John Q. Barrett is a law professor at St. John’s in New York and a scholar of Justice Robert Jackson (pictured below).  He produces periodic e-mails about Justice Jackson that are often fascinating.  His most recent message deals with Jackson’s exchange with Judge Charles Wyzanski over the legitimacy of the Nuremburg trials of Nazi leaders after World War II, and I read it all the way through.  Because Prof. Barrett encourages the republication of his material, I include it in its entirety, with his permission.  (You can sign up to receive the Jackson-related e-mails through his home page).

Charles E. Wyzanski, Jr., was just short of his 27^th birthday when the new president, Franklin D. Roosevelt, in April 1933 nominated the young lawyer to serve as solicitor in the U.S. Department of Labor.  Wyzanski, a top graduate of Harvard College (1927) and Harvard Law School (1930), had been a student and now was a protégé of Professor Felix Frankfurter.  Wyzanski had briefly practiced law in Boston, then clerked in New York City for Judge Augustus Hand and then for Judge Learned Hand, both of the United States Court of Appeals for the Second Circuit (and cousins), and then returned to law practice in Boston.  Wyzanski, confirmed by the Senate, served as Labor solicitor until 1935 and then moved to the Office of the Solicitor General in the U.S. Department of Justice.  He was, across the 1930s, one of the most talented and significant of the young New Dealer lawyers.

Robert H. Jackson, fourteen years Wyzanski’s senior and no Harvard (or any college or law school) graduate, came to Washington and the Roosevelt administration, as chief counsel in the Treasury Department’s Revenue Bureau, in early 1934.  By 1935, Jackson had become one of the New Deal’s important lawyers and an FDR insider.  Jackson moved briefly to the Securities & Exchange Commission and then, in 1936, to the Justice Department.  He became one of the principal attorneys handling high stakes litigation, including defenses of new federal laws that were under constitutional attack.

Jackson and Wyzanski became acquainted and, in the mid-1930s, they became working colleagues and friends.  In spring 1937, for example, they divided the government’s Supreme Court oral argument time in the Social Security cases.  In Steward Machine Co.  v. Davis, they defended the constitutionality of Social Security’s unemployment insurance tax system.  In Helvering v. Davis, argued a month later, they defended the constitutionality of Social Security’s old age insurance system.  They won both cases.  National newspapers published a May 24, 1937, photograph of Jackson and Wyzanski, together and smiling, after the Court announced its decisions that afternoon.

In June 1941, Charles Wyzanski, then working for the National Defense Mediation Board (in, poetically, the Social Security Building), was among the first to congratulate then-Attorney General Jackson when he was nominated to the Supreme Court.  Wyzanski, writing longhand, was precise and prescient:

Dear Mr. Attorney General,

             Together with all your other friends I rejoice in your nomination to the Supreme Court of the United States.  I feel confident that you will add greatly to the prestige of that bench and that you will contribute significantly to the growth of public law.  But, more than that, because of your deep understanding of human impulses which govern society you will be able to keep the Court abreast of considered public opinion and will avoid a duplication of the 1933-1937 conflict you did so much to resolve.

                                                 Faithfully,

                                                             Charles E. Wyzanski, Jr. 

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Four years later, Justice Jackson, by appointment of President Truman, temporarily left the Supreme Court to serve as United States Chief of Counsel for the prosecution of Axis war criminals in the European theater.  Jackson assembled a small, very talented staff for that project, which of course became the Nuremberg trial.  His staff included a number of fine Boston lawyers.  Jackson might well have reached out to recruit Wyzanski, but by then he was in his fourth year of service as a United States District Judge in the District of Massachusetts.

In August 1945, the United States and Allied nations agreed to create a new entity, the International Military Tribunal (IMT), to try individuals and organizations accused of conspiracy, waging aggressive war, committing war crimes and committing crimes against humanity.  In October, Allied prosecutors charged twenty-four individuals and six organizations with such crimes.  On November 20, 1945, the trial began in Nuremberg, in the U.S. military occupation zone of the former Germany.  The next day, Jackson delivered his historic opening statement.  Over the following weeks, the United States presented its case, focusing on the defendants’ common plan and agreement—their conspiracy—to commit the substantive crimes.

Meanwhile, back in Boston, Judge Wyzanski delivered on December 12, 1945, a carefully composed lecture at the American Academy of Arts and Sciences.  For his topic, Wyzanski picked “The Nuremberg War Crimes Trial.”  In four single-spaced typed pages, he attacked the fairness and the legal legitimacy of the IMT proceeding.  Wyzanski’s lecture, later published in The Atlantic Monthly (April 1946), provided much fodder for Nuremberg critics.

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Justice Jackson stayed at Nuremberg until late summer 1946, missing an entire Term of the Supreme Court.  On July 26, 1946, Jackson delivered his closing argument.  On July 31^st, he left Nuremberg to return temporarily to the United States, to resume Supreme Court work before returning to Nuremberg to hear the IMT’s judgment in September.

Jackson reached Washington National Airport on Friday, August 2, 1946.  The next morning, he went to the Supreme Court to work.  He met his new colleagues (two had been appointed while he was away), began to unpack his new chambers, and started to work on an enormous backlog of reading, including briefs in more than twenty cases that had been put over for reargument to a full bench, accumulated petitions seeking Court review and, yes, the mail.

On Tuesday August 13^th, Jackson’s Court mail included a letter that Judge Wyzanski had penned two days earlier:

Dear Bob,

             You may perhaps be mildly interested to know that your article in The New York Times magazine section, Lon Fuller’s review of Buckland, Sheldon Glueck’s book and prolonged reflection have made me change the views I expressed before the American Academy of Arts and Sciences in December 1945, which were reprinted some months later in the Atlantic Monthly.

             I believe that your judgment in initiating and planning the Nuremberg trial was sounder than my original criticism.                    The main issue was whether to deal with the offenders summarily or to give them a public hearing with full opportunity to be heard.       And on that issue I am now persuaded you were right.

             As to certain subsidiary issues I probably still disagree with you.      But I see no point in going over that ground again.  My purpose is only to say that you have won my adherence to your basic principles on this as on so many other matters.

                                                 Faithfully,

                                                             Charlie.

Jackson composed and sent his reply before the day was done:

My dear Charlie:

             Few letters have ever given me more satisfaction than yours of August 11^th.  I have believed intensely in the Nurnberg trials and in you, and I felt that the general purpose of the trial was one that you certainly would approve if you were familiar with the whole picture.  Dr. Glueck himself, whom you credit with having helped to convert you, is a convert.  As you know, in his first book he was opposed to trying the defendants on a count charging aggressive war.  I may say that this is symptomatic for at the beginning of the trials many of the European powers were stand-offish about them.  As they went on and unfolded the story, they became cordial and towards the end the [legal] profession in Europe manifested its approval in many ways.

             I can well understand a good deal of skepticism about these trials in the early stages at the time when you first made your address.  It could hardly be known whether the defendants would be given an opportunity for a genuine defense.  Of course, a hearing that was less than fair would be worse than no hearing at all.  If anything, these hearings have erred on the side of over-indulgence toward the defendants, but I think that is a good thing at this time and in the first trial of its kind.

             Also, doubts as to whether we had legal evidence were quite permissible until the trial got underway.  Certainly no one expected such an avalanche of documents of unquestioned authenticity showing so clearly the aggressive intentions in starting the war, as well as the other crimes, such as deportations of civilian populations, persecutions of Jews and Christians, operation of concentration camps, and violations of the laws of war.  Here again, if as a matter of political policy we were going to convict these people without legal evidence, I would agree with you that it was far better to hold no hearing at all.

             Of course, it is hard to say what importance will be accorded to the Nurnberg trials.  But certainly our military victory is a sterile one if we cannot point to some moral victory which compensates for the enormous moral and material injury done by war.  The present attitudes do not indicate that we will find much in the peace treaties and perhaps not in the United Nations Organization.  However, the nations have agreed on a set of principles of criminal law and have cooperated in their application.  If their acceptance can become general, it would seem to constitute a moral victory which would make the sacrifices worthwhile.  If we do not find that in Nurnberg, I do not know where we shall look for it.

             I do hope that you will find opportunity to put your views in writing after more mature consideration.  I think it would greatly help toward salvaging something out of the present confusions.  On the chance that you have not seen the full text of the closing speech with footnotes, I am enclosing a copy.

             Should you be in Washington, I hope you will drop in when we can talk these things over at our leisure.  At all events, I value your letter highly.

                                                             Sincerely yours,

                                                                         /s/ Bob

That fall, Judge Wyzanski did put his views in writing.  He sent a draft to Jackson, who supplied comments.  Wyzanski later, for symmetry and fairness, published his reconsidered views in The Atlantic Monthly (December 1946).  Years later, he published both articles in his book Whereas:  A Judge’s Premises (1965, reprinted 1976), a very fine collection of some of his speeches and articles.

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 Some links—

•  a 1995 summary of Judge Wyzanski’s two articles on the Nuremberg trial:

www.theatlantic.com/past/docs/unbound/flashbks/nurember/nurem.htm;

•  Wyzanski’s first article, “Nuremberg:  A Fair Trial?  A Dangerous Precedent”:

www.theatlantic.com/magazine/archive/1946/04/nuremberg-a-fair-trial-a-dangerous-precedent/6492/; and

•  Wyzanski’s second article, “Nuremberg in Retrospect”:

www.theatlantic.com/magazine/archive/1946/12/nuremberg-in-retrospect/6493/.

Judge Wyzanski served as a United States District Judge for almost forty-five years.  He died at age 80, twenty-five years ago this week.

The Nuremberg principles embodied in the judgment of the IMT will, later this month, mark their sixty-fifth anniversary.

As always, thank you for your interest and please share this with others.