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.