8 No. 77 JUSTICE The journalist William L. Shirer, observing a case in 1935, later wrote that “the proceedings were finished in one day, there was practically no opportunity to present defense witnesses (if any had dared to appear in defense of one accused of ‘treason’) and the arguments of the defense lawyers, who were ‘qualified’ Nazis, seemed weak to the point of ludicrousness.”24 Not surprisingly, in many cases such as treason, verdicts were effectively predetermined.25 The creation of the Special Courts (Sondergerichte) reinforced this transformation. These tribunals operated with truncated procedures and sweeping jurisdiction over political and racial offenses. Appeals were often unavailable. Sentences, frequently death, were imposed with remarkable speed.26 Judicial authority did not disappear; it was repurposed. The courtroom became a stage upon which the regime displayed its intolerance for dissent and promoted its racial ideology. Law did not recede before power but instead lent power its fullest vocabulary. D. The 1942 Directive and Formal Subordination In October 1942, Minister of Justice Otto Thierack issued a directive instructing judges to render decisions in accordance with the Führer’s will. What had operated through professional adaptation and ideological expectation was now formal policy. Judicial independence was no longer even nominally intact for sentencing guidelines. The distinction between adjudication and political enforcement collapsed.27 By this stage, deportations to ghettos and death camps were underway. Although mass murder occurred outside ordinary courtrooms, the judiciary had facilitated dispossession, imprisonment, and transfer through the routine application of racial and political law. The machinery of persecution was cumulative and institutional. From statute to sentence to murder, the path was legally structured. By the end of World War II, the question was no longer how judges had functioned within the regime, but whether those who administered its apparatus could claim innocence by invoking even a semblance of legality. IV. Judging the Judges: 1947 Nuremberg The Judges Trial marked an unprecedented moment in legal history. Sixteen jurists and officials of the Reich Ministry of Justice were charged under Control Council Law No. 10 with war crimes and crimes against humanity for their participation in the administration of Nazi law. The prosecution did not allege that the defendants had personally carried out killings. Rather, it charged that they had transformed the judicial system into an instrument of persecution.28 The trial lasted just under a year – from March to December 1947 – and included over 600 prosecution exhibits, 1,400 defense exhibits, and the testimony of more than 100 witnesses.29 At issue was the role of courts in sustaining a regime of discrimination, deportation, and death. The indictment alleged that discriminatory laws themselves formed part of a broader criminal plan, and that judges and ministry officials had deliberately contributed to its execution. In language that cut through formalism, the tribunal rejected the notion that the defendants’ acts could be viewed as isolated errors or technical miscarriages of justice. Their conduct had to be understood as part of a coordinated system of persecution carried out under color of law.30 The defendants’ principal defense was formal legality. They had applied valid German statutes. Judges do not enact laws; they interpret and enforce them. Responsibility, they argued, rested with political authorities. The Prosecution vigorously contested this reasoning. Telford Taylor argued that it was not technical compliance with enacted law but knowing participation in a legalized system of oppression.31 The tribunal ultimately agreed and the 24. Shirer, supra note 12, at 269. 25. Gellately, supra note 12, at 85-86; see also Müller, supra note 14, at 143. 26. Gellately, supra note 12, at 48. 27. Otto Thierack, “Letter to All Judges (Oct. 1942),” in RICHTERBRIEFE: DOKUMENTE ZUR BEEINFLUSSUNG DER DEUTSCHEN RECHTSPRECHUNG 1942–1944 9–10 (Heinz Boberach ed., 1975). 28. Supra note 3, at 1063–64. 29. “The Justice Case,” available at https://nuremberg.law.harvard.edu/nmt_3_intro 30. See Müller, supra note 14, at 271 (“Precisely because the men on trial were not fanatic National Socialists, the ordinary workings of the judicial system during the Third Reich were exposed to view, and it became clear to what extent the largely conservative legal profession … had been profoundly involved in the reign of terror.”). 31. Supra note 3, at 32.
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