Judges From The United States

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

"To bring in a lawyer means a real peril to solution of the crime because, under our adversary system, he deems that his sole duty is to protect his client—guilty or innocent—and that, in such a capacity, he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

"But we have grounds to assume also that the normal proportion of them are subject to that very human weakness, especially displayed in Washington, which leads men to "crook the pregnant hinges of the knee where thrift may follow fawning.""

"Under these circumstances, except for any personal humiliation involved in admitting that I do not always understand the opinions of this Court, I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."

"No one will question that this power is the most dangerous one to free government in the whole catalogue of powers. It usually is invoked in haste and excitement when calm legislative consideration of constitutional limitation is difficult. It is executed in a time of patriotic fervor that makes moderation unpopular. And, worst of all, it is interpreted by judges under the influence of the same passions and pressures. Always, as in this case, the Government urges hasty decision to forestall some emergency or serve some purpose and pleads that paralysis will result if its claims to power are denied or their confirmation delayed."

"The Court's reasoning adds up to this: The Commission must be sustained because of its accumulated experience in solving a problem with which it had never before been confronted! I give up. Now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.'"

"I do not know whether it is the view of the Court that a judge must be thick-skinned or just thick-headed, but nothing in my experience or observation confirms the idea that he is insensitive to publicity. Who does not prefer good to ill report of his work? And if fame — a good public name — is, as Milton said, the "last infirmity of noble mind", it is frequently the first infirmity of a mediocre one."

"[T]he effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom[...] This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse."

"Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. A citizen's presence in this locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four - the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason, but on parole - only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it."

"The physical power to get the money does not seem to me a test of the right to tax. Might does not make right even in taxation. To hold that what the use of official authority may get the state may keep, and that if it cannot get hold of a nonresident stockholder it may hold the company as hostage for him, is strange constitutional doctrine to me."

"A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser."

"As to ethics, the parties seem to me as much on a parity as the pot and the kettle. But want of knowledge or innocent intent is not ordinarily available to diminish patent protection."

"Civil liberties had their origin and must find their ultimate guaranty in the faith of the people. If that faith should be lost, five or nine men in Washington could not long supply its want."

"This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

"Our people do not want barren theories from their democracy. Maury Maverick has expressed very quaintly, but clearly, what they really want when he says: 'We Americans want to talk, pray, think as we please — and eat regular'."

"He loved his profession, he had a real sense of dedication to the administration of justice, he held his head high as a lawyer, he rendered and exacted courtesy, honor and straightforwardness at the Bar. He respected the judicial office deeply, demanded the highest standards of competence and disinterestedness and dignity, despised all political use of or trifling with judicial power, and had an affectionate regard for every man who filled the exacting prescription of the just judge. The law to him was like a religion, and its practice was more than a means of support; it was a mission. He was not always popular in his community, but he was respected. Unpopular minorities and individuals often found in him their only mediator and advocate. He was too independent to court the populace - he thought of himself as a leader and lawgiver, not a mouthpiece."

"Often his name was, in a generation or two, forgotten. It was from this brotherhood that America has drawn its statesmen and its judges. A free and self-governing Republic stands as a monument for the little-known and unremembered as well as for the famous men of our profession."

"The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us."

"I used to say that, as Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…"

"On your first appearance before the Court, do not waste your time and ours telling us so. We are likely to discover for ourselves that you are a novice but will think none the less of you for it. Every famous lawyer had his first day at our bar, and perhaps a sad one…. Be respectful, of course, but also be self-respectful, and neither disparage yourself nor flatter the Justices. We think well enough of ourselves already."

"Our forefathers found the evils of free thinking more to be endured than the evils of inquest or suppression. This is because thoughtful, bold and independent minds are essential to wide and considered self-government,"

"When the Court moved to Washington in 1800, it was provided with no books, which probably accounts for the high quality of early opinions."

"My philosophy has been and continues to be that [the Court] cannot and should not try to seize the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construction. While the line to be drawn between interpretation and legislation is difficult, and numerous dissents turn upon it, there is a limit beyond which the Court incurs the just charge of trying to supersede the law-making branches. Every Justice has been accused of legislating and every one has joined in that accusation of others. When the Court has gone too far, it has provoked reactions which have set back the cause it is designed to advance and has sometimes called down upon itself severe rebuke."

"When we went to school we were told that we were governed by laws, not men. As a result of that, many people think there is no need to pay any attention to judicial candidates because judges merely apply the law by some mathematical formula and a good judge and a bad judge all apply the same kind of law. The fact is that the most important part of a judge's work is the exercise of judgment and that the law in a court is never better than the common sense judgment of the judge that is presiding."

"Something happens to a man when he puts on a judicial robe, and I think it ought to. The change is very great and requires 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 - and I am not sure I have."

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."

"These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done- wanted crime eliminated-but also wanted the best in our American traditions preserved."

"Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."

"Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized department of justice. It is an unusual and rare instance in which the local district attorney should be superseded in the handling of litigation, except where be requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled. Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary."

"Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done."

"Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a. judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just."

"There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the eases in which he receives complaints. If the department of justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning, [sic!] What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain."

"If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

"In times of fear or hysteria· political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so called "subversive activities." They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a "subversive activity," such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as "subversive" by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as "subversive" the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term "Republican" and the term "Democrat" were epithets with sinister meaning to denote persons of radical tendencies that were "subversive" of the order of things then dominant."

"In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor."

"There is no reason to doubt that this Court may fall into error, as may other branches of the Government. Nothing in the history or attitude of this Court should give rise to legislative embarrassment if, in the performance of its duty, a legislative body feels impelled to enact laws which may require the Court to reexamine its previous judgments or doctrine. [Footnote 52] The Court differs, however, from other branches of the Government in its ability to extricate itself from error. It can reconsider."

"It is hardly lack of due process for the Government to regulate that which it subsidizes."

"The mere state of being without funds is a neutral fact — constitutionally an irrelevance, like race, creed, or color."

"The power of citizenship as a shield against oppression was widely known from the example of Paul's Roman citizenship, which sent the centurion scurrying to his higher-ups with the message: "Take heed what thou doest: for this man is a Roman.""

"No longer may the head of a state consider himself outside of the law, and impose inhuman acts on the peoples of the world."

"It is Mr. Mellon's credo that $200,000,000 can do no wrong. Our offense consists in doubting it."

"A Government to perform even a minimum of service to its people, must take steps to suppress avarice, to strike down privately built-up schemes of economic exploitation or oppression, to uproot privilege, and to assure justice and economic opportunity to the masses."

"Not every defeat of authority is a gain for individual freedom, nor every judicial rescue of a convict a victory for liberty."

"There is no such thing as an achieved liberty; like electricity, there can be no substantial storage and it must be generated as it is enjoyed, or the lights go out."

"For over a century it has been the settled doctrine of the Supreme Court that the principle of stare decisis has only limited application in constitutional cases. It might be thought that if any law is to be stabilized by a court decision it logically should be the most fundamental of all law -- that of the Constitution. But the years brought about a doctrine that such decisions must be tentative and subject to judicial cancellation if experience fails to verify them. The result is that constitutional precedents are accepted only at their current valuation and have a mortality rate almost as high as their authors."

"Lying has always been a highly approved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy. … Nor is the lie direct the only means of falsehood. They all speak with a Nazi double meaning with which to deceive the unwary. In the Nazi dictionary of sardonic euphemisms "Final solution" of the Jewish problem was a phrase which meant extermination; "Special treatment" of prisoners of war meant killing; "Protective custody" meant concentration camp; "Duty labour" meant slave labour; and an order to "take a firm attitude" or "take positive measures" meant to act with unrestrained savagery. … Before we accept their word at what seems to be its face value, we must always look for hidden meanings. … Besides outright false statements and those with double meanings, there are also other circumventions of truth in the nature of fantastic explanations and absurd professions. … The record is full of other examples of dissimulations and evasions. Even Schacht showed that he, too, had adopted the Nazi attitude that truth is any story which succeeds. Confronted on cross-examination with a long record of broken vows and false words, he declared in justification — and I quote from the record: "I think you can score many more successes when you want to lead someone if you don't tell them the truth than if you tell them the truth." This was the philosophy of the National Socialists. When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue that habit of a lifetime in this dock? Credibility is one of the main issues of this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same now. It is against such a background that these defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: "Say I slew them not." And the Queen replied, "Then say they were not slain. But dead they are..." If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime."

"It may well be said that Hitler's final crime was against the land he had ruled. He was a mad messiah who started the war without cause and prolonged it without reason. If he could not rule he cared not what happened to Germany. As Fritzsche has told us from the stand, Hitler tried to use the defeat of Germany for the self-destruction of the German people. He continued to fight when he knew it could not be won, and continuance meant only ruin... Hitler ordered everyone else to fight to the last and then retreated into death by his own hand. But he left life as he lived it, a deceiver; he left the official report that he had died in battle. This was the man whom these defendants exalted to a Fuhrer. It was they who conspired to get him absolute authority over all of Germany. And in the end he and the system they created for him brought the ruin of them all."

"These men saw no evil, spoke none, and none was uttered in their presence. This claim might sound very plausible if made by one defendant. But when we put all their stories together, the impression which emerges of the Third Reich, which was to last a thousand years, is ludicrous. If we combine only the stories of the front bench, this is the ridiculous composite picture of Hitler's Government that emerges. It was composed of: A No. 2 man who knew nothing of the excesses of the Gestapo which he created, and never suspected the Jewish extermination programme although he was the signer of over a score of decrees which instituted the persecution of that race; A No. 3 man who was merely an innocent middleman transmitting Hitler's orders without even reading them, like a postman or delivery boy; A Foreign Minister who knew little of foreign affairs and nothing of foreign policy; A Field-Marshal who issued orders to the armed forces but had no idea of the results they would have in practice … … This may seem like a fantastic exaggeration, but this is what you would actually be obliged to conclude if you were to acquit these defendants. They do protest too much. They deny knowing what was common knowledge. They deny knowing plans and programmes that were as public as Mein Kampf and the Party programme. They deny even knowing the contents of documents which they received and acted upon. … The defendants have been unanimous, when pressed, in shifting the blame on other men, sometimes on one and sometimes on another. But the names they have repeatedly picked are Hitler, Himmler, Heydrich, Goebbels, and Bormann. All of these are dead or missing. No matter how hard we have pressed the defendants on the stand, they have never pointed the finger at a living man as guilty. It is a temptation to ponder the wondrous workings of a fate which has left only the guilty dead and only the innocent alive. It is almost too remarkable. The chief villain on whom blame is placed — some of the defendants vie with each other in producing appropriate epithets — is Hitler. He is the man at whom nearly every defendant has pointed an accusing finger. I shall not dissent from this consensus, nor do I deny that all these dead and missing men shared the guilt. In crimes so reprehensible that degrees of guilt have lost their significance they may have played the most evil parts. But their guilt cannot exculpate the defendants. Hitler did not carry all responsibility to the grave with him. All the guilt is not wrapped in Himmler's shroud. It was these dead men whom these living chose to be their partners in this great conspiratorial brotherhood, and the crimes that they did together they must pay for one by one."

"The office of the lawyer, however poorly filled, is too delicate, personal and confidential to be occupied by a corporation."

"Each of these men made a real contribution to the Nazi plan. Each man had a key part. Deprive the Nazi regime of the functions performed by a Schacht, a Sauckel, a Von Papen, or a Goering and you have a different regime. Look down the rows of fallen men and picture them as the photographic and documentary evidence shows them to have been in their days of power. Is there one who did not substantially advance the conspiracy along its bloody path toward its bloody goal? Can we assume that the great effort of these men's lives was directed toward ends they never suspected?"