My Review of G. Edward White's "Robert H. Jackson: A Life in Judgement"

 My Favorite Supreme Court Justice

Robert Jackson is my favorite Supreme Court justice. Here University of Virginia Law School professor G. Edward White brings to life one of the finest legal minds of the 20th Century in a detailed biography of his professional and personal life.  Unlike the current court which is dominated by snooty lawyers from Harvard and Yale, Jackson did not go to college, and he attended Albany Law School for only one year.  He read the law with a local lawyer which enabled him to pass the Bar Examination. We went on to become a leading public utility lawyer in New York.

 

Jackson grew up in a Democratic family in Jamestown, New York. Democrats were few and far between in western New York; Franklin Roosevelt, a rising politician took notice of him. When Roosevelt was governor, he asked Jackson to join the Public Service Commission, but he declined. Although Jackson represented most of the utility interests in western New York, he was so respected that consumer advocates supported him.

 

Roosevelt convinced him to come to Washington, first to the Internal Revenue Service and then to the Justice Department. He managed the high-profile Mellon tax case and helped write the Public Utility Holding Company Act of 1936. Later as Attorney General he helped draft the destroyers for bases deal and the Lend Lease Act. In late 1941 Roosevelt appointed him to the Supreme Court.

 

Most observers thought that Jackson would be a rubber stamp for New Deal laws and generally hew to an activist liberal position. That was not to be the case. However, in Wickard v. Filburn (1942) Jackson writing for a unanimous court declared that the Agricultural Adjustment Act of 1938 applied to a small farmer planting corn for his own use and hence was in violation of the Act. To me this stretched the power of Congress to regulate interstate commerce beyond a reasonable limit.

 

Jackson supported the court’s decision in West Virginia Board of Education v. Barnette (1943) which ruled that the state couldn’t compel a Jehovah’s Witness student to say the Pledge of Allegiance on free speech grounds. Simply put, the government can’t compel speech. In Korematsu v. U.S. (1944) Jackson dissented in a case that supported the government’s right to intern Japanese citizens on the west coast as a wartime measure.

 

Professor White brings out the long running feud Jackson had with Justice Hugo Black. They didn’t like each other from the beginning, and it exploded when Black refused to recuse himself in Jewel Ridge Coal v. United Mine Workers (1945). Black’s former law partner was the attorney for the mine workers and Black was one of the authors of the Fair Labor Standard Act of 1938 which was what the case was about. On a broader level he philosophically disagreed with Black’s and also Douglas’ result-oriented view of decision making. Jackson started at the bottom and worked his way up, while Black and Douglas started at the top and worked their way down to support their conclusions.

 

In 1945 Jackson took leave of the court, to become the Chief Prosecutor at the Nuremberg War Crimes Trials. Indeed, practically on his own, he created the full panoply of procedures that the tribunal would adopt. His goal was to bring justice to the Nazi war criminals with a modicum of procedural safeguards. Thus, it was far from a show trial.  Indeed, Nazi leader Hermann Goering actually tripped up Jackson during his examination. No matter, Goering committed suicide in his cell. To Jackson, his time at Nuremberg was the highlight of his career. He witnessed the obstinacy of the Soviet justices making him deeply suspicious of their motivations and the Nazi rise to power taught him to be very suspicious of authoritarians of all stripes.

 

Jackson return to the court in 1946. In perhaps one of his most important dissents in Terminiello v. Chicago (1949) he noted that the constitution is not a suicide pact. More specifically he wrote “…it will convert the constitutional Bill of Rights into a suicide pact.” Thus, he was not free speech absolutist in the tradition of Justice Black. He noted that “there was no unlimited freedom for dangerous speech.” That opinion, yet again, demonstrated what a fine legal writer he was.

 

In the late 1940’s and early 1950’s the Supreme Court got caught up in the growing Cold War tensions with the Soviets and the fear of communism domestically. Jackson supported the Smith Act and sustained the conviction of the leading members of the Communist Party in Dennis v. U.S. (1951). Later in 1953 he supported the conviction and the execution of the Rosenberg’s in the atomic spying case. (Rosenberg v. U.S. (1953)) White brings out the perfidy of Justice Douglas in his supporting the execution, but wanting to dissent to show off is civil liberties bona fides.

 

My favorite Jackson opinion is his in Youngstown Sheet and Tube v. Sawyer (1952), the steel seizure case. Here Jackson enunciated the rule concerning presidential power versus Congress that stands to this day. He divided the question into three parts. The first is where the president is strongest when he “acts pursuant of expressed or implied authorization of Congress.” Second where “Congress has not given or denied authority” is sort of a “twilight zone.” Third, the president is weakest when “he takes action incompatible with the expressed of implied will of Congress.” In case of the last, the courts should strictly scrutinize the presidential act. Jackson’s rule today is directly applicable to the current controversy over the War Powers Act.  Just to note Youngstown was about the domestic powers of the presidency, while the War Powers Act is concerned with foreign policy which gives the president more leeway.

 

The last major case Jackson dealt with was Brown vs. Board of Education (1954), the famous school desegregation case. Initially Jackson was ready to rule against Brown, and White goes through several detailed drafts where Jackson ultimately changed his mind. While the case was being deliberated Jackson suffered a heart attack. He was thinking about writing a separate concurring opinion questioning, in part, the decision, but was talked out of it by Justice Frankfurter.

 

Jackson died soon thereafter at the relatively early age of 61. Had he lived another decade, he along with Justice Frankfurter (See: Shulmaven: My Amazon Review of Brad Snyder's "Democratic Justice: Felix Frankfurter..........." ) could very well have functioned as a braking influence on the Warren Court. Jackson wanted to avoid political questions (i.e., redistricting), and he believed that the court was moving in the same direction as the Lochner and anti-New Deal courts of the 1930’s by substituting their personal values above the constitution. My guess is that had the court taken that path it would be far less controversial than it is today.

 

Robert Jackson was a legal giant. It is a shame our society seems incapable of producing someone like him today. Perhaps the current Justice Amy Coney Barrett, a Notre Dame graduate, comes closest to him.

The Redistricting Melee

Donald Trump started the redistricting melee by calling on Texas to undertake an unprecedented mid-census congressional redistricting to create five additional Republican seats. California Democratic Governor Gavin Newsom responded in kind by calling a successful referendum to redistrict California to create an additional five Democratic seats and the partisan war was on. It came crashing down for the Democrats in Virginia this week when their Supreme Court ruled their redistricting referendum unconstitutional. That plan would have created four more Democratic seats. Along the way Trump unseated candidates in Indiana's Republican primary that opposed his redistricting plan for the state.

Then of a sudden the U.S. Supreme Court declared parts of the Voting Rights Act of 1965 unconstitutional paving the way to redistrict a host of Black (Democratic) seats across the South. Tennessee and Louisiana have already acted. Further, by 2028 elections there will be a raft of redistricting across Democratic and Republican states. I don't know who the ultimate winner will be, but I do know the American voter will be the loser. Simply put voters should choose their politicians, not the other way around.

Meantime after being down in the dumps all year, the Republican Party now has some spring in its steps. To me their optimism and the Democrats pessimism is premature. Why? In a wave election, and if there is to be a wave, it will be the Democrats that sweep and instead of helping, redistricting will hurt because it dilutes a party's strength where it was presumably strong.(See: https://shulmaven.blogspot.com/2018/07/gerrymandering-wont-save-republicans-in.html ) Second, I would hope that the electorate gives a big F-You to both parties by voting Republican in California and Democratic in Texas. It maybe too much to hope for, but I fear that both parties are now circling the drain. We need something new.

The Purim War - Part 6, Cracks in the Home Front*

Although America’s blockade of the Persian Gulf is working causing oil storage problems in Iran, an implosion of its economy and a collapse of its currency, severe cracks in the home front have emerged. The 60-day clock of the War Powers Act has run out, and President Trump’s approval rating, with gas prices up nearly 50%, has declined to 37%, according to the latest poll. Indeed, beyond the wackos on the Right and the Left who are rooting for Iran, it seems that voices of the liberal establishment are implicitly supporting an Iranian victory. Why? Their hatred of Trump overwhelms all considerations of America’s security interests in the middle east region.

 

So, where do we go from here? Trump’s novel interpretation of the War Powers Act arguing that direct fighting between the U.S. and Iran ceased in early April, means that should hostilities resume a new 60-day clock would start. The ball is now in Congress’ court, but I would note Congress did nothing in 2011 when President Obama engaged in hostilities in Libya for six months. Further, every president since Nixon have has stated that the act is unconstitutional; it looks like we will once again be headed to the Supreme Court on the issue of executive power.

 

Meantime, Trump, and Chinese leader Xi are scheduled to meet in less than two weeks. This meeting has been postponed before, and it may yet be postponed again. Nevertheless, my guess is that meeting or no meeting, Trump will execute the new military plan to attack Iran’s infrastructure as a means to coerce Iran to yield on its nuclear program.

 

Beneath the surface the dynamics of the middle east are changing before us. The UAE is leaving OPEC and there seems to be a budding alliance between the UAE and Israel. Israeli troops are on the ground in the UAE to assist in its first ever deployment of its iron dome air defense system outside of the country.  Thus, it would be a foreign policy blunder of the first order for the U.S. to fail to achieve its fundamental war aims.

* See: Shulmaven: The Purim War- Part 5, Deadlock in the Strait of Hormuz*

AVB/EQR Merger: A Target on Their Backs

REITland is abuzz following a Bloomberg story that apartment behemoths AvalonBay and Equity Residential are talking merger. Such a tie-up would create an $80 billion apartment colossus. From an economic point of view, given the large geographic overlaps and the potential for large G&A savings, the merger would make a great deal of sense. In addition with the RealPage settlement both AVB and EQR lost the ability to engage in collusive practices. So instead of using RealPage, the new REIT would no longer have to collude; it would be one entity. 

However, from a political point of view, it would place a target on the back of the new entity. With high rents becoming a political flashpoint, populist politicians would place everything it does under a microscope and it would be continually harassed. Thus, if I were in the boardroom, I would think long and hard about the potential merger.

My Review of Barry Eichengreen’s "Money Beyond Borders"

 All Glory is Fleeting

U.C. Berkely economics professor Barry Eichengreen opens his history of global currencies with the “Nixon Shock” of 1971 which broke the dollar’s link to gold. (See my previous review of this event at Shulmaven: My Amazon Review of Jeffrey Garten's "Three Days at Camp David..........." ) I also reviewed a much lighter version of what Eichengreen discusses here earlier this year. ( See: https://shulmaven.blogspot.com/2026/01/my-review-of-david-mcwilliams-history.html )

 

Professor Eichengreen, the author of “Golden Fetters,” on the workings of the interwar gold standard, is a serious scholar of international monetary affairs. Here he is writing against the backdrop of a weakening U.S. dollar where the role of the U.S. dollar’s pivotal role in in the global monetary system is being called into question. This is far from the first time a preeminent international currency has been called into question. Eichengreen goes back in time to Athenian silver coins, the Roman denarius, the Florentine florin, the Dutch guilder, the Spanish “pieces of eight,” and the British pound sterling. All had their day in the sun and then faded away.

 

Although there were many idiosyncratic reasons for their demise, there were several common factors involved. The currencies lost their panache because of either internal or external political weakness and the willingness to engage in a debasement policy. Furthermore, as we moved closer to the modern era, Eichengreen notes that there has to be a credible lender of last resort. For example, as trade moved from the Mediterranean to the Atlantic the florin became less relevant and as British power outstripped that of the Netherlands, the guilder lost its relevance.

 

In discussing the rise and fall of currencies Eichengreen goes into great detail about the trading arrangements of the Florentine bankers who had correspondents across Europe at a time when communication was based on the speed of a horse. He also discusses the critical role of the Spanish Potosi silver mine in Bolivia that made Spain wealthy and it flooded Europe with liquidity. He also discusses how Britain’s Baring Brothers and Hope and Company of the Netherlands funded Thomas Jefferson’s Louisiana Purchase.

 

Now getting back to the fate of the dollar the question is how long will its “exorbitant privilege,” in the words of French finance minister Valerie Giscard d’Estaing, last? The privilege enables the U.S. to borrow in its own currency all the while remaining a safe asset for both private and public sector institutions. In 1971 the world said no more, but after a devaluation the dollar became even more prominent in the global monetary system. So, if the “Nixon Shock” didn’t break it, what would? To Eichengreen, even with all of the U.S.’s current domestic and international troubles there remains no alternative. I am sure the British and the Dutch had similar thoughts, but someone whispering in the ear of Secretary of the Treasury Scott Bessent, should tell him that all glory is fleeting.

The Purim War- Part 5, Deadlock in the Strait of Hormuz*

With the Iranians continuing to prevent shipping from leaving the Persian Gulf and the American Navy blockading the entrance to the Strait of Hormuz, it looks like fighting will resume after the ceasefire ends on Wednesday. To be sure the U.S. delegation is now enroute to Islamabad to negotiate; it remains to be seen if the Iranians will show up. Further it is not clear whether or not the Iranian team can bind the Revolutionary Guard (IRGC) to accept any terms they agree to. From the outside it looks like there is a division between the political and military factions of the government.

 

As we noted last week it is untenable for the U.S to accept Iranian control of the Persian Gulf and for Iran to maintain its uranium enrichment program. ( See: Shulmaven: "Millions for defense, but not one cent for tribute" ) Thus unless there is a change of heart on the part of the IRGC, a resumption in the fighting seems inevitable. A harbinger of that occurred today with the U.S. seizing an Iranian flagged ship in the Indian Ocean. Indeed, should the fighting resume, it will be taken to a more destructive level than we have seen thus far.

 

Thus, the party goers in Friday’s financial markets are likely to suffer a hangover when trading resumes on Monday.

 

*-See: Shulmaven: The Purim War - Part 4, The Ceasefire Fog*

My Review of Odd Arne Westad's "The Coming Storm: Power, Conflict......"

 War Clouds on the Horizon

In a previous blog I noted that we are living in a prewar era analogous to the runup to the start of World War II. (See: https://shulmaven.blogspot.com/2023/11/reliving-1930s-part-5.html ) Here Yale historian and global affairs professor Odd Arne Westad argues that a more appropriate analogy would be that of the prewar period approaching World War I. In many respects his argument parallels that of Graham Allison’s Thucydides Trap where the rise of China is inducing fear in the United States that has the potential to make war inevitable. ( See: https://shulmaven.blogspot.com/2017/08/my-amazon-review-of-graham-allisons.html ) Instead of the Balkans being the hotspot in the pre-1914 world, today we China-Taiwan, Israel-Palestine, Russia-Ukraine, and Pakistan-India. Anyone of which that could put the great powers in play.

 

In the pre-World War I era it was the rise of Germany that was threatening Britain, but Westad goes further by stating the bipolar world of the Cold War is over, and, in fact, we are now living in a multi-polar world with many strong regional actors such as India, Türkiye, Brazil and Iran.  He further analogizes that Russia is the Austria-Hungary of our day by being China’s junior partner. Similar to our time, the pre-World War I era was characterized by rising nationalism and a growing dissatisfaction with globalism. Fear and resentment were the motivating forces of the era. Sound familiar? 

 

My problem with Westad’s book is that he doesn’t offer real solutions, but who can, to the U.S.-China antagonism and for the regional hotspots. Because the book was written prior to the current Iran War, which has the potential for a great power conflict, Westad doesn’t have much to say.  There is also little discussion on the current revolution in military affairs involving drones and artificial intelligence which is greatly influencing the diplomatic chessboard. That said, if pre-World War I is the appropriate analog, we are in for trouble.