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.
