Meet the ‘inscrutable’ SCOTUS justice who made the Nuremberg trials possible

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, Lee Rawles, and today I’m joined by g Edward White, author of the book Robert H. Jackson, A Life in Judgment. Thank you so much for joining us.

Ted White:

Thanks for having me, Lee. And please call me Ted.

Lee Rawles:

Let’s set the stage for listeners who don’t necessarily know about Robert H. Jackson. First of all, what time period was he active in the Supreme Court?

Ted White:

Well, he is on the court from 1941 to 1954 when he suddenly dies in the fall of 1954. There is an interval of nearly two years when he takes leave from the court in the spring after the close of the court’s term, in the late spring of 1945, goes to Nurenberg as chief prosecutor of the Allied Nations eventually arguing the case for the United States prosecuting Nazis in war for war crimes. And because of the length of the Nurenberg trial, he basically doesn’t get back on the court until the beginning of the 1946 term. So he’s gone for a full term and a little more, and then he stays on the court until his death in 1954.

Lee Rawles:

So Ted, this is absolutely not the first book that you’ve written about a Supreme Court justice, but what drew you to Jackson’s story in particular?

Ted White:

I had written an essay on Jackson in a book called The American Judicial Tradition, the first edition of which came out in 1976. That was a book with profiles of various leading judges, mainly Supreme Court justices. I particularly was struck by Jackson in writing that essay. I didn’t know much about him before I had begun writing it. There had not been a lot of scholarship on him. I found him a fascinating character. I didn’t feel that in the space of a brief essay I’d done justice really to his life and career. So I filed him away as a subject that I hoped to come back to in more detail. And then I got the opportunity eventually just before COVID hit, I had finished three books, law and American History Trilogy that had occupied me for about the past decade. And I had written a book on soccer right after that and I decided that Jackson would be my next project.

And just as I made that decision, COVID hit and the Jackson Papers in the Library of Congress, which are a very rich collection and form the basis of my book, the Library of Congress was closed to researchers for almost two years. So I had to delay the research on that and eventually I was able to get up to the Library of Congress and sent a research assistant up there and made an arrangement with the University of Virginia Law School Library where my research assistant photographed files that I wanted to look at in the Jackson papers and the library converted them to PDF files and I got transcripts of the PDFs and worked with them in Charlottesville. Although the research on the book was delayed once it got underway, it was pretty efficient. And I have done a lot of the judicial biography, I guess I’d say four books on individual justices or at least the Marshall Court book, Holmes Devise series book. I had an extensive profile of John Marshall, but it was not really a biography of Marshall. But I have done biographies of Earl Warren and Oliver Wendell Holmes and Jackson is the fourth. And I would say of all the ones I’ve done, this is among the most enjoyable right up at the near the top of the list. When you write a biography, you spend a lot of time in your subjects company. And I found being in Robert Jackson’s company on the whole a great pleasure.

Lee Rawles:

So you mentioned finding him pleasant company to spend time with and he does seem to be a pretty fascinating character now you’re learning about him through his papers, his own writings, writings about him. And you mentioned he has this deep attachment to the idea of individualism as paramount, and it does make it difficult for him to be part of this collegiate body sometimes, and you go through some of the feuds or arguments that he has, but he really saw himself and had the most enjoyable work. It seems to me in his work as an advocate. He particularly enjoyed being solicitor general under FDR. Can you take us through his childhood that gave him this fierce sense of individualism and his friendship with FDR that led to these posts?

Ted White:

I stocked a book with a chapter of recounting his origins drawing heavily from an autobiography that Jackson began writing in 1944. He didn’t publish it, but he was giving an account of his life up to the time that he got on the court. The autobiography doesn’t talk about his time on the court. And in that chapter he talks about growing up in Western Pennsylvania and western New York in a household of dairy farmers. His parents had not gone to college. Their lives were centered in rural America of the time. And he says in his description of the people that he got to know growing up, not just his family but their neighbors and the community in which he grew up, that there was this very strong ethic of individualism. They were self-sufficient economically, they were independent politically. They believed in an ethos of hard work, frugality and respect for individual points of view.

And Jackson described this as a thoroughly democratic society and also claimed that it was largely over by the beginning of World War I, but that he had derived many of his central traits From that experience, he converted this idea of an ethos of individualism into an attitude in his profession that one worked by oneself. One was not beholden to others, either clients or associates. One did one’s own work independent of others, one resisted pressure from others. And he carried this over not only as a practicing lawyer and then a government lawyer, but when he went to the Supreme Court. Now you mentioned FDRI want to talk a little about that and then I want to turn to how that ethos individualism fared on the court itself. First, FDR Jackson was a democrat in and his family were Democrats in a region that was largely dominated by the Republicans. Jackson was active in democratic politics as a young man and served on the Democratic on a local democratic committee in that capacity shortly before World War I, he encountered Roosevelt. Roosevelt was the assistant secretary of the Navy, and for some reason Roosevelt had some authority in doling out patronage in the Democratic party.

Lee Rawles:

And just to interject, I thought it was so interesting that he was this devoted Democrat in the state of New York and also very opposed to the Tammany Hall system. I think that when you’re talking about that time period, if you say, oh, a New York Democrat, someone might assume, so he was really into the Tammany Hall crowd and that was not so.

Ted White:

That’s right. Roosevelt was a reformer in the Democratic party. Anti Tammany Jackson also was anti Tammany, but they were not particularly close friends or close political associates. When Roosevelt reentered politics after he contracted polio and then recovered enough to reenter politics and eventually became governor of New York in 1928, he reached out to Jackson and offered him a position on the New York Public Service Commission. Jackson at that point had become very experienced in dealing with public utilities in western New York. And Roosevelt wanted to tap into that expertise and Jackson said, no, I’m not interested in, I like my law practice, I like the diversification of it. I’m not interested in doing single work. And so Jackson remained in Jamestown practicing law until early 1930s. Roosevelt then, of course, is elected president in 1932 and has the idea of expanding the federal government’s task force, creating administrative agencies and bringing a lot of people into Washington to work for the federal government and a couple of Roosevelt’s appointees who know of Jackson attempt to recruit him.

And eventually in 1934, he agrees to join the Bureau of Internal Revenue, but only on a part-time basis. He says he wants to retain his law practice in Jackson in Jamestown. And so he commutes back and forth and of course that doesn’t work out. And eventually he agrees to come full time to Washington. Now it is in Washington in various roles in government, antitrust division of the Justice Department, bureau of Internal Revenue, eventually Solicitor General of the United States and Attorney General of the United States. It’s in Washington that Jackson becomes a specialist in appellate advocacy. His practice in Jamestown had largely been trial practice, but Jackson is an extremely gifted lawyer, prepared, eloquent, analytically, very accomplished. He can do anything, really any kind of law task Well, and by the time he becomes Solicitor general, he’s appearing before the Supreme Court a lot and he’s winning most of his cases.

In the meantime, he’s become a kind of advisor to Roosevelt. Roosevelt made use of his appointees to government agencies that he respected and he cultivated informal relationships with them, and he sought their advice on matters of law and policy. And so Jackson is part of the kind of inner circle of Roosevelt as early as the mid 1930s and eventually become solicitor general Solicitor General’s office is charged with representing the government before the Supreme Court of the United States in arguing appellate cases. And Jackson is extremely successful in that role, winning I think something like 38 out of 43 cases that he argued in the interval between 1938 and 1940 when he was Solicitor General in 1940, the incumbent Attorney General Frank Murphy, is appointed to the Supreme Court and Jackson is promoted to the attorney generalship. In the attorney Generalship Jackson’s role is largely as a policy advisor to Roosevelt. The United States is getting involved in World War ii. They’re still technically neutral, but they’re increasingly trying to aid the allies. And Jackson is charged with crafting agreements that enable the United States to remain facially neutral, but at the same time give support to the allies. Jackson is the author of the Destroyers for Basis Deal and of the Lendlease Act,

Lee Rawles:

And I had no idea how involved he’d been in Lendlease. What an impact not only to have overseen the Nuremberg trials, which we’ll get to, but also to have come up with the legal justification for Lendlease. I thought that was fascinating.

Ted White:

Yes. Once again, this is not something Jackson’s ever done before in his life. He’s not been a foreign policy advisor. He’s not been a diplomat, but he’s just good at things and he crafts these two pieces of a very effective legislation. So eventually by 1941, Jackson is on the very short list for the Supreme Court in January, 1941. Justice McReynolds retires Jackson is not really considered for that seat. It goes to James Burns, who really only stays on the court for a year. But in 1941 in June, chief Justice Charles Evans Hughes retires, and that means there’s a vacancy for the Chief Justice ship and it really is Jackson’s turn for a court appointment. And so Roosevelt initially decides he’s going to make Jackson Chief Justice. Now, of course, Jackson not only has no prior judicial experience, but he’s coming out of the government. And you might surmise that this would be a sort of long shot appointment, but Jackson has been extremely well known in Washington circles as Solicitor general and Attorney General.

He’s a formidable figure, obviously well qualified. So Roosevelt really is thinking of naming him Chief Justice. But then Hughes Roosevelt consults Hughes and Hughes says, well, it’s my opinion that when someone is a Chief Justice, that’s a somewhat different job from being an associate justice. And it’s probably an advantage to have served on the court before if it’s possible to promote someone from within. And Hughes suggests that Roosevelt promote Harlan Fisk Stone, one of the sitting justices who was appointed by Calvin Coolidge, a Republican. And here we are in 19, in July, 1941, the US is about to enter World War ii Democratic President appointing a chief justice who’s been appointed by a Republican. It looks like a bipartisan wartime appointment. And so Hughes recommends that Roosevelt appoint Stone Chief Justice and Jackson Associate Justice. There’s another dimension to Stone’s appointment Stone is 68 at the time he’s appointed, and the justices are able to retire with a full pension at the age of 70. And Stone is considering retiring at 70 and Stone talks to Jackson about this, and Stone says, I’m probably going to retire in a couple of years and you’d be an ideal candidate to replace me. So let’s go forward with that kind of understanding. Well, stone doesn’t in fact retire when he turns 70.

Lee Rawles:

A spoiler alert, he dies in office several years later. Yes.

Ted White:

So anyway, I found a passage in Jackson’s memoirs when he talks about what he calls a profound psychological change from moving, from becoming an advocate to becoming A judge says your role as an advocate is to represent your client to the best of your ability. You’re engaged in an adversarial role. You don’t have to apologize for that when you’re a judge. You’re supposed to be a facially, neutral, impartial arbiter. You’re not supposed to have your own agendas, overwhelm your decisions. And he says that change is very great, and I’m not sure I’ve effectively accomplished it. And I think that was a good piece of self-analysis. I think Jackson was not really comfortable on the court, assuming this sort of facially neutral role. He became deeply engaged in all the cases he decided. He quickly came to a position he sought to defend his views strenuously. He was personally involved in a way that perhaps put some pressure on the neutral judicial role.

Lee Rawles:

Well, we’re going to take a quick break to hear from our advertisers, but when we return, we’ll talk more about Jackson’s experience as a judge. Welcome back to the Modern Law Library. I’m here with g Edward White, author of Robert H. Jackson, A Life in Judgment. And Ted, when we were last talking, you brought up a quote from Jackson about his kind of ambivalence in this new role, and there was a passage in your book that I marked because I thought it was so interesting. And Jackson says in it, something does happen to a man when he puts on a judicial robe. And I think there ought to, the change is very great and requires a psychological change within a man to get into an attitude of deciding other people’s controversies instead of waging them. It really calls for quite a changed attitude. Some never make it. I’m not sure I have.

And absolutely that does seem to describe what his experience was. It reminded me as a reader of actually Thurgood Marshall’s experience as such an incredible advocate and trial attorney is suddenly on the court and all the skills that he developed throughout his very successful time as an advocate aren’t necessarily the ones he needs to be influential on the court and talk other justices into seeing his point of view. Jackson particularly kind of isolated himself. And you mentioned that he even found it difficult. He’s like, what do I have my law clerks? Do I want to be writing my opinions? Why are they here? He seemed to be very the kind of person who does their best work solo. What do you think that did for him as a justice in the Supreme Court, which is supposed to be this kind of deliberative body of people?

Ted White:

Yes. The court is above all, the court is a collegial body that makes decisions collectively. They’re always seeking to build a majority. Sometimes the majority is just five justices. Sometimes you can’t even get five. The court is so badly split, but everybody is seeking to persuade their colleagues to go along with the position that they hold or seeking to suggest that the position of some justices is poorly founded. So there’s a lot of back and forth by play, which includes informal contacts between the justices that are designed to sort of persuade people to move in one direction or another. And some justices really relish that dimension to the court. I’m thinking particularly of Justice Brennan, who was a very gregarious, cheerful walk the halls personality, very interested in securing votes for positions, happy to compromise on language or analysis to get a result just very engaged in what you might want to call the politics of collegial decision-making.

Jackson was not like that at all. He did not like trying to persuade people informally. He sought to persuade them through his writings, through his draft dissents or through his opinions, draft majority opinions rather than to work the halls, if you will. He didn’t consult other justices when he was writing up a case, nor did he like to be pressured or encouraged by justices to join their positions. One of the things he found out to his discomfort was when he first joined the court that Hugo Black was very interested in marshaling other people toward views that he held very interested in forging majorities and expected in a way, Jackson appointee of Roosevelt as was black, to kind of join Black just because black’s opinions were going to be supportive of a New deal policy for the most part. And Black kind of assumed that Jackson would join that group, and Jackson didn’t care for that.

Lee Rawles:

Yeah, I enjoyed reading about their relationship. It really did seem like they got on each other’s last nerve. They may have both been FDRs men and government, but Hugo Black, being a former senator, he’d had to run for election. This was his kind of bailiwick of gaining support. Jackson had been in the government, but he had been in the administrative side and he’d done a lot of hard work, but it wasn’t that kind of work. And they really did seem to antagonize each other a lot, at least based on what I read in your book.

Ted White:

There are some fundamental differences between them. Black is from the Deep South, has grown up with segregation, has become a convert to integration. He’s also been a largely been a personal injury lawyer representing people who are going up against corporations and he has a anti-corporate ideology. He’s on the left end of the New Deal political continuum as a senator, he’s also, as you say, he’s held public office. Politics are natural to him. He seeks to persuade others to his views. He believes strongly in the views that he holds. Jackson growing up in Western New York, no experience of holding public office, no exposure to racial segregation in any significant way. He’s just from a totally different background from Black, and they just don’t really take to one another. Black is put off by Jackson’s apparent lack of willingness to join black in his crusades. Jackson is put off by the pressure that Black seeks to exert on him, so they just don’t mix well.

And indeed Jackson doesn’t mix well with some of his other colleagues. He doesn’t mix well with William O. Douglas. He doesn’t mix well, particularly with Frank Murphy. Frank Murphy has been his boss when Frank Murphy was Attorney General, and Jackson was a solicitor general. And Jackson doesn’t have any respect for Murphy’s legal ability. So he doesn’t have any, he really has only two close friends on the court during his tenure. One is stone, and that’s only a limited time period, but he’s close to stone, although stone is vigorously opposed to Jackson’s going to Nuremberg. Nonetheless, they have a good relationship. They have a candid relationship. His closest friend is Felix Frankfurter. Frankfurter in this interval is increasingly estranged from both Black and Douglas and is sort of on the other side of a number of their decisions. And Jackson tends to join Frankfurter, and they’re very close. Jackson has a good sense of humor, kind of acerbic wit, and Frankfurter enjoys that, and they gossip about other people on the court.

Frankfurter respects Jackson’s intellect from the beginning. Frankfurt is very much of an elitist about the intellectual qualities of his colleagues and tends to hang around with the smart people and be rather dismissive of people that he thinks are less gifted. And Jackson is certainly in the category of smart people, so they have a very close relationship. But other than that, Jackson is largely isolated on the court. He works alone. Now, you did mention his law clerks. Jackson did make a lot of use of his law clerks, but the use he made was a case would come in, Jackson would not consult his clerks in the decision of the case. Jackson would draft an opinion. Sometimes it was a dissent, sometimes it was a majority opinion. He would show it to his clerks and then he would begin revising it and they would revise it over and over again, polishing the language. So there was clerk input in that they would make stylistic suggestions or they would serve as sounding boards for the development of Jackson’s opinions, but never, they never contributed first drafts of their own. So he’s basically in his chambers working away largely by himself. And that doesn’t help him with his collegial relationships on the court.

Lee Rawles:

What I found very tender was after Jackson’s death in

Ted White:

1954, October, 1950

Lee Rawles:

4, 19 54, Frankfurter Justice Frankfurter becomes so protective of Jackson’s legacy. And you mentioned even in your intro that a lot of what it was available prior to this about Jackson was because Frankfurter wanted his friend’s legacy to be remembered. I thought that was very dear

Ted White:

Frankfurter intervenes in what I would describe as a kind of campaign to preserve Jackson’s memory and reputation when he finds out after Jackson’s death that Eugene Gerhart, a lawyer in Binghamton, New York, is writing a biography in which Jackson has fully cooperated. A Gerhardt first approached Jackson in 1948 and said he wanted to write a book on him, and Jackson responded. I mean, most justices in responding to that kind of request would say, no, categorically no, I’m not cooperating at all. An illustration being this biography of Justice David Suiter that came out while Suiter was still alive. And not only did Sudor not cooperate with it, but he told all his law clerks not to cooperate. That’s fairly standard. But in contrast, Jackson turns over a whole lot of papers to Eugene Gerhardt and Gerhardt publishes a book in 1958, which is a very thorough, detailed biography of Jackson, but very, very hydrographic.

Very, very one-sided in support of Jackson indeed, sometimes drawing on papers that Jackson formulated as sort of supporting his side in a controversy. And Gerhart would report those as if that was the actual factual basis of the event. Frankfurter learns about Gerhard’s involvement with the biography, and he tries to stop its publication. He writes, Jackson’s son, bill Jackson, who’s cooperating with Gerhardt and says, won’t you intervene and prevent the publication of this book? This guy is a lightweight, it’s not going to be any good. Bill Jackson, of course, says No. The Ger hype book is really quite good, in a way detailed and thorough. But Frankfurter decides somebody needs to do a real biography of Jackson, somebody meaning by somebody, somebody I respect and commission to do it. And so he selects Philip Kurland at that time on the University of Chicago Law school faculty, a former clerk and a very gifted scholar, and basically arranges for the Jackson papers to be transferred to Kurland.

And that results in the scholars, other scholars prospectively working with the Jackson papers were wanting to write on Jackson of being denied access while Kurland is working on the biography. And Kurland works on the biography for several years, basically from Frankfurter dies in 1965, and he’s commissioned Kirland before his death. And then Kirland continues to work on the project, but never completes it. So it isn’t until the 1980s that the Jackson family deposits the papers in the Library of Congress and they become available to scholars generally. And this is typical of Frankfurter. I mean, he selects people. He identifies justices that he cares about, Holmes Brandeis, Cardozo Jackson, and he commissions his former students or former law clerks, people he respects to write authorized biographies of them because he wants them to be remembered in a certain way by people who have, in his judgment, the capacity to do so. Well, that sets back Jackson Scholarship for a couple of decades.

Lee Rawles:

Well, hopefully your book Robert H. Jackson, A Life and Judgment is going to go some way towards people learning more about him. Well, we’re going to take a quick break to hear from our advertisers when we return. We’ll get to the Nuremberg Chapter. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with g Edward White, author of the book, Robert H. Jackson, A Life in Judgment. And Ted, I knew about Jackson as a longtime journalist. I actually only really knew about Jackson from the Barnett decision. And for listeners, this was a case, a series of cases involving Jehovah’s Witnesses and deciding whether or not children should be made to salute the flag. It was a pretty seminal free speech case, and you can read more about it in the book. I don’t think that I had any understanding of the depth with which Jackson was involved in the Nuremberg trials. So could you set the stage for us? How did a Supreme Court justice get tagged for this task to begin with?

Ted White:

In the spring of 1945, when it became apparent that the allies were going to win the war in Europe, a group of cabinet officials began meeting with the idea of crafting some kind of post-war tribunal that would try the leaders of the Nazi party for war crimes. The idea was to put them in public view so that the depth of their criminality would be revealed to the world at large. And perhaps a lesson would be learned that nations of the world should join together to prevent this kind of atrocity from ever happening again. The plan is sort of taking shape while Roosevelt is still alive in 1945, but then Roosevelt dies and is succeeded by Harry Truman. But the plan goes on and Truman endorses it, but the question is, what will be the extent of the US’ participation and who should be involved prominently in that participation?

And Jackson’s name comes up, and in some ways he’s a logical choice. Everybody understands the brilliance of his advocacy. He’s also deeply committed and has been as a justice to the idea of the rule of law, that is to say law transcending politics and divisions, social divisions in the world, and holding up a kind of ideal of fairness and justice. Jackson is entirely on board with that. And so eventually he’s approached in the spring 1945 by a representative of this group. And Jackson is intrigued by the prospect, the prospect of going to Europe and participating in a war tribunal in which the Nazi leaders will be tried. And at that time, in the spring of 1945, his relationships among the court are not good, and particularly gets into a very public controversy with black over blacks refusal to disqualify himself in a case. And when Jackson gets annoyed at a position all through his career considers just resigning and going back to Jamestown, New York and resuming the practice of law, he’s always thinking about that as an escape option.

And he thinks about it here. He thinks, well, maybe going to Nurnberg participating. It doesn’t call it Nurnberg, of course, they don’t have a site yet, but going to Europe and participating in a war trial and then resigning from the court after that, maybe that’s a sensible possibility. So Jackson decides he’s going to sign on, but his terms are that he has blanket support for picking a staff, for organizing the American effort and for negotiating with the other allies. And he’s given all that he’s given basically carte blanche. And so he does that. He assembles his staff over the spring and summer of 1945. He assembles the staff, which includes his secretary at the court, Elsie Douglas and his son, bill Jackson, but also some very talented lawyers who are given commissions in the military. Jackson himself pitch one to participate as members of the Allied Force.

And Jackson is charged with developing the format of the trials. And he starts out where there are four nations involved, the Soviets, Soviet Union, the British, the French, and the United States. All three of the other allied nations prefer a summary trial in which the Nazi leaders are basically just executed, arraigned, convicted, and executed. And Jackson thinks that’s the wrong message to send. That’s basically reinforcing the same message that the Nazis themselves were doing, which is to say you execute your enemies. Jackson doesn’t want that. He wants something like an Anglo-American due process trial. And so he enters into a series of very delicate and thorny and difficult negotiations with each of the other allies and eventually prevails. He eventually gets the consent of all the allies for this kind of format in which the Nazis will be defended by counsel. They’ll have opportunity to respond to charges against them.

They’ll be given considerable latitude to defend themselves in their examination in court. And that’s basically the model that Jackson has recommended. He also prevails in the site of the trials. The Russians are very anxious that the trials be held in Berlin. Berlin is in the Russian zone after Germany surrenders. The German territory is divided up into war zones, and the various allies are assigned respective ones. And Berlin is assigned to the Russians and Jackson and the other allies are very fearful that if Berlin is the site of the trials, the Russian administrative apparatus will control that event. They do not want the Soviets in that position. So Nuremberg in the American War zone is proposed as a site and negotiated and eventually chosen, and that’s a big plus for Jackson and the allies because that means that the American security apparatus will control the trials. That’s a lot of work for Jackson. This developing the format and negotiating the roles of the various allies in, it takes him into the summer, most of the fall of 1945. The trials don’t really even begin until late November, 1945. And Jackson is heavily involved with everything that goes on before that. So he’s the leading force in creating the tribunal that ended up trying the Nazis in Nuremberg.

Lee Rawles:

And when I think about the value that so much of that testimony has for historians, the thought that, but for his success in this kind of format, we would not have that or we would have something entirely different if there had just been a summary, summary judgment, like you talked about being advocated by the other powers.

Ted White:

We have records of the tribunal that extend over a 40 volumes. They’re not easy reading, but they’re available. You can go in there and you can see the testimony of the defendants, you can see the evidence that’s produced against defendants. You can follow through the whole course of the trial. Had there been a summary procedure, we wouldn’t have any of that.

Lee Rawles:

Yeah, I wanted to bring up Herman Gehring as one example during the trial. Could you talk a little bit about his trial in particular and Jackson’s involvement and how that ended up impacting his experience of the Nuremberg trials?

Ted White:

There’s been a kind of mythology about Jackson’s interaction with Goring. You can see it in place in the recent movie Nurenberg. The mythology is that Goring cleverly outmaneuvered Jackson during Jackson’s examination of him and ing scored, scored repeatedly, scored points on Jackson and was able to come across as a clever and resourceful, and in some ways, even almost even an attractive example of a Nazi leader. That conventional wisdom is largely mistaken. And it’s a product of the fact that the tribunal’s procedure for Nazi defendants was very hands off. That is they were given ample opportunity to respond to questions by giving lengthy digressive answers that were really not necessarily on point. And during who, by the time of the trials had recovered from his drug use and was cognitively quite sharp, took the opportunity over and over again to just articulate Nazi propaganda. At one point, Jackson became very frustrated by non-responsiveness and asked the tribunal to control goring’s answers and try to limit them to the questions that Jackson was putting to him.

And basically the judges refused to do so. The judges said, no, our format is that defendants get considerable attitude. After that piece of examination had concluded, Jackson goes up to the judicial bench. The court is no longer in session and says, if you’re going to hamstring me in this way, I might as well just resign. And they try to pacify him, and he’s very angry about it. But in the press, the impression is created that Goring is Outmaneuvering Jackson because Goring basically isn’t responding to Jackson’s questions, isn’t admitting anything, is propagandizing for the Nazis. And some journalists report this. So this kind of myth is created that Jackson was beaten by Gering at the Nuremberg trials. In fact, Jackson’s examinations of Goring raise all kinds of allegations about Goring’s participation in war crimes. And Goring never denied any of it. So basically the transcript is a evidence of convicting goring for the very things he’s being tried. Somehow that’s missed. And so I don’t try to completely defend Jackson from his participation. His prosecutor, he made some mistakes. He was uneven in places. He lost his temper in places. But I do try to rehabilitate him in part from this idea that he just failed in dealing with Gering.

Lee Rawles:

Well, there is plenty more in the book. One of the other things that I particularly enjoyed in the book was the glimpses into Jackson’s family life as part of his papers, letters from his children, kind of paint a picture of what family life might’ve been. You mentioned it’s a real shame that letters between Jackson and his wife Irene are somewhat limited, but you are able to get more of a picture of what life was like in their family and the kinds of things that they valued. So if someone’s looking for more of the personal side, you do get into it. In the book, you mentioned that you came away from this project with the impression that he was just an interesting and rewarding person to spend time with. Do you feel like you were able to know him very well through this project? It seems like he was a difficult person in life to get to know.

Ted White:

Yes. He was difficult to get to know. One time, Frankfurter in commenting on him in an oral history of Frankfurter’s, described one of Jackson’s qualities as quote surface glitter. I think what Frankfurter meant by that is that Jackson was nominally gregarious, active, fun-loving, witty, pleasant, but at the same time, he was remote. In some ways, his gregarious was a barrier to maybe a closer understanding of him. And there’s a passage I quote in the book from one of his law clerks, Barrett Prettyman, obviously a favorite LawClerk of Jackson’s Prettyman accompanied Jackson when he met with Earl Warren, when Jackson decided to join Brown versus Board of Education late in the process, Barrett Prettyman edited a posthumous lecture by Jackson. Anyway, he’s a favorite LawClerk and Prettyman talks about Jackson. He said, I was coming back from an occasion where Jackson and I had spent some time together informally, and I got the sense that what he was saying to me was, we like each other.

We’ve had a good time this year together, haven’t we? But Jackson never said that. He just wasn’t intimate in that respect. And he was a complicated personality, thin skin, quick to anger at the same time, lighthearted at times, just a complicated personality with this quality of remoteness. So do I think I know him well? Yes, I do. I do think I know him well. I’ve spent some years with him. I’ve gone through his papers. I have a sense of how he would react to events. But have I penetrated his inner self? I don’t think so. I think he’s in some ways inscrutable.

Lee Rawles:

Well, I would be remiss if I didn’t bring up some of your other projects. I was intrigued that you have written full length books about the history of baseball and also soccer in America. Listeners. I think that the Winter Olympics may be over by the time you’re hearing this, but I am so intrigued by your long history in athletics, and what do you think sports and law have in common that just has grasped you and brought a depth of enjoyment to both?

Ted White:

I like to joke about to my students, and if you’re an undergraduate major, what would be the best preparation for going to law school? And I say with tongue in cheek, the best preparation for law school is athletics. And the reason is both athletics and going to law school and practicing law are essentially about relative failure. No matter how good you may think you are in a sport or in law, there’s always somebody better, and you’re going to have more defeats than victories, and you need to learn from your defeats. And one of the things that I learned in athletics was that you fail and you fail publicly. You fail in front of other teammates. You fail in front of crowds. That is, you are out there. You are isolated in an athletic competition and somebody’s beating you, and everybody sees it. And you have to learn to deal with that.

You have to learn to say, I’m going to learn from that. I’m going to get better because of it. I’m not going to let it affect my performance in the future. You’re going to lose a lot in law, and you need to learn from that as well. So I’ve played sports all my life. Both my parents were involved in sports, and I was encouraged to play as a child, and I’ve continued to play. I’m at the stage in my life now where some sports are not readily available and other sports are more age appropriate, but I’m continuing to do it and I love it. And I enjoyed writing about baseball and soccer, two sports in which I’ve played a lot and coached some. So yeah, I think the parallels between law and sports are significantly.

Lee Rawles:

And finally, the meanest question you can ever ask an author. So what’s your next project? Do you have anything that you have in mind that you want to throw yourself into?

Ted White:

Yes. You alluded to my book on baseball called Creating the National Pastime that came out in 1996. That book covers the history of Major League baseball from 19 three, when the First World Series was created in the national and American Leagues were identified as competitors to 1953 when the first franchises moved from established cities to other cities. There were the same franchises at Stamp for a 50 year period. My next project is to continue that story down into the present. That is to begin in the 1950s and chart some topics and themes in Major League Baseball into the present when you say, what’s your next project? The project is in that articulated sentence. Lee, I haven’t done anything further, but I expect to do so shortly.

Lee Rawles:

Well, thank you so much to g Edward White for joining us to talk about Robert H. Jackson, a life in judgment. And thank you listeners for joining us for this episode. If you enjoyed it, please rate review and subscribe in your favorite podcast listening service. This.