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Justice Jackson at Nuremberg: A Historic but Controversial Role

        Justice Robert H. Jackson’s departure for Europe in September of 1945 to serve as chief prosecutor for the United States at the historic Nuremberg trials of Nazi war criminals annoyed some of his fellow Justices and heightened the internal tensions that gripped the Supreme Court. Jackson’s acceptance of an appointment by President Harry Truman to lead the prosecution affected the workload and decision-making of the Court and renewed a lingering debate on the wisdom and propriety of tasking Justices with non-judicial responsibilities.

 

         Chief Justice Harlan Fiske Stone was exasperated. Stone loathed extra-judicial assignments. He had declined President Truman’s recent invitation to lead a committee on traffic safety and believed Jackson’s participation at Nuremberg unworthy of a Supreme Court Justice because he viewed the trials as a “high-grade lynching party.”

The work of the Court was deeply affected by Jackson’s absence, which lasted for the entire 1945 Term.  Important cases, unresolved by four-to-four votes, had to be carried over to the Court’s next Term. Justice Hugo Black, already at odds with Justice Jackson, was irate. His own workload increased as he wrote more majority opinions than his colleagues.  Justice Horace Burton, appointed to the Court on October 1, 1945, complained in the spring of 1946 that there had not been a group picture of the Justices because “Justice Jackson has always been absent.”

 

      For his part, Justice Jackson suggested remedies for the problems that his absence had caused.  He offered to resign from the Supreme Court, but President Truman told him “No,” that Jackson should remain on the nation’s High Tribunal. At that point, Jackson told Chief Justice Stone that he would return to the Court to participate in some cases, but the Chief rejected the offer of a part-time Justice.

 

     In his memoir, “The Supreme Court,” Chief Justice William Rehnquist, who clerked for Justice Jackson in 1952, recalled the controversy surrounding Jackson’s role at Nuremberg. Rehnquist observed that there was a feeling within the Court that “Jackson should not have left his duties at the Court for a full year unless he resigned the office; and also a sentiment that a sitting judge was not ideally cast in the role of a prosecutor.” For those reasons, Rehnquist concluded, he was, as Jackson’s clerk, “loathe” to raise the subject with the Justice. As it happened, however, an unconstrained graduate school friend of Rehnquist’s, upon meeting Justice Jackson, proceeded to ask about his experiences at Nuremberg. Jackson, according to Rehnquist, “proceeded with a very reasoned, often eloquent, defense of those prosecutions.”

 

 

      President Harry Truman’s appointment of Justice Jackson in May of 1945 to serve as chief prosecutor for the United States at the Nuremberg trials represented a high point for both men in the historic effort, indeed, a defining moment in international justice, to apply the rule of law to those who rampaged throughout Europe and inflicted unprecedented misery and suffering on tens of millions of people. 

 

      Not everyone agreed that a trial of the Nazi monsters was warranted.  England’s Prime Minister, Winston Churchill, for example, thought it sufficient to simply execute Nazi leaders and imprison others without trial. An alternative to that approach, one promoted by President Franklin D. Roosevelt at the Yalta Conference in February of 1945, was the novel application of the rule of law to hold Hitler and his Nazis accountable for their grotesque acts to show the world, and future leaders, that violation of International Law, including  crimes against peace, crimes against humanity and aggressive war, among other heinous crimes, would come at a high price. The trials were meant as punishment, to be sure, but they also aimed to be a deterrent.

 

     President Truman, long an admirer of Jackson, especially since his tenure as Attorney General, saw in the Justice, the only American ever to have held the posts of Solicitor General, Attorney General and Supreme Court Justice, a man of presidential timber. Truman believed that the demands of Nuremberg would shine a light on Jackson at his best—intelligent, articulate and decisive. Truman believed Jackson was the most qualified person to assemble the prosecutorial team, draft the historic indictment against the Nazis, lead the prosecution, cross-examine the Nazis and, above all, voice the hopes and goals of a shaken, but victorious civilized world, that a successful trial could deter the grave crimes that were committed in the name of racial purity and world domination.

 

       Under Jackson’s leadership, the Allies convicted the leading Nazis who represented each dimension of the Third Reich. Beyond the convictions, Jackson’s team presented Nazi documents and other irrefutable evidence that, for the first time, publicly demonstrated the history of Hitler’s Germany and the Holocaust. Throughout his life, Jackson spoke and wrote frequently about his experiences at Nuremberg and considered it the most important work of his life.

 

          Indeed, it was. In his capacity as chief prosecutor, Justice Jackson served the demands of history and truth.


David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.




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