Robert H. Jackson: A Life in Judgment
By G. Edward White
Oxford University Press, 408 pp.
Supreme Court Justice Robert H. Jackson felt unfulfilled in the early 1940s as the court considered the taxability of country club green fees and other matters he viewed as irrelevant at a time when fascism was on the move worldwide.
“After the attack at Pearl Harbor it was impossible,” he later wrote, “to serve on the court without feeling a certain sense of frustration and dissatisfaction.” Jackson expressed his unhappiness to President Franklin D. Roosevelt and floated the idea that he might resign from the court to play a role in the war effort. Roosevelt, however, had something else in mind, a job for Jackson after the war. His vision led to the high point of the justice’s career, when President Truman appointed him as lead American prosecutor at the Nuremberg trials of Hermann Goring and other top German Nazis after World War II. His leave from the court was temporary, but nothing he did before or after it approached the importance of his work in Nuremberg.
In Robert H. Jackson: A Life in Judgment, University of Virginia law professor G. Edward White depicts a restless man, a loner who did not always get along with his colleagues on the court. He was not a leader on the all-important issue of civil rights. Believing the court should avoid overreach, he was out of step with several of his more activist colleagues.
But Jackson was a trailblazer off the court, a pioneer in developing new tenets in international law designed to punish and maybe even prevent future crimes against humanity.
White portrays Jackson as the chief intellectual arbitrator among the allied nations in the preparations for Nuremberg who outlined the ultimate form, justifications and aspirations of the trials. Jackson, he says, viewed the trials as an opportunity to outlaw war as “the worst crime of all.”
Many prominent legal experts were not enthusiastic about the Nuremberg proceedings. Nazi leaders could be executed without giving them the opportunity to spread propaganda on the stand, some argued. Others, including then-Chief Justice Harlan Fiske Stone, viewed the prosecution as a preordained “show trial” that would make martyrs out of the war criminals. Jackson did not mind bucking Stone, nor any of the other justices—especially Hugo Black, with whom he often differed.
White’s prose is workmanlike and somewhat wooden at times. The long descriptions of Supreme Court cases can sometimes read like a dry law school review paper. But by highlighting Jackson’s historical importance, White does a valuable service. Thanks to Jackson, in part, Holocaust denialism may be viewed as nothing more than fringe racial lunacy.
The book does not conform to the portrait of Jackson in the new movie Nuremberg, which shows him to be a man of flexible ethics and uneven courtroom acuity. (Jackson’s supposed obtaining of evidence from U.S. Army psychiatrist Douglas M. Kelley’s confidential interviews with Goring, a major story line in the movie, was a dramatic fabrication.)
In fact, White writes, Jackson sought—beginning with his powerful opening statement—to prove that Nazi documents and other evidence demonstrated that there was a wide-ranging conspiracy to destroy the Jewish people. He said Nazi “crimes against humanity” included “mass killings of countless human beings in cold blood.” He framed Nazi cruelty as not some irrational outburst by individual mad men but as part of the regime’s goal of extermination and a cornerstone of their movement and ideology. (Jackson had served with several high-level Jews in government, but those relationships do not seem to have been vital to his sentiments at Nuremberg.)
White shows that Jackson was clever as a legal strategist. He rejected the advice of U.S. intelligence to rely on the testimony of witnesses out of concern that their testimony could be viewed as self-serving. Instead, he based his case on captured documents, which saved valuable time and was not easily contested. Jackson ensured that an undeniable historical record of the Holocaust was established that would prove the culpability of individual leaders, including Goring, and effectively counter future efforts to deny what happened.
His accomplishments are even more impressive given his modest formal education. Jackson grew up on a family farm in upstate New York and never went to college. He took a one-year course at Albany Law School law school and did well enough to pass the bar exam, although he never earned a degree. He learned his trade as an apprentice at a local law firm before becoming a New York lawyer and then taking a variety of government jobs in FDR’s administration. His sharp analytical mind and talents for research and writing propelled his rapid rise in Washington as a government anti-trust lawyer, Solicitor General and Attorney General in the Roosevelt Administration. At the time, educational credentials were not nearly as crucial as today; after all, President Truman did not graduate from college, and Justice Stanley F. Reed, a contemporary of Jackson’s, also had not graduated from law school. (Justice James F. Byrnes, who served during World War II, was the last person appointed to the high court without a law degree.)
Between 1941 and 1954, as an associate Supreme Court justice, Jackson was frequently a swing vote as a centrist. In a majority opinion he wrote in 1943, he held that public schools could not force students to recite the pledge of allegiance or salute the American flag, arguing that enforcing conformity conflicted with First Amendment rights. His dissent in the Korematsu case that approved the internment of Japanese Americans during World War II highlighted his streak of independence and belief in limiting government power.
The most far-reaching civil rights cases, of course, came after Jackson returned from Nuremberg. But he was always an advocate at heart, rather than a judge. His service as solicitor general and attorney general reflected his interest in making policy supporting the New Deal. He correctly viewed Nuremberg as the great moment of his career.
“The world was to learn, from the Nuremberg trials, that the systematic employment of a nation-state in the service of the Nazis’ deplorable goals would never again be tolerated,” White concludes. Even so catastrophic killings in Bosnia, Cambodia, Rwanda and more—and, some would say, Gaza—suggest that Jackson’s aspirations to make Nuremberg a historical turning point were not entirely fulfilled.
Clifford Krauss was a longtime correspondent for The Wall Street Journal and The New York Times and is the author of Inside Central America: Its People, Politics and History.
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