It is my pleasure to speak with you again at your annual meeting. When I saw the agenda for your meeting, and the topics to be discussed, I knew you were not lacking for in-depth, scholarly material. I thought that rather than providing yet another entrée for your consideration, I would come up with what might be called a palate cleanser. I will speak to you about Justice Robert Jackson's extra-judicial participation as the lead prosecutor in the Nuremberg trials.
I recently finished a book about the disputed election of 1876, in which Rutherford Hayes was the Republican candidate, and Samuel Tilden was the Democratic candidate. That election was, for practical purposes, resolved by an Electoral Commission created by Congress, which included ten members of Congress and five Supreme Court Justices. The service on this Commission by five members of the Court was probably as important an extra-judicial activity as has ever been undertaken by the Court's members. But in reading about it my curiosity was also aroused about other instances of such extra-judicial activity.
Justice Jackson served as an Associate Justice of the Supreme Court from 1941 until his death in 1954. During these thirteen years he made significant contributions to the Court's jurisprudence. But unlike any of his colleagues before or since, he was a principal architect of the Nuremberg War Crimes Trials held immediately after World War II. He described this effort as the "supremely interesting and important work" of his life.
Jackson was born in 1892, and grew up in the Jamestown, New York, area. He was admitted to the New York Bar without having a law degree and developed a very successful law practice there. He was also active in the state Democratic party, and as a result became a friend of Franklin D. Roosevelt. After Roosevelt became President in 1933, he brought Jackson to Washington as General Counsel to what was then the Bureau of Internal Revenue. Jackson rose rapidly in the executive hierarchy, serving as Assistant Attorney General in the Antitrust Division of the Justice Department, Solicitor General, and finally Attorney General. Justice Louis D. Brandeis expressed the view that Jackson should be Solicitor General "for life," a high compliment from one who did not bestow compliments casually. When Roosevelt elevated Harlan Stone to the Chief Justiceship in 1941, he appointed Jackson as an Associate Justice.
Franklin Roosevelt died at Warm Springs, Georgia, on April 12, 1945. He was succeeded by his Vice President, Harry S Truman. The allies in Europe were sweeping to victory -- "VE" Day was less than a month away. In late April, Truman asked Justice Jackson to take on the job of Chief U. S. Prosecutor before an international tribunal to try high German officials accused of war crimes. Within days, Jackson wrote to the President accepting the position and by an executive order dated May 2nd, Truman appointed Jackson as Chief Prosecutor.
In accepting the job, Jackson took on an enormous responsibility, not just as an advocate before the tribunal, but also as a de facto ambassador and as administrator. Justice Jackson later said that it was "the first case I have ever tried when I had first to persuade others that a court should be established, help negotiate its establishment, and when that was done, not only prepare my case but find myself a courtroom in which to try it."
There had never been such a tribunal before. The United States would prosecute -- and judge -- along with its wartime allies Great Britain, Russia, and France. Agreement as to which country would do what, and when, had to be negotiated. A sizable and highly competent staff had to be assembled on short notice, to depart for war-torn Europe for an indefinite period of time.
Jackson made his first of several trips to Europe in late May 1945 to discuss preliminary matters. This was before the age of jet propulsion, and travel was by propeller plane. These planes could not cross the Atlantic Ocean without refueling. Thus a flight from Washington or New York to Paris, like Jackson's, would stop first at Stephenville, Newfoundland, and then at Santa Maria in the Azores, before the final leg to its destination. Agreements were duly negotiated among the allies over the summer. Nuremberg, Germany, was designated as the place for the trials to be held.
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 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 him, 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."
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.
Jackson understandably regarded his participation in the Nuremberg Trials as the crowning achievement of his career. Telford Taylor, one of the other U. S. prosecutors at Nuremberg, believed that Jackson played a "unique and vital role" in the Nuremberg trials. Taylor concluded that, "More than any other man of that period, Jackson worked and wrote with deep passion and spoke in winged words. There was no one else who could have done that half as well as he."
But despite the praise for Justice Jackson's contributions to the success of the Nuremberg Trials, there was a great deal of criticism of the trials themselves. The criticism focused on two issues. The first was whether a Justice of the Supreme Court should participate as a prosecutor in such a trial.
The second issue was whether or not this sort of trial -- not only the prosecutors, but also the judges -- coming from the victors, would be in fact if not in form a "kangaroo court." But this criticism softened as the Court amassed evidence of the evil intentions and deeds of many of the defendants, and also because three of the defendants were acquitted. Legal scholars also questioned whether the whole idea of such a trial where there was no existing body of law did not violate the principle embodied in the ex post facto prohibition in the United States Constitution.
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."
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, who once referred to the Nuremberg trials as a "high-grade lynching party," 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?"
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."
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.
One of Stone's complaints was that he first learned of Jackson's acceptance of the role of prosecutor when it was announced by President Truman. One would think that Jackson would have at least consulted Stone before accepting the job; not that Stone had any authority to forbid his taking it, but that advance notice would have made it more palatable to Stone even though he still disagreed.
It is difficult not to sympathize with either Jackson's or Stone's views, but for Jackson, this was a once-in-a-lifetime opportunity -- the high point of his professional life. His stature as a jurist undoubtedly contributed to the success of the Nuremberg Trials; but over and above that this role was "right up his alley" -- the use of the spoken and written word -- in a way that it would not have been for his colleagues or most other judges. It was an advocate's dream! Speaking to the New York State Bar Association in 1947, Jackson said that his Nuremberg role "was the supremely interesting and important work of my life and an experience which would be unique in the life of any lawyer."
Jackson returned to the Court for the term that began in October 1946 and served until his death in October 1954. He would have eight more productive years on the Court, and would write more than his share of important opinions. But despite his masterful use of the English language in his opinions, he is probably better remembered by the general public for his service in the Nuremberg trials than his service on the Court.