Keynote Address For The 1996 Days Of Remembrance
Capitol Rotunda, Washington D.C.,
April 16, 1996
By Stephen G. Breyer,
Associate Justice, United States Supreme Court
The law of the United States sets aside today, Yom Hashoah,
as a Day of Remembrance – of the Holocaust. On Yom Hashoah 1996, we
recall that fifty years ago another member of the Court on which I sit, Justice
Robert Jackson, joined representatives of other nations, as a prosecutor,
at Nuremberg. That city, Jackson said, though chosen for the trial because
of its comparatively well-functioning physical facilities, was then “in
terrible shape, there being no telephone communications, the streets full
of rubble, with some twenty thousand dead bodies reported to be still in it
and the smell of death hovering over it, no public transportation of any kind,
no shops, no commerce, no lights, the water system in bad shape.” The
courthouse had been “damaged.” Its courtroom was “not large.”
Over one door was “an hour glass.” Over another was “a large
plaque of the Ten Commandments” – a sole survivor. In the dock
21 leaders of Hitler’s Thousand Year Reich faced prosecution.
Justice Jackson described the Nuremberg Trial as “the most important
trial that could be imagined.” He described his own work there as the
most important “experience of my life,” “infinitely more
important than my work on the Supreme Court, or … anything that I did
as Attorney General.” This afternoon, speaking to you as an American
Jew, a judge, a member of the Supreme Court, I should like briefly to explain
why I think that he was right.
First, as a lawyer, Robert Jackson understood the importance of collecting
evidence. Collecting evidence? One might respond. What need to collect evidence
in a city where, only twenty years before, the law itself, in the form of
Nuremberg Decrees, had segregated Jews into Ghettos, placed them in forced
labor, expelled them from their professions, expropriated their property,
and forbid them all cultural life, press, theater, and schools. What need
to collect evidence with the death camps that followed themselves opened to
a world, which finally might see. “Evidence,” one might then have
exclaimed. “Just open your eyes and look around you.”
But the Torah tells us, There grew up a generation that “knew not Joseph.”
That is the danger. And Jackson was determined to compile a record that would
not leave that, or any other future generation with the slightest doubt. “We
must establish incredible events by credible evidence,” he said. And,
he realized that, for this purpose, the prosecution’s 33 live witnesses
were of secondary importance. Rather, the prosecutors built what Jackson called
“a drab case,” which did not “appeal to the press”
or the public, but it was an irrefutable case. It was built of documents of
the defendants “own making,” the “authenticity of which”
could not be, and was not “challenged.” The prosecutors brought
to Nuremberg 100,000 captured German documents; they examined millions of
feet of captured moving picture film; they produced 25,000 captured still
photographs, “together with Hitler’s personal photographer who
took most of them.” The prosecutors decided not to ask any defendant
to testify against another defendant, lest anyone believe that one defendant’s
hope for leniency led him to exaggerate another’s crimes. But they permitted
each defendant to call witnesses, to testify in his own behalf, to make an
additional statement not under oath, and to present documentary evidence.
The very point was to say to these defendants: What have you to say when faced
with our case – a case that you, not we, have made, resting on your
own words and confessed deeds? What is your response? The answer, after more
than 10 months and 17,000 transcript pages, was, in respect to nineteen of
the defendants, that there was no answer. There was no response. There was
nothing to say. As a result, the evidence is there, in Jackson’s words,
“with such authenticity and in such detail that there can be no responsible
denial of these crimes in the future and no tradition of martyrdom of the
Nazi leaders can arise among informed people.” Future generations need
only open their eyes and read.
Second, as a judge, Robert Jackson understood the value of precedent –
what Cardozo called “the power of the beaten path.” He hoped to
create a precedent that, he said, would make “explicit and unambiguous”
what previously had been “implicit” in the law, “that to
persecute, oppress, or do violence to individuals or minorities on political,
racial, or religious grounds… is an international crime… for the
commission (of which)… individuals are responsible” and can be
punished. He hoped to forge from the victorious nations’ several different
legal systems a single workable system that, in this instance, would serve
as the voice of human decency. He hoped to create a “model of forensic
fairness” that even a defeated nation would perceive as fair.
Did he succeed? At the least, three-quarters of the German nation at the time
said they found the trial “fair” and “just.” More
importantly, there is cause for optimism about the larger objectives. Consider
how concern for the protection of basic human liberties grew dramatically
in the United States, in Europe, and then further abroad, in the half-century
after World War II. Consider the development of what is now a near consensus
that legal institutions – written constitutions, bills of rights, fair
procedures, and independent judiciary – should play a role, sometimes
an important role, in the protection of human liberty. Consider that, today,
a half century after Nuremberg (and history does not count fifty years as
long), nations feel that they cannot simply ignore the most barbarous acts
of other nations; nor, for that matter, as recent events show, can those who
commit those acts ignore the ever more real possibility that they will be
held accountable and brought to justice under law. We are drawn to follow
a path once beaten.
Third, as a human being, Jackson believed that the Nuremberg trials represented
a human effort to fulfill a basic human aspiration – “humanity’s
aspiration to do justice.” He enunciated this effort in his opening
statement to the Tribunal. He began: “The wrongs which we seek to condemn
and punish have been so calculated, so malignant and so devastating, that
civilization cannot tolerate their being ignored because it cannot survive
their being repeated. 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 ever has paid to Reason.”
To understand the significance of this statement, it is important to understand
what it is not. Nuremberg does not purport to be humanity’s answer to
the cataclysmic events the opening statement goes on to describe. A visit
to the Holocaust Museum (or, for some, to the corridors of memory) makes clear
that not even Jackson’s fine sentences, eloquent though they are, can
compensate for the events that provoked them. But, that is only because, against
the background of what did occur, almost any human statement would ring hollow.
A museum visit leads many, including myself, to react, not with word, but
with silence. We think: There are no words. There is no compensating deed.
There can be no vengeance. Nor is any happy ending possible. We emerge deeply
depressed about the potential for evil that human beings possess.
It is at this point, perhaps, that Nuremberg can help, for it reminds us that
the Holocaust story is not the whole story; it reminds us of those human aspirations
that remain a cause for optimism. It reminds us that after barbarism came
a call for reasoned justice.
To end the Holocaust story with a fair trial, an emblem of that justice, is
to remind the listener of what Aeschylus wrote twenty-five hundred years ago,
in his Eumenides – where Justice overcoming the avenging furies, humanity’s
barbaric selves, promises Athens that her seat, the seat of Justice, “shall
be a wall, a bulwark of salvation, wide as your land, as your imperial state;
none mightier in the habitable world.” It is to repeat the Book of Deuteronomy’s
injunction to the Jewish People: “Justice, justice shall you pursue.”
And if I emphasize the role of Nuremberg in a story of the Holocaust, that
is not simply because Justice Jackson himself hoped that the trial “would
commend itself to posterity.” Rather, it is because our role –
the role of almost all of us – today in relation to the Holocaust is
not simply to learn from it, but also to tell it and to retell it, ourselves,
to our children and to future generations. Those who were lost said, “Remember
us.” To do that, to remember and to repeat the story is to preserve
the past, it is to learn from the past, it is to instruct and to warn the
future. It is to help that future, by leading them to understand the very
worst of which human nature is capable. But, it is also to tell that small
part of the story that will also remind them of one human virtue – humanity’s
“aspiration to do justice.” It is to help us say, with the Psalmist,
“Justice and Law are the foundations of Your Throne.”