The Flags At Nuremberg
A Memoir by Alan Y. Cole* The Supreme Court Historical Society Quarterly, Volume XIX, Number 3, 1998
In 1949 I had the privilege of serving a one-year term as a law clerk to Supreme Court Justice Robert H. Jackson who had been the American (and chief) prosecutor at the War Crimes Trial in Nuremberg, Germany after World War II. This was the trial of the major Nazis when the war was over. The trial itself was held in the Palace of Justice in Nuremberg from which flew the flags of the four nations who were participating in the trial: the United States, England, France and the Soviet Union.
One day I was chatting casually with the Justice in his chambers at the Court and mentioned in passing, “when the flags at Nuremberg were at half staff.” Justice Jackson interrupted and said flatly, “The flags are Nuremberg never flew at half staff.” I explained that they had been so flown to mark the untimely death of General George S. Patton. The Justice was not persuaded. “The flags at Nuremberg never flew at half staff,” he repeated. “The Russians would never have lowered their flag to honor an American general, “ he asserted. I was certain he was incorrect. Indeed, I had a vague recollection that somewhere I had a photograph of the Palace of Justice with the flags at half staff.
I commenced a search at my home through hundreds of wartime photographs. After World War II had ended and while I was still in the Army, I had been stationed at Nuremberg during much of the trial. I had taken many photographs and these had been thrown together helter-skelter in old shoe boxes when I returned home. My search was finally rewarded when I came across a negative showing the Palace of Justice at Nuremberg with the four flags unmistakably flying at half staff. I took the negative to a professional photo shop and ordered a larger salon print. Then I had it framed. One day I took the framed picture in to Justice Jackson and said, “Here is a photograph of the Palace of Justice at Nuremberg with the flags at half staff.” I tried to keep the triumph out of my voice. He was silent, said absolutely nothing. But a short time later I noticed that the framed photograph had been hung on the wall above his shoulder, near his desk, in his personal office at the Court. I later learned from his secretary that he had hung the picture as a reminder to himself that he was not always correct, and that even he – a Supreme Court Justice and Nuremberg prosecutor – was fallible and could make a mistake like everyone else.
After awhile I became accustomed to the print on the wall in his chambers. When my clerkship was over, I left the Court and opened my own law office in downtown Washington and forgot all about the salon print. I had many other things on my mind.
Sometime after Justice Jackson’s death in 1954, a messenger from the Supreme Court appeared at my office with a package for me. It was the Nuremberg photograph. The Justice had left instructions, that upon his death, the picture was to be returned to me. I have hung the photograph on my law office wall, above my shoulder, near my desk, which is there it hangs now.
In 1953, in the case of Brown v. Allen, Justice Jackson pungently wrote: “We are not final because we are infallible, but we are infallible because we are final.” Justice Jackson had a way with words. This was a cogent way to say the Supreme Court was not the highest court because it was always right, but rather because there was no higher court to say that it had made a mistake. I have always thought that when the Justice wrote those marvelous words, he was looking at the picture on his wall of the Palace of Justice at Nuremberg with the flags at half staff.
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* Alan Y. Cole was a name partner of the firm Cole and Groner, P.C., in Washington, D.C. He clerked for Justice Jackson for one year before commencing private practice. A graduate of Yale Law School, Mr. Cole served as chairman of the Criminal Justice Section of the ABA. He died on September 25, 1984.
Transcribed by Charlene J. Peterson, 2004