Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg

Here is a résumé that no modern confirmation committee would know what to do with. One year of law school, never a degree. An apprenticeship in a small-town law office in western New York. A career in private practice in Jamestown. Then Solicitor General of the United States, Attorney General, Associate Justice of the Supreme Court, and the chief American prosecutor in the greatest criminal trial in human history. If a young man today proposed that path, the admissions office would ask for a transcript, and the transcript would end the conversation.

Robert H. Jackson is the proof that the law is a craft and a conscience before it is a credential. He is also one of the few figures in American history who wrote, in opinions that still govern us, the best defenses of liberty against the state, and then crossed the Atlantic to prosecute the state that had destroyed liberty entirely. I want to tell his story, because it is a story about what the law is for, and the answer is that it exists to put a leash on power.

From Spring Creek to Jamestown

Jackson was born in 1892 in Spring Creek, Pennsylvania, and grew up in Frewsburg, New York. He did not go to college. He attended Albany Law School for a year, then returned to the old way, reading law in a lawyer's office, and was admitted to the New York bar in 1913. He practiced in Jamestown, a small city in the southwestern corner of the state, and built a reputation as a trial lawyer who could talk to a jury in plain English. He became a Democrat active in New York politics and an ally of Franklin Roosevelt.

That background matters for a reason beyond biography. Jackson's later writing has the voice of someone who tried cases to farmers and shopkeepers. He distrusted abstractions. He believed that the law had to make sense to the people who lived under it, and that a justice who could not explain himself plainly had probably not worked out what he thought. The best Supreme Court prose of the twentieth century belongs to him, and part of the reason is that he wrote for jurors and not for law reviews.

The ladder: Solicitor General, Attorney General, Justice

The Roosevelt administration brought Jackson to Washington. He served as Solicitor General from 1938 to 1940, arguing the government's cases before the Court, and then as Attorney General from 1940 to 1941. In the latter role he gave a speech to the nation's United States Attorneys in 1940 on the power of the federal prosecutor. His warning, which I will paraphrase, was that the prosecutor has more control over life, liberty and reputation than any other person in America, and that the danger lies less in the prosecutor who is careless than in the prosecutor who picks his man first and then looks for the crime. Every conservative who worries about weaponized prosecution, whoever the target, should read that speech. It was written by a man who worked for an administration that was far from timid about federal power, and it was a Democrat's warning to his own team.

Roosevelt appointed Jackson to the Supreme Court in 1941, and he served until his death in October 1954. In those thirteen years he wrote some of the most quoted sentences in the history of American law. Three of them define the argument of this essay, and they come from three cases in three different contexts.

West Virginia v. Barnette (1943): the fixed star

In 1940, in Minersville School District v. Gobitis, the Court had upheld a school's requirement that children salute the flag, even over the religious objections of Jehovah's Witnesses. Jackson was not yet on the Court. Three years later, in the middle of the war, the question came back as West Virginia State Board of Education v. Barnette, and Jackson wrote the opinion overruling Gobitis.

The opinion contains one of the great sentences in American constitutional law: "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." He wrote it in 1943, with American soldiers dying in two oceans, in a case about whether a government could compel schoolchildren to recite a patriotic oath. A weaker man would have said that wartime was no time to quibble. Jackson said that the whole point of a free country is that it does not force its citizens to say what they do not believe.

Note the date and the logic. The country was in the grip of its most patriotic moment, and the Court held that patriotism cannot be compelled. That is a conservative principle at its root: the individual conscience is prior to the state. It is the same principle behind the Court's later protection of the speech of people with whom Jackson himself would have disagreed. Compelled speech is the signature mark of tyranny, and Jackson put it in a sentence that will be quoted as long as there is a First Amendment.

Korematsu v. United States (1944): the loaded weapon

Eighteen months later, the Court faced the exclusion of Japanese Americans from the West Coast under Executive Order 9066. In Korematsu v. United States (1944), the Court upheld the exclusion order in a 6-3 decision. Justices Roberts, Murphy and Jackson dissented.

Jackson's dissent contains a passage that every student of the separation of powers should know. He did not claim to know better than the military about military necessity. His objection was institutional. A military commander may issue an order that is reasonable under the circumstances, he said, but a court that approves it makes it a precedent. His image has become famous: the principle then "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." A military order is a one-time act, but a judicial opinion that blesses it is a rule that every later official can pick up.

That is a constitutionalist lesson, and I do not hedge it: the danger of emergency power is that it outlives the emergency in the law books. The Court in 2018, in Trump v. Hawaii, said that Korematsu was "gravely wrong the day it was decided" and "has been overruled in the court of history," a statement that confirms Jackson's dissent as the winning side. I discuss that history in Korematsu Was Finally Repudiated in 2018, and Its Lesson Is About Deference. The lesson there is about deference, and Jackson's lesson is its mirror: a court that defers to the claim of necessity has given away the thing it was created to protect.

Youngstown Sheet & Tube Co. v. Sawyer (1952): the three zones

In 1952, during the Korean War, President Truman seized the nation's steel mills to prevent a strike that he said would imperil the war effort. The Court held in Youngstown Sheet & Tube Co. v. Sawyer that he had no authority to do so, because Congress had not authorized it and the Constitution did not grant it to the President alone. The opinion of the Court was written by Justice Black, but the opinion everyone remembers is Jackson's concurrence.

Jackson laid out three categories. When the President acts with the express or implied authority of Congress, his authority is at its maximum. When he acts in the absence of a congressional grant or denial, he can rely only on his own powers, and there is a "zone of twilight" in which he and Congress may have concurrent authority or in which the distribution is uncertain. When he acts against the expressed or implied will of Congress, his power is at its lowest ebb. Steel fell in the third zone, because Congress had considered and rejected seizure as a tool in labor disputes. Jackson also wrote that "The Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants."

Every constitutional lawyer in America still uses the Youngstown framework, including those who advise Presidents of both parties. It has the virtue of being neutral. It does not tell you whether a given action is good policy. It tells you whether the President has the authority to take it without Congress. Federalist 51 says that ambition must be made to counteract ambition, and Jackson's three zones are the working version of that sentence.

Where conservatives should argue with him

An honest profile has a place for disagreement. Jackson wrote Wickard v. Filburn (1942), the case holding that a farmer who grew wheat for his own use could be regulated under the Commerce Clause because, in the aggregate, home-grown wheat affected the interstate market. Conservatives and libertarians have criticized that decision for decades as an expansion of federal power that makes the enumerated powers close to meaningless, and United States v. Lopez (1995), discussed in United States v. Lopez Was the First Commerce Clause Limit Since the New Deal, was the first time in nearly sixty years that the Court held a statute beyond the commerce power.

The fair reading is that Jackson was a New Deal lawyer who accepted the New Deal's reach and then, as a judge, worried about where the limits were. He is not a pure originalist, and he did not claim to be. His greatness is that he saw the structural danger in every grant of power, including the ones his own side had sought. That is why conservatives can read him with profit even when they do not share his premises.

Nuremberg: law against war

In the spring of 1945, the war in Europe was ending, and the Allies faced a question that no one had faced at scale: what to do with the leaders of a regime that had murdered millions. The Americans, led by Roosevelt's successor Harry Truman and by Secretary of War Henry Stimson, argued for a trial rather than summary punishment. Truman named Jackson as the American representative and chief of counsel in May 1945, and Jackson took leave from the Court.

Jackson spent the summer in London negotiating the charter of the International Military Tribunal with the British, French and Soviets. The London Charter was signed on August 8, 1945. It defined three categories of crimes for the tribunal to try: crimes against peace, war crimes and crimes against humanity, with a conspiracy count tying the first to the rest. Four powers with four legal systems, including a Soviet system that had its own history of show trials, had to agree on a procedure. Jackson insisted on the principle that defendants would be entitled to know the charges, to counsel and to present evidence. It was an extraordinary insistence, because the alternative was easy and popular.

The trial opened at Nuremberg on November 20, 1945, and Jackson gave the American opening statement the next day. He began with a sentence that deserves to be memorized: "That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason."

Think about that sentence in light of Barnette, Korematsu and Youngstown. It is the same Jackson. In each case the claim is that power must account for itself to law, whether the power belongs to a school board, a general, a President or a victorious coalition. The conquerors could have shot the defendants at dawn. Jackson insisted that they should be tried instead, with evidence and with counsel, and that the record should be made public so that no later generation could say it had been a lie.

What went wrong and what went right

The trial was not perfect, and Jackson was the first to say so. The Soviet Union sat as a judge on the tribunal while having been party to the Nazi-Soviet pact that divided Poland, and the Katyn massacre was attributed by the Soviets to Germany; critics then and since have pointed to the problem of victors' justice. There is a fair argument that the charges, especially the conspiracy count, were novel in international law, and that the principle against retroactive criminal law was strained. Jackson answered that the Kellogg-Briand Pact of 1928 had outlawed aggressive war and that the Nazi leaders could not claim surprise. Reasonable people still argue about it.

The cross-examination of Hermann Göring in March 1946 did not go well for Jackson. Göring was intelligent, well prepared and combative, and Jackson, who was used to appellate courts, was less at home in a duel with a hostile witness. The British prosecutor, Sir David Maxwell Fyfe, followed and did better. Jackson never pretended otherwise. That honesty fits the man.

The result, however, stands. The tribunal heard twenty-two defendants. It sentenced twelve to death, three to life imprisonment, four to terms of years and acquitted three. The judgment came on September 30 and October 1, 1946. A tribunal that acquits three defendants is not a firing squad with a stenographer. The acquittals are the evidence that the evidence mattered. Jackson returned to the Court that fall.

The feud and the unfinished business

Jackson's return was unhappy. During his absence, Chief Justice Harlan Fiske Stone had died, in April 1946, and Jackson had hoped to be named Chief Justice. Truman chose Fred Vinson instead. In the dispute that followed, Jackson sent a cable from Nuremberg to Congress and the President criticizing Justice Hugo Black over Black's participation in a case argued by his former law partner. The public quarrel between two justices was an embarrassment to the Court, and Jackson later regretted the form of it. I raise it because a profile that lists only triumphs is a brochure, and Jackson was a person. He was proud, he was combative and he was sometimes wrong.

He was a member of the Court that decided Brown v. Board of Education in May 1954, five months before he died. He had been hospitalized for much of the spring, and he returned to the Court on the day the decision was announced. He joined the unanimous decision, and he was present that day even though he was recovering from a heart attack. He died on October 9, 1954.

What Jackson teaches the next generation of conservatives

The lessons are four, and they apply to anyone who takes constitutional government seriously.

1. Credentials are not character. Jackson never graduated from law school and became the nation's finest judicial writer. The Founders had no law schools to speak of; they read law the way he did.
2. Power is the problem, regardless of who holds it. Jackson criticized the President who appointed him, the military that served him and the Court on which he sat. If we apply that standard to the other side and not to our own, we are not conservatives; we are partisans.
3. The emergency is where the damage is done. Both Korematsu and Youngstown arose from wartime claims of necessity, and in both Jackson's insight was that the Constitution's limits are tested hardest when they are most inconvenient. The text of Article I, Section 8 gives Congress the power to declare war and raise armies, and Article II makes the President the Commander in Chief. Neither one gives a President the power to run the economy by decree.
4. The rule of law is a promise that binds the strong. At Nuremberg the strong were the victors, and they submitted to law. The same promise runs from Magna Carta through Marbury, which is the arc traced in The Rule of Law Is Older Than the Constitution, From Magna Carta to Marbury.

Some will say a conservative should keep his distance from a New Deal lawyer. That misunderstands what we read for. We do not read the great judges for their politics. We read them for the sentences that survive, and Jackson wrote more of those than almost anyone. His reading of presidential power is the one the Court still uses, as it did in the dispute over presidential immunity discussed in Presidential Immunity in Trump v. United States, Read Like a Law Student. His Barnette sentence is the founding principle of every compelled-speech case. His Korematsu dissent is the standing warning against deference that is too easy.

And his career is an argument by example. A man with a year of law school and a gift for plain English sat on the bench, then left the bench, because he thought the cause of law was bigger than his own seat. That is the kind of public service the Founders hoped for when they imagined a republic whose officers would be citizens first.

The case in brief

1. Robert H. Jackson rose from a small-town law apprenticeship to Solicitor General, Attorney General, Supreme Court justice and chief American prosecutor at Nuremberg, which shows that the law rewards craft and conscience.
2. His opinions in Barnette (1943), Korematsu (1944, dissenting) and Youngstown (1952, concurring) defend the individual conscience, warn against precedents of emergency power and give the framework for the limits of presidential authority.
3. His opening statement at Nuremberg on November 21, 1945, called the decision to try, rather than shoot, the defeated leaders a tribute that Power pays to Reason.
4. He was not flawless: Wickard v. Filburn expanded federal power, his public feud with Justice Black was unwise and his cross-examination of Göring faltered, and an honest profile says so.
5. The thread through every case is that law exists to restrain power, whoever holds it.

What you can do: read Jackson's Youngstown concurrence and his Barnette opinion in full, which take a few minutes each and are free on the Supreme Court's website, then use the three-zone test the next time you hear a claim that the President can act alone.