Robert H. Jackson

Robert H. Jackson
Associate Justice of the Supreme Court of the United States
In office
July 11, 1941 – October 9, 1954
Nominated by Franklin Roosevelt
Preceded by Harlan Stone
Succeeded by John Harlan
57th United States Attorney General
In office
January 18, 1940 – August 25, 1941
President Franklin Roosevelt
Preceded by Frank Murphy
Succeeded by Francis Biddle
24th United States Solicitor General
In office
March 1938 – January 18, 1940
President Franklin Roosevelt
Preceded by Stanley Reed
Succeeded by Francis Biddle
United States Assistant Attorney General for the Antitrust Division
In office
1937–1938
President Franklin Roosevelt
Preceded by John Lord O'Brian
Succeeded by Thurman Arnold
Personal details
Born Robert Houghwout Jackson
(1892-02-13)February 13, 1892
Spring Creek, Pennsylvania, U.S.
Died October 9, 1954(1954-10-09) (aged 62)
Washington, D.C.
Political party Democratic
Education Albany Law School

Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American attorney and judge who served as an Associate Justice of the United States Supreme Court. He had previously served as United States Solicitor General, and United States Attorney General, and is the only person to have held all three of those offices. Jackson was also notable for his work as the Chief United States Prosecutor at the Nuremberg Trials of Nazi war criminals following World War II.

Jackson was admitted to the bar through a combination of reading law with an established attorney, and attending law school. He is the most recent justice without a law degree to be appointed to the Supreme Court. Jackson is well known for his advice that, "Any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances",[1] and for his aphorism describing the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final."[2] Jackson developed a reputation as one of the best writers on the Supreme Court, and one of the most committed to enforcing due process as protection from overreaching federal agencies.

Early life

Jackson was born on a family farm in Spring Creek Township, Warren County, Pennsylvania on February 13, 1892, and was raised in Frewsburg, New York.[3] The son of William Eldred Jackson and Angelina Houghwout, he graduated from Frewsburg High School in 1909[4] and spent the next year as a post-graduate student attending Jamestown High School, where he worked to hone his writing skills.[5]

Jackson decided on a legal career; since attendance at college or law school wasn't a requirement, if a student learned under the tutelage of an established attorney, at age 18, he began to study law with the Jamestown, New York firm in which his uncle, Frank Mott, was a partner.[6] His uncle soon introduced him to Franklin Delano Roosevelt, who was then serving as a member of the New York State Senate. Jackson attended Albany Law School from 1911 to 1912.[7] At the time, students at Albany Law School had three options: taking individual courses without receiving a degree; completing a two-year program and receiving an LL.B. degree; or demonstrating the knowledge required of a first-year student and then taking the second year of the two-year program, which produced a certificate of completion.[8] Jackson chose the third option; he successfully completed the second-year courses, and received his certificate in 1912.[8]

After completing the year at Albany Law School, Jackson returned to Jamestown to complete his studies.[6] He passed the bar examination in 1913, and then joined a law practice in Jamestown.[6] In 1916, he married Irene Alice Gerhardt, in Albany.[9] In 1917, Jackson was recruited to work for Penney, Killeen & Nye, a leading Buffalo firm, primarily defending the International Railway Company in trials and appeals.[6] In late 1918, Jackson was recruited back to Jamestown, in order to serve as the city's corporation counsel.[6]

Over the next 15 years, he built a successful practice, and became a leading lawyer in New York State; he also enhanced his reputation nationally, through leadership roles with bar associations and other legal organizations.[6][10] In 1930, Jackson was elected to membership in the American Law Institute; in 1933, he was elected Chairman of the American Bar Association's Conference of Bar Association Delegates (a predecessor to today's ABA House of Delegates).[11]

Jackson became active in politics as a Democrat; in 1916, he spearheaded Jamestown's local Wilson for President organization.[12] In the years during and after World War I, he was a member of the New York State Democratic Committee.[13] He also continued his association with Roosevelt; when Roosevelt served as Governor of New York from 1929 to 1933, he appointed Jackson to a commission which reviewed the state judicial system and proposed reforms.[14] Jackson also turned down Roosevelt's offer to appoint him to the New York Public Service Commission, because he preferred to remain in private practice.[15]

Federal appointments, 1934–1938

In 1932, Jackson was active in Franklin Roosevelt's Presidential campaign as Chairman of an organization called Democratic Lawyers for Roosevelt.[16] (Another Robert H. Jackson was also active in the Roosevelt campaign.[17] This Jackson (1880-1973) was Secretary of the Democratic National Committee, and was a resident of New Hampshire.)[18]

In 1934, Jackson agreed to join the Roosevelt administration; he served initially as Assistant General Counsel of the U.S. Treasury Department's Bureau of Internal Revenue (today's Internal Revenue Service), where he was in charge of 300 lawyers who tried cases before the Board of Tax Appeals.[19] In 1936, Jackson became Assistant Attorney General, heading the Tax Division of the Department of Justice, and in 1937, he became Assistant Attorney General, heading the Antitrust Division.[20]

Jackson was a supporter of the New Deal, litigating against corporations and utilities holding companies.[21] He participated in the 1934 prosecution of Samuel Insull,[22] the 1935 income tax case against Andrew Mellon,[23][24][25] and the 1937 anti-trust case against Alcoa, in which the Mellon family held an important interest.[26]

U.S. Solicitor General, 1938–1940

In March 1938, Jackson became United States Solicitor General, serving until January 1940, as the government's chief advocate before the Supreme Court.[27] During his time in this post, he argued 44 cases to the Supreme Court on behalf of the federal government, and lost only six.[28] His record of accomplishment caused Justice Louis Brandeis to once remark that Jackson should be Solicitor General for life.[29]

Roosevelt regarded Jackson as a possible successor to the Presidency in 1940, and worked with his staff on an effort to raise Jackson's public profile.[30] Their plan was to mention Jackson favorably in Presidential remarks as often as possible, and to have Jackson take part frequently in Roosevelt's public appearances.[30] Roosevelt and his advisers next intended for Jackson to become the Democratic nominee for Governor of New York in 1938. They abandoned their effort to create a groundswell of support for Jackson's gubernatorial candidacy when they ran into resistance from state Democratic Party leaders.[30] In addition, Roosevelt's decision to run for a third term in 1940 rendered moot the need to identify and promote a successor.[30] Instead of running for Governor or President, Jackson joined Roosevelt's cabinet when he was appointed as Attorney General.[30]

U.S. Attorney General, 1940–1941

Jackson was then appointed to be the 57th Attorney General of the United States by Roosevelt, on January 4, 1940, replacing Frank Murphy. As Attorney General, Jackson supported a bill introduced by Sam Hobbs, that would have legalized wiretapping by the Federal Bureau of Investigation (FBI), or any other government agency, if it was suspected that a felony was occurring.[31] The bill was opposed by Federal Communications Commission (FCC) chairman James Lawrence Fly, and it did not pass.[32]

While Jackson was Attorney General, he helped President Roosevelt organize the Lend-Lease agreement, which allowed the United States’ to supply materials to help with the war effort to the other Allied forces, before formally entering World War II.

U.S. Supreme Court, 1941–1954

When Harlan Fiske Stone replaced the retiring Charles Evans Hughes as Chief Justice in 1941, Roosevelt appointed Jackson to the resulting vacant Associate's seat. The nomination was sent to Congress on June 12, 1941, and Jackson was confirmed by the United States Senate on July 7, 1941, receiving his commission on July 11, 1941. Robert H. Jackson was the 82nd Associate Justice of the Supreme Court, where he was known for his eloquent writing style and championing of individual liberties.

In 1943, Jackson wrote the majority opinion in West Virginia State Board of Education v. Barnette, which overturned a public school regulation making it mandatory to salute the flag, and imposing penalties of expulsion and prosecution upon students who failed to comply. Jackson's stirring language in Barnette concerning individual rights is widely quoted. Jackson's concurring opinion in 1952's Youngstown Sheet & Tube Co. v. Sawyer (forbidding President Harry Truman's seizure of steel mills during the Korean War to avert a strike), in which Jackson formulated a three-tier test for evaluating claims of Presidential power, remains one of the most widely cited opinions in Supreme Court history. (It was quoted repeatedly by Supreme Court nominees John Roberts and Samuel Alito, during their confirmation hearings.)

Feud with Hugo Black

Justices Jackson and Hugo Black had profound professional and personal disagreements dating back to October 1941, the first term during which they served together on the Supreme Court. According to Dennis Hutchinson, editor of The Supreme Court Review, Jackson objected to Black’s practice of importing his personal preferences into his jurisprudence.[33] Hutchinson quotes Jackson as having remarked, “With few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties.”[34] While Hutchinson points out that Jackson objected to Black's style of jurisprudence in such cases as Minersville v. Gobitis (1940) and United States v. Bethlehem Steel (1942), Black’s involvement in the Jewell Ridge case struck Jackson as especially injudicious.

In Jewell Ridge Coal Corp. v. Mine Workers (1945), the Supreme Court faced the issue of whether to grant the coal company’s petition for a rehearing, on the grounds that the victorious miners were, in a previous matter, represented by Crampton P. Harris, who was Justice Black’s former law partner and personal lawyer. Despite this apparent conflict of interest, Black lobbied the Court for a per curiam denial of the petition. Justice Jackson objected, with the result that Jackson filed a concurrence disassociating himself from the ruling and, by implication, criticizing Black for not addressing the conflict of interest. Jackson also strongly objected to Black’s judicial conduct in Jewell Ridge for another reason. As Jackson later alleged, while Justice Murphy was preparing his opinion, Black urged that the court hand down its decision without waiting for the opinion and dissent. In Jackson’s eyes, the "...only apparent reason behind this proposal was to announce the decision in time to influence the contract negotiations during the coal strike" between the coal company and the miners, which were taking place at the time.[35]

Jackson probably regarded Black’s conduct as unbecoming of a Supreme Court Justice in another related matter. On April 3, 1945, the Southern Conference for Human Welfare held a dinner, at which it honored Justice Black as the 1945 recipient of the Thomas Jefferson Award. Fred M. Vinson, interestingly, spoke at the dinner. While Jackson declined an invitation to the event, citing a conflict arising out of the fact that a number of leading sponsors of the dinner were then litigants before the Supreme Court, Black attended the dinner and received his award. Crampton Harris, counsel in two pending cases, Jewell Ridge and CIO v. McAdory (1945), was one of the sponsors.[36]

Jackson would later take these grievances public in two public cables from Nuremberg. Jackson had informally been promised the Chief Justiceship by Roosevelt; however, the seat came open while Jackson was in Germany, and FDR was no longer alive. President Harry S. Truman was faced with two factions, one recommending Jackson for the seat, and the other advocating for Hugo Black. In an attempt to avoid controversy, Truman appointed Fred M. Vinson. Jackson blamed machinations by Black for his being passed over for the seat, and publicly exposed some of Black's controversial behavior and feuding within the Court. The controversy was heavily covered in the press, and cast the New Deal Court in a negative light, and had the effect of tarnishing Jackson's reputation in the years that followed.

On June 8, 1946, Jackson sent a cable to President Truman. Jackson’s cable to Truman began with an insincere offer of congratulations to the President for his appointment of Vinson. However, the cable then quickly addressed the rumor, which Jackson had gotten wind of in Nuremberg, according to which Truman had appointed Fred Vinson, in part, to avert a resignation on the part of Justice Black. Rumors had been circulating in Washington that Black would resign in the event that Truman chose Jackson as Chief Justice Stone’s successor. "I would be loathe to believe that you would concede to any man a veto over court appointments."[37] Jackson closed his cable by stating that he could not continue his service as an Associate Justice under Vinson if an associate "had something on [him]", which would disqualify him from serving, or if he, Truman, regarded Jackson’s opinion in the Jewell Ridge case as a "gratuitous insult" to Justice Black.[38]

After receiving a response from Truman in which he denied having given consideration to, or having even heard of, the rumor of Black’s threatened resignation, Jackson rashly fired off a second cable to Congress, on June 10. This cable stated Jackson's reasons for his belief that Justice Black faced a conflict of interest in Jewell Ridge, from which he wrongfully, at least, in Jackson's eyes, did not recuse himself, and ended with Jackson's threat that if such a practice "is ever repeated while I am on the bench, I will make my Jewell Ridge opinion look like a letter of recommendation, by comparison."[39]

Jackson and Dennis v. United States

The "clear and present danger" test

In 1919, the Supreme Court decided Schenck v. United States.[40] In Schenck, the petitioners, members of the Socialist Party were convicted of violating the Espionage Act of 1917, for printing and distributing circulars asserting that American citizens had a right to oppose the draft during World War I because, among other things, it violated the United States Constitution.[41] The Schenck decision promulgated the "clear and present danger test," which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been committed.[42] Justice Holmes, writing for a unanimous court, affirmed the decision of the lower court positing:

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . The question in every case is whether the words used are used in such circumstances, and are of such a nature as to create a "clear and present danger" that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[43]

Dennis v. United States

Background

In 1951, the Supreme Court decided Dennis v. United States.[44] In Dennis, the petitioners were zealous Communists who organized for the purpose of teaching the “Marxist-Leninist Doctrine”.[45] The principal texts used to teach the doctrine were: History of the Communist Party of the Soviet Union; Foundations of Leninism by Stalin; The Communist Manifesto by Marx and Engels; and State and Revolution by Lenin.[38] The Petitioners were convicted for violating clause 2 and clause 3 of the Smith Act which, among other things, made it unlawful to conspire to organize a group which advocates the overthrow of the United States government, by force or violence.[46] The issue before the Supreme Court was “[w]hether either §2 or §3 of the Smith Act, inherently, or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights...”[47]

Jackson's concurrence

In Dennis, Jackson concluded that the "clear and present danger test" (the “Test”) should not be applied.[48] To this end, Jackson analyzed: the effect communism had outside the United States; the nature of communists; and the problems with applying the Test. Jackson’s analysis can be summarized as follows:

On the effect that communists historically had on foreign countries, Jackson analyzed their effect on Czechoslovakia.[49] In Czechoslovakia, a communist organization disguised as a competing political faction secretly established its roots in key control positions “of police and information services”.[38] During a period of national crisis, a clandestine Communist organization appeared, and overthrew the Czechoslovakian government.[38] Establishing control of mass communication and industry, the communist organization’s rule was one of “oppression and terror”.[38] Ironically, as Jackson points out, the communist organization suppressed the very freedoms which made its conspiracy possible.[38]

On the nature of communists, Jackson characterizes them as an extraordinarily dedicated and highly selective group, disciplined and indoctrinated by communist policy.[50] The goal of Party members is to secretly infiltrate key positions of government, industry, and unions, and to leverage their power once in such positions.[38] Jackson goes on to say that, although "...Communist[s] have no scruples against sabotage, terrorism, assassination, or mob disorder ...”, they “advocate force only when prudent”, which “may never be necessary, because infiltration and deception may be enough.”[51]

On the problems with applying "the Test" in Dennis, Jackson deems significant that "the Test" was authored “before the era of World War II revealed the subtlety and efficacy of modernized revolutionary technique used by totalitarian parties.”[52] Jackson believed that the application of "the Test" should be limited to cases bearing strong enough likeness to those for which it was originally crafted—i.e., “...criminality of hot-headed speech on a street corner, or parading by some zealots behind a red flag, or refusal of a handful of Jehovah Witness school children to salute our flag ...”[38] Expressing strong concern that the expansive construction the Court had recently given "the Test" in Bridges v. State of California,[53] Jackson asserted that "the Test" provided communists with “unprecedented immunities”, while the “Government is captive in a judge-made verbal trap.”[52] Jackson goes on to describe the application of "the Test" to communists, when determining the constitutionality of the Smith Act facially, or as applied as one of “...apprais[ing] imponderables, including international and national phenomena, which baffle the best informed foreign offices and our most experienced politicians.”[54]

Jackson concludes his First Amendment analysis in Dennis by asserting that:

The authors of the "clear and present danger test" never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.[38]
Conclusion

In the end, the Court applied its own version of the "clear and present danger test" in Dennis,[55] essentially disregarding the analytical elements of probability and temporality which had previously appeared to be requirements of the doctrine.[56] Jackson, however, as one commentator put it, expressed in Dennis (at least with regards to Communists) that ,“when used as part of a conspiracy to act illegally, speech loses its First Amendment protection.”[57]

Jackson’s hardened stance on the First Amendment in Dennis may be attributed to strong anti-Communist sentiment, which had a grip on Americans during the time of the decision.[58] In William Wiecek’s article discussing the history of anti-communism in the United States, he asserts that:

“[T]he manufactured image of the domestic Communist, cultivated and propagated by [J. Edgar] Hoover, the Catholic Church, the American Legion, and political opportunists, made of Communists something less than full humans, full citizens, fully rights-endowed. Even sophisticated jurists like ... Robert Jackson were captives of that image, anesthetizing [his] sensitivity to [the] deprivation of [their] rights.[59] In Dennis and other Communist cases between 1950 and 1956, the Supreme Court overcame the problem of facts not supporting the results [that] it was determined to reach, by accepting a generic ‘proof’ of Communism’s seditious nature. Disregarding all evidence of both the Party’s and individual members’ renunciation of violence, the Court substituted literary evidence from outdated classics of Marxism-Leninism, most written by Europeans of an earlier era, and refused to consider whether the living people before them actually subscribed to those doctrines...”[60]

Justice Jackson and Korematsu v. United States

Background

Following the Japanese attack on Pearl Harbor on December 7, 1941, there was great suspicion surrounding Japanese-Americans, particularly those residing on the West Coast of the United States. Franklin Delano Roosevelt issued Executive Order 9066 on February 19, 1942, giving the War Department permission to declare some zones “military zones”, in which they could prohibit certain people from accessing prescribed areas. With this executive order, the War Department was able to declare that all United States citizens of Japanese ancestry were prohibited from areas in California that were deemed unsafe for Japanese-American habitation for national security purposes, and it forced them into internment camps.

Fred Korematsu, a United States citizen, born on American soil, believed that this was an unconstitutional infringement on an individual’s civil liberty. The question that came before the Supreme Court of the United States, was whether the Executive and Legislative branches went beyond their war powers by depriving citizens of rights with no criminal basis.

Jackson's Dissent

The Supreme Court decided that the President and Congress did not stretch their war powers too far by choosing national security over an individual’s rights in a time of war. Justice Hugo Black wrote the majority opinion for this case, and Justice Jackson wrote a dissenting opinion. The opening paragraph of Jackson's dissent illustrated his view of the case:

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here, he is not law-abiding and well- disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.[61]

Justice Jackson warned of the danger that this great allowance of executive power presented, through the War Department’s ability to deprive individual rights in favor of national security, in time of war:

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional, and have done with it.[62]

Conclusion

Robert H. Jackson was not concerned in evaluating the validity of General DeWitt’s claim that the internment of Japanese citizens on the West Coast was necessary for national security purposes, but whether this would set a precedent of war-time racial discrimination that would be used to strip individual liberties.

But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes.[63]
Robert H. Jackson, Associate Justice of the Supreme Court, in 1953: second from the left, in the back row. Also pictured are, from the left, in the bottom row: Felix Frankfurter; Hugo Black; Earl Warren (Chief Justice); Stanley Reed; William O. Douglas. In the back row, from left: Tom Clark; Robert H. Jackson; Harold Burton; Sherman Minton

Justice Jackson and Brown v. Board of Education

One of Jackson's law clerks during 1952–53, William H. Rehnquist, was appointed to the Supreme Court in 1971, and became Chief Justice in 1986. In December 1971, after Rehnquist's nomination had been approved by the Senate Judiciary Committee and was pending before the full Senate, a 1952 memorandum came to light that he had written as Jackson's law clerk in connection with the landmark case, Brown v. Board of Education, that argued in favor of affirming the separate-but-equal doctrine of Plessy v. Ferguson. Rehnquist wrote a brief letter attributing the views to Jackson, and was confirmed. In his 1986 hearing, he was questioned about the matter. His explanation of the memorandum was disputed in both 1971 and 1986 by Jackson's former secretary, and scholars have questioned its plausibility. However, the papers of Justices Douglas and Frankfurter indicate that Justice Jackson voted for Brown in 1954 only after changing his mind.[64]

The views of Justice Jackson about Brown can be found in his 1954 unpublished draft concurrence.[65][66][67] The “Memorandum by Mr. Justice Jackson, March 15th, 1954”, is available with Jackson’s papers in the Library of Congress, but did not become publicly available until after Rehnquist’s 1986 hearing for Chief Justice of the United States. Jackson’s draft concurrence in Brown, divided into four parts, shows how he struggled with how to write an effective opinion to strike down segregation. In Part 1 of Jackson’s draft concurrence in Brown, he wrote that he went to school where, “Negro pupils were very few” and that he was “predisposed to the conclusion that segregation elsewhere has outlived whatever justification it may have had.” Despite his own opinions regarding desegregation, Jackson acknowledged the inability of the Court to "eradicate" the "fears, prides and prejudices" that made segregation an important social practice in the South. Jackson thus concluded that the Northerners on the court should be sensitive to the conditions that brought segregation to the South.

In Part 2 of the draft memorandum, Justice Jackson described the legal framework for forbidding segregation in “Does Existing Law Condemn Segregation?”. Jackson notes that it was difficult for the Court, which expected "not to make new law, but only to declare existing law," to overturn a decision of such longevity as Plessy. Looking at the doctrine of original intent with regard to the Fourteenth Amendment, Justice Jackson found no evidence that segregation was prohibited, particularly since states that had ratified the Fourteenth Amendment had segregated schools at the time. Jackson concluded, "I simply cannot find in the conventional material of constitutional interpretation any justification for saying" that segregated schools violated the Fourteenth Amendment.

Part 3 of the draft memorandum titled “Enforcement Power Limits”, describes enforcement by Congress of the Fourteenth Amendment. Jackson addressed the possibility of leaving enforcement to Congress, particularly because the “courts have no power to enforce general declarations of law." Jackson noted that while segregation was already fading in some states, it would be difficult to overcome in those states where segregation was firmly established. While Jackson recognized the difficulties in the Supreme Court enforcing its judgment, he did not want the task to be left to the lower courts, as suggested by the Government. Jackson concluded that the court must act because “our representative system has failed”, and even though this “premise is not a sound basis for judicial action."

Finally, in Part 4 of the draft memorandum “Changed Conditions”, Jackson began by stating that prior to Brown, segregation was legal. According to Jackson, the premise for overruling Plessy was the now erroneous "factual assumption" that "there were differences between the Negro and the white races, viewed as a whole." The draft asserted that the "spectacular" progress of African-Americans, under adverse circumstances, "enabled [them] to outgrow the system and to overcome the presumptions on which it was based." Jackson emphasized that the changed conditions, along with the importance of a public education, required the court to strike down the concept of "separate but equal" in public education. While Jackson could not justify the decision in Brown in law, he did so on the basis of a political and social imperative. It is unknown if Jackson ever intended to publish this concurrence.

Justice Jackson was in the hospital from March 30 to May 17, 1954. It is reported that Chief Justice Warren visited Jackson in the hospital several times, and discussed both Jackson’s draft opinion and Warren’s drafts. One suggestion that Warren took from Jackson was adding the following sentence: “Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world.”[65] This quote is tied to the arguments in Part 4 of Jackson’s draft opinion. On May 17, 1954, Jackson went to the Court from the hospital, so that he could be there the day that the Brown decision was handed down. When the Brown decision was handed down, a full court was present, to emphasize the unanimity of the decision. Robert H. Jackson died on October 9, 1954, and so there was not enough time between Brown and the death of Jackson to fully explore his views on desegregation.

Justice Jackson and procedural due process

Justice Jackson was one a defender (along with Justice Frankfurter) of procedural due process, for the rule of law that protects members of the public from overreaching by government agencies. One of his hymns to due process is often quoted:[68]

Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law.
If it be conceded that in some way [that the agency could take the action it did], does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedure matters not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures, than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
Chief U.S. Prosecutor at the International Military Tribunal, Nuremberg, Germany, Robert H. Jackson,1945-46

International Military Tribunal, 1945–1946

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Robert H. Jackson, Chief U.S. Prosecutor at the International Military Tribunal in Nuremberg, Germany, 1945-46

In 1945, President Harry S. Truman appointed Jackson (who took a leave of absence from the Supreme Court), as U.S. Chief of Counsel for the prosecution of Nazi war criminals. He helped draft the London Charter of the International Military Tribunal, which created the legal basis for the Nuremberg Trials. He then served in Nuremberg, Germany, as United States Chief Prosecutor at the International Military Tribunal. Jackson pursued his prosecutorial role with a great deal of vigor. His opening and closing arguments before the Nuremberg court are widely considered among the best speeches of the 20th century. In the words of defendant, Albert Speer:

“ The trial began with the grand, devastating opening address by the Chief American Prosecutor, Justice Robert H. Jackson. But I took comfort from one sentence in it which accused the defendants of guilt for the regime's crimes, but not the German people.[69] ”

However, some believe that his cross-examination skills were generally weak, and it was British prosecutor David Maxwell-Fyfe who got the better of Hermann Göring in cross-examination, rather than Jackson, who was rebuked by the Tribunal for losing his temper and being repeatedly baited by Göring during the proceedings.[70]

Death and legacy

On March 30, 1954, Jackson had suffered a massive heart attack. He was confined to the hospital until May 17, when he returned to the court. He remained functioning in his position as Justice until October 4, 1954. On Saturday, October 9, 1954, Jackson Jackson suffered a myocardial infarction. At 11:45 a.m. he died at 62.[71] Funeral services were held in Washington's National Cathedral,[72] and later in Jamestown's St. Luke's Church. All 8 of the other Supreme Court Justices traveled together to Jamestown, New York, to attend his funeral service and, for security purposes, this was the last time that the Supreme Court all traveled together. Other prominent guests included Thomas E. Dewey.[73] he was interred near his boyhood home in Frewsburg, New York. His headstone reads ""He kept the ancient landmarks and built the new." [74]

The Robert H. Jackson Center, located in Robert H. Jackson's hometown of Jamestown, New York, offers guided tours to visitors, as well as exhibits on Jackson's life, and collections of his writings, and photos from the International Military Tribunal.[75] An extensive collection of Jackson's personal and judicial papers is archived at the Manuscript Division of the Library of Congress, and is open for research. Smaller collections are available at several other repositories.

There are statues dedicated to Robert H. Jackson outside the Robert H. Jackson Center in Jamestown, New York, as well as the Robert H. Jackson field at the Chautauqua County-Jamestown Airport. The United States District Court for the Western District of New York main courthouse, which is located in Buffalo and opened in November, 2011, is dedicated to Justice Jackson and is named the Robert H. Jackson United States Courthouse.[76]

Robert H. Jackson has been portrayed by the following actors in film, television, and theater productions:[77]

See also

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References

  1. ↑ Watts v. Indiana, 338 U.S. 49, 59.
  2. ↑ Brown v. Allen, 344 U.S. 443.
  3. ↑ Downs, John Phillips (1921). History of Chautauqua County New York and its People. III. Boston, MA: American Historical Society. p. 357.
  4. ↑ "Author biographies". Pennsylvania Center For the Book. Retrieved 2017-03-02.
  5. ↑ Halpern, Philip. "Robert H. Jackson, 1892-1954". Stanford Law Review.
  6. 1 2 3 4 5 6 History of Chautauqua County New York and its People.
  7. ↑ Shimsky, MaryJane (2007). "Hesitating Between Two Worlds": The Civil Rights Odyssey of Robert H. Jackson. I. Ann Arbor, MI: ProQuest LLC. p. 63.
  8. 1 2 "Hesitating Between Two Worlds".
  9. ↑ "Society Notes: Jackson-Herhardt". Kingston Daily Freeman. Kingston, NY. April 24, 1916. p. 3. (Subscription required (help)).
  10. ↑ Raful, Lawrence (2006). The Nuremberg Trials: International Criminal Law Since 1945. Munich, Germany: K. G. Saur Verlag. p. 129. ISBN 978-3-598-11756-5.
  11. ↑ The Nuremberg Trials: International Criminal Law Since 1945.
  12. ↑ Hockett, Jeffrey D. (1996). New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, MD: Rowman & Littlefield. pp. 224, 226. ISBN 978-0-8476-8211-9.
  13. ↑ Malcolm, James (1918). The New York Red Book. Albany, NY: J. B. Lyon Company. p. 47.
  14. ↑ Thomas E., Baker; Stack, John F. (2006). At War with Civil Rights and Civil Liberties. Lanham, MD: Rowman & Littlefield. p. 75. ISBN 978-0-7425-3598-5.
  15. ↑ New Deal Justice.
  16. ↑ "Democratic Lawyers Organization Formed". Poughkeepsie Eagle-News. Poughkeepsie, NY. October 25, 1932. p. 2. (Subscription required (help)).
  17. ↑ Jackson, Robert H. (2003). That Man: An Insider's Portrait of Franklin D. Roosevelt. New York, NY: Oxford University Press. p. 8. ISBN 978-0-19-516826-6.
  18. ↑ That Man: An Insider's Portrait of Franklin D. Roosevelt.
  19. ↑ "Biography, Robert H. Jackson, 1941-1954". Timeline of the Justices. Washington, DC: Supreme Court Historical Society. Retrieved March 10, 2017.
  20. ↑ Shultz, David (2005). The Encyclopedia of the Supreme Court. New York, NY: Facts on File, Inc. p. 232. ISBN 978-0-8160-5086-4.
  21. ↑ Shlaes, Amity (2007). The Forgotten Man: A New History of the Great Depression (1st edn ed.). New York: HarperCollins. pp. 344–349. ISBN 0-06-621170-0.
  22. ↑ Shlaes, Amity (2007). The Forgotten Man: A New History of the Great Depression (1st edn ed.). New York: HarperCollins. pp. 189–191. ISBN 0-06-621170-0.
  23. ↑ Schlesinger, Arthur Meier (2003) [1959]. The Coming of the New Deal, 1933–1935. Age of Roosevelt (1st Mariner Books ed.). Boston: Houghton Mifflin. p. 569. ISBN 0-618-34086-6. OCLC 51978038. Retrieved January 20, 2008.
  24. ↑ Shlaes, Amity (October 2, 2006). "The Greenspan Of His Day, a book review of Mellon: An American Life (by David Cannadine)". New York Sun. New York City. Retrieved January 20, 2008. Mellon's opponents never did win convictions.
  25. ↑ "Self-Defense". TIME. April 15, 1935. Retrieved January 20, 2008.
  26. ↑ "Round for Mellon". TIME. May 24, 1937. Retrieved January 20, 2008.
  27. ↑ Black, Ryan C.; Owens, Ryan J. (2012). The Solicitor General and the United States Supreme Court. New York, NY: Cambridge University Press. p. 18. ISBN 978-1-107-01529-6.
  28. ↑ "Of the World: The Court Loses a Justice". LIFE. New York, NY: Time, Inc. October 18, 1954. p. 51.
  29. ↑ Cushman, Clare. The Supreme Court Justices: Illustrated Biographies. Thousand Oaks, CA: Sage Press. p. 370. ISBN 978-1-60871-832-0.
  30. 1 2 3 4 5 That Man: An Insider's Portrait of Franklin D. Roosevelt, pp. xv-xvi.
  31. ↑ U.S. House Subcommittee no. 1 of the Committee on the Judiciary, To Authorize Wire Tapping. Hearings on H.R. 2266, H.R. 3099, 77th Cong., 1st sess., 1941, 1, 257
  32. ↑ Childs, Marquis W. (March 18, 1941). "House Committee Approval Likely on Wire-Tapping". St. Louis Post-Dispatch. p. 3. Section A.
  33. ↑ Dennis J. Hutchison, The Black-Jackson Feud, 1988 Sup.Ct.Rev. 203 (1988).
  34. ↑ Id. at 230.
  35. ↑ Id. at 208.
  36. ↑ Id. at 236–37
  37. ↑ Id. at 220.
  38. 1 2 3 4 5 6 7 8 9 Id.
  39. ↑ Id. at 221.
  40. ↑ Schenck v. United States, 249 U.S. 47 (1919).
  41. ↑ Id. at 49–51.
  42. ↑ Dennis v. United States, 341 U.S. 494, 505–507. see also, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
  43. ↑ 249 U.S. 47, 52.
  44. ↑ 341 U.S. 494
  45. ↑ Id. at 582 (Douglas, J. Dissenting)
  46. ↑ Id. at 495; see also, 54 Stat. 671.
  47. ↑ Id. at 495–496.
  48. ↑ Id. 570.
  49. ↑ Id. at 565–566.
  50. ↑ Id. at 564.
  51. ↑ Id. at 564–565.
  52. 1 2 Id. at 568.
  53. ↑ Id. at 568 n.12 (1951) (distinguishing Whitney v. California 274 U.S. 357, 376 (1927) from Bridges v. State of California, 314 U.S. 252, 263 (1941)).
  54. ↑ Id. at 570.
  55. ↑ Id. at 510–511.
  56. ↑ Erwin Chemrensky, Constitutional Law: Principles and Policies, 961, 962 (Aspen 2ed. 2002)
  57. ↑ Martin H. Redish, Unlawful Advocacy and Free Speech Theory: Rethinking the Lessons of The McCarthy Era, 73 UCINLR 9, 51 (2004).
  58. ↑ see generally, William M. Wiecek, The Legal Foundation of Domestic Anticommunism: The Background of Dennis v. United States, T 2001 Sup. Ct. Rev. 375, 429 (2001).
  59. ↑ Id. at 429.
  60. ↑ Id. at 434.
  61. ↑ William C. Banks; Rodney Smolla (6 May 2010). Constitutional Law: Structure and Rights in Our Federal System. LexisNexis. pp. 462–465. ISBN 978-0-327-17509-4.
  62. ↑ Randy E. Barnett; Howard E. Katz (9 December 2014). Constitutional Law: Cases in Context. Wolters Kluwer Law & Business. pp. 705–707. ISBN 978-1-4548-2920-1.
  63. ↑ Encyclopedia of Supreme Court Quotations. M.E. Sharpe. pp. 227–231. ISBN 978-0-7656-1825-2.
  64. ↑ Justice William O. Douglas wrote: “In the original conference there were only four who voted that segregation in the public schools was unconstitutional. Those four were Black, Burton, Minton, and myself.” See Bernard Schwartz, Decision: How the Supreme Court Decides Cases, page 96 (Oxford 1996). Likewise, Justice Felix Frankfurter wrote: “I have no doubt that if the segregation cases had reached decision last term, there would have been four dissenters – Vinson, Reed, Jackson, and Clark.” Id.
  65. 1 2 Schwartz, Bernard (1988). "Chief Justice Rehnquist, Justice Jackson, and the "Brown" Case". Supreme Court Review. 1988 (1988): 245–267. JSTOR 3109626.
  66. ↑ Tushnet, Mark; Lezin, Katya (1991). "What really happened in Brown v. Board of Education". Columbia Law Review. Columbia Law Review, Vol. 91, No. 8. 91 (8): 1867–1930. JSTOR 1123035. doi:10.2307/1123035.
  67. ↑ Jackson, Robert (March 15, 1954). "Memorandum by Mr. Justice Jackson". Brown file, Robert H Jackson Papers. Library of Congress.
  68. ↑ Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 224–25 (1953) (Jackson, J., dissenting)
  69. ↑ Speer, Albert, Inside the Third Reich, page 513, Macmillan, New York 1970 (1982 reprint by Bonanza) ISBN 0-517-38579-1
  70. ↑ Ann Tusa and John Tusa, The Nuremberg Trial" (London, Macmillan, 1983), pp 269-293.
  71. ↑ Feldman, Noah (October 2010). Scorpions: The Battles and Triumphs of FDR's Greatest Supreme Court Justices. New York, NY: Hachette Book Group. pp. 403–405.
  72. ↑ "1,000 AT RITES FOR JACKSON IN WASHINGTON (October 13, 1954)". Chicago Tribune. Retrieved 2017-06-25.
  73. ↑ Barrett, John Q. (2016). "President Eisenhower and Justice Jackson’s Funeral (1954)" (PDF). The Jackson List.
  74. ↑ Leslie Alan Horvitz; Christopher Catherwood (14 May 2014). Encyclopedia of War Crimes and Genocide. Infobase Publishing. pp. 250–251. ISBN 978-1-4381-1029-5.
  75. ↑ "About". Robert H Jackson Center. Retrieved 2017-06-25.
  76. ↑ GSA, Robert H. Jackson United States Courthouse, Buffalo, NY; Barry A. Muskat, Great Buildings: Inside the federal courthouse, Buffalo Spree (Feb. 2012).
  77. ↑ "Justice Robert H. Jackson (Character)". IMDb.com. Retrieved May 20, 2008.

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