The Minneapolis Roots of ‘Nuremberg’

The movie Nuremberg has attracted largely positive reviews, although only modest box office returns—which is not surprising for a movie of such gravitas. The tale of the landmark post-World War II trial of the Nazi leadership had been mentioned as a leading candidate for several Academy Awards and was on the “shortlist” for a couple of them in minor categories.

Many knowledgeable observers were dismayed that it was not nominated for any awards to be bestowed at the annual gala in Los Angeles next month. Despite its absence from the awards ceremony, the movie remains one of the latest critically acclaimed films with ties to Minneapolis. In 2007, Minneapolis neophyte screenwriter Diablo Cody won an Oscar for her work on the movie Juno, a semi-autobiographical account of the growing pains of a teenager. Six years later, Minneapolis actor Barkhad Abdi was nominated for an Oscar for his supporting role as a villainous pirate in Captain Phillips, the Tom Hanks vehicle about an assault on an American vessel, although the Somali immigrant did not prevail.

‘Nuremberg’ Nexus

Like them, the movie Nuremberg has connections to Minneapolis. Its main nexus is that it is derived from the book The Nazi and the Psychiatrist, a compelling account written by Minneapolis author and historian Jack El-Hai. El-Hai, who lives with his wife and two daughters in the Uptown area of the city, served as an executive producer and advisor for the film.

It took a dozen years for his 2013 work to reach the silver screen, starring two past Academy Award winners: Rami Malek, as the real-life psychiatrist Dr. Douglas Kelley, who befriends, analyzes, and then turns against the Nazi chieftain Hermann Göring—Hitler’s second-in-command during the war—skillfully portrayed by Russell Crowe. Both are previous Oscar winners: Malek for his role as singer Freddie Mercury in 2018’s Bohemian Rhapsody and Crowe in 2000 for Gladiator.

Despite a few Hollywood liberties, the film is a largely true account focusing on the vacillating relationship between Kelley and Göring, a long-time Nazi, head of the Luftwaffe, and presiding officer of Hitler’s subservient legislative body, the Reichstag. The film is not to be confused with its 1961 predecessor, Judgment at Nuremberg, a star-studded movie that won a pair of Academy Awards, including Best Screenplay and Best Actor for Maximilian Schell. That earlier film was a more fictionalized account, focusing on Schell as the Nazis’ lead attorney and one of the tribunal’s judges, an American played by Spencer Tracy.

Jackson’s Joust

A subtext of the new movie concerns Supreme Court Justice Robert Jackson, who served as lead prosecutor in the trial. He developed the novel concept of an international tribunal to adjudicate war crimes, which had hitherto been undefined and never subject to litigation before the Nuremberg trial was conducted.

Jackson, on leave from his judicial duties, headed the prosecution, aided by attorneys from the consortium of major wartime European allies—Great Britain, the Soviet Union, and France. The trial was conducted in a historic courthouse that still stands, after postwar renovations, in the heart of Nuremberg. The Bavarian city was home to the annual Nazi rallies and was 90% destroyed by Allied bombings in the latter stages of the war. A replica of the structure and its courtroom was used in the movie, which was primarily filmed in Budapest, Hungary.

Jackson was selected for the prosecutorial lead role after a long career as a government prosecutor, including serving a short period as Solicitor General arguing cases before the U.S. Supreme Court and then as Attorney General in Franklin D. Roosevelt’s administration. A moderate on the decidedly liberal court of the day, he was known as a judicial craftsman. Jackson was described years later as the “best legal stylist of the 20th century” by no less an authority than conservative High Court Justice Antonin Scalia.

The trial involving charges against 24 Nazi leaders resulted in 19 convictions, three acquittals, and 12 death sentences. However, a pair of them—Göring and Nazi labor leader Robert Ley—cheated the hangman by committing suicide before they were to be hanged, each taking his own life by consuming a potassium cyanide pill obtained by unknown means.

As a predecessor to other war crime trials for lesser culprits that took place through the end of 1949 in Germany against 199 Nazi officials, along with similar trials conducted in Japan, the Nuremberg proceeding served as a precedent for modern-day prosecutions. It was the Nuremberg case that captured the most public attention at the time because it was the first of its kind and due to Jackson’s strong personality and prose. This is reflected in the movie, which reaches its dénouement in the courtroom clash between Jackson and Göring. The climactic portion, taken almost verbatim from the real trial transcript, features them jousting over Göring’s adherence to Nazi ideology and his defense that he was only “following orders,” despite being the perpetrator of many of the most heinous directives.

Desire Dashed

Jackson’s desire to become Chief Justice of the Supreme Court was, as depicted in the movie, dashed when the sitting Chief, Harlan Stone, died while Jackson was in Nuremberg. Roosevelt’s successor, President Truman—who had selected Jackson for the leading role at Nuremberg—passed over him and appointed an old congressional buddy, Fred Vinson, who had served a short stint as Secretary of the Treasury.

Minnesota Matter

After Nuremberg, Jackson returned to the Supreme Court and continued his involvement in a number of high-profile cases, generally exhibiting the liberal-to-moderate stance he had honed at the trial. He had dissented in the infamous West Coast Japanese internment case, Korematsu v. United States, and also in the court’s decision in West Virginia Board of Education v. Barnette, which allowed students to refuse to recite the Pledge of Allegiance on religious grounds under the First Amendment.

After the war, he also dissented in a pair of cases in which the Supreme Court allowed public financial aid to parochial schools, another hallmark of his liberal bent. Jackson was also involved in one major matter from Minnesota during the pre-Nuremberg days: a precedent-setting property tax case entitled Northwest Airlines, Inc. v. Minnesota. In this 1944 case, the locally based airline challenged a state law that imposed a personal property tax on all eleven aircraft in the Northwest fleet at that time.

The tax was challenged by the airline on grounds that it should be apportioned among the various states in which it operated. However, the High Court rejected the argument, deeming it too unwieldy to divide the tax among the states where Northwest flew. Jackson joined the majority decision but also wrote a separate concurrence asking for “help” from Congress to address the “mongrel” status of inter-jurisdictional taxation on property that moves between states. While expressing reservations, Jackson was content to adhere to the doctrine of permitting taxation by the “home port” where the business is located. Under that principle, with Jackson’s blessing, the High Court ruling allowed Minnesota to tax the fleet in its entirety.

Neither Jackson’s colleagues on the court nor Congress responded to his call for legislative assistance. A few years later, a similar case came before the tribunal dealing with a tax on airline equipment in Nebraska. Based on the Northwest precedent, the justices upheld the state’s refusal to apportion taxes. This time, however, Jackson was not as accommodating; he issued a dissenting opinion, elevating his previous concurring view into a refusal to join the majority.

Segregation Suit

Jackson continued on the High Court after Nuremberg for nearly a decade before he died suddenly of a heart attack at age 62, right before the beginning of the Court’s 1954–1955 term. Before passing, however, he joined the unanimous court in the spring of 1954 in the landmark Brown v. Board of Education, which invalidated racial segregation in public schools.

A forerunner of the Civil Rights Movement, the ruling overruled the 58-year precedent of Plessy v. Ferguson, which had permitted racial segregation in public facilities. While Jackson joined all of his colleagues in the ruling, one feature of the litigation later drew a great deal of attention. Jackson’s law clerk at the time was William Rehnquist, a recent graduate of Stanford Law School—an institution that has turned out a number of legal luminaries, including Sandra Day O’Connor and Warren Christopher.

While he was up for confirmation as Chief Justice in 1986, Rehnquist was confronted with a memorandum he had written to Jackson while the court was pondering the Brown case, in which Rehnquist urged upholding the Plessy doctrine of racial segregation. Jackson did not buy into it, nor did the senators who questioned Rehnquist 32 years later. The aspiring Chief Justice tried to retreat by claiming he was merely acting as a “devil’s advocate,” but he had a difficult time shedding the taint of that advocacy.

Jackson died shortly after the Brown decision and was replaced on the High Court by John Marshall Harlan II, a conservative who was the grandson of an earlier justice of the same name—the man who happened to be the only dissenting jurist in the Plessy case.

Jackson’s legacy lives on, amplified by the movie vivifying his role as a Nuremberg prosecutor. He is also recalled for his famous remarks on the High Court bench. In one, he opined that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” In another oft-quoted observation from 1953, he pointed out: “We are not final because we are infallible, but we are infallible only because we are final.”

Jurisprudence aside, Jackson proved in the Nuremberg trial—and in the movie—that his role in bringing a modicum of justice to Nazi barbarism was a singular achievement, as depicted in the book by Minneapolis author El-Hai. As for psychiatrist Kelley, he went on to a distinguished career as an author and educator, even hosting a television series about forensic psychiatry. However, he met a tragic end on New Year’s Day 1958 by emulating his Nazi antagonist, Göring: he committed suicide by ingesting potassium cyanide.