* * *




The Fourth of July and Justice Jackson

The Jackson List is out and recounts the busy summer, including most especially the Fourth of July, that then Attorney General Jackson underwent in 1941. Fascinating stuff. With a huge tip of the hat to Professor John Q. Barrett, Professor of Law, St. John’s University, New York, NY and Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY, consider the following.

Justice Jackson was to give a Fourth of July speech despite the fact that he must have been focused almost exclusively on his Supreme Court nomination. Three weeks earlier, on June 12th, President Franklin D. Roosevelt had nominated Attorney General Jackson to become an Associate Justice of the Supreme Court of the United States. On June 30th, a U.S. Senate subcommittee completed four days of hearings on Jackson’s nomination and the Senate Judiciary Committee then voted, unanimously, its approval.

On July 4, 1941, Jackson was supposed to deliver this speech at the Washington Monument as part of the capital’s Independence Day observance. The speech also was to be broadcast live to a national radio audience. Washington’s summer weather, however, intervened. Pouring rain caused the Fourth of July events that were scheduled to occur on Washington’s Mall—a Marine Band concert; a procession of flags and colors carried by representatives of 300 veterans’ and other patriotic, fraternal and civic organizations; Jackson’s speech; and fireworks—to be cancelled for a second straight year.

Jackson did deliver his speech that evening in a Washington radio studio, and it was broadcast nationwide over Mutual’s radio network. The speech also was recorded. When July 5th brought better weather, the events on the Mall were rescheduled. That evening, Jackson’s recorded speech was played for the crowd before the fireworks flew.

On Monday, July 7, 1941, the U.S. Senate confirmed by voice vote Jackson’s nomination to the Supreme Court. On Friday, July 11th, at the White House, FDR signed and gave Jackson his commission. The Clerk of the Supreme Court then administered the constitutional oath to Jackson, who thus was appointed the 84th Supreme Court Justice in U.S. history.

Jackson’s speech is an example of rhetorical excellence. It is worth reading for the beauty of the thing, if nothing else. But there is far more to the speech than beautiful words. In the speech, Jackson contemplates the looming explosion in Europe.  In more gentle terms then we might hear now, Jackson speaks to America’s exceptional place in the world. He speaks of the goodness of the American people, and their concern for men and women throughout the world. In this jaded, self-absorbed and cynical age, Jackson’s 1941 Fourth of July speech is, I assert, as important now as it was then.

I reprint the speech below, and ask only that you take a few moments to read it. If you do, the Fourth of July, 2014, will be marked with the unsettling but important point that Americans cannot (or at least should not) selfishly and solely look inward. In many ways, we have been chosen to carry the weight of the world on our exceedingly broad shoulders.

Here is Justice Jackson’s Independence Day address:

By Robert H. Jackson
Attorney General of the United States

Washington, D.C.
July 4, 1941

For nearly two years now many of us have been bewildered by the headlong course of events in Europe and not a few of us have been confused as to the course of wisdom at home. We have seen a nation which twenty years ago had been vanquished, rise up with a ferocity seldom seen in the history of mankind. We have seen vaunted armies smashed as if they were so much paper. We have seen Europe overrun and England placed in grave danger. We have seen the dictator idea spread in the world. At first its two principal proponents, communism and fascism, appeared to be mortal enemies. Then, one day, they turned up as partners. Now they battle each other.

For nearly two years Americans have been asking each other which way safety and security lie. We have pondered the problem weighing risk against risk and danger against danger. Now at last, on this Fourth of July in 1941, the truth of our situation is coming home with increasing clarity to all Americans. We are learning the overwhelming fact that now, as in 1776, our nation, together with our sister Republics on this hemisphere, faces a preponderantly hostile and undemocratic world. Now, as in 1776, we can turn to the Declaration of Independence for the principles which should guide our action.

You are lifted and inspired, like generations before you, by the majestic cadence of the boldest, the noblest, and best known of all American writings. The Declaration of Independence speaks strong doctrine in plain words. It is the world’s master indictment of oppression. The fervor of its denunciation haunts and challenges dictators everywhere and in every field of life.

But the Declaration of Independence does not stop with mere denials and negations. It sets forth great affirmations as to the permissible foundations of power and political leadership among free men. It lays down a fighting faith in the rights of man — merely as man — a faith to die by if need be, or even more bravely to live by. It impresses upon all political power the high obligation of trusteeship. It established an accountability by the governing few to the governed many. That is why men abroad who wield dictatorial powers over subject peoples would silence the reading of the Declaration of Independence, would tear all mention of it from the record, and torture all recollection of it out of the minds of men. Even at home there are some who hope it will not be read too loudly.

But the masses of warm-hearted people are reared on its strong doctrines of equality and human rights. It has exceeded every other modern pronouncement in its profound influence upon our lives, our culture, and our relations to the world. When the Constitution of the United States was adopted, its foundations were laid in the democratic idealism of the Declaration. It has been the inspiration for every later recognition of broadened human rights and for the extension of justice and security to all men. We do not claim to have reached a perfect fulfillment of its high principles. But we have achieved the nearest approach among all the nations to a classless society, to equality of rights, and to a fair distribution of opportunity and prosperity. Whenever we reproach our own imperfections, as we ought often to do, we must not forget that our shortcomings are visible only when measured against our ideals, never when put beside the practical living conditions of the rest of the world. We have by Constitution, by legislation, and by judicial decision translated the Declaration out of the language of abstract philosophy into the idiom of everyday living. We have validated democratic principles by our success. (Emphasis added by Kopf)

America’s position in the society of nations is unavoidably that of a champion of the freedoms. The reason is aptly stated by Carl Becker, who says:

“In the Declaration the foundation of the United States is indissolubly associated with a theory of politics, a philosophy of human rights, which is valid, if at all, not for Americans only, but for all men.” (Emphasis in italics added by Kopf)

When our national success demonstrated that freedom is an attainable goal, we made it the ultimate goal of all people everywhere. The four freedoms are not local or transient incidents; they are universal and timeless principles if they are valid at all. A blow against their existence in Europe is a blow at their validity everywhere. On the other hand, the example of a great and powerful people governed by their own consent through lawmakers of their free choice is a standing incitement to overturn tyranny anywhere. Malevolent conquests by dictators are silently undermined by our confession of faith in democracy as stated in the Declaration. That carries hope to subject peoples in whom there would otherwise be a noble, but unavailing, fortitude. Overridden countries find a bid to insurrection in its assertion of the right of the people to alter or abolish an existing government that is destructive of life, liberty, and happiness. They read words of invitation in its statement of their right to “institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” No wonder the Declaration of Independence is the nightmare of conquerors.

Some will say that the decision faced by the patriots of 1776 was an easier one than ours, since they had nothing to lose but their intolerable situation. Our task, some will argue, is to protect rather than to win our freedom and that for that reason we should be cautious.

But if the patriots of 1776 risked little by action, we risk much by indifference. Today we risk the loss of a physical, cultural and spiritual heritage of freedom far beyond the most inspired visions of the leaders of ’76. And the more of the world that ceases to be democratic, the greater our risk will be. We do not need to be imprudent or foolhardy, but we should recognize that no amount of cautious behavior, no amount of polite talk will earn for us the friendship and goodwill of dictator systems. Ultimately we must come to the day when we shall face their threats and their enmity for no other reason than that we persist in living the kind of life we live.

One fact emerges clear above all others. We Americans cannot cease to be the kind of people we are, we cannot cease to live the kind of life we live. We are not the kind of people the dictators will ever want in the world. They will never have any use for our kind of life, nor we for theirs.

Every American knows now, as he knew it in 1776, that there is nothing for him in that way of life.

There are those who shrink from the risks of standing for a forthright, practical application of democracy. They point to the striking power and efficiency of foes abroad. But the enemies of American democracy today cannot begin to assemble a force so relatively powerful and so encircling as were its foes that day when the signers of the Declaration pledged their lives, their fortunes, and their sacred honor in its support. The most strategic points in our own country were then in possession of the King’s armies. Canada was a base for his operations. Florida, Cuba, Puerto Rico, and the mouth of the Mississippi were occupied by forces of Spanish monarchy — no lover of democracy. And the unsolved problem of the colonies along their whole precarious frontier was the Indian. American democracy then had no navy, only an empty treasury. Its army was composed of untrained volunteer backwoodsmen who could not get shoes, clothing, or substantial arms to fight the invading British regulars. There was no national unity. There were cabals against Washington, a fifth column of Royalists was powerful and respectable, and the states were jealous rivals who did not act, nor even think, as a unit. But in such an hour our forefathers who believed in freedom did not fear to stand alone and to become, as they continued for many years to be, the world’s only real democracy. But the American forces had power — the unseen power of the earnest individual — the individual with what Mr. Justice Holmes called “fire in his belly.” Only when these fires go out need we fear the lawless forces of dictatorship. Democracy’s strength is in man-to-man measure. None other draws such initiative from its way of life, none invents, and none had so generally and fully mastered in its daily life the technique of handling modern machine transport and production. And we dwell among resources as incredible as acres of diamonds.

But there is at home and abroad an anti-democratic influence, even more cynical and sinister and dangerous than Hitler, Mussolini, and Stalin combined. I refer to those who think democracy is a fair weather ideal — to guide us in soft times — but that when the going is tough we cannot save it without losing it. This doctrine has every base quality of fascism without either its candor or courage. Let us in America never forget that liberties trampled by conquest may be regained, but liberties abandoned by an indifferent people are never recovered. Nor are they deserved.

Let us not forget the example of our forefathers. They, too, heard the argument that time of external danger was no time to advance freedoms. But their answer was to give liberty a new birth not only in the midst of a war but in the very darkest hours of that war, because they knew that what wins struggles are the last ounces of endurance and the reserves of power that come to the common run of men on fire for a cause. Such men do not count costs nor watch the clock. We must keep our freedoms, keep them in face of foreign dangers even more tenaciously and jealously than in calmer times — keep them because it is our liberty that lifts our cause above material ends and anchors our efforts in timeless things. We know that in the unfolding book of destiny, just as in the closed book of history, it is written that tyranny and oppression bring forth their own downfall and that the irresistible moral forces of the world march always on the side of resolute men when freedom is their goal. We know that the spiritual strength and the moral power of our democratic tradition, authenticated by a century and a half of progress, will not long yield the field anywhere in the world despite the temporary devastations by enemies of the fundamental philosophy of our Declaration of Independence. As Kipling has said:

“Though all we knew depart,
The old commandments stand: –
‘In courage keep your heart,
In strength lift up your hand.’”

Jackson’s eloquence is exceeded only by his wisdom. His 1941 remarks remain relevant this Fourth of July, 2014. If you don’t believe me, watch world news tonight between the rockets red glare and bombs bursting in air.*


PS. I am pleased to serve as Chairman of the Board of The Historical Society of the
United States Courts in the Eighth Circuit. I have no talent for legal history personally, but I love reading legal history and promoting it whenever I can. The Jackson List is among the best legal history being done in this country. It is a treasure.

Call me Rich?

After the Urbom celebration, I embraced an old friend who is running for the U.S. Senate and who happens to be one of the best trial lawyers of my generation. He has a national reputation. We have been close friends for over 40 yours.

Since 1987 when I became a magistrate judge, our friendship has been necessarily distant because he is a trial lawyer and I am judge. We never socialize. But I know if I ever needed serious help my friend would come running and I would do the same for him.

Anyway, when I saw my friend, he was heading to the elevator. I was standing with some others lawyers, and I yelled his first name, He turned and walked over. He extended his hand and said something like “Judge, how nice to see you.”  We engaged in a short conversation, and then I hugged him as he turned to leave. I said I missed seeing him and we parted.

I don’t like being called judge when I am not judging. It puts a distance between the other person and me.  But, it is awkward. Social conventions require formalities and when such a convention is not followed the omission can be misunderstood (often by those who are inclined to see bad in good).

Today, I received the always fun and informative Jackson List.  It appears that the problem of what to call a judge outside of the courtroom confronts the Justices as well.  Here are the guts of the most recent letter, which I find fascinating:

For the Jackson List:

In early 1948, Dr. Jacob Billikopf wrote from Philadelphia, his home, to Justice Robert H. Jackson at the Supreme Court of the United States. Dr. Billikopf, a noted national leader in social work, Jewish philanthropy, labor relations and other pursuits, wrote as a trustee and chairman of the executive committee of Howard University in Washington, D.C.

Dr. Billikopf explained that he and another Howard University trustee had been, for the past few years, hosting private dinner meetings on campus “for the purpose of making friends for that great institution.” He explained that Howard’s president Dr. Mordecai Johnson, members of his administrative staff, “key men” on the faculty and 25-30 other guests attended the dinners. Dropping mention that Jackson’s colleagues Justices William O. Douglas and Felix Frankfurter had been guests of honor at previous dinners, Billikopf asked Jackson if he would be the honored guest at dinner a month hence.

Justice Jackson promptly dictated and sent back his positive answer. It was contingent, he explained, on another pending matter not claiming his schedule on the date in question. Although Billikopf was not someone who Jackson knew well, he signed his short letter “Bob.”

Billikopf, writing back immediately, focused first on Jackson’s signature:

Dear Mr. Justice:

When my good friend, Benjamin Cardozo, was appointed to the Supreme Court, I naturally greeted him as Mr. Justice. “Don’t call me Mr. Justice. Please don’t,” said he. “How then should you be addressed?” “Call me Ben,” was the reply. Of course I couldn’t be guilty of such irreverence and so we reached a compromise.

Now, then, when I received your letter signed BOB I was naturally flattered and then it occurred to me that it must have been a case of lapsus calami [a slip of the pen]. …

In the heart of his letter, Billikopf wrote that that he was “so happy” that Jackson had accepted the invitation, if somewhat contingently. Billikopf proposed an alternative date, one week later.

For Jackson, that date, February 27th, was clear. On that Friday evening, Jackson attended a private dinner in Frazier Hall at Howard University. He spoke to the group about his 1945-46 work as U.S. chief prosecutor at Nuremberg of Nazi war criminals.

Justice Jackson’s rough notes, from which he spoke, indicate that he discussed the Nuremberg trial and its lasting implications. He described how the Nuremberg judgment recognized individual responsibility under international law. Jackson explained that international law fetters national sovereignty in ways that resemble how the 14th Amendment to the U.S. Constitution limits the sovereignty of States to violate the rights of individuals.

Following the dinner, Dr. Johnson wrote to Justice Jackson, thanking him for his presence and his remarks. Noting that Jackson and his Nuremberg colleagues had worked there to establish “world community,” Johnson stated his “hope that our own nation may come to exercise increasingly effective leadership toward its realization.”

There is, interestingly, no record of a Jackson response to Billikopf’s comment on Jackson’s “Bob” signature. Following that Billikopf letter, Jackson’s secretary, not he, handled the additional pre-dinner correspondence.

At the Howard University dinner, Billikopf surely greeted Jackson and introduced him to the group as “Mr. Justice.” That would have been consistent with half of what I suspect were Billikopf’s modes of interacting with his friend Justice Cardozo. Their “compromise” was, I think, that Billikopf called him “Ben” in private communication and “Mr. Justice” in public settings.

* * *

This got me thinking. I wonder how readers (particularly trial judges and trial lawyers} handle these situations. If you get a chance, add a comment. I am interested in your views, particularly your “war stories.” Thanks!

And once again, a “shout out” to the delightful Jackson List and Professor John Q. Barrett.*


*You can go to this link to subscribe to the Jackson List which is delivered by private e-mail. It is free.



%d bloggers like this: