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Post Is Chief Justice John Roberts "Compromised"?
Created by John Eipper on 10/24/21 3:27 AM

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Is Chief Justice John Roberts "Compromised"? (David Duggan, USA, 10/24/21 3:27 am)

Chief Justice Roberts has been "compromised" (George Aucoin, October 23rd) because he doesn't view the Supreme Court as the "least dangerous branch" of the government (Federalist No. 78, likely by Hamilton), but as a "co-equal branch" of the government, able to assert equal weight in the governmental processes.

The Obamacare decision was only one of those rulings, but it is illustrative. The Solicitor General, Donald Verrilli (his daughter went to Dartmouth), forswore any reliance on the Government's taxing authority as the way to sustain an unprecedented federal intrusion into individual lives. Roberts used that authority to uphold the statute, essentially deciding the case off the parties' framing of the issue. That is the very definition of an activist judiciary. His vote wasn't needed to sustain the "gay marriage" cases, Obergefell and Windsor (Kennedy was the decider), so he could vote his conscience and the law. His refusal to allow the appeal of the Texas AG's case challenging the 2020 election results, on procedural grounds, is further evidence of a casual approach to jurisprudence: had the case been decided on its merits, then the citizens of the United States would have had some understanding of how political the Court has become. Burying the case in what has come to be called the Supremes' "shadow docket" (when cases are given summary disposition without argument or adjudication on the merits) is further evidence of a "compromised" and "conflicted" personality.

William Rehnquist, Earl Warren, John Marshall, where are you?

JE comments:  David, care to venture an opinion on how history will judge the Roberts court?  With 16 years under his belt, Roberts will soon surpass the longevity of Rehnquist (18 years) and Burger (17).  John Marshall (34 years) holds the record, with the dreadful Roger Taney close behind at 28.

The Obamacare decision indeed appears to be the biggest burr in the saddle of conservatives.  David, you state above that Roberts has led both an "activist" court and a "casual" one.  How can we not see that as a contradiction?

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  • Chief Justice Roberts as "Compromised" Jurist (George Aucoin, -France 10/24/21 1:45 PM)
    David Duggan aptly points to several illustrative cases comporting Chief Justice John Roberts' judicial activism and compromised, conflicting influence as the Supreme's Chief Justice.

    Another case is June Medical Services v. Russo, 591 U.S. __(2020) a case originating in Louisiana. The law at the center of this decision was the Louisiana Unsafe Abortion Protection Act, enacted in 2014, which required doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of where the abortion was performed. Chief Justice Roberts joined the Court's four liberal justices (Breyer, Kagan, Sotomayor, Ginsburg) in order to strike down the Louisiana law, but thereby confirming to Conservatives that he was as capricious, conflicted and ideologically compromised as they feared he was.

    JE comments:  Capricious perhaps in the sense of ideological purity, but I would define "compromised" very differently.  Wouldn't that be when you know exactly how a Justice will vote in every case, not on the arguments or the legal precedents, but according to his or her thinking and prior beliefs?  Examples of this would be Clarence Thomas and Samuel Alito, and in his day, Antonin Scalia. Have any of these ever given a surprise vote?

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    • "Compromised" and "Casual" Jurists: John Roberts (David Duggan, USA 10/27/21 2:29 AM)

      In reference to the exchange between George Aucoin and John Eipper (October 24th), compromised in the judicial sense more commonly means that you're in someone's pocket, not that you will vote according to one school of thought or another.  Anybody practicing in Cook County, Illinois is well aware of this use of "compromised."

      Before joining the Court, John Roberts was a gun for hire, typically representing big business against the interests of the little guy. He did however represent the interests of 19 states in US v. Microsoft (largely on the parens patriae principle that under the Clayton Act, states have the right to pursue claims on behalf of their citizens--"parent of the fatherland"), certain gay rights issues and a Florida death penalty inmate who had killed eight people (hmm: the guy was juiced anyway). The Supremes never ruled on Microsoft and the case was settled after appeal to the intermediate federal court. Roberts is the first SCJ since William Howard Taft to have argued a significant number of cases before the Court he heads. Taft had been Solicitor General under William Henry Harrison.

      As to Roberts' "casual" approach to jurisprudence, some judges can be relied on to vote certain ways on certain issues (RBG, Sotomayor, Kagan on unrestricted abortion rights) and would take any case that presents a challenge to that. Roberts voted with Kagan, Sotomayor and Breyer to take the appeal of the failure of the lower courts to enjoin against enforcement of the Texas abortion law. His vote was not necessary: it was a throwaway and it would not have bound him to a later determination of the merits. This is what is now referred to as the "shadow docket" when the Court doesn't decide cases but allows the lower courts to issue opinions in the hope that they'll ultimately get it right (it almost happened in the "gay marriage cases"; the "circuit split" leading to Obergefell was 4-1 in favor of allowing the rite). Casual is consistent with "activist" when it serves Roberts' purpose, whatever that is.

      As to whether Alito, Thomas and (when alive) Scalia ever voted against type, that would require reading hundreds of opinions that I don't care to do. Contrary to popular belief, Scalia was quite "liberal" in his interpretation of the 4th Amendment's prohibition against unreasonable searches and seizures and wrote the opinion in US v. Jones holding that installing a wireless GPS tracker on a vehicle required a warrant. He also ruled that prohibiting recipients of unemployment compensation from using "sacramental" drugs on the controlled substances list, even when supposedly required by the recipient's religious persuasion, did not violate the 1st Amendment's "free exercise" of religion clause. Oregon v. Smith. Certainly that turned a few originalist heads who might have thought that "free exercise" means "free exercise."

      JE comments:  Taft and Roberts also share the distinction of becoming Chief Justice without having served previously as Associate Justice.  Earl Warren was also appointed directly to the top job.  David, were there any other such examples in modern times?  This factoid is not easily found on Google.

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      • Philip Louis Cronin and the US Expeditionary Force in Russia, 1918 (Patrick Mears, -Germany 10/28/21 3:47 AM)
        David Duggan (October 27th) mistakenly states that William Howard Taft was appointed Solicitor General by our ninth President, William Henry Harrison, whose term lasted only one month, from March 4th to April 4th, 1841. Taft was born in 1857--he probably wasn't even a gleam in his father's eye back then. [Apologies:  Taft was appointed by WH's grandson, President Benjamin Harrison--JE.]

        Second, son Eddie and I are putting together a very abbreviated history of the USA, via focusing on some of the lives of our relatives from the past and present. We plan to publish the work pursuant to a private contract with a publishing house and print a very small number for family and friends once we are done.

        I am doing the bulk of the research and writing, and Eddie is doing a fine job as editor. I am now starting the section on the Roaring Twenties and Prohibition, having just finished the part on the Great War. As a portion of this WWI piece, I just finished with a first draft about my cousin, Philip Louis Cronin, who as a Michigan Polar Bear was killed in a military engagement with the Soviet Red Army in 1918 south of the city of Archangel. I thought that WAISers might enjoy reading this short piece, which is attached below.

        Philip Louis Cronin (1891-1918) and His Fatal Service in Russia as a Member of the "Michigan Polar Bears"

        Philip Louis Cronin was my first cousin once removed, who had been born to Daniel Michael Cronin (1861-1931) and Eva M. Houghtaliing (1868-1967), in Lapeer Heights, Genesee County, Michigan. Philip Louis's father was a son of my great-grandfather, Philip John Cronin, and my great-grandmother, Mary O'Leary Cronin. Philip John's mother, Eva, was the descendant of Dutch settlers who settled in Coxsackie in the 17th century, but had migrated to southeast Michigan before Eva's birth. Philip was the eldest child in this family and had seven siblings, five sisters and two brothers. The 1900 US Census records state that in !900, Philip Louis was residing in Oregon Township, Lapeer County, Michigan and by 1910, he was living in Mount Morris Township, Genesee County, where his parents had a farm. By 1917, he had apparently moved to the small town of Flushing northwest of Flint, although in his Draft Registration Card he identified as his residence the home of his parents at 1505 Bennett Avenue, which structure still stands. Philip Louis registered for the draft on June 5, 1917, and on his Draft Registration Card, he stated that he was a "laborer" employed at "Buick Plant #7" in the city of Flint. This card describes him as "tall" and "slender" with dark blue eyes and light brown hair. Philip Louis was single then and would never marry on account of his untimely death in northwest Russia in the village of Kadish during the campaign of an American expeditionary force sent by President Woodrow Wilson in 1918 to fight side-by-side with British soldiers there against the Soviet Red Army and "Godless Communism." If this story sounds familiar, you will see upon further reading that it is.

        In early November, 1917, the Russian provisional government that had replaced Czar Nicholas II and led by Alexander Fyodorovich Kerensky had been overthrown and replaced in the "October Revolution" by a socialist government led by Vladimir Lenin and Leon Trotsky. Nevertheless, that was only the beginning of the struggle for control of Russia. As noted earlier, Trotsky and his delegation to a peace conference with Germany entered into a separate peace with the Central Powers and quit the war. However, other political forces including the "Whites," commenced intense armed conflict with the Soviet Red Army that did not end until the mid-1920s. See generally Johathan Smele, The "Russian" Civil Wars, 1916-1926: Ten Years that Shook the World, Oxford University Press (2016).

        The British and Winston Churchill pressured American President Woodrow Wilson to send American troops to the White Sea port of Archangel in Northwest Russia to assist the British army in creating and maintaining a defensive line between the Russian town of Onega on the southern arm of the White Sea to the town of Pinega on the river bearing the same name and west of Archangel. See generally Michael Kettle, Churchill and the Archangel Fiasco: November 1918 to July 1919, Routledge, London (1992), which may be read here:


        Wilson, bowing to British pressure, drafted, signed and circulated with the United States government an "Aide Memoire" dated July 17, 1918, which directed the sending of American troops to Archangel and Vladivostok to assist the British forces there. These two expeditionary forces consisted of approximately 13,000 troops, with 5,000 directed to Archangel and 8,000 ordered to Vladivostok. Both forces were under the overall command of United States Army General William Sidney Graves (1865-1940), who was a graduate of the United States Military Academy at West Point, New York and who later authored a book titled America's Siberian Adventure, 1918-1920, that was published in 1931.

        Sometime after his induction into the United States Army and completing his basic training at Fort Custer near Battle Creek, Michigan, Private First Class Philip Louis Cronin was assigned to the 339th Infantry Division, which primarily consisted of soldiers from the Detroit, Michigan area was nicknamed "Detroit's Own." This Division, along with the (i) First Battalion of the 310th Engineer Regiment, and (ii) the 337th Regiment, consisting of ambulance and a field hospital units. On July 26, 1918, Private First Class Philip Louis Cronin shipped out from the port of Hoboken, New Jersey with other American soldiers on the Italian passenger ship Taormina bound for the French port of Brest. This ship crossed the Atlantic Ocean in a convoy of other US troop ships escorted by two US Navy cruisers and two destroyers.

        After arriving at Brest, they transferred to a British ship to England, where they settled for a time at Camp Aldershot, thirty-five miles southwest of London. The entire American contingent bound for Archangel then took trains north to the English city of Newcastle upon Tyne, where they boarded the troop ships Tydeus, Nagoya and Somali bound for Archangel. Unfortunately during the crossing, there was an outbreak of the "Spanish Flu" on these ships and no medication to treat the infected troops. This medicine would be shipped to Archangel later. On September 4, 1918, the troops arrived in the port of Archangel, joining 2,000 other soldiers of British, French, Serbian and Polish nationalities. Upon arriving, the British commander of the overall expedition advised the assembled troops that their primary mission was to keep Archangel free from Soviet control. Sometime thereafter, the American contingent was officially named the "Allied Expeditionary Force North Russia."

        The Allied forces were then sent on missions to the south of the city in an attempt to expand their perimeter around Archangel, but these advances met with little success and were in most cases eventually turned back by the Red Army. On February 18, 1919, President Wilson directed his Secretary of War, Newton Baker, to withdraw all American troops from Archangel "at the earliest possible moment that weather conditions permit." By mid-April, 1919, all American troops had returned to the safe haven of Archangel and on June 3, 1919, these troops boarded vessels for the United States. Total American casualties resulting from this mission amounted to 213 men, of which nine were officers. Eighty-three soldiers were killed in action and 27 soldiers later died of their wounds. The remainder perished from disease and "other causes." One historian in a relatively recent publication labeled the mission as a failure due to the factors of severe winter weather, unfamiliarity of Allied troops with the terrain, an "ill-defined mission," and lack of troop enthusiasm:

        "By all accounts, outside of the exemplary performances of the officers and soldiers, the North Russia Expeditionary Force had failed. The undertaking began with a hazy, ill-defined mission, insufficient materials and manpower, and an inconsistent strategy that left soldiers deep in northern Russia's forests and swamps facing an angry foe who had far better knowledge of the climate and terrain. Soldiers from Great Britain and the other participating countries remained through the summer, when they, too, departed. By November 1919, the entire Allied North Russia Expeditionary Force was gone, and North Russia was in the hands of its anti-Bolsheviks once again. That government managed to hold on until February 1920, when it collapsed and its leaders fled."

        Gordon L. Olson, the former Grand Rapids, Michigan City Historian, in his Introduction to the memoirs of Godfrey L. Anderson, A Michigan Polar Bear Confronts the Bolsheviks: A War Memoir, William B. Eerdmans Publishing Company, Grand Rapids, Michigan (2010) at pages 12-13.

        Gordon Olson's Introduction continues with the contrast between the American response to and memory of this ill-fated adventure in Russia's frozen north country, which has been absent, except that the venture has generated a significant amount of historical commentary throughout the years. In addition, a memorial association based in the Detroit area conducts annual commemorations for the "Michigan Polar Bear" contingent centered around the "Polar Bear" section of White Chapel Memorial Park Cemetery in the city of Troy, Oakland County, Michigan, where the remains of Philip Louis Cronin rest in peace. Philip was killed in an engagement with Red Army troops in the small Russian village of Kadish (sometimes spelled "Kodish") approximately 110 miles south of Archangel. Unfortunately, I have been unable to locate any record of the circumstances surrounding the death of my first cousin, once removed, in the northern wastes of Russia.

        As an interesting postscript, the collective memory of Russians about these military engagements between Allied soldiers and those of the Red Army in 1918-1919 is altogether different than what Americans remember, which is virtually nil. When former Soviet Premier Nikita S. Khrushchev visited the United States in 1959, he was asked by an American news reporter why the Soviet Government labeled the American government as consisting of "warmongers," notwithstanding that America had never invaded Russia. Khrushchev jumped on the reporter's question and lectured him on the invasion that my cousin had been a part of. The then-Soviet Premier was quoted as follows:

        "We remember the grim days when American soldiers went to our soil headed by their generals to help our White Guard combat the new revolution. . . .All the capitalist countries of Europe and of America marched upon our country to strangle the new revolution. . . .Never have any of our soldiers been on American soil, but your soldiers were on Russian soil. These are the facts."

        Quoted in E.M. Halliday, When Hell Froze Over, p.305, IBooks, New York (2000).

        JE comments:  The logic when assembling the "Polar Bears" was to send boys accustomed to the cold--the force included Wisconsinites in addition to Michiganders.  And the cold of that winter 1918-1919 was unfathomable.  Young Philip Louis Cronin no doubt met his Maker wondering what the (frozen) hell he was doing in an undeclared war he never signed up for.  The Arctic expedition was a textbook military fiasco.

        Pat, White Chapel Cemetery is just a few miles from WAIS HQ, Royal Oak.  I promise to stop by soon to pay my respects to Cousin Philip Louis.

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        • Italians in Anti-Bolshevik Expedition, 1918-1919 (Eugenio Battaglia, Italy 10/28/21 10:15 AM)
          Very good post from Patrick Mears on the Allied troops in Russia, but it needs a small addendum.

          Italy also sent troops to Murmansk, arriving there on 2 September 1918 (2 days before the US contingent) via Newscastle. The expedition comprised 1350 men. Fifteen soldiers during the trip died due to the flu.

          Other Italian troops were sent to Kola, south of Murmansk, while in the Far East Italian troops were operating from Vladivostok.

          General Achille Bassignano, with Trentinians, Istrians, and Dalmatians originally enrolled in the Austro-Hungarian army and taken prisoner by the Russians, operated with the White Russian Forces of General Anton Denikin.

          Further, there was a small military mission in the Caucasus (Georgia).

          All troops were withdrawn back to Italy starting in August 1919 and completing in May 1920.

          PS: If you read history about WWI you read a lot about the US, British, and French troops. For WWII you read about Germans troops, but Italian troops are forgotten.

          JE comments: And unless you read Hemingway's A Farewell to Arms, you may not even know what side Italy fought on in WWI.  But the Italians bled both themselves and the Austrians dry with eleven (or twelve) battles on the same Isonzo River.  Talk about so many giving so much for so little.  As Eugenio Battaglia has pointed out in past WAIS posts, it was partly Italy's resentment for not receiving its share of war spoils that led it to switch sides for the rematch.  If Germany was a poor loser, Italy was a poor winner.

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          • The Czech Legion: Forgotten Troops of WWI (from Michael Frank) (John Eipper, USA 10/30/21 4:19 AM)
            Michael Frank writes:

            Following up on Eugenio Battaglia's post of October 28th, the most overlooked fighting force of WWI was the Czech Legion. The Czechs were part of the Austrian Empire before and during the war. At the time there was substantial separatist sentiment among the many nationalities that composed the Empire, and the Czechs were no exception. But at the start of the war, Czechs, Hungarians, Slovaks and many other nationalities fought as Austrians. Czech leaders living outside the Empire petitioned allied governments to recognize a Czech nation, and pressed for the formation of free Czech and Slovak legions to fight with the Allied armies.

            On the Eastern front, many Imperial Czech soldiers were captured, and many deserted. They were interred by the Russians, and the burden of maintaining them as POWs was substantial. So a deal was struck by which soldiers so willing could rejoin the war for the Allied side, and that Russia would support a Czech nation if victorious. A Czech Legion was formed within the Russian army. The Czechs were noted for their ferocity, which stemmed from the fact that they had no home unless they won the war.

            When the Russian government fell, the Legion was left not only without a sponsor, but without a nationality, as Austria was still fighting. An agreement was reached between Tomas Mazaryk and the Bolsheviks which allowed the legion to be evacuated via Vladivostok, provided they surrender. Not trusting the Bolsheviks, the Legion revolted and retained their vehicles and weapons. They remained a fighting force against the Bolsheviks, not quite with the Whites, but fighting in their own defense until 1920. The original concept of the Murmansk landings was that the Allies would link up with the Czech Legion and envelop Moscow. That clearly didn't happen, and the Czechs were left to their own devices. Unable to find safety by going west or north, they seized the Transsiberian railroad and fought a brilliant retreat all the way to Vladivostok. For a brief moment in 1919, the Czechoslovakian army controlled 3/5 of the world's land mass, from the Eastern front to the Pacific. From Vladivostok they were eventually evacuated by the US Navy.

            JE comments:  That 3/5 figure must refer to the Russian-Soviet land mass, not the whole world.  Regardless, I cannot think of another instance of such a powerful and stateless army fighting in a foreign land.  The Czechs were a major factor in the Russian civil war. 

            Our colleague Paul Pitlick frequently visits the Czech Republic.  Paul, do you know of any monuments to the Czech Legion, whose exploits were a significant "foundational" moment of Czech national identity?

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            • Hitler Wanted Czechoslovakia for Its Industrial Capacity (Paul Pitlick, USA 10/31/21 3:26 AM)
              The reason I like WAIS is for discussions like Michael Frank's and Ric Mauricio's of the same day. I've stopped reading the inane discussions about a certain ex-president, "socialism," etc. But it's a good time to discuss Czechoslovakia, where October 28 was the 103rd anniversary of its (her?) founding.

              I don't know much about Czech history. For example. I learned only recently about the "Parachutists," which is a story for another time (or if you Google that term, include "Czech"--it's an interesting story). I have several Czech friends who are among the most interesting people I know--they have monuments everywhere, like to the victims of Communism. I'll ask them about the Czech Legion.

              But I would like to expand one of Michael Frank's sentences: "Czechs, Hungarians, Slovaks and many other nationalities..." The Czechs were the largest ethnic group in the country, Germans were second, and Slovaks third. Apparently the non-Germans didn't trust the Germans much, so they tried to finesse them in the development of the new state. The (Czech) owner of the hotel where we stay in Prague told me that the Germans were not badly treated by the Czechs/Slovaks (of course), but in 1938 Hitler wanted the Czechoslovakian industrial capacity (which was not badly damaged by WWI) for his war effort--it wasn't about protecting the German minority.

              The Škoda factory in Plzeň was previously discussed on WAIS: http://waisworld.org/go.jsp?id=02a&objectType=post&o=136742&objectTypeId=100782&topicId=123

              JE comments:  As WAISer John Hesley wrote about the April 1945 Allied bombing attack on the massive Skoda works, the goal was not to eliminate its value to the already defeated Germans, but to prevent it from being of future use to the Soviets.  John's father would lose his life on that raid.  Click above for the details, and the link to the Smithsonian article on this fateful mission.

              October 28th is my wedding anniversary, in addition to Czech independence day!  I was never aware of this little coincidence.

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              • Czechoslovakia's Minorities: A Non-Viable State? (Eugenio Battaglia, Italy 11/01/21 2:27 AM)
                Unfortunately for politically correct history, the ethnic Germans of the Sudetenland did not want to be part of the "non-viable" Czechoslovakia after 1918.

                And not only them--just see the case of Slovakia, with the Communist independent republic in July 1918, the declaration of independence in March 1939, the federated Socialist Slovak Republic 1969-90, and finally the new independent Slovak Republic.

                The ethnic groups of infamous Czechoslovakia prior to the rectification of the Monaco Accords were:

                The dominant Czechs, although they were a minority in Czechoslovakia as a whole. I loved the sentence of Paul Pitlick, "The non-Germans didn't trust the Germans much, so they tried to finesse them." Wouldn't it have been easier to say "they oppressed them"?

                Consider too the already mentioned Germans of the Sudetenland, the Slovaks, the Poles united to Poland in 1939 (but this is forgotten), the Hungarians again united to Hungary in 1939, and finally the Ruthenians, Eastern Catholic Slavs, later within Hungary, as well as the Carpathian Ukrainians.

                The Skoda Industries of Pilzen have nothing to do with the Sudeten but, of course, all the industries of Bohemia and Moravia were useful to the German war machine.

                Do not forget that the construction of the infamous state of Czechoslovakia, desired mostly by France, was a blatant violation of the first of the 14 Points of President Wilson. Moreover, the 1938 Munich Accords were acclaimed by the majority of the world as a just accomplishment.

                Only a very few were against them for political reasons, of course, now, with the imperatives of politically correct thinking, almost everybody is against.

                Oh, by the way, the workers of Bohemia and Moravia in 1939-45 had better treatment and higher salaries than before.

                JE comments:  Is it possible to sympathize with the peoples who "benefited" from Hitler's redrawing of borders?  Caro Eugenio, most of us prefer to remain stuck in our old, politically correct ways.  What's more, Hitler did nothing but create puppet states in those areas not directly annexed by the Reich.  Are you saying that the Poles incorporated into the Generalgouvernement were happy about it?  The rump state was far worse off than Vichy France--essentially, one large labor camp.

                Having said that, the monstrous Heydrich did raise the Czechs' salaries, in a "carrot and stick" governing philosophy.  He wasn't exactly thanked for it.

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                • Mussolini Advocated for Poland in Letter to Hitler (Eugenio Battaglia, Italy 11/03/21 2:28 AM)
                  Commenting on my post of 1 November, our esteemed moderator rhetorically asked if I appreciated the existence of puppet states, and if I believe that the Poles were happy in the Generalgouvernement imposed by the Third Reich. 

                  I have always been against any type of puppet state.  Allies yes, lackeys never--not only in the last century but also at present.

                  Italy considered denouncing the Alliance Pact with the Third Reich on 18 March 1939 when the German troops were "invited" to Prague, but this was considered unwise, as despite having 20,000 workers building defenses on the borders with the Third Reich, the Italians did not consider themselves ready for a conflict.

                  Yet the Pact should have been denounced, hoping that Hitler would not have been too pissed off by Italy's third "Giro di Valzer," after the one on Morocco in 1911, and then the second one in 1915. Italy could not withstand a military action by the Germans, while France and the UK would only have been too happy to see a war between the two authoritarian powers.  

                  The case of Poland is different, given the problem of the self-determination of the people.  In 1939-'40 it was on the other side of the question of self-determination


                  As I have written earlier on WAIS, Mussolini in his letter to Hitler of 3 January 1940 defended Poland, reminding Hitler that in his Danzig speech he had praised the Polish soldier.  Mussolini requested that the Fuhrer permit a free Poland. Further, he added that such a measure would have been of great importance for peace, taking away any justification for the democracies to continue the war. Mussolini further wrote in his letter that the establishment of a Polish State would have been the definitive factor for peace, and warned the USA would have never allow democracy to be defeated. (This letter now is completely forgotten.) 

                  Hitler answered Mussolini, but ignored the problem of an independent free Poland.

                  Against the protest of the Germans, the Italian Fascist Government maintained its Embassy in Warsaw until just 20 days after the meeting of Hitler and Mussolini on 18 March 1940. During the existence of the Embassy in occupied Warsaw, the Embassy acted to protect, as far as possible, the Polish people.  They facilitated the emigration to Italy of the Jewish Alter family, the Chief Rabbi Gora Kalwaraya, etc.

                  More than 2000 people would pass through the Embassy and reach safety in Italy. Very active in these actions was a friend of Mussolini, Mrs. Luciana Frassati (1902-2007), the wife of the Polish Minister Jan Gawronski.  Among other things she arranged the expatriation of  Mrs. Helena Zubczewaska, wife of General Wladyslaw Sikorsky, PM of the Polish Government-in-exile in London.  See Frassati's book Il destino passa per Varsavia (Destiny goes through Warsaw). 

                  The fact the situation was not too bad for the workers in occupied Prague is proved by the practically nonexistent resistance of the Czechs.  The British were responsible for sending a group of terrorists (sorry, by now freedom fighters but always terrorists according to the International Conventions on war) from London to kill Heydrich, who traveled around without any military escort as the situation was peaceful. This assassination produced a lot of killings in retaliation, and did not improve the war situation, which with or without Heydrich would have ended in an Axis defeat.

                  JE comments:  The Heydrich assassination was like the 1942 Doolittle raid on Tokyo:  strategically meaningless, but a morale-booster for a demoralized people.  Still, Eugenio Battaglia's claim is irrefutable:  not killing Heydrich would not have changed the outcome of the war, and the hundreds (thousands?) of Czechs killed in retaliation would have survived.

                  Eugenio, I think I asked you this the last time the subject came up on WAIS, but is there an English translation of the 1940 Mussolini letter?  I'd particularly like to review the passage on the US "not permitting the defeat of democracy."

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                  • Mussolini's Letter to Hitler, January 3rd, 1940 (Eugenio Battaglia, Italy 11/06/21 4:21 AM)
                    In response to John E's question, I have no idea where you can find the translation of the letter of Mussolini to Hitler of 3 January 1940. I have the text of the original in the Opera Omnia of Mussolini.

                    However, if you search:

                    Sociale: lettere tra Hitler e Mussolini che fanno storia vera pocobello.blogpost.com-2015-05

                    ...you will find the letter in Italian and then you may have it translated. Let me know how this works out.

                    JE comments:  Here's what I found:


                    Curiously, there are many references to, and citations from, Mussolini's letter without ever showing the full text, much less a facsimile version.  Likewise in English, we have references such as this 1974 article:


                    Why, for such a significant document from the most-studied period in history, is there apparently no full text in English?  Maybe I've overlooked the obvious, but I'm still scratching my head.  Two specific questions:  is the letter genuine?  And if so, what might have happened if Hitler had followed Mussolini's advice to restore Poland's independence and thereby "neutralize" the war motivations of France and the UK?

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                    • Authenticity of Mussolini's Letter to Hitler, 3 January 1940 (Eugenio Battaglia, Italy 11/08/21 2:25 AM)
                      Oh, my goodness. John E asked, "Is the [Mussolini] letter genuine?"

                      This brief question is the worst "politically correct cancelling of the historical memory of a person that is not liked" that I ever have seen in the last 76 years. And I have seen quite a few of such things.

                      The January 3rd, 1940 letter is genuine. There are also the pages with the first draft and the corrections with Mussolini's handwriting. It is in the Opera Omnia of Mussolini 1959 and several other publications and in the archives. The authenticity is beyond any doubt.

                      However, we have to face the "politically correct" version of history according to victors, beginning with "De Bello Gallico" or the hieroglyphics of Ramses II and his tale of the battle of Qadesh, which we know is not the full truth but it is convenient to believe it.

                      For the politically correct, it is imperative to obliterate anything that was good and remember everything that was bad. Italy has become the leading specialist in this art. For example, our president in January 2018 said: "Fascism was a regime without any merits."

                      The wide diffusion of such letter from Mussolini would show him as a great knowledgeable leader and lover of the peace, the people, and culture, and well conscious of American potential. Under his orders, thousands and thousands of Jews were saved in Croatia, France, Greece, and Poland. Just remember also the 103 professors of the University of Jagellonska Krakow who reached Rome and presented Mussolini with a rare edition of the works of Stanislaw Wyspianski as a sign of their gratitude.

                      If Hitler would have followed the advice of Mussolini probably nothing would have changed, because the warmonger Churchill wanted the war and the destruction of Germany and of the new Italy. Instead in the remote possibility that peace would have been reached thanks to Mussolini's proposal, by now in the center of every Italian town, there would be a monument to Il Duce.

                      JE comments:  Eugenio, any chance you could forward the facsimile manuscript of the letter?  Then I'll put my skepticism to rest; promise.  I'm still dumbfounded that no scholar has fattened her or his CV with an English translation and/or "critical edition" of such a historically significant document.

                      Eugenio Battaglia raises a profound "what if"?  If Mussolini's appeals to Hitler had been successful, would Il Duce now be remembered as Napoleon is in France?  Although this is an imperfect analogy:  Napoleon ultimately lost, yet is still revered.

                      [Yesterday I took a rare WAIS "Holiday."  There was very little content to post, and I was also on the road during most of the day.  Won't happen again anytime soon; promise.]

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            • Polish Long March (from Michael Frank) (John Eipper, USA 10/31/21 3:51 AM)

              Michael Frank writes:

              John E cited the Czech Legion as the most noteworthy example of "powerful and stateless army fighting in a foreign land."  He asked if there were any similar cases in history.

              The only other example I know of arose under similar circumstances,
              in fact, almost identical circumstances. In 1941, Hitler abrogated
              the Ribbentrop pact by invading Russia. Pressured by their British
              allies, the Russians came to an agreement with Sikorski's Polish government-in-exile. The agreement set aside Soviet territorial claims on Poland
              and committed the Soviets to recruiting a Polish army from among
              nearly a million Polish internees in Siberian work camps. The
              recruitment effort was hampered by a shortage of Polish officers. As
              would be discovered later, the Soviets had executed most of the
              Polish leadership, who lay buried in Katyn Woods.

              The Polish corps
              was led by Polish General Wladyslaw Anders, who was released from a
              year-long interrogation and placed in command of what would be
              remembered in history as Anders' Army. The army marshaled in Buzuluk and Uzbekistan. Like the Czechs before
              them, the Poles found Stalin to be a dubious partner, and
              successfully petitioned for transfer to British command. In all,
              about 120,000 men, women and children eventually made their way to
              British-controlled Iran by foot, train, truck or boat. Women and
              children were placed in settlement camps, and the armed force of
              77,000 continued marching. The journey took Anders' Army through Iraq
              and Jerusalem, where three thousand Jewish fighters (including
              Menachem Begin) were quietly allowed to desert. These soldiers became
              the seed of the Israeli military. From Jerusalem, they marched across
              Egypt and Libya, finally joining the allied armies in Italy.

              journey from Siberian prison, thorough the Middle East and north
              Africa on to Italy and into action against the Gustav line covered at
              least 7500 miles. It may be the longest march in history.

              JE comments:  The Anders force would go on to be very effective in the Allied campaign up the Italian peninsula.  By comparison to the Anders march, Mao's Long March was a mere 5600 miles.  Unusual for a Polish hero, Anders was a Lutheran, of German ancestry.  The Evangelical Church of the Augsburg Confession in Poland still has some 61,000 members.  A very long name for a very small church.  I must investigate further.

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      • Chief Justices Who Were Never Associate Justices (David Duggan, USA 10/28/21 4:30 AM)

        Defining "modern times" as my lifetime (nearly 70 years), there have been five Chief Justices of the Supreme Court: Fred Vinson (1946-53), Earl Warren (1953-69), Warren Burger (1969-86), William Rehnquist (1986-2005) and now John Roberts.

        Four of them had never sat on the Court before: Vinson, Warren, Burger and Roberts. That's a pretty high average. Indeed, when Rehnquist was nominated, he observed that it was unusual for a 58 year-old to be given a new job, and that the record of associate justices elevated to the chiefdom was at best mixed: old animosities die hard (e.g., Harlan Stone whom by folklore William O. Douglas detested and Felix Frankfurter thought was a moron). Going back a bit, Charles Evans Hughes was nominated to be CJ in 1930, 14 years after he had resigned from the Court to run for president against Woodrow Wilson.

        Notable first-timers to the Court as the CJ include John Marshall (1801-35), Roger Taney (1836-64), and Dartmouth grad Salmon P. Chase (1864-73). If there's any unifying theme to being named CJ out of the box it is having had a political career apart from the judiciary: Secretary of State (Marshall; Hughes); Secretary of the Treasury (Chase, Taney [recess], and Vinson); or governor (Warren, Chase). Both Marshall and Vinson had been Congressmen and Chase a Senator.

        And of course, the first CJ, John Jay had to be appointed without prior service, since the Court didn't exist before the Constitution.

        JE comments:  Rehnquist threw me off on my assumptions.  Promoting from within is actually the exception, not the rule.  David Duggan points out a trait in human psychology that applies across the board (even to the US Supreme Court):  seeing a colleague become your superior is a formula for resentment.

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  • Chief Justice Roberts is an Advocate, Not a Team Leader (Francisco Wong-Diaz, USA 10/25/21 2:30 AM)
    In evaluating and "judging" SCOTUS Justice Roberts' performance, I have always kept in mind that he was a very successful practicing attorney who appeared perhaps more times than any other lawyer before the US Supreme Court.

    As the Chief Justice, his performance has reflected his legal experience as an advocate for a position more than as a team leader, legal scholar or academic.

    JE comments:  Chief Justice Roberts argued 39 cases before the Supreme Court, which is impressive, but many attorneys have tallied more.  According to a web search, Carter G. Phillips, in private practice, has argued 79.  Can't say I know anything about him.  Thurgood Marshall had 32 appearances, which is close to Roberts' total.

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    • Carter G Phillips: 79 Appearances in the Supreme Court (David Duggan, USA 10/26/21 2:00 AM)
      Carter Phillips, Northwestern University Law School '77, was 2 years ahead of me in law school.

      I didn't know him, but after clerkships for Judge Robert Sprecher of the 7th Circuit (Chicago) and Chief Justice Warren Burger, and a stint in the Solicitor General's office (the division of the DoJ that argues cases in front of the Supreme Court), he has spent his career at Sidley Austin's Washington DC office. He is one of the few lawyers to have argued at all 13 US Courts of Appeals (11 geographic, the Federal Circuit, and the DC Circuit--which handles mostly administrative agency appeals).

      Not bad for someone without "Ivy League" credentials: his undergraduate degree is from the Ohio State University, also alma mater to one of the most brilliant legal minds I've ever encountered, Prof. Harry Reese at NULS, whose classes in civil procedure, conflicts of laws and federal jurisdiction were referred to as Space 1-4. Reese also argued cases at the Supreme Court, as a side gig, and was one of the clerks for the Hon. Harrie B. Chase (2d Cir., Brattleboro Vermont) who authored the appellate opinion upholding Alger Hiss's conviction. In the annals of the law, this opinion is regarded as one of the most cogent.

      JE comments:  The degrees of connection never stop.  For his part, Alger Hiss was a dinner companion to our own Leo Goldberger:


      Standing before the Supremes must be the most exhilarating, as well as terrifying, experiences a litigator can imagine.

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