Changes

Not only was the job of Chief Prosecutor a once-in-a-lifetime opportunity, Jackson had very strong feelings about the importance of establishing a thorough record of the atrocities committed by the Nazis. In a June 1945 report to the President, Jackson explained:

Not only was the job of Chief Prosecutor a once-in-a-lifetime opportunity, Jackson had very strong feelings about the importance of establishing a thorough record of the atrocities committed by the Nazis. In a June 1945 report to the President, Jackson explained:

    ". . . The groundwork of our case must be factually authentic and constitute a well-documented history of what we are convinced was a grand, concerted pattern to incite and commit the aggressions and barbarities which have shocked the world. We must not forget that when the Nazi plans were boldly proclaimed they were so extravagant that the world refused to take them seriously. Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence."

*". . . The groundwork of our case must be factually authentic and constitute a well-documented history of what we are convinced was a grand, concerted pattern to incite and commit the aggressions and barbarities which have shocked the world. We must not forget that when the Nazi plans were boldly proclaimed they were so extravagant that the world refused to take them seriously. Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence."

The trials began in late November, 1945, and Jackson was the first to make an opening statement to the tribunal. In beautiful prose, Jackson spoke of the importance of making sure that each of the defendants, no matter how heinous the charges against them, received a fair trial:

The trials began in late November, 1945, and Jackson was the first to make an opening statement to the tribunal. In beautiful prose, Jackson spoke of the importance of making sure that each of the defendants, no matter how heinous the charges against them, received a fair trial:

    The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."

*"The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."

He spoke for an entire day, and won high praise from the American reporters covering the event. Several months later, he undertook the principal cross-examination of Herman Goering, the highest ranking German official on trial. Press reviews of this effort were mixed. After all of the evidence was in, in late July, Jackson also made the first of the closing speeches for the prosecution. On August 31st, the tribunal recessed to consider the cases against the defendants. Its judgment was handed down a month later: of the twenty-two defendants, twelve were sentenced to hang, three to life imprisonment, four to terms ranging from ten to twenty years, and three were acquitted.

He spoke for an entire day, and won high praise from the American reporters covering the event. Several months later, he undertook the principal cross-examination of Herman Goering, the highest ranking German official on trial. Press reviews of this effort were mixed. After all of the evidence was in, in late July, Jackson also made the first of the closing speeches for the prosecution. On August 31st, the tribunal recessed to consider the cases against the defendants. Its judgment was handed down a month later: of the twenty-two defendants, twelve were sentenced to hang, three to life imprisonment, four to terms ranging from ten to twenty years, and three were acquitted.

Some of Jackson's own colleagues joined in the criticism. Justice William O. Douglas (between Jackson and whom no love was lost) opined in memoirs published many years later:

Some of Jackson's own colleagues joined in the criticism. Justice William O. Douglas (between Jackson and whom no love was lost) opined in memoirs published many years later:

    Jackson] was gone a whole year, and in his absence we sat as an eight-man Court. I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function. I thought, and I think Stone and Black agreed, that if Bob did that, he should resign. Moreover, some of us -- particularly Stone, Black, Murphy and I -- thought that the Nuremberg Trials were unconstitutional by American standards."

*[Jackson] was gone a whole year, and in his absence we sat as an eight-man Court. I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function. I thought, and I think Stone and Black agreed, that if Bob did that, he should resign. Moreover, some of us -- particularly Stone, Black, Murphy and I -- thought that the Nuremberg Trials were unconstitutional by American standards."

Whatever the merit of these objections, the Nuremberg Trials were surely superior to the summary court martial proceedings favored by some members of the administration and the summary executions initially favored by the British.

Whatever the merit of these objections, the Nuremberg Trials were surely superior to the summary court martial proceedings favored by some members of the administration and the summary executions initially favored by the British.

Chief Justice Stone wrote privately in November 1945 that it would not disturb him greatly if the power of the Allied victors was "openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime." Justice Jackson's response to this criticism says a great deal about how he viewed the Nuremberg Trials:

Chief Justice Stone wrote privately in November 1945 that it would not disturb him greatly if the power of the Allied victors was "openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime." Justice Jackson's response to this criticism says a great deal about how he viewed the Nuremberg Trials:

    When did it become a crime to be one of a 'bad lot'? What was the specific badness for which they should be openly and frankly punished? And how did he know what individuals were included in the bad lot? . . . . If it would have been right to punish the vanquished out-of-hand for being a bad lot, what made it wrong to have first a safeguarded hearing to make sure who was bad, and how bad, and of what his badness consisted?"

*When did it become a crime to be one of a 'bad lot'? What was the specific badness for which they should be openly and frankly punished? And how did he know what individuals were included in the bad lot? . . . . If it would have been right to punish the vanquished out-of-hand for being a bad lot, what made it wrong to have first a safeguarded hearing to make sure who was bad, and how bad, and of what his badness consisted?"

Stone's biographer, Alpheus T. Mason, sums up Stone's views of Jackson's service this way:

Stone's biographer, Alpheus T. Mason, sums up Stone's views of Jackson's service this way:

    For Stone, Justice Jackson's participation in the Nuremberg Trials combined three major sources of irritation: disapproval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed. Even if the Chief Justice had wholly approved the trials themselves, he would have disapproved Jackson's role in them. If he had felt differently about the task in which Jackson was engaged, he might have been somewhat less annoyed by his colleague's absence."

*For Stone, Justice Jackson's participation in the Nuremberg Trials combined three major sources of irritation: disapproval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed. Even if the Chief Justice had wholly approved the trials themselves, he would have disapproved Jackson's role in them. If he had felt differently about the task in which Jackson was engaged, he might have been somewhat less annoyed by his colleague's absence."

Stone's concern for the effect Jackson's absence had on the Court is surely understandable. Jackson had been gone for one entire term of the Court, and his colleagues had to take up the slack by dividing up what would have been his share of the opinions during the term. In any case in which the eight Justices were equally divided, the Court had two alternatives, neither of which was attractive. They could simply hand down a one-sentence order announcing that the decision of the lower court was affirmed by an equally divided vote, an order which by custom says nothing about the governing law. The same issue, which presumably the Court thought important enough to review, would have to await decision until another case in which all nine members of the Court were present. The other alternative was to simply set the case down for re-argument when the ninth Justice returned.

Stone's concern for the effect Jackson's absence had on the Court is surely understandable. Jackson had been gone for one entire term of the Court, and his colleagues had to take up the slack by dividing up what would have been his share of the opinions during the term. In any case in which the eight Justices were equally divided, the Court had two alternatives, neither of which was attractive. They could simply hand down a one-sentence order announcing that the decision of the lower court was affirmed by an equally divided vote, an order which by custom says nothing about the governing law. The same issue, which presumably the Court thought important enough to review, would have to await decision until another case in which all nine members of the Court were present. The other alternative was to simply set the case down for re-argument when the ninth Justice returned.

He wrote the opinion in West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943) in which the Court decided that even the need to stimulate war time patriotism did not trump the First Amendment rights of school children to refuse to salute the American flag because of their religious beliefs. In his opinion for the Court he wrote:

He wrote the opinion in West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943) in which the Court decided that even the need to stimulate war time patriotism did not trump the First Amendment rights of school children to refuse to salute the American flag because of their religious beliefs. In his opinion for the Court he wrote:

    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. . . . The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

*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. . . . The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

The Steel Seizure Case, which ran its brief course from beginning to end during my first months as a law clerk, was one which was intensively covered by the media in the spring of 1952. It was during the Korean War, and President Truman had seized the steel mills to prevent a strike which would shut down production needed for the military. All of the nine Justices who heard the case had been appointed by Democratic presidents -- five by Roosevelt and four by Truman -- and yet by a vote of six to three they ruled against Truman's authority to seize the mills. The Court worked on a tightly compressed schedule late in its term -- review was granted early in May, the case was argued orally only a week later, and the decision was handed down by the middle of June. Justice Black wrote the opinion for the Court, but each of the other five who agreed with his result wrote a separate opinion. It is Jackson's I believe, which has best stood the test of time. Presidential power, he said, was of three kinds. The first was where the President acted pursuant to a congressional delegation of authority, and here presidential power was at its apex. The President had not only the power of the Executive, but the power of the Legislature, behind him, and only if the act was beyond the authority of the federal government itself would a presidential act be struck down. The second case was where the President acts in the absence of any congressional expression on the subject one way or the other; there he has the power of the Executive, but not that of Congress behind him. The third is presidential power at its nadir: where the President takes measures to deal with a situation in a particular way, whereas Congress has said it should be dealt with in a different way. This in Jackson's view, was the situation in the Steel Seizure Case, and that was why he joined in ruling the seizure unconstitutional. Although no one else on the Court joined Jackson's opinion at the time, the Court since then has cited it as governing law.

The Steel Seizure Case, which ran its brief course from beginning to end during my first months as a law clerk, was one which was intensively covered by the media in the spring of 1952. It was during the Korean War, and President Truman had seized the steel mills to prevent a strike which would shut down production needed for the military. All of the nine Justices who heard the case had been appointed by Democratic presidents -- five by Roosevelt and four by Truman -- and yet by a vote of six to three they ruled against Truman's authority to seize the mills. The Court worked on a tightly compressed schedule late in its term -- review was granted early in May, the case was argued orally only a week later, and the decision was handed down by the middle of June. Justice Black wrote the opinion for the Court, but each of the other five who agreed with his result wrote a separate opinion. It is Jackson's I believe, which has best stood the test of time. Presidential power, he said, was of three kinds. The first was where the President acted pursuant to a congressional delegation of authority, and here presidential power was at its apex. The President had not only the power of the Executive, but the power of the Legislature, behind him, and only if the act was beyond the authority of the federal government itself would a presidential act be struck down. The second case was where the President acts in the absence of any congressional expression on the subject one way or the other; there he has the power of the Executive, but not that of Congress behind him. The third is presidential power at its nadir: where the President takes measures to deal with a situation in a particular way, whereas Congress has said it should be dealt with in a different way. This in Jackson's view, was the situation in the Steel Seizure Case, and that was why he joined in ruling the seizure unconstitutional. Although no one else on the Court joined Jackson's opinion at the time, the Court since then has cited it as governing law.