We who had the good fortune to know Mr. Justice Jackson stand in the radiance
of his warm friendship and under the living spell of his encircling charm.
To epitomize the judicial thought of a Justice of this Court is at best a
perilous task; all the more so to confront at so intimate a range the record
of one so brimming with vitality, so unpedantic and imaginative as Robert
Jackson. The danger, as he might have put it, is that the speaker who sets
out to rededicate himself will succeed only in desiccating his subject. Like
the proverbial rules of law, Justice Jackson’s thoughts can be put into
a nutshell but surely one cannot keep them there.
In the spirit of this confession freely given, one turns to recall the major
theme of Justice Jackson’s legal thinking. He would not have disagreed
with the counsel of Justice Holmes that if we would know what the great grants
of power in the Constitution mean, we must understand what this country has
become. Nothing is more striking in Justice Jackson’s constitutional
philosophy than his sense of our political and economic unity, our togetherness.
This strong sense of cohesion colored his views of both national and state
power in our Federal system. On the national level, the protective authority
of Congress must be commensurate with the realities of trade and commerce:
“If it is interstate commerce that feels the pinch, it does not matter
how local the operation which applies the squeeze.” On the local level,
the national market must be safeguarded by the Court against state commercial
provincialism, whether in the form of commercial barriers to the outflow or
inflow of goods or in the form of taxes taking toll from every dollar’s
worth of goods shipped in or out. No justice in the modern era has been more
than he to find and strike down impediments to trade – impediments which,
it is not always remembered, are often reflected in the purses of the consumers.
In this solicitude for the multi-state market he stands in the tradition of
Marshall and Story and Bradley.
But it was not only for freedom of movement of goods that mattered. Free movement
of persons from state to state, without regard to their financial need, was
for him even more basic to our Federalism. Insisting that a state’s
powerlessness to keep out paupers rested on something even more fundamental
that freedom of commerce, he remarked that to rely merely on the commerce
clause would result “either in distorting the commercial law or in denaturing
human rights.”
All of a piece with this cohesive Federalism was his advocacy of greater use
of the Full Faith and Credit Clause not only for the recognition of judgments
of sister states but for more nearly uniform rules to govern choice of law
by state courts in the decision of controversies transcending state lines.
The Federal courts, he felt, should be allowed more latitude to develop a
uniform peripheral common law around federal statutes; indeed he seemed never
quite reconciled to Erie v. Tompkins in its more decentralizing manifestations
.
All of this constituted variations on the theme of togetherness. But parallel
to it ran an equally insistent theme of separateness, of discreteness in the
realm of the spirit. In constitutional terms the transition is made when he
interprets the Bill of Rights. No one who reads his opinion in the flag-salute
case can miss the essential meaning that the Bill of Rights held for him.
Spiritual integrity was not to be tampered with. To require by word or gesture
a declaration of belief, which for the declarant was a profanation –
this was the issue in the case as Justice Jackson saw it, and the answer could
not be doubtful.
It was when private dissent passed over into the area of public proselytizing
that he was ready to recognize the curbs of law. The sect whose refusal to
salute the flag was given constitutional shelter he roundly castigated for
its tactics in spreading its message. “The First Amendment,” he
wrote, “grew out of an experience which taught that society cannot trust
the conscience of a majority to keep its religious zeal within the limits
that a free society can tolerate. I do not think it any more intended to leave
the conscience of a minority to fix its limits. Civil government cannot let
any group ride roughshod over others simply because their ‘consciences’
tell them to do so.
Every judge who is called on to administer the Bill of Rights must find guideposts
to mark off privileges from their abusive exercise, to distinguish between
the sovereignty of the individual and the authority of the public order. For
Justice Jackson the line was typically drawn between private dissent –
the right to be let alone – and personal intrusion into the lives of
others. Of course the criterion cannot be merely physical – is it misfeasance
or nonfeasance when a mule balks? – and from a moral standpoint, moot
conduct partakes of both private and public attributes, whether the conduct
be refusal to attend school or to salute the flag. No antinomy can resolve
the problems of judgment inhering in the Bill of Right. Justice Jackson has
at least served to give a steady philosophic thrust to his thinking. Thus
when faced with the case of a compulsory loyalty oath for labor leaders he
defended vigorously the validity of a pledge of non-membership in the Communist
Party while rejecting with equal fervor a required pledge of non-belief in
illegal overthrow of the government. And when leaders of a sect apparently
more venal than religious were tried for use of the mails to defraud, he rebelled
at the inquiry into the bad faith of the defendants, believing that it would
lead to a trial of the truth or falsity of their doctrine. “I would
dismiss the indictment,” he wrote, “and have done with this business
of judicially examining other people’s faiths.” Into the temple
of the mine he believed no search warrant could give a right of entry.
The mind of a judge is protected in its integrity by special safeguards. It
must not be tampered with by extraneous threats or promises calculated to
overbear the will. In assessing the limits of speech and publication in relation
to contempt of court, Justice Jackson cherished no illusions about the bloodless
impersonality of judges. “And if fame – a good public name –
is, as Milton said, the ‘last infirmity of a noble mind,’ it is
frequently the first infirmity of a mediocre one.”
A subtler threat to the integrity of the judicial process arises from the
seductiveness of advocacy. If Justice Jackson showed any fear as a member
of the Court, it was only a fear of being imposed upon by intellectual speciousness.
He had developed a hypersensitive allergy to what he sensed as opportunism
in the air of the courtrooms. One member of this bar will vividly remember
such an occasion, when arguing on behalf of the Government that contracts
for the acquisition of land could be avoided by the United States because
by some naiveté, the War Department had offered its purchasing agent
a commission measured by a percentage of the purchase price which he agreed
upon with the landowners. Justice Jackson reminded counsel that week after
week the Government came before the Court insisting that administrative discretion
must be respected, and now it was pleased to shift to the other foot the better
to serve its interests. When counsel replied with what he thought was a pallid
Jacksonism – that there is a difference between administrative discretion
and indiscretion – the Justice was not persuaded, nor even, apparently,
amused.
This faculty of quick recoil from what he felt to be an imposition may help
to explain some patterns in Justice Jackson’s thought that are otherwise
indistinct. In the administration of the criminal law he took a strict view
of the authority to make a search or seizure without a warrant or to search
more extensively than the warrant directed, and he approved the exclusion
of illegally obtained evidence in Federal trials. Conviction in the immediate
case must yield to a prophylactic rule in the interest of ultimate decency.
The capacity to see the general in the particulate was never better displayed
than in his simple statement: “So a search against Brinegar’s
car must be regarded as a search of the car of Everyman.” And yet in
dealing with the admission of confessions challenged as coerced, he was more
greatly preoccupied with the guilt of the immediate defendant. To be sure,
the difference may lie partly in a distinction between the role of the Supreme
Court in Federal and in state trials. But the contrast seems more deeply rooted,
and its resolution may lie in that faculty of mistrust and recoil. Rules laid
down concerning searches and seizures can be enforced by judges with relative
assurance; the facts are generally not a matter of wild disagreement. Claims
of coercion, however, pressed before the Court to secure the reversal of a
conviction, appeared to Justice Jackson to be too often a lawyer’s device
ringing hollow to the practiced ear. The limits of effective judicial control
by way of example appeared to him to be soon reached, and to demand more in
a setting that told of guilt seemed to him to call for rebuff. “We are
not willing to discredit constitutional doctrines for protection of the innocent
by making of them mere technical loopholes for the escape of the guilty…The
people of the State are also entitled to due process of law.” The role
of Everyman was now assigned to the victim of crime, not to the accused.
The resolve that a judge must not be used – that when he acts he must
do so not only from inward conviction but with a genuine choice of effective
decrees – was the controlling element Jackson in the review
of the wartime Japanese evacuation orders. He remembered the futility of Taney’s
writ of habeas corpus in the Merryman case; indeed his book “The Struggle
for Judicial Supremacy” closed with a moving account of that pathetic
episode. He may have thought, too, of the pressures on the Department of Justice
to take over the enforcement of domestic military orders through the processes
of the criminal law. He had no wish to be an ineffectual judicial angel sounding
in the void his luminous words in vain. He concluded that the judicial function
was illusory in such cases and could only bestow on the military orders an
imprimatur of legality to which he could not be sure they were entitled. However
tangled the resulting legal relations would have been, for his part he would
not have allowed the courts to be employed in this enterprise. The integrity
of the judicial process was Jackson an almost obsessive concern.
However much one analysis of his judicial work may differ from another, there
will be no disagreement about its artistry. He had style to delight, grace
and power of expression to captivate. His was an Elizabethan gusto for the
swordplay of words. If his style was like pearls, they were occasionally –
as was said of the style of a Scottish judge, surely a forebear – pearls
dissolved in vinegar. He wrote for the lawyers he knew, with an eye fixed
on what was practicable in the outcome and accessible in the sources, but
his opinions have held withal a rare fascination for students of the law,
and this they will not cease to hold so long as sagacity wrapped in wit has
power to move the inquiring mind.
If he wrote for the lawyers he knew and yet reached an immeasurable audience,
is it too much to suggest that his basic ideas had their origin in the community
he knew as a lawyer and yet that they derived from sources far more general
and remote? The sense of cohesion, the response to the pull of the widening
community, the appreciation of the mobility of men and resources -- were not
these naturally cultivated in one who had been brought from Warren County,
Pennsylvania to live in upstate New York and who came to represent commercial
interests operating in the vicinity of state boundaries? The fierce attachment
to the cause of spiritual integrity, the right to choose one’s fellowship
or if need be to walk alone, to enjoy now the exuberant companionship of like
minds and now the privacy of the spirit curtained against intrusion from whatever
source without – where not these too part of a Jamestown inheritance?
Tradition spoke through Justice Jackson with his own strong and distinctive
accent, but recognizable still as the authentic American voice. And so when
he speaks the deepest part of us vibrates to his chord.
I have spoken of a judge who was also and above all a stouthearted, ebullient
lover of life. He took the law, as he took the rest of life, with staunchness
and high spirit. As I keep the remembrance of Robert Jackson there rise to
mind some lines by a poet of our time:
“I think continually of those who were truly great.
The names of those who in their lives fought for life,
Who wore at their hearts the fire’s center.
Born of the sun they traveled a short while towards the sun,
And left the vivid air signed with their honor.”
Transcribed by Charlene J. Peterson, 2003